Dismissed

The Kerala Public Service Commission v. Rajan Kr

Kerala HC19 Jul 2016OP(KAT)/374/2015

Case brief

AI extract

What is this about?

The Public Service Commission challenged the Administrative Tribunal's order extending to all applicants the concession already given to some, whose online applications for Assistant Motor Vehicles Inspector had been rejected as defective. Finding the Commission's pre-2015 software inadequate and the rigour of the general conditions already relaxed by the Commission itself, the High Court declined

What did the court decide?

Two weeks' further time granted to the applicants to produce documents in original showing their credentials, to be verified by the PSC within two weeks thereafter.

The Kerala Public Service Commission Vs Rajan Kr — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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TUESDAY, THE 19TH DAY OF JULY 2016/28TH ASHADHA, 1938

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OP(KAT).No. 374 of 2015 (Z)

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AGAINST THE ORDER IN OA 1592/2015 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 30-10-2015

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PETITIONER(S)/RESPONDENT:

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THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, THULASI HILLS, PATTOM PALACE P.O, THIRUVANANTHAPURAM, KERALA-695 004.

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BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC

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RESPONDENT(S)/APPLICANT:

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RAJAN K.R., AGED 45 YEARS, S/O.RAMAKRISHNAN K.I., KUNNATHOTTATHIL HOUSE, POOVATHUSSERY, PIN-680741, THRISSUR, KERALA.

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R BY ADV. SRI.N.NANDAKUMARA MENON (SR.) BY ADV. SRI.P.K.MANOJKUMAR BY ADV. SMT.SMITHA S.PILLAI

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 20-06-2016, ALONG WITH O.P(KAT) No. 375 OF 2015 AND CONNECTED CASES, THE COURT ON 19-07-2016 DELIVERED THE FOLLOWING:

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OP(KAT).No. 374 of 2015 (Z)

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APPENDIX

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PETITIONER(S)' EXHIBITS ----------------------P1 : TRUE COPY OF THE OA 1592 OF 2015 ALONG WITH ANNEXURES. P2 : TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENT. P3 : TRUE COPY OF THE ORDER IN OA 1592 OF 2015 DT 30-10-2015. P4 : TRUE COPY OF AN APPLICATION WHICH WAS ACCEPTED IN ABSOLUTE TERMS IN RESPECT OF ONE CANDIDATE P5 : TRUE COPY OF THE SAID DEFECTIVE APPLICATION SUBMITTED BY ONE SRI. ABDUL KALAM P6 : TRUE COPY OF YET ANOTHER APPLICATION OF ONE MR. VINEET RAJ WHOSE APPLICATION ALSO HAS BEEN REJECTED BY THE COMMISSION. P7 : TRUE COPY OF THE ERRATUM NOTIFICATION. P8(a) to (m)- TRUE COPY OF THE APPLICATIONS AVAILABLE IN THE FILES OF THE COMMISSION. RESPONDENT(S)' EXHIBITS : NIL -----------------------

/TRUE COPY/

P.A. TO JUDGE

[C.R.]

P.R. RAMACHANDRA MENON &

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ANIL K. NARENDRAN, JJ. ~~~~~~~~~~~~~~~~~~~~~~ O.P.(KAT) Nos. 374, 375, 378, 379 and 382 of 2015 and I.A. No. 161 of 2016 in O.P.(KAT) No. 379 of 2015 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 19^th day of July, 2016

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JUDGMENT

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Ramachandra Menon, J.

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The Kerala Public Service Commission is the petitioner in all these cases. The main grievance is against the verdict passed by the Kerala Administrative Tribunal on 30.10.2015 in the Review Application No. 22 of 2015 in O.A. (EKM) No. 801 of 2015 and connected cases, whereby it was held that all the applications submitted by the applicants (except in O. A. No. 1592 of 15) would be treated as valid for the purpose of verification of the 'technical qualifications', whereas in O.A. No. 1592 of 2015, it would be a question of verification of 'educational qualification', simultaneously giving consequential directions to the extent it was necessary to give effect to the verdict.

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The challenge is mainly on two grounds; firstly, that there was 'no error apparent on the face of the record', to have invoked the power of review and secondly, that the verdict was passed based on

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the new facts and grounds raised in the review application and further, merely with reference to the decision of the Commission taken on 28.09.2015, giving opportunity to the candidates concerned to produce proof of qualifications, which stand already entered in the applications. As requested by the learned standing counsel for the petitioner/PSC, O.P (KAT) No. 382 of 2015 is taken as the lead case. Reference is made to the parties, pleadings and documents, as arrayed in the said original petition, except where it is separately mentioned, to meet the context.

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The crux of the issue relates to the alleged defect in the online applications submitted by the applicants for the post of Assistant Motor Vehicles Inspector, published by the PSC as per Annexure A1 notification dated 26.12.2014, in so far as, the 'experience' required and the possession of 'valid and effective driving licence' were not incorporated anywhere in the applications; in turn leading to rejection of those applications stating as defective. The case of the applicants is that, the format provided by the PSC was defective, where there was no column to show the 'experience' and also as to the 'possession and particulars of the driving licence' as on 28.01.2015 – the last date fixed for

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submitting the applications. It is also pointed out that the applicants have subsequently uploaded the relevant particulars separately, and in some cases, it is contended that necessary particulars were given in the profile at the time of obtaining the 'One Time Registration' itself. It is further contended that the mistake/defect was virtually conceded by the PSC and the rigor of the 'general conditions' for submission of the applications was watered down, however. But the benefit has been limited to some candidates alone, whose names have been included in the short list, by way of addendum notification, which ought to have been extended to all the applicants; but for which, there is an instance of discrimination. This alone has been ordered to be effected as per the verdict passed by the Tribunal, which is under challenge at the instance of the PSC.

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Coming to the factual matrix, as stated already, Annexure A1 notification was issued by the PSC on 26.12.2014 inviting the applications to the post of AMVI. The qualifications prescribed (other than the physical condition) were:

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Pass in SSLC or its equivalent.

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Diploma in Automobile Engineering or Mechanical Engineering awarded by the State Board of

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Technical Education (3 year course).

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Working experience at least 1 (one) year in a reputed (Govt. approved) automobile workshop which undertake repairs of both Light Motor Vehicles, Heavy Goods Vehicles and Heavy Passenger Motor Vehicle fitted with Petrol and Diesel Engines. (Please see Para 21 of the General Conditions)

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Must hold a current valid driving licence authorizing him to drive Motor Cycle Heavy Goods Vehicles and Heavy Passenger Motor Vehicles. Note : Candidates shall possess a current Driving Licence throughout all the stages of selection process as on the last date of application, OMR Test, Practical Test, Interview etc.

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The applicants, who satisfied the requirements, as claimed by them, submitted their applications on or before the last date (28.01.2015), showing the relevant particulars. According to the PSC, they had never shown the 'experience' or the 'particulars of the driving licence' in the online applications, but, still, they were provisionally permitted to participate in the written test. It was thereafter, that the PSC prepared a short list, wherein names of the applicants were not included, as their applications came to be rejected for the defect as aforesaid.

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The applicants projected their grievance by way of several representations, pointing out that all the qualifications were entered at the time of 'one time registration'; that the experience and such other particulars were subsequently uploaded; and that there was no separate column in the application for entering the experience or particulars of the driving licence. As the grievance was not redressed by the PSC, the matter was taken up before the Kerala Administrative Tribunal by the applicants, by way of O.A. (EKM) No. 801 of 2015. The prayer of the applicants to direct the PSC to consider the representation was rejected by the Tribunal, as per Ext. P2 order dated 17.08.2015, holding that, if a candidate had not claimed the notified qualifications in his application, the Public Service Commission had no other option, but to reject it, and hence that the Tribunal would not ask the PSC to entertain the representations. The O.A was dismissed accordingly.

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According to the petitioner/PSC, Review Application No. 22 of 2015 was filed shortly thereafter, raising new grounds and also producing some new documents, particularly as Annexure RA3 notification issued by the PSC, giving an opportunity to the aspirants concerned to cure the defects in respect of all

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notifications issued from January 2012, where the selection proceedings were yet to start. Such opportunity was given, referring to the technical lapse/lack of requisite infrastructure, thus preventing the aspirants in showing their qualifications in the applications. During the pendency of the above proceedings, the applicants in the Review Application filed M.A. No. 2703 of 2015, producing Annexure MA1 addendum notification issued by the PSC, causing to include 90 candidates more in the short list (wrongly typed as '91' in Ext.P4). The Review Application was considered along with the other pending O.As., and after extracting the version of the PSC [as contained in paragraphs 6 and 7 of the reply statement filed in O.A. No. 1731 of 2015 as to the subsequent developments], particularly, the decision No.11 dated 28.09.2015 deciding to admit some more candidates in the shortlist, the Tribunal, as per Ext. P4 order, held that similar opportunity has to be given to all the applicants as well, which otherwise will be discriminatory. This in turn is under challenge at the instance of the PSC; mainly on the two grounds as aforesaid, and also that the applicants herein were not similarly situated like the persons coming within the purview of the decision No.11 taken by the PSC

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on 28.09.2015 and therefore, they are not entitled to have any relief.

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A counter affidavit has been filed by the respondents 1 to 6 and 8 to 10, producing various documents as Ext. R1(a) to R1(n). This is followed by an additional counter affidavit dated 26.03.2016 filed by the very same respondents, producing further documents as Ext. R1(o) to Ext. R1(v). The PSC has filed an affidavit dated 21.03.2016 [stated as an additional affidavit, as per the direction dated 24.02.2016 of this Court] producing some additional documents as Exts. P5 to P7. The 7^th respondent has also produced some additional documents as Ext.R7(a) to R7(c) along with I.A. No. 1162 of 2016.

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Mr. P.C. Sasidharan, the learned Standing counsel for the petitioner/PSC addressed the Court in terms of the grounds raised in the original petition, mainly contending that invocation of power of review by the Tribunal itself is wrong; that the contention of the applicants that the application format issued by the PSC/software was defective is not correct and further that the applicants were not similarly situated to the persons coming within the purview of decision No.11 dated 28.09.2015 referred to in paragraph 5 of

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Ext.P4 order passed by the Tribunal. The learned counsel also submitted that, more than 3000 candidates submitted their applications, most of whom had given all the relevant particulars in the applications; whereas the total number of defective applications was only; 430, among whom, 90 persons were cleared pursuant to the decision No. 11 dated 28.09.2015 and they were included in the shortlist as per the addendum notification. This by itself is an indicator, according to the learned counsel, that there was no defect/lapse at all on the part of the PSC and that the lapse was solely on the part of the applicants. As per the 'general conditions', which is common for all selections conducted by the PSC, verification of the documents will be effected only at the time of interview (Clause 14), no opportunity will be given to rectify the mistake, if any (Clause 15) and belated claim preferred after submitting the application will not be considered (Clause 16). The applicants having not shown the particulars of experience and as to the possession of valid and effective driving licence in the applications, they are hit by the above provisions and have to be non-suited. Verification can be done only with reference to the data given in the applications, as held in Shaji Cherukkattil Vs.

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Kerala Public Service Commission and another [2014 (4)

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KHC 805 (S.B)], and that no failure/lapse had occurred on the part of the PSC in this regard. It is also pointed out that, even now there is no separate column for showing the technical qualification / experience / driving licence particulars and all the particulars could be shown at the time of 'One Time Registration', which could be edited, adding on the subsequent qualifications, if any, which facility/software is intended for enabling the candidates to apply for different posts at different points of time and to avoid repeated verification of the very same particulars/traits. Interference of this Court is sought for in the said circumstances.

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Mr. P. Nandakumar, the learned counsel appearing for the respondents 1 to 6 and 8 to 10 in O.P.(KAT) No. 382 of 2015 submitted the case as projected in the proceedings filed before the Tribunal, and in the counter affidavit and the additional counter affidavit filed before this Court. It is pointed out that the mistake/lapse/defect is obvious, in so far as there was no column for showing any experience or particulars of the driving licence, but for the personal details, educational qualifications and the physical measurements. The sanctity of the general conditions, particularly

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Clauses 14, 15 and 16, has been watered down by the PSC itself, which is only because of the defect/lapses on their side. It was accordingly that a decision was taken by the PSC (decision No.11 dated 28.09.2015), as referred to in paragraphs 6 and 7 of the reply statement filed in O.A. No. 1731 of 2015, which stand extracted in paragraph 5 of Ext. P4 order passed by the Tribunal. The position is sought to be explained with reference to Annexure A2 series applications, which are the printouts taken immediately after submission of the applications, wherein there is no column for showing the driving licence particulars or the experience. At that point of time, experience had to be separately uploaded, which in fact has been done, as evident from Exts. R1(a) to R1(i) produced along with the first counter affidavit dated 07.02.2016. Particulars of the experience are not reflected in the application form, as it was not facilitated as per the then existing software used by the PSC. Ext.P5 is a corrected format provided by the PSC, as discernible from the bottom portion containing "security notes", to which the candidates cannot have any access. The column/provision for showing experience, as it is available under Ext. P5, is not there in Ext. A2 series. But after correction of the software effected by the

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PSC, if printouts of the applications are taken, it will show the further details as well. The position is sought to be explained with reference to Exts. R1(o) to R1 (v). While Ext. R1(o) is the printout of the concerned person who submitted Annexure A2(a) application, Ext. R1(p) is the present printout in respect of the very same person, which shows the work experience given as 'yes', which only means that the same was uploaded by the concerned respondent well on time. When there is a 'water mark' of the State emblem in Ext. R1(o), it is not available on Ext. R1(p). Similarly, there is a separate column for signature of the applicant also containing signature, as seen in Ext.R1(p); which is not there in Annexure A2(a). In Annexure A2 (b), though there is a signature column with the signature of the applicant, no 'water mark' is there. Long and short of the submission is that, some printouts have the particulars, while some printouts do not contain the same, which only points to the fact that the formats differ because of the inadequacy of the software used earlier. Now, since the software has been improved and upgraded by the PSC, after installation of the same in the year 2015, only if the inputs are given without any defect, will the next page of the application

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pop up. With reference to the contents in Ext. P5, the learned counsel also points out that, Ext. P5 is an application, which is stated as validly accepted by the PSC, but the physical measurements of the said candidiate given in the form is only a height of '157 cm'., whereas as per Annexure A1, the minimum height to compete in the process of selection is '165 cm'. How Ext. P5 came to be accepted to have the said person shortlisted is a matter of mystery, submits the learned counsel

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Further reference is made to Ext. R1(j) application form of one Mr. Anwar K.A., whose driving licence authorises him to drive only a motor cycle. In other words, he does not have the driving licence to drive Heavy Goods Motor Vehicle (HGMV) and Heavy Passenger Motor Vehicle (HPMV) and still, his application has been accepted by the PSC and he has been shortlisted with No. 103020 in Annexure A5. The learned counsel submits that, according to the concerned respondents, relaxation was given by the PSC only to include such undeserving hands in the short list, stipulating pursuant to the decision No.11 dated 28.09.2015 (as given in paragraphs 6 and 7 of the reply statement in O.A. No. 1731 of 2015) that, if any one licence is shown in the application

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form, such application will be considered. The PSC goes still further, conceding that as per the decision taken by the PSC, if the licence particulars or the experience were shown anywhere in the application, even in the remarks column, such applications will also be considered and thus, the addendum notification giving entry to 90 more persons in the short list. It is also brought to the notice of this Court, with reference to Ext. R1 (k), that the concerned applicant as shown in the application, obtained the driving licence to drive Heavy Goods Vehicle and Heavy Passenger Vehicle only in February, 2015. Since the last date for submitting the application was on 28.01.2015, he was not qualified on that date. Still, the PSC accepted his application, and he came to be shortlisted. To sum up, the learned counsel submits, that the PSC has given the benefit of relaxation/concession to persons of their choice, despite the serious lapse/defects on the part of the said applicants, who are ill-qualified, whereas the deserving candidates like the respondents who are qualified in all respects came to be ignored. The Sub Committee of the PSC, having decided to reduce the rigor of the 'general conditions', which has been accepted by the PSC ordering such relaxation, the applicants are also entitled to have similar

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chance/opportunity/benefit, which alone has been ordered by the Tribunal

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Mr. Elvin Peter, the learned counsel appearing for the 7^th respondent in O.P.(KAT) No. 382 of 2015 submits that, there is absolutely no lapse, fault or mistake on the part of the said candidate, in so far as all the particulars were given to show the credentials, as stipulated. It is pointed out that, giving of the particulars is effected by way of two stages; firstly, at the time of profile creation getting permanent registration. The additional qualifications can be uploaded thereafter. On issuance of the notification by the PSC, the necessary inputs have been shown as given in Annexure A2(f). It is pointed out that the software used by the PSC earlier, as on the last date of submission of the applications, it did never provide for showing the experience or the particulars of driving licence as part of the format. Under the head educational qualifications, different sub heads are given requiring to show the particulars of the qualification, University/Board, year of passing, percentage of marks etc. In so far as 'experience' is concerned, no such column can be filled up and quite obviously, 'experience' cannot be a part of the 'educational qualification'.

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Almost same is the position with regard to the driving licence, which cannot be stated as issued from any University/Board or the percentage of the marks and the like; which hence cannot come under the 'educational qualification'. No space/column has been provided elsewhere, facilitating entry of such particulars in the format. Merely for the reason that, some candidates/applicants have shown these particulars under the head 'educational qualification', it cannot be the Rule, to draw an inference that the PSC intended all candidates to have pursued similar exercise. It is also pointed out that, the PSC was well aware of the lapse/mistake on their side. It was accordingly, that a decision was taken, based on the Sub Committee's report, on 28.09.2015 (decision No.11) deviating from the general conditions, and extending concessions, which should have been extended to all the candidates, instead of restricting the benefit to a fortunate lot, who gave some inputs at some inappropriate space/slots. When Ext. P5 format contains the column for 'experience' (which application has been accepted by the PSC), how and why it is conspicuously absent in Annexure A2(f) is not explained by the PSC. Similarly, in the reply statement/affidavit flied by the PSC, as referred to by the Tribunal,

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explanation has been given by the PSC only with reference to the circumstances coming under paragraph 7 (1), whereas nothing has been mentioned with regard to para 7(2) and 7(3). According to the learned counsel, the concerned applicant comes squarely within the purview of clause 7 (2) and still, he happened to be eliminated when the short list was published. A mere reading of para 7 (1) itself shows that the PSC knew that there was no column for showing the particulars of 'driving licence' and they went on to add under para 7 (3) that, if the particulars of any licence were shown, anywhere in the application, even if, it be in the remarks column, it would be accepted as a valid application. If there was no proper space/column to show such particulars, it is the lapse/defect of the system, and in turn of the PSC, for which the candidates, who could not give the particulars for want of proper infrastructures/set up, cannot be penalized under any circumstances.

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With regard to the contention raised by the PSC that the order passed by the Tribunal in the Review Application for want of jurisdiction/competence, for the reason that there was no error apparent on the face of the record, it is stated as not correct or sustainable. The circumstances, warranting interference, are

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clearly given in the statement of facts and grounds of the Review Application. Even otherwise, the order under challenge was passed by the Tribunal as a common order in different O.As., which were considered along with the Review Application. As such, the challenge on maintainability has to fail, submits the learned counsel. It is also pointed out that the decisions cited by the learned standing counsel for the PSC in support of the contention that the PSC cannot be directed to cure the mistakes committed by the candidates, are not at all applicable to the case in hand. This is obviously for the reason that, the necessity to correct the mistakes deviating from the 'general conditions', was felt by the PSC itself and it was accordingly, that the decision No. 11 was taken on 28.09.2015, to extend some concessions/modifications. The inadequacy of the system, right from the introduction of online registration from January 2012 till 2015 is quite evident from Annexrure RA3. Having decided to deviate from the 'general conditions', and having found the necessity to relax the rigor of the conditions by extending concessions with regard to the contents of the application, it was quite necessary to have it extended to all the candidates on a uniform basis, which alone has been ordered by

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the Tribunal while rendering verdicts under challenge. The credentials of the candidates have to be verified as on the last date of submitting the application, and the eligible candidates have to be included in the short list, to be proceeded with further steps.

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Mr. N. Nandakumara Menon, the learned senior counsel appearing for the respondent in O.P. (KAT) No. 374 of 2015 submits that, absolutely no details have been given by the PSC while rejecting the application of the candidate as defective, vide Annexure A1. The only defect pointed out, as contained in paragraph 5 of Ext. P2 reply affidavit, is that all details of the 'driving licence' were not shown in the application, which by itself is not correct. On enquiry, the candidate was let known from the office of the PSC that the mistake committed by him was that he had written 'KGCE', in place of the 'Diploma' in the application. Referring to Annexure A4 'One Time Registration', in connection with an earlier selection exercise, the learned counsel submits that, at that time, the qualification prescribed was KGCE (Automobile Engineering). The licence particulars were also given in Annexure A4, except Motorcycle and HGV. The said document is produced only to show that 'KGCE' was already shown therein. On obtaining

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A1 rejection, the petitioner submitted Annexure A2 submission, producing all the relevant documents. It is stated that the applicant has already corrected his profile and how the mistake was occurred has been explained in the O.A. and in particular, in the Grounds B, C and D. It is further pointed out that, the PSC having decided to relax the rigor of the 'general conditions', as evident from paragraphs 6 and 7 of their reply statement filed in O.A. No. 1731 of 2015, the applicant in the said case is also eligible to have the benefit, particularly, by virtue of his coming within the purview of para 7 (1) category.

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Sri. S. P. Aravidakshan Pillai, the learned counsel for the respondent in O.P.(KAT) No. 375 of 2015 submits that the application of the said respondent was rejected as per Annexure A3 and the reason stated in paragraph 5 of the reply statement is that, no particulars of the 'driving licence' were shown. This is absolutely incorrect, according to the learned counsel, who points out that as borne by Annexure A1 (One Time Registration), all the details of the driving licence have been given and as such, this is nothing but a technical fault of the system. The learned counsel also submits that Annexure A2 is the application of the candidate,

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but all the relevant particulars, which have been given in Annexure A1 at the time of One Time Registration to the PSC, have not been carried forward and included in Annexure A2 application, which shows the obsolete technology/software used by the PSC at that point of time. The discrepancy has not been explained by the PSC in their reply statement, despite projecting the case of the applicant in the opening paragraph (para 1) of the O.A., nothing has been stated by the PSC in this regard and the PSC has no case in the reply statement that the relevant entries were subsequent entries. It was only on realising the mistake/lapses/inadequacy in the system, that the PSC took decision No.11 dated 28.09.2015, relaxing the norms. Since the last date for submitting the application was on 28.01.2015, the PSC is bound to verify the credentials of all eligible candidates as on that date. The learned counsel also points out that, since Annexure A3 rejection of the application was done on 31.01.2015, that is much before taking decision No.11 on 28.09.2015, it is necessary for the PSC to consider whether the said applicant also comes within the purview of the relaxation given as per the decision No.11 of 28.09.2015, which exercise has admittedly not been done by the PSC.

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Mr. N. Radhakrsihnan, the learned counsel for the respondent in O.P.(KAT) No. 379 of 2015 adopts the contentions of the other counsel, who had entered appearance on behalf of the concerned respondents. Annexure A2 application was rejected as per Annexure A5 memo. Annexure A3 is corrected application. Sum and substance of the grievance is that there was no proper or correct 'location' to enter the particulars of the 'driving licence' in the application format.

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Mr. Achuth Kylasanath, the learned counsel appearing for the respondent in O.P (KAT) No. 378 of 2015 submits that all the relevant particulars as to the credentials of the applicant were correctly given and the updation was effected as on 01.01.2015, as evident from Annexure A7 profile. Despite such updation effected on 01.01.2015, the said particulars have not come in Annexure A3 application, which as a matter of fact should have been automatically carried forward, and hence nothing else is required to establish the defective software used by the PSC.

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When the matters came up for consideration on 03.06.2016 the following order was passed:

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“Heard all the parties concerned. After

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hearing, we find that some more clarification is necessary so as to resolve the issue once and for all. It has been stated in Annexure RA(3) that an opportunity was being given to rectify the defects, to those who could not upload the qualifications due to technical reasons, in respect of posts notified from January, 2012; however restricting the same to cases where the selection process was yet to be started. In fact, the selection process starts, once the notification is issued. If so, how the position is to be reconciled, is a matter to be explained by the Kerala Public Service Commission. The learned Standing Counsel for the PSC is required to produce the relevant file (original) in relation to Annexure RA3.

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In paragraph 7 of the reply statement filed in O.A.No.1731/2015, as referred to by the Tribunal in the order under challenge, the PSC has conceded that some concession was being given, pursuant to the “Decision No.11 dated 28.9.2015”. The relevant files (original) in this regard shall also be made available and the circumstance under which the above proceedings came to be issued are required to be explained.

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It is pointed out that there is much difference with regard to the different entries and

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the particulars as it appears in Ext.P5 and those which appeared in the application format earlier. Specific reference is made to the columns for showing the signature, the watermark, the entry as to experience, the chronological arrangement of the different items under the head 'physical details', the nature of the questions asked, the terminology used, etc. How such difference has occurred is also a matter to be explained by the PSC.

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Post on 14.6.2016, for further consideration.

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Hand over.”

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Pursuant to the above order, an affidavit dated 11.06.2016 has been filed on behalf of the PSC, trying to reconcile with the position and producing some additional documents as Ext.P8 and Exts. P9(a) to (m). As per the interim order dated 03.06.2016, three points were specifically sought to be clarified; firstly, with regard to RA3 notification; secondly, with regard to decision No. 11 dated 28.09.2015 and thirdly, in relation to the difference in the entries and particulars in Ext. P5 and those which appeared in the application format earlier, also referring to the columns for showing the signature, the water marks, the entry as to experience, the chronological arrangement of the different items

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under the head 'physical details', the nature of questions asked and the terminology used etc. With regard to the first point in relation to RA3, the version of the PSC is that, the post of the 'Studio Assistant' in the Kerala Collegiate Education Department (Musical colleges) was notified in the gazette dated 31.12.2013 with category No. 515/2013, showing the last date for receipt of application as 05.02.2014. The prescribed qualification for the post was National Diploma or B.F.A in Painting, Sculpture or Applied Arts. In response to the notification, though 389 candidates had submitted their applications, candidature of those who did not possess adequate qualification in tune with the gazette notification was rejected. Six candidates preferred complaints claiming that the options available in the profile with respect to the qualification was B.A. (instead of B.F.A.) and M.A. (instead of M.F.A.). On scrutiny of the complaint, the grievance was felt genuine and it was in order to rectify the said mistake, that the PSC had decided to provide an opportunity to edit/correct their qualification in the profile, vide Decision No.6 dated 27.06.2015, in turn leading to Annexrue RA3. It is also pointed out that, Annexure RA3 was intended and confined to the post of 'Studio Assistants' in Music

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Colleges alone and that same was not a general notification applicable to all posts. Since Annexure RA3 notification was lacking clarity in this regard, the position was clarified by issuing an 'erratum notification' on 16.09.2015; a copy of which has been produced as Ext. P8. It is added that, no candidate with reference to any other selection was extended the benefit flowing from Ext. P8 and that Ext. P8 was published in the website of the Commission.

¶125

With regard to the decision No.11 dated 28.09.2015, the version of the Commission is that, while publishing the short list on 29.07.2015, the candidates who had cleared all the prescribed qualifications in their applications with top marks were included in the short list and who had not claimed all the qualifications in their applications were rejected. Among the rejected applications (417), about 75 candidates filed representations seeking to reconsider the rejection. Considering the nature of grievance, a Sub committee was constituted, who submitted some suggestion/recommendation; based on which, decision No.11 was passed on 28.09.2015, deciding to admit those candidates coming under the three specified categories for the post of AMVI. The aforesaid three

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categories are as given below :

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“1. If the candidate is qualified otherwise and has entered any of the qualification (Motor Cycle, HGMV, HPMV) in the application and is able to prove during verification that they had acquired the required technical qualifications before 28.01.2015, such applications can be accepted.

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If the candidate has claimed that he is qualified for the post before 28.01.2015 and updated his profile during applying for the post or updated at a later stage within the last date, such applications also can be admitted.

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If the applicant has claimed and entered the qualification in any part of the application including remarks column, such applications also can be accepted.”

¶132

It was based on the above decision, that an addendum notification was published on 20.10.2015 by including the candidature of 90 candidates more in the short list. In respect of the circumstances reckoning to accept the applications, if any of the licence (Motorcycle, HGMV, HPMV) was shown in the application, on any part of the application, the explanation of the PSC is that, the licence No. in respect of different types of vehicles possessed by a

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person can only be the same and if particulars in respect of one vehicle is given, it is quite possible to verify the eligibility in respect of the other vehicles as well, as endorsed in the licence.

¶136

With regard to the 3^rd point/discrepancies in the application submitted earlier by the same person who submitted Ext. P5, which is stated as accepted, the position sought to be asserted as contained in paragraphs 16 to 19 is as follows :

¶137

“16. If a candidate wants to submit an application for a post in One Time Registration (OTR), he must possess the prescribed qualification for the post and must enter those qualifications in his OTR profile before applying. If one tries to submit an application without entering the prescribed qualifications, the system will prevent him/her to apply for the post showing “Ineligible”.

¶138

There is one alternate option available in OTR for those candidates who possess equivalent or higher qualification of the prescribed qualification for a post. The profile of the candidate includes separate columns for entering Educational Qualification, Experience details etc. In the main head of Educational Qualification like there are separate subhead leading to enter Technical Qualifications,

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Eligibility Certificate, and Driving Licence etc.

¶142

If a candidate wants to add new qualification, he/she could add that at any time in his/her profile and if a candidate wanted to apply for a particular post he/she could apply for that though ' Apply Now' button. If a candidate had already added his/her acquired Qualification for the particular post and it was same as the required qualification for this particular post then he/she had to open his/her profile and click 'Apply Now' button only. And if a candidate had a particular qualification and he did not add the qualification in his profile at the time of submitting application, but he/she claimed Higher Qualification or claimed acquired qualification as equivalent to that of prescribed qualification then only he could apply for the post.

¶143

In the case of AMVI post (Category No. 551/2014 some candidates who already possessed the prescribed qualification did not enter them in their profiles and tried to apply for the post. Then the system prevented them from submitting application by showing 'Ineligible'. Instead of adding their required qualifications in their profile they continued applying by choosing the alternate option which is only meant for those candidates who posses equivalent/higher

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qualifications. They falsely claimed the prescribed qualifications by intentionally matching their some other qualifications entered in their profile. On a later stage some candidates added their prescribed qualifications in their profile. The candidates who added their prescribed qualification before the last date of submission of application for the post is considered as qualified for the post. Here in this case all the respondents except Nithin V.R. Entered the required qualification in the profile after the last date of submission of application. There was no Technical error which leads to the failure of submitting application for the said post.”

¶147

Going by the contents of the said affidavit, the 7th respondent in O.P (KAT) No. 382 of 2015 stands cleared by the PSC to have his entry in the short list and hence there cannot be any further grievance for the said respondent.

¶148

Mr. P. Nandakumar, the learned counsel appearing for the respondents 1 to 6 and 8 to 10 in O.P.(KAT) No. 382 of 2015 submits that the version given by the PSC as referred to above only reflects the present position i.e. subsequent to the upgradation of the software in the year 2015; whereas the grievance projected by the applicants is in relation to the defective/inadequate/obsolete

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software, till it was replaced in the year 2015, i.e. after the last date of submitting the applications. Even according to the PSC, 90 candidates (covered by the addendum notification) whose applications were rejected, had not given the full particulars of the profile as originally notified/intended. It was by virtue of the 'concession' extended by the PSC, on finding the grievance projected as genuine in uploading the materials, that they were given entry by including their names as well in the short list. This by itself shows that the rigor of the original norm/condition as notified by the PSC has not been strictly followed. According to the learned counsel, there can only be “two classes” of candidates, i.e., (i) those who had correctly uploaded the full particulars and (ii) those whose applications were not complete in all respects, or defective in any manner. In so far as the applications submitted by the 90 persons covered by the corrigendum notification were given the benefit/relaxation, there is no reason for not extending such benefit/concession to the applicants, giving an opportunity to have the credentials verified by the PSC.

¶152

The learned counsel appearing for the respondents 1 to 6 and 8 to 10 in O.P.(KAT) No. 382 of 2015 further submits that,

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according to the PSC, as put forth in the affidavit dated 11.06.2016, there was no defect in the software and that the applications, wherein complete profile was given as to the qualifications and such other aspects, were accepted, and in respect of the others, where they were defective in some or other manner, they were rejected as ineligible. But in respect of the person by name 'Ajith S' , whose application is produced as Ext.P5 , it has been accepted by the P.S.C., in spite of the fact that his height has been shown as only 157 c.m ., whereas, as per the notification, the requisite minimum height is '165 c.m.' . The printout of Ext. P5 shows that, it was taken on 19.03.2016 at 11.11.49 am. When it comes to Ext. P9(m) [which is the printout taken on 10.06.2016 at 11.30.40], the application submitted by the very same candidate, produced by the PSC along with the affidavit dated 11.06.2016, the height is shown as '167 c.m.' In other words, the application wrongly filled up (as it exists in Ext. P5) was accepted without noting it as 'ineligible' by the system; which reflects the lapse/inadequacy of the system.

¶156

Similarly, coming to Ext. R1(j) application of one ' Mr.Anwar K.A.' , produced along with the counter affidavit filed on

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behalf of the respondents 1 to 6 & 8 to 9, the degree of B.Tech is in Mechanical Engineering, which is declared as equivalent to Diploma/Polytechnic and particulars of licence given are only in respect of 'Motorcycle'. Still, the said application has been accepted. But while coming to Ext. R1(k) , stated as submitted by the very same person, the HGV licence was admittedly obtained only in February 2015 and HPMV licence was issued also in February 2015 . In other words, he was not having the requisite qualification of driving licence as on the last date of submitting the application. Still, the said application came to be accepted by the system, instead of showing him as 'ineligible'. Reference is also made to the earlier applications, showing the 'water mark' and the subsequent application providing space for the digital signature. Now, the applications with digital signature alone are accepted and there is no 'water mark', pursuant to the upgradation of the software in the year 2015. This only shows that the PSC has been upgrading the software from the year 2012, when the 'One Time Registration' was introduced for the first time and the system became 'hassle-free' only by 2015, much after the last date stipulated for submitting the application i.e. 28.01.2015.

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As per the counter affidavit dated 18.06.2016 filed by

¶163

the respondents 1 to 6 and 8 to 10 (in response to the affidavit dated 11.06.2016 submitted by the PSC), it is pointed out that at the time when the said respondents submitted their online applications, no correctional 'pop-ups' appeared on the screen, informing the candidates to submit the applications properly, if they were not doing so; by virtue of which, it was not discernible for the candidates to find out whether they had committed any mistakes in the online application. Similarly, when the notification insisted holding of a valid driving licence authorising to drive Motorcycle, Heavy Goods Vehicle, Heavy Passenger Motor Vehicle; a licence to drive 'any one' of the above vehicles mentioned, was not a sufficient qualification as per the notification and the Special Rules. As such, the decision No.11 dated 28.09.2015 of the PSC to accept those applications wherein the candidates had entered 'any one' of the qualifications at 'any place' of the application, was not liable to be reckoned as in tune with the Special Rules or 'general conditions' attached to the notification. When the PSC found the necessity to relax the norms/rigor of the conditions, it should have been extended to all the candidates, who participated in the

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selection.

¶167

This Court has also perused the relevant files produced by the learned standing counsel for the PSC. On going through the pleadings and proceeding and on going through the contents of the file, it cannot be said that the PSC was pursuing any malafide exercise, so as to entertain the applications of a desired lot, nor is there any instance of arbitrariness in favour of any particular candidate/candidates. At the same time, it has to be noted that the software installed by the PSC at the time of implementing the 'One Time Registration' in the year 2012, was not adequate enough to have included all the particulars in the profile and to enable the candidates to submit the application for different posts, based on the qualifications notified and to reject the application showing as 'ineligible', if proper updation was not effected on time. The position has undergone a 'sea change' after the upgradation of the software effected in the year 2015. In the meanwhile, going by the undisputed pleadings and materials brought on record, it remains a fact that the incomplete applications or applications of ineligible candidates also came to be accepted by the system, giving them a placement in the shortlist. It is settled law, that the

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applications have to be submitted strictly in conformity with the general conditions/stipulations made by the PSC as notified. But, the fact remains that the rigor of the Rule could not be insisted in the instant case, in view of the constitution of a 'Sub Committee' to look into grievance on rejection of candidature of several persons, finally culminating in decision No. 11 dated 28.09.2015, to accept the applications which came within the purview of the 'three circumstances' mentioned therein. This again points to the instance that, those persons coming within the purview of the 'three circumstances' mentioned therein, were not the persons who had submitted applications complete in all respects and they were defective in some way or the other. The PSC sought to condone the lapse to some extent and decided to extend benefit to them by way of 'concession'. That apart, even in the case of 'ineligible persons' who got licence only on February 2015 came to be accepted by the system. The discussion made hereinbefore reveals that the rigor of the Rule in respect of the 'general conditions', cannot be strictly applied in the instant case, the PSC itself having decided to relax the same to some extent as per the instances mentioned above. It is in the said circumstances that the Tribunal

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has passed the common order dated 30.10.2015 in R.A. No. 22 of 2015 and other connected O.As, for causing the credentials of the applicants to be verified by the PSC, giving them a chance to produce all the relevant documents in support of their claim, so as to have their names included in the short list. Absolutely no prejudice will be caused to the PSC or anybody else by causing such verification to be done. Non-suiting of the applicants, denying such an opportunity, especially in the light of the inadequacies / discrepancies / mistakes / concessions decided to be extended by the PSC will definitely lead to miscarriage of justice, and this will be more so, in view of the fact that most of the applicants will get overaged and may not be in a position to contest a further selection excise to the post in question. This Court finds that a 'pragmatic approach' is necessary, to deal with the situation, and not a pedantic one.

¶174

In view of the available materials and undisputed facts, the question to be considered is, whether a strict interpretation to the 'general conditions' is to be given in the instant case, nonsuiting the applicants, adversely affecting their rights and chance to get a government job, in turn holding the position in favour of the

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PSC to sustain the rejection or whether an interpretation which is favourable to the applicants is to be taken. If it is to be taken in favour of the applicants, no prejudice whatsoever will be caused to the PSC. If it is taken in favour of the PSC, the life and career of the applicants will be in peril, who may find it difficult to get a chance to apply for any further posts, particularly, in view of their advanced age.

¶178

In the above circumstances, this Court finds that the common order passed by the Tribunal, which is under challenge in these original petitions filed by the PSC, warrants no interference. All the original petitions are dismissed accordingly.

¶179

Considering the fact that the time fixed by the Tribunal is already over, we grant a further period of 'two weeks' to the applicants to produce the documents in original, showing their credentials and verification shall be made by the PSC within a further period of 'two weeks' thereafter. Based on this, the eligibility of the applicants shall be declared, to get included in the short list and to be proceeded with further steps in accordance with law.

¶180

The Registry shall return the files produced by the PSC.

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I.A. No. 161 of 2016 in O.P.(KAT) No. 379 of 2015

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(i) This is a petition to implead the petitioner in the I.A. as additional 2^nd respondent.

¶185

(ii) Heard Mr. C. Unnikrishnan, the learned counsel appearing for the petitioner in I.A. No. 161 of 2016 in O.P.(KAT) No. 379 of 2015.

¶186

(iii). The learned counsel submits that the petitioner in the I.A. was not a party to the O.A. before the Tribunal. It is stated that the verdict passed by the Tribunal, watering down the norms, has adversely affected him, in so far as the person therein are candidates, who had shown all the particulars in their applications, which have been accepted and they have been included in the 'short list', as qualified. According to the learned counsel, the applicants in the O.A. are not entitled to have any benefit and their applications have been rightly rejected by the PSC. The learned counsel submits that the facts figures have been given in the counter affidavit filed by the party, who is sought to be impleaded in this proceedings.

¶187

(iv). Admittedly, the petitioner in the I.A. was not a party before the Tribunal. If the verdict passed by the Tribunal is

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detrimental to the rights and interest of anybody aggrieved of the said order, in any manner, it was for him/them to have the same got reconsidered, by filing necessary proceedings before the Tribunal. He/they cannot directly approach this Court either by way of an Original Petition or by getting impleaded in the Original Petition filed by the PSC. This Court finds support from the law declared by another Division Bench of this Court in Gireesh Babu M.B. and Ors. Vs. Pavithran T.T.V. and Ors. [2013 (3) KLT 453]

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(v). In the said circumstances, this Court finds that this I.A is not maintainable and it is dismissed accordingly, without prejudice to the rights, if any, to pursue other appropriate proceedings in accordance with law.

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sd/-

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P. R. RAMACHANDRA MENON, JUDGE

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sd/-

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ANIL K. NARENDRAN, JUDGE

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kmd

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/True copy/

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P.A. to Judge

The Kerala Public Service Commission v. Rajan Kr

Case brief

What is this about?

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The Kerala Public Service Commission v. Rajan Kr

Case brief

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