Bindu, V.K. vs Kerala Public Service Commission and Another

Mathews P. Mathew, J.—The Petitioner made an application, pursuant to the notification dated 5th June 1990 issued by the 1st Respondent P.S.C. for the post of H.S.A. (Mathematics). The last date fixed for submission of application as per the said notification, a copy of which is made available by the Standing Counsel for the 1st Respondent, was fixed as 18th July 1990. The Petitioner''s application was dated 13th July 1990. B.Ed. degree was one of the qualifications fixed for the post. As the Petitioner had just completed her B.Ed. examination in the month of April 1990, she undertook to submit the B.Ed. Degree Certificate in due course. Petitioner''s application though not accompanied by the B.Ed. Degree Certificate was entertained by the 1st Respondent P.S.C. She was called for a written test. Petitioner claims that she was included in the short list published by the 1st Respondent showing, the candidate who came out successful in the written test. Subsequently, the P.S.C. issued Ext. P-3 directing the Petitioner to produce the B.Ed. Degree Certificate and the mark list. Pursuant to Ext. P-3, the Petitioner submitted vide Ext. P-4 dated 23rd November 1992 the required documents which she had received by that time. By Ext. P-5 proceeding the 1st Respondent rejected the application of fee Petitioner on the ground that she was not qualified for the post as on the date of her application dated 13th July 1990. She filed a representation evidenced by Ext. P-6 pointing out that the results of the B.Ed. Examination conducted in April, 1990 were published two weeks after the date of her application and so far as the P.S.C. had allowed her to sit for the written test she should be considered for appointment to the posts which, if any, available after those who, are qualified on the last date of submission of applications and her application should not be treated as having been rejected in absolute terms. The Petitioner now seeks to set aside Ext. P-5 and also a direction to consider the Petitioner for selection to the post of High School Assistant (Mathematics) on the basis of her rank in the competitive written examination.

Heard the learned advocate for the Petitioner and the Standing Counsel for Respondents.

The learned advocate for the Petitioner urged the following points in support of the Petitioner''s case. (1) The Petitioner became duly qualified by the time the P.S.C. initiated proceedings for selection by assessment of comparative merits of the candidates (2) The Petitioner had not suppressed any material facts in her application and she had in fact mentioned in her application that she could not produce the B.Ed. Degree Certificate and the mark list because the results of the examination had not been published by the time she submitted application on 13th July, 1990. After having entertained the application, the 1st Respondent erred in rejecting her candidature'' (3) The 1st Respondent did not properly advert the issues involved while passing Ext. P-5 insofar as the reason for rejection, of the Petitioner''s application is shown as non-possession of the prescribed qualifications as on 13th July 1990. (4) as per Rule 28) of the K.S and S.S.R. the date of passing the examination is to be taken as the last day of the examination.

The learned Standing Counsel appearing on behalf of the Respondents submits that the question as to whether the can should have possessed the qualifications prescribed by the notification on the date of the application mentioned in the notification or on any other subsequent date has been considered by this Court as well as the Hon''ble Supreme Court very many cases. In the judgment rendered in W.A. 378/84, a Division Bench of this Court has taken the view that the relevant date is the last date of application and if the candidate does not possess the prescribed qualification as on the last day fixed for the sub mission of the application, the candidate cannot be treated as having entitled to be considered for selection. There are various other judgments namely, in O.P. Nos. 1284/84, 9809/84, 162/85, 8976/87, 9818/88, 3461/90 and 3980/90 to the same effect. My attention is also drawn to the latest decision of the Hon''ble Supreme Court in Mrs. Rekha Chaturvedi v. University of Rajasthan and Ors. J.D. 1993(1) 220 wherein it is, held that the relevant date is the last date fixed for the submission of the application. Paragraph 12 of the said decision lays down as follows:

The contention, that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has tally to be stated to be rejected. The date of selection is invariably, uncertain. In the absence of knowledge of such date the candidates. Who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesent even to make application for the posts. The uncertainty of the date may also lead to a contrary consequence, viz., even those candidates who do not have the qualifications in praesent and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractices. The date of selection may be so fixed or manipulated as to entertain some applicants and reject Ors. , arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged,'' the only certain date for the scrutiny of the qualifications will be the last date for making the applications. We have, therefore, no hesitation in holding that when the Selection Committee'' in the present case, as argued by Shri Manoj Swarup took into consideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality and on this ground itself the selections In question are liable to be quashed. Reference in this connection may also be made to two recent decisions of this Court in A.P. Public Service Commission, Hyderabad and Anr. v. B. Sarat Chandra and Ors. (1990) 4 S.L.R. 235 and the District Collector and Chairman, Vizhinagaram (Social Welfare Residential School Society) Vizianagaram and Anr. v. M. Tripura Sundari Devi (1990) 4 S.L.R. 237. The Hon''ble Supreme Court has proceeded on the basis that there should be certainty as to the date by which the candidates should be qualified to avoid ambiguity and arbitrariness in the selection process.

In the present case, it is an admitted fact that the result of the B.Ed. Degree examination for which the Petitioner appeared in April, 1990 had not been published either on the date on which the application was submitted or on the last date prescribed for submission of the applications. Therefore as per the decisions referred to hereinabove, the Petitioner has no right to be considered by the Respondents for selection.

The Petitioner''s next contention is that after having entertained her application on the admitted facts of the case and after having allowed the Petitioner to sit for the written test, it is not open to the Respondents to subsequently reject the candidature of the Petitioner. According to the learned advocate for the Petitioner, as the Petitioner was allowed to sit for the written test she should not have been stopped at half way. If this argument is accepted and the Petitioner is allowed to complete the selection process, it would mean that she would get a march over many Ors. who did not apply for the post as, they were not qualified as on the last date prescribed by the notification but would have been qualified if the P.S.C. were to entertain the applications in anticipation of the results being published subsequently. In such a situation, the P.S.C. is fully justified in rejecting the Petitioner�s application because a contrary course would have been certainly arbitrary and. unfair so far as such other persons are concerned.

The contention of the Petitioner that the P.S.C. has not adverted to the facts of the case properly insofar as it has taken the view that the Petitioner was not qualified as on 13th July 1990, is also without any substance. In order to enable this Court to interfere in the matter, the Petitioner has to establish that she was in fact qualified on the last date fixed for submission of applications. The Petitioner has no such case. Therefore this contention also stands rejected.

The contention most strongly argued on behalf of the Petitioner is that Rule 28(bbb) in K.S. and S.S.R. should be referred to in deciding the issue as to what is the relevant date. It is argued that even if the rule is not ipso facto applicable, the principles under those rules as interpreted by this Court in Raghavan v. Government of Kerala 1989 (2) KLT 950. should be followed. It is to be remembered that K.S. and S.S.R. are a set of rules framed to govern the service conditions of the employees of the State and Subordinate Services. Rule 28(bbb) contains certain deeming provisions in determining as to how the date prescribed for acquisition of an examination or test should be interpreted for the purpose of the said rules. It is conceded that there is no similar deeming provision governing possession of prescribed qualifications, in the matter of selection by the P.S.C. On the contrary Clause 19 of the General Conditions as embodied in, the notification lays down as follows:

Qualifications prescribed, including experience for a post shall be one acquired by the candidate before the date of application. Candidates possessing qualifications equivalent to those prescribed for a post shall produce in addition to the documents referred to in para 15(B), sufficient proof obtained from a University or any other competent authority to the effect that the qualifications possessed by him are recognised as equivalent to those prescribed for the post.

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 final publication of the results of the examination by the University or the concerned authority.

Failure to produce the proof of equivalency of qualification will entail rejection of application.

In the light of this specific provision contained in the notification, the principles adopted for interpreting Rule 28(bbb) of K.S. and S.S R. is not at all relevant and cannot be accepted in support of the Petitioner''s claim.

The learned advocate for the Petitioner made an emotional appeal to consider the case sympathetically as this is an hard case. So were many of the cases considered by this Court in the decisions referred to hereinabove. In those cases, though this Court had sympathy to the Petitioners'', the Court could not grant any relief as the Court acts in the realm of law and not on emotional plane. This case is no exception and therefore I also part with the case expressing my sympathy to the Petitioner, but unable to give any relief in view of the well established legal principles governing the matter.

The Original Petition is dismissed. Issue photo copy on usual terms.