Shibin K. Kutty v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945 OP(KAT) NO. 499 OF 2023** **JUDGMENT IN OA (EKM) 81/2023 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT:** SHIBIN K.KUTTY, AGED 28 YEARS S/O.KRISHNANKUTTY A, CIVIL POLICE OFFICER (POLICE CONSTABLE),KERALA ARMED POLICE II BATTALION,MUTTIKULANGARA, PALAKKAD -678594, RESIDING AT SUKRITHAM(H), KALIMANPADAM, YAKKARA P.O. NEAR GOVT. MEDICAL COLLEGE, PALAKKAD -, PIN - 678701 BY ADVS. KALEESWARAM RAJ THULASI K. RAJ APARNA NARAYAN MENON CHINNU MARIA ANTONY ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA , REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY,HOME DEPARTMENT, SECRETARIAT , THIRUVANANTHAPURAM-, PIN - 695001 2 THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM -, PIN - 695001 OP(KAT) NO.499/2023 ..2.. 3 THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, CIVIL STATION, PALAKKAD -, PIN - 678001 4 THE COMMANDANT, KERALA ARMED POLICE BATTALION II, MUTTIKULANGARA, PALAKKAD DISTRICT -, PIN – 678594 5 THE OFFICE COMMANDANT, D.COMPANY, KERALA ARMED POLICE-2. MUTTIKULANGARA, PALAKKAD DISTRICT -, PIN - 678594 6 THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, PATTOM PALACE P.O, THIRUVANANTHAPURAM -, PIN - 695004 BY GOVERNMENT PLEADER BY SRI.P.C.SASIDHARAN, SC, KPSC THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 08.12.2023, THE COURT ON 31.01.2024 DELIVERED THE FOLLOWING: OP(KAT) NO.499/2023 ..3.. ## **JUDGMENT** ## SHOBA ANNAMMA EAPEN, J. The issue involved in this case is the rejection of an application filed by the petitioner for the post of Statistical Assistant Gr.II/Statistical Investigator Gr.II in the Department of Economics and Statistics by the Kerala Public Service Commission (PSC) for non production of NOC from the Department concerned. 2. The petitioner, who was the applicant before the Kerala Administrative Tribunal, while working as Police Constable in II Battalion, Kerala Armed Police, Muttikulangara, applied for the post of Statistical Assistant Gr.II/Statistical Investigator Gr.II in the Department of Economics and Statistics, the Government of Kerala, in response to a notification issued by the PSC. He applied for the post on 23.09.2020 and participated in the examination held on 04.06.2022. On 19.10.2022, OP(KAT) NO.499/2023 ..4.. the PSC directed the petitioner to upload the documents along with No Objection Certificate (NOC) in the prescribed format. Thereafter, on 25.10.2022, the petitioner applied before the fifth respondent for issuance of NOC, which was rejected by letter dated 31.10.2022. The petitioner was included in the main list published on 22.11.2022 and was invited for certificate verification on 17.12.2022 and had submitted all documents along with the Service Certificate except the NOC. On 30.12.2022, the PSC directed the petitioner to produce the Form of Receipt/NOC on or before 07.01.2023. Thereon, he made a representation to the PSC stating that he had already produced the Service Certificate and also seeking for the benefit of Annex.A6 notification, GO(P) No.9/2021/P&ARD dated 30.11.2021. The PSC again on 10.01.2023, directed the petitioner to produce the Form of Receipt. Challenging the same, the petitioner had approached the Tribunal with the original OP(KAT) NO.499/2023 **==> picture [31 x 7] intentionally omitted <==** application. The Tribunal, after detailed consideration of the matter, dismissed the original application, finding that the petitioner cannot claim the benefit of Amendment Rules, 2021, since it came into force only on 30.11.2021, i.e., much after the last date fixed for receipt of the application by the PSC. It is challenging this, this original petition has been filed. 3. Learned counsel for the petitioner submitted that as per Annex.A6 notification, the only requirement is to produce the Service Certificate and there is no requirement of producing the Form of Receipt/NOC as demanded by the PSC. It is further submitted that though the petitioner applied for NOC, it was declined as per Annex.A4 stating that they are not in a position to issue NOC since a Service Certificate has already been issued to the petitioner and hence, the petitioner could not produce the Form of Receipt/NOC. It is pointed out by the learned OP(KAT) NO.499/2023 **==> picture [31 x 7] intentionally omitted <==** counsel for the petitioner that the Service Certificate is essentially an endorsement from the Department, which is to be considered as substantially complying with the requirement insisted on by the PSC. Learned counsel also placed reliance on an order in OA(EKM) No.782 of 2017, which was rendered based on an earlier order in **Rajeev Kumar N.K. & Another** v. **KPSC &** **Others** [2014 (3) KATR 91]. 4. We have considered the rival contentions on both sides. It is an admitted fact that the last date for receipt of application was 23.09.2020. The Amendment Rules, 2021 came into force only on 30.11.2021, i.e., much after the last date fixed for receipt of the application. Paragraph 18 of the General Conditions was a part of the notification issued by the PSC, which reads as follows; “18. When a Government servant is applying for a post notified by the Kerala Public Service Commission: A Government servant employed in a service under the Administrative Control of the Government of Kerala applying for a post in another office of Department of the Government of Kerala shall obtain a receipt in the following form from the Head of Office by producing the print out of the OP(KAT) NO.499/2023 **==> picture [31 x 7] intentionally omitted <==** application form and shall produce the receipt to the Commission as and when called for. FORM OF RECEIPT (To be obtained from the Head of Office) Certified that a copy of application dated …...... for selection to the post of …........ on …....... in the ….......... (here enter the name of Department/Corporation/Company/Local Authority/Co-operative Institution) notified in the Gazette dated …... has been received by me from him/her) and that objections, if any to the entertainment of the application will be communicated to the Kerala Public Service Commission/District Office of the Kerala Public Service Commission within one month from the last date fixed for receipt of applications. Signature Place: Name and Designation of the Head of Office Date:” 5. The petitioner does not have a case that he has submitted any request for the Form of Receipt/NOC before the Head of Office prior to the last date for receipt of the application. It is relevant to extract Annex.A7 Service Certificate issued to the petitioner, which is reproduced as follows; ## **Service Certificate** |1|Name of the Candidate|Shibin K. Kutty| |---|---|---| |2|Date of Birth|21-11-1994s| |3|Name of the Post|Police Constable – 10013| |4|Name of the Department|Police| |5|Name of Office in which<br>now working|KAP 2 Battalion, Palakkad| OP(KAT) NO.499/2023 **==> picture [31 x 7] intentionally omitted <==** 6 Date of Joining in the 17-02-2020s department 7 Permanent Employee Number 885348 On a perusal of Annex.A7 Service Certificate, it is seen that it does not comply with the requirement in the notification. The notification insists on production of NOC issued from the Head of Office. Annex.A2 communication dated 31.10.2022 issued by the Head of Office to the petitioner reveals that the petitioner did not file any application for issuance of the Form of Receipt/NOC before the last date for receipt of the application by the PSC and hence, they are not in a position to issue the Form of Receipt/NOC. It is thereafter that the petitioner again requested for issuance of Form of Receipt on 26.12.2022, which was rejected as per Annex.A4 letter dated 03.01.2023. 6. According to the learned counsel for the petitioner, a government servant is required to produce only the Service Certificate and the OP(KAT) NO.499/2023 **==> picture [31 x 7] intentionally omitted <==** production of NOC or Form of Receipt is not a necessity for complying with the notifications invited by the PSC, as is clear from the Amendment Rules, 2021. We are of the view that aforesaid amendment rules will not be applicable in the case of the petitioner since the last date for receipt of application was much prior to the coming into force of the said rules. The petitioner should have obtained the Form of Receipt/NOC by getting prior consent since he was employed under the Central Government. He was directed to produce the Form of Receipt/NOC in compliance with paragraph 18 of the General Conditions, which was a part of the notification. The rules applicable to the case of the petitioner are the Kerala Government Servants Application for Post (Private Employee & Government Servants) Rules, 1958 and paragraph 18 of the General Conditions, which was a part of the notification issued by the PSC. 7. A Full Bench of this Court in **Kerala** OP(KAT) NO.499/2023 ..10.. **Public Service Commission** v. **Reshmi K.R. & Others** [2019 (5) KHC 875] has held that any candidate applying for a job should be careful in submitting their applications in compliance with the instructions. The ability to do so is also a means to assess the sense of responsibility of the candidate, who seeks to be appointed in his service. The assessment starts from the application of the candidate. The candidates are expected to have the minimum responsibility to submit the application in tune with the instructions, except in circumstances where technical problems beyond their control create difficulties, despite taking sufficient care and caution. 8. Production of Form of Receipt/NOC is mandatory for a government servant while applying for any post in other departments. The petitioner, however, could not comply with the direction to produce the Form of Receipt/NOC and he only produced the Service Certificate from the OP(KAT) NO.499/2023 **==> picture [37 x 7] intentionally omitted <==** Head of Office, which was not the one required in the notification. The Tribunal has rightly held that the petitioner is not entitled to claim the benefit of Amendment Rules, 2021 since it came into force much after the last date fixed for receipt of the application by the PSC. We do not find any reason to interfere with the impugned order of the Tribunal. The original petition is accordingly dismissed. ## **SD/-** ## **A. MUHAMED MUSTAQUE** **JUDGE** **SD/-** ## **SHOBA ANNAMMA EAPEN** **JUDGE** bka/- OP(KAT) NO.499/2023 ..12.. ## **APPENDIX OF OP(KAT) 499/2023** PETITIONER ANNEXURES |Annexure A1|TRUE COPY OF THE SCREEN SHORT OF THE| |---|---| ||PARTICULAR MESSAGE DATED 19.10.2022| ||SENT BY KPSC IN ONLINE PROFILE OF THE| ||APPLICANT.| |Annexure A2|TRUE COPY OF THE LETTER NO.A6-| ||25538/2022/KAP-II OF THE COMMANDANT,| ||KAP BATTALION-II, MUTTIKULANGARA DATED| ||31.10.2022 ADDRESSED TO THE APPLICANT.| |Annexure A3|TRUE COPY OF THE NOTIFICATION OF MAIN| ||LIST FOR THE POST OF STATISTICAL| ||ASSISTANT GRADE-II/STATISTICAL| ||INVESTIGATOR GRADE-II IN THE DEPARTMENT| ||OF ECONOMICS AND STATISTICS, GOVERNMENT| ||OF KERALA VIDE CATEGORY NO.039/2020| ||DATED 22.11.2022 PUBLISHED BY THE| ||DISTRICT OFFICER, KPSC, DISTRICT| ||OFFICE, PALAKKAD.| |Annexure A4|TRUE COPY OF THE LETTER NO.A6-| ||30706/2022/KAP-II OF THE COMMANDANT,| ||KAP BATTALION-II, MUTTIKULANGARA DATED| ||03.01.2023 ADDRESSED TO THE APPLICANT.| |Annexure A5|TRUE COPY OF THE SCREEN SHOT OF THE| ||MESSAGE DATED 30.12.2022 SENT BY THE| ||PSC IN ONLINE PROFILE TO THE APPLICANT.| |Annexure A6|TRUE COPY OF THE NOTIFICATION (G.O.(P)| ||NO.9/2021/P&ARD DATED 30.11.2021)| |Annexure A7|ANNEXURE A7: TRUE COPY OF THE SERVICE| ||CERTIFICATE NO.A6-25952/2022/KAP-II| ||DATED 29.10.2022 ISSUED BY THE| ||COMMANDANT, KAP-II, PALAKKAD TO THE| ||APPLICANT.| OP(KAT) NO.499/2023 ..13.. - Annexure A8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANT DATED 07.01.2023 BEFORE THE DISTRICT OFFICER, KPSC DISTRICT OFFICE, PALAKKAD. - Annexure A9 TRUE COPY OF THE COMMUNICATION VIDE LETTER NO.PIII(3) 666977/22 DATED 05.01.2023 OF THE DISTRICT OFFICER OF THE KERALA PUBLIC SERVICE COMMISSION TO THE APPLICANT. - Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 25.09.2019 IN O.P(KAT)NO.241/2014. - Exhibit P2 TRUE COPY OF THE MEMORANDUM OF OA TOGETHER WITH ANNEXURES. - Exhibit P3 TRUE COPY OF THE ORDER DATED 13.10.23 IN O.A(EKM)NO. 81/23. - Exhibit P4 TRUE COPY OF THE INTERIM ORDER DATED 12.01.2023 IN O.A (EKM) 81/23. - Exhibit P5 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENT NOS.3 & 6 IN O.A.81/2023 DATED 01.03.2023. - Exhibit P6 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENT NOS.3 & 6 IN O.A.NO.81/2023. - Exhibit P7 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT IN ANSWER TO THE REPLY STATEMENT FILED BY THE 3RD , 4TH AND 6TH RESPONDENTS AS DIRECTED BY THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL IN O.A.81/2023. - Exhibit P8 TRUE COPY OF APPLICATION OF SRI. SIJO C TO ILLUSTRATE WHO HAD APPLIED TO THE POST OF POLICE CONSTABLE (TELECOMMUNICATION STATE WIDE) WAS ABLE TO PRODUCE ONLY A SERVICE CERTIFICATE INSTEAD OF AN FORM OF RECEIPT/NOC. OP(KAT) NO.499/2023 ..14.. Exhibit P9 TRUE COPY OF THE RELEVANT PAGES OF THE RANKED LIST TO THE POST OF POLICE CONSTABLE (TELECOMMUNICATIONS) WHICH CAME INTO FORCE ON 05.10.2023. Exhibit P10 TRUE COPY OF THE APPOINTMENT CHART NO. PIV(1)2228/2018 DATED 16.09.2023.