Dismissed

Sarathkumar K. v. Saju George

Kerala HC15 Sept 2020Con.Case(C)/1329/2020

Case brief

AI extract

What is this about?

There was a contempt petition alleging wilful disobedience of interim orders by the Kerala Public Service Commission regarding communal reservation for appointment streams. The High Court found no evidence of intentional violation and dismissed the petition, directing the original writ petition to be listed for disposal.

What did the court decide?

The contempt petition praying for a direction to proceed against the respondent for disobedience of orders was dismissed.

Sarathkumar K. Vs Saju George — Public Procurement and Tenders | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942

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Con.Case(C).No.1329 OF 2020 IN OP(KAT).506/2019

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ARISING FROM THE ORDER IN OP(KAT) 506/2019 DATED 13.2.2020 WHICH WAS CLARIFIED BY ORDER DATED 9.3.2020 IN IA 2/2020 IN OP(KAT)506/2020 OF HIGH COURT OF KERALA

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PETITIONERS/PETITIONERS IN OP(KAT):

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1 SARATHKUMAR K. AGED 39 YEARS S/O.KRISHNANKUTTY NAIR, MELECHIL VEEDU, ANNOOR, THIRUMALA. P.O., THIRUVANANTHAPURAM-695 006, NOW WORKING AS SENIOR GRADE ASSISTANT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 HARIKUMAR.K. AGED 48 YEARS S/O. KARUNAKARAN NAIR, KARUNAKARA VILASOM, NETHAJIPURAM, SANTHIGIRI, VENJARAMOODU P.O., THIRUVANANTHAPURAM-695 589, NOW WORKING AS SENIOR GRADE ASSISTANT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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BY ADVS. SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH

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RESPONDENT/RESPONDENT NO.6 IN OP(KAT):

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SAJU GEORGE,

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AGE & FATHER'S NAME NOT KNOWN TO THE PETITIONERS, SECRETARY, KERALA PUBLIC SERVICE COMMISSION, OFFICE OF KERALA PUBLIC SERVICE COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM-695 004.

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SRI.P.C.SASIDHARAN, SC FOR RESPONDENT

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THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 15.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Cont. Case (C)No.1329 of 2020

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JUDGMENT

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Dated this the 15^th day of September, 2020

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Manikumar, C.J.

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Alleging wilful disobedience of order dated 13.02.2020 (AnnexureI) passed in OP(KAT) No.506 of 2019 by a Hon'ble Division Bench of this Court, clarified by order dated 9.3.2020 (Annexure-III) in I.A. No.2 of 2020 in OP(KAT) No.506 of 2019, instant contempt petition is filed.

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Order dated 09.03.2020 in O.P.(KAT) No.506/2019 reads thus:

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“4. We have heard Mr. R.T. Pradeep, learned counsel for the petitioner. We are inclined to accept Ext.P6 order.

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Though Mr. R.T. Pradeep, learned counsel for the petitioner reiterated the submissions made in O.P(KAT). No.506 of 2019 and sought for modification as prayed for, we are not inclined to accept the said prayer. In our detailed order dated 13.2.2020, the above submissions have been considered. Having passed the order on 13.2.2020, no purpose will be served, if the said order has to be kept in abeyance. The order made in O.P(KAT). No.506 of 2019 dated 13.2.2020 has to be implemented. Taking note of the contentions raised in O.P(KAT). No.506 of 2019, at paragraph 6 of the order, we have already protected the interest of the petitioners. Paragraph 6 of the order dated 13.2.2020 is reproduced:

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“6. But we make it clear that publication of the final list of all the stages can be done only after securing appropriate orders from this Court.

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Kerala Public Service Commission shall also keep in abeyance the advice of candidates for appointment, till

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Cont. Case (C)No.1329 of 2020

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further orders are passed by this Court. We further make it clear that, the aforesaid order is applicable only in respect of stream Nos.2 & 3.”

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Modification sought for in I.A.No.2 of 2020 cannot be granted. Accordingly I.A.2 of 2020 is dismissed. I.A.No.3 of 2020 for accepting Ext.P6 document is allowed.”

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The Original Petition was filed challenging order dated 28.11.2019 passed in O.A.No.1535 of 2019 by the Kerala Administrative Tribunal, repelling the challenge to the amendment carried out in Kerala Administrative Service Rules, 2018, by which, communal reservation was implemented for the selection and appointment to Streams ll and lll, which contemplate by transfer appointment for holders of non-gazetted and gazetted posts in Government service, for the post borne out of newly formed Kerala Administrative Service.

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During the pendency of the Original Petition, respondent herein had issued notification dated 01.11.2019 as Category No.186-188/2019, for selection and appointment to the entry cadre post in Kerala Administrative Service; Category No.187/2019 for Stream ll, and Category No.188/2019 for Stream lll.

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Petitioners have contended that the examination for selection to Streams ll and lll has not been fixed during the pendency of the Original Petition, nor at the time of filing the same. Hence, the petitioners approached this Court, in the wake of examination scheduled on 22.02.2020, seeking stay of all proceedings pursuant to the examination.

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Cont. Case (C)No.1329 of 2020

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This Court vide order dated 13.02.2020 (Annexure-I) directed the Kerala Public Service Commission, to go ahead with the examination scheduled on 22.02.2020, but interdicted the working out of reservation, so as to sustain the challenge made in the original petition. In the said order, this Court made it clear that the final list of all the stages can be done only after securing appropriate orders from this Court and the advice of candidates for appointment in Streams ll and lll shall also be kept in abeyance until further orders. Order dated 13.02.2020 reads thus:

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“...............

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Having regard to the submission made, that more than 6,00,000 candidates have applied for the examination and selection to the newly created post in KAS, examination is to be held in three parts; Preliminary, Main and thereafter interview. Preliminary examination is scheduled on 22.2.2020. Stay of amendment to the Rules and the examination would cause irreparable hardship, if the aspirants are prevented from taking up the examinations.

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Learned Standing Counsel for Kerala Public Service Commission has also submitted that considerable time has been spent in the matter of scrutiny of applications from the above candidates. Prima facie, we do not find any ground to grant stay of the examinations. However, we deem it fit to permit the Public Service Commission to conduct both Preliminary and Main examinations, in accordance with the procedure followed by the Commission and shortlist the candidates as per merit, by following the rules of reservation provided.

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But we make it clear that publication of the final list of all the stages can be done only after securing appropriate orders from this Court.

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Kerala Public Service Commission shall also keep in abeyance the advice of candidates for appointment, till further orders are passed by this Court. We further make it clear that, the aforesaid order is applicable only in respect of stream Nos.2 & 3.”

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Cont. Case (C)No.1329 of 2020

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However, in paragraph 5 of the order dated 13.02.2020, this Court permitted to conduct preliminary and main examinations, in accordance with the procedure followed by the Commission, and to shortlist the candidates as per merit, by following the rules of reservation provided therein. Thus, according to the petitioners, there is apparent inconsistency between paragraphs (5) and (6) of the said order. If the publication of short-listing is permitted, after the preliminary examination, as per the present scheme of things, there would be separate cut off marks for general category candidates and reserved candidates. Obviously, there would be slashing down of cut off marks for reserved candidates, in order to enlist the adequate number of reserved candidates to work out reservation. Thus, the reservation implemented in Streams ll and lll would get operationalized if the list is allowed to be published and stultify the challenge.

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Petitioners have further stated that if the main examination, as well as interview, were allowed to be continued, by following the rules of reservation, and thereafter, if the original petition is allowed by stultifying the rules of reservation, the result would be that the reserved candidates, who were included in the selection process, on the strength of the interim order dated 13.02.2020 have to go out. Hence, the petitioners filed S.L.P(C) No.4754 of 2020 before the Hon'ble Supreme

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Cont. Case (C)No.1329 of 2020

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Court.

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The Hon'ble Apex Court vide order dated 20.02.2020 (AnnexureII), dismissed the Special Leave Petition, as withdrawn, based on the submission of learned Senior Counsel for the petitioners, with liberty to move the High Court for an expeditious hearing of the writ petition, including the issue of reservation.

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Petitioners have further contended that the Court was not inclined to stay the conduct of examination, by placing reliance on the submission of the Kerala Public Service Commission that there are six lakhs candidates appearing for the examination. According to the petitioners, it is a blatant false submission, as there were only 3,75,993 candidates, who got confirmation to write the examination in Stream l, in Stream II there were only 23804 candidates and for Stream III there were only 1582 candidates. Thus, Streams ll and lll have got confirmed candidates of 25,836 only. They further contended that if the rules of reservation are allowed to operate on each stage of selection, the challenge to the reservation implemented in Streams II and III would become infructuous.

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Hence, the petitioners filed I.A. No.2 of 2020 seeking to modify the order dated 13.02.2020, by keeping in abeyance all proceedings for preparation of shortlist by working out the principles of reservation, pursuant to the preliminary examination conducted on 22.02.2020, till

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Cont. Case (C)No.1329 of 2020

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the disposal of the original petition. However, this Court vide order dated 9.3.2020 (Annexure-III) dismissed the interlocutory application, seeking modification, by observing that the interest of the petitioners will be protected by reiterating paragraph 6 of order dated 13.02.2020, as extracted above.

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Petitioners challenged the order dated 9.3.2020 again before the Hon'ble Supreme Court in S.L.P(C) No.6906/2020 and by order dated 13.07.2020 (Annexure-IV), the Hon'ble Apex Court declined to interfere with the order dated 13.02.2020 and dismissed the Special Leave Petition, with an observation that since the issue before the High Court pertains to appointment in Kerala Administrative Service, it would be appropriate if the High Court considers, subject to the exigencies of its own work, listing the proceedings for early disposal. Therefore, Annexures-I and III have attained finality and it is incumbent upon the respondent to seek further orders from this Court.

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Petitioners have further contended that in defiance of Annexures-I and III orders, respondent has published the provisional preliminary list of Stream ll, for the preliminary examination conducted on 22.02.2020, without obtaining orders from this Court. Being aggrieved, this contempt petition is filed praying for a direction to proceed against the respondent for wilful disobedience of the specific

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direction of this Court in Annexures-I and III interim orders dated

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Cont. Case (C)No.1329 of 2020

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13.02.2020 and 09.03.2020 respectively.

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Though Mr.R.T.Pradeep, learned counsel for the petitioners,

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made submissions to invoke the provisions of the Contempt of Courts Act, 1971, we do not find that there is any wilful or intentional violation.

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Hence, this contempt petition is dismissed.

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Registry is directed to place O.P(KAT) No.506/2019 before the Hon'ble Bench on 23.09.2020.

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Sd/- S.Manikumar, Chief Justice

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Sd/-

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Shaji P.Chaly Judge

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vpv

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Cont. Case (C)No.1329 of 2020

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APPENDIX

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PETITIONER'S EXHIBITS:

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ANNEXURE-I ORDER DATED 13.2.2020 IN O.P(KAT) NO.506/2019 ANNEXURE-II TRUE COPY OF ORDER DATED 20.2.2020 IN SLP NO.4754/2020 BY SUPREME COURT OF INDIA ANNEXURE-III ORDER DATED 9.3.2020 IN IA 2/2020 IN O.P(KAT) NO.506/2019 ANNEXURE-IV TRUE COPY OF ORDER DATED 13.7.2020 IN SLP NO.6906/2020 OF THE SUPREME COURT OF INDIA ANNEXURE-V TRUE COPY OF LIST OF PROVISIONAL PRELIMINARY LIST FOR STREAM II DATED 26.8.2020 WHICH IS PUBLISHED BY THE RESPONDENT

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/TRUE COPY/

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P.A. TO JUDGE

Sarathkumar K. v. Saju George

Case brief

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Sarathkumar K. v. Saju George

Case brief

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