Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 17TH DAY OF OCTOBER 2022 / 25TH ASWINA, 1944 AGAINST THE JUDGMENT IN OP(KAT) 114/2021 OF HIGH COURT OF KERALA REVIEW PETITIONERS/PETITIONER IN OP (KAT): SURESHKUMAR.K AGED 46 YEARS S/O.KARUNAKARAN NAIR, RESIDING PRABHAKARA VILASAM VEEDU, KUNNANAD, PUZHANAD P.O., OTTASEKHARAMANGALAM, THIRUVANANTHAPURAM - 695 125. BY ADVS. RAGHUL SUDHEESH K.J.GLAXON J.LAKSHMI RESPONDENTS/RESPONDENTS IN OP (KAT): 1 STATE OF KERALA REPRESENTED BY THE SECRETARY, LABOUR AND SKILLS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE LABOUR COMMISSIONER THOZHIL BHAVAN, OPPOSITE VIKAS BHAVAN, OPPOSITE VIKAS BHAVAN DEPOT, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033. 3 THE SECRETARY KERALA PUBLIC SERVICE COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM- 695 004. SRI. P.C.SASIDHARAN-SC THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ALEXANDER THOMAS & A. BADHARUDEEN, JJ. ========================================== R.P.No.338 of 2022 [arising out of the impugned judgment dated 0308.2021 in O.P.(KAT).No.114 of 2021] ========================================== Dated this the 17th day of October, 2022
ORDER
ALEXANDER THOMAS, J.
This is a petition seeking for review of the impugned judgment
rendered by this Court on 03.08.2021, dismissing O.P. (KAT).No.114/2021, filed by the petitioner herein. The said impugned
judgment in O.P.(KAT).No.114/2021 has arisen out of the impugned final
order dated 08.02.2021 in O.A.No.896 of 2017, filed by the petitioner
herein, before the Kerala Administrative Tribunal.
2. Heard Sri.Raghul Sudheesh, learned counsel appearing for
the review petitioner/original petitioner, Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission appearing for R3 and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondents 1 and 2.
3. In the instant case, the original applicant was permitted to
take part in the impugned selection process only on a provisional basis and by Annexure A-4 memo dated 04.05.2009, the respondent- PSC had instructed the candidates concerned to submit their experience certificates, in the prescribed proforma, to prove their claims for the prescribed experience in question. It is not under dispute that the petitioner had then never submitted the requisite experience certificate, within the deadline. Thereafter, the PSC had proceeded to publish Annexure A-19 rank list on 06.02.2014 and addendum rank list was published on 10.03.2014 and the rank list expired on 30.06.2017. Even before that, the PSC had rejected the candidature of the petitioner as per Annexure A-7 memo issued as early as on 19.10.2010. The case of the petitioner was that he could not submit the experience certificate in time, since there was some dispute pending between him and the employer and ultimately, he could only secure Annexure A-23 experience certificate on 24.04.2017. In the light of these aspects, the Tribunal had taken the considered view that, since the petitioner had not produced the required experience certificate within the deadline and he has produced it long thereafter, the PSC cannot be found fault with for having rejected the candidature of the petitioner. Further, it is noted with dispute that Rule 17(c) of KS&SSR Part II incorporated in the Statute Book, with effect from 19.04.1994 has, inter alia, mandated that certificates/relevant documents prepared by the PSC to prove the claims in the application should be submitted by the candidates concerned, as and when required by the PSC or in any case well before the finalisation of the rank list, for the post concerned.
4. The Division Bench of this Court, in the decision
reported in Kerala Public Service Commission, Trivandrum v. Soni P.M. & Ors. [2016 (1) KLT 293 (DB)], has emphasized the need for the candidates to keep the deadline for submission of experience certificate in the selection process. Hence, there cannot be any fault in the view taken by the Tribunal to dismiss the OA. Citing this aspect, we have also dismissed the OP, as per the impugned judgment.
5. An alternate contention was then raised by the
learned counsel for the petitioner, at the OP stage, that the candidate, who was ultimately selected and advised by the PSC, had also not submitted the requisite experience certificate, in the prescribed proforma, and that, even going by Annexure R2(a) certificate, he may not have the requisite three years’ experience, in terms of Annexure A-4 selection notification. We have noted the contents of the averments in Ext.P2 reply statement, filed by the PSC in the above OA as well as Ext.P9 additional reply statement.
6. A reading of the pleadings in the above reply statement,
more particularly, the one at Ext.P2, would disclose that there were no candidates, having the prescribed qualification of certificate of Instrument Technology, awarded by the Director General of Resettlement and Employment, New Delhi, after 18 months of course of study, followed by in-plant training for 6 months. However, the PSC was then constrained to approach the competent authority of the Department of Technical Education, Government of India, who appraised the PSC, as per letter dated 07.10.2013, that the qualification of Diploma in Instrument Technology is a higher qualification and that NTC Instrument Mechanic can be considered as the equivalent qualification to that prescribed in Annexure A1 selection notification. Hence, the PSC decided that, going by the provisions contained in Rule 10(a)(ii) of KS&SSR Part II, a higher qualification, which presupposes the acquisition of lower qualification, would be sufficient, in lieu of the prescribed lower qualification, in the light of the dictum laid down by the Apex Court in the decision in Jyoti K.K. v. Kerala Public Service Commission [(2010) 15 SCC 596]. The said decision of the Apex Court in K.K.Jyoti’s case has been rendered after considering the provisions contained in Rule 10(a)(ii) of KS&SSR Part II. It is on this basis that the PSC has taken further steps to finalise the selection process. The selected candidate was then advised on 15.04.2014, as he possessed NTC in Instrument Mechanic, which is an accepted qualification, in view of the considered stand taken by the appointing authority in the Department of Technical Education. Even going by the case of the petitioner/applicant, he does not have the prescribed qualification and according to him, he has a Diploma in Electronics and Instrumentation, which he claims to be a higher qualification, which presupposes the prescribed lower qualification, which is submitted for the same. However, the petitioner has not taken any steps to produce any certificate in the prescribed proforma to prove the said claim. It was produced very belatedly and that too, long after the finalisation of the rank list and just about a few weeks before the expiry of the rank list.
7. The limited scope of review jurisdiction has been
dealt with in a catena of decisions rendered by the Apex Court and various High Courts. One such latest decision, rendered by the Division Bench of this Court, is the one in the case of Vijay Kumar v. Travancore Devaswom Board - TDB and Others [2022
(6) KHC 407 (DB), wherein, after referring to various previous
cases on that point, it has been held, that under the garb of filing a review petition, a party cannot be permitted to repeat old and overruled arguments, for reopening the conclusions arrived at in an impugned judgment and the power of review is not to be confused with the appellate power, which enables the superior court to correct errors committed by the subordinate court, as
held in decisions as in Jain Studios Ltd. v. Shin Satellite Public
Co.Ltd. [(2006) 5 SCC 501 : 2006 KHC 810]
8. Yet another contention was then urged by the
petitioner that, one of the above said advised candidates, one Sri.Prasad Gopi, does not have three years of experience, even going by his experience certificate. It has been found that the said advised candidate has experience from 14.07.2003, and therefore, he has completed three years’ experience as on 13.07.2006, which is well before the last date of submission of application viz. 14.06.2008. In the light of this aspect, even the above said argument of the petitioner was repelled. Further, the petitioner has never impleaded the said advised candidate as a respondent in the O.A. or in the OP.
9. It is in the light of the above aspects that we were
constrained to uphold the verdict of the Tribunal. The present arguments raised by the petitioner is only a rehash of the arguments presented before us. Attempt is made to attack the impugned judgment on the basis of merits. We have taken a considered view, after appreciating the merits of the case. We will be committing an illegality, if we get into the merits, in a petition seeking for review. No grounds for review are made out in the instant case. Further, we also note that the counsel for the review petitioner has been newly engaged, in lieu of the early counsel, who appeared for the petitioner at the OP stage. Such a practice is also not in consonance with the accepted convention, regarding prosecution of review matters. For all these grounds, we are not in a position to entertain this review petition. Hence, the review petition stands dismissed. Sd/- ALEXANDER THOMAS JUDGE
Sd/- A. BADHARUDEEN JUDGE nkr