High Court Kerala High Court

U.Jayalekshmy vs Kerala Public Service Commission on 19 August, 2009

Kerala High Court
U.Jayalekshmy vs Kerala Public Service Commission on 19 August, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 12623 of 2009(W)


1. U.JAYALEKSHMY, ULLAS, ARIMBASSERI,
                      ...  Petitioner

                        Vs



1. KERALA PUBLIC SERVICE COMMISSION
                       ...       Respondent

2. THE DISTRICT OFFICER,

                For Petitioner  :SRI.P.K.VIJAYAMOHANAN

                For Respondent  :SRI.ALEXANDER THOMAS,SC,KPSC

The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :19/08/2009

 O R D E R
                            P.N.RAVINDRAN, J.
                   -----------------------------
                      W.P(C) No. 12623 of 2009-W
                   ------------------------------
               Dated this the 19th day of August, 2009.

                             J U D G M E N T

By a notification published in the Kerala Gazette dated

28.3.2007, the Kerala Public Service Commission, hereinafter referred to

as the ‘Commission’ for short, invited applications for appointment to the

post of Assistant Gr.II/Junior Clerk/LDC etc, in various Government

owned Companies/Corporations/Boards etc. The last date prescribed for

submission of applications was 2.5.2007, but it was later extended upto

9.5.2007. Though a copy of the notification has not been produced by

either side, it is not in dispute that as per the notification, applications

could be submitted either in the conventional method ie. by filling up

and submitting a printed form or on-line.

2. The petitioner applied in the conventional method.

Her application was entertained and the admission ticket evidenced by

Ext.P1 was issued, inviting her to appear for the objective type test that

was held on 23.3.2008. The petitioner appeared for the written test. She

was found eligible and was included in the short list published on

7.2.2009. She was thereafter called to appear for verification of

documents that was held on 26.2.2009. According to the petitioner, at

the time of verification, her application was rejected on the ground that

W.P(C) No. 12623 of 2009-W 2

she had not affixed her signature in the application form, though the

certificates were in order. It is stated that an endorsement was made on

the original of her application that the “application is rejected”. The

petitioner thereafter submitted Ext.P2 representation dated 2.3.2009

addressed to the Chairman of the Commission requesting him to treat

her application as a valid application for the post. This writ petition was

thereafter filed seeking a writ in the nature of mandamus commanding

the respondents to consider the petitioner’s application as a valid

application. The petitioner has also prayed for a declaration that as the

Commission had entertained on-line applications that do not bear the

signature of candidates, for the very same post under the very same

notification, her application is in order.

3. When this writ petition came up for admission on 24.4.2009,

this Court while admitting the writ petition directed the Commission to

consider the request made by the petitioner in Ext.P2 representation

having regard to the fact that on-line applications which do not bear the

signature of the applicants were also entertained by the Commission.

The Commission had two days before the said interim order was passed,

informed the petitioner by Ext.P3 letter dated 22.4.2009 that her

application was rejected for the reason that she had not affixed her

signature therein. Later as directed by this Court, the Commission

W.P(C) No. 12623 of 2009-W 3

considered the request made by the petitioner in Ext.P2 representation

and informed her by Ext.P4 letter dated 16.7.2009 that as her application

did not bear her signature, the Commission that met on 1.6.2009

resolved to reject her application. This writ petition was thereafter

amended by incorporating a challenge to Ext.P4.

4. I heard Sri.M.K.Damodaran, the learned Senior Advocate

appearing for the petitioner and Sri.Alexander Thomas, the learned

standing counsel appearing for the Kerala Public Service Commission.

The petitioner contends that as the Commission had received and

entertained on-line applications which do not admittedly bear the

signature of the applicants for the very same post under the very same

notification, the failure to affix her signature in the conventional

application form looses significance and therefore the rejection of her

application at a belated stage, namely after the publication of the

shortlist, is arbitrary and illegal. The petitioner also contends that as on-

line applications which do not bear the signature of candidates were

entertained, the rejection of conventional applications which do not bear

the signature of candidates is discriminatory. The Commission has filed

a counter affidavit dated 24.6.2009 and an additional affidavit dated

22.7.2009. In the counter affidavit dated 24.6.2009, the Commission

has contended relying on para 26(b) and para 29 of the General

W.P(C) No. 12623 of 2009-W 4

Conditions that the petitioner’s application which admittedly did not bear

her signature was liable to be rejected and was rightly rejected by the

Commission. It is stated that a detailed scrutiny of the applications was

not done before the OMR Test was held on 23.3.2008 and that as the

petitioner had applied in the conventional method, her application which

lacked her signature cannot be treated as a complete one. As regards the

petitioner’s contention that on-line applications which do not bear the

signature of candidates were entertained, the Commission has stated that

the on-line applications cannot be equated with conventional applications

and that it is not possible for the Commission to obtain the signature of

candidates on the on-line applications. Relying on Para 28(a) of the

General Conditions it is contended that the candidature of every applicant

is provisional at all stages and that the Commission has power to reject

the candidature at any stage. The Commission also relies on the decision

of the Apex Court in Ashok V. PSC (2001(2) KLT 788) and the decisions

of this Court in W.P(C) Nos.34380 of 2008, 2748 of 2009, W.A.Nos.1697

of 2007 and 2506 of 2007 to contend that when the consequences of

non adherence to the General Conditions have been laid down and the

Commission has not been given the discretion to condone the breach, the

consequences following the breach have to be taken and therefore

the action taken by the Commission is not arbitrary or illegal. The

W.P(C) No. 12623 of 2009-W 5

Commission has also referred to and relied on the decision of this Court

in Rangaswamy V. KPSC(1982 KLT 575) and of the Apex Court in

T.Jayakumar V. A.Gopy & another (2008(9) SCC 403) in support of their

stand. During the course of arguments, the learned standing counsel

appearing for the Commission contended relying on Rule 15A of the

Kerala Public Service Commission Rules of Procedure that the

Commission has the power to correct any clerical, typographical,

arithmetical or other mistake in the ranked 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 and that the Commission has rejected the petitioner’s

application in exercise of the inherent power thus reserved with the

Commission.

5. I have considered the submissions made at the Bar by the

learned counsel appearing on either side. The Commission does not

dispute the fact that the notification inviting applications for the post in

question permitted submission of applications in the conventional

method and also on-line. It is not in dispute that the petitioner’s

application was never subjected to scrutiny at the threshold and that she

was permitted to appear for the written test held nearly one year after the

notification inviting applications was published in the official gazette.

The written test was held on 23.3.2008 and the shortlist was published

W.P(C) No. 12623 of 2009-W 6

nearly one year thereafter on 7.2.2009. Thus for a period of nearly two

years the Commission had acted on the petitioner’s application and called

her to appear for the written test. Her name was also included in the

short list published on 7.2.2009. On 26.2.2009, when the verification of

documents was conducted and the petitioner appeared for the same, on

noticing that the petitioner’s conventional application did not bear her

signature, the Commission rejected her application. The Commission

justifies its stand relying on the General Conditions which stipulate that

failure to affix the candidate’s signature in the application form will entail

rejection of the application. The Commission also places reliance on

various decisions of this Court and of the Apex Court which recognises

such power in the Commission.

6. In the instant case, the method of selection is by written test.

Rule 4 of the Kerala Public Service Commission Rules of Procedure

governs the conduct of the written test. Rule 4 stipulates that where a

written examination and/or a practical test is conducted by the

Commission for recruitment to a service or post, the Commission shall

(i) announce

(a) the qualifications required of the candidates for the
examination,

(b) the conditions of admission to the examination
including the fees,

(c) the subjects, scheme or syllabus of the examination,
and

(d) the number of vacancies to be filled from among the

W.P(C) No. 12623 of 2009-W 7

candidates for the examination.

7. When the Commission publishes a notification, it

complies with rule 4(i) by announcing the qualifications and other matters

referred to in rule 4(i). It also complies with sub rule (ii) of rule 4 which

stipulates that the Commission shall invite applications and consider all

the applications so received. Sub rule (iii) of rule 4 stipulates the

Commission shall make all arrangements for the conduct of the

examination for the candidates whose applications are found to be in

order. Sub rule (iv) of rule 4 stipulates that the Commission shall

thereafter prepare a list in the order of merit of such number of

candidates as the Commission may determine from time to time. Similar

stipulations also find a place in rule 5 which governs selection by

interview. A reading of rules 4 and 5 indicates that the Commission is

bound to scrutinize the applications received and make arrangements for

the conduct of the examination or the oral test in respect of candidates

whose applications are found to be in order. In the instant case, the

Commission admittedly did not follow the said procedure. The fact that

there was no scrutiny of the applications before the written test was

conducted, is not in dispute. After the shortlist was published, the

Commission rejected the petitioner’s application on the ground that it did

not bear her signature. The learned standing counsel for the

W.P(C) No. 12623 of 2009-W 8

Commission submits that in view of the fact that a large number of

applications were received, the Commission was not in a position to

scrutinize all the applications and invite only those candidates whose

applications were in order, for the written test. The selection process

commenced when the notification was published in the Official Gazette

dated 28.3.2007. According to the Commission, 32251 on-line

applications and 1,19,758 conventional applications were received

pursuant to the said notification. The written test was conducted only

one year later on 23.3.2008. In my opinion, the Commission ought to

have during the said period of one year conducted a scrutiny of the

applications and rejected applications submitted in the conventional

method if they did not bear the signature of the candidate. The

Commission, which is entrusted with the duty to select candidates for

appointment to public services cannot in my opinion be heard to say that

it does not have the duty to adhere to the rules in the matter of scrutiny

or verification of applications. The said contention is in my opinion liable

to be rejected.

7. The Commission does not dispute the fact that on-line

applications do not bear the signature of the candidate. The Commission

has not brought to my notice any provision in the Kerala Public Service

Commission Rules of Procedure, which permits the Commission to

W.P(C) No. 12623 of 2009-W 9

receive on-line applications without signature or dispenses with the

signature of candidates in on-line applications. The General Conditions

according to the Commission, apply uniformly and to all candidates. In

the instant case, the Commission had invited applications both on-line

and in the conventional method. In the absence of any stipulation in the

General Conditions that on-line applications which do not satisfy the

stipulations in the General Conditions especially the signature part will

also be entertained, I am of the opinion that the rejection of the

petitioner’s application after she was permitted to appear for the written

test and her name was shortlisted, on the short ground that the

application submitted by her did not bear her signature is arbitrary. If

applications which do not bear the signature of the candidate is liable to

be rejected, the Commission ought to have in my opinion rejected all the

32251 on-line applications. That has not been done. Evidently because

of that fact, the failure of the petitioner to affix her signature in the

conventional application submitted by her was also condoned by the

Commission and she was permitted to appear for the written test. In

other words, from the conduct of the Commission in entertaining the

petitioner’s application and in permitting her to appear for the written

test, it has to be presumed on the peculiar facts of this case, that the

Commission had condoned the failure of the petitioner to affix her

W.P(C) No. 12623 of 2009-W 10

signature in the application form. The Commission has not stated

before me that any other application was likewise rejected. In such

circumstances, I am persuaded to hold that the petitioner’s application

was illegally rejected.

In the result, I allow this writ petition, quash Exts.P3 and P4 direct

the Kerala Public Service Commission to treat the petitioner’s application

as a valid application. All the necessary consequences shall follow.

Sd/-

P.N.RAVINDRAN
JUDGE

//True Copy//

PA to Judge
ab