Vijayan M.A. v. Kerala Public Service Commission and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY ,THE 21ST DAY OF JANUARY 2019 / 1ST MAGHA, 1940** ## **OP(KAT).No. 230 of 2018** ## **OA(EKM) 880/2017 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER:** **VIJAYAN M.A. S/O. ARAVINDAKSHAN NAIR, AGED 41 YEARS, MALIECKAL VEEDU, MEKKAD P.O., PIN - 688 589, ERNAKULAM, KERALA.** **BY ADV. SRI.O.D.SIVADAS** ## **RESPONDENTS:** |**1**|**THE KERALA PUBLIC SERVICE COMMISSION**| |---|---| ||**REPRESENTED BY ITS SECRETARY, PATTOM,**| ||**THIRUVANANTHAPURAM, PIN - 695 004.**| |**2**|**THE SECRETARY**| ||**KERALA PUBLIC SERVICE COMMISSION, PATTOM,**| ||**THIRUVANANTHAPURAM, PIN - 695 004.**| |**3**|**THE DISTRICT OFFICER**| ||**KERALA PUBLIC SERVICE COMMISSION, KATTAPPANA,**| ||**IDUKKI, PIN - 685 602.**| ## **OTHER PRESENT:** **SRI P.C SASIDHARAN -SC FOR KPSC.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 21.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** OP(KAT).No. 230 of 2018 -2- ## **JUDGMENT** ## **C.T.RAVIKUMAR, J.** This original petition is directed against the order dated 6.2.2018 passed by the Kerala Administrative Tribunal in O.A.(EKM) No.880 of 2017. The petitioner/the applicant therein responded to a notification issued by the Public Service Commission for appointment to the post of Driver Grade II in various Department in Idukki District, notified as category No.339/13. The petitioner had participated in the selection process, viz; in the written test as also in the driving test. Certificate verification was also conducted. After the completion of the selection process, the Public Service Commission published Annexure A4 ranked list on 23.11.2016. Upon finding that his name was not included therein and the non-inclusion was owing to the cancellation of his candidature as defective due to non-uploading of the OP(KAT).No. 230 of 2018 -3- signature, he approached the Tribunal by filing the above mentioned original application. Virtually, at the time of uploading his application, what he had done is instead of uploading his signature along with the photographs, he uploaded only his photograph. In short, admittedly at the time of uploading the application, he had not put his signature. In the original application, the petitioner sought for the following reliefs: “i) Call for the records leading to Ext.P1 order passed in OA (EKM) No.880/2017 dated 6.02.2018 issued by the Kerala Administrative Tribunal and set aside the same. ii) Issue appropriate order or direction to the respondents to include the applicant in the rank list to the post of Driver Grade-II (HDV) in Idukki District by providing appropriate placing without disturbing the advice and appointment made from the said rank list.” 2. The Public Service Commission filed a reply statement strongly resisting the claims and contentions of the petitioner. In the reply statement, they have specifically OP(KAT).No. 230 of 2018 -4- stated that the requirement to upload the signature at the time of making the application, cannot be said to be a mere formality. It is a crucial factor for identifying the candidate. It is in the said circumstances that the failure to upload the photograph or the signature had been taken as major defects, entailing cancellation of the candidature, it is stated. The Tribunal after considering the rival contentions, upheld the contention of the Commission and consequently, dismissed the original application. It is in the said circumstances that this original petition has been filed. 3. We have heard the learned counsel appearing for the petitioner and also the learned Standing Counsel appearing for respondents. 4. As a matter of fact, the learned counsel appearing for the petitioner reiterated the contentions unsuccessfully raised before the Tribunal. He has also raised a contention OP(KAT).No. 230 of 2018 **==> picture [16 x 8] intentionally omitted <==** relying on the judgment of a learned Single Judge in W.P.(C) No.39437 of 2016. In elaboration of the contention, the learned counsel submitted that prior to the publication of the ranked list on 23.11.2016, the petitioner had cured the defect by uploading the signature. He has also taken up the contention based on Annexure A3. It is submitted that a perusal of Annexure A3 would reveal that his signature was actually uploaded. We may hasten to add that even while taking up such a contention he would admit the fact that the signature was not uploaded at the time of uploading the application and that such uploading was made prior to decision No.5 taken by the Public Service Commission on 20.2.2017. The said decision taken by the Public Service Commission is discernible from Annexure A6. In the contextual situation, it is only appropriate to extract the relevant recital from Annexure A6, which reads thus: OP(KAT).No. 230 of 2018 -6- |"ബഹ.കമമഷനന20.2.2017 നല5-)o നമർ തമരമമന| |---| |പകമരര<br>ഇതതനനമടകര<br>റമങ<br>പടതക<br>പസതദമകരതകമത| |തസതകകളതൽ<br>ഒപ<br>upload<br>നചയനതതന<br>പകരര| |നഫമനടമ/അവവകമമയ<br>ഒപ/Blank<br>Space<br>കമണന<br>അവസരതതൽ<br>അതരര<br>ഉനദവമഗമർതതകൾക<br>ഒപ| |യഥമസമനതupload<br> നചയവമൻ അവസരര നൽകത<br>ഉതരവമയതരന. <br> എനമൽ<br>ശമ.വതജയൻ<br>എര.എ| |അനപകതചതരന<br>കമറഗറത<br>നമർ<br>339/13<br> പകമരമള| |ഡഡവർ നഗഡII (HDV) Various തസതകയനട റമങ പടതക| |23.11.2016 ൽ പസതദമകരതചമടണ.”| Thus, it is obvious that decision No.5 taken on 20.2.2017 is to permit the candidates to upload photo or illegible signature, only in respect of cases where ranked list was not published in respect of the post concerned. There is absolutely no case for the petitioner that the ranked list in respect of the aforementioned post to which the petitioner had applied pursuant to the notification, was published only after 20.2.2017. There is no dispute with respect to the fact that in respect of the post in question, the rank list was published by the Public Service Commission much prior to OP(KAT).No. 230 of 2018 -7- 20.2.2017 to be precise on 23.11.2016. There is also no case for the petitioner that in respect of the candidates who responded to the same notification after the publication of the ranked list, such defects were permitted to be cured and thereby an invidious discrimination was shown to him. Essentially, his case is that despite the aforesaid defect in the application, he was called for the written test and was permitted to partake in the driving test and certificate verification was also done in connection with the selection process. According to him, in such circumstances and also taking note of the fact that before the publication of the rank list, he had uploaded his signature, the Public Service Commission should not have invalidated his candidature. In the light of the said contention, the question to be considered is whether the subsequent uploading of the signature would cure the defect in the application. There is OP(KAT).No. 230 of 2018 -8- no case for the petitioner that the application submitted by him was given back to enable him to cure the defect. In fact, such a question of returning the application is an impossibility, because it was an online application. The admitted position is that at the time of uploading the application, the petitioner had not uploaded his signature. The subsequent uploading of the signature was virtually made to his profile, which could be and should be utilised for subsequent communication with the Public Service Commission as also for the purpose of any further notification. In such circumstances, we do not find any reason to uphold the contention made by the petitioner based on Annexure A3 as also based on the the fact that prior to the publication of the ranked list, he uploaded his signature. It is true that he had uploaded the signature much before the decision No.5 was taken by the Public Service OP(KAT).No. 230 of 2018 -9- Commission on 20.2.2017. However, the mere fact that he has uploaded his signature would not cure the defect in the application. As noticed hereinbefore, the petitioner is relying on the judgment of the learned Single Judge in W.P. (C) No.39437 of 2016. We are afraid that the said decision would not fetch any help to the petitioner or would improve his case. That apart, a scanning of the said judgment would reveal that it would go against the contention raised by the petitioner. Paragraph 4 therein would fortify our stand. The relevant recital in paragraph 4 reads thus:- “4. I have anxiously considered the contentions advanced by the learned counsel for the parties. It is beyond dispute that the requirement in the notification is only that the candidate should write his/her name and date on the photograph to be uploaded. As such, if the candidate concerned had not written her name and the date, nobody can raise any objection against the decision of the PSC in rejecting the application on that ground. But the case on hand is different. In this case, the petitioner had written her name and the date on the photograph. The objection is only as to the clarity of the said endorsements.” Thus, it can be seen that in the case which was dealt with by OP(KAT).No. 230 of 2018 -10- the learned Single Judge virtually the candidate concerned complied with the directions and written her name and endorsed the date on the photograph in compliance with the conditions. The objection was only with respect to the clarity and even while considering these aspects, the learned Single Judge observed that if the condition to write the name and date on the photograph to be uploaded was not complied with, rejection of the application by the Public Service Commission citing such a ground, could not be interfered with. In the case on hand, there is no case for the petitioner that he had virtually uploaded his signature at the time of uploading the application. In that context, another decision of a Division Bench of this Court in **Shameera I. v. Kerala Public Service Commission, Tvm [ILR 2017 (1) Ker.218]** assumes relevance. That was a case where the petitioner concerned approached this Court raising OP(KAT).No. 230 of 2018 -11- grievances against the non-awarding of Sports weightage marks. Admittedly, in the application, the petitioner therein had answered in negative to a specific question in the application form as to whether he was claiming any weightage. Virtually the petitioner was seeking substitution of his answer 'No' by 'Yes'. The contention was that it is nothing but a mere defect taking into account the fact that virtually she was entitled to get weightage under that head. Repelling this contention this Court held that the view taken by the Public Service Commission to invalidate the candidature cannot be said to be illegal as such defect could not be termed as a minor defect to be permitted to be cured. We have already taken note of the fact that a conscious decision to cure such defect was taken note of by the Public Service Commission only in a case where the ranked list concerned was not published. In the case on hand, the OP(KAT).No. 230 of 2018 -12- Public Service Commission published the rank list and the petitioner had uploaded his signature, that too for the purpose of updating his profile prior to decision No.5 taken by the Public Service Commission on 20.2.2017. These aspects were duly taken note of by the Tribunal while dismissing the original application. In such circumstances, we do not find any reason to hold that the order of the Tribunal is infected with any illegality or perversity, warranting any interference in exercise of the power of judicial review. In the result, this original application must fail and consequently, the same is dismissed. sd/- **C.T.RAVIKUMAR JUDGE** **sd/V.G.ARUN JUDGE** Scl/ OP(KAT).No. 230 of 2018 -13- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **ORDER IN O.A.NO.880/2017 PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM, DATED 06.02.2018.** **EXHIBIT P2 TRUE COPY OF THE O.A.NO. 880 OF 2017 FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, ALONG WITH ANNEXURES.** **EXHIBIT P3** **TRUE COPY OF REPLY STATEMENT FILED BY THE KERALA PUBLIC SERVICE COMMISSION.**