Prasanth Rajan vs State Of Kerala on 12 August, 2020

[Cites 2, Cited by 1]

Kerala High Court

Prasanth Rajan vs State Of Kerala on 12 August, 2020

1. These writ petitions are with regard to the selection conducted to the post of Member, Kerala State Commission for Protection of Child Rights. The petitioners seek directions to the respondents to prepare a shortlist after considering the applications submitted by the petitioners as well.

2. The petitioner in W.P.(C).No.13167 of 2020 claims to have submitted his application in pursuance to Exhibit P1 notification dated 22.3.2020. It is submitted that Exhibit P3 bio-data and application form was submitted by the petitioner on 17.4.2020, while the last date for submission stood extended by Exhibit P2 to 21.4.2020. It is submitted that the 4th respondent has published the list of candidate shortlisted for the post by Exhibit P4. It is submitted by the petitioner that the petitioner was liable to be included in the shortlist and the preparation of shortlist without considering the better claim of the petitioner was completely illegal.

3. A statement has been filed on behalf of the 1 st respondent stating that the notification specifically stated that applications were to reach the Secretary to Government in the Social Justice WP(C).Nos.13167/2020 & 13906/2020 -: 12 :- Department of the Government of Kerala on or before 5:00 p.m. on 15.4.2020. It is further stated that owing to the pandemic and the lockdown, the last date fixed for receipt of applications was extended up to 21.4.2020. It is stated that the petitioner had submitted an application on 17.4.2020 along with the copies of proof of his date of birth, degree certificate and certificate of enrollment, but had not submitted any relevant documents or testimonials in support of the qualifications prescribed in Clause II(1) of Exhibit P1 notification. It is stated that the notification specifically provided that candidates should be persons of ability, integrity and should possess the minimum of 10 years of experience in any of the following areas, that is, education, child health, welfare or child development, juvenile justice or care of neglected or marginalized children or children with disabilities, elimination of child labour or children in distress, child psychology or sociology and laws relating to children. It is submitted that the notification specifically stated that the application should be accompanied by testimonials or certificates showing possession of the above qualifications by the applicants. It is stated that 102 applications were received by the 1st respondent by post or through e-mail and 46 candidates were shortlisted by the Commission. 41 persons were interviewed on 15.6.2020, 16.6.2020 and 17.6.2020 and a WP(C).Nos.13167/2020 & 13906/2020 -: 13 :- select list and a shortlist were prepared and duly published vide Ext.P4. It is stated that necessary statutory clearance from the Vigilance Department had been obtained for the select list prepared by the 1st respondent. It is stated that even going by the averments made in the I.A. filed by the petitioner producing Exhibit P5, it is clear that the supporting documents had been sent by post only on 20.4.2020 and were not received by the respondents as on the last date and time fixed for the receipt of such applications. Consequently, the petitioner's name had not been included in the shortlist for the reason that an application complete in all respects had not been received by the respondents as on the last date for submission of applications.

4. The learned counsel for the petitioner would submit that Exhibit P5 postal receipt would show that the supporting documents had been sent by speed post on 20.4.2020 and that an application sent by post should be presumed to have been filed within time. He places reliance on Section 27 of the General Clauses Act, 1897 in support of the contention.

5. I have considered the contentions advanced. It is not in dispute before me that the last date for submission of application was on WP(C).Nos.13167/2020 & 13906/2020 -: 14 :- 21.4.2020 at 5 p.m. Exhibit P1 notification specified that the application along with bio-data in prescribed proforma appended giving details of qualifications, age, experience etc. and copies of testimonials/documents should reach the respondent before the last date. Exhibit P3 application form would also show at Column 10 that where the candidate claimed experience in working for promotion of welfare of children, documents supporting the claim have to be attached with the application. Exhibit P3 is the application sent by the petitioner. It does not contain the testimonials on which the petitioner places reliance. I.A.No.1 of 2020 has been filed by the petitioner producing Exhibit P5 postal receipt to show that postal cover weighing 37 grams had been despatched by the petitioner to the Secretary, Social Justice Department of Government on 20.4.2020 at 10:45. The petitioner, therefore, has no case that his application was accompanied by the required documents or that a complete application had been received by the respondents on or before the last date fixed for acceptance of such applications. The provisions of Section 27 of the General Clauses Act, 1897 can have no application in the facts of this case since the application accompanied by the documents should have been received before 5 p.m. on 21.4.2020. In the absence of any such proper application having been received by the WP(C).Nos.13167/2020 & 13906/2020 -: 15 :- respondents in time, I am of the opinion that the prayers sought for in the writ petition cannot be granted.

6. The petitioner in W.P.(C).No.13906/2020 claims to be fully qualified and eligible and also contends that she had submitted application through e-mail to the 1st respondent. She contends that she is better qualified than many of the persons included in the shortlist and that as such, her application was liable to be considered by the respondents in accordance with law. It submitted that Exhibit P1 did not provide any e-mail address in which the applications could be sent. Exhibit P2 was a notice informing of the extension of the last date for submission of applications till 21.4.2020. It is stated that the said notice contain two websites in which further details could be obtained. It is submitted that the petitioner had sent her applications by email to the addresses available in the two websites and that the non-consideration of the same by the respondents was completely illegal.

7. A statement has been placed on record by the 1 st respondent. It is specifically stated therein that Exhibit P2 notice was followed by Exhibits R1(a) and R1(b) notices whereby candidates were directed to submit the application together with documents and testimonials WP(C).Nos.13167/2020 & 13906/2020 -: 16 :- at the Office of the 1st respondent or to the e-mail address of the 1 st respondent, that is,'[email protected]'. It is stated in paragraphs 10 to 13 and 18 in the statement as follows :-

"10. Petitioner contended that she had submitted Exhibit P5 application through email, before the 1st respondent. She further contends that she had obtained the email address of the 1st respondent, '[email protected]' from the web address, 'www.kerala.gov.in'. It is her further case that Exhibit P5 application was sent from the email address '[email protected]' and that she had produced Exhibit P4 to substantiate the same.

11. However, on perusal of Exhibit P4 it is seen that Exhibit P5 application was sent by the petitioner to the email address '[email protected]', instead of sending it to '[email protected]', which is the email address of the 1 st respondent. Therefore, Exhibit P5 application was not received by the 1st respondent and therefore her candidature was not considered by the Selection Committee.

12. The petitioner has chosen to file an affidavit on 14/07/2020, along with an application to accept additional documents, on record. It was contended by the petitioner that she had sent Exhibit P5 application, to the email address of the 1st respondent, viz., '[email protected]' from the email address, '[email protected]', on 20/04/2020. Exhibit P8 screen shot was also produced along with the said application, to substantiate the same.

13. It is respectfully submitted that petitioner ought to have forwarded her application together with the documents and testimonials in the email address of the 1 st respondent, namely, '[email protected]', as contemplated in Annexures R1(a) and R1(b). Instead, petitioner had forwarded her application to the email address, WP(C).Nos.13167/2020 & 13906/2020 -: 17 :- '[email protected]'. Petitioner could have submitted the same through post or through person, as well. xxxxx

18. Nevertheless, email id, [email protected] has been created now on 29/07/2020 and before 29/07/2020, there was no such email address was existing. It seems that the petitioner assumed the domain name 'kerala.gov.in', instead of 'gmail.com', without referring to the website of the Government of Kerala or Annexures R1(a) and R1(d) press release, where the email id, '[email protected]' was specifically given. Therefore, in the facts and circumstances of the ibid case, petitioner is not entitled for any of the reliefs, as sought for by her."

8. I have considered the contentions advanced on either side. I find that the petitioner had admittedly not forwarded an application with the required documents to the 1 st respondent through any means as provided. Though the petitioner contends that Exhibits R1(a) and R1(b) are only notices and newspaper reports which were omitted to be noticed by the petitioner, it is pertinent to note that Exhibit P2 extension of time for submission of applications was also issued only as a notice. The petitioner, who had time to submit applications till 21.4.2020 appears to have submitted the applications only through email and that too not in the IDs provided for receipt of such applications. The contention of the petitioner that her mail has not been returned to her and that, therefore, application should be considered as having been received by the respondents, cannot be accepted for the simple reason that no WP(C).Nos.13167/2020 & 13906/2020 -: 18 :- application had been sent to any of the addresses provided for the purpose in the notification and notices issued for the said purpose. Moreover, these writ petitions are filed only on 6.7.2020 and 8.7.2020 respectively, while the interview was concluded on 17.6.2020 and a select list had been prepared soon thereafter. In the absence of any valid application having been submitted by the petitioners before the respondents, I am of the opinion that the prayers sought for in these writ petitions cannot be granted. These writ petitions fail and the same are accordingly dismissed.

Sd/-

Anu Sivaraman, Judge sj WP(C).Nos.13167/2020 & 13906/2020 -: 19 :- APPENDIX OF WP(C)13167/2020 PETITIONER'S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE NOTICE NO. A2/76/2020/SJD DATED 22/03/2020 ISSUED BY THE FOURTH RESPONDENT.

EXHIBIT P2 THE TRUE COPY OF THE NOTICE NO. A2/76/2020/SJD DATED 03/04/2020 ISSUE BY THE FOURTH RESPONDENT EXTENDING THE PERIOD FOR SUBMISSION OF APPLICATIONS.

EXHIBIT P3 THE TRUE COPY OF THE BIO DATA/APPLICATION DATED 17/04/2020 FOR THE POST OF MEMBER, STAFF COMMISSION FOR PROTECTION OF CHILD RIGHTS, KERALA SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT ALONG WITH THE DOCUMENTS PRODUCED THEREWITH .

EXHIBIT P4 THE TRUE COPY OF THE LIST OF CANDIDATES SHORTLISTED FOR THE POST OF MEMBER, KESCPCR PUBLISHED BY THE FOURTH RESPONDENT.

EXHIBIT P5 THE TRUE COPY OF POSTAL RECEIPT DATED 20.04.2020.

//TRUE COPY// P.S. TO JUDGE WP(C).Nos.13167/2020 & 13906/2020 -: 20 :- APPENDIX OF WP(C)13906/2020 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE NOTICE NO.A2-76/2020/SJD DATED 22/03/2020 ISSUED BY THE FOURTH RESPONDENT THROUGH THE FIFTH RESPONDENT.

EXHIBIT P2 THE TRUE COPY OF THE NOTICE NO. A2/76/2020/SJD DATED 03/04/2020 ISSUED BY THE FOURTH RESPONDENT THROUGH THE FIFTH RESPONDENT EXTENDING THE PERIOD FOR SUBMISSION OF APPLICATIONS.

EXHIBIT P3 THE TRUE COPY OF THE WEB EXTRACT OF THE WEB ADDRESS WWW.KERALA.GOV.IN. FROM WHICH THE PETITIONER GOT THE EMAIL ADDRESS [email protected] OF THE FIFTH RESPONDENT.

EXHIBIT P4 THE TRUE COPY OF THE EMAIL SENT FROM THE EMAIL ADDRESS OF THE INTERNET CAFE OPERATOR HAVING EMAIL ADDRESS [email protected] ON BEHALF OF THE PETITIONER TO THE FOURTH RESPONDENT THROUGH THE FIFTH RESPONDENT, FORWARDED TO THE COUNSEL FOR THE PETITIONER.

EXHIBIT P5 THE TRUE COPY OF THE BIO DATA/APPLICATION DATED 17/04/2020 FOR THE POST OF MEMBER STAFF COMMISSION FOR PROTECTION OF CHILD RIGHTS, KERALA SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT THROUGH THE FIFTH RESPONDENT.

EXHIBIT P5(a) THE TRUE COPY OF THE FIRST PAGE OF THE SSLC BOOK OF THE PETITIONER.

EXHIBIT P5(b) THE TRUE COPY OF THE ENROLMENT CERTIFICATE DATED 04/05/2001 OF THE PETITIONER BEARING ROLL NO. K/1531/2000.

EXHIBIT P5(c) THE TRUE COPY OF THE LLB CERTIFICATE OF THE PETITIONER AWARDED BY UNIVERSITY OF PUNE.

EXHIBIT P5(d) THE TRUE COPY OF THE BACHELOR OF ARTS HISTORY DEGREE CERTIFICATE AWARDED BY THE MAHATMA GANDHI UNIVERSITY TO THE PETITIONER.

EXHIBIT P5(e) THE TRUE COPY OF THE SIX MONTH COUNSELLING COURSE CERTIFICATE AWARDED BY THE MAHATMA GANDHI UNIVERSITY TO THE PETITIONER.

WP(C).Nos.13167/2020 & 13906/2020 -: 21 :- EXHIBIT P5(f) THE TRUE COPY OF THE PARTICIPATION CERTIFICATE IN COURSE ON FINANCIAL MANAGEMENT FOR PRI'S ISSUED BY THE NATIONAL INSTITUTE OF RURAL DEVELOPMENT TO THE PETITIONER.

EXHIBIT P5(g) THE TRUE COPY OF THE CERTIFICATE OF PARTICIPATION IN WORKSHOP ON NEURO LINGUISTIC PROGRAMMING (NLP) LEVEL 1 ISSUED BY DR. PAUL THOMAS, INTERNATIONAL MIND'S EYE CONSULTANCY INTERNATIONAL TO THE PETITIONER.

EXHIBIT P5(h) THE TRUE COPY OF THE CERTIFICATE OF PARTICIPATION IN SENSITIZATION PROGRAMME ON JUVENILE JUSTICE (CARE AND PROTECTION) ACT, 2000 AND ITS AMENDMENT ISSUED BY THE NATIONAL INSTITUTE OF PUBLIC COOPERATION AND CHILD DEVELOPMENT TO THE PETITIONER.

EXHIBIT P5(i) THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE INTER UNIVERSITY CENTER FOR SOCIAL SCIENCE RESEARCH AND EXTENSION, MAHATMA GANDHI UNIVERSITY AND KERALA GRAMA PANCHAYAT ASSOCIATION TO THE PETITIONER FOR HER PARTICIPATION AS THE RESOURCE PERSON IN A WORKSHOP ON WOMEN AND SOCIAL JUSTICE PANCHAYAT JAGRATASAMITIS, EXHIBIT P5(j) THE TRUE COPY OF THE CERTIFICATE OF PARTICIPATION IN STATE LEVEL INDUCTION TRAINING ON JUVENILE JUSTICE ACT AND MODEL RULES 2007 ISSUED BY THE SOCIAL WELFARE DEPARTMENT, GOVERNMENT OF KERALA.

EXHIBIT P5(k) THE TRUE COPY OF THE DEGREE OF MASTER OF SOCIAL WORK AWARDED TO THE PETITIONER BY THE ANNAMALAI UNIVERSITY.

EXHIBIT P5(l) THE TRUE COPY OF THE DEGREE OF MASTER OF LAWS AWARDED TO THE PETITIONER BY THE UNIVERSITY OF PUNE.

EXHIBIT P5(m) THE TRUE COPY OF THE DEGREE OF MASTER OF ARTS IN PHILOSOPHY AWARDED TO THE PETITIONER BY THE UNIVERSITY OF PUNE.

EXHIBIT P5(n) THE TRUE COPY OF THE DUTY CERTIFICATE ISSUED BY THE ST. JOHN OF GOD SHELTER HOME.

EXHIBIT P5(o) THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE INTER UNIVERSITY CENTER FOR SOCIAL SCIENCE WP(C).Nos.13167/2020 & 13906/2020 -: 22 :- RESEARCH AND EXTENSION, MAHATMA GANDHI UNIVERSITY AND KERALA GRAMA PANCHAYAT ASSOCIATION TO THE PETITIONER FOR HER PARTICIPATION IN WORKSHOP ON GENDER AND DEVELOPMENT ORIENTATION.

EXHIBIT P5(p) THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE JAGRATHA SAMITHI, KUMILY GRAMA PANCHAYAT CERTIFYING THE PETITIONER'S INVOLVEMENT AS AN ADVOCATE AND SOCIAL WORKER FOR THE JAGRATHA SAMITHI, KUMILY GRAMA PANCHAYAT (WOMEN AND CHILD RIGHTS COMMISSION).

EXHIBIT P5(q) THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY, IDUKKI DISTRICT PANCHAYAT CERTIFYING THAT THE PETITIONERS WORK EXPERIENCE IN THE FIELD OF CHILD WELFARE.

EXHIBIT P5(r) THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY, KUMILY GRAMA PANCHAYAT CERTIFYING THAT THE PETITIONER HAS BEEN WORKING AS MEMBER (COUNSELLOR AND LEGAL ADVISOR) OF JAGRATHA SAMITHI, KUMILY GRAMA PANCHAYAT FOR PROTECTION OF RIGHTS OF WOMEN AND CHILDREN UNDER KERALA STATE VANITHA COMMISSION SINCE 2018.

EXHIBIT P5(s) THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY, CHAKKUPALAM GRAMA PANCHAYAT CERTIFYING THAT THE PETITIONER HAS BEEN WORKING AS MEMBER (COUNSELLOR AND LEGAL ADVISOR) OF JAGRATHA SAMITHI, CHAKKUPALAM GRAMA PANCHAYAT FOR PROTECTION OF RIGHTS OF WOMEN AND CHILDREN UNDER KERALA STATE VANITHA COMMISSION SINCE 2018.

EXHIBIT P5(t) THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE VOLUNTARY, ORGANISATION FOR SOCIAL ACTION AND RURAL DEVELOPMENT CERTIFYING THAT THE PETITIONER HAS BEEN WORKING AS LEGAL COUNSELLOR OF THE SERVICE PROVIDING CENTER FOR PROTECTION OF THE RIGHTS OF WOMEN AND CHILDREN UNDER DOMESTIC VIOLENCE ACT, 2005.

EXHIBIT P5(u) THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE BAR ASSOCIATION, PEERMADE CERTIFYING THAT THE PETITIONER HAS BEEN ACTIVELY PRACTICING IN THE COURTS AT PEERMADE SINCE THE YEAR 2000.

EXHIBIT P5(v) THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE, PEERMADE CERTIFYING THAT THE PETITIONER HAS BEEN ACTIVELY PRACTICING IN THE COURTS AT PEERMADE FOR 20 YEARS.

WP(C).Nos.13167/2020 & 13906/2020 -: 23 :- EXHIBIT P5(w) THE TRUE COPY OF THE NOTIFICATION GO(P) NO.19/2009/SWD DATED 24/04/2009 CONSTITUTING JUVENILE JUSTICE BOARD FOR ALL DISTRICTS IN WHICH THE PETITIONER HAS BEEN INCLUDED AS MEMBER OF JUVENILE JUSTICE BOARD FOR IDUKKI DISTRICT.

EXHIBIT P6 THE TRUE COPY OF THE LIST OF CANDIDATES SHORTLISTED FOR THE POST OF MEMBER, KESCPCR PUBLISHED BY THE FOURTH RESPONDENT.

EXHIBIT P7 TRUE COPY OF EMAIL SENT FROM THE EMAIL ADDRESS OF THE INTERNET CAFE OPERATOR HAVING EMAIL ADDRESS '[email protected]' ON BEHALF OF THE PETITIONER TO THE FOURTH RESPONDENT THROUGH THE FIFTH RESPONDENT AND ONE RAGHU RAM.

EXHIBIT P8 TRUE COPY OF EMAIL FORWARDED FROM THE EMAIL ADDRESS OF THE RAGHU RAM HAVING EMAIL ADDRESS '[email protected]' ON BEHALF OF THE PETITIONER TO THE FOURTH RESPONDENT THROUGH THE SECOND RESPONDENT IN THE EMAIL ADDRESS "[email protected]"

EXHIBIT P9 TRUE COPY OF PRINTOUT OF THE WEBSITE "www.kescpcr.kerala.gov.in"

EXHIBIT P10 TRUE COPY OF EMAIL FORWARDED FROM THE EMAIL ADDRESS OF THE RAGHU RAM HAVING EMAIL ADDRESS '[email protected]' ON BEHALF OF THE PETITIONER TO THE FOURTH RESPONDENT THROUGH THE FIFTH RESPONDENT IN THE EMAIL ADDRESS '[email protected]"

EXHIBIT P11 TRUE COPY OF G.O.(MS)No.13/2005/ITD DATED 21/03/2005 OF THE GOVERNMENT OF KERALA EXHIBIT P12 TRUE COPY OF PRINTOUT OF THE DETAILS OF SECRETARIES OF THE GOVERNMENT OBTAINED FROM THE WEBSITE "kerala.gov.in"

//TRUE COPY// P.S. TO JUDGE

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