Sureshkumar K. v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 3[RD] DAY OF AUGUST 2021 / 12TH SRAVANA, 1943** **OP(KAT) NO. 114 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OA 896/2017 OF KERALA** **ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM PETITIONER/S:** **SURESHKUMAR.K AGED 46 YEARS S/O. KARUNAKARAN NAIR, RESIDING PRABHAKARA VILASAM VEEDU, KUNNANAD, PUZHANAD P.O, OTTASEKHARAMANGALAM, THIRUVANANTHAPURAM - 695125. BY ADVS. C.UNNIKRISHNAN (KOLLAM) SRI.D.JAYAKRISHNAN** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, LABOUR AND SKILLS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. 2 THE LABOUR COMMISSIONER THOZHIL BHAVAN, OPPOSITE VIKAS BHAVAN, OPPOSITE VIKAS BHAVAN DEPOT, VIKAS BHAVAN P.O, TRIVANDRUM - 695033. 3 THE SECRETARY KERALA PUBLIC SERVICE COMMISSION, PATTOM P.O, TRIVANDRUM - 695004.** ## **OTHER PRESENT:** **SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER, SRI.P.C.SASIDHARAN,SC** THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT)No.114/2021 2 ## **ALEXANDER THOMAS & A. BADHARUDEEN, JJ.** ## ========================================== OP(KAT)No.114/2021 _(Arising out of the order dated 8.2.2021 in OA No. 896/2017 of the Kerala Administrative Tribunal, Trivandrum Bench)_ ============================================ Dated this the 3[rd] day of August, 2021 ## **J U D G M E N T** The prayers in the aforecaptioned original petition filed under Articles 226 and 227 of the Constitution of India is as follows _(see page_ _No.17 of the paper book of the Original Petition)_ : _“i) call for the records leading to Ext.P10 final order of the Kerala Administrative Tribunal, Trivandrum Bench and set it aside. ii) Grant all the reliefs sought for in the Original Application before the Tribunal. iii) Issue such other writ or order as this Hon'ble Court deems fit and proper in the facts and circumstances of this case.”_ 2. Heard Sri.D.Jayakrishan, learned Counsel appearing for the petitioner in the OP/sole applicant in the OA, Sri.P.C.Sasidharan, learned Standing Counsel appearing for the Kerala Public Service Commission appearing for R3 in OP/R3 in the OA and Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for R1 & R2 in the OP/R1 & R2 in the OA. 3. The prayers in instant OA No.896/2017 filed by the petitioner herein before the Kerala Administrative Tribunal are as follows _(see page No.34 & 35 of the paper book of the OP)_ : _“A. To grant an order of declaration that the applicant is duly qualified and having the requisite experience as on the last date of submission of application to the_ OP(KAT)No.114/2021 3 _post of Instrument Mechanic (Category No.195/2008)._ - _B. To grant an order of declaration that since the applicant was duly qualified as on the last date of submission of application to the post of Instrument Mechanic (Category 195/2008), the act of PSC in rejecting the candidature of the applicant on hyper technical grounds is illegal and the PSC is legally bound to reconsider the applicant's case._ - _C. To direct the 3rd respondent to modify Annexure A19 & 20 Ranked list and to include the applicant on the basis of his eligibility, as he is duly qualified and experienced and his rejection of candidature was due to the illegal denial of candidature of applicant upon hyper technical grounds._ - _D. An order/direction to the 3rd respondent to conduct an interview for the Applicant at the earliest possible opportunity and he may be directed to be included in the ranked list if found eligible by issuing addendum notification to the post of Instrument Mechanic in the Kerala Electrical Inspectorate Department (Category No. 195/2008) and to advise him irrespective of the fact that ranked list expires during the pendency of this O.A.”_ 4. The Tribunal after hearing both sides, has rendered impugned Ext.P10 final order dated 8.2.2021 in the instant OA No. 896/2017, wherein it has been held that as the applicant has submitted requisite experience certificate, long after the publication of the rank list, his candidature has been rightly rejected by the Public Service Commission and that no relief can be granted in the OA and accordingly, OA has been dismissed. It is this verdict of the Tribunal at Ext.P10 that is under challenge in this OP. 5. The case involved selection and appointment to the post of Instrument-Mechanic, Kerala Electrical Inspectorate, in terms of Annexure A1 notification dated 14.5.2008 issued by respondent– Public Service Commission and the last date for submission of application in that regard, as stipulated in Annexure A-1, was 18.6.2008. The qualifications prescribed for the said post as per OP(KAT)No.114/2021 4 Annexure A-1 notification are as follows: ( _see page 86 of this OP_ ) - _“i) Certificate in Instrument Technology awarded by the Director General of Resettlement and Employment, New Delhi after 18 months course of study followed by inplant training for 6 months or any other equivalent qualification._ - _ii) Three years experience in the repair of precision instruments in Institutions recognized for the purpose by Govt. after acquiring the academic qualification prescribed under item (I) above.”_ 6. It has been clearly stipulated in the selection notification that the candidate will have to submit the requisite experience certificate in the prescribed proforma to prove the abovesaid experience, etc. The original applicant was permitted to part take in the instant selection process on a provisional basis. By Annexure A-4 memo dated 4.5.2009, the respondent - PSC had instructed the candidates concerned to submit their experience certificates to prove their claim for their prescribed experience. It appears that the petitioner had then never submitted the requisite experience certificate within the time deadline. The PSC had thereafter proceeded to publish Annexure A-19 rank list on 6.2.2014. Later on an addendum rank list was also published by the PSC on 10.3.2014. It is common ground that the rank list has expired on 30.6.2017. It is also common ground that the respondent–PSC authorities had issued the impugned Annexure A7 memo dated 17.10.2013 rejecting the candidature of the petitioner. According to the petitioner, he could not submit the requisite experience certificate since he had OP(KAT)No.114/2021 5 some dispute with the employer and ultimately he could secure Annexure A-23 experience certificate dated 24.4.2017, which according to him, was submitted by the petitioner before the PSC on 2.5.2017. In the light of these facts and circumstances, the Tribunal had taken the considered view that since the petitioner had not produced the required experience certificate within the deadline and he has produced it long thereafter, the PSC cannot be found fault with for having rejected the candidature of the petitioner. This is the sum and substance of the case at hand. Going by the above said factual aspects, we are not in a position to hold that the above said verdict of the Tribunal at Ext.P7 is in any manner illegal or perverse. 7. Faced with this situation, Sri.D.Jayakrishnan, learned Counsel appearing for the petitioner would strongly urge that candidate who had been selected and advised by the Public Service Commission, had also not submitted the requisite experience certificate in the prescribed proforma and that, even going by Annexure R2 (a) certificate, he may not have the requisite three years' experience in terms of Annexure A-4 selection notification. The respondent Public Service Commission has filed Ext.P2 reply statement dated 22.11.2017 in the OA before the Tribunal and has OP(KAT)No.114/2021 6 also subsequently filed Ext.P9 additional reply statement dated 3.2.2021 in the above OA. A reading of the above said reply statement, more particularly the one at Ext.P2 would make it clear that there were no candidates with the prescribed qualification of Certificate in Instrument Technology awarded by the Director General of Resettlement & Employment, New Delhi, after 18 months' course of study followed by inplant training for 6 months'. However, in the light of the said scenario, the Public Service Commission was constrained to approach the competent authority of the Department of Technical Education and the Senior Joint Director (ECS) of the Technical Education of the Government of Kerala had informed the Secretary of the Public Service Commission that as per letter No.C4/32727/2013/DTE dated 7.10.2013 that the qualification of Diploma in Instrument Technology is a higher qualification and further that NTC Instrument Mechanic can be considered as equivalent qualification to that prescribed in Annexure A-1 selection notification. 8. Sri.P.C.Sasidharan, learned Standing Counsel for the PSC has pointed out that it is by now well established that in view of the provisions contained Rule 10(a)(ii) of KS&SSR Part II, a higher qualification, which presupposes the acquisition of lower OP(KAT)No.114/2021 7 qualification would be sufficient in lieu of the prescribed lower qualification (see _**K.K.Jyothi v. State of Kerala**_ [2010 15 SCC 835] _)_ . Further it is stated by the respondent PSC in Ext.P-9 reply statement that selected candidate, Sri.Prasad Gopi was advised on 15.4.2014 and that he possesses NTC in Instrument Mechanic, which is an accepted qualification in view of the considered stand taken by the appointing authority in the Department of Technical Education of the Government of Kerala. In that regard, it is common ground that even the original applicant does not have the prescribed qualification and according to him, he has Diploma in Electronics & Instrumentation, which is the higher qualification, which presupposes the prescribed lower qualification, which is sufficient for the same. Hence, in the light of the abovesaid aspects there may be any serious challenge in the Public Service Commission treating the advised candidate Sri.Prasad Gopi as qualified in view of the above said aspects. Further, the objection raised by the learned Counsel for the applicant is that even going by Annexure R-3(a) experience certificate, the advised candidate, Sri.Prasad Gopi does not have the minimum three years' experience in terms of Annexure A1 selection notification. A reading of Annexure R-3(a) selection notification as well as the pleadings of the respondent PSC in their OP(KAT)No.114/2021 8 reply statement as above would make it clear that the said candidate had joined service of Travancore Titanium Products Limited, which is an undertaking fully owned by the Government of Kerala on 14.7.2003 as a Work Assistant (Instrument) and later he was appointed as Instrument Mechanic w.e.f. 17.8.2005, and he was continuing in service thereafter. The last date for submission of application in terms of Annexure A-1 dated 14.5.2008 was 18.6.2008. 9. A Division Bench of this Court in decisions as in _**Kerala Public Service Commission v. Soni**_ [2016 1 KLT 293(DB)] has emphasised the need for the candidates to keep the deadline for submission of experience certificate in the selection process conducted by the PSC. Further Rule 17-C has now been statutorily incorporated in Part II KS&SSR w.e.f 19.4.1994, which _inter alia_ stipulates that certificates/relevant documents required by the PSC to prove the claims in the applications should be submitted by the candidates concerned, as and when required by the PSC or in any . case before the finalisation of the rank list for the post concerned 10. It is clearly averred in the reply statement of the PSC, more particularly in para 10 of Ext.P2 and Ext.P-9, that the experience certificate of Sri.Prasad Gopi would show that he has OP(KAT)No.114/2021 9 experience as “Work Assistant (Instrument)” w.e.f. 14.7.2003, and as “Instrument Mechanic” from 17.10.2005. Further that another certificate was also issued from Travancore Titanium Products Limited, which certifies that during the period of his service in the company, he gained experience in maintenance and calibration of precision Instrument both pneumatic and electronic equipments and that he is qualified for the post. Of course, a typing mistake had occurred in para No.10 of Ext.P-2 reply statement inasmuch as it was stated therein that the experience of Sri.Prasad Gopi as “Work Assistant (Instrument)” commenced only from 14.7.2013. Later on this has been corrected in Ext.P9 additional reply statement, in which it has been stated that the date “14.7.2013” shown in para 10 of Ext.P-2 reply statement was a typing mistake and that said date should be corrected as “14.7.2003”. A mere reading of Annexure R3 (a) experience certificate issued by M/s.Travancore Titanium Products Ltd., which is an undertaking fully owned by the Government of Kerala, would show Annexure R-3(a) is a certificate issued on 24.1.2013, which certifies that the said candidate has got experience in the said company as “Work Assistant (Instrument)” from 14.7.2003 and later, he was promoted to the post of Instrument Mechanic w.e.f. 17.8.2005. Hence going by the abovesaid aspects, it OP(KAT)No.114/2021 10 can be seen the said candidate has completed three years' experience as on 13.7.2006, which is before the last date of submission of application, viz. 14.6.2008. In the light of this aspect, it cannot be said that the PSC has committed or any grave illegality unreasonableness in advising the abovesaid candidate in question. That apart, it has to be borne in mind that despite the last date of submission of application was 18.6.2008, the PSC had alerted all the candidates including the original applicant to submit the requisite experience certificate as per Annexure A-4 memo issued as early as on 14.5.2009. Since the original applicant had never submitted the application for a very long time, the PSC was constrained to issue Annexure A-17 rejection memo on 17.10.2013 and the rank list was published on 6.02.2014 and addendum notification was published on 10.3.2014 and the rank list was ultimately cancelled on 30.6.2017. It is just before the expiry of the rank list that the petitioner has admittedly produced Annexure A-23 experience certificate dated 24.4.2017 and that too, only on 2.5.2017, which is hardly 58 days before the expiry of the rank list and that too, in a case where the selection notification has been issued as early as early as on 14.5.2008. The learned Counsel for the petitioner has pointed out that the delay in submitting the experience certificate is OP(KAT)No.114/2021 11 only on account of the objections raised by the employer of applicant and ultimately he could get the experience certificate only as per Annexure A-23 dated 10.5.2017, etc. In a selection process like the instant one, the respondent PSC authorities cannot be made to wait until disputes between and employee like the petitioner and his employer are sorted out and to await till such time for issuance of an experience certificate. The time given till October 2013 was more than sufficient inasmuch as the last date of submission of application was 18.6.2008. In the light of the abovesaid aspects, we are not in position to hold that the dismissal of the OA by the Tribunal as the impugned verdict is in any manner illegal or perverse. No grounds have been made out for invoking the public law remedy of judicial review and judicial jurisprudence in the facts and circumstances of the case. Hence no interdiction is called for with the impugned verdict. Accordingly, the original petition stands dismissed. Sd/ ## **ALEXANDER THOMAS, JUDGE** sd/ ## **A. BADHARUDEEN, JUDGE** jm/ OP(KAT)No.114/2021 12 ## **APPENDIX OF OP(KAT) 114/2021** |PETITIONER ANNEXURE|| |---|---| |ANNEXURE A1|TRUE COPY OF GAZETTE NOTIFICATION DATED| ||14.05.2008.| |ANNEXURE A2|TRUE COPY OF CERTIFICATE DATED 30.06.1998| ||ISSUED BY THE STATE BOARD OF TECHNICAL| ||EDUCATION.| |ANNEXURE A3|TRUE COPY OF COMMUNICATION ISSUED BY THE| ||DIRECTOR OF TECHNICAL EDUCATION TO THE| ||APPLICANT BEARING NO.C4/34879/DTE DATED| ||28.07.2013.| |ANNEXURE A4|TRUE COPY OF COMMUNICATION BEARING NO. CRIIB| ||(3) 22888/07/GW DATED 04.05.2009.| |ANNEXURE A5|TRUE COPY OF CERTIFICATE DATED 20.12.1999| ||ISSUED BY MEERA INDUSTRIAL TRAINING CENTRE| ||CERTIFYING THAT THE APPLICANT WORKED THERE| ||FROM 15.12.1997 TO 20.12.1999(2 YEARS).| |ANNEXURE A6|TRUE COPY ISSUED BY TTK HEALTH CARE LTD DATED| ||08.05.2009 CERTIFYING THAT THE APPLICANT HAS| ||EXPERIENCE WORKING THERE WITH EFFECT FROM| ||11.01.2007 TO THE DATE OF THE CERTIFICATE.| |ANNEXURE A7|TRUE COPY OF COMMUNICATION BEARING NO. GRIIB| ||(3) 22888/07/GW-N 1000085 DATED 19.10.2010.| |ANNEXURE A8|TRUE COPY OF REPRESENTATION DATED 17.07.2012.| |ANNEXURE A9|TRUE COPY OF COMMUNICATION BEARING NO. GR| ||VII(3) 22888/GW DATED 16.08.2012.| |ANNEXURE A10|TRUE COPY OF REPRESENTATION DATED 03.09.2012.| |ANNEXURE A11|TRUE COPY OF COMMUNICATION BEARING NO. GR| ||VII(3) 22888/07/CW DATED 20.09.2012.| |ANNEXURE A12|TRUE COPY OF DETAILS OF JOB RESPONSIBILITIES| ||OF APPLICANT ISSUED BY TTK HEALTH CARE LTD| ||NEYYATTINKARA DATED 05.01.2009.| |ANNEXURE A13|TRUE COPY OF REPRESENTATION DATED 29.07.2013.| |ANNEXURE A14|TRUE COPY OF REPRESENTATION DATED 03.08.2013.| |ANNEXURE A15|TRUE COPY OF LETTER FROM THE ASSISTANT LABOUR| ||OFFICER TO THE 3RD RESPONDENT PSC,BEARING NO.| ||589/13 DATED 02.08.2013.| |ANNEXURE A16|TRUE COPY OF LETTER NO.GRVII(3) 22888/07/GW| ||DATED 07.09.2013.| |ANNEXURE A17|TRUE COPY OF COMMUNICATION BEARING NO.| ||GR/19798/RTI/13 DATED 17.10.2013.| |ANNEXURE A18|TRUE COPY OF THE AWARD PASSED BY THE LABOUR| ||COURT IN INDUSTRIAL DISPUTE NO. 76/2012 DATED| ||09.06.2016.| |ANNEXURE A19|TRUE COPY OF RANKED LIST NO. 68/14/SS IV| ||DATED 06.02.2014.| ## OP(KAT)No.114/2021 ||13| |---|---| |ANNEXURE A20|TRUE COPY OF ADDENDUM NOTIFICATION DATED| ||10.03.2014.| |ANNEXURE A21|TRUE COPY OF APPOINTMENT CHART PUBLISHED BY| ||THE PSC BEARING NO. RIA(3) 2880/14/GW DATED| ||SHOWING ADVICE ON 25.03.2014.| |ANNEXURE A22|TRUE COPY OF LETTER BEARING NO. ERV(3)| ||4464/10/EW DATED 20.04.2012.| |ANNEXURE A23|TRUE COPY OF EXPERIENCE CERTIFICATE DATED| ||10.05.2017 FROM TTK HEALTH CARE LTD.| |ANNEXURE A23(A)|TRUE COPY OF COVERING LETTER DATED| ||02.05.2017.| |ANNEXURE A24|TRUE COPY OF EXPERIENCE CERTIFICATE DATED| ||21.04.2017 ISSUED FROM ACADEMY OF ENGINEERING| ||FOR THE PERIOD FROM 02.01.2004 TO 10.01.2005.| |ANNEXURE A25|TRUE COPY OF EXPERIENCE CERTIFICATE DATED| ||21.04.2017 ISSUED FROM ACADEMY OF ENGINEERING| ||FOR THE PERIOD FROM 15.01.2005 TO 10.01.2007.| |ANNEXURE A26|TRUE COPY OF THE REPRESENTATION DATED NIL TO| ||THE HON'BLE CHIEF MINISTER.| |ANNEXURE A27|TRUE COPY OF THE RECEIPT ISSUED FROM THE| ||CHIEF MINISTER'S OFFICE DATED 18.02.2017.| |ANNEXURE A28|TRUE COPY OF THE COMMUNICATION BEARING NO.| ||D3/68/2017 - LBRD DATED 24.03.2017.| |ANNEXURE A29|TRUE COPY OF THE REPRESENTATION DATED| ||24.07.2017.| |ANNEXURE A30|(PRODUCED ALONG WITH EXHIBIT P6 MA 2066/2019)| ||TRUE COPY OF LETTER DATED 17.05.2018| ||SUBMITTED BY THE APPLICANT TO THE CHAIRMAN,| ||KERALA PUBLIC SERVICE COMMISSION.| |ANNEXURE A31|(PRODUCED ALONG WITH EXHIBIT P6 MA 2066/2019)| ||TRUE COPY OF REPLY BEARING NO. IDS I(4)| ||7349/2018/GW DATED 05.1.2019 RECEIVED UNDER| ||RTI ACT FROM THE STATE PUBLIC INFORMATION| ||OFFICER, KERALA PUBLIC SERVICE COMMISSION.| |ANNEXURE A32|(PRODUCED ALONG WITH EXHIBIT P6 MA 313/2019| ||TRUE COPY OF LETTER NO. C01/269/2019-PKSC| ||DATED 24.10.2019 RECEIVED BY THE APPLICANT| ||FROM THE CHAIRMAN, KERALA PUBLIC SERVICE| ||COMMISSION.| |ANNEXURE A33|(PRODUCED ALONG WITH EXHIBIT P6 MA 313/2019)| ||TRUE COPY OF LETTER NO. SS1(2) 1052/19 DATED| ||30.01.2020 RECEIVED BY THE APPLICANT FROM| ||PSC.| |EXHIBIT P1|TRUE COPY OF OA 896/2017 FILED BY THE| ||PETITIONER BEFORE THE KERALA ADMINISTRATIVE| ||TRIBUNAL, TRIVANDRUM BENCH.| |EXHIBIT P2|TRUE COPY OF REPLY STATEMENT DATED 22.11.2017| ||FILED BY THE 3RD RESPONDENT KPSC.| |EXHIBIT P3|TRUE COPY OF REPLY STATEMENT DATED 24.11.2017| OP(KAT)No.114/2021 ||14| |---|---| ||FILED BY THE 1ST RESPONDENT.| |EXHIBIT P4|TRUE COPY OF REJOINDER DATED 08.12.2017 IN| ||ANSWER TO 3RD RESPONDENT'S EXHIBIT P2 REPLY| ||STATEMENT.| |EXHIBIT P5|TRUE COPY OF REJOINDER DATED 08.12.2017 IN| ||ANSWER TO 1ST RESPONDENT'S EXHIBIT P3 REPLY.| |EXHIBIT P6|TRUE COPY OF MA 2066/2019 DATED 25.09.2019| ||FOR PRODUCTION OF ADDITIONAL DOCUMENTS TO| ||PRODUCED FILED BY THE PETITIONER/APPLICANT.| |EXHIBIT P7|TRUE COPY OF THE MA 313/2020 DATED 13.02.2020| ||FOR PRODUCTION OF ADDITIONAL DOCUMENTS FILED| ||BY THE PETITIONER/APPLICANT.| |EXHIBIT P8|TRUE COPY OF MA 310 OF 2021 FILED BY THE 3RD| ||RESPONDENT PSC FOR CORRECTING MISTAKE IN| ||REPLY STATEMENT FILED ON 22.11.2017.| |EXHIBIT P9|TRUE COPY OF ADDITIONAL REPLY STATEMENT DATED| ||03.02.2021 FILED BY THE 3RD RESPONDENT PSC.| |EXHIBIT P10|CERTIFIED COPY OF ORDER OF THE KERALA| ||ADMINISTRATIVE TRIBUNAL, TRIVANDRUM BENCH| ||DATED 08.02.2021 IN OA 896/2017.|