IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WA.No. 2761 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.20266/2009 Dated 06/10/2009 .................... APPELLANT(S)/1ST PETITIONER: -------------- SHAJI V. S/O. VINCENT, RESIDING AT CHERUPUZHAPAM NRA (E) 15, PEROORKADA, P.O., THIRUVANANTHAPURAM, PRESENTLY WORKING AS DEPUTY TAHSILDAR, TALUK OFFICE, NEDUMANGAD. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.K.N.SASIDHARAN NAIR RESPONDENT(S)/RESPONDENTS: --------------- 1. THE KERALA PUBIC SERVICE COMMISSIONER, REPRESENTED BY ITS SECRETARY, OFFICE OF THE KERAPA PUBLIC SERVICE COMMISSION, PATTOM PALACE P.O.,THIRUVANANTHAPURAM. 2. THE JOINT SECRETARY (DEPARTMENT TESTS) OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, PATTOM PALACE P.O., THIRUVANANTHAPURAM. BY SRI.ALEXANDER THOMAS, SC, KPSC THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON 28/07/2010 DELIVERED THE FOLLOWING: “ C.R” J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. ----------------------------------------- W.A.No.2761 of 2009 ----------------------------------------- Dated this the 28th day of July, 2010 JUDGMENT Ravindran. J. The appellant, who is working as Deputy Tahsildar in the Revenue Department along with another Deputy Tahsildar filed W.P(C) No.20266 of 2009 challenging the rejection of their applications for appearance in a departmental test by the Kerala Public Service Commission. By judgment delivered on 6.10.2009 the learned single Judge dismissed the writ petition. The brief facts of the case are as follows. 2. The appellant along with the second petitioner in the writ petition, who is not a party to this appeal, submitted an application in the prescribed form pursuant to Ext.P1 notification dated 5-9-2007 issued by the Kerala Public Service Commission, for appearance in the Kerala Criminal Judicial Test, which is a departmental test they are required to pass for further promotion in terms of the stipulations in that regard in the rules governing their service conditions. In the notification inviting applications it was stipulated that applications which do not bear the designation seal of the Head of Office/Gazetted W.A.No.2761 of 2009 -:2:- Officer who has attested the photograph of the candidate affixed on the application, will be rejected as defective. The application submitted by the appellant was found to be defective for the reason that the designation seal of the officer who had attested the appellant's photograph pasted on the application had not been affixed. Ext.P2 memo dated 12-3-2008 was thereupon issued. As regards the second petitioner, the defect pointed out was that the name of the attesting officer had not been mentioned in the application. Ext.P3 memo dated 12.3.2008 was thereupon, issued to the second petitioner. The appellant and the second petitioner thereupon filed W.P(C)No.12201 of 2008 in this Court challenging Exts.P2 and P3 memos. 3. In that writ petition this Court passed an interim order on 10.4.2008 directing the Kerala Public Service Commission to permit the appellant and the second petitioner to appear for the departmental test that was held on 17-4-2008 and 18.4.2008. The originals of Exts.P4 and P5 admission tickets were thereupon issued to them and the petitioners appeared for the departmental test. Thereafter W.P(C) No.12201 of 2008 was heard and disposed of by this Court by Ext.P6 judgment delivered on 20-8-2008. Taking note of the fact that W.P(C)No.38228 of 2007 and connected cases, wherein similar rejection memos were under challenge had been disposed of with a W.A.No.2761 of 2009 -:3:- direction to the Kerala Public Service Commission to consider whether the defects noted by the Commission in the rejection memos are curable or condonable and to take further action after such consideration, this Court disposed of W.P(C)No.12201 of 2008 with the observation that the directions issued by this Court in W.P(C)No.38228 of 2007 will govern the petitioners in W.P(C)No.12201 of 2008 also. 4. After Ext.P6 judgment was delivered, the result of the departmental test held pursuant to Ext.P1 notification was published vide Ext.P7 notification dated 19-9-2008. The results of the appellant and the second petitioner were withheld. The Commission thereafter considered the question whether the defects noticed by the Commission in Exts.P2 and P3 memos are curable and condonable. The Commission took the stand that the rejection of the applications submitted by the appellant and the second petitioner is in order and therefore, the results of the departmental test, in so far as it relates to them, cannot be published. Exts.P8 and P9 memos were accordingly issued on 5-1-2009. The instant writ petition was thereupon filed challenging Exts.P2, P3, P8 and P9 memos and clause 16 of Ext.P1 notification and seeking a direction to the respondents to publish the results of the departmental test held pursuant to Ext.P1 notification. The appellant and the second respondent contended, relying on W.A.No.2761 of 2009 -:4:- Ext.P10 judgment of a learned single Judge of this Court in W.P(C) No.32876 of 2008 that the rejection of their applications for the only reason that the designation seal had not been affixed or the name of the officer who had attested the application form had not been mentioned is arbitrary and illegal. The Commission resisted the writ petition contending that the application submitted by the petitioners was defective and that they were rightly rejected. By the judgment under challenge the learned single Judge held that the defects noticed by the Commission are defects which can be cured only if the application is returned to the applicant and he is permitted to take it back to his office and get it cured suitably and that such a procedure would bring about uncertain consequences and therefore the Commission cannot be directed to adopt such a procedure which is inconsistent with the stipulations in Ext.P1 notification. The writ petition was accordingly dismissed. Aggrieved by the judgment, the first petitioner in the writ petition has preferred this appeal. 5. We heard Sri.P.B.Suresh Kumar, learned counsel appearing for the appellant and Sri.Alexander Thomas, learned Standing Counsel appearing for the Kerala Public Service Commission. Pursuant to the directions issued by this Court on 11-12-2009 when the writ appeal was admitted, the learned Standing Counsel appearing for the Kerala W.A.No.2761 of 2009 -:5:- Public Service Commission made available to us the original of the application submitted by the appellant pursuant to Ext.P1 notification. We have perused the said application and a photocopy thereof is incorporated in the records. We have also perused the pleadings and the materials on record. In Ext.P1 notification inviting applications from persons in government service to appear in the Kerala Criminal Judicial Test it was stipulated as follows:- “9. Candidates should fill up the particulars required in the form of application correctly and legibly. Candidates should state the part or parts in which they desire to be examined. Applications which are irregular or defective in any respect will be rejected. 16. Applications with the following defects will also be rejected. (a) Application not having any proof for remittance of prescribed fee. (b) Photograph of the applicant not affixed on the application/Admission Ticket. (c) Photograph not clear. (d) Photograph not attested by Head of Office/ Gazetted Officer. (e) Designation Seal not affixed on the photograph. (f) Name of the attesting authority not mentioned. (g) Subject specifications in the application not clear. (h) Designation of the applicant not specified. W.A.No.2761 of 2009 -:6:- (i) Office Seal of the attesting authority not affixed. (j) Certificate portion in Admission Ticket not attested. (k) Applicant claimed for free chance, but not duly certified by the Head of Office concerned. (l) Applicant not eligible for exemption from remitting exam. fee, but applied for free chance. (m) Applicants already availed free chance apply for free chance again for a part of the test.” (emphasis supplied) 6. Going by paragraphs 9 and 16 of Ext.P1 notification, applications which are irregular and defective in any respect are liable to be rejected. The proforma of the application for departmental test is given in Annexure III to Ext.P1 notification. The application form also contains the admission ticket, which is detached and issued to the candidate for appearance in the departmental test. In the application form it is stated that a recent photograph of the candidate attested by the Head of Office/Gazetted Officer should be pasted in the space provided for the purpose. It is also stipulated that the name, designation and signature of the Head of Office/Gazetted Officer should appear and that an office seal should also be affixed. The application form also contains a certificate to be issued by the Head of Department or office to the effect that the entries in the application form are correct and that the candidate is eligible to appear for the W.A.No.2761 of 2009 -:7:- test. He has also to certify certain other facts. In the proforma of the admission ticket which forms part of the application form and is issued to candidates whose applications are in order to enable them to appear for the test also, a photograph with attestation in the manner prescribed has to be affixed. Therein also the name, designation and signature of the attesting officer should appear and the office seal should be affixed. The attesting officer should also certify that the candidate whose photograph and signature are given therein, is identified by him. He has to affix his signature and disclose his name and designation and also affix his office seal underneath such certification. 7. The Commission had pursuant to the interim order passed by this Court in the writ petition issued the originals of Exts.P4 and P5 admission tickets to the petitioners. Ext.P4, which is the admission ticket issued to the appellant, discloses that the officer, who had certified that the appellant, whose photograph and signature are affixed in the admission ticket, has been identified by him, has affixed his signature with date across the photograph of the appellant pasted on the original of the hall ticket. He has also signed the certificate of identification and has affixed his designation seal and office seal on the hall ticket. The attestation in the hall ticket was made by W.A.No.2761 of 2009 -:8:- Sri.K.Atheenal, Tahsildar, Nedumangad, who is admittedly the Head of Office where the appellant was working as Deputy Tahsildar. The Tahsildar is admittedly the Head of Taluk Office, Nedumangad where the appellant was working. Therefore, the Tahsildar is competent to attest the photograph and to certify that the candidate has been identified. Then the only question is whether the omission to affix the designation seal of the attesting officer on the photograph pasted on the application form and in the hall ticket will result in rejection of the appellant's application. 8. The original of the application submitted by the appellant, which was made available to us discloses that the very same attesting officer, who had attested the hall ticket, had affixed his signature bearing the date 29.10.2007 across the appellant's photograph. He has also certified on the second page of the application that the entries in the application form are correct and that the candidate is eligible to appear for the test. The certificate bears the signature of the attesting authority with date, his designation seal and office seal. Therefore, the certificate is properly issued by the Head of Office. Further the appellant has in column 3 of the application, stated that he is working as Junior Superintendent in the Taluk Office, Nedumangad. Therefore, it is evident from the certificate issued by the attesting W.A.No.2761 of 2009 -:9:- officer that the appellant is a government servant and is working as Junior Superintendent, in Taluk Office, Nedumangad. The only reason for rejecting the appellant's application is that the designation seal of the officer who had attested the photograph and the office seal have not been affixed on the photograph or by its side. As noticed earlier the application runs into two pages. The second page is printed on the obverse of the first page and they are not separate sheets. The office seal and designation seal of the Head of Office who had attested the photograph of the appellant are available on the obverse of the application. Since the same officer, viz. the Head of Office (Tahsildar, Taluk Office, Nedumangad) had attested the photograph and also issued the certificate, we are of the opinion that in the instant case the rejection of the appellant's application was not called for. May be in a given case where the photograph is attested by an officer other than the officer who has issued the certificate on the second page of the application, the omission to affix the designation seal and office seal may lead to the rejection of the application. The attestation in the instant case, which is said to be defective, is the attestation of the photograph of the appellant which, as noticed above, was made by the very same officer who had issued the certificate on the second page of the application, which is on the obverse of the first page. The same is W.A.No.2761 of 2009 -:10:- the position in the case of the admission ticket also, in which the attestation of the photograph and the identification of the candidate are to be done in the same page. Therefore, on the facts of this case we are of the considered opinion that the stand taken by the Kerala Public Service Commission that the attestation of the appellant's photograph is defective for the reason that the attesting officer had not affixed his designation seal, is too technical a reason to reject the application. As noticed earlier, in a given case where the attestation of the photograph is by an officer other than the officer who has issued the certificate in the application form, the attesting officer also will have to affix his designation seal and office seal. But that cannot govern cases where the officer who has attested photograph and had also issued the certificate is one and the same officer and at least in one portion the office seal and designation seal are available. Further, the Head of Office has also certified that the entries in the application form are correct. The insistence on the photograph of the candidate being attested and the candidate being identified is to ensure that only persons in government service apply for appearance in the departmental test. In other words, it is to ensure that persons who are not in service do not appear for such tests, since the departmental tests are held exclusively for government servants. We are, therefore, W.A.No.2761 of 2009 -:11:- of the considered opinion that the rejection of the appellant's application to appear for the Kerala Criminal Judicial Test made by him pursuant to Ext.P1 notification dated 5-9-2007 cannot be sustained. We accordingly allow the appeal, reverse the decision of the learned single Judge and quash Exts.P2 and P8 memos. The respondents shall, within two weeks from the date on which the appellant produces a certified copy of this judgment before the Secretary, Kerala Public Service Commission, publish the result of the departmental test for which the appellant had appeared pursuant to the interim order passed by this Court in the writ petition. The parties shall bear their respective costs. J.CHELAMESWAR, Chief Justice P.N.RAVINDRAN, Judge. ahg. J.CHELAMESWAR, C.J. & P.N.RAVINDRAN, J. --------------------------- W.A.No.2761 of 2009 ---------------------------- JUDGMENT 28th July, 2010