Kerala High Court
Kerala Public Service Commission vs Letha.S
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939
OP(KAT).No. 94 of 2017 (Z)
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AGAINST THE ORDER/JUDGMENT IN OA(EKM) 1474/2016 of KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS:
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1. KERALA PUBLIC SERVICE COMMISSION
THULASI HILLS, PATTOM,
P.O.THIRUVANANTHAPURAM, KERALA,
695 004, REPRESENTED BY THE SECRETARY.
2. THE DISTRICT OFFICER
KERALA PUBLIC SERVICE COMMISSION,
DISTRICT OFFICE, ANDAMUKKU
KOLLAM, KERALA 691 001.
BYADV. SRI.P.C.SASIDHARAN, SC, KPSC
RESPONDENT/APPLICANT:
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LETHA.S
D/O.SUNDARAN,
VAZHAPAZHATHI VEEDU, ARAYOOR,
THIRUVANANTHAPURAM, KERALA 695 122.
R. BYADV. SRI.K.R.AVINASH (KUNNATH)
R. BYADV. SRI.ABDUL RAOOF PALLIPATH
THIS OP KERALAADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 30-06-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT).No. 94 of 2017 (Z)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE OA.(EKM) NO.1474/2016 WITH ANNEXURES
EXHIBIT P2 TRUE COPY OF ORDER DATED 5/12/2016 IN OA(EKM) 1474/2016
EXHIBIT P3 TRUE COPY OF UNDERTAKING GIVEN BY THE RESPONDENT
RESPONDENT(S)' EXHIBITS
----------------------- NIL
TRUE COPY
P.A TO JUDGE
SMM
P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.
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OP(KAT) No.94 of 2017
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Dated this the 30th day of June, 2017
JUDGMENT
P.R. Ramachandra Menon, J.
Correctness and sustainability of Ext.P2 order passed by the Tribunal directing the petitioner/PSC to include the name of the applicant who belongs to SIUC Nadar Community, as a candidate belonging to that category eligible for getting the benefit of reservation under the OBC category at an appropriate place in the rank list published on 30.6.2015 is under challenge, at the instance of the PSC. The main ground of challenge is that the said direction is contrary to the relevant provisions of law and further it was not maintainable by virtue of the bar of limitation.
2. Heard the learned Standing Counsel appearing for the PSC as well as the learned Counsel appearing for the respondents.
OP(KAT) No.94 of 2017 2
3. The sequence of events revealed from the proceedings is that a notification was issued by the PSC for selection of the last grade servants in respect of filling up of vacancies in various departments on 31.12.2013 prescribing 6.2.2014 as the last date for submitting the applications. On getting the applications and conducting the scrutiny, the test was conducted and after completing the process of selection, the rank list was published on 30.6.2015, wherein the applicant was listed as Serial No.992, as a 'general candidate'. The applicant, though claimed the benefit of OBC status in the application, admittedly could not produce the Non- Creamy Layer certificate on the date fixed for verification of certificates. According to her, the authorities of the PSC in the said circumstances had asked her to submit an undertaking or request to treat her as a general candidate, which was acceded to as borne by Ext.P3 OP(KAT) No.94 of 2017 3 produced by the petitioner PSC along with the Original Petition. It is also admitted that the Non-Crhamy Layer certificate was produced by the applicant only on 2.7.2015, but, by that time, the PSC had already finalised the proceedings and published the rank list on 30.6.2015 without giving the benefit of OBC status and as a member of the Non-Crhamy layer to the applicant, which made her to approach the Tribunal with the following prayers "i) direct the respondents to include the petitioner in the rank list in the category of SIUC Xian Nadar under OBC.
ii) grant such other relief's as this Hon'ble Tribunal may deem fit and proper as on the facts and circumstances of the case.
4. The claim was resisted from the part of the PSC. However, after hearing both the sides, the Tribunal, as per Ext.P2, held that the applicant was contesting for the post of last grade employee and that OP(KAT) No.94 of 2017 4 the non-production of the Non-Crhamy Layer certificate on the date fixed for verification could not be fatal, in so far as the PSC could extend the time enabling the applicant to produce the said certificate and to extend the benefit of reservation in the OBC category. It was also made a mention that, accepting the version of the applicant, a letter was obtained by the PSC to have her included in the 'general category' because of the non-production of the Non-Crhamy Layer certificate. According to the Tribunal, it was a matter which was to be considered in sympathy; the claim being for the post of 'last grade servant'. It was accordingly, that the OA was allowed and the PSC was directed to include the name of the applicant in Annexure A7 rank list giving her the benefit of 'SIUC Nadar Community', which in turn is under challenge.
5. During the course of hearing, the learned OP(KAT) No.94 of 2017 5 standing Counsel for the PSC submits that the direction given by the Tribunal is quite contrary to the mandate of the statute in so far as it contravenes the specific provision under Rule 17 C of Part II of K.S. & S.S.R . The said rules read as follows:-
"17C. The candidate claiming the benefit of age relaxation/reservation in appointments/special recruitments by virtue of being a member of the Backward Classes/Scheduled Castes/Scheduled Tribes as provided for in sub-rules ), (d) and (dd) of rule 10, rule 14, rule 17A and rule 17B ibid shall produce to the satisfaction of the Kerala Public Service Commission, certificates/relevant documents as required by them, to prove the claim in the application and in any case, before the finalization of the ranked list for the post concerned."
6. From the above, it is quite clear that even if it is possible to have the Non-Crhamy Layer certificate produced for verification within the extended time, it ought to have been submitted before finalising the rank list. In other words, in view of the specific bar under the Statute, no claim could be entertained to give the OP(KAT) No.94 of 2017 6 benefit of reservation under the said head, once the rank list was published. This vital aspect was omitted to be noted by the Tribunal.
7. Yet another aspect to be noted is that, the PSC had made it clear in the notification that the certificates had to be produced well within the time limit. Reference is also made to 14 of the General Conditions of the Notification as extracted in 'Ground E', which is reproduced below for convenience of reference:
"Documents in proof of prescribed educational qualifications, date of birth, community, experience etc shall be produced at the time of interview or at any time as required by the Commission. Those who fail to produce the original documents as required above will not be interviewed/included in the Ranked List as the case may be. No extension of time will be allowed for the production of any documents. The applications of those candidates who have claimed the benefit of community in the application but not proved by proper proof will not be rejected for that reason only. Such applications will be considered for selection without giving the benefit of community, if the application is otherwise in order." OP(KAT) No.94 of 2017 7
8. This being the position, the applicant was well informed as to the requirement to have produced the certificate, if it was to be relied on, claiming the benefit of reservation under the OBC category. Despite this, no steps were taken by the applicant to have the certificate obtained and produced well on time. The necessity to produce the certificate did not come as a 'bolt from the blue'. The failure in this regard is quite evident, as the applicant has admitted that such a certificate was procured and produced only on 2.7.2015; ie after publication of the rank list on 30.6.2015.
9. It is also relevant to note that the applicant approached the Tribunal, by fling the OA only on 4.10.2016, ie; after expiry of about 1 year and 4 months. By that time, the cause of action itself had become stale. OA could have been held as maintainable only if the cause of action was within 1 year as OP(KAT) No.94 of 2017 8 stipulated in the Act/Rules; except in cases where the delay is explained and condoned by the Tribunal. For this reason as well, interference ought not to have been made by the Tribunal. The challenge under similar circumstances had come up for consideration before this Court earlier; with reference to the mandate of Rule 17C of the Part II of the K.S. & S.S.R in Writ Appeal No.1552/2012. As per the judgment dated 23.1.2013, the Bench declared the law against the persons like the applicant herein. The relevant provision as contained in 'paragraph 6' of the said verdict is extracted below:-
"6. Reading of the above Rule clearly indicates that paragraphs 4 and 5 of the counter affidavit of the Commission were referring to this Rule 17C. It at all there were applications along with documents submitted prior to Exhibit.P2 series, it was the duty of the writ petitioners to plead so. There is no such plea in the entire writ petition and none of the documents produced by them would even give a clue to such stand of the writ petitioners/respondents before us. The very certificates are dated 27.5.2000, OP(KAT) No.94 of 2017 9 06.06.2000, 09.06.2000 and 14.7.2000 and the rank list came to be published on 11.5.2000. Those who complied with Rule 17C were considered by the Commission and in the exercise fixing seniority, they have placed those candidates against the positions they deserve to occupy. Those who failed to produce the documents as required under the Rule were considered against the 'Open Competition' category and depending upon the ranks they were placed against those positions. In that view of the matter, now, it is not open to the writ petitioners to complain that they ought to have been placed at their respective places following the roster against reserve category and not in general category"
We do not find any reason to differ.
10. The learned counsel for the respondent however sought to place reliance on the verdict rendered by a Division Bench of this Court in Union of India v Abdul Rasheed [2016 (3) KLT SN 11 (Case No.
102)], to contend that the delay in production of the community certificate claiming the benefit of reservation is not fatal. We have gone through the said verdict as OP(KAT) No.94 of 2017 10 well. Obviously, this is in respect of the service under the Central Government, which is governed by separate set of rules. The scope of Rule 17C of Part II of the K.S. & S.S.R was never under consideration in that case. In so far as the service under the Kerala Government is concerned and since there is no challenge against Rule 17C Part II of the K.S. & S.S.R in the instant case, the said decision does not come to the rescue of the petitioner/applicant in any manner.
11. In the above circumstance, we are of the view that, the sympathy ordered to be extended by the Tribunal as per Exhibit.P2 order is nothing but a misplaced sympathy. As held by the Apex Court 'misplaced sympathy' is an evil, which may quite adversely affect the rights and interests of several other persons as well. As it stands so, we do not require any second thought to hold that Ext.P2 is liable to be OP(KAT) No.94 of 2017 11 interdicted and we do so. Ext.P2 is set aside and the Original Petition stands allowed.
P.R. RAMACHANDRA MENON JUDGE SHIRCY.V JUDGE smm