IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 WP(C).No. 31026 of 2009(W) --------------------------------------- PETITIONER: ------------------- SAFEENA BEEVI.S.S, SAFEENA MANZIL, THADICADU.P.O, ANCHAL VIA, KOLLAM. BY ADVS. MR.P.C.SASIDHARAN, MR.E.S.ASHRAF. RESPONDENTS: ------------------------ 1. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, MEDICAL EDUCATION DEPARTMENT(NURSING COURSES), SECRETARIAT, THIRUVANANTHAPURAM. R1 BY MR.ALEXANDER THOMAS,SC,KPSC, R2 BY GOVT. PLEADER MR. SANDESH RAJA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.31026/2009-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RANK CERTIFICATE DTD. 07/10/20009. EXT.P.1.A: COPY OF THE M.SC CERTIFICATE ISSUED BY THE KERALA UNIVERSITY. EXT.P.2: COPY OF THE RELEVANT EXTRACT OF THE NOTIFICATION. EXT.P.3: COPY OF THE RESULT PUBLISHING THE ENTRANCE EXAMINATION. EXT.P.4: COPY OF THE NOTIFICATION PUBLISHING THE RESULT OF M.SC(NURSING) DTD. 14/07/2009. EXT.P.5: COPY OF THE CALL LETTER ISSUED BY THE COMMISSION DTD. 29/09/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.31026 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of January, 2010 J U D G M E N T The petitioner submitted an application for selection to the post of Senior Lecturer (Nursing) in the Medical Education Department of the Government of Kerala, pursuant to a notification issued on 29.05.2009 by the Kerala Public Service Commission. The petitioner did not have the qualifications prescribed for the post, as on the last day for submitting applications. Therefore the petitioner's candidature was rejected by the P.S.C. It is against the same the petitioner has approached this court by filing this writ petition. According to the petitioner, although the results of the qualifying examination were published, subsequent to the last date for submitting applications, the petitioner had written the examination prior to the last date and therefore the petitioner had in fact acquired the qualification prior to the last date for W.P.(C)No.31026 of 2009 -2- submission of applications. The petitioner also raises a contention that the prescription of last date as 01.07.2009 for receipt of application itself is arbitrary and unsustainable. 2. I have heard the learned Government Pleader and also the standing counsel appearing for the P.S.C. An exactly identical question was considered by a learned Judge of this court in W.P.(C) Nos.3840, 5753, 9162 & 9745 of 2009 in which exactly identical contentions were raised and was dismissed by the following judgment. “Common question arises in these writ petitions. They were therefore heard together and are being disposed of by this common judgment. 2. By a notification published in the Kerala Gazette Extraordinary dated 31.7.2007, the Kerala Public Service Commission, hereinafter referred to as ‘the Commission’ for short, invited applications from eligible persons for appointment by direct recruitment as Assistant Engineer (Electrical) in the Kerala State Electricity Board. The number of vacancies notified was 126. The last date fixed for submission of applications was Wednesday, 5th September, 2007. The petitioners in these writ petitions who are Engineering graduates, applied pursuant to the said notification. They were called to appear for the written test that was held on 3.5.2008. The petitioners participated in the written test. Thereafter, a short list was published on 29.10.2008 in which the petitioners were included. The interview was thereafter held on various dates. The petitioners were invited to appear for the interview also. Prior to the interview, verification of documents was conducted. At that W.P.(C)No.31026 of 2009 -3- stage, on noticing that the petitioners passed B.Tech. degree examination only after the last date stipulated for submission of applications, they were not permitted to participate in the interview. These writ petitions were thereupon filed seeking a direction to the Commission to permit the petitioners to participate in the interview. 3. The petitioners contend that the B.Tech. degree examination in Electrical and Electronics Engineering in which they had appeared was conducted by the Mahatma Gandhi University in the month of July, 2007 and as they have passed the said examination, it cannot be said that they were not qualified as on 5.9.2007 notwithstanding the fact that the results were published after the said date, namely, on 26.9.2007. The petitioners in W.P. © Nos.3840 of 2009, 9162 of 2009 and 9745 of 2009 also challenge the prescription of the last date as 5.9.2007 on the ground that it is not tune with the stipulations in paragraph 127 of the Kerala Public Service Commission Office Manual wherein it is stipulated that “ordinarily the last date for receipt of applications for a post should be fixed in such a way that the candidates get at least eight weeks’ time from the date of issue of the Gazette to submit applications and that it should be a Wednesday”. They contend that in the instant case, the Commission did not give eight weeks’ time to the candidates to apply and that if the said period of eight weeks, reckoned from the date of publication of the notification in the Official Gazette, had been given for the candidates to apply, their applications would have been within time. It is contended that the period of eight weeks will expire only on 26.9.2007 namely, the date on which the results were published and therefore, the petitioners should be deemed to be eligible to apply for the post. 4. The Commission has filed a counter affidavit in all these cases contending that as per paragraph 19 of the general conditions forming part of every notification issued by the Commission, the qualifications prescribed, including experience qualification shall be one acquired by the candidate on or before the last date fixed for receipt of applications for the post. It is contended that the date for determining whether a candidate does possess a particular qualification including experience shall be the last date for receipt of the application. Relying on paragraph 19 of the general conditions it is contended that in the case of examinations conducted by Universities or any other competent authority, candidates will be deemed to have passed the examination only with effect from the date of final publication of the results of the W.P.(C)No.31026 of 2009 -4- examination by the Universities or the concerned authority. As regards the contention based on paragraph 127 of the Manual, the stand taken by the Commission is that the Manual has been prepared only for the purpose of internal guidance, that it does not confer any enforceable right on the candidates and that mere deviation from the Manual in the matter of fixation of the last date cannot be a ground to hold that fixation of 5.9.2007 as the last date is illegal. 5. It is not in dispute that the result of the qualifying examination namely, the B. Tech. degree examination for which the petitioners in these cases had appeared was published only on 26.9.2007. The stand taken by the Mahatma Gandhi University is that the petitioners acquired the degree only on that day and that the mere mention of the month and year of the examination for which they had appeared in the degree certificates issued to them will not make them qualified in July, 2007. Relying on the Mahatma Gandhi University Statutes, it is contended that degrees other than honorary degrees have to be awarded by a resolution of the Syndicate in a meeting held subsequent to the declaration of the result and that such award of degrees and diplomas is made in- absentia at a meeting of the Syndicate after the publication of the result. 6. Paragraph 19 of the Guidelines issued by the Commission which forms part of every notification issued by the Commission reads as follows: “In the case of examination conducted by the University or any other competent authority, the candidates will be deemed to have passed the Examination only with effect from the date of official publication of the results of the Examination by the University or the concerned authority.” The validity of paragraph 19 is not under challenge in these writ petitions. It is also not in dispute that the result of the B.Tech. degree examination in which the petitioners appeared was published only on 26.9.2007. Therefore, on the terms of paragraph 19, this Court will necessarily have to hold that on the last date namely, 5.9.2007, the petitioners were not eligible to apply. Then, the short question that arises is whether as contended by the petitioners in W.P.(C) Nos. 3840, 9162 and 9745 of 2009, the decision taken by the Commission to fix 5.9.2007 as the last date, is in any way illegal. W.P.(C)No.31026 of 2009 -5- 7. The petitioners challenge the fixation of the date 5.9.2007 as arbitrary and illegal relying on paragraph 127 of the Manual. The contention of the petitioners is that the Commission ought to have strictly followed paragraph 127 of the Manual and fixed the last date in such a way that the candidates are given eight weeks’ time from the date of issue of the Gazette to submit applications. It is contended that if the said period of eight weeks had been given, the last date would have been 26.9.2007 and that if the Commission had fixed 26.9.2007 as the last date, the petitioners would have been eligible to apply. The petitioners further contend that as the Manual stipulates that the last date should invariably fall on a Wednesday, the last date ought to have been fixed as Wednesday, 26.9.2007, and therefore the Commission erred in rejecting their candidature. They contend that the Commission ought to have treated their applications as valid applications filed within time. 8. I have considered the submissions made at the Bar by Sri.P.C.Sasidharan and Dr. K.P.Satheesan, the learned counsel appearing for the petitioners and Sri.Alexander Thomas, the learned standing counsel appearing for the Commission. Paragraph 127 of the Manual reads as follows: “127. Ordinarily the last date for receipt of applications for a post should be fixed in such a way that the candidates get at least 8 weeks' time from the date of issue of the Gazette, to submit applications and it should be a Wednesday. If the above date is a holiday the next working day will be deemed as the Last Date.” Paragraph 127 begins with the words “ordinarily”. A Constitution Bench of the Apex Court has in Kailas Chandra v. Union of India (AIR 1961 SC 1346) held that the word “ordinarily” does not mean invariably and that use of the expression “ordinarily” gives an option. A Full Bench of this Court has in Rt.Rev.Aldo Maria Petroni v. E.C. Kesavan and others (1964 KLT 791 FB) held that the term “ordinarily” occurring in rule 44 of Chapter XIV A of the Kerala Education Rules gives a certain amount of elasticity to that rule. The Commission contends that the Manual is one prepared for internal guidance and that it does not confer any enforceable right on the candidates. It is stated that earlier when applications were being submitted by post only, the Commission was allowing eight weeks’ time considering the possibility of postal delay and that in view of faster means of transport and speedy delivery of postal articles, the petitioners W.P.(C)No.31026 of 2009 -6- cannot be heard to contend that the Commission should stick to the eight week schedule while fixing the last date. It is also stated that the Commission has decided to speed up the recruitment process and that ever since the year 2005, the Commission is not giving eight weeks’ time from the date of issue of the notification in the Gazette to the candidates to apply. 9. As noticed earlier, paragraph 127 stipulates that “ordinarily” the last date for receipt of applications should be fixed in such a way that the candidates get at least eight weeks’ time to submit applications. There is also a further stipulation that if the last date for submission of applications is a holiday, the next working day should be taken as the last date. The Manual is prepared by the Commission for its guidance and to streamline the functioning of the Commission. It is not a statutory regulation. The stipulation in paragraph 127 is not traceable to any statutory provision. There is also no such stipulation in the Kerala Public Service Commission Rules of Procedure. Therefore, on the terms of paragraph 127, it cannot be said that the Commission had no discretion to fix a period shorter than eight weeks from the date of issue of the Gazette for submission of applications. The Manual does not, in my opinion, confer any enforceable right on the candidates and the petitioners cannot be heard to contend that had the Manual been followed and eight weeks’ time given for submission of applications, they would have been eligible to apply. Recruitment by the Commission is a continuous and ongoing process. The results of examinations conducted by the Universities in Kerala are not published on the same date, but on different dates. Therefore, even if eight weeks’ time is given for candidates to apply, one set of candidates who are not in a position to apply for the reason that their results have not been published can contend that a larger time should given for submission of applications. In such circumstances, I am not persuaded to agree with the learned counsel for the petitioners that fixation of the last date in the instant case is illegal. 10. The notification inviting applications was issued in the Gazette Extraordinary dated 31.7.2007. The petitioners were aware when they submitted their applications that the result of the qualifying examination for which they had appeared had not been published. These writ petitions were filed only in February and March, 2009 after the interview commenced. The petitioners were aware even when they applied that they did not get eight weeks’ time to apply. At this distance of time, long after the selection process W.P.(C)No.31026 of 2009 -7- started, the petitioners cannot, in my opinion, turn round and contend that they ought to have been given a longer time to apply. For the reasons stated above, I hold that there is no merit in these writ petitions. The writ petitions fail and are accordingly dismissed.” 3. I am of the opinion that all the contentions raised by the petitioner has been specifically repelled in the above judgment and therefore the issue is squarely covered by the above decision, with which I respectfully agree. Therefore following that judgment, this petition is dismissed. S. SIRI JAGAN JUDGE shg/