Chitralekha U.G vs Sree Chitra Tirunal Institute For ... on 25 June, 2024

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Kerala High Court

Chitralekha U.G vs Sree Chitra Tirunal Institute For ... on 25 June, 2024

This is a classic case where the conditions of the selection have been violated with impunity at a subsequent date without any provision of relaxation. In order to demonstrate the aforementioned observation of ours, it would be axiomatic to give preface of the matter.

2. Sree Chitra Tirunal Institute for Medical Sciences and Technology caused a notification Annexure A2 dated 26.8.2015 inviting online application for various posts. The posts involved in the present controversy / petition is Medical Record Assistant indicated against Serial No.5. Three (3) vacancies were in existence; one for ST and other for unreserved. Various conditions with regard to the age limit, selection process and the documents to be attached were also notified. As per clause 3 of the general instructions, the maximum age limit was fixed as 35 years for the posts in question as on 1.9.2015.

3. Respondent No.3 and the petitioner in response to the aforementioned notification being aspirant to be selected for the aforementioned posts, submitted the applications with all relevant documents. It is pertinent to mention here the matriculation certificate in favour of the respondent No.3 disclosed the date of OP (CAT) NO. 82 OF 2024 3 birth as 2.2.1980, thus as on 1.9.2015, the respondent No.3 was overaged. The written test was scheduled on 1.7.2017. However, before few days, respondent No.3 submitted a request dated 23.6.2017 for considering her original date of birth as 27.9.1980 on the premise that her date of birth as per the Panchayath certificate was correctly recorded ie., 27.9.1980. In the meantime, had also applied to the Joint Commissioner, Pareeksha Bahavan on 28.6.2017 which was corrected as 29.6.2017. In this view of the situation was permitted to take written test.

4. As per the written test, respondents came out with a rank list wherein the petitioner stood at Serial No.5 whereas the 3 rd respondent at Serial No.4.

5. During the interregnum, respondent No.3 instituted an OA bearing OA No.773 of 2018 for a direction to disengage temporary hands and to fill up the vacancies appointing candidates from the rank list in existence. In the aforementioned proceedings, petitioner herein - applicant before the Central Administrative Tribunal (CAT) acquired the knowledge regarding the submission of the application for change of the date of birth at a subsequent stage ie., few days before the written test. Realizing the aforementioned mischief, instituted the OA bearing No. 727 of 2019 by laying challenge to the selection list A3 dated 3.7.2017 on the ground that the condition / general instructions do not envisage any relaxation or OP (CAT) NO. 82 OF 2024 4 waiver of the same between the date of submission of the application or written test.

6. Learned Tribunal noticing all these aforementioned contentions, dismissed the petition on the ground that the petitioner, applicant had not been diligent in taking the remedy within a reasonable time as provided under Section 21 of the Administrative Tribunal Act.

7. Learned counsel for the petitioner submitted that learned Tribunal has failed to advert to the service jurisprudence while dismissing the OA as it is settled law that the rules of the game cannot be changed once the process for selection is initiated. There was no bar for respondent No.3 to enclose a copy of the birth certificate allegedly issued by the Panchayath reflecting the date of birth as 27.9.1980 in terms of the provisions of the clause 9(f) of the general instructions. As per the material on record ie., the matriculation certificate, concededly the respondent No.3 was over aged as on 1.9.2015 and could not have been considered or permitted to sit in the written examination being next in the rank was eligible for appointment. There was no such delay as the appointment letter to the respondent No.3 was issued as late as on 27.6.2019.

8. Per contra, learned counsel for the respondent No.3 countered the argument of the learned counsel for the petitioner OP (CAT) NO. 82 OF 2024 5 that the law with regard to the waiver/relaxation of the conditions is no loner res integra, for, respondent No.3 had not submitted the application with malafide intention or there was no such mens rea for obtaining the appointment by concealing the date of birth. Concededly, the cut of date provided in the general instructions ie., on 1.9.2015, respondent No.3 was less than 35 years of age in view of the date of birth shown in the certificate issued by the Panchayath. It is only in the matriculation certificate, the date of birth was recorded incorrectly as 2.2.1980, for that an application on 28.6.2017 was submitted to the concerned authority and on the next day the order of corrected date of birth was issued. No harm and prejudice has been caused for the reason that the respondent No.3 was higher in the rank list that of the petitioner.

9. In support of the aforementioned contentions, relied upon the judgments Kuriakose v. State of Kerala and Others (1984 KHC

373) and Manoj Kumar v. KPSC (1999 KHC 372) to contend that the similar condition was considered by the Single Bench of this Court by giving observation that such condition cannot be stringent but waived or relaxed by the PSC as it does not affect any person who had applied for.

10. Similar is the argument of the learned counsel representing the employer.

11. We have heard the learned counsel for the parties and OP (CAT) NO. 82 OF 2024 6 appraised the paper book. Before adverting to the rival contentions, it would be expedient to extract the general instructions which are relevant for the adjudication of the lis.

3. Age Limit Maximum age limit is 35 years for posts upto (Sl.No.20), 40 years for Post mentioned in Sl.No.21, 30 years for posts mentioned in (SI.No.22) to (S1 No.30) and 25 years for Post mentioned in Sl.No. 31 as on 01.09.2015 (Relaxable for vacancies reserved for SC/ST/OBC (Non Creamy-Layer) categories as per Govt. of India orders as follows). PH candidates are also eligible for age relaxation as per Govt. of India orders.

      Category                                     Age      relaxation
                                                   vacancies reserved
                                                   for that particular
                                                   category
      Scheduled      Caste/Scheduled         5 years
      Tribe
      Other Backward Classes (Non            3 years
      Creamy-Layer)

If you are eligible for age relaxation (applicable to those other than SC/ST/OBC (Non-Creamy Layer) as per Government of India Orders, you have to specify the details in the space provided in the application and produce the relevant certificate(s) from the competent authority at the time of Written Test/Trade Test/Interview.

Candidates applying under any of the notified reservation category viz.SC/ST/OBC (Non Creamy-Layer) will be considered against that category, subject to the submission of Caste Certificate at the time of Test/Interview in the prescribed format applicable for employment in Central Government Institutions issued by a Revenue Officer not below the rank of a Tahsildar failing which their candidature will be treated as Unreserved Category if they satisfy all the eligibility criteria prescribed in the notification.

8.Selection Process Eligible candidates have to appear for a Written Test and/or Trade Test as per the Call Letter. The result of the Test and the schedule of Interview to be held on subsequent days will OP (CAT) NO. 82 OF 2024 7 be published in our notice boards and website on the same day/next day. No separate call letter for Trade Test/Interview will be sent to the candidates. At the time of Test and/or Interview, the candidates must bring call letter and all original certificates/mark lists/documents along with one set of self attested photocopy, víz:

a. System Generated online application fornı duly signed by the candidate.

b. Online Payment receipt or Stamped Pre- Acknowledgment Payment Form c. Photo ID Card bearing name as in the application form. d. Matriculation Certificate e. All Certificates in proof of qualification (from pre degree/plus two certificate onwards) f. Duly signed experience certificate issued by the competent authorities clearly indicating dates (from and to), stating the nature of the job and the required details as the notification demands g. Caste certificate as applicable (SC/ST/OBC (Non Creamy Layer) category) in the prescribed format applicable for employment in Central Government Institution issued by a revenue officer not below the rank of a Tahsildar.

h. Physically Handicapped (Disability 40% or more) Certificate issued by Medical Board (if applicable) i. No Objection Certificate from the present employer if employed in Govt/semi Govt/autonomous bodies etc. j. Any other relevant certificate (s) as shown in the application. Candidates will not be permitted to appear for Test/Interview without the above documents.

9. Important Notes a. A panel valid for 2 years will be prepared for filling future vacancies belonging to the notified categories based on reservation roster.

b. Apprenticeship/training period will not be considered as experience.

c. Experience wherever prescribed means experience gained AFTER acquiring the prescribed essential qualification. d. In addition to pay, allowances at Central Government rates as applicable from time to time will also be admissible. e. Not more than one application should be submitted by any candidate for a single post.

f. Request for change/correction in the Application Form shall not be entertained under any circumstances. OP (CAT) NO. 82 OF 2024 8 g. SCTIMST will not be responsible for loss in transmission/transit. Candidates should retain Photocopies of the Online Payment receipt or Stamped Pre-Acknowledgement Payment Form and application for their own records and reference. h. Any attempt to influence the selection committee of the Institute directly or indirectly will disqualify the candidate. k. A candidate's admission to the Test/Interview is strictly provisional. The mere fact that the call letter has been issued to the candidate does not imply that his/her candidature has been finally cleared by SCTIMST l. In case it is detected at any stage that a candidate does not fulfill the eligibility norms and/or that he/she has furnished any incorrect / false information / certificate / documents or has suppressed any material fact(s), his/her candidature will stand cancelled. If any of these shortcomings is/are detected even after appointment, his/her service is liable to be terminated.

12. On perusal of the same, on the date of the application in respect of a post in question ie., Medical Record Assistant, the age should be thirty five years as on 1.9.2015. As per clause 9(f), the request for change/correction in the application was prohibited and in case, information submitted as per condition No.9(l) is found to be false, the appointment was liable to be terminated. The contention of the respondent No.3 that the condition for enclosing the application required a submission of matriculation certificate which did not bore the correct date of birth and therefore the anomaly occurred and occasion arose for seeking the correction does not merit acceptance. On plain and simple reading of 8(j) of the instructions (ibid) did not prevent respondent No.3 from submission of the birth certificate issued by the Panchayath reflecting the date of birth as 27.9.1980. As far as the objection of OP (CAT) NO. 82 OF 2024 9 not approaching the Tribunal within a reasonable period ie., the one year from the date of the cause of action as the rank list was issued on 3.7.2017 whereas the OA was preferred in 2019. Our attention has been drawn to the paragraph 4.7 of the original OA. The same is extracted herein below:

4.7) At that point, nothing strange was felt by the applicant.

But thereafter, the applicant received notice from this Hon'ble Tribunal in OA 773/2018 filed by the 3 rd respondent seeking a direction to the 1st respondent to disengage the temporary hands working in the Sree Chitra Tirunal Institute for Medical Sciences & Technology in the post of Medical Records Assistant and to fill the vacancies from candidates included in Annexure A-3 rank list herein. That led the applicant to make inquiries under the RTI Act and then she came to know that just before the examination for selection for appointment to the post of Medical Records Assistant was conducted on 1.7.2017, the 3rd respondent submitted a representation to the 1st respondent seeking permission to write the examination based on the date of birth in her birth certificate as she had submitted her SSLC book for correcting her date of birth there. A true copy of the representation submitted by the 3 rd respondent to the 1st respondent is produced herewith and marked as Annexure A-4.

13. The facts narrated and explained in the aforementioned paragraph have not been denied by either of the parties representing the lis. Petitioner was satisfied with regard to the result published as well as the rank but on coming to know about the mischief, through the information received under the RTI acquired the knowledge of submission of the documents whereby the respondent No.3 had submitted an application dated 23.6.2017. Moreover, the appointment order concededly has been issued on OP (CAT) NO. 82 OF 2024 10 27.6.2019, thus there cannot be any delay. The Tribunal in considered view of ours has abdicated in not noticing all the relevant factors and the conditions/general instructions extracted above. In fact there is not a single whisper or reference to the same in the entire judgment.

14. There is no quarrel to the case law cited above. The conditions as narrated above do not reflect any relaxation. Therefore the ratio culled out in the Manoj Kumar (supra) would not be applicable. As far as the controversy involved in the other matter ie., Kuriakose (supra) the dispute pertains to submission of the original records at the time of the interview. However in this case, the documents was to be submitted at the time of the application and no condition was incorporated imposing such relaxation at the time of interview. Each and every case has to be examined on the touchstone of conditions published in the advertisement.

15. It is settled law that while undergoing an exercise of judicial review, the judicial or quasi judicial authorities are required to be more pragmatic and examine each and every facts for effectual adjudication. For the reason aforementioned, we are thus of the view that the order of the CAT is not sustainable in the eyes of law, hereby set aside. OP(CAT) is allowed. The selection of the respondent No.3 is hereby quashed. The directions are issued to the respondent No.1 to issue appointment letter to the petitioner within OP (CAT) NO. 82 OF 2024 11 a period of four weeks from the date of receipt of a certified copy of this judgment. However, we put a caveat that in case there is a likelihood of vacancy or exigency for the post in question, respondent No.1 shall be at liberty to consider the respondent No.3 in accordance with law.

SD/-

AMIT RAWAL JUDGE SD/-

sab                                         M.A.ABDUL HAKHIM
                                                JUDGE
 OP (CAT) NO. 82 OF 2024
                                        12


                      APPENDIX OF OP (CAT) 82/2024

PETITIONER ANNEXURES

Annexure A1               TRUE   COPY   OF   THE    LETTER   NO.   P&
                          A.II/50/SCTIMST/2019    DATED    01/07/2019
                          ISSUED BY THE SENIOR DEPUTY DIRECTOR
                          (ADMN), OFFICER OF THE 1ST RESPONDENT.

Annexure A3               TRUE COPY OF THE RANK LIST OF THE SELECTED

CANDIDATES PUBLISHED BY THE 1ST RESPONDENT ON 3/7/2017 AS PER THEIR LETTER NO. P&A. II/377/JSSC/SCTIMST/2015 Annexure A2 TRUE COPY OF THE RELEVANT PORTIONS OF THE NOTICE ADVT. NO. P & A II/377/JSSC/SCTIMST/2015 ISSUED BY THE 1ST RESPONDENT.

Annexure A4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT Annexure R3(a) TRUE COPY OF THE RANK LIST OF SELECTED CANDIDATES FOR THE POST OF MEDICAL RECORDS ASSISTANT- A BEARING NO.

                          P&AII/377/JSSC/SCTIMST     2015      DATED
                          03/07/2015.

Annexure R3(b)            TRUE   COPY  OF   APPOINTMENT       ORDER       NO.
                          P&AII/50/JSSC/SCTIMST/2019                    DATED
                          27/06/2019

Annexure R3(c)            TRUE       COPY     OF      ORDER               NO.
                          L.DIS/EX/BCI/26418/2017/CGE                   DATED
                          29/06/2017

Annexure R3(d)            TRUE   COPY    OF   THE   CORRECTED           SSLC
                          CERTIFICATE OF THE 3RD RESPONDENT

Annexure R3(e)            TRUE COPY OF THE BIRTH CERTIFICATE OF THE
                          3RD RESPONDENT.

Annexure R3(f)            TRUE COPY OF       AADHAR   CARD   OF   THE    3RD
                          RESPONDENT.
 OP (CAT) NO. 82 OF 2024
                                       13




Exhibit P1                THE TRUE COPY OF THE O.A NO. 727/2019

FILED BY THE PETITIONER/APPLICANT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.

Exhibit P2 THE TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT Exhibit P3 THE TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT Exhibit P4 TRUE COPY OF THE ORDER PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM IN O.A 727/2019 DATED 04/01/2024

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