Sanu Sadan vs Jubeena Beegom

Mohammed Nias.C.P.,J

The above appeals arise from the common judgment dated 9.8.2021 in WP(C)Nos.15441 of 2020, 28591 of 2022, 11840 of 2019 and 38161 of 2018.

By a notification dated 15.11.2013 applications were invited for the post of Administrative Officers in the Kerala State Road Transport Corporation (KSRTC) under direct recruitment quota prescribing the following qualifications:-

(1) Post Graduate in any discipline;

(2) Five years experience in the Administrative Cadre in a Government owned Company/Corporation.

Following the selection process, a ranked list was prepared on 03.04.2018 and some of the candidates included therein filed the following writ petitions.

WP(C)No.3210 of 2021 was filed by a candidate named Sanu Sadan against another candidate in the rank list Ajay Ghosh.A.S., as well as against the Kerala Public Service Commission (for short 'PSC') and the KSRTC challenging Ext.P5 provisional notice issued by the PSC cancelling the advice given to her on the ground that the experience certificate produced by her was found to be fake. Not satisfied with the reply given by the candidate, Ext.P7 final order cancelling the advice was issued and it was those orders that were challenged in the writ petition.

WP(C)No.15441 of 2020 was filed by other two candidates in the ranked list namely Jubeena Beegom.N and Ajay Ghosh against Sheena Stephen and Sanu Sadan contending that the former had crossed the age limit and the latter did not have the five year experience in the Administrative Cadre and their inclusion was challenged. WP(C)No.38614 of 2018 was filed by P.Sreekumar alleging lack of experience against Jubeena Beegom and Ajay Ghosh. WP(C)No.11840 of 2019 was filed by Manju V.S. against Sanu Sadan alleging that she does not have the requisite experience. WP(C)No.28591 of 2022, a second writ petition was filed by Manju V.S. impleading Ajay Ghosh as the party respondent alleging lack of experience.

The PSC contended that after the ranked list was prepared, it received a letter from the Chairman and the Managing Director of the KSRTC stating that one of the employees in the Corporation had submitted a complaint about the experience certificate produced by the Sanu Sadan alleging it to be bogus based on which the KSRTC had conducted an enquiry in that regard. The Vigilance team of the KSRTC reached a conclusion that no records were available in the KSRTC, Punalur office from where Sanu Sadan obtained the certificate and that it has come to the conclusion that the said certificate was fake and that the Corporation also had initiated disciplinary proceedings against the persons responsible for issuing such bogus certificates. KSRTC also requested the PSC to cancel the advice issued to Sanu Sadan and to advice another candidate in her place. It was also contended by the PSC, that KSRTC had informed them that the post of Store Issuer and Store Assistant could not be considered to be in the Administrative Cadre and that Sanu Sadan had less than two years service in the post of Junior Assistant at the time of applying for the post.

The KSRTC had filed a counter almost on same lines pointing out that the reply given by Sanu Sadan to the Corporation on the question of genuineness of certificate was not at all satisfactory and that it was after an enquiry by the executive Director (Vigilance) that intimation was given to the PSC. KSRTC also reiterated that Sanu Sadan was having only less than two years service in an Administrative Cadre at the time of notification and therefore was not entitled to be appointed to the post of Administrative Officer.

The learned single Judge, who considered the above writ petitions rendered a common judgment upholding the contentions of the PSC and the KSRTC that Sanu Sadan did not have the qualification as she had less than two years of service in the Administrative Cadre at the time of notification and that the certificate issued has to be treated as a fake one, and therefore, fraud vitiates the process and such actions cannot be allowed to be perpetuated. Learned Single Judge also upheld the actions of the PSC in issuing show cause notice and cancelling the advice and further held that going by the rank, Ajay Ghosh, the second petitioner in WP(C)No.15441 of 2020, who also belong to the Ezhava community was to be appointed in place of Sanu Sadan. The writ petition filed by Manju.V.S. was also dismissed holding that she is far below in rank, and therefore there is no chance of her getting employment. Regarding the writ petition filed by P.Sreekumar alleging that Jubeena Beegom and Ajay Ghosh did not have experience as they were employed as empanelled employees, the learned single Judge held that those persons were also discharging the same kind of duties as the regular employees and their application could be accepted. In that view of the matter all the writ petitions except WP(C)No.15441 of 2020 were dismissed. Allowing WP(C)No.15441 of 2020, Ajay Ghosh was directed to be appointed in the place of Sanu Sadan.

WA No.1123 of 2021 is filed by Sanu Sadan against the judgment in WP(C)No.15441 of 2020. WA No.1153 of 2021 filed by Sanu Sadan challenging the dismissal of the writ petition filed as WP(C)No.3210 of 2020. WA No.1570 of 2021 is filed by P.Sreekumar challenging the dismissal of his writ petition WP(C)No.38614 of 2018. Manju V.S, who had earlier filed WP(C)No.11840 of 2019 and which was dismissed had filed an application seeking leave to appeal against the judgment in WP(C)No.15441 of 2020, but leave was not granted and the petition rejected. She has since filed WP(C)No.28591 of 2022 impleading Ajay Ghosh as the party respondent. Earlier, Manju V.S. had filed WP(C)No.11840 of 2019 impleading Sanu Sadan alone as the party respondent.

We have heard Adv.A.Aruna, the learned counsel for the appellants in WA Nos.1123 of 2021 and 1153 of 2021 and Sri.Sinu G.Nath, the learned counsel for the appellant in WA No.1570 of 2021. Sri. R.Gopan the learned counsel for the petitioner in WP(C)No.28591 of 2022, Sri.P.C.Sasidharan, the learned standing counsel for the PSC and Sri.Deepu Thankan, the learned standing counsel for the KSRTC.

The learned counsel for the appellant Sanu Sadan in WA Nos.1123 of 2021 and 1153 of 2021 submits that the appellant has not played any fraud for obtaining the certificate and it was issued by her own employer. She also argued if her service as a contractual employee is reckoned, she will have the requisite experience in the Administrative Cadre, and therefore her advice could not have been cancelled. It is also her argument that PSC has not only cancelled her advice but has also taken action which will have the effect of debarring her from appearing in any examination in future, as is evidenced from the documents produced at the appellate stage, which is marked as Annexure 1 in WA No.1123 of 2021, which is a show cause notice issued on 15.01.2022. The learned counsel Sri.Sinu G Nath appearing in WA No.1570 of 2021 submits that the candidates sponsored through the Employment Exchange could not have worked beyond 179 days, and therefore, none of the candidates had the requisite experience for a continuous period of five years as such they were ineligible to be considered for the selection. Learned counsel submits that though no amendment of the writ petition was carried out, some of the candidates in the ranked list were impleaded in the writ petition, but only the appointments of Ajay Ghosh and Jubeena Beegom were sought to be quashed.

The learned counsel for the petitioner in WP(C)No.28591 of 2022 submits that Ajay Ghosh, who is arrayed as the party respondent in the writ petition did not have five years experience even if his temporary employment is reckoned, and accordingly sought for quashing the appointment of Ajay Ghosh.

Learned counsel for the PSC and the KSRTC reiterated the contentions taken in the pleadings and submitted that there cannot be any doubt that the certificate produced by Sanu Sadan is forged and therefore no benefit can be given to her and also justified the action taken by the PSC for cancelling the advice as well as other punitive measures invoking their power.

After hearing the learned counsel on all sides, perusing the pleadings and the record, we are of the firm view that the judgment of the learned single Judge in so far as it cancelled the appointment of Sanu Sadan is fully justified. The dismissal of the other writ petitions are also to be upheld for reasons to follow. It cannot be disputed by Sanu Sadan that she did not have the requisite experience on the last date of the qualification. It also cannot be disputed that the certificate produced before the PSC was, to say the least, inaccurate and wrongly showing the years of experience. Though we are not in a position to finally hold that such certificate is a fake or forged one, in the absence of any declaration to that effect by a body competent to do so, we have to take the certificate as incorrect in not indicating that exact experience of the petitioner and as such the PSC cannot be faulted for cancelling the advice obtained on the basis of such a certificate. It is also worthwhile to note that the internal vigilance team of the KSRTC had found that the files that led to issuance of the certificate were missing. On admitted facts, it is to be seen that Sanu Sadan did not have the requisite experience to aspire for the post and resultantly she could not have been offered the appointment. In such a situation the only alternative was to offer appointment to the next ranked candidate namely Ajay Ghosh. We do not find any error in the learned Judge having adopted that course. Writ petition filed by Manju V.S was also rightly dismissed as she was far behind in ranking and that even if her contention on merit is to be accepted, she could not have been granted any relief. The contention of P.Sreekumar that the contractual employment should not have been considered as experience has to be rejected on the face of it as the notification itself allowed the same and in the absence of any challenge to the notification which permitted reckoning of the period of casual employment, the said writ petition was to fail and it was rightly dismissed by the learned single Judge. We do not think that the learned single Judge was wrong on facts or law while rendering the common judgment. However, we are of the opinion that there is no material to find any complicity in Sanu Sadan in the matter of creation of the certificate showing the experience and in the absence of any conclusive proof, we vacate that part of the finding in the impugned judgment holding the certificate to be fake and an act of fraud, though we hold that the said certificate is to be treated as incorrect and insufficient to offer the appointment.

Thus, Exts.P5 and P7 sought to be challenged in WP(C)No.3210 of 2021 issued by the PSC cancelling the advice are upheld. In the light of the findings above, we note the further action of the PSC in issuing Annexure I in WA No.1123 of 2021 proposing to take action under Rule 22(iii) (iv) and (ix) of the PSC Rules of Procedure 1976 dated 15.01.2022 is unnecessary on the facts of the case and all further actions pursuant to it will stand interdicted. It is declared so.

With respect to WP(C)No.28591 of 2022 it is to be noted that the said candidate Manju V.S had earlier filed WP(C)No.11840 of 2019 against Sanu Sadan in which writ petition Ajay Ghosh was not made a party and no challenge was made about his qualification or experience. Having failed in the said writ petition she attempted to file a writ appeal seeking leave against a judgment in which she was not a party which was rejected by us. The present writ petition challenging the experience of Ajay Ghosh is clearly hit by the principles of constructive resjudicata. We hold the said writ petition to be barred, and accordingly, the same is dismissed.

In the light of the above, the writ appeals are dismissed subject to the above and the writ petition is also dismissed.