Kerala High Court
Jayachandrakumar K.L vs Kerala Public Service Commission on 1 December, 2015
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY, THE 3RD DAY OF FEBRUARY 2017/14TH MAGHA, 1938
WP(C).No. 34724 of 2015 (M)
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PETITIONER(S) :
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JAYACHANDRAKUMAR K.L., AGED 42 YEARS,
S/O. LAKSHMANAN, "KOIPALLISSERIL", SOUTH KOCHUMURI,
OACHIRA P.O,KOLLAM-690 526.
BY ADV. SRI.B.HARISH KUMAR
RESPONDENT(S) :
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1. KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY, PATTOM P.O.,
THIRUVANANTHAPURAM-695 001.
2. STATE OF KERALA,
REPRESENTED BY THE SECRETARY, MINISTRY OF PUBLIC
WORKS AND TRANSPORT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3. ASSISTANT EXECUTIVE ENGINEER,
OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER,
PWD MECHANICAL SUB DIVISION, MAVELIKARA,
ALAPPUZHA-688 001.
* ADDITIONAL R4 IMPLEADED
4. THE MANAGING DIRECTOR,
KERALA STATE ROAD TRANSPORT CORPORATION,
THIRUVANANTHAPURAM - 695 054.
* ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 01.12.2015 IN
I.A.NO. 17321 OF 2015.
R1 BY ADV. SRI.P.C.SASIDHARAN, S.C
R2 & R3 BY SR. GOVERNMENT PLEADER SMT. NISHA BOSE
ADDL. R4 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR, S.C
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03-02-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 34724 of 2015 (M)
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APPENDIX
PETITIONER(S)' EXHIBITS :
EXHIBIT P1: A TRUE COPY OF THE GAZETTE NOTIFICATION DATED 30.12.2009
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2: A TRUE COPY OF THE MEMO DATED 30.01.2014 ISSUED TO
THE PETITIONER BY THE 1ST RESPONDENT.
EXHIBIT P3: A TRUE COPY OF THE EXPERIENCE CERTIFICATE
DATED 13.02.2014, COUNTERSIGNED BY THE 3RD RESPONDENT.
EXHIBIT P4: A TRUE COPY OF THE RELEVANT PAGE OF RANK LIST, CATEGORY
NO.470/09, PUBLISHED BY THE 1ST RESPONDENT.
EXHIBIT P5: A TRUE COPY OF THE REPRESENTATION DATED 12.08.2015
SUBMITTED BY THE PETITIONER.
EXHIBIT P6: A TRUE COPY OF THE PROCEEDING DATED 09.09.2015 ISSUED BY
THE OFFICE OF THE 1ST RESPONDENT.
EXHIBIT P7: A TRUE COPY OF THE APPLICATION DATED 10.09.2015
SUBMITTED BY THE PETITIONER.
EXHIBIT P8: A TRUE COPY OF THE PROCEEDING DATED 14.09.2015 ALONG
WITH THE GOVERNMENT ORDER DATED 07.08.1986 ISSUED BY
THE THIRD RESPONDENT.
EXHIBIT P9: A TRUE COPY OF THE REPRESENTATION DATED 19.09.2015
SUBMITTED BY THE PETITIONER.
EXHIBIT P10: A TRUE COPY OF THE JUDGMENT DATED 12.03.2015 PASSED BY
THIS HON'BLE COURT.
EXHIBIT P11: A TRUE COPY OF THE RELEVANT PAGE OF THE APPOINTMENT
CHART, IN WHICH THE PETITIONERS IN EXHIBIT P10 JUDGMENT
HAS BEEN ADVISED AND APPOINTED, ISSUED BY
THE 1ST RESPONDENT.
RESPONDENT(S)' EXHIBITS & ANNEXURES :
ANNEXURE R3(A): A TRUE COPY OF THE G.O.MS NO. 97/86/PW&T
DATED 07.08.1986.
//TRUE COPY//
P.A.TO JUDGE.
Msd.
P.V.ASHA, J.
W.P.(C) No.34724 of 2015
Dated this the 3rd day of February, 2017
JUDGMENT
The grievance of the petitioner is over the rejection of his candidature, on account of the defect in the experience certificate.
2. Petitioner is a candidate, who appeared for the selection and appointment to the post of Blacksmith Grade II, in Kerala State Road Transport Corporation (Kerala State Road Transport Corporation), pursuant to Ext.P1 notification dated 30.12.2009. On being successful in the written test, he was called for the certificate verification, as per Ext.P2 memo dated 30.1.2014. The petitioner produced all the relevant certificates, including Ext.P3 experience certificate, counter signed by the 3rd respondent. He was not informed of any defects in the certificates. However, in Ext.P4 rank list, published on 23.10.2014, his name was not included.
3. As there was no response to his representations, submitted on 11.11.2014 and Ext.P5 submitted on 12.8.2015, requesting for inclusion of his name in the ranked list, he submitted application under the Right to Information Act and in Ext.P6 letter dated 9.9.2015, the Public Information Officer informed him that the experience certificate produced by him was not countersigned by the competent authority. It was also informed that the question whether the 3rd respondent was W.P.(C) No.34724 of 2015 :2: competent to countersign the experience certificate was pending consideration before the Secretary. Petitioner thereupon submitted another application, under the Right to Information Act to the office of the 3rd respondent, seeking information as to their competency to issue/countersign experience certificates. By Ext.P8 letter dated 14.9.2015, he was informed that 3rd respondent is competent to issue such certificates. It was stated that approval is granted to workshops by 3rd respondent after verification of the status of the workshop, instruments and equipments in the workshop, technical qualification of workers, etc. and therefore experience certificates are issued from that office. A copy of Ext.P8 Government Order also was furnished along with the letter. It was at that stage that the petitioner filed this writ petition seeking a direction to the Public Service Commission to accept his candidature and include him in the rank list of Blacksmith Grade II. A declaration was also sought to the effect that the certificate he produced in support of his claim for experience which was counter signed by the 3rd respondent was legal and liable to be accepted.
4. The 1st respondent filed a counter affidavit stating that the qualification prescribed for selection to the post were ITI certificate in W.P.(C) No.34724 of 2015 :3: the trade of Blacksmith/Forger and Heat Treatment/Sheet Metal/ Fitter/ Diesel Mechanic/Mechanic Motor Vehicle/Welder with not less than three years experience in any body-building or body-repair workshop having SSI registration. An experience certificate obtained from registered companies countersigned by an authorised officer of the State/Central Government was required. In paragraph 4 it is stated that the certificate produced by the petitioner was one issued from a private firm and it was counter-signed by the Assistant Executive Engineer, PWD Mechanical Sub Division, Mavelikkara. According to the respondents, Assistant Executive Engineer PWD is not competent to countersign the experience certificate issued from the workshop. On the other hand, it should be by an officer not below the rank of Assistant Labour Officer of the area. Therefore, the experience certificate produced by the petitioner was not acceptable.
5. On direction from this court, the 3rd respondent filed a statement stating that the Assistant Executive Engineer is competent to issue experience certificate. The authority for issuing such certificate is produced as per Ext.R3(a) which is G.O.(MS) No.97/86/ PW & T dated 7.8.1986 (Ext.P8). This Government order provides for classification of workshops into four classes in accordance with the W.P.(C) No.34724 of 2015 :4: annual capacity to undertake repairs and it also prescribes the security deposit of each class of workshops. This Government order refers to the earlier Government orders by which certain norms were specified for approval of workshops, procedure for registration of workshops, renewal of approval etc. It also provides for the general rules regarding approval as well as application for renewal, the procedure for revoking registration, etc. It further provides for the requirement of personnel in the workshop. As per the Government order the workshop shall have not less than two experienced mechanics who are capable of carrying out all types of repairs to automobile vehicles independently; sufficient number of Fitters and Helpers to assist the Mechanics; one Supervisor/Foreman who has technical qualification or less than five years experience in a reputable repair workshop and an experienced Electrician. It further provides for the tools and equipments, workspace and premises, method of registration, the facilities to be provided, etc. Clause 7 of the order provides for the method of registration, according to which any workshop requiring registration as Government approved workshop has to apply to the Assistant Executive Engineer of the region in which workshop is situated. Thereupon the Assistant Executive Engineer shall, on being satisfied that the workshop fulfils W.P.(C) No.34724 of 2015 :5: the requirements, issue orders recognising it on collection of security deposit. It further provides that the prescribed requirement of tools, facilities, personnel etc. can be relaxed in appropriate cases. According to the statement, the 3rd respondent issues experience certificate of candidates who work at the relevant time in the workshops in case the conditions in clause III of Annexure R3(a) are satisfied. Clause III of Annexure R3(a) only deals with the personnel who are required for workshop as classified in the said Government order. It further states that the certificate was issued after verifying the muster rolls and wage registers of the concerned workshops. It is also stated that the 3rd respondent had the power to issue the experience certificate.
6. The learned Standing Counsel for the Public Service Commission points out that the form of experience certificate is provided in paragraph 21 of the General Conditions, which every candidate is instructed to go through, as per notification Ext.P1 itself. In note 2 of paragraph 22, it is provided that all experience certificate shall be fully certified by concerned controlling officer/head of office of the Government. It also provides how the certificates are to be issued, etc. The genuineness of the certificate shall be subjected to verification and legal action will be taken against those who issue and produce W.P.(C) No.34724 of 2015 :6: bogus certificates. According to the respondents the controlling authority is only an officer not below the rank of Assistant Labour Officer.
7. Ext.P3 certificate produced by the petitioner is countersigned by the 3rd respondent. In Ext.P3, the 3rd respondent has certified that he has inspected the attendance, service records and wage slips and he is the authority to inspect the same under the rules relating to 'Government approval for workshops'.
8. It is true, as contented by the learned counsel for the petitioner that either in the notification Ext.P1 or in the General Conditions, it is not provided whether the certificate has to be attested by the Assistant Labour Officer. But the stand of the respondents is that as far as a workshop is concerned, it is only the Assistant Labour Officer, who is authorised to verify the registers and thereafter to certify the correctness of the experience certificate.
9. The learned counsel for the respondents relied on the judgment of this court in Kerala Public Service Commission v. Sony [2016 (1) KLT 293] and argued that the there was nothing illegal in the rejection of candidature when the experience certificate produced was not as specified in paragraph 21 of the general W.P.(C) No.34724 of 2015 :7: conditions, as it was not countersigned by the authority competent. The case considered by the Division Bench was also in respect of the certificates produced by the candidates who appeared for selection for appointment to the post of Blacksmith Grade II. Those candidates were also not included in the rank list. In that case the Assistant Labour Officer had not counter signed the experience certificate. The learned single Judge therein had held that the Assistant Labour Officer cannot decline to counter sign the experience certificate in case records are not available with the employer, but has a duty to make an enquiry and counter sign experience certificate on being satisfied about the genuineness of the same. However, the Division Bench reversed the said finding and found that the certificate should be in conformity with all the conditions stipulated in the general conditions. It was held that as provided in para 29 of the general conditions, each candidate is bound to go through the general conditions and the applications are liable to be rejected in case it is not in conformity with the same. It has to adhere to the conditions in paragraphs 21 and 22 where the proforma of certificate of experience is provided. The Officer attesting certificate has to certify the experience mentioned in the certificate which is borne out by the registers kept by the employer and the W.P.(C) No.34724 of 2015 :8: attesting officer should be competent under the relevant law to inspect the registers kept by the employer and referred to by attesting officer that the experience certificates produced by the applicants were in the prescribed form. In that case it was found that the certificates were rejected as stipulated in paragraph 29 of the general conditions. It was also found that such verification was necessary in order to prevent malpractices though it may cause hardship to the candidates. However, specific reliance was made on the requirement of experience certificate in the proforma prescribed and the authority which is competent to issue the same. Paragraph 11 of the judgment refers to a contention raised regarding the requirement of maintaining registers under the Payment of Wages Act/Minimum Wages act/Shops and Commercial Establishments Act and other relevant laws. When the certificates have not been attested by the attesting officer after verifying the relevant entires in the registers put by the employer the conditions mentioned in the notification would not be satisfied.
10. The learned counsel for the petitioner points out that petitioner is over aged. It is his case that no where in the notification or the general conditions it provides that the certificate should be counter signed by the Labour Officer. Therefore the petitioner who W.P.(C) No.34724 of 2015 :9: bonafide believed that the 3rd respondent is a competent authority and the 3rd respondent even now maintains that he is the competent authority to counter sign the experience certificate. Therefore, he should have been included in the ranked list accepting the certificates produced by him. It is also pointed out that no intimation was given to the petitioner regarding the deficiencies in the certificates he produced and in case he was given any intimation, he could have corrected the mistake, producing the experience certificate, as required.
11. It is true that the petitioner's opportunity to get employment under the State is being deprived of, on account of the discrepancy in the experience certificate despite being successful in the written test and a candidate like him who applied for the post of Blacksmith was not in a position to be aware of the requirement that counter signature in the experience certificate should be obtained from the Assistant Labour Officer or officers from the Labour department, in the absence of any such requirement in the notification or general condition. It is also true that the issue considered by the Division Bench, was not one similar to the one in the present case regarding the competency of the officer to issue/countersign experience certificate. It was a case where the Labour Officer refused to countersign the certificate or that the W.P.(C) No.34724 of 2015 :10: certificate was not in the prescribed form. Even officers like 3rd respondent do not have any doubt as to their competency. However, the statement of the 3rd respondent shows that he is the authority to approve a workshop after verifying the infrastructure, availability of technically qualified hands etc. Form of certificate itself indicate that the certificate has to be issued after verification of registers to be maintained under various enactments like the Payment of Wages Act/Minimum Wages Act/Shops and Commercial Establishments Act and he should be competent to verify such registers. 3rd respondent has stated that he is competent to verify the attendance register, qualification and service records in terms of Ext.P8 order. However he is not authorised to inspect any register under any enactment. Therefore the stand taken by the Public Service Commission in not accepting Ext.P3 certificate cannot be said to be illegal in the light of the judgment supra.
12. However it would have been only fair and proper that the respondents had intimated the petitioner as to the deficiency in the certificate he produced, at the time of verification or thereafter so that he would have been able to furnish a certificate countersigned by the appropriate authority. It was only on application under the Right to W.P.(C) No.34724 of 2015 :11: Information Act, that he came to know about the deficiency in the certificate, as per Ext.P6 letter dated 9.9.2015, much after publication of the rank list. The respondents should have provided sufficient instructions to the candidates as to who are the controlling authorities or authorised officers to counter sign the experience certificates required in each case, well in advance so that such unfortunate circumstances, can be avoided without depriving the legitimate opportunities available for the candidates.
In the above circumstances, the writ petition is dismissed.
sd/-
P.V.ASHA JUDGE rkc