AI Structured Summary
Not yet generated for this judgment
Judgment
Muralee Krishna, J.
The respondent in O.A.Nos.1065 and 1828 of 2017 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram (the ‘Tribunal’ for short) filed these original petitions, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, impugning the orders dated 23.06.2017 and 25.09.2017, passed by the Tribunal in the respective original applications. Since the issue involved in both the original petitions is the same, they are heard together and are being disposed of by this common judgment.
The respondents-applicants filed O.A.Nos.1065 and 1828 of 2017, before the Tribunal with the following averments:
The respondents are candidates who applied for selection to the post of Lecturer in Malayalam in the Kerala Collegiate Education Department, pursuant to Annexure A1 Notification dated 30.11.2012 issued by the petitioner Kerala Public Service Commission (‘PSC’ for short). The selection process for the post includes a written test and interview. The respondents have successfully come out of the written examination conducted by the PSC and got included in the ranked list, which was brought into force with effect from 16.08.2017. As per Annexure A5 and A6 circulars dated 18.01.2011 bearing No.3/11 and 05.09.2011 bearing No. 26/11 of the PSC, which governed the field at the time of Annexure A1 notification, there was a scheme of awarding weightage marks for Non-Qualifying qualifications like Ph.D and M.Phil. But the same was changed by the PSC after 4 years of the notification by Annexure A8 circular dated 10.02.2016 bearing No.4/2016, and decided to apply for selection for the post pursuant to Annexure A1 notification as well. It is well settled that the PSC cannot change the criteria of the selection process and the basis of marking after starting the selection process, that too after knowing who the candidates are in the field of choice. The Tribunal in similar original applications declared that Annexure A8 circular cannot be applied for selection to the posts notified as per Annexure A1. Seeking similar treatment to them, the respondents in O.P(KAT) No.33 of 2018 - applicants in O.A.No.1828 of 2017 filed that original application seeking the following reliefs;
“a)Declare that the applicants are also entitled to get the benefit of the order of this Honourable Tribunal in Annexure A-9 and similar judgments or in the alternative declare that Annexure A-8 circular cannot be applied for awarding weightage marks for Interview for selection for the post of Lecturer in Malayalam in the Kerala Collegiate Education Department, pursuant to Annexure A-1 notification and that the applicants are entitled to get the weightage marks for their Non-Qualifying M.Phil degree as per Annexure A-5 and A-6 along with their interview marks.
b)Direct the KPSC to grant the additional mark of 4 to the applicants for their Non- Qualifying Ph.D and revise Annexure A-2 as provided in Annexure A-5 and A-6 circulars and also as declared in Annexure A-9 judgment”.
Similarly, the respondents in O.P (KAT) No.334 of 2017 - applicants in O.A.No.1065 of 2017, filed that original application, seeking the following reliefs:
“a)Call for the records leads to Annexure A-1 to A-8 and declare that Annexure A-8 circular cannot be applied for awarding weightage marks for interview for selection for the post of Lecturer in Malayalam in the Kerala Collegiate Education Department, pursuant to Annexure A-1 notification and that the applicants are entitled to get the weightage marks for their Non-Qualifying Mphil degree as per Annexure A-5 and A-6 along with their interview marks.
b)Direct the KPSC to finalize and publish the ranked list for the post of Lecturer in Malayalam pursuant to Annexure A-1 notification after giving the weightage marks for interview as provided in annexure A-5 and A-6 circulars”.
On 23.06.2017, when the O.A.No.1065 of 2017 came up for consideration, the Tribunal passed the impugned Ext.P2 order. Paragraphs 6 to 8 and the last paragraph of that order read thus;
“6.The same issue has been considered by this Tribunal in the order dated 07.03.2017 passed in O.A.Nos.2149 and 2199 of 2016 relating to Lecturer post in Commerce and English. After considering the various aspects ,in the light of the settled legal position as declared by the Honourable Apex Court in Hemani Malhotra Court v. High Court of Delhi [2008 KHC 4495] as well as the decision of the Honourable High Court of Kerala in Jayachlandran v. High Court of Kerala [2010(4) KLT] 49 it has been held in paragraph 14 of that order as follows;
"14.The above dictum clearly go to show that the 1st respondent PSC has seriously erred in changing the method of giving marks, after the selection process commenced. it is specially provided for in the Circular No.26/2011 dated 05.09.2011 that awarding of weightage marks for non qualifying M.Phil and/or Ph.D will be granted even if the same is acquired just before the date of interview. Annexure-A1 notification was issued on 30.11.2012. Well after the selection process commenced, after of the conduct of the written test and in the case of the post Lecturer of Commerce, after the publication of the short list and the names of the candidates were known, the PSC brought in the new restriction that such degrees also should have been acquired prior to the date of last date for accepting the applications. The action of the PSC is clearly illegal and cannot be sustained".
7.Accordingly, a declaration was granted that Annexure-A8 Circular No.4/2016 dated 10.02.2016 changing the basis of marking can apply only in respect of notifications issued after the date of the circular. It was held that the applicants therein were entitled to get weightage marks for their non-qualifying Ph.D and M.Phil degrees for selection to the post of Lecturer in English and Commerce under the same department. Further, a direction has been given to the Public Service Commission to finalise the rank lists for the posts of Lecturer in Commerce and English after giving such weightage marks and if the rank list has already been published, the same will be revised in tune with the findings rendered in the order. The same principle has also been applied by the Principal Bench of this Tribunal in the order dated 30.03.2017 allowing a similar prayer in O.A.No.573 of 2017 relating to the post of Lecturer in Home Science (Food and Nutrition). In fact, O.A.Nos.770, 803 and 872 of 2017 have also been allowed by this Tribunal through a common order dated 23.05.2017 relating to the post of Lecturer in Malayalam itself. In these Original Applications, the direction is to grant weightage marks to the applicants therein.
8.The same principle will apply in this case also and, therefore, the Original Application is allowed. There will be a declaration that Circular No.4/2016 (Annexure A8) cannot apply as far as the present notification at Annexure A1 is concerned. The applicants are entitled to be granted the weightage marks. The PSC will finalise the rank list for the post of Lecturer in Malayalam after giving such weightage e marks. It will be published within two months from the date of receipt of a certified copy of this order, in tune with the above findings. If the rank list has already been published, the same will be revised as directed herein within one month from the date of receipt of a certified copy of this order. The Original Application is allowed as above”.
On 25.09.2017, when O.A.No.1828 of 2017 came up for consideration, the Tribunal passed the impugned Ext.P2 order. Paragraphs 6 and 7 of the said order read thus;
“6.As already a declaration has been granted, by AnnexureA9 order, the applicants are entitled for the same relief. It has been held in Annexure-A9 in para 6 as follows:-
"6.The same issue has been considered by this Tribunal in the order dated 07.03.2017 passed in O.A.Nos.2149 and 2199 of 2016 relating to Lecturer post in Commerce and English. After considering the various aspects, in the light of the settled legal position as declared by the Honourable Apex Court in Hemani Malhotra v. High Court of Delhi [2008 KHC 4495] as well as the decision of the Honourable High Court of Kerala in Jayachandran v. High Court of Kerala [2010(4) KLT 49] it has been held in paragraph 14 of that order as follows:
"14.The above dictum clearly go to show that the 1st respondent PSC has seriously erred in changing the method of giving marks, after the selection process commenced. It is specifically provided for in the Circular No.26/2011 dated 05.09.2011 that awarding of weightage marks for non qualifying M.Phil and/or Ph.D will be granted even if the same is acquired just before the date of interview. Annexure-A1 notification was issued on 30.11.2012. Well after the selection process commenced, after the conduct of the written test and in the case of the post of Lecturer of Commerce, after the publication of the short list and the names of the candidates were known, the PSC brought in the new restriction that such degrees also should have been acquired prior to the date of last date for accepting the applications. The action of the PSC is clearly illegal and cannot be sustained". Thereafter, a consequent declaration is also granted.
7.We are of the view that the same principle will apply in this case and hence this Original Application is allowed. It is declared that the applicants are entitled to be granted weightage marks for the PG qualifications and the PSC will award the eligible marks and based on the same will re-arrange their position in the ranked list and an addendum notification will be published accordingly within a period of one month from the date of receipt of a certified copy of this order. Advices of candidates in the ranked list, if any, made during the above one month period will be subject to the revision of ranked list as ordered above.”
Being aggrieved by the impugned orders, the petitioner-respondent is now before this Court with the present original petitions.
When O.P.(KAT)No.334 of 2017 and O.P.(KAT)No.33 of 2018 came up for admission on 30.08.2017 and 17.01.2018 respectively, taking note of the fact that exactly similar matters have already been admitted by this Court such as, O.P.(KAT)Nos.317 and 334 of 2017 and an interim order has been granted, this Court admitted these original petitions also on file and granted an interim order staying the impugned orders of the Tribunal for a period of three months. Urgent notice was issued to the respondents-applicants. The aforesaid interim orders issued in these original petitions have been extended from time to time.
Heard the learned Standing Counsel for the PSC. Despite service of notice, none appeared for the respondents-applicants.
The learned Standing Counsel for the PSC submitted that the last date for submission of application by virtue of Annexure A1 notification was 02.01.2013. The respondents acquired non-qualifying qualifications for weightage marks after the last date for submission of the application. Annexure A5 and A6 circulars dated 18.01.2011 and 05.09.2011 were superseded by Annexure A8 circular dated 10.02.2016. By virtue of Annexure A8, the weightage marks for non-qualifying qualification will be entitled to a candidate only if the said qualification was acquired before the last date for submission of the application. In the present case, the ranked list was published on 16.08.2018, and it expired on 15.08.2020. Since the claim for weightage on the basis of a non- qualifying degree was made much after the last date for submission of the application, it was not considered by the PSC. The Tribunal failed to consider these aspects in their proper perspective while allowing the original application.
Article 227 of the Constitution of India deals with the power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
In Estralla Rubber v. Dass Estate (Pvt.) Ltd [(2001) 8 SCC 97], the Apex Court held thus;
"The scope and ambit of exercise of power and jurisdiction by a High Court under Art.227 of the Constitution of India is examined and explained in number of decisions of this Court. The exercise of power under this Article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do duty expected or required by them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the courts subordinate or tribunals. Exercise of this power and interfering with the orders of the courts or tribunal is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the fact of the record. The High Court can set aside or ignore the findings of facts of inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or Tribunal has come to."
In Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
In Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385], while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The exercise of jurisdiction must be within the well-recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.
In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.
In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1] a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law.
In view of the law laid down in the decisions referred to supra, the High Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.
In the present matters, the last date for submission of the application for the post of Lecturer in Malayalam in the Kerala Collegiate Education Department pursuant to Annexure A1 notification dated 30.11.2012 issued by the PSC was 02.01.2013. Annexure A1 notification had only mentioned the basic qualification, i.e., Master’s degree in the subject concerned with not less than 55% of marks and pass in the National Eligibility Test (‘NET’ for short) conducted by the UGC. The candidates who have obtained Ph.D degree in the subject concerned or passed the M.Phil degree before 11.01.1994 are exempted from passing the NET qualification. The respondents were included in the short list of eligible candidates published by the PSC. All the respondents were qualified before the last date of submission of the application.
The applicants in O.A.No.1065 of 2017 have qualified NET in December, 2010, August 2010 and December 2010 respectively and obtained M.Phil degree in Malayalam on 08.07.2015, 09.07.2013 and 14.06.2016 respectively as evidenced by Annexures A3 to A3(b) and Annexures A4 to A4(b) documents. The applicants in O.A.No.1828 of 2017 have qualified NET prior to Annexure A1 notification as evidenced by Annexures A3 and A3(a) and obtained Ph.D in Malayalam as evidenced by Annexures A4 and A4(a) documents.
By Annexure A5 circular dated 18.01.2011, the PSC introduced a new basis of marking for preparation of mark list in the selection process, prescribing 10 marks out of total 30 marks for interview as weightage, out of which 2 marks are for non-qualifying MPhil, 4 marks for non-qualifying Ph.D., 5 marks for both MPhil and Ph.D (non-qualifying) and 5 marks for Post Doctoral Degree. Later, by Annexure A6 circular dated 05.09.2011 bearing No.26/11, it was explained that the additional non-qualifying qualifications are to be obtained by the candidate before the date of interview. Since the applicants obtained the non-qualifying degrees before the last date of interview, they sought the benefit of Annexure A5 and A6 circulars. Meanwhile, the PSC issued Annexure A8 circular dated 10.02.2016 bearing No.4/2016 by which it was decided that the non-qualifying degrees should be acquired by the candidate before the last date of submission of application.
In the cases before us, the Tribunal has noted that in the order dated 07.03.2017 in O.A.Nos.2149 and 2199 of 2016, relating to Lecturer post in Commerce and English, the Tribunal considered the very same issue and a declaration was granted that Annexure A8 circular changing the basis of marking can apply only in respect of notifications issued after the date of the circular. It was also noted by the Tribunal that similar declaratory reliefs have been granted by the Tribunal in O.A.Nos.770, 803 and 872 of 2017 and by the Principal Bench of the Tribunal in the order dated 30.03.2017 in O.A.No.573 of 2017 relating to the post of Lecturer in Home Science (Food and Nutrition). Therefore, the relief was granted by the Tribunal in favour of the respondents herein also by applying the very same principles.
We notice that the orders in O.A.Nos.2149 and 2199 of 2016, O.A.Nos.770, 803, 872 of 2017 and O.A.No.573 of 2017 have been challenged before this Court by the PSC by filing O.P (KAT) Nos. 317, 310, 309, 283, 289 and 296 of 2017 respectively. But this Court, by the common judgment dated 18.08.2020 in O.P.(KAT)No.289 of 2017 and connected matters, dismissed those original petitions. Paragraphs 13 and 14 of that judgment read thus;
“13.The law on the point is well settled. In the cases on hand, the factual difference is regarding Circular No.26/11 issued by KPSC on 05.09.2011. This had been issued in modification of earlier Circular No.3/11 dated 18.01.2011 which clarifies the basis of marking and clause (1) indicates that during selection, the qualifications which are prescribed as non qualified has to be obtained prior to the date of interview and clause (2) states that the non qualifying degree/qualification should be in the concerned subject. Clause (4) indicated that the marks for the interview which is 30 will be segregated as 20 + 10, 20 for interview and 10 for the weightage given to non qualifying degrees. It is further apparent that after the publication of the aforesaid circular, several rank lists came to be published and the candidates were given weightage based on the aforesaid circular. This circular is seen withdrawn as per Circular No.4/2016 dated 10.02.2016 wherein it is stated that the KPSC in the meeting held on 18.01.2016 has reconsidered Circular No.26/2011 and circular No.3/2011. It was observed that the grant of weightage for non qualifying degrees obtained by the candidates as on the date of interview is against the general condition No.17 and therefore, it was decided that the weightage be given only for candidates who had acquired the qualification/additional non qualifying degree as on the last date of application. Further, it was stated that the decision shall be implemented in respect to rank lists published effective from 18.01.2016.
14.Of course, it is true that Circular No.26/2011 was contrary to the principle laid down in the judgments cited by the counsel for the petitioners. But it is undisputed that KPSC has acted upon Circular No.26/2011 and weightage marks were being awarded to candidates who had acquired qualification before the date of interview. The very circular was against the law laid down by the Apex Court. KPSC itself in their subsequent meeting held on 18.01.2016 considered the grant of weightage in respect of qualification acquired after the last date of application and had revoked it. In Jayachandran (supra), a Division Bench of this Court had deprecated the practice of awarding marks after the selection process. Several candidates would have participated in the selection process taking into account the weightage of marks that would be awarded for qualifications acquired as on the date of interview. As held by the Apex Court, during the selection process, it is not proper for KPSC to change the rules of the game. If the weightage granted is withdrawn during the selection process, it will definitely affect the claim of several candidates. All candidates have participated in the selection process taking into account Circular No.26/2011 as well, and if the same is revoked during the selection process, their rights will be substantially prejudiced. Under such circumstances, we do not think that the Tribunal had committed any error in allowing the original applications. We do not find any ground to interfere with the said order. KPSC had filed a statement inter alia stating that certain candidates were considered for appointment.”
In such circumstances, when analysed in the light of the principles stated in the judgments referred to supra, we find no reason to interfere with the impugned Ext.P2 orders of the Tribunal.
In the result, these original petitions stand dismissed.