IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 WP(C).No. 30273 of 2009(D) ---------------------------------- PETITIONER(S): ------------------------ NEENA N.K., THARAVATTATH HOUSE, P.O.MARUDONKARA, VIA. KAVILUMPARA, KOZHIKODE-673 513. BY ADV. MR.P.C.SASIDHARAN RESPONDENT(S): -------------------------- 1. THE KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, KOZHIKODE. ADV. MR.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2009, THE COURT ON 14/12/2009 DELIVERED THE FOLLOWING: tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.30273 of 2009-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of December, 2009. JUDGMENT A mistake in mentioning the category code by the petitioner in the application is a fatal one or not, is the question that arises for decision in this writ petition. 2. The petitioner is a Post Graduate in English with B.Ed. qualification. The Public Service Commission invited applications for filling up the post of H.S.A. English in all 14 districts and petitioner was an applicant from Kozhikode district. 3. By Ext.P1, she was invited to participate in the written test. Therein, her category code was noted as 83/2006. By Ext.P2 memo she was informed that her application stands rejected, as instead of category 83/2006 it is mentioned wrongly as 84/2006 in her application. Ext.P3 is the copy of the notification published by the Public Service Commission. Category 83 is for direct recruitment from open market and 84 is for appointment by transfer. 4. The petitioner’s contentions are many fold. It is submitted that a mistake, if at all in the category is immaterial as the notification was to fill wpc 30273/2009 2 up the post of H.S.A. English itself. It is pointed out that the petitioner was issued the hall ticket for appearing in the written test and thus, as the petitioner’s application was treated as a valid one, at a later point of time it cannot be rejected. Reliance is also placed on Ext.P4 circular dated 29.5.2009 issued by the Public Service Commission itself with regard to the procedure prescribed for rejecting applications on the basis of mistake in the category number. It is pointed out that going by the Circular dated 21.12.2005, the Commission itself had specified that even if category number or the name of post have been wrongly mentioned, they could be accepted based on the name of the post written therein. By Ext.P4 circular the Commission directed not to accept those applications thereafter. It is pointed out that this circular cannot have a retrospective operation to reject the application of the persons like the petitioner, whose application is prior t the date of issuance of the Circular. 5. The Public Service Commission has filed an affidavit as directed by this Court. It is pointed out that after a detailed scrutiny of the application, it was found that the petitioner had erroneously entered the category number in the application as 84/06. It is a fatal defect and therefore the application was rightly rejected. Reliance is placed on para 14 (a) of the general conditions in the notification which stipulates that the wpc 30273/2009 3 candidates should explicitly note the name of the post, category number and department of the respective post in the application and at the envelope. It is the case of the Commission that incorrect entry of category number assigned for a post tantamount to stating that the candidate has not applied for the post. It is also explained that Ext.P4 circular is one published as a sequel to the judgment in W.P.(C) No.35209/2008. It is further pointed out that it does not estop the Commission from rejecting an application. 6. Both sides have relied upon various decisions of this Court. Learned counsel for the petitioner relied upon the decisions in Kuriakose v. State of Kerala and others (1984 KLT 925) and Manoj Kumar v. Kerala Public Service Commission (1999 (2) KLT 534). Learned counsel for the Commission relied upon the decision of this Court in Binimil K.G. v. K.P.S.C. (1997 (2) KLJ 477) and that of the Apex Court in T. Jayakumar v. A. Gopu and another {(2008) 9 SCC 403} and the judgment of a learned Single Judge in W.P.(C) No.28048/2008 wherein an almost identical issue arose for decision. 7. First I will examine the decisions relied upon by the learned counsel for the petitioner. In Kuriakose’s case (1984 KLT 925), the question raised was not identical. Therein, relaxation was given by the wpc 30273/2009 4 appointing authority with regard to the production of original documents at the time of interview. The successful candidate produced the originals of the testimonials before joining duty. In these circumstances, the question was examined whether the non production of the original documents at the time of interview is fatal to the selection itself. It was held thus: “A stipulation regarding the production of the original documents at the time of interview need not be such a fundamentally importat condition as not to admit of any relaxation whatever. At any rate it is essentially for the selecting authority to decide whether there should be any relaxation in respect of such a stipulation. Normally, when the authority bona fide comes to a conclusion that some relaxation could be given in that regard, this court will be extremely reluctant to interfere with such a policy decision. In this case, before joining duty, the originals of the testimonials had been furnished to the 2nd respondent. The non-production of the originals at the time of interview, in the circumstances, is not a matter of substance. It is an omission of a venial nature. It is of such a nature which could be waived or relaxed by the appropriate authority, without in any way causing detriment to public interest or going counter to a public policy in a substantial or fundamental manner In that view, the attack of the petitioner should fail. The question has to be viewed in the larger perspective of a citizen's fundamental right to be considered for appointment under wpc 30273/2009 5 the State. Naturally the process of selection could contain very many procedural details and conditions. The stipulations and conditions are ordinarily to be complied with. That does not, however, mean that the slightest infringement of one of those very irrelevant stipulations would also entail dismissal of the application or refusal of a selection. Everything would depend upon the nature of the condition. If the digression is in respect of a non-consequential or unimportant stipulation, deprivation of a job opportunity to a person who is otherwise fully qualified and even possessing superior merit of being appointed to the post will amount to an arbitrary or unreasonable action, inconsistent with Articles 14 and 16 of the Constitution. If the selecting authority like the 2nd respondent did not feel it necessary to give such crucial significance to the stipulation contained in Ext.P2 in regard to the production of the original record at the time of interview, the view is entitled to be upheld, as being eminently reasonable and just. A rigid adherence to all conditions in the notification cannot be insisted upon in all cases. The working difficulties of the Public Service Commission cannot defeat valuable rights of the citizens. Difficulties arising out of the increase in work load and the like have to be solved otherwise than by stultifying the rights of those knocking at the doors and waiting there for long, for an employment opportunity.” Learned counsel for the petitioner laid emphasis on the finding by the learned Single Judge that a rigid adherence to all conditions in the wpc 30273/2009 6 notification cannot be insisted upon in all cases. 8. In Manoj Kumar’s case (1999 (2) KLT 534), the Public Service Commission allowed the candidates to cure certain defects. The petitioner contended for the position that the defective applications ought to have been rejected in terms of Clause 17 of the general conditions of the notification. This Court was of the view that the act of the Public Service Commission in allowing the candidates to cure minor defects cannot be said to be illegal. The contentions were rejected in the following words: “In terms of this any defective application can be rejected by the P.S.C., that means an applicant who had made defective application cannot have any right to seek consideration of his defective application or to make further application to cure the defect. But at the same time this clause does not disable the P.S.C. to give all the candidates who have committed certain mistakes in the applications to cure the defects. This is a condition which can always be waived or relaxed by the P.S.C. because that does not affect any person who have not applied for. Thus, what the P.S.C. shown is only fairness in allowing all the candidates to cure the minor defects wherever occurred without compromising the conditions regarding Age, Educational Qualifications, etc. Therefore, there arise no reason for interference when P.S.C. had shown uniformly such fairness to all the candidates who have been committed minor irregularities or defects.” wpc 30273/2009 7 9. A resume of the above two decisions will show that this Court had analysed the issue in slightly different set of facts than the one raised in this writ petition. In Binimil K.G.’s case (1997 (2) KLJ 477) a Division Bench of this Court considered the question whether an application received beyond the last date, can be treated as valid. The insistence on the rigor of the conditions stipulated by the Public Service Commission was examined and it was held that a strict view of the matters is required and a delay in submitting application is a valid ground for rejecting the application. The dictum contained in para 3 is extracted below: “Whether the peculiar circumstances of the case warrant condonation of such delay in submitting the application is a matter to be considered. The Public Service Commission is entrusted with the duty of conducting various departmental examinations and also selection of candidates for appointment to various posts. They have to deal with large number of application and when they call notification inviting application, last date is fixed for receipt of such applications. Due to various reasons the candidates may not be in a position to send the application in time. But such delays are not condoned by the P.S.C. If they show any relaxation in such rules it would cause delay in processing application. Moreover, that would pave way to certain undue favouritism to some candidates. Laxity in one case will leave open the flood gate of requests to condone such irregularities or omissions. The Commission with its heavy wpc 30273/2009 8 workload must strictly adhere to the norms set by it. The Commission has been taking a strict view of these matters and the various decisions on the point also would go to show that delay in submitting application is a valid ground for rejecting the application.” 10. The decision of the Apex Court in T. Jayakumar’s case{(2008 ) 9 SCC 403} which was heavily relied upon by the learned Standing Counsel for the Commission, was rendered in a case where the candidate omitted to put his signature in the application which was submitted in time. This was followed by another application sent on the last date with a request that the second application may be treated as the first one. The same was received only on the next day, beyond the time fixed. The applications were treated as invalid and selection and appointment of the successful candidate was challenged by him. The matter was interfered with by the Central Administrative Tribunal by directing to consider his case. This was confirmed by the High Court also. It was held by the Apex Court that even if a candidate was allowed to participate in the initial stage of the selection process, a defect in the application of a fatal nature which was found out at a later point of time, could be a ground to reject the application itself. In para 12 their Lordships expressed their view in the following words: “We are not aware of any principle of law under which once a wpc 30273/2009 9 candidate is allowed participation in the selection process, the selection authority is precluded from examining whether his application was complete, in order, within time or otherwise acceptable. A defect in the application form that renders the candidate ineligible might be overlooked in the initial screening and as a result he may be called for interview and may get a chance to take part in the selection process but that alone does not mean that the candidate cannot be held ineligible for selection at a later stage once th defect i the application comes to light.” This decision, therefore, goes against the contentions raised by the learned counsel for the petitioner that after having invited him to appear for the written test, the application cannot be rejected. But learned counsel for the petitioner submitted that the Apex Court directed to accommodate him against another vacancy. But the said direction was issued in the facts of the case evidently and will not help the petitioner. 11. In the judgment in W.P.(C) No.28048/2008, the effect of a wrong entry made by the candidate, in respect of the category number was considered. The petitioner therein proposed to submit application for the post of Lecturer in Arabic. But when the hall ticket was received, she was invited for a written examination to the post of Lecturer in Tamil. Subsequently, the petitioner requested to allow her to participate in the written examination for the post of Lecturer in Arabic on the ground that wpc 30273/2009 10 she had wrongly indicated the category code. It was opposed by the Public Service Commission stating that the category that is shown by the petitioner was acted upon by the Commission and accordingly the hall ticket was issued. The action of the Commission in issuing the hall ticket in terms of the category number, was not interfered with by this Court. 12. Therefore, the question is whether the rejection of the application for wrongly recording the category number is justified or not. It is of importance to notice that category number is vital for the validity of the application. There is no specific provision for allowing a candidate to correct an entry in the category code. Even though the application is for the same post, herein H.S.A. (English), if the applications of such candidates are accepted, then that will be violative of the instructions issued to the candidates. Category number 83 was for direct recruitment from open market and category number 84 was for by transfer. In the light of the view taken by the Division Bench in Binimil’s case (1997 (2) KLJ 477), a strict view on the part of the Commission cannot be said to be illegal. Their Lordships were of the view that laxity in one case will leave open the flood gate of requests to condone such irregularities or omissions. And the Commission with its heavy workload must strictly adhere to the norms set wpc 30273/2009 11 by it. I respectfully follow the same. As held by the Apex Court in T. Jayakumar’s case {(2008) 9 SCC 403), there cannot be estoppel in these matters and merely because a hall ticket was issued to the petitioner, it cannot be said that the Commission is bound by it and cannot at a later stage reject the application. In the above view of the matter also, the writ petition fails and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/