Kerala High Court
Shino Raj R vs State Of Kerala on 4 October, 2018
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
THURSDAY,THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940
WP(C).No. 30798 of 2018
PETITIONER:
SHINO RAJ R.
AGED 28 YEARS
VISHAKOM,
KOZHIKKODEMEKKU,
S.V.M. P.O.,
KARUNAGAPPALLY,
KOLLAM DISTRICT, 690573
BY ADV. SRI.SASITH PANICKER
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
DEPARTMENT OF ROAD TRANSPORTS,
SECRETARIAT, THIRUVANANTHAPURAM, 695001
2 SECRETARY
KERALA STATE ROAD TRANSPORT CORPORATION, PATTOM P.O.,
THIRUVANANTHAPURAM - 695 004
3 SECRETARY
KERALA PUBLIC SERVICE COMMISSION, THULASI HILLS,
PATTOM P.O., THIRUVANANTHAPURAM - 695 004
SRI. P.C.SASIDHARAN, SC FOR PSC
SRI. T.P.SAJAN, SC,KSRTC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.30798 of 2018
:-2-:
"CR"
J U D G M E N T
The petitioner, who is an applicant to the post of Assistant Transport Officer in the Kerala State Road Transport Corporation (for brevity, 'KSRTC') has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 reply dated 18.06.2018 issued by the State Public Information Officer in the office of the Kerala Public Service Commission (for brevity, 'KPSC') and Ext.P4 communication dated 16.06.2018 of KPSC and for other consequential reliefs.
2. On 19.9.2018 when this writ petition came up for admission, Registry was directed to get explanation from the Filing Scrutiny Officer who numbered the writ petition without noticing the fact that the document marked as Ext.P3 is not legible. The explanation offered by the Filing W.P.(C)No.30798 of 2018 :-3-:
Scrutiny Officer dated 24.09.2018 is placed on record.
3. On 25.9.2018, when this case came up for consideration, certain material defects in the cause title of the writ petition were pointed out by the learned Standing Counsel for KSRTC. The order passed by this Court dated 25.09.2018 reads thus;
"The learned Counsel for the petitioner seeks adjournment, so as to enable him to produce a legible copy of Ext.P3 document.
2. The name and description of the respondents shown in the cause title of the writ petition read thus;
"1. State of Kerala, represented by its Secretary to Government, Department of Road Transports, Secretariat, Thiruvananthapuram-695 001.
2. Secretary, Kerala State Road Transport Corporation, Pattom P.O, Thiruvananthapuram-695 004.
3. Secretary, Kerala Public Service Commission, Thulasi Hills, Pattom P.O, Thiruvananthapuram-695 004."
3. The name and description of the respondents W.P.(C)No.30798 of 2018 :-4-:
should have been shown in the cause title of the writ petition as follows;
"1. State of Kerala, Represented by Principal Secretary to Government, Transport Department, Government Secretariat, Thiruvananthapuram, Pin-695 001.
2. The Kerala State Road Transport Corporation, Transport Bhavan, Fort, Thiruvananthapuram, Pin-695 023, Represented by its Managing Director.
3. The Kerala Public Service Commission, Thulasi Hills, Pattom Palace P.O., Thiruvananthapuram, Pin-695 004, Represented by its Secretary."
4. The 1st and 2nd reliefs and also the interim relief sought for in this writ petition read thus;
"(1) Call the records leading up to Exhibit P3 and Exhibit P4 and quash Issue writ of certiorari or any other appropriate writ, orders and Exhibit P3 & Exhibit P4. (2) Issue a writ of mandamus or any other appropriate writ, orders or direction to the second and third respondents to conduct the nterview of the petitioner to the post of Assistant Transport officer of KSRTC since he possess the vision standards as per the gazette notification".
(3) Issue a writ of mandamus or any other appropriate writ, orders or direction to the third respondents to include the petitioner in the rank list for the post of the post of Assistant Transport officer.
W.P.(C)No.30798 of 2018 :-5-:
Interim Relief
For the reasons stated in the above writ petition and accompanying affidavit it is most humbly prayed that this Honourable Court may be pleased to direct the 3rd respondent to interview the petitioner and stay direct the 2nd respondent not fill up one post of Assistant Transport Officer of KSRTC till the final disposal of the above writ petition".
5. In terms of the order of this Court dated 19.09.2018, explanation dated 24.09.2018 of the Filing Scrutiny Officer is placed on record.
6. The Registry shall obtain a further explanation from the Filing Scrutiny Officer on the above aspects.
It would be open to the petitioner to file appropriate application for rectifying the aforesaid material defects.
List on 03.10.2018."
4. On 3.10.2018 when this writ petition came up for consideration, the petitioner filed I.A.No.1/2018 seeking an order to accept legible copy of Ext.P3 and I.A.No.2/2018 seeking an order to amend relief Nos.(1) and (2) and also to amend the cause title of the writ petition by correcting the name and description of the 2nd respondent as W.P.(C)No.30798 of 2018 :-6-:
follows;
"Kerala State Road Transport Corporation, Represented by its Managing Director, Pattom, Thiruvananthapuram."
Both interlocutory applications are supported by affidavit sworn to by the learned counsel for the petitioner and not by an affidavit sworn to by the petitioner.
5. In Sali Mohan v. Kolazhi Grama Panchayath, Thrissur and others [2015 (4) KHC 261] this Court held that, Section 27 of the General Clauses Act, 1897 (for brevity, 'the State Act') as well as Section 26 of the Interpretation and General Clauses Act, 1125 (for brevity, 'the State Act') do not lay down an inflexible or conclusive presumption as to service of notice by registered post. It only states that a presumption as to service of document by post can be drawn if the circumstances enumerated in Section 27 of the Central Act or Section 26 of the State Act are W.P.(C)No.30798 of 2018 :-7-:
present, unless the contrary is proved. One of the essential circumstances for drawing such a presumption as to service of document by post is that the registered postal article should be 'properly addressed'. A postal article with incomplete or indefinite address, without specifying some definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the addressee resides or carries on business or employed, cannot be termed as one 'properly addressed' in order to draw a presumption as to service of document by post, under Section 27 of the Central Act or Section 26 of the State Act, or under Section 16 or Section 114 of the Evidence Act, 1872.
6. In Sali Mohan's case (supra) this Court held further that, for drawing a presumption under W.P.(C)No.30798 of 2018 :-8-:
the proviso to sub-rule (2) of Rule 51 of the Rules of the High Court of Kerala, 1971 that the notice had been duly served on the respondent, one of the essential circumstances is that the notice was 'properly addressed'. If the postal article containing the notice issued by this Court contain only an incomplete or indefinite address, without specifying some definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the respondent resides or carries on business or employed, it cannot be termed as a notice 'properly addressed' to the respondent, in order to draw a presumption under the proviso to sub-rule (2) of Rule 51, that the notice had been duly served on such respondent.
7. Rule 146 of the Rules of the High Court of Kerala, 1971 provides that an application under W.P.(C)No.30798 of 2018 :-9-:
Article 226 or under Article 227 or under Article 228 of the Constitution of India shall be as in Form No.10, as per which, the cause title of the writ petition should contain the description and also the address of the parties, intended for service of notice. Rule 148 mandates that, all persons directly affected shall be made parties to the writ petition, and that notice of the writ petition shall, on admission, be given to all such persons either by personal service or by public advertisement, as the Court in each case may direct. Going by sub-rule (1) of Rule 51, unless otherwise ordered, every notice shall be sent, in the first instance, to the address of the respondent given in the memorandum of appeal or petition, as the case may be, by means of registered post, acknowledgment prepaid and that, an acknowledgment purporting to be signed by the W.P.(C)No.30798 of 2018 :-10-:
respondent shall be deemed to be sufficient proof of service of such notice.
8. In Sali Mohan's case (supra) this Court held that, the provisions under the Indian Post Office Rules, 1933 and that under the Postal Manual mandate that no postal article shall be accepted for registration unless it bears the name and complete address of the sender as well as the addressee. When the address of the parties given in the memorandum of writ petition, appeal, etc., are intended for sending notice or other communications by this Court, it is inevitable that, the memorandum of writ petition, appeal, etc., filed before this Court should contain complete and definite address, specifying the definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where W.P.(C)No.30798 of 2018 :-11-:
the party resides or carries on business or employed.
9. In Sali Mohan's case (supra) it was noted that this Court vide Notification No.A1-14065/2007 dated 09.10.2007 has instructed that, the actual postal address of the parties, with correct Pin Code, should be shown in all proceedings filed in this Court and that no proceedings shall be received without such actual postal address. The aforesaid notification was issued, when this Court noticed that the address of the parties given in the memorandum of writ petition, appeal, etc., are not the actual address, as a result of which, the notice and other articles sent by post in such address are returned by the Postal Department stating that 'addressee not known'.
10. Despite the aforesaid provisions under the Rules of the High Court of Kerala and also the law W.P.(C)No.30798 of 2018 :-12-:
laid down in the decision referred to supra, the learned counsel for the petitioner has presented this writ petition before this Court on 18.09.2018 with incorrect and incomplete address of respondents 1 to 3. Despite the order of this Court dated 25.09.2018, the learned counsel for the petitioner has not chosen to file a proper application to amend the cause title of this writ petition for incorporating the correct description and complete address of the respondents.
11. Moreover, on the docket of I.A.No.1/2018 and also in the petition, the provision of the Rules of High Court of Kerala, 1971 is misquoted as "Section 150" instead of "Rule 150". Similarly, on the docket of I.A.No.2/2018 and also in the petition the provision of the said Rules is misquoted as "Section 150" instead of "Rule 155". It is trite law that, quoting of a wrong provision W.P.(C)No.30798 of 2018 :-13-:
of law will not disentitle the party to the relief sought for in that application. Even a cursory glance of I.A.Nos.1/2018 and 2/2018 shows that those applications have been drafted in a casual manner harbouring the notion that this Court is required to allow such applications as a matter of course.
12. In I.A.No.1/2018, the relief sought for is an order "to accept the legible copy of Ext.P3". The proper relief in such application should be an order "to substitute the document marked as Ext.P3 in the writ petition by the legible copy of Ext.P3 produced along with this application", i.e., I.A.No.1/2018.
13. As per sub-rule (4) of Rule 35 of the Rules of the High Court of Kerala, all main proceedings shall contain an index sheet placed immediately below the covering sheet, setting forth the brief W.P.(C)No.30798 of 2018 :-14-:
description of the contents therein with reference to the respective page numbers. Chapter XI of the said Rules deals with proceedings under Articles 226, 227 and 228 of the Constitution of India. Rule 146, which deals with contents of the applications, mandates that every application shall set out the provision of law under which it is made, the name and description of the petitioner and the respondent, a clear and concise statement of facts, the grounds on which the relief is sought and shall be signed by petitioner and by his Advocate, if he has appointed one, as in Form No.10. As per Form No.10 prescribed under Rule 146, an application filed under Article 226 or under Article 227 or under Article 228 shall be signed by the petitioner below the interim relief sought for and thereafter signed by his Advocate, if he has appointed one.
14. Rule 147 of the Rules of the High Court of W.P.(C)No.30798 of 2018 :-15-:
Kerala deals with documents to accompany petitions. As per sub-rule (1) of Rule 147, the application shall be accompanied by the documents enumerated in clauses (a) to (d) of sub-rule (1), namely, an affidavit verifying the facts relied on; a copy of the impugned order, if any; a schedule of the documents relied on in the affidavit with copies of such of those documents as are in the possession of the petitioner; synopsis as prescribed in sub-rule (5) of Rule 35. Sub-rule (2) of Rule 147 mandates that the copies of the document filed under sub-
rule (1) shall be authenticated as true copies by the Advocate, and, if there be no Advocate by the party.
15. Rule 154 of the Rules of the High Court of Kerala mandates that proof of facts and documents shall be tendered by affidavit. As per Rule 155, no ground shall be relied upon and no relief sought at W.P.(C)No.30798 of 2018 :-16-:
the hearing except the grounds taken and reliefs sought in the original petition and the accompanying affidavit. Going by the proviso to Rule 155, the Court may, at the hearing allow the said petition and affidavit to be amended upon such terms as to costs or otherwise as the Court thinks fit.
16. The provisions under the Rules of High Court of Kerala referred to hereinbefore make it explicitly clear that an application filed under Article 226 or under Article 227 or under Article 228 shall be signed by the petitioner and thereafter signed by his Advocate, if he has appointed one. Therefore, the pleadings in such an application have to be signed by the petitioner and the affidavit filed in support of an interlocutory application filed for amendment of the facts pleaded in such an application or to substitute a W.P.(C)No.30798 of 2018 :-17-:
document in support of the facts pleaded, should be that of the petitioner and not that of his Advocate.
17. In Bharat Singh v. State of Haryana [(1988) 4 SCC 534] the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-
affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter-affidavit. While in a W.P.(C)No.30798 of 2018 :-18-:
pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter- affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.
18. In Abdul Kareem v. State of Kerala [2006 (2) KLT 408], this Court held that, any application filed under Order XLI, Rule 3A of the Code of Civil Procedure, 1908 for condonation of delay, when delay has occurred only because there was misplacing of file by the counsel, the application filed with an affidavit of the counsel is sufficient.
19. In Balakrishnan v. Geetha N.G.[2015 (1) KHC 775], in the context of Order IX, Rule 9 of the Code of Civil Procedure, 1908, a Division Bench of this Court held that, in a suit dismissed for W.P.(C)No.30798 of 2018 :-19-:
default, an application filed by the Advocate for restoration, supported by his affidavit, is legally permissible.
20. The principles laid down in the decisions of this Court in Abdul Kareem's case and Balakrishnan's case referred to supra can be extended when an application for restoration is filed in a writ petition dismissed for default or when an application for condonation of delay is filed in a writ appeal, when the delay has occurred only because there was some laches on the part of the Advocate. However, the affidavit in support of an interlocutory application filed in a writ petition for amendment of the facts pleaded in that writ petition or to substitute a document in support of the facts pleaded, should be that of the petitioner and not that of his Advocate.
21. Today, when the case is taken up for W.P.(C)No.30798 of 2018 :-20-:
further consideration, the learned counsel for the petitioner seeks permission to withdraw this writ petition, without prejudice to the right of the petitioner to move a fresh writ petition with proper cause title, legible documents, and proper reliefs.
22. As already noticed, despite the provisions under the Rules of the High Court of Kerala and also the law laid down by his Court in Sali Mohan's case (supra), the learned counsel for the petitioner has presented this writ petition before this Court with incorrect and incomplete address of respondents 1 to 3. Despite the order of this Court dated 25.09.2018, the learned counsel for the petitioner has not chosen to file a proper application to amend the cause title of this writ petition for incorporating the correct description and complete address of the respondents. Moreover, W.P.(C)No.30798 of 2018 :-21-:
contrary to the provisions under the Rules of the High Court of Kerala referred to hereinbefore, interlocutory applications have been filed, which are not supported by affidavits sworn to by the petitioner. In such circumstances, I deem it appropriate to impose a cost of Rs.5,000/- (Rupees Five thousand only) on the learned counsel for the petitioner for wasting judicial time of this Court.
23. In the result, this writ petition is dismissed as withdrawn, without prejudice to the right of the petitioner to move a fresh writ petition with proper cause title, legible documents, and proper reliefs; however on payment of a cost of Rs.5,000/- (Rupees Five thousand only) by the learned counsel for the petitioner to the Kerala State Legal Services Authority, an authority constituted under the Legal Services Authorities Act, 1987 providing free legal service to the W.P.(C)No.30798 of 2018 :-22-:
weaker sections of the society, within one week from the date of receipt of a certified copy of this judgment.
The Registry shall issue a copy of this judgment to the Member Secretary, Kerala State Legal Services Authority, Kochi.
Sd/-
ANIL K.NARENDRAN JUDGE ami/6.10.18 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 15.11.2013.
EXHIBIT P2 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 04.12.2017 ISSUED TO THE PETITIONER BY REGIONAL INSTITUTE OF OPHTHALMOLOGY, THIRUVANANTHAPURAM. EXHIBIT P3 TRUE COPY OF THE REPLY DATED 18.06.2018 GIVEN BY THE PUBLIC INFORMATION OFFICER OF THIRD RESPONDENT UNDER RIGHT TO INFORMATION ACT, 2005.
EXHIBIT P4 TRUE COPY OF LETTER ISSUED BY THE 3RD RESPONDENT DATED 16/06/2018.
W.P.(C)No.30798 of 2018 :-23-: EXHIBIT P5 TRUE COPY OF THE REPLY DATED 14.06.2018
GIVEN BY THE PUBLIC INFORMATION OFFICER OF THIRD RESPONDENT UNDER RIGHT TO INFORMATION ACT, 2005.
EXHIBIT P6 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 11/06/2015 OF SUB INSPECTOR OF POLICE.
//TRUE COPY// P.A.TO JUDGE ami/