Kerala High Court
Priya M vs State Of Krala on 4 November, 2020
Equivalent citations: AIRONLINE 2020 KER 770
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A. No. 1399/2020 : 1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942
WA.No.1399 OF 2020
AGAINST THE JUDGMENT DATED 17.09.2020 IN WP(C) 18006/2020(A) OF HIGH
COURT OF KERALA
APPELLANTS/PETITIONERS:
1 PRIYA M.
AGED 39 YEARS
W/O. ABILASH S., 51/568 PRIYA, ERACHIVAYAL ARAKKINAR POST
KOZHIKODE-673 028
2 RILSHYA O.M.
AGED 32 YEARS
W/O. RANJIT M., OTHOYOTHMEETHAL, KEEZHRIYOUR KOYILANDY
KOZHIKODE-673 307.
BY ADV. SRI.U.BALAGANGADHARAN
RESPONDENT/RESPONDENTS:
1 STATE OF KRALA
REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE SECRETARY
PERSONAL AND ADMINISTRATIVE REFORMS,
THIRUVANANTHAPURAM-695 001.
3 THE SECRETARY
HIGHER EDUCATION DEPARTMENT, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
W.A. No. 1399/2020 : 2:
4 THE SECRETARY
TECHNICAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAURAM-695 001.
5 THE BOARD OF PUBLIC EXAMINATIONS
OFFICE OF THE COMMISSIONER OF GOVT. EXAMINATIONS,
REPRESENTED BY ITS SECRETARY, PAREEKSHA BHAVAN,
THIRUVANANTHAPURAM-695 012.
SRI.TEK CHAND, SR. GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.11.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No. 1399/2020 : 3:
Dated this the 4th day of November, 2020.
JUDGMENT
SHAJI P. CHALY,J.
The above appeal is filed by the petitioners in W.P.(C) No.18006 of 2020 challenging the judgment of the learned single Judge dated 17.09.2020, whereby the writ petition was dismissed holding as follows at paragraphs 6 to 8:
"6. It is seen that Ext.P5 order incorporating Word processing as a qualification along with KGTE Typewriting Malayalam (Lower) was issued only on 09.11.2010, whereas the order Ext.P3 prescribing Ext.P4 syllabus was issued on 16.08.2001. From Ext.P5 order it can also be seen that pass in word Processing was prescribed as a qualification along with KGTE English Typewriting (Lower) much before Ext.P5 order was passed. Petitioners do not have a case that syllabus has been prescribed for Word Processing in English. No rule or order is brought to my notice, which shows that KGTE cannot be conducted without prescribing the syllabus as done in Exts.P3 or P4. Admittedly, the petitioners appeared in the examination in Word Processing. From Exts.P2 and P2(a), it is seen that they passed the examination along with English Typewriting and failed in the paper in Malayalam Typewriting examination. It is at that stage that they have approached this Court raising such contentions. When there is a separate paper in Word Processing as paper III and IV in the examination of W.A. No. 1399/2020 : 4: Malayalam Typewriting along with papers I and II, I am of the view that certificate need be issued only to those who passed all the papers.
7. It is relevant to note that petitioners themselves produced Ext.P10 judgment in Kerala Public Service Commission and Another v. Thirtha Thankakuttan and Others [2019 (1) KHC 163], where a similar contention raised by the similarly situated candidates was rejected. Though it was a case where the Public Service Commission did not accept the certificate without the results of Word Processing, that judgment would squarely apply in this case also.
8. It is also seen that as per Ext.P7 letter, the 5th respondent has already informed the Public Service Commission that pass in Word Processing is also necessary for issuing certificate of KGTE Malayalam Typewriting. In the above circumstances of the case, I do not find any substance in the contention of the petitioners that they should be given certificate on the basis of their marks in paper I and II of Malayalam Typewriting Lower Grade. Hence the petitioners do not deserve any relief in this writ petition.
Accordingly, the writ petition is dismissed."
It is thus challenging the legality and correctness of the judgment, this appeal is filed.
2. Material facts for the disposal of the appeal are as follows:
Appellants were the candidates in the short list published by the Kerala Public Service Commission for appointment as Lower Division W.A. No. 1399/2020 : 5: Typist (LD). One of the qualifications prescribed for appointment to the post was KGTE Typewriting (Lower) in Malayalam in accordance with the prescription contained under Ext.P8 Government Order dated 08.12.2004. At the time of verification of certificates, the candidates had produced the certificates in proof of their qualifications. According to the appellants, the Board of Examinations was not issuing certificates to the effect that they passed Paper I and II of the KGTE examinations and further that it refuses to issue the certificates on the ground that they have not passed the examination in Word Processing.
It is submitted by the appellants that, Exts.P2 and P2(a) mark lists issued to the appellants would show that they have appeared in the Kerala Government Technical Examination (KGTE) held in July, 2019, but they could not secure pass marks in the papers of Word Processing examination for Typewriting Malayalam (Lower). It was, accordingly, that the writ petition was filed seeking the following reliefs:
1. Issue a writ in the nature of mandamus commanding the 5th respondent to issue certificate in Malayalam Typewriting Lower to the petitioners pursuant to issue of Exts.P2 and P2(a).
2. Issue a writ in the nature of mandamus commanding the 5 th respondent to refrain from insisting for pass in Word Processing in Malayalam Typewriting lower for the issue of certificate in Malayalam Typewriting Lower Grade.
3. Issue a writ in the nature of mandamus commanding the 5th respondent not to refuse Certificate in Malayalam Typewriting Lower Grade to the W.A. No. 1399/2020 : 6: applicants relying in Ext.P5 order treating it as an unimplemented Policy decision
4. Declare that the test in word processing Malayalam is not forming part of Ext. P4 syllabus for issuing certificate in Malayalam Typewriting Lower Grade Examination.
3. The learned single Judge, after taking into account the factual and other legal situations, found that Ext.P5 order incorporating the qualification of 'Word Processing' along with KGTE Typewriting Malayalam (Lower) was issued only on 09.11.2010. Whereas, Ext.P3 order prescribing Ext.P4 syllabus was issued on 16.08.2001. Therefore, from Ext.P5 order, it could be seen that a pass in Word Processing was prescribed as a qualification along with KGTE English Typewriting (Lower) much before Ext.P5 order was passed. Anyhow, the learned single Judge found that the writ petitioners participated in the examination 'Word Processing' and it is evident from Exts.P2 and P2(a) that they passed the examination along with English Typewriting and failed in the paper "Malayalam Typewriting examination". It was also found that syllabus has been prescribed for word processing in English. It was, accordingly, found that having participated in the examination on the basis of the qualifications prescribed, the appellants were not at liberty to challenge the selection procedure in accordance with the qualifications prescribed.
W.A. No. 1399/2020 : 7:
4. We have heard Sri. U. Balagangadharan appeared for the appellants and learned Senior Government Pleader Sri. Tek Chand for the respondents.
5. The paramount contention advanced by the appellants is that the appellants are unable to pass Paper III Part I and II pertaining to the Computer Word Processing Malayalam and further that even though Malayalam Computer Word Processing was introduced as per Ext.P5 Government Order, no syllabus was prescribed. Therefore, the sum and substance of the contention is that Ext.P5 Government Order is only a decision of the Government in principal to introduce the same and unless and until Computer Word Processing in Malayalam is included in the syllabus and scheme of examination by amending Ext.P3 order of the Government of Kerala, Higher Education Department dated 16.08.2001, including Malayalam Computer Word Processing as a qualification, it is unfair and arbitrary to require the candidates to appear for the test and insist for a pass in the test to declare that they have acquired Malayalam Typewriting examination. Other contentions are also raised on the basis of the said averment. Anyhow, it is the admitted case of the appellants that they are not issued with certificates of KGTE Malayalam typewriting lower by the Board of Public Examinations, the 5th respondent as they have not W.A. No. 1399/2020 : 8: passed Part 1 and Part ll of Malayalam computer word processing. Therefore, it is clearly evident that, due to non production of certificates in Malayalam KGTE typewriting alone, the Public Service Commission disqualified the appellants and are not considered for the process of further selection.
6. The learned Senior Government Pleader, on the other hand, submitted that having participated in the selection process in question fully knowing the rules of the game, the appellants are not at liberty to turn around and attack the procedure/qualification prescribed to participate in the selection process, after they have failed to pass in the selection. Learned Government Pleader has also invited our attention to Ext.P10 judgment of a Division Bench of this Court in Kerala Public Service Commission and another v. Thirtha Thankakuttan and others (2019 (1) KHC 163) and submitted that similarly situated candidates have raised similar contentions in the said case and it was rejected by this Court. We find force in the said contention advanced by the learned Senior Government Pleader for the reasons stated hereunder.
7. Having evaluated the rival submissions made across the Bar, we are of the considered opinion that the learned single Judge has W.A. No. 1399/2020 : 9: considered the issues raised by the appellants, taking into account the Government Orders and the attendant legal and factual circumstances involved in the issues raised by the appellants. It was also clearly found by the learned single Judge that the Word Processing, as far as the KGTE Malayalam is concerned, has been made part of the KGTE as per Ext.P5 order. Whereas, in the case of English Typewriting, it has been separately given as Word Processing and the certificates can be given only if the writ petitioners passed the examination in Word Processing also. Moreover, without passing a qualifying test required under law, no writ could be issued to issue a pass certificate as is sought for. Therefore, we are of the clear opinion that the reliefs sought for were for doing an illegal act overlooking the Government orders in vogue. Assimilating the situations so, no mandamus could be issued as was prayed for in the writ petition, and accordingly we do not find any legal infirmity in the Judgment of the learned single Judge justifying interference in the appeal. That apart, having participated in the selection process fully knowing the qualifications required for the selection and having failed in the process cannot turn around and attack the procedure prescribed for selection, which is also a well settled position in law. A reference to some of the judgments of the Apex Court relevant to the context would make the situation more W.A. No. 1399/2020 : 10: clear. In G. Sarana v. University of Lucknow [1976 (3) SCC 585], the petitioner therein, after appearing for the interview to the post of Professor and having not been selected, challenged the selection process stating that the experts were biased. The Apex Court after considering the relevant issues held as follows at para 15:
"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in Manak Lal's case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:
"It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point."
8. In Madanlal v. State of J & K [(1995) 3 SCC 486], the challenge was in respect of the method of conducting viva voce test W.A. No. 1399/2020 : 11: after becoming unsuccessful in the selection process and held as follows at para 9:
"9. ........ Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted."
9. In Manish kumar Shahi v. State of Bihar [2010 (12) SCC 576], the challenge was in respect of the selection procedure after having failed to appear in the merit list and held as follows at para 16:
"16. ... Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2009) 4 SLR 272] did not commit any error by refusing to entertain the writ petition."W.A. No. 1399/2020 : 12:
10. In Ramesh Chandra Shah v. Anil Joshi [(2013) 11 SCC 309, which was a case in which the petitioners took part in the process of selection made under the General Rules and after participating in the interview and failing to be unsuccessful, challenged the method of recruitment itself. It was held as follows at para 24:
"24. In view of the propositions laid down in the abovenoted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or methodology adopted by the Board for making selection and the learned Single Judge [Anil Joshi v. State of Uttarakhand, 2012 SCC OnLine Utt 521] and the Division Bench [Ravi Shankar Joshi v. Anil Joshi, 2012 SCC OnLine Utt 766] of the High Court committed grave error by entertaining the grievance made by the respondents."
11. In D. Sarojkumari v. R. Helen Thilakom and others [(2017) 9 SCC 478], taking into account the proposition of law as discussed above, held that if a candidate participates in a selection process, he cannot subsequently turn around and question the selection process or constitution of selection committee only because he was not selected. That was a case where the High Court of Kerala W.A. No. 1399/2020 : 13: interfered with the selection process. However, reversing the finding, it was held that the petitioner was not at liberty to turn around and claim that the post could not have been filled up by direct recruitment. This being the legal position, we do not think that any interference is required to the judgment of the learned singnle Judge.
12. Even though various contentions are raised in the appeal, we do not think that the appellants have made out a material and objective case to arrive at a different conclusion than the one arrived at by the learned single Judge and therefore, we do not find any reason to interfere with the judgment of the learned single Judge, there being no error committed by the learned single Judge in exercising the discretion conferred under Article 226 of the Constitution of India, so as to entertain the intra court appeal filed under Section 5 of the Kerala High Court Act.
Needless to say, the writ appeal fails and accordingly, it is dismissed.
sd/- S. MANIKUMAR, CHIEF JUSTICE sd/- SHAJI P. CHALY, JUDGE.
Rv