IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 WP(C).No. 12623 of 2009(W) --------------------------------------- PETITIONER(S): ---------------------- U. JAYALEKSHMY, ULLAS, ARIMBASSERI, THRIKKAKARA P.O., KOCHI-682 021, ERNAKULAM DISTRICT. BY MR.M.K. DAMODARAN, SENIOR ADVOCATE, ADV. MR.P.K.VIJAYAMOHANAN, MR.ALAN PAPALI, MR.GILBERT GEORGE CORREYA, MR.NISHIL.P.S. RESPONDENT(S): ------------------------ 1. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, ERNAKULAM, KAKKANAD,KOCHI-682 030. R1 & R2 BY ADV. MR.ALEXANDER THOMAS,SC,KPSC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 12623/2009-W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ADMISSION TICKET ISSUED BY THE PUBLIC SERVICE COMMISSION FOR THE WRITTEN TEST WITH REG. NO.S.191137 TO THE PETITIONER. EXT.P2: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 02/03/2009 BEFORE THE CHAIRMAN OF THE PUBLIC SERVICE COMMISSION. EXT.P3: COPY OF THE COMMUNICATION NO.RE 2(2) 125/09/191137 DATED 22/04/2009 ISSUED ON BEHALF OF THE 1ST RESPONDENT. EXT.P4: COPY OF THE COMMUNICATION NO.KLR II 2586/08 DATED 16/07/2009 OF THE 1ST RESPONDENT KERALA PUBLIC SERVICE COMMISSION. RESPONDENT'S EXHIBITS: EXT.R1: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER. EXT.R1(a): COPY OF THE PSC LETTER NO.KLR II 2586/08 DATED 16/07/2009 ISSUED TO THE PETITIONER. //TRUE COPY// P.A. TO JUDGE rs. 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