Santhosh P.N. v. Kerala Public Service Commission and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 22ND DAY OF JANUARY 2019 / 2ND MAGHA, 1940** ## **WP(C).No. 5287 of 2015** ## **PETITIONER/S:** **SANTHOSH P.N AGED 42 YEARS S/O.NARAYANAN, PUZHUKUNNIL HOUSE, THUMPAMON THAZHAM P.O, PATHANAMTHITTA DISTRICT, PIN 689625** **BY ADVS. SRI.MATHEW KURIAKOSE SRI.K.C.BIJU** ## **RESPONDENT/S:** - **1 KERALA STATE PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURAM 695 004, REP.BY ITS SECRETARY.** - **2 SECRETARY, KERALA STATE PUBLIC SERVICE COMMISION PATTOM, THIRUVANANTHAPURAM 695 004.** **3 KERALA TOURISM DEVELOPMEWNT CORPORATION LIMITED CORPORATE OFFICE, P.B.NO.5424, MASCOT SQUARE,THIRUVANANTHAPURAM 695033 REP.BY ITS SECRETARY.** **BY ADVS. SRI.P.C.SASIDHARAN, SC, KPSC SRI.THOMAS MATHEW NELLIMOOTTIL, SC, KTDC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 5287 of 2015** **2** ## **JUDGMENT** **The petitioner, who appeared for the selection for appointment to the post of Accountant in Kerala Tourism Development Corporation Limited, is aggrieved by the noninclusion of his name in the rank list.** **2. The Kerala Public Service Commission ('PSC' for short) invited applications for appointment to the post of Accountant as per Ext.P1 notification dated 15.02.2010. Petitioner submitted his online application Ext.P2 and appeared in the written test conducted on 11.11.2010. Thereafter petitioner received a letter dated 19.10.2012 directing him to submit self attested copies of documents in proof of his date of birth, educational qualifications, experience etc. The Petitioner thereupon submitted the documents including Ext.P3 certificate issued by his employer on 16.10.2012 with respect to the experience** **WP(C).No. 5287 of 2015** **3** **gained by him for the period from 01.05.2005 to 15.04.2007 in M/s. NOAH Fashions Private Limited. As the respondents did not accept the same, he was asked to furnish a fresh certificate of experience; he thereafter submitted Ext.P4 certificate in which M/s.Radhakrishna Foodland Private Limited, Thane certified that petitioner had been working under them as Accounts Assistant -Grade I for the period from 11.11.2000 to 18.07.2003.** **3. Petitioner points out that the short list was published thereafter on 16.05.2014, in which his Register Number was included in the main list. While so, he received Ext.P5 communication dated 30.05.2014 directing him to appear for the certificate verification on 18.06.2014 along with the original of the certificates. Petitioner has thereafter submitted Ext.P6 representation to the 2[nd] respondent, pointing out that he was working in Mumbai and the attesting authority did not** **WP(C).No. 5287 of 2015** **4** **mention the words “as per the entry in the register maintained by the employer and I am the authorised person to inspect the registers kept by the employer” in the certificate given to him. It was stated that he could not produce the certificate attested by the Labour Officer as he declined his request insisting for a request from Government or an authority under the Government. Thereupon he approached the Provident Fund Office and got a certificate attested by the Assistant PF Commissioner, who is authorised to inspect the records of the employer every year, on the basis of the PF records. He stated that the certificate attested by the Assistant PF Commissioner is valid and acceptable and therefore requested to accept that certificate though it was not in the prescribed form. Immediately thereafter the rank list Ext.P7 was published on 23.10.2014, in which petitioner's name was not included.** **4. Petitioner claims that he would have** **WP(C).No. 5287 of 2015** **5** **been included as rank no.3 on the basis of his marks. After publication of the rank list, he submitted another representation Ext.P8 before the PSC requesting for his inclusion accepting the certificate he produced. Petitioner points out that along with Ext.P4 certificate from M/s.Radhakrishna Foodland Private Limited issued on 31.10.2013, he had also produced Ext.P4 certificate dated 01.11.2013 of the Assistant PF Commissioner, which confirmed the service rendered by the petitioner in M/s.Radhakrishna Foodland Private Limited with reference to the PF Account number, stating the date of joining as 01.11.2000 and date of leaving as 18.07.2003 and it was stated that Ext.P4 Experience Certificate produced by him was sufficient.** **5. The PSC filed a counter affidavit stating that it had invited applications as per notification published in Gazette dated 15.02.2010. The qualification prescribed was** **WP(C).No. 5287 of 2015** **6** **Graduation in Commerce with not less than 2 years' experience in Accounting areas in a registered company. The petitioner has in his application claimed that he is a Graduate in Commerce with more than 9 years experience in Accounts Department. An objective type test was held on 11.11.2010; petitioner was asked to furnish the certificates as per letter dated 06.08.2012. Then he produced two Experience Certificates for a period of 1 year 9 months and 10 days and another certificate for 1 year 11 months and 15 days in another Private Company. As the Experience Certificates were incomplete as the declaration parts of the certificates meant for countersigning, were seen signed by the Managers of the Private Companies themselves, petitioner was asked to furnish another Experience Certificate. It is stated that as per letter dated 17.10.2013, petitioner was informed that his application was rejected. According to the respondents,** **WP(C).No. 5287 of 2015** **7** **the Experience Certificate should be countersigned by the Competent Authority with a certificate thereto that he is the authorised person to inspect the registers kept by the employer as per the provisions of the Act/Rules of the State/Central Government. Though the petitioner had produced another certificate along with a certificate issued by the Employees Provident Fund Organisation with Experience Certificate, that Experience** **Certificate also did not contain the declaration part and as it was incomplete, the same could not be accepted. It is stated that on the basis of the request of the petitioner his Register Number was included in the short list. However since the petitioner failed to produce a defect free Experience Certificate, his application was rejected and his name was not included in the rank list.** **6. The petitioner produced another declaration obtained from the Assistant** **WP(C).No. 5287 of 2015** **8** **Provident Fund Commissioner on 15.06.2015 as Ext.P10, which contained the entries to the effect that the Officer is the Authorised person to inspect the Registers kept by the Employer as per the provisions of the Act/Rules of the State/Central Government. The learned counsel for the petitioner points out that in view of these certificates, his candidature was liable to be accepted.** **7. The learned counsel for the petitioner relied on the judgments of the Apex Court in** _**Dheerender Singh Paliwal v. UPSC**_ **: 2017 (11) SCC 276;** _**Manikuttan B. v. Kerala State Public Service Commission and Another**_ **: 2016 (4) KHC 466 and argued that merely on the basis of a trivial defect, the petitioner's candidature could not have been rejected.** **8. On the other hand the learned counsel for the PSC, relying on the judgment of the Division Bench of this Court in** _**Kerala Public Service Commission v. Sony**_ **: 2016 (1) KLT 293** **WP(C).No. 5287 of 2015** **9** **argued that in the absence of an Experience Certificate in the prescribed form, the petitioner's candidature was not liable to be accepted.** **9. Having heard the contentions on either side, it is seen that even after filing of the writ petition, the Experience Certificate produced by the petitioner as per Ext.P10 is not in the form prescribed in the notification. As evident from Ext.P1 notification itself inviting applications, qualifications were prescribed in Clause 7 where the proforma of the Experience Certificate is given stating that the certificate should be in that form. The certificate of the employer has to be countersigned by the authority competent to inspect the registers of the company. Though petitioner has produced a separate certificate from the Assistant PF Commissioner, the competent authority, it is seen that the same is not in the prescribed form and even that was** **WP(C).No. 5287 of 2015** **10** **produced much after the time granted by the respondent.** **10. The notification issued by the PSC provides for sufficient instructions as to the manner in which applications are to be filled up, the certificates are to be produced, etc. They are also asked to see the general conditions of the notification for additional information. Clause 29 of the general conditions of the notification provides that the application should be submitted along with the documents as provided in the notification. It also provides that the non-furnishing of such documents will be a reason sufficient for rejecting the application summarily. In Sony's case (Supra), the Division Bench has elaborately discussed various provisions in the general conditions and has held that applications which do not conform to the instructions and guidelines given by the PSC are liable to be rejected, as provided in** **WP(C).No. 5287 of 2015** **11** **Paragraph 29 of Part II of General Conditions and the candidates have to submit the Experience Certificate in the prescribed form.** **11. Though the petitioner has scored very high marks, he failed to furnish an Experience Certificate as prescribed in the notification inviting applications as provided in the general conditions, even after the PSC gave him sufficient time. Therefore the judgments relied on by the petitioner where trivial defects were found, will not apply in the case of the petitioner. When the notifications are issued prescribing certain conditions and forms are provided in which the certificates have to be furnished, the candidates are supposed to abide by the stipulations contained in the notification while submitting applications observing those conditions. Even though there are factual differences with respect to the experience certificates which arose for consideration by the Division Bench, it is a** **WP(C).No. 5287 of 2015** **12** **fact that even after publication of the rank list, the experience certificate produced is not in the proforma prescribed. Therefore though petitioner is found to have the requisite experience, and has scored high marks, he cannot be directed to be included in the rank list, in the absence of certificate in the proforma prescribed, as held by the Division Bench.** **In the above circumstances, I find that the rejection of the candidature of the petitioner and non-inclusion of petitioner's name in the rank list do not warrant interference by this Court.** **Accordingly, this writ petition is dismissed. Sd/-** **P.V.ASHA, JUDGE.** ## **ww** **WP(C).No. 5287 of 2015** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF GAZETTE NOTIFICATION INVITING APPLICATION FOR THE POST ACCOUNTANT IN THE 3RD RESPONDENT CORPORATION.** **EXHIBIT P2 TRUE COPY OF ONLINE APPLICATION SUBMITTED BY THE PETITIONER IN RESPONSE TO EXHIBIT P1 NOTIFICATION** **EXHIBIT P3 TRUE COPY OF EXPERIENCE CERTIFICATES ISSUED FROM M/S.COGNATE IMPEX PRIVATE LTD. AND M/S.NOAH FASHIONS PRIVATE LTD TO THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF EXPERIENCE CERTIFICATE FROM M/S.RADHAKRISHNA FOODLAND PRIVATE LIMITED, THANE WEST, MAHARASHTRA, WHERE THE PETITIONER WORKED AS ACCOUNTS ASSISTANT, GRADE-I FROM 01.11.2000 TILL 18.07.2003 AND THE CONFIRMATION OF THE EXPERIENCE CERTIFICATE FROM THE ASSISTANT PF COMMISSIONER,RO,THANE,MUMBAI-II.** **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 30.05.2014 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P6 TRUE COPY OF THE LETTER WRITTEN TO THE SECRETARY OF THE 1ST RESPONDENT BY THE PETITIONER. EXHIBIT P7 TRUE COPY OF THE FINAL RANK LIST PUBLISHED BY THE 1ST RESPONDENT OF THE CANDIDATES SELECTED FOR APPOINTMENT PERSUANT EXHIBIT P1 NOTIFICATION.** **EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 11.02.2015 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT WITH COPY TO THE CHAIRMAN OF THE 1ST RESPONDENT EXHIBIT P9 TRUE COPY OF THE PROBABILITY LIST DATED 16.05.2014 PUBLISHED BY THE FIRST RESPONDENT.** **WP(C).No. 5287 of 2015** **14** ## **EXHIBIT P10** **TRUE COPY OF THE DECLARATION DATED 15.06.2015 FROM THE ASSISTANT PF COMMISSIONER, EPFO R.O, MUMBAI-II, THANE (MAHARASHTRA)**