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