Sonia Viswam v. State of Kerala and Kerala Public Service Commission

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 10TH DAY OF JUNE 2016/20TH JYAISHTA, 1938 OP(KAT).No. 376 of 2015 (Z) ---------------------------- AGAINST THE ORDER IN OA 2793/2013 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 4.4.2014 PETITIONER/APPLICANT IN OA: ------------------------------------------- SONIA VISWAM, AGED 32 YEARS, D/O. VISWAMBHARAN, RESIDING AT CHEENATHU HOUSE, KALLUR ROAD, ALGAPPANAGAR, THRISSUR, KERALA - 680 302. BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH RESPONDENTS/RESPONDENTS IN OA: --------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695 001. 2. THE KERALA PUBIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM, KERALA - 695 004. R1 BY SR. GOVERNMENT PLEADER SRI K.C.VINCENT R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 10-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 376 of 2015 (Z) ---------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------- - P1 - TRUE COPY OF OA NO. 2793/2013 FILED BY THE PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL. - P2 - TRUE COPY OF REPLY STATEMENT FILED ON BEHALF OF THE 2ND RESPONDENT IN OA NO. 2793/2013. - P3 - TRUE COPY OF RANK LIST PUBLISHED BY THE PUBLIC SERVICE COMMISSION WITH EFFECT FROM 17.01.2014 FOR APPOINTMENT TO THE POST OF DEPUTY COLLECTOR. - P4 - TRUE COPY OF COMMON ORDER DT. 04.04.2014 IN OA NO. 2793/2013 OF THE KERALA ADMINISTRATIVE TRIBUNAL. - P5 - TRUE COPY OF JUDGMENT DT. 08.08.2014 IN OP(KAT) NO. 108/2014 AND CONECTED CASES OF THIS COURT. - P6 - TRUE COPY OF JUDGMENT DT. 13.10.2015 IN CIVIL APPEAL NO. 8536/2015 AND 8537/2015 OF THE HON'BLE SUPREME COURT. ## RESPONDENT(S)' EXHIBITS: NIL --------------------------------------- ## TRUE COPY P.S.TO JUDGE dsn ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -------------------------------------------------OP(KAT) No.376 OF 2015** **-------------------------------------------------DATED THIS THE 10[th] DAY OF JUNE, 2016** ## **JUDGMENT** ## **P.R.RAMACHANDRA MENON, J** . The petitioner was the applicant before the Tribunal in O.A.No.2793/2013, which was filed challenging the correctness and sustainability of Annexure A3 'erratum notification' issued by the PSC, whereby the placement given to the petitioner in the 'main list' published by the PSC vide Annexure A2 came to be pushed down to be included in the 'supplementary list'. 2. Pursuant to the notification issued by the PSC for filling up the post of Deputy Collector, the petitioner had put in necessary application in terms of the notification. The PSC conducted a preliminary examination and published Annexure A2, wherein the petitioner was included in the 'main list' as mentioned above. But subsequently, the said short list came to be amended by virtue of Annexure A3 erratum notification issued by the PSC (because of the necessity pointed out from the part of the PSC requiring such an exercise), whereby the petitioner came to be shifted to the OP(KAT)No.376/15 -2- 'supplementary list'. This was challenged before the Kerala Administrative Tribunal by filing the OA, seeking the following reliefs: - “i. To direct the 2[nd] respondent to call for the records leading to Annexure A3 and set aside the same to the extent it affects the applicant. - ii. To direct the 2[nd] respondent to declare that the applicant is included in the main list as Annexure A2 notification. - iii. To direct the 2[nd] respondent to conduct interview to the petitioner based on Annexure A2 notification.” 3. The claim was resisted from the part of the PSC contending that the PSC was well justified in the course of action, by virtue of the legal requirements to be satisfied. The contention of the applicant before the Tribunal was that, she was an 'Ezhava' candidate and was coming under the 'OBC category'. She had secured a total mark of 121.5, despite which she came to be shifted and included in the 'supplementary list', whereas, a person who got only 103 marks came to be included in the 'main list', pursuant to Annexure A3 erratum notification. OP(KAT)No.376/15 -3- 4. The circumstances were explained from the part of the PSC and it was brought to the notice of the Tribunal that the PSC was well justified in pursuing the exercise, particularly, by way of the preliminary selection, where only 'OMR test' was involved and that more rigorous test is contemplated, considering the nature of the post and the duties to be performed for assessing the credentials of the candidates in different subjects, to the requisite extent. The claim of the petitioner was not liable to be entertained, also in view of the decision already rendered by the Tribunal in O.A.No.318/14 and in O.A.No.2395/13 and connected cases declaring the correct position of law. Based on the said submission and placing reliance on the verdict passed by the Tribunal cited supra, interference was declined and the O.A. came to be dismissed vide Ext.P4 order dated 4.4.2014. This in turn is under challenge in this Original Petition. 5. The 2[nd] respondent/PSC has filed a counter affidavit explaining the facts and circumstances and contending that the petitioner is not entitled to get any relief as sought for. 6. Heard the learned counsel for the petitioner, the OP(KAT)No.376/15 -4- learned Standing Counsel for the PSC and the learned Government Pleader who entered appearance on behalf of the 1[st] respondent. 7. The prayers sought for in the Original Petition are in the following terms: “(i) To issue an order or direction, calling for the records leading to Ext.P4 and set aside the same; (ii) To direct the 2[nd] respondent to include the petitioner in the main list of Ext.P3 rank list between Rank No.24 and Rank No.25 and issue a further direction to the 2[nd] respondent to advice the petitioner in accordance with such rank assigned to the petitioner. (iii) To grant all the prayers sought for by the petitioner in Ext.P1 O.A.” 8. The learned counsel for the petitioner submits that the course pursued by the Tribunal is not correct, in view of the legal position declared by the Apex Court as per Ext.P6 judgment in Civil Appeal Nos.8536 and 8537 of 2015 dated 13.10.2015. It is pointed out that, under similar circumstances, on an earlier instance, the stand as now taken by the PSC was accepted and OP(KAT)No.376/15 -5- Ext.P5 judgment was passed by a Division Bench of this Court. The aggrieved party took up the matter before the Apex Court and after hearing both the sides, Ext.P5 judgment was held as unsustainable and accordingly, it was set aside and the appeals were allowed as per Ext.P6 verdict passed on 30.10.2015. The learned counsel submits that the issue involved in this case is squarely covered by Ext.P6 and seeks for the benefit flowing therefrom to sustain the relief to be included in the 'main list' and to be proceeded further. 9. The learned Standing Counsel for the PSC points out that the order under challenge was passed by the Tribunal way back on 4.4.2014, whereas the present O.P. came to be filed only in December, 2015, i.e., nearly 1½ years later. It is stated that the O.P. is much belated and no interference is possible under such circumstances, particularly, in view of ruling rendered by the Apex Court in **Chennai Metropolitan Water Supply and Sewerage Board** v. **T.T.Murali Babu (2014 (4) SCC 108)** , as pointed out in Para.10 of the counter affidavit. The learned Standing Counsel further submits that in the instant case, the OP(KAT)No.376/15 -6- short list was published, much before the interview, which was not the position in the case considered by the Apex Court. That apart, the rank list was published when the O.A. was pending and it was thereafter that the O.A. was dismissed as per order dated 4.4.2014. At no point of time, was there any challenge with regard to the rank list already published, (which has been produced as Ext.P3 in this Original Petition). Similarly, no person included in the rank list, who was to be shifted if at all the prayer of the applicant was to be entertained positively, was impleaded in the party array and as such, the O.P. does not deserve any consideration. 10. After hearing both the sides, we find considerable force in the submission made by the learned Standing Counsel for the PSC. Firstly, it is seen that the order passed by the Tribunal was passed as early as on '4.4.2014', whereas the O.P. was filed only on 16.12.2015. Absolutely, no mitigating circumstance is pointed out anywhere in the proceedings so as to call for interference at the hands of this Court. Interference under such circumstances cannot be as a matter of course, in view of the OP(KAT)No.376/15 -7- ruling rendered by the Apex Court way back in 1970 itself, as per the decision reported in **Rabindra Nath Bose and others** v. **Union of India and others (AIR 1970 SC 470)** . Position is almost the same, as per the decision rendered by the Apex Court in **Chennai Metropolitan Water Supply and Sewerage Board** v. **T.T.Murali Babu (2014 (4) SCC 108)** as well. 11. There is no dispute as to the fact that, the PSC had published the rank list when the OA was pending. It is also pointed out that the rank list is being operated from 17.1.2014 onwards. Still more, the rank list admittedly had not been subjected to challenge by the petitioner at any point of time. Above all, no aggrieved person was sought to be impleaded in the party array. This being the position, this Court finds that no interference is possible under any circumstance. 12. The matter can be examined from another angle as well. Ext.P6 verdict was passed by the Apex Court on 13.10.2015. But, the subsequent declaration of law is not a ground for review of the verdict already passed, based on the position which was prevailing as on that date. In other words, the OP(KAT)No.376/15 -8- petitioner in the instant case is virtually prevented from moving the Tribunal by way of review under Section 22(3)(f) of the Administrative Tribunals Act and this being the position, he cannot have the same caused to be challenged by filing an OP before this Court, that too belatedly, after 1½ years. For this reason also interference is not possible. The O.P. fails and the same stands dismissed accordingly. ## **P.R.RAMACHANDRA MENON** , **JUDGE** ## Sd/- **ANIL K.NARENDRAN, JUDGE** dsn //True copy P.S. to Judge//