Kerala High Court
Shameera I vs The Kerala Public Service Commission on 13 November, 2015
Author: P.R. Ramachandra Menon
Bench: P.R. Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.R. RAMACHANDRA MENON
&
THE HONOURABLE MR.JUSTICE P.SOMARAJAN
TUESDAY, THE 1ST DAY OF NOVEMBER 2016/10TH KARTHIKA, 1938
OP(KAT).No. 117 of 2016 (Z)
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(AGAINST THE ORDER IN OA(EKM)No. 875/2015 of KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 13-11-2015
PETITIONER/APPLICANT:
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SHAMEERA I
D/O.ISMAIL, NANDANKIZHAYA HOUSE, ANAMARI P.O,
PALAKKAD 678 506.
BY ADVS.SRI.P.R.VENKETESH
SRI.G.KEERTHIVAS
RESPONDENT/RESPONDENT:
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THE KERALA PUBLIC SERVICE COMMISSION
PATTOM, REPRESENTED BY ITS SECRETARY,
THIRUVANANTHAPURAM 695 033.
BY SRI.P.C.SASIDHARAN, SC, KPSC
THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY
HEARD ON 13.10.2016, THE COURT ON 01-11-2016 DELIVERED THE FOLLOWING:
OP(KAT).No. 117 of 2016 (Z)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1. COPY OF THE ORIGINAL APPLICATION OA[EKM] NO.875/2015
FILED BY THE PETITIONER.
EXHIBIT P2. COPY OF THE ORDER DATED 13.11.15 IN OA [EKM[ NO.875/2015
BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL AT
THIRUVANANTHAPURAM.
RESPONDENT(S)' EXHIBITS : NIL
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/TRUE COPY/
P.S. TO JUDGE
(CR)
P.R. RAMACHANDRA MENON
&
P. SOMARAJAN, JJ.
..............................................................................
O.P.(KAT)No.117 of 2016
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Dated this the 1st November, 2016
JUDGMENT
P.R. Ramachandra Menon, J.
Applicant in O.A.875 of 2015 is the petitioner in this case. Grievance is against the dismissal of the O.A., whereby the claim to award "Sports weightage marks" to the applicant based on her credentials as per Annexure-A3 Sports Certificate came to be rejected, placing reliance on the verdict passed by a learned Single Judge of this Court in Binukumar K.R. vs. Kerala Public Service Commission [2010 (1) KHC 714 = 2010 (1) KLT 1024] for having not raised any such claim in the application.
2. Heard the learned counsel for the petitioner as well as the learned Standing Counsel for the PSC at length.
3. Pursuant to a Notification issued by the respondent PSC published in the State Gazette dated 31.07.2013, inviting applications for selection and appointment to the post of Lower Division Clerks in various Departments in Palakkad district, the O.P.(KAT)No.117 of 2016 2 petitioner submitted Annexure A1 application and participated in the process of selection. The written examination was conducted on 08.02.2014 and thereafter, verification of the certificates was effected as borne by Annexure A4. In the course of such verification, the petitioner produced the relevant certificate (Annexure A3) showing that she had participated in the Ball Badminton 'Under 19' category in the XLVII Kerala State School Games, Wresting and Atheletic Championship held at Kannur from 05.12.2003 to 10.12.2003, securing the 'Runners up' position. By virtue of such certificate, she was entitled to have 'weightage marks' and was eligible to occupy a higher pedestal in the rank list.
4. The claim of the petitioner was not considered and the rank list was published by the PSC as borne by Annexure A7, wherein the petitioner was assigned the rank at 'Sl.No.921', showing the total marks scored by her as 63.6700. It is pointed out that the grievance projected by the petitioner before the PSC, through the Hon'ble Chief Minister, under the 'Sutharya Keralam' O.P.(KAT)No.117 of 2016 3 programme had been rejected as per Annexure A8 dated 28.05.2015 issued by the PSC, to the effect that the last date for submitting the application was on 04.09.2013 and that any claim, not raised in the application was not liable to be considered under any circumstance. This was sought to be challenged by filing the O.A. before the Tribunal with the following prayers:
"a) Call for the records leading to Annexure A8 and set aside the same;
b) Declare that the applicant is entitled for the sports weightage mark claimed by her to be added to her total mark and consequently for higher rank in the final list prepared by the respondent;
c) Direct the respondent to award the applicant the due sports weightage claimed and add to her total mark and give her eligible rank according to the marks; and
d) issue such other appropriate writ order or direction as this Hon'ble Court may deem fit in the circumstances of the case
5. The claim was resisted from the part of the PSC pointing out that no 'Sports weightage marks' were ever claimed by the applicant, as discernible from Annexure A1 application itself where the answer given in the relevant column was an emphatic O.P.(KAT)No.117 of 2016 4 'No'. According to the PSC, it was never a question of 'defect' to be cured invoking the power under the relevant provisions of the procedural rules and that exactly similar issue had already been considered by a learned Judge of this Court as per the decision reported in Binukumar's case (cited supra). It was placing reliance on said factual aspects and the law declared by this Court, that interference was declined and O.A. was dismissed as per Ext.P2 order, which requires no interference, submitted the learned Standing Counsel.
6. The learned counsel for the petitioner submitted that the idea and understanding of the PSC as to the provision of law and also as to the scope of the verdict passed by this Court in Binukumar's case (cited supra) was thoroughly wrong and misconceived. It is pointed out that the bar is only in respect of entertaining any claim based on production of such certificate at any 'post verification stage'; whereas in the instant case, the certificates were uploaded as borne by Annexure-A4 dated 09.12.2014; i.e., at the time of verification itself and not after the O.P.(KAT)No.117 of 2016 5 stage of verification, by virtue of which those were liable to be acted upon and hence that there was absolutely no rhyme or reason for having denied the Sports Weightage marks. An opportunity ought to have been given to have the same reckoned, denial of which has resulted substantial prejudice to the petitioner, submitted the learned counsel.
7. The contention is that, in so far as there is no dispute as to the participation in the sports event, which was substantiated by producing the relevant certificate and verified in the due course, the PSC ought to have awarded 'weightage marks' which would have pushed the position of the petitioner much upwards in Annexure A7 Rank list. This aspect was not properly appreciated by the Tribunal and hence the challenge. Reliance is also sought to be placed on the verdict passed by a Single Bench of this Court in Manoj Kumar vs. KPSC [1999 KHC 372 (= 1999 (2) KLT 534)] and that of a Division Bench reported in [2012 (1) KLT 425] Shaila vs. Kerala Public Service Commission, which is to the effect there shall not be rejection O.P.(KAT)No.117 of 2016 6 of valid claim of the applicant for 'hyper technical' reasons and further that the PSC is having ample power to rectify minor defects. A distinction was also sought to be drawn with the law declared by a Division Bench of this Court in Sasikala T.V. vs. Kerala Public Service Commission and another [2012 (2 ) KHC 441 = 2012 (2)KLT 585], pointing out that the 'defect' involved in the said case was with regard to the failure to record the name of the applicant and the date on which the photograph was taken, in contravention of the stipulation in the notification, which was not a minor defect and hence not curable; whereas in the instant case, it was only a minor defect.
8. The point considered by the learned Judge of this Court in Manoj Kumar vs. KPSC [1999 KHC 372 = 1999 (2) KLT 534], of course, speaks about the power of the PSC to permit the 'minor defects' to be cured. That was a case where the selection involved was to the post of Asst. Motor Vehicles Inspector. As per Clause 17 of Ext.P1 notification therein, the PSC reserved right to reject the defective applications. However, O.P.(KAT)No.117 of 2016 7 in the said case , the PSC had allowed as many as 300 persons ranked above the petitioner therein to cure the defects in their applications and the rank list was finalised accordingly. This was challenged by the petitioner therein, contending that all such persons were liable to be excluded from the list, their applications being defective, invoking the power under Clause 17 of Ext.P1 notification. The learned Single Judge held that the PSC, of course, was having power to have the defective applications rejected, but there was nothing wrong on the part of the PSC in having taken a policy decision, considering the nature and circumstances of the defects involved, to grant an opportunity to all candidates who had submitted defective applications, to have the defects rectified. Since no one was discriminated in this regard, it was held that the PSC had acted only in fairness and as such, the challenge raised was repelled and the Original Petition was dismissed. The said decision does not support the case of the petitioner in any manner.
9. In 2012 (1) KLT 425 (cited supra), the question O.P.(KAT)No.117 of 2016 8 considered was whether the application of a Muslim candidate can be rejected on the ground that she had used the application form prescribed for SC/ST candidates, with lesser application form fees. In respect of the general candidates, the application form was of the cost of Rs.10/-; whereas in the case of SC/ST candidates, it was of Rs.5/- The challenge raised against rejection of the application was upheld by the learned single Judge. But the Division Bench observed, in appeal, that no candidates seeking employment will deliberately try to save Rs.5 and stake the future; and further that it was not known whether it was the post office which committed the mistake in giving the form which was valued Rs.5/-, as against the form applicable to general candidates costing Rs.10/-. It was also observed that the appellant was a candidate enjoying preference in selection through reservation, and that she would have been led to believe that 'Rs.5/- application form' applied for all candidates having preference of reservation. It was accordingly, that the writ appeal was allowed on equitable grounds, reversing the verdict O.P.(KAT)No.117 of 2016 9 passed by the learned single Judge in 2012 (1) KLT 43 and directing the PSC to appoint the appellant in the next vacancy in the Merit quota or in the next Muslim quota, whichever was earlier. No general declaration of law is there in the said case and it has to be read and understood in the light of the given facts and circumstances, which position is not applicable to the case in hand.
10. In Shaiji Cherukkattil v. Kerala Public Service Commission and another [2010 (4) KHC 805], the question that arose for consideration was whether a candidate otherwise eligible for communal reservation, marking the answer as 'No' in respect of the query regarding the eligibility, would be entitled to have the said entry corrected, either with reference to Rule 40 of the Public Service Commission Rules of Procedure, 1976 (Kerala) or with reference to Clause/condition 17 and 18 of the General Conditions forming part of the selection Notification. Reference was also made to the judgment passed by another learned Judge of this Court in Manoj Kumar vs KPSC [1999 (2) KLT 534] O.P.(KAT)No.117 of 2016 10 and various other decisions as well. The learned Judge observed that the PSC may have a wide discretion, but that is not a ground to call for interference by the Court, unless the power was exercised by the PSC in a mechanical or arbitrary manner. It was accordingly, that the question was answered in the 'negative' and the writ petition was dismissed .
11. In Binukumar vs. K.P.S.C and others ( relied on by the Tribunal in Ext.P2 Order for dismissing the O.A.)., the factual position was exactly similar. The candidate therein, who had applied for selection to the post of Excise Guard against a vacancy in Palakkad district, had omitted to claim any weightage based on his achievement in Sports. After publication of the rank list, the said petitioner put up a claim that he was entitled to have weightage. But the same was dismissed by the PSC for not having raised any such claim in the application. This made the petitioner to approach this Court by filing the writ petition stating that the PSC was having ample power to correct the mistake, invoking the discretion under Rule 15A of the Kerala Public O.P.(KAT)No.117 of 2016 11 Service Commission Rules of Procedure, 1976 (Kerala). After detailed deliberations with reference to the relevant provisions of law and also the judicial precedents, it was held by a learned Judge of this Court that the PSC was having power to correct minor mistakes, but the power conferred under Rule 15A of the Kerala Public Service Commission Rules of Procedure, 1976 (Kerala) to correct any clerical, typographical, arithmetical or other mistakes in the rank lists, advice lists or short lists etc or errors arising therein from any accidental slip or omission at any time either on its own motion or on the application of any of the parties concerned, cannot come to the rescue of the petitioner to award 'weightage marks' for the Sports achievements, which was never claimed in the application. The challenge was repelled and the writ petition was dismissed, which hence has been relied on by the Tribunal.
12. As discussed already, the case considered by the Division Bench in Sasikala T.V. vs. Kerala Public Service Commission and another [2012 (2)KHC 441 (=2012 (2) KLT O.P.(KAT)No.117 of 2016 12
585)] was a case where the petitioner had omitted to record her name and the date on which the photograph was taken, which admittedly was in contravention of the stipulation in the notification concerned. The Bench categorically held that, it was not a minor defect which could be sought to be rectified and that rejection of the application by the PSC was proper, warranting no interference. The said ruling was relied on by a learned Judge of this Court in the subsequent decision in Radhakrishnan C vs. Kerala Public Service Commission and others [2013 (2) KLT 867]. The verdict passed by the learned single Judge in Binukumar's case (2010 (1) KLT 1024) was also considered therein and it was held that the power under Rule 15A of the Public Service Commission Rules of Procedure, 1976 (Kerala) had no application to the case in hand, for causing the defect (as to the failure to show the date of photograph in the application, while submitting the on-line application) to be cured, thus dismissing the writ petition as devoid of any merit.
13. Coming to the factual position in the instant case, O.P.(KAT)No.117 of 2016 13 when the petitioner projects the case as one involving a 'minor defect', it remains an admitted fact, as discernible from Grounds 'C' and 'D' of the Original Petition that there was an inadvertent mistake on her side while uploading the details in the application, adding that the petitioner was not conversant with the computer and internet. It has been conceded in Ground 'D', that the claim was inadvertently omitted to be incorporated in the on-line application . The factual position is crystal-clear from Annexure A1 application, wherein there was a separate column/specific question; whether the applicant was claiming any weightage (Sports, NCC, Ex-service etc) which was answered by the petitioner in the 'Negative'. This was pursuant to a conscious decision taken by the applicant and it was never a defect at all . The present attempt of the petitioner is only to substitute the answer 'No' by 'Yes'. If the claim put forth is entertained at this stage i.e., after finalising the rank list vide Annexure A7, it will unsettle the settled rights. This Court is of the view that no mistake has been committed by the PSC, nor is it a case of any O.P.(KAT)No.117 of 2016 14 minor defect, to be permitted to be cured/corrected; which on the other hand will unsettle the rank list and hence is a major omission/major defect. There is no vested right for the petitioner to have the reliefs sought for and none of the grounds raised does come to her support in this regard. The Original Petition fails and the same is dismissed accordingly.
P.R. RAMACHANDRA MENON, JUDGE P. SOMARAJAN, JUDGE lk