Roshni K.S. v. Kerala Public Service Commission and Secretary, Kerala Public Service Commission, Regional Office, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** ## **THURSDAY, THE 13TH DAY OF NOVEMBER 2014/22ND KARTHIKA, 1936** ## **WP(C).No. 26937 of 2014 (N)** **---------------------------------------** **PETITIONER(S):** **----------------------** **ROSHNI K.S., AGED 34, D/O. SHANKARAN NAMBOODIRI, W/W RAJESH E.M., EDAPPILLY MANA SOUTH, VAZHAKULAM, ALUVA, ERNAKULAM - 683 105.** **BY ADVS.SRI.R.LAKSHMI NARAYAN SMT.R.RANJINI** **RESPONDENT(S):** **-------------------------** **1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM - 695 004.** ## **2. THE SECRETARY,** - **KERALA PUBLIC SERVICE COMMISSION, REGIONAL OFFICE, ERNAKULAM (NEAR SOUTH RAILWAY STATION, EASTERN ENTRY TOWER) - 682 035.** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 26937 of 2014 (N)** **---------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** **EXHIBIT P1: THE PHOTOCOPY OF THE NOTIFICATION FOR CATEGORY NO. 489/2011. EXHIBIT P2: THE PHOTOCOPY OF THE ADMISSION TICKET AND IDENTIFICATION CERTIFICATE.** **EXHIBIT P3: THE PHOTOCOPY OF THE LETTER DATED 08/07/2014.** **EXHIBIT P4: THE PHOTO COPY OF THE THE TRANSLATION OF EXT.P3.** **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------** **EXT.R1(a):TRUE COPY OF APPLICATION.** **//TRUE COPY//** **P.S.TO JUDGE.** Ms **v/** Dama Seshadri Naidu, J. ------------------------------------------- W.P.(C)No.26937 of 2014 N -------------------------------------------- Dated this the 13[th] day of November, 2014 ## **JUDGMENT** The issue raised in this writ petition concerns itself with the exclusion of the petitioner from the rank list on the premise that her photograph affixed on the application was taken fifteen days prior to the stipulated date. This rejection took place after the respondent authorities subjected the petitioner to the selection process and later due verification of all her certificates for the purpose of reflecting her name in the rank list. 2. Briefly stated, the facts are that, in response to Exhibit P1 notification issued by the first respondent (Kerala Public Service Commission), the petitioner submitted Exhibit R1(a) application. After the scrutiny of the said application, the first respondent issued Exhibit P2 admission ticket permitting the petitioner to face the WPC 26937/14 2 written test on 08.06.2013. In the short list published on 23.05.2014, since the petitioner's name was found as one of the successful candidates, the first respondent called her for document verification which took place on 16.07.2014. In fact, a communication was sent by the first respondent through Exhibit P4 informing the petitioner of the documents required to be produced by her for verification. The list of documents as set out in Exhibit P4 also includes a passport size photograph taken within six months. The petitioner did get her documents verified. 3. Eventually, when the final rank list was published, the petitioner's name was not found. In that context, the petitioner is said to have made enquiries with the respondent authorities and come to know that she secured 78 marks out of 100 and that the candidates who secured fewer marks have been included in the rank list. Assailing the action of the respondents in not placing the petitioner in the rank list despite her securing 78% marks, the petitioner WPC 26937/14 3 has filed the present writ petition. 4. In the counter affidavit filed by the respondent PSC, the reason was supplied why the petitioner's name had not been included in the rank list. The singular cause, as it seems, weighed with the authorities is that the notification has clearly stipulated that photograph should be taken only after 31.12.2010, but the petitioner's photograph uploaded along with application was taken on 15.12.2010. On that ground alone the petitioner's application was rejected. 5. In the above factual background, the learned counsel for the petitioner has strenuously contended that Exhibit P1 notification itself does not contain any stipulation or guideline concerning when the candidate's photograph should be taken for affixing it on the application. She has further submitted that in terms of clause (8) of Exhibit P1 notification, the respondent authorities have indicated that instructions are available in their website 'www.keralapsc.org'. According to the learned counsel, despite the petitioner's WPC 26937/14 4 diligent efforts, she could not locate any general instructions concerning the manner of filling in and submitting the application in the website, contrary to the claim of the respondent authorities. The learned counsel has tried to demonstrate with the help of a laptop before this Court that even though Exhibit P1 notification still remains in the website of the respondents, it does not contain any instructions. In other words, only owing to lack of information, the petitioner uploaded the application along with the photograph taken just fifteen days prior to the date indicated in the alleged general instructions. The learned counsel has submitted that had there been any information readily available in the portal, no prospective candidate, desirous of getting employment, would have ignored it, more particularly when the compliance was very simple in nature that a photograph taken within the stipulated time was required to be affixed. WPC 26937/14 5 6. The learned counsel has strenuously contended that there is neither minor nor major defect in the petitioner's submitting the application in terms of Exhibit P1 notification. As such, the rejection of her application on a flimsy ground that the photograph contained in the application bears a different date is unsustainable. 7. The learned counsel has laid stress on the fact that all along Exhibit P2 admission ticket duly reflected the petitioner's photograph with her name and date on the face of it. Had it been a substantive objection on the part of the respondents, they would have rejected the application at the very beginning itself. On the contrary, through Exhibit P4, the respondents informed the petitioner of the documents required to be submitted for scrutiny and in fact subjected all the documents produced by the petitioner for scrutiny on 16.07.2014. According to the learned counsel, the reason that the photograph bears a different date has been subsequently added only with a view to defeating the WPC 26937/14 6 petitioner's right to public employment. Accordingly, the learned counsel has urged this Court to allow the writ petition. 8. Mr.Ashraf, the learned counsel representing the learned Standing Counsel for the respondents, has strenuously opposed the claims and contentions of the petitioner. To begin with, he has submitted that the web portal of the PSC did contain the necessary information in the form of general instructions as to the manner of filling in and uploading the applications. He has further submitted that the said general conditions clearly mandated that the applicants should have taken their photographs on or after 31.12.2010. 9. In elaboration of his submissions, the learned Standing Counsel has submitted that the respondents have all along followed a uniform policy in insisting on having the name and date on the face of the photograph with the objective of weeding out the bogus applications and WPC 26937/14 7 impersonation as well. In this regard, the learned counsel has placed reliance on two Division Bench judgments of this Court in **Sasikala v. Kerala Public Service Commission** (2012 (2) KLT 585) and **Sreejesh Vijayan v. State of Kerala** (2014 (1) KLT 1003). 10. The learned Standing Counsel has submitted that, in similar instances, earlier when the applications had been rejected, the aggrieved candidates approached this Court on more than one occasion and raised various pleas including that of the principle of substantive compliance. According to him, different Division Benches of this Court, taking into account all the aspects of the issue, eventually negatived the claims of the applicants and upheld the stand of the PSC that the provision as to submitting the application, especially that of reflecting the name and date on the face of the photograph is mandatory. The learned Standing Counsel, confronted with the issue of web portal not containing the information, has submitted that in course WPC 26937/14 8 of time the portal had its name changed to www.keralapsc.gov.in. According to him, initially Exhibit P1 notification, as had been displayed in the website, had the general instructions attached to it. Now, they have been removed owing to efflux of time. To lend credibility to the claim of the respondents, the learned Standing Counsel would urge that presently there are other notifications on display and they contain the general instructions. Thus, contends the learned Standing Counsel for the respondents that there is no substance in the claim of the petitioner and that the writ petition be dismissed. 11. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents, apart from perusing the record. ## **Issue** : 12. Whether the petitioner’s affixture of a photograph taken fifteen days earlier than the stipulated WPC 26937/14 9 time vitiates her candidature? 13. Indeed, as could be seen from Exhibit R1(a) and Exhibit P2, the photograph appended to the application did contain the date clearly mentioned on the face of it. Assuming that the general conditions were made available through a web portal and that there was a condition that the photograph would be the one taken on or after 31.12.2010, it is not far to seek the objective behind the said stipulation. All along, since the applications are required to be uploaded on-line, the PSC has perhaps desired to ensure that only genuine applications are entertained by it. On that score, signing across the face of the photograph and reflecting there the date when the photograph was taken seem to have been imposed as preconditions for accepting the application. In the present instance, as has already been observed, both Exhibit R1(a) and Exhibit P2 clearly reveal that the photograph was taken on 15.12.2010. Had the respondents entertained any doubt WPC 26937/14 10 about the genuineness of the petitioner's candidature, they could have rejected the application at the threshold. At any rate, this Court hastens to add that once the said condition is to be treated as mandatory, acceptance of the application at the initial stage inadvertently or otherwise would not come in the way of the respondents taking a different stand at a later point of time and negativing the application. Keeping this principle in mind, I proceed to determine the issue. 14. The learned counsel for the petitioner has strenuously contended that the website did not contain any information concerning the general conditions regarding the manner of filling in and uploading the application. With a rhetorical slant, the learned counsel has submitted that had the information been available or readily accessible, no prospective candidate would have blown away his/her chance to be considered for appointment by such a simple omission. Be that as it may, in response to the said WPC 26937/14 11 submission, the learned Standing Counsel has contended that the portal had its name changed subsequently and that the information could have been removed. 15. On the last occasion when the matter was heard in part, this Court directed the learned Standing Counsel to submit a hard copy of the general conditions downloaded from the website to indicate that at any point of time the website contained the information in question. Today, the learned Standing Counsel did submit the information which is a neatly typed copy, but not a hard copy directly downloaded from the website. He has submitted that in the light of the change in the web portal name, the information could have been removed from the website. This contention, I am afraid, cannot be countenanced. The respondents do not dispute that even now the official website of the respondents contains Exhibit P1 notification, but not the alleged information concerning the general conditions. Had it been the case of removing the information owing to the WPC 26937/14 12 fact that the recruitment process was complete, it makes sense to expect that the entire information, including Exhibit P1 notification, must have been removed. 16. The learned Standing Counsel has been candid enough in admitting that this method of providing information through website was not there in the initial phase; it was taken recourse to only from 2010 onwards. Going by the demonstrably convincing submission of the learned counsel for the petitioner that at no point of time, including today, did accessing the respondent's website lead to any general conditions, the petitioner could not have been at fault in affixing an older photograph. I have used the expression ‘Demonstrably’ for the reason that today, too, the learned Counsel has brought the laptop with wi-fi connection to demonstrate before the Court that Ext.P1, though still available in the online, does not have the general conditions annexed to it. Coupled with this is the fact that the learned Standing Counsel for the respondent WPC 26937/14 13 could not produce any hard copy of those general guidelines downloaded either in the past or in the preset. I am, therefore, constrained to conclude that all along the website has not contained the information or, in the alternative, it was not readily accessible. Indeed, on more than one occasion, the learned Division Benches of this Court have concluded that omission on the part of the applicants, either in not signing on the photograph or in not reflecting the date on the face of it, would amount to a major and incurable defect rendering the application liable for rejection. The decisions cited across the Bar are essentially based on the Division Bench decision in **Sasikala's case** (supra). 17. A perusal of **Sasikala's case** (supra), reveals that the applicant therein did neither write her name nor enter the date of the photograph on the face of it. On that count, the learned Division Bench has concluded that it is not a minor defect as was held in **Manojkumar v. K.P.S.C.** WPC 26937/14 14 (1999 (2) KLT 534) and that it did amount to a major defect disentitling the applicant from having her application considered. It is further not in dispute that in **Sasikala's case** (supra), the pre-condition as to signing across the photograph and reflecting the date on the face of it were included in the very notification. It was, therefore, concluded that the applicant had sufficient knowledge about the mandatory procedure to be followed. In the present instance, the situation is entirely different. 18. It is well established that a judgment cannot be treated as a precedent without due reference to the factual setting of the said case. There are significant factors that differentiate the present writ petition from **Sasikala's case** (supra). Firstly, in the present instance the petitioner did sign on the face of the photograph, apart from mentioning the date. The authorities processed the application, allowed the petitioner to participate in the selection process, included her name in the short list and eventually WPC 26937/14 15 scrutinised all the documents, including the latest photograph, submitted by her. Only in the final rank list her name was omitted to be included despite her securing better marks than the other candidates whose names had been included. Coupled with the fact that the web portal of the respondents did not yield any information, nor could the learned Standing Counsel produce any proof or demonstrate before this Court that the portal, at least at some previous point of time, contained the information, the factum that the petitioner has substantially complied with the requirement of signing on the face of the photograph and mentioning the date thereof would leave this Court with no other option than concluding that the petitioner's name ought to have been considered by the respondents to be reflected in the final rank list. 19. The respondents have also further contended that in each issue of PSC Bulletin, there were specific and unambiguous instructions with regard to uploading of WPC 26937/14 16 photographs. They have further contended that press release in this regard was also given in the leading newspapers. Nevertheless, neither the PSC Bulletin nor the press release has been placed before this Court to enable it to come to a conclusion that the applicant, especially the petitioner, had any knowledge about the requirement at the time of her submitting the application. 20. In the facts and circumstances, this Court is of the considered opinion that the omission on the part of the respondents in not reflecting the name of the petitioner in the final rank list is untenable and cannot be sustained. Accordingly, this Court directs the first respondent to place the petitioner in the rank list published on 22.09.2014 at a place commensurate with the marks she secured, and consequently, take further steps in giving advice to the petitioner. 21. At this juncture, the learned Standing Counsel has brought to the notice of this Court the practical WPC 26937/14 17 difficulty that may arise if a blanket direction is given, since certain advices have already been given to the successful candidates. In response thereto, the learned counsel for the petitioner has submitted that when the petitioner filed the writ petition, she sought an interim direction to reserve one post, but the respondents have strenuously objected to it. According to her, the petitioner's position at least should be treated as it could have been on the date of her filing the writ petition, i.e. on 15.10.2014. When a specific query is put why the petitioner has not arrayed any other affected persons, i.e. the selected candidates, at least in their representative capacity, the learned counsel has submitted that the petitioner had no knowledge about who the rest of the candidates are. Be that as it may, while reflecting the name of the petitioner in the final rank list and issuing advice, if any less meritorious candidate than the petitioner has been given advice, his/her name shall not be disturbed. WPC 26937/14 18 With the above observation, the writ petition is allowed. No order as to costs. Dama Seshadri Naidu, Judge tkv