Against The Order In Oa (Ekm) ... vs By Adv. Sri.U.Jayakrishnan
2021 Latest Caselaw 37 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

           THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

                                &

               THE HONOURABLE MR. JUSTICE T.R.RAVI

     MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942

                      OP(KAT).No.436 OF 2020

AGAINST THE ORDER IN OA (EKM) 1812/2020 DATED 03/12/2020 OF KERALA
    ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM (ADDL. BENCH,
                            ERNAKULAM)




APPLICANT IN O.A.:

             KESSIYAMOL KURIAN
             AGED 33 YEARS
             D/O. OMANA KURIAN,
             KALAPPURACKAL HOUSE,
             CHEMBUKADAVU P.O,
             KOZHIKODE - 673 580

             BY ADV. SRI.U.JAYAKRISHNAN


RESPONDENTS/APPLICANTS & RESPONDENTS IN OA:

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

      2      THE SECRETARY,
             KERALA PUBLIC SERVICE COMMISSION,
             TULASI HILLS,
             PATTOM PALACE P.O,
             THIRUVANANTHAPURAM-695 004

      3      THE DISTRICT COLLECTOR,
             K.P.S.C. DISTRICT OFFICE,
             CIVIL STATION RD,
             NEW BLOCK, UP HILL,
             MALAPPURAM, KERALA-676 505
 OP(KAT).No.436 OF 2020

                               2




      4      THE STATE OF KERALA,
             REPRESENTED BY CHIEF SECRETARY,
             GOVERNMENT SECRETARIAT,
             GOVERNMENT OF KERALA,
             THIRUVANANTHAPURAM, KERALA


             SRI.P.C.SASIDHARAN, SC
             SRI.B.VINOD, SR. GOVT. PLEADER


     THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 04.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP(KAT).No.436 OF 2020

                                                 3




                   ALEXANDER THOMAS & T.R. RAVI, JJ.
                    ===========================
                      O. P. (KAT) No. 436 of 2020
                    ===========================
                    Dated this the 4th day of January, 2021

                                    JUDGMENT

ALEXANDER THOMAS, J.

The prayers in the aforecaptioned original petition filed under Article

226 & 227 of the Constitution of India are as follows:

"(i) To call for the records leading to Exhibit P1 order dated 03.12.2020 O.A.EKM No.1812 of 2020 of the Kerala Administrative Tribunal and set aside the same.

(ii) To issue orders or directions as prayed in the O.A. EKM 1812/2020.

(iii) To issue any orders or directions as Hon'ble Court may deem fit and proper in the circumstances of the case."

2. Heard Sri.U.Jayakrishnan, learned counsel appearing for the

petitioner, Sri.P.C.Sasidharan, learned standing counsel for the Kerala

Public Service Commission appearing for respondents 1 to 3 and

Sri.B.Vinod, learned Government Pleader appearing for the 4 th respondent-

State of Kerala.

3. The Annexures referred to in this judgment are with respect to

those as marked in the Original Application filed by the writ petitioner OP(KAT).No.436 OF 2020

before the Kerala Administrative Tribunal. According to the petitioner, she

has submitted application as per Annexure A2 dated 25.01.2020 for the

post of Staff Nurse Gr.II., pursuant to Annexure A1 selection notification

dated 30.12.2019 issued by the respondent-Kerala Public Service

Commission initiating selection process in that regard. Petitioner is

essentially challenging Clause No.10 of Annexure A1 notification dated

30.12.2019 which reads as follows:

"10. If written/OMR/Online Test is conducted as part of this selection, candidate shall submit a confirmation for writing the examination through their One Time Registration Profile. Such candidate alone can generate and download the admission tickets in the last 15 days till the date of test. The application of candidates who do not submit confirmation within the stipulated period will be rejected absolutely. The periods regarding the submission of confirmation and the availability of admission tickets will be published in the Examination calendar itself. Information in this regard will be given to the candidates in their respective profiles and in the mobile phone registered in it. "

4. The complaint of the petitioner is that she could not submit

confirmation of a participation in the OMR examination through the One

Time Registration Profile to the Kerala Public Service Commission within

the time limit provided by the Commission and that at the relevant time

her child was hospitalized and therefore she could not ensure the sending

of confirmation in terms of Clause 10 of Annexure A1 notification and

hence now she has been denied hall ticket for appearing in the examination

to be conducted by the respondent-Kerala Public Service Commission. OP(KAT).No.436 OF 2020

Further that the petitioner is fully qualified for making application for

selection to the post in question and that the abovesaid Annexure A1

notification has been issued after a long time and that now she has crossed

the age of 33 and hence she will not be eligible to part take in any future

selection process of similar nature. Hence the petitioner would seek a

declaration that the impugned Clause 10 of Annexure A1 notification is

invalid and that consequential directions should have been issued by the

Tribunal so as to direct the Kerala Public Service Commission to permit her

to part take in the selection examination.

5. After hearing both sides, the Tribunal has dismissed the

original application filed by the petitioner as per the impugned Ext.P1

order dated 03.12.2020. A reading of the impugned order rendered by the

Tribunal would indicate that the Tribunal has been appraised that from the

year 2018 onwards, the respondent-Kerala Public Service Commission has

been insisting for confirmation from the candidates for participation in the

written examination through their One Time Registration Profile and that

the Commission has been constrained to introduce the said norm, so as to

reduce unnecessary expenditure in holding examination for a large number

of candidates. It has been pointed out that the Kerala Public Service OP(KAT).No.436 OF 2020

Commission has noticed poor attendance of candidates in various

examinations which resulted in avoidable expenditure for the Commission

in making arrangements for the examination and hence it was decided that

the admission tickets for participating in the written examination will be

issued by the Commission only to those candidates who ensure and

confirm their participation in the examination through One Time

Registration Profile and that based on the said confirmation process, the

Commission will be able to ascertain the actual number of serious

candidates who intend to take examination, so that the actual

arrangements for holding of the examination like hiring of examination

halls could thus be determined in advance based on such confirmation

process. In the absence of such a confirmation process, it was found that

ordinarily large number of candidates may submit their application for the

last date and quite a few of them or even large number of candidates in

various selection process may not actually participate in the examination

process. In the result it entails unnecessary and huge expenses to be met

by the Commission for holding such facilities in the examination process.

Further that the intimation regarding confirmation is given to the

candidates sufficient in advance giving them enough time for confirming OP(KAT).No.436 OF 2020

the participation and that the intimation is given to the candidates through

their profiles and also in the registered mobile phone numbers. Hence the

Tribunal has taken the view that it cannot be said that the above said

provision at Clause No.10 of Annexure A1 examination notification results

any arbitrariness or any unreasonable difficulties and hardship to the

bonafide applicants. It appears that the Tribunal has noted that at the time

of issuance of Annexure A1 selection notification dated 30.12.2019 or

before the last date for submission of the application or immediately

thereafter, petitioner has not challenged the impugned Clause No.10 of

Annexure A1 notification. Objections have been raised by her challenging

Clause No.10 of Annexure A1, only when she failed to submit the

confirmation in time and the Tribunal has taken the view that there is no

bonafide that the petition lacks any bonafides. Hence, the Tribunal has

taken the view that since the petitioner has failed to submit the

confirmation before the due date viz; 11.11.2020, her application has been

rightly rejected by the Commission and that therefore the impugned action

of the Commission does not warrant any interdiction at the hands of the

Tribunal. After hearing both sides, we are totally in concurrence with the

reasonings and conclusions arrived at by the Tribunal in the impugned OP(KAT).No.436 OF 2020

Ext.P1 order dated 03.12.2020. It is beyond any dispute that the

respondent-Kerala Public Service Commission is a constitutional entity

established in terms of Article 315 of the Constitution and is vested to carry

out various duties and functions entrusted to them in terms of Article 320

of the Constitution of India. Being a constitutional entity entrusted with

the process of conducting selection to various public services, the

Commission certainly will also have the incidental powers to regulate its

procedure in the matter of conduct of examination and other allied matters

in relation to the selection process. Hence there cannot be any doubt that

the Commission has power to stipulate a condition in the nature of Clause

10 of Annexure A1, so that the Commission is equipped to know in advance

the number of candidates who are seriously intending to part take in the

written examination so that the actual facilities for holding of such

examinations by hiring examination halls etc. could be decided on the basis

of such facts and figures. It has been pointed out by the learned standing

counsel for the Kerala Public Service Commission that, going by the earlier

practice, large number of candidates used to respond to the selection

notification and many of them, did not evince interest to actually part take

in the examination process, with the result that, the Commission was OP(KAT).No.436 OF 2020

constrained to bear huge expenditure in that regard and it is only for

curbing of such wasteful expenditure and for proper logistical management

of the selection process that the Commission has devised the impugned

condition in Clause 10 of Annexure A1 notification. This Court in a series

of decisions as in the judgment dated 05.07.2018 in OP(KAT)No. 244/2018

and judgment dated 18.09.2020 in OP Kat 290/2020 has held that the

Kerala Public Service Commission has a constitutional entity to carry out

the selection process has incidental powers to issue norms of such nature.

Reference in that regard may be made in paragraph 3 of the judgment in

OP(KAT) No.290/2020, which reads as follows:

"3. The learned counsel for the petitioner, however, would submit that the petitioner did not submit the confirmation on account of restriction imposed by the PSC that if the candidate does not participate in the examination, that profile will be blocked and she will not be in a position to participate in any other selection process. But when a specific procedure had been prescribed by KPSC to conduct several examinations involving several lakhs of persons, necessarily a procedure will have to be insisted and the candidate who apply for the same has to strictly follow such procedure. If the concession is extended to one person, it may have to be extended to all candidates. In such circumstance, when there is no challenge to the aforesaid provision, we do not think that the Tribunal had committed any error in dismissing the application. No grounds are made out for interference."

6. However, the counsel for the petitioner would urge that the

above said condition is per se arbitrary and unreasonable and would

deprive the right of livelihood of the petitioner and would deserve

interdiction, etc. To a specific query, as to why the petitioner has not OP(KAT).No.436 OF 2020

challenged the impugned Clause No.10 of Annexure A1 notification and

immediately after the issuance of selection notification or before the last

date of submission of the application or immediately thereafter, the

counsel for the petitioner would point out that at that time the petitioner

had no grievance in that condition and that it is only later when the

petitioner's child was ill that she could not respond to the confirmation

process and it is only then she has suffered the above grievances etc.

Hence, the above said submission made by the petitioner would go to

indicate that the petitioner had no complaints as against the validity and

reasonableness of the impugned Clause No.10 of Annexure A1 selection

notification at the time of issuance of such notification or immediately

thereafter and that it is only on account of the subsequent factual incidents

in relation to her child's hospitalization that she found it necessary to

challenge the said condition. The validity and reasonableness of Clause as

seen in the impugned Clause 10 of Annexure A1 is to be adjudged from the

generality situation and if individual grievances of each and every applicant

is to be taken into account, then the selection body like the Kerala Public

Service Commission may not be able to complete the selection process

within the reasonable time limit. In view of the above said aspects, we are OP(KAT).No.436 OF 2020

totally in concurrence with the reasonings and conclusions arrived at by the

Tribunal in the impugned order. The case would not deserve any

interdiction at the hand of this Court in exercise of powers of judicial

review taking into accounts the facts and circumstances of the case.

With these observations and directions, the above the Original

Petition stands dismissed.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

T.R.RAVI, JUDGE

Pn OP(KAT).No.436 OF 2020

APPENDIX

PETITIONERS' EXHIBITS

EXHIBIT P1 CERTIFIED COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 03.12.2020 IN O.A.EKM NO.1812/2020

EXHIBIT P2 COPY OF THE OA EKM NO.1812/2020 DATED 02.12.2020 FILED BEFORE KERALA ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH

ANNEXURE A1 TRUE COPY OF THE NOTIFICATION VIDE CATEGORY NO.418/2019 DATED 30.12.2019 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION (1ST RESPONDENT)

ANNEXURE A2 TRUE COPY OF THE RECEIPT OF APPLICATION DATED 25.01.2020

ANNEXURE A3 THE TRUE COPY OF THE RELEVANT PAGES OF NOTIFICATION NO.1/2021 DATED 2.11.2020 REGARDING THE CONFIRMATION TO BE GIVEN FOR THE EXAMINATION UNDER CATEGORY NO.418/2019 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION (1ST RESPONDENT)

ANNEXURE A4 A TRUE COPY OF THE MEDICAL CERTIFICATE DATED 27.11.2020 AND OTHER SUPPORTING MEDICAL DOCUMENTS FROM 23.10.2020 TO 27.11.2020

ANNEXURE A5 TRUE COPY OF THE REPRESENTATION DATED 13.11.2020 FILED BEFORE THE CHAIRMAN, KERALA PUBLIC SERVICE COMMISSION (2ND RESPONDENT)

ANNEXURE A6 A TRUE COPY OF THE ARTICLE DATED 19.04.2018 PUBLISHED IN MANORAMA ONLINE