IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 WP(C).No. 25449 of 2009(R) --------------------------------------- PETITIONER(S): ----------------------- SUBASH M.P., AGED 35 YEARS, S/O. PADMANABHAN, CHAUFFEUR (DAILY WAGES) HIGH COURT OF KERALA, ERNAKULAM, RESIDING AT MULANGAPPARAMBIL, PANAIKULAM P.O., ALUVA, ERNAKULAM DIST. BY ADV. MR.C.RAJENDRAN RESPONDENT(S): ------------------------ THE REGISTRAR GENERAL, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. BY ADV. MR.ELVIN PETER P.J. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2009, ALONG WITH WPC NO. 28866 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 25449/2009-R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RELEVANT PAGE OF THE MALAYALA MANORAMA NEWS PAPER DAILY DATED 10/12/2008. EXT.P2: COPY OF THE MODEL APPLICATION FORM. EXT.P3: COPY OF THE SAID APPLICATION DATED 23/07/2009 WITH THE SIGNED PHOTOGRAPH. EXT.P4: COPY OF THE LETTER. EXT.P5: COPY OF THE LETTER REJECTING MY APPLICATION FORM. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE NOTIFICATION DATED 04/12/2008 ISSUED BY THE HIGH COURT OF KERALA. EXT.R1(b): COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR APPOINTMENT TO THE POST OF CHAUFFEUR GR.II. //TRUE COPY// P.A. TO JUDGE rs. ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.25449 (R) & 28866 (R) of 2009 --------------------------------- Dated, this the 21st day of December, 2009 J U D G M E N T The issue being common, these cases are disposed of by this common judgment and reference is made to the pleadings in WP(C) No.25449/2009. 2. The respondent published Ext.R1(a) notification dated 04/12/2008 inviting applications for the post of Chauffer Gr.II. Ext.P1 is the news item concerning the said notification. Ext.P2 is a copy of the format of the application submitted by the petitioner herein. Immediately after submitting the application, he submitted Ext.P3 informing the respondent that he omitted to sign on the photograph affixed on his application and therefore, he may be permitted to produce the signed photograph enclosed to Ext.P3 and allowed to participate in the written examination. However, by Ext.P4 dated 29/09/2009, his application was rejected stating that he had not signed the photograph affixed on the application submitted. On receipt of Ext.P4, this writ petition is filed seeking to quash Ext.P4 and to allow him to take part in the selection process. WP(C) Nos.25449 & 28866/2009 -2- 3. The case of the petitioner is that the requirement to sign on the photograph affixed on the application was not a part of the notification, and was only a requirement on the application form. It is stated that this was not a mandatory condition and that at any rate, as the petitioner submitted Ext.P3 request to be permitted to cure the defect, he ought to have been allowed an opportunity to rectify the defect. 4. On the other hand, the learned standing counsel appearing for the respondent submits that in response to the notification referred to above, 6501 applications were received. It is stated that the Administrative Committee of the High Court considered the applications in its meeting held on 09/07/2009 and resolved to reject the applications with the following defects:- “(a) No signature on the photograph (b) Copy of caste certificate not attached and fee not remitted. (c) Age not specified. (d) Belated applications (e) Photograph not affixed on the application. (f) Unsigned applications (g) Candidates not having prescribed educational qualifications (h) Candidates not possessing driving licence. (i) Applications by over aged persons; and (j) Applications not supported by fee.” WP(C) Nos.25449 & 28866/2009 -3- 5. It is stated that accordingly, 2599 applications were rejected, out of which, 1992 were for not signing on the photograph as required. According to the respondent, this was a case where the petitioners have not complied with the conditions of the notification, that required them to sign across the photograph affixed in the application form. It is stated that its inevitable consequence was rejection of their applications, and that precisely is what the respondent has done. 6. The learned counsel for the petitioner has relied on the judgment of the Apex Court in T.Jayakumar v. A.Gopu and Another (2008(9) SCC 403), while the learned counsel for the respondent relied on the judgments of this Court in Kerala Public Service Commission v. Varghese and others (ILR 1977(1) Kerala 523), Kerala Public Service Commission v. Saroja Nambiar (ILR 1978(2) Kerala 241) and Binimil K.G. v. K.P.S.C. (1997(2) KLJ 477). 7. I have considered the submissions made. True, as contended by the learned counsel for the petitioners, the notification did not contain the requirement that the applicants should paste a photograph in the application form and put his/her WP(C) Nos.25449 & 28866/2009 -4- signature across the photograph. However, Ext.P2 format of the application contains a column with the following instructions; “Paste your recent passport size photograph and sign across it (Do not staple or pin)”. Therefore, the candidates required to paste a recent passport size photograph and put signature across the photograph. Ext.R1(b) is the application submitted by the petitioner, which shows that the petitioner did not put his signature on the photograph. The petitioners in these cases do not have a case that they had affixed their signature on the photographs. Therefore, there has been violation of the instruction requiring the candidates to affix their signature. When such a condition has not been complied with, it is up to the appointing authority to consider whether the same is to be condoned or not. In this case, the Administrative Committee of the High Court, in its meeting held on 09/07/2009 resolved not to condone such defects and to reject the defective applications. It was accordingly that the applications of the petitioners were rejected. 8. The question is whether when the appointing authority decided to reject the applications for non-compliance with the WP(C) Nos.25449 & 28866/2009 -5- conditions of the recruitment, this Court should interfere with such a matter. In my view, this question has already been answered by this Court in the judgments relied on by the learned counsel for the respondent. 9. The first judgment he relied on is the judgment of a Division Bench of this Court in Kerala Public Service Commission v. Varghese and others (ILR 1977(1) Kerala 523). That was a case where the applicant did not produce the original chalan receipt, but produced a duplicate copy issued under the Treasury Code. The PSC rejected the application for not producing the original chalan receipt. That was called in question and the Original Petition was allowed. The appeal filed by the PSC was dealt with by a Division Bench of this Court in the aforesaid judgment. It was held that if the PSC insists upon accompaniment of the original chalan receipt, such a requirement cannot be said to be an unreasonable one and that once the requirement is held to be not unreasonable, it is not open for this Court to go into the question further. Proceeding further, it has been held that if the PSC has prescribed production of the original chalan receipt as a requirement, non-compliance WP(C) Nos.25449 & 28866/2009 -6- therewith must result in the rejection of the application, and that the PSC cannot be expected to investigate further in a case where the application is not in compliance with the requirements. Finally it has been held thus :- “We do not think that it is fair to interfere in these matters unless it is shown that has been malafides in the conduct of the Commission or any of its Officers in the matter of rejecting application or there has been cellousness or disregard of its own directions. If the circumstances indicate only a rejection of an application for non-compliance with the requirements specified by its own notification, merely because this Court feels it is unfortunate that the application happened to be rejected it may not be fair for this Court to direct the Pubic Service Commission to entertain the application. Of course, the Public Service Commission has certainly power in appropriate cases to look into such matters and entertain applications if it finds that the circumstances justify such entertainment. But that discretion must be left to the Public Service Commission and the Public Service Commission cannot be compelled to exercise such discretion in any given cases.” 10. The 2nd judgment cited by the learned counsel for the respondent is in Kerala Public Service Commission v. Saroja Nambiar (ILR 1978(2) Kerala 241). That was a case where the documents which were required to be produced were not enclosed to the application. The application was rejected and the Original WP(C) Nos.25449 & 28866/2009 -7- Petition filed challenging the rejection was allowed. Allowing the appeal filed by the PSC, in paragraph 5 of the judgment, it has been held thus:- “5. In our opinion, the appellant is right in its contention that in as much as the petitioner had failed to comply with the conditions stipulated in the notification regarding production of the documents in proof of possession by her of the prescribed qualifications along with the application submitted by the candidate to the Pubic Service Commission, the Pubic Service Commission was acting fully within its rights in rejecting the application, and, no interference was called for by this Court with the orders, Exts.P4 and P6, passed by the Commission. It is not contended by the first respondent that the conditions stipulated by the Pubic Service Commission in the notification were in any way unreasonable. Such being the case, it was fully within the competence and jurisdiction of the Pubic Service Commission to determine whether the application submitted by the petitioner was a valid one in the sense of its having conformed to the stipulations contained in the notification and to reject the same on its being found that those conditions were not satisfied by the Writ Petitioner.” 11. Following these two judgments, another Division Bench of this Court rendered the judgment in Binimil K.G. v. K.P.S.C. (1997 (2) KLJ 477) holding that any violation of the conditions stipulated in the notification is a ground for rejection of the application, and that the Courts have always taken the stand that in such matters, the WP(C) Nos.25449 & 28866/2009 -8- extraordinary jurisdiction under Article 226 of the Constitution of India cannot be extended. 12. In view of the aforesaid binding precedents for non- compliance with the requirement of a notification, if an application is rejected, this Court will not be justified in interfering with the same, unless it is proved to be a malafide exercise of power. There is no material or pleadings in this regard. The learned counsel for the petitioners placed reliance on the Apex Court judgment in T.Jayakumar v. A.Gopu and Another (2008 (9) SCC 403). That was a case, where the application did not bear signature of the applicant, and the application was received after the last date specified. However, despite the defects, the applicant was called for interview and it was thereafter that his application was rejected. The Apex Court upheld the rejection of the application. But however directed to accommodate the candidate against the available or future vacancies. Unlike in this case, that was a case where irrespective of the defects, the applicant was allowed to participate in the selection process. In my understanding this was a case, where the Apex Court exercised its discretion under WP(C) Nos.25449 & 28866/2009 -9- Article 142 of the Constitution of India, which discretion, this Court does not have. Therefore, the said judgment does not advance the case of the petitioner, in any manner. These writ petitions fail and are accordingly dismissed. (ANTONY DOMINIC, JUDGE) jg