Natesh.D.B. vs Karnataka Public Service Commission

N. Kumar, J.—This writ petition is filed challenging the order passed by the Karnataka Administrative Tribunal dismissing the application filed by the petitioner where he had prayed for his selection as an Assistant Commissioner as against the post of Tahsildar to which he is selected in General merit category. The petitioner-applicant applied for the post of gazetted probationer under Category IIIB-Rural-KMS in response to the Notification dated 4.11.2004. After he was successful in the main examination he was called to appear for personality test on 28.3.2006. His case is he lost his bag along with papers including IIIB Caste Certificate, Rural Certificate issued by the authorities while travelling in BMTC bus on 27.3.2006. After lodging the complaint with the Chandra Layout police station, he appeared for the interview duly appraising the authorities with regard to the loss of the original caste certificates and the Rural certificate. He was permitted to attend the interview. Subsequently, the provisional select list dated 15.4.2006 was published. The applicant was selected as Tahsildar under GM Category. The second respondent who is less meritorious was selected to the post of Assistant Commissioner and another candidate as Deputy Superintendent under G.M. Rural Category. The applicant filed his objections on 2.5.2006 to the said provisional list explaining the circumstances in which he could not produce the original caste certificate and rural certificate. He sought permission to produce the certificates which were found subsequently. However, in the final select list dated 4.5.2006, he was selected as Tahsildar in Group-B post and second respondent was selected as Assistant Commissioner. The applicant reported for duty as Tahsildar. Thereafter, he filed an application seeking quashing of the final select list to the post of gazetted probationers dated 4.5.2006 insofar as the applicant and the second respondent are concerned. He sought for setting aside the selection of the second respondent to the post of Assistant Commissioner and sought a direction to the respondents to select him as Assistant Commissioner in the Karnataka Administrative service or any other vacancy arising in the said cadre. The said application was opposed by the respondents. The Tribunal after considering the rival contentions and relying on the earlier judgment of the Tribunal and also noticing the judgment of the Apex Court held where there is no express provision in the Rules providing clarification for eligibility then relaxation may be permissible. But, when there are express provisions prescribing what should be the eligibility to attend to an interview and further expressly prescribing what the selecting authority should not do after a particular date the question of relaxation would not arise and therefore dismissed the application. Aggrieved by the said order of the Tribunal, the petitioner has preferred this writ petition.

The learned Senior counsel appearing for the petitioner contended that the explanation offered constitute a sufficient cause for non-production of the original before interview. Infact copies already had been produced. Therefore, the Tribunal was too technical in its approach and in the process justice has suffered. Therefore, a case for interference is made out.

Per contra, the learned counsel appearing for the respondents supported the order of the Tribunal.

The learned Senior Counsel for the petitioner relied on the judgment of the Apex Court in the case of Dolly Chhanda Vs. Chairman, JEE and Others, where at Paragraph 7 it is held as under:-

The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary. There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage, etc. necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement to benefit of reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature.

The learned counsel for the respondents relied on the judgment of the Apex Court in the case of Bedanga Talukdar vs. Saifudullahkhan and Others [2012 AIR SCW 2403] where at paragraphs 28 and 29 it is held as under:-

We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There can not be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant Statutory Rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement In the absence of such power in the Rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of quality contained in Articles 14 and 16 of the Constitution of India.

A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of respondent No. 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India.

In the background of these judgments, let us see the facts of this case. After the applicant was successful in the examination he was called for an interview. Annexure-"Q" is the notice of personality test. The said notice states that the applicant is found eligible to be called for personality test on the basis of the provisional result of the written examination held by the Commission in the month of April-May 2002 for Group-A and Group-B services. Therefore, he was directed to appear before the Commission for the Personality Test on 9.8.2005 at 3.00 P.M. at KPSC Park House, Bangalore. Thereafter the two conditions stipulated therein is relevant for our purpose which reads as under:-

He/She should produce the following certificates in Original (Copies of which enclosed to his/her application forf G.P. Prelims exam. 1999) without fail for verification, without which he/she will become ineligible to appear before the Commission for Personality Test.

Thereafter five certificates are mentioned and then a note is appended to the said notice which reads as under:-

(a) The candidate should appear for personality test half-an-hour earlier to the scheduled time indicated to facilitate the office to verify all the original certificates(Copies of which enclosed to his/her application forf G.P. Prelims exam. 1999) before allowing him/her to appear for personality test The candidate should note that he/she will not be eligible for personality test if the requisitioned original certificates(copies of which enclosed to his/her application for G.P. Prelims exam 1999) are not produced on the date and time of interview. Under no circumstances, the candidate will be allowed to produce the originals subsequent to the date and time of Personality Test.

Though in the rules governing the selection, the said conditions are not found, in the notice issued to attend the personality test these conditions are incorporated. In the absence of any prohibition in the Rules it is open to the authorities to impose such conditions in the notice of personality test, which is in consonance with the procedure prescribed for recruitment. It is only those persons who possess the certificates mentioned therein are eligible to appear before the Commission for personality test. Therefore, the eligibility to attend the personality test is dependant on the candidate possessing the certificates on which he relies for any benefit. If the certificate is not available, he is not eligible to appear. In the notice, it is also made clear that if those certificates are not produced, the candidate will not be eligible for personality test In fact the certificates which they are insisting are the copies of the certificates which they have already produced and what is insisted upon is to produce the originals for verification. The notice further stipulates under no circumstances, the candidates will be allowed to produce the originals subsequent to the date and time of personality test. In the Rules governing recruitment, no power is conferred on the Recruiting Authorities to relax these conditions. Once such relaxation is not permissible and in the notice if it is specifically stated then the question of candidate producing those certificates subsequent to the date and time of personality test and the authorities receiving the said documents and conferring them the benefits would not arise. This case is squarely covered by the decision in Bedanga Talkukdar''s case. The Tribunal applying law to the facts of this case has rightly held that there is no error committed by the KPSC in the preparation of the final list or in the appointment of the second respondent and it has rightly declined to grant any relief to the petitioner. We do not see any illegality committed by the Tribunal in passing the impugned order. No merit. Accordingly, this writ petition is dismissed.