SABU P IDICULA v. SECRETARY, DEPARTMENT OF COMMERCE, MINISTRY OF COMMERCE AND INDUSTRY, UPSC AND DoPT

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY, THE 18TH DAY OF JULY 2018 / 27TH ASHADHA, 1940 WP(C).No. 9099 of 2018 ## PETITIONER(S) SABU P IDICULA AGED 58 YEARS, S/O.P.K.IDICULA, JOINT DIRECTOR (CROP PROTECTION)/SCIENTIST D, RUBBER RESEARCH INSTITUTE OF INDIA, RUBBER BOARD P.O., KOTTAYAM - 686 009 (RESIDING AT: PALATHINAL, KALLISSERY P.O., CHENGANNUR - 689 124, ALAPPUZHA DISTRICT). BY ADVS.SRI.T.SANJAY SRI.R.REJI KUMAR RESPONDENT(S): 1. THE SECRETARY, DEPARTMENT OF COMMERCE, MINISTRY OF COMMERCE AND INDUSTRY, UDYOG BHAWAN, NEW DELHI 110 107. 2. THE SECRETARY, UNION PUBLIC SERVICE COMMISSION, DHOLPUR HOUSE, SHAHJAHAN ROAD, NEW DELHI 110 069. 3. THE SECRETARY DEPARTMENT OF PERSONNEL & TRAINING (DoPT), NORTH BLOCK, NEW DELHI - 110 001. R1,3 BY ADV. SRI.S.VAIDYANATHAN, CGC R2 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC UPSC R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9099 of 2018 (J) **APPENDIX** ## PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF GENERAL GUIDELINES FOR DEPUTATION DATED 05/09/2014 OF THE DOC. EXHIBIT P2 TRUE COPY OF THE ADVERTISEMENT PUBLISHED IN THE 21-27 FEBRUARY 2015 ISSUE OF THE EMPLOYMENT NEWS EXHIBIT P3 THE PETITIONER'S APPLICATION DATED 16/03/2015 FOR THE POST OF RPC. EXHIBIT P4 TRUE COPY OF FILE NOTING DATED 28/05/2015, DEPARTMENT OF COMMERCE, GOVERNMENT OF INDIA. EXHIBIT P5 TRUE COPY OF FILE NOTING DATED 06/7/2015, DEPARTMENT OF COMMERCE, GOVERNMENT OF INDIA. EXHIBIT P6 TRUE COPY OF FILE NOTING DATED 7/7/2015, DEPARTMENT OF COMMERCE, GOVERNMENT OF INDIA. EXHIBIT P7 TRUE COPY OF FILE NOTING DATED 16/11/2015, DEPARTMENT OF COMMERCE, GOVERNMENT OF INDIA. EXHIBIT P8 TRUE COPY OF FILE NOTING DATED 11/4/2016, DEPARTMENT OF COMMERCE, GOVERNMENT OF INDIA. EXHIBIT P9 TRUE COPY OF FILE NOTING DATED 27/4/2016, DEPARTMENT OF COMMERCE, GOVERNMENT OF INDIA. - EXHIBIT P10 TRUE COPY OF CORRIGENDUM PUBLISHED IN THE 11-17 JUNE 2016 ISSUE OF EMPLOYMENT NEWS. EXHIBIT P11 TRUE COPY OF FILE NOTING DATED 16/8/2016, DEPARTMENT OF COMMERCE, GOVERNMENT OF INDIA. - EXHIBIT P12 THE TRUE COPY OF RELEVANT PORTION OF OM DATED 3/10/1989 DEPARTMENT OF PERSONNEL & TRAINING, GOVERNMENT OF INDIA. - EXHIBIT P13 TRUE COPY OF LETTER DATED 28/10/2016 OF THE UNION PUBLIC SERVICE COMMISSION. - EXHIBIT P14 TRUE COPY OF REPLY DATED 24/1/2017 RECEIVED FROM UPSC UNDER RTI ACT. - EXHIBIT P15 TRUE COPY OF THE OFFICE NOTE DATED 1/2/2017, RUBBER BOARD, KOTTAYAM. - EXHIBIT P16 TRUE COPY OF NOTIFICATION ISSUED VIDE OM NO.6/10/2014-PLANT -C DATED 04/01/2018 BY DEPARTMENT OF COMMERCE, GOVERNMENT OF INDIA. WP(C).No. 9099 of 2018 (J) : 2 : EXHIBIT P17 TRUE COPY OF NOTIFICATION PUBLISHED IN 17-23 FEBRUARY 2018 ISSUE OF EMPLOYMENT NEWS. EXHIBIT P18 TRUE COPY OF PETITIONER'S REPRESENTATION DATED 20/2/2018. ## 2 nd RESPONDENT'S EXHIBITS EXT.R2(a): TRUE COPY OF COMMISSIONER'S LETTER DT.25.4.2016. EXT.R2(b): TRUE COPY OF LETTER DT.22.9.2016. EXT.R2(c): TRUE COPY OF STATUTORY RECRUITMENT RULES. EXT.R2(d): TRUE COPY OF EMPLOYMENT NEWS DT.21-27 FEBRUARY, 2015. EXT.R2(e): TRUE COPY OF CORRIGENDUM ISSUED IN EMPLOYMENT NEWS DT. 11-17 JUNE, 2016. EXT.R2(f): TRUE COPY OF COMMISSIONER'S LETTER DT.28.10.2016. EXT.R2(g): TRUE COPY OF DOP&T OM NO.AB14017/71/89-Estt. (RR) dated 3.10.1989. /true copy/ P.S to Judge ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.9099 of 2018-J ------------------------------------------- _Dated this the 18[th] day of July, 2018_ ## _**JUDGMENT**_ The petitioner is aggrieved by the action of the 2[nd] respondent in issuing fresh notifications Exts.P16 and P17 for selection/appointment to the post of Rubber Production Commissioner in the Rubber Board. 2. The petitioner is presently working as Joint Director (Crop Protection)/Scientist D in the Rubber Board. The 1[st] respondent issued Ext.P2 notification for appointment to the post of Rubber Production Commissioner in the Rubber Board at Kottayam. The applications were called for from among officers under the Central/State Governments/Union Territory Administration/Universities or Recognized Research Institutions or Public Sector Undertakings or semi Government/Statutory or Autonomous Organisations, who are holding analogous post on regular basis in the cadre or department or with 5 years' experience in the grade rendered after appointment thereto on a regular basis in the scale of pay of Rs.14,300-400-18,300 and from those who possess a Postgraduate degree in Botany or Agriculture from a recognised University or institution or equivalent and 12 years experience in a responsible capacity in formulation and implementation of schemes relating to Agriculture of which at least 5 years shall be in Rubber cultivation. The scale of pay prescribed in the W.P(C) No.9099 of 2018-J 2 notification was Rs.14300-400-18300. The age limit prescribed was not exceeding 56 years as on the closing date of the applications. In Ext.P2 notification in employment news of 21-27 February, 2015, the last date was fixed as 60 days from the date of publication of the advertisement in the employment news. Being fully qualified, the petitioner submitted his application. 3. Whileso, Ext.P10 corrigendum was published in the employment news for 11 to 17[th] of June, 2016 correcting the scale of pay attached to the post of Rubber Production Commissioner which was notified in Ext.P2 in the employment news of February, 2015 from “14300-40018300 pre-revised or equivalent” as “12000-16500 prerevised or equivalent”. Applications were invited within 45 days from the date of publication of the corrigendum. 4. As there was no further action, on enquiry being made, the petitioner came to know about Ext.P13 letter issued by the UPSC addressed to the 1[st] respondent in which it was stated that no candidate has been found eligible for consideration on deputation basis and hence the selection process has been treated as infructuous. The proposal for the appointment of the petitioner was returned. The petitioner thereupon submitted an application under the Right to Information Act for ascertaining the reason W.P(C) No.9099 of 2018-J 3 for finding him ineligible. As per Ext.P14 letter dated 24.1.2017, the Central Public Information Officer of the UPSC informed the reason as “crossed 56 years age as on closing date i.e, 26.7.2016 (as per corrigendum)”. Immediately thereafter the first respondent issued Ext.P16 office memorandum on 4.1.2018 inviting applications for direct recruitment to the post. It was followed by an advertisement in employment news of 1723 of February, 2018 inviting applications for appointment to the post by direct recruitment. The petitioner approached this Court at that stage challenging the notification. In the meanwhile, he had also submitted a representation Ext.P18 before the Government requesting to appoint him he being the only qualified candidate and to desist from proceeding with the new notification. 5. The petitioner has produced the copies of file notings of the 1[st] respondent, which he collected on application under the Right to Information Act. Ext.P4 file notes of 28.5.2015 show that the post of Rubber Production Commissioner is lying vacant since 2.8.2014; the vacancy was circulated to all Ministries/Departments on 20.10.2014, but no application was received; the vacancy was thereafter notified in employment news and in response to that advertisement, 2 applications were received and amongst those applicants, the petitioner was found to be eligible and the 4 W.P(C) No.9099 of 2018-J other applicant was found ineligible as he had already retired voluntarily w.e.f 3.12.2014; it was found necessary to forward the proposal for appointment to the UPSC. Ext.P6 file notes of 7.7.2015 refer to the petitioner as the sole candidate found eligible and decision either to forward his name to DoPT or to convene a meeting of the selection committee was found necessary; Ext.P8 file note would show that one more application was received; but since his application dated 30.7.2016 was found received after the closing date for receipt of the application, it was unacceptable; on 16.8.2016, the proposal was decided to be forwarded to the UPSC for filling up the post of Rubber Production Commissioner. 6. This Court has as per order dated 16.3.2018 stayed further proceedings pursuant to the notifications Exts.P16 and P17. 7. The respondents have filed counter affidavit. According to the 1[st] respondent, they have taken steps for filling up the vacancy which was lying vacant from 2014 onwards. It is admitted that the petitioner was the sole candidate found eligible by the 1[st] respondent. 8. The UPSC filed a counter affidavit stating that the crucial date of eligibility with reference to the closing date for receipt of application as per Ext.P2 notification was 21.4.2015. As on that day, the petitioner was 55 years 10 months and 22 days and had not crossed the age limit of 56 years. 5 W.P(C) No.9099 of 2018-J The Department of Commerce had as per the decision of the competent authority re-circulated the vacancy as per OM dated 14.08.2015 due to insufficient number of candidates. Thereafter, the proposal was forwarded to the 2[nd] respondent on 11.04.2016. The UPSC returned the file as there was discrepancy with respect to the scale of pay and advised to issue corrigendum for correcting the same. Accordingly corrigendum was published in the employment news dated 11-17 June 2016 and file was forwarded again to the UPSC. It is stated that the 2[nd] respondent reckoned the age limit on the closing date of the corrigendum instead of closing date of the original advertisement published in the employment news and consequently the candidature of the petitioner was not considered as he had crossed the age limit as on the closing date. According to the 2[nd] respondent, the candidate should have been eligible as on the date fixed for receipt of the applications and therefore when a corrigendum was issued the last date for receipt of application became 26.07.2016 as the maximum age limit for appointment by deputation should not be exceeded by 56 years as on the closing date of receipt of the application. The petitioner was found to be ineligible as his date of birth is 29.05.1959. 9. Ext.P12 office memorandum dated 03.12.1989 provides for the procedure to be followed in cases where appointment is to be made by W.P(C) No.9099 of 2018-J 6 transfer on deputation/transfer basis. Clause 4.9 of this office memorandum provides that after circulation of the post; the proposal should be sent to the UPSC within a maximum of three months from the closing date of receipt of applications; the documents to be enclosed along with the proposal to the UPSC; a candidate who is submitting application for the post should not be allowed to withdraw their candidature subsequently, etc. Clause 6 deals with the crucial date for determination of eligibility, which reads as follows: _6. Crucial date for determination of eligibility 6.1 Where a post is required to be filled by transfer on deputation (including short term contract)/transfer, it is normally laid down in the recruitment rules that officers holding posts in a particular scale of pay who have completed specified years of regular service in the scale are eligible to be considered. The crucial date for determination of eligibility will be as follows:-_ _i. In the case of a vacancy already existing at the time of issue of the communication inviting nominations, the eligibility may be determined with reference to the last date prescribed for receipt of nominations in the Ministry/Department/organization responsible for making appointment to the post i.e., originating Ministry etc._ _ii. In the case of an anticipated vacancy the crucial date for determining eligibility should be the date on which the vacancy is expected to arise._ 10. Thus the last date prescribed for receipt of application is the crucial date for determining eligibility. In the present case, applications were invited as per Ext.P2 in which the last date was within 60 days. 7 W.P(C) No.9099 of 2018-J Corrigendum was issued later as per Ext.P10 which also provided for 45 days further. 11. Going by the counter affidavit of the 1[st] respondent it would be seen that the 1[st] respondent does not have any objection with respect to the eligibility of the petitioner. The question to be considered is whether the date of eligibility is to be determined with respect to last date fixed for receipt of application in the corrigendum or in the initial notification Ext.P2. Going by the provisions contained in clause 6 of Ext.P12 the eligibility is to be determined in a case where vacancies were already existing at the time of inviting application, with reference to the last date prescribed for receipt of application. Admittedly, the respondents invited applications for appointment by issuing Ext.P2 notification, based on which the petitioner was fully qualified. When Ext.P10 corrigendum was issued, the candidates, who were eligible as on the last date as per the original notification, cannot be made ineligible, if at all some more candidates may get opportunity to submit application. The last date with respect to the corrigendum need be taken only in the case of those who did not submit application pursuant to Ext.P2 notification or in other words those who submitted application pursuant to the corrigendum alone. At any rate, a candidate who was qualified in all respects as on 21.04.2015, with reference to Ext.P2 8 W.P(C) No.9099 of 2018-J notification, cannot incur any disqualification on account of the extension of last date to 26.07.2016, consequent to the corrigendum Ext.P10. 12. As on 21.04.2015, the last date fixed for receipt of application pursuant to Ext.P2 notification, the petitioner was eligible for appointment and he continued to be the sole candidate eligible even after the corrigendum. By issuing the corrigendum Ext.P10, the only alteration in the notification was with respect to the scale of pay attached to the post and it was shown to have a lesser scale of pay. While inviting applications for the very same post with a reduced scale of pay, with the very same qualification, 45 days' more time was given. That has in effect enabled only those who did not apply/omitted to pursuant to Ext.P2 notification to submit application as there was only reduction in pay scale. In this case, corrigendum was only with respect to the scale of pay, that too, in a reduced scale. In the present case there was only one applicant even after this opportunity was given, which itself was found infructuous because of his retirement subsequently. 13. Sri. T.Sanjay, the learned counsel for the petitioner relied on the judgment of the Rajastan High Court reported in _**Bhanwarlal vs. State and others : 2001 KHC 3902**_ and _**Suprava Samal v. State of Odisha and others : 2016 KHC 2144**_ of Orissa High Court which deals with the effect 9 W.P(C) No.9099 of 2018-J of corrigendum. In the judgment in _**Bhanwarlal's**_ case ( _supra_ ) the Government of Rajastan nominated one person to the Rajastan Municipal Board, as per order dated 16.11.2000. But by order dated 12.12.2000, Government appointed another person in the place of the petitioner, by issuing a corrigendum. It was held that the corrigendum can be issued only to correct a mistake. The learned single Judge after considering the judgment in _Commissioner of Sales Tax, U.P V Dunlop India Ltd_ : 1994 (92) STC 571 of the Allahabad High Court held that the corrigendum when issued to correct a notification, would relate back to the date of issue of the original notification. It was also held that corrigendum can be used only to rectify the mistake of clerical or typographical error crept in and that if it amounts to amendment the corrigendum is not permissible. In the _**Suprava Samal's**_ case the question was regarding the corrigendum issued to a notice for no confidence motion in a Grama Panchayat, regarding the venue of the meeting. It was held that notice period of 15 days need be reckoned only from the date of original notice. In paragraph 8 of the judgment, the learned single Judge referred to the judgment of the Apex Court in _Piara Singh v. State of Punjab_ : AIR 2000 SC 2352 and held that in view of the settled position that corrigendum can be issued only to correct typographical error, accidental slip or omission, it is not necessary to wait for another fifteen 10 W.P(C) No.9099 of 2018-J days. In both these judgments it was held that corrigendum has to relate back to the original order or notification as the case may be. 14. In this case the respondents could not secure any further application even after issuing corrigendum. The 1[st] respondent found the petitioner eligible and he is having all the qualification except for the fact that he was over-aged by the time the corrigendum was issued. The only reason stated is that as on the last date of Ext.P10 corrigendum he crossed the upper age limit. But going by Ext.P2 notification, the petitioner was fully qualified. His right to be considered for appointment based on his eligibility with reference to Ext.P2 notification cannot be taken away in any manner, by way of extension of the last date on account of the corrigendum issued much after the last date fixed in Ext.P2 notification. 15. Therefore, it is declared that the petitioner is entitled to be considered for appointment as Rubber Production Commissioner, based on his eligibility with reference to Ext.P2 notification. There shall be a direction to treat the petitioner as eligible and to proceed with the process of selection and to complete the same within a period of six weeks from today. Ext.P13 proceedings in which the petitioner is found ineligible shall also stand set aside. The respondents shall not therefore proceed with Exts.P16 and P17 notifications. W.P(C) No.9099 of 2018-J 11 The writ petition is allowed to the extent indicated above. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_