Vahabudeen v. Kerala Public Service Commission and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **THURSDAY, THE 5TH DAY OF JULY 2012/14TH ASHADHA 1934** ## **WP(C).No. 4746 of 2012 (P)** **--------------------------** ## **PETITIONER:** - **-----------** **VAHABUDEEN, AGED 48 YEARS S/O.ABUBACKERKUNJU, SIMPLEX TENDER, CO-OPERATIVE SPINNING MILLS, KARAMCODE, KOLLAM RESIDING OF CHARUVILA VEEDU, MUTTAKKAVU NEDUMPANA P.O., KOLLAM.** **BY ADVS.SRI.B.MOHANLAL SMT.P.S.PREETHA SRI.SAIJU S. SRI.T.PRASAD** **RESPONDENTS:** **------------** **1. THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM PALACE P.O. THIRUVANANTHAPURAM-4.** **2. THE DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION, ANDAMUKKAM KOLLAM-691 001.** *** 3. THE KOLLAM DIST. CO-OPERATIVE BANK, CHINNAKKADA, KOLLAM-691001, REPERSENTED BY GENERAL MANAGER.** - **(ADDL. THIRD RESPONDENT IS IMPLEADED AS PER ORDER IN I.A. 7044/2012 DATED 5/7/2012)** **R1-R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 4746 of 2012 (P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: THE TRUE COPY OF THE NOTIFICATION IN CATEGORY NO.177/2007 ISSUED BY THE P.S.C.** **EXHIBIT P2: THE TRUE COPY OF THE COMMUNICATION NO.QR-II(3)3140/07 DATED 5/1/2008 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P3: THE TRUE COPY OF THE CERTIFICATE DATED 5/1/2009 ISSUED BY THE MANAGING DIRECTOR, QUILON CO-OPERATIVE SPINNING MILLS TO THE PETITIONER.** **EXHIBIT P4: THE TRUE COPY OF THE HALL TICKET ISSUESD BY THE P.S.C TO THE PETITIONER.** **EXHIBIT P5: THE TRUE COPY OF THE CIRCULAR NO.13/2009 DATED 29/5/2009 ISSUED BY the 1ST RESPONDENT.** **EXHIBIT P6: THE TRUE COPY OF THE REPLY NO.QR-II(3)56/10 DATED 26/11/2010 ISSUED TO ONE LALITHA KUMARI UNDER RIGHT TO INFORMATION ACT.** **EXHIBIT P7: THE TRUE COPY OF THE JUDGMENT DATED 19/3/2011 IN WPC.NO.38757/2010 OF THIS HON'BLE COURT.** **EXHIBIT P8: THE TRUE COPY OF THE NOTIFICATION DATED 5/3/2011 ISSUED BY THE P.S.C.** **RESPONDENTS' EXHIBITS: NIL** // **TRUE COPY//** **PA TO JUDGE** **Scl.** ## **K.SURENDRA MOHAN,J. --------------------------------------------WP(C).No.4746 of 2012 ---------------------------------------------Dated this the 5[th] day of July, 2012** ## **J U D G M E N T** The petitioner has filed this writ petition aggrieved by the non-inclusion of his name in the short list and final list published by the Kerala Public Service Commission for appointment to the post of Peon/Watchman (Part-II by transfer) in category No.177/2007. The petitioner belongs to the Muslim Community and claims that he is entitled to reservation under the category, ‘Other Backward Communities’. He is an employee of Quilon Co-Operative Spinning Mills, a primary co-operative society affiliated to Kollam District Co-Operative Bank. 2. As per Ext.P1 notification published on 15.05.2007, applications were invited to category No.177/2007 for selection and appointment to the posts of Peon/Watchman in various District Co-operative Banks. The petitioner submitted an application under the said W.P.(C)No.4746 /2012 : 2 : category for selection and appointment to the Kollam District Co-Operative Bank. His application was considered by the respondents and the petitioner was asked to appear for a written test that was conducted on 21.02.2009. Ext.P4 is the Hall ticket issued to the petitioner. According to the petitioner, he has performed well in the written test and therefore, expected to be ranked in the short list. However, his name did not appear in the rank list published by the respondents. Enquiries of the petitioner revealed that his application had been rejected for the reason that there was a mistake in indicating the category number of the post to which he had submitted his application, on the first page thereof. However, the petitioner had not been issued with any memo intimating him of the defect or permitting him to cure the same. 3. According to the counsel for the petitioner, the defect on the basis of which the petitioner was not ranked was not a consequential one for the reason that as per W.P.(C)No.4746 /2012 : 3 : Ext.P5 circular dated 29.05.2009, wherever such defects are detected, the respondents have to consider the application to the post to which the same has been submitted. Therefore, it is contended that the respondents ought to have considered the petitioner's claim for selection and appointment to the post to which he had applied, disregarding the defect in indicating the number of the category. Reliance is also placed on Ext.P7 judgment of this Court by which, in the case of four persons who had made identical mistakes, this Court has directed them to be included in the rank list, by revising the same. The counsel appearing for the petitioner also placed reliance on a Division Bench decision of this Court reported in **Shajahan S. V. Kerala Public Service Commission (2011(4) KHC 551)** . For the above reasons, it is contended that the petitioner is entitled to be ranked on the basis of the marks obtained by him. 4. The contentions of the petitioner are stoutly opposed by the counsel for the respondents. A counter W.P.(C)No.4746 /2012 : 4 : affidavit has also been filed on behalf of the respondents. According to the counsel for the respondents, the final rank list was published on 05.03.2011. Before that, a short list had been published on 04.12.2010. The petitioner very well knew that his name had not been included in the short list, on 04.12.2010. At any rate, on 05.03.2011 when the final rank list was published, he had come to know that he had not been included therein. However, the petitioner did not choose to challenge the action of the respondents in omitting to include his name before any authority. The present writ petition is filed only on 24.02.2012 after almost an year of publication of the final rank list. For the above reason, it is contended that the petitioner is guilty of laches disentitling him to any reliefs in this writ petition. 5. The instructions to candidates, issued by the respondents clearly indicate how applications are to be filled up. The candidates have also been informed in advance that any error in filling up the application forms W.P.(C)No.4746 /2012 : 5 : would entail rejection thereof. Therefore, the petitioner was also well aware of the fact that his application would be rejected, in view of the mistake committed by him. It was obviously for the said reason, that the petitioner did not choose to question the rejection of his application for almost a year. It is also contended that if persons like the petitioner who have been sleeping over their rights are permitted to maintain writ petitions like the present one, the process of selection undertaken by the respondents would be thrown into disarray. It is pointed out that if the petitioner’s claim is allowed, a revised rank list would have to be published, complying with various other formalities leading to further delay in finalization of the selection and appointments. The present selection based on a notification of the year 2007, would again be delayed, it is submitted. Therefore, it is contended that the delay in the present case has extinguished the rights if any that of the petitioner may have had to correct the impugned action. The counsel also relies on the decision W.P.(C)No.4746 /2012 : 6 : ## of a Division Bench of this Court in **State of Kerala v. Thirumeni (2007(4) KLT 948)** . 6. I have heard Advocate B.Mohan Lal who appears for the petitioner as well as Advocate Sri.P.C.Sasidharan, who appears for the respondents at length. I have also considered the rival contentions anxiously. 7. It is no doubt true that the instructions to candidates supplied by the respondents clearly stipulate that any error in filling up an application form would entail rejection thereof. It is also beyond dispute that an organization like that of the 1[st] respondent, that is expected to process and deal with applications that run into lakhs is not expected to give an opportunity to each and every candidate to correct the mistakes committed by them. It is for the said reason that the candidates are informed beforehand that applications that suffer from any errors would be summarily rejected. However, in the present case, there is a marked difference. As per Ext.P5 circular dated 29.05.2009, it has been ordered by the first W.P.(C)No.4746 /2012 : 7 : respondent that where the category number and name of the post are entered erroneously in an application, such application can be accepted on the basis of the name of the post indicated therein. The above circular is dated 29.05.2009. The written test of the petitioner conducted on the basis of Ext.P4 was on 21.02.2009. The petitioner’s hall ticket Ext.P4 has been issued by the respondents showing the category number correctly. It is clear from the above conduct that, the respondents had accepted the application of the petitioner and had issued Ext.P4 hall ticket after correcting the mistake committed by the petitioner. The said course of action is justified, in view of Ext.P5 circular, though it was issued only later. Accordingly, the petitioner appeared for the written test on 21.02.2009. After having accepted the petitioner's application and permitted him to appear for the written test, the rejection of his application is not justified. Therefore, there cannot be any doubt that he should have been included in the short list that was published on W.P.(C)No.4746 /2012 : 8 : 04.12.2010 and the final rank list published on 05.03.2011. I also notice from Ext.P7 judgment that in the case of four other persons who had approached this Court, interim orders had been issued directing them to be included in the rank list, giving them the benefit of Ext.P5. Ext.P7 also shows that they had in fact been so included. 8. The counsel for the petitioner has placed reliance on a Division Bench decision of this Court reported in **Shajahan S. v. Kerala Public Service Commission (2011(4) KHC 551 (Supra))** . In the said case also the question was regarding the applicability of Ext.P5 Incidentally, it is to be noticed that the post involved also was of the same category. In paragraph 5 of the said judgment, this Court has considered the contention of the respondents regarding the delay and disruption in completing the selection process by permitting inclusion of persons whose applications have been rejected without giving them the benefit of Ext.P5 circular. After having W.P.(C)No.4746 /2012 : 9 : ## considered the various contentions, this Court has concluded the issue at page 554 in the following words:- 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. 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 all mentioned in Ext.P4. The validity and sustainability of Ext.P4 have to be examined on the basis of reasons stated in Ex.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 W.P.(C)No.4746 /2012 : 10 : 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. 9. In view of the above binding dictum, it has to be held that the petitioner was entitled to the benefit of Ext.P5 circular. Consequently the impugned action of the respondents in not including him in the rank list is not justified. ## 10. In paragraph 9 of the counter affidavit filed by the respondents, it is stated as follows:- It is submitted that considering the marks obtained by the petitioner his name may find a place in the Supplementary list of Muslims. But since his application has already been rejected as it is found defective the petitioner is not entitled for any of the relief sought for in the writ petition. ## 11. The above averments show that the petitioner is a person who is to be included in the supplementary list for Muslim Community, therefore, it is not necessary in W.P.(C)No.4746 /2012 : 11 : the present case to revise the general list of candidates for the purpose of accommodating the petitioner in the rank list or ranking him at the appropriate place. It is sufficient that the supplementary list alone is revised. 12. Next comes the point that has been vehemently put forward by the counsel for the respondents, the question of delay and laches on the part of the petitioner. The learned counsel for the respondents has also relied on a Division Bench decision of this Court reported in **State of Kerala V. Thirumeni (2007(4) KLT 938) (Supra)).** It is pointed out that just because a decision of this Court has conferred a benefit, it does not follow that the said benefit should be extended to every case automatically. It is contended that the court will have to examine the fact situation of the subsequent case and decide whether the party is entitled to the discretionary relief under Article 226 of Constitution of India. 13. In the present case, as already noticed, other persons who had committed similar mistakes have been W.P.(C)No.4746 /2012 : 12 : given the benefit of Ext.P5 circular. They have therefore been ranked by the respondents pursuant to the directions issued by this Court. By the impugned action, the respondents have denied the said benefit to the petitioner alone. It is no doubt true that the petitioner has not been vigilant enough to challenge the noninclusion of his name in the short list or the final rank list published by the respondents, at the appropriate time. However, since other similarly situated persons have been extended the benefit of Ext.P5 circular, it would be inequitable to deny the relief to the petitioner alone, even if it is for the lack of promptitude on his part in challenging the same. It is also to be noticed that in order to accommodate the petitioner at the position in the rank list to which he is entitled, it is sufficient that the supplementary list of 'Muslim Community' alone is revised. Therefore, the difficulty caused to the respondents would also be only to the said reduced extent. Since the graver injustice would be to deny to the W.P.(C)No.4746 /2012 : 13 : petitioner the benefits that have been extended to other similarly situated persons, I am of opinion that it is the lesser evil that has to be preferred, namely of directing the respondents to revise the supplementary list applicable to the 'Muslim Community', condoning the delay on the part of the petitioner. For the above reasons, this writ petition is allowed. The respondents are directed to include the name of the petitioner in the supplementary list of 'Muslim Community' published by the respondents pursuant to Ext.P1 notification at the appropriate rank position. It is made clear that the advices made till date shall not be effected by the revision carried out by the respondents pursuant to the above direction. ## **K.SURENDRA MOHAN, JUDGE** kkj