S.SHAJAHAN v. KERALA PUBLIC SERVICE COMMISSION

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN** **FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933** **WA.No. 1390 of 2011()** **--------------------AGAINST THE JUDGEMENT IN WPC.38723/2010 Dated 22/08/2011 ....................** ## **APPELLANT/ PETITIONER** **------------------------** **S.SHAJAHAN, S/O.SAINALABDEEN, WORKING AS ATTENDER, ADICHANALLOOR FARMERS SERVICE CO-OP. BANK LIMITED NO.2609, ADICHANALLOOR, KOLLAM DISTRICT, RESIDING AT SAJID NIVAS, VARINJAM, EDANAD P.O., KOLLAM-691571.** **BY ADV. SRI.B.MOHANLAL SMT.P.S.PREETHA SRI.SAIJU S. SRI.T.PRASAD** ## **RESPONDENTS/RESPONDENTS:** **---------------** **1. THE KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, PATTOM PALACE P.O., THIRUVANANTHAPURAM-4.** **2. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, ANDAMUKKAM, KOLLAM-691001.** ## **ADV.P.C.SASIDHARAN, SC.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28/09/2011, THE COURT ON 21.10.2011 DELIVERED THE FOLLOWING:** **“CR”** ## **C.N.RAMACHANDRAN NAIR, Ag.C.J & P.S.GOPINATHAN, J. ---------------------------------W.A.No.1390 OF 2011 --------------------------------Dated this the 21[st] day of October, 2011** ## **J U D G M E N T ~~~~~~~~~~~** ## P.S.Gopinathan, J. The appellant is the petitioner in W.P.(C) No.38723/2010. The 1[st] respondent Kerala Public Service Commission by Ext.P1 notification invited application for appointment to the post of Peon/Watchman in various District Co-operative Banks. 50% of the post of Peon in the District Co-operative Banks is reserved for the employees in any of the Primary Co-operative Societies under the District Co-operative Bank. Remaining 50% is to be filled up by open recruitment. The appellant is working as a Peon in the Adichanalloor Farmers Service Co-operative Bank, a Primary Co-operative Society affiliated to the Kollam District Co-operative Bank. The appellant, responding to Ext.P1, submitted an application, copy of which was produced by the 1[st] respondent as Ext.R1(a), for appointment in the service quota. In Ext.P1, the category number is shown as 177/2007. In Ext.R1(a), though the appellant mentioned that the application W.A.No.1390/2011 2 was for appointment from among employees of affiliated member Primary Co-operative Societies and it was also specifically mentioned that the appellant was working as peon in Adichanalloor Farmers Co-operative Bank. But, in the column for category number, as against 177/2007, the appellant had entered 176/2007. It is submitted that category number 176/2007 is relating to direct recruitment. The 1[st] respondent after processing the applications, responding to Ext.R1(a), issued Ext.P2 admission ticket inviting the appellant to appear for a written examination on 21.2.2009. In Ext.P2, the category number is correctly shown as 177/2007. It was also mentioned that the post to which the test was conducted is “Peon/Watchman Post II By transfer”. The appellant appeared for the written examination. According to him, he was qualified by securing 52% marks. But, when the shortlist was published, the name of the appellant was found missing. On 14.12.2010 he filed Ext.P3 representation before the 2[nd] respondent requesting to have his name included in the shortlist. By Ext.P4, in response to Ext.P3, the 2[nd] respondent informed the appellant that in his application the category number was shown as 176/2007, which is relating to direct recruitment. Therefore, in W.A.No.1390/2011 3 the light of circular number 13/2009, copy of which was produced as Ext.P5, his application was rejected. Alleging that Ext.P4 is vitiated by illegality and arbitrariness, the petitioner filed the Writ Petition seeking an order to quash Ext.P4 and for a writ of mandamus directing the respondents to include his name in the shortlist. 2. An Under Secretary attached to the Regional Office of the 1[st] respondent at Ernakulam filed an affidavit reiterating the stand of the respondents specifically stating that in the columns regarding the category, the entry was 176/2007 and that Ext.P2 admission ticket was issued before processing the application form and that the appellant was only permitted to provisionally participate in the examination and that would not confer any right on the appellant and that the application was duly rejected because of the misquoting of the category and that this Court in Neena v. Public Service Commission [2010(1) KLT 258] and other decisions had held that the Service Commission is entitled to reject an application wherein final decision regarding the acceptance of the candidature had not been taken based on Ext.P5 circular. It was further stated that there was no provision W.A.No.1390/2011 4 to correct a mistake or to rectify a defect committed by the candidate in the application submitted by him/her and that it would be extremely difficult and time consuming for Commission to discharge their functions if the Commission were to spend their time and resources in making such enquiries and that if such a request for correction of such defective applications is entertained, it will lead to total disruption in the working of the Commission thereby resulting in unnecessary delay in completion of the selection process. Referring to the decision in T.Jayakumar v A.Gopu and Another [2008(9)SCC 403], it was stated that wrong entry of category number assigned for a post, tantamounts to stating that the candidate has not applied for that particular post. It was further stated that Ext.P4 is no way vitiated by any illegality, impropriety or arbitrariness and prayed for dismissal of the petition. 3. The learned Single Judge accepting the contention raised by the petitioner and following the decision in Neena's case (supra) and two other unreported decisions, by the impugned judgment dated 22.8.2011 dismissed the petition. Now this appeal. W.A.No.1390/2011 5 4. We have heard Adv. Sri. B.Mohanlal, the learned counsel appearing for the petitioner as well as Adv. Sri.P.C.Sasidharan, the learned standing counsel for the respondents and perused the records. 5. The facts stated above were not at all disputed. Therefore, the only question that remains for adjudication is whether Ext.P4 is vitiated and liable to be set aside. It is specifically mentioned in Ext.P4 that the application of the appellant is rejected on the basis of Ext.P5 circular. Ext.P5 circular dated 29.5.2009 was issued in suppression of circular No.2/2006 dated 21.12.2005. A careful reading of Ext.P5 would show that by circular No.2/2006 referred therein the Commission had taken a decision that cases, where category number and name of posts were mutually erred, can be considered on the basis of the name of post. The relevant portion of Ext.P5 reads: “പല ഉദ���ഗ�ര��കള�� അപപക സമര��ക�പ��ള ക�റഗറ� ന�ര�� തസ�ത�കയ �ദ! പപര�� പരസ�പര� ദതറ�യ� പരഖദ�! �ത�നത�യ� കണ& വര&ന& . ക�റഗറ� ന�ര�� തസ�ത�കയ �ദ! പപര �� പരസ�പര� ദതറ�യ� W.A.No.1390/2011 6 പരഖദ�!�ത�യ�ട�ളള അപപകകദള തസ�ത�കയ �ദ! പപര�ദ*റ അ!�സ�നത�ല ഉളദ�! �ത�വ�നത�ദ-ന സ&ചനയ�ദല സരക�ലറ�ല കമ0ഷ* ഉതരവ�യ�ട�ണ�.” If that be so, Circular No.2/2006 was the one in force at the time of Ext.P1 notification, submitting of application and at the time when the appellant was called for written examination. A close scrutiny of Ext.P2 would show that the appellant was called for written examination on the basis of the post and not on the category number. It is also pertinent to note that in Ext.P2, the category number was correctly shown as 177/2007. If that be so, we have to conclude that the application of the appellant was considered in the light of Circular No.2/2006 as an application for 'by transfer appointment' and the appellant was asked to appear for the written examination. It was also submitted from either side that the answer sheet of the appellant was valued despite the error in the category number and he was awarded 52 marks as evidenced by Ext.P8. If that be so, there occurred no disruption in the working of the Commission resulting in any unnecessary delay in completion of the selection process as stated in the affidavit filed on behalf of the respondents. The respondents have no any such case while issuing Ext.P4. W.A.No.1390/2011 7 Therefore, ground of disruption of the processing of the application or causing delay in the selection process cannot be entertained. There is lack of bonafides in advancing a contention which was not at all mentioned in Ext.P4. The validity and sustainability of Ext.P4 have to be examined on the basis of reasons stated in Ext.P4 and not on any other ground. Respondents are not entitled to advance additional grounds. Adding to the above, as per the standing instructions, evidenced by Ext.P5 as on the date of the application and on the date of the written examination, whenever there is error in category number the application is to be processed on the basis of the post mentioned in the application. Therefore, the respondents were not justified in rejecting the application on the basis of a subsequent Circular. The application submitted by the appellant ought to have been processed in the light of Circular No.2/2006 which was in force at the time of Ext.P1 notification, filing of application and the date of written examination. Ext.P4 is therefore, illegal and erroneous. We cannot uphold it. We find that the learned Single Judge erred in dismissing the petition. The decision referred by the Single Judge has no application to the case on hand because in Neena's case, what W.A.No.1390/2011 8 was considered in that case is whether the Public Service Commission is estopped from rejecting a defective application after issuing hall ticket for written examination. The learned Single Judge had not considered the effect of Circular No.2/2006. Issue involved in Jayakumar's case (supra) is entirely different. Here, in the case on hand, Ext.P2 would persuade us to conclude that Ext.R1(a) application was processed in accordance with Circular No.2/2006 as if it is an application for by transfer appointment because the category number is correctly shown there. In such circumstance, the Commission was not justified in later rejecting Ext.R1(a) application in the light of a subsequent Circular. On an anxious consideration of the facts and circumstances, we rule that it is not just and appropriate for the Public Service Commission to reject an application by a candidate, which is in order as per the Notification, Rules, Regulation or Circular then prevailing, after making it defective by a subsequent Circular or amendment of Rules or Regulation detrimental to the candidates. Every candidate would get a legitimate right to have his application disposed by the Commission as per the Rules, Regulation or Circular prevailing as on the date of notification and application. W.A.No.1390/2011 9 Therefore, the appellant is entitled to have his application processed in the light of Circular No.2/2006. Rejection of Ext.R1(a) by Ext.P4, on the basis of Ext.P5, is not legally sustainable. In the result, the appeal is allowed. While setting aside the judgment impugned the Writ Petition would stand allowed. Ext.P4 order would stand quashed and there would be a writ of mandamus directing the respondents to shortlist the petitioner, provided he had got sufficient marks. There would be no order as to costs. ## **(C.N.RAMACHANDRAN NAIR, Acting Chief Justice)** ## **(P.S.GOPINATHAN, JUDGE)** ## **ps/11/11**