BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P. No. 203/2004 Filed on 13/5/2004 Dated: 15..05..2009
Complainant:
Sobhana, T.C.28/2797, Makairam, Vazhavila, Thiruvananthapuram. (By Adv. B. Vasudevan Nair)
Opposite parties:
Benny Antony Parel, Advocate, High Court, Metro Plaza, 5th Floor, Market Road, Ernakulam, Cochin-14. P.K. Sachidanandan, Advocate, High Court, Metro Plaza, 5th Floor, Market Road, Ernakulam, Cochin-14.
(By Adv. J.C. Stephenson)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 23..11..2006, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 30..03..2009, the Forum on 15..05..2009 delivered the following: ORDER
SHRI. G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that complainant had approached opposite parties and handed over some relevant documents to 1st opposite party to file an original petition before the Hon'ble High Court of Kerala challenging the illegal act of the Kerala Public Service Commission in rejecting the complainant's application, after allowing the complainant to attend the written test for the post of Deputy Chief Accounts Officer in the Kerala State Electricity Board, on the ground of complainant having no experience as required by the Gazette Notification dated 18/7/2000. Opposite parties filed O.P.No.36211 of 2002 before the Hon'ble High Court of Kerala, along with a CMP No.61061 of 2002 for an interim direction to permit the complainant to appear in the interview and the said CMP 61061 was allowed, that the KPSC in utter violation of the order of the Hon'ble High Court of Kerala published the rank list on 23/1/2003, whereas the original petition was finally heard and disposed on 25/3/2003, that after publishing rank list, the complainant informed the opposite parties about the utter violation of the order of the Hon'ble High Court and requested them to initiate contempt of Court proceedings against the KPSC. Opposite parties have agreed to the same. Complainant had paid the Advocate fee as demanded by the opposite parties for preparation of the contempt of court proceedings. But nothing was heard for them from the opposite parties in spite of repeated queries made by the complainant. Instead complainant was informed by opposite parties that the said O.P itself was dismissed by the Hon'ble High Court of Kerala taking into consideration, the contentions of the affidavit filed by the KPSC. KPSC filed the counter affidavit on 15/3/2003 and the copy of the same was duly served to the opposite parties. But opposite parties have not informed the complainant about the filing of the counter affidavit and the false contentions taken by the KPSC therein. Nothing was done by the opposite parties in order to protect the interest of the complainant consequent on which the O.P was happened to be dismissed. Opposite parties thereafter advised the complainant that it is a fit case for appeal, but opposite parties wilfully failed to prefer a Writ Appeal before the Division Bench of the Hon'ble High Court against the said dismissal of the said O.P. At last the complainant was constrained to file a Writ Appeal through another Counsel Mr. Ramkumar as Writ Appeal No.824 of 2003, but the same was also dismissed. Opposite parties ought to have called for the records from the KPSC in order to prove the marks scored by the complainant in the written examination as well as in the interview. Opposite parties have totally failed to do the same and evaded even from filing a reply affidavit. Opposite parties have collected an amount of Rs.17,000/- from the complainant for conducting the case. Complainant had spent an amount of Rs.10,000/- for preferring the writ appeal to the Hon'ble Division Bench of the High Court. Complainant had spent an amount of Rs.50,000/- for preferring the appeal before the Hon'ble Supreme Court. Opposite parties have failed to render the service. Hence this complaint to direct the opposite parties to pay an amount of Rs.20,00,000/- by way of compensation to the complainant.
2. Opposite parties filed version contending that the complaint is not maintainable either in law or on facts. There has not been any deficiency in service rendered by the opposite parties to the complainant. The complaint is only the reflections of a litigant losing a case even after earnest, sincere efforts were rendered by the counsels. It is true that the complainant had approached the opposite parties to prefer a Writ Petition. Opposite parties prepared the Writ Petition and the same was filed on 29/11/2002 along with the relevant documents attached thereto. Along with the Writ petition a CMP No.61061/02 was also preferred. Another CMP No.61062/02 was also filed for direction to call for records. CMP No.61061/02 was allowed and directed the KPSC that the result of the interview in relation to the complainant will be published only after further orders from the Court. On 23/1/2003 a supplementary rank list was published by KPSC which did not include the complainant. Hence opposite parties preferred another CMP for staying appointment which was numbered as 7232/03. It was at that point of time, there was request from the complainant to prefer a contempt against the KPSC for the violation of the order in CMP No.61061/02. As the direction issued by the Court was only to admit the complainant for interview and the result of interview in relation to the complainant was to be published after further orders from the court and in the order as it was made clear that "the order is provisional and subject to the result of O.P", the contempt petition was not filed being not maintainable. The counter was filed by the KPSC on the 25th day of March 2003, when the matter came up in the petition list on 25/3/2003, opposite parties prayed for time to file the reply to the counter since the counter was received only on that day which was turned down by the Hon'ble High Court and O.P was dismissed. When the complainant wanted to prefer a Writ Appeal, the opposite parties suggested the name of the Senior counsel Sri. K. Ramkumar which was accepted by the complainant. Opposite parties briefed the case to the Senior Counsel, who filed the Writ Appeal. There has not been any deficiency of service on the part of the opposite parties. The relief prayed for is not maintainable. 3. The points that arise for consideration are:
Whether there has been deficiency in service on the part of opposite parties? Whether the complainant is entitled to get compensation? If so, at what amount?
4. In support of the complaint, complainant has filed proof affidavit and Exts.P1 to P15 were marked. In rebuttal, 2nd opposite party has filed proof affidavit and Exts.D1 to D5 were marked.
5. Points (i) & (ii) : It has not been in dispute that complainant approached opposite parties and handed over some relevant documents to 1st opposite party to file an original petition before the Hon'ble High Court of Kerala challenging the illegal act of the Kerala Public Service Commission in rejecting complainant's application after allowing the complainant to attend the written test for the post of Deputy Chief Accounts Officer in the Kerala State Electricity Board on the ground of complainant having no experience as required by the Gazette Notification dated 18/7/2000. It has also not been in dispute that as requested by the complainant opposite party filed O.P.No.36211/02 before the Hon'ble High Court of Kerala along with a CMP No.61061 of 2002 for an interim direction to permit the complainant to appear in the interview and the said CMP 61061 was allowed. Ext.P4 is the copy of the letter dated 29/3/2001 issued by Kerala Public Service Commission to the complainant. Ext.P5 is the copy of experience certificate dated 11/4/2001 issued by Kerala Small Industries Development Corporation Ltd to the complainant. Ext.P6 is the copy of the Admission Ticket issued by KPSC to the complainant. Ext.P7 is the copy of the letter dated 7/11/2002 issued by the Secretary, KPSC to complainant informing her of the rejection of application on the ground of her having no experience as required by the Gazette Notification. Ext.P8 is the copy of the appeal dated 14/11/2002 submitted by the complainant to KPSC. Ext.P9 is the copy of KPSC's order dated 20/11/2002 dismissing the appeal petition. Ext.P10 is the copy of the original petition filed before the Hon'ble High Court of Kerala by the complainant. Ext.P11 is the copy of the order dated 2/12/2002 of the Hon'ble High Court in CMP 61061/2002 in O.P.No.36211/2002. As per Ext.P12 the Secretary, KPSC was directed to interview the complainant for appointment to the post of Deputy Chief Accounts Officer in KSEB, along with other candidates who applied for the same post under the same notification. Further it was directed that the result of the interview in relation to the complainant would be published only after further orders from this court. Ext.P12 is the copy of the order dated 25/3/2003 in O.P.No.36211 of 2002 of the Hon'ble High Court. Ext.P12 order is reproduced as under:
“The petitioner was an applicant for the post of Deputy Chief Accounts Officer in the 2nd respondent KSEB. Her application was rejected by Ext.P7 communication dated 7/11/2002, on the ground that she does not have the prescribed experience. Challenging the said order this Original Petition is filed. As per interim order of this court, the petitioner was permitted to take part in the interview. Even before the rejection of the application, the petitioner had already participated in the written test. Even though the petitioner was allowed to take part in the interview there was further direction from this court not to publish her result without the permission of this court. The first respondent PSC has filed counter affidavit in which it is stated as follows:
“It is submitted that the petitioner has not scored sufficient marks to be included in the Ranked List. Hence the question of her inclusion in the Ranked List even if her qualification is accepted does not arise”.
“In view of the above position, no purpose will be served even if it is found that the petitioner is having the prescribed qualification. Accordingly the original petition fails and it is dismissed”. Main thrust of argument advanced by the counsel appearing on behalf of the complainant was to the effect that KPSC in utter violation of the order of the Hon'ble High Court published the rank list on 23/1/2003, that although opposite parties were agreed to initiate contempt proceedings against the KPSC, the same was willfully not done by the opposite parties, that opposite parties neither informed the complainant about the counter by the KPSC nor filed any reply for the same. It is uttered further by the complainant, that she had given the fee for preferring the contempt as required by the opposite parties, that though opposite party was engaged to file writ appeal against the dismissal of the said OP they did not file the same, which forced the complainant to search for another advocate to file writ appeal. Ext.D1 is the certified copy of the memorandum or original petition filed by opposite parties before the Hon'ble High Court of Kerala. Ext.D2 and Ext.P11 are one and the same. Ext.D3 is the copy of the stay petition dated 4/2/2003. Ext.D4 is the certified copy of the counter affidavit filed by the PSC. On perusal of Ext.D4, it is seen that the counter affidavit by the PSC is dated 15/3/2003, while the copy of the same is seen served to opposite parties on 25/3/2003, on the date of posting of the said OP. Since Ext.D4 is the certified copy of the counter affidavit filed by the PSC and in the docket sheet of which it is seen endorsed that copy received by opposite parties on 25/3/2003, we presume the said affidavit was filed on 25/3/2003 after serving copy of the same to opposite parties and not on 15/3/2003 as alleged in the complaint. In version as well as affidavit filed by opposite parties, it is seen stated that when the matter came up in the petition list on 25/3/2003 opposite parties prayed for time to file the reply to the counter affidavit since the same was received only on that day. Nowhere in Ext.D5/P12 judgment dated 25/3/2003 is it mentioned that opposite parties sought time for reply to the counter affidavit. It is pertinent to point out that nowhere in Ext.D5/P12 it is mentioned that opposite parties were absent when the matter came up for in the petition list on 25/3/2003. Complainant has no case that the original petition was dismissed due to the absence or non-appearance of opposite parties on 25/3/2003. Thereby we find opposite party was present before the court on 25/3/2003, but not filed reply to counter affidavit by the PSC. It is to be pointed out that the Ext.D5/P12 judgment is seen pronounced on 25/3/2003, the date on which the matter came up for in the petition list. It is on that date the counter affidavit is seen filed by the KPSC after serving copy to opposite parties and it is on the strength of the said counter affidavit filed by the PSC, Hon'ble High Court, found that “no purpose will be served even if it is found that the petitioner is having prescribed qualification”. It is further to be highlighted that original petition was seen dismissed neither on the ground of non-appearance of opposite parties in the court on the ground of non-production of any reply by opposite parties to the counter affidavit filed by PSC, nor due to default of the opposite parties. It is further to be highlighted that along with the original petition opposite parties have filed two CMPs and CMP No.61061/02 was allowed and CMP No.61062/02 for direction to call records was pending. Submission by the opposite parties is that since supplementary rank list published by PSC on 23/1/2003 did not include the name of the petitioner, opposite parties preferred a petition for staying the appointment based on the same by Ext.D3. Opposite parties further submit that as per Ext.D2 Hon'ble High Court directed the PSC to admit the petitioner for interview and the result of the same in relation to the petitioner will have to be published after further orders, from the Court and in the said order it was made clear that 'the order is provisional subject to the result of opposite party'. As per para 5 of Ext.D4 counter affidavit, the petitioner was provisionally interviewed for the post pursuant to an interim order by the Hon'ble High Court and that petitioner had not scored sufficient marks to be included in the rank list. It was against this backdrop of counter affidavit. Hon'ble High Court found that no purpose will be served even if it is found that the petitioner is having sufficient qualification which led to the dismissal of the OP. It is uttered by the opposite parties that in the light of Ext.D5/P12 order, the contempt will not be maintainable and the same was informed to the complainant and that no amount was received by the opposite parties to prefer contempt. No material on record to proof otherwise. The onus of proving the receipt of fee by the opposite parties to prefer contempt would rest on the complaint. Further, submission by opposite parties is that when the original petition was dismissed by the Hon'ble High Court, the complainant wanted to prefer a writ appeal before the Division Bench, and opposite parties suggested the name of the senior counsel Sri. K. Ramkumar and the same was accepted by the complainant and that no amount was paid to the opposite parties at the point of time of preferring the writ appeal. Opposite parties further submission is that the observations passed by the Division Bench of the Hon'ble High Court in Writ Appeal is not due to the negligence of the opposite parties. In view of the foregoing discussion and in the light of evidence available on the records, we are of the considered opinion that complaint has no merit at all to attribute any deficiency on the part of opposite parties. Deficiency in service not proved. Hence complaint deserves to be dismissed.
In the result, complaint is dismissed.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15th day of May, 2009.
G. SIVAPRASAD, PRESIDENT. BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER
ad. O.P.No.203/2004 APPENDIX I. Complainant's witness: NIL II. Complainant's documents: P1 : Copy of the Degree of Master of Commerce Certificate issued by the Kerala University dated 30/1/1985 to the complainant. P2 : Copy of the certificate of membership awarded by the Institute of Cost and Works Accountant of India dated 7/3/1997 to the complainant. P3 : Copy of the Gazette Notification dated 18/7/2000 P4 : Copy of the letter dated 29/3/2001 issued by the Secretary, KPSC, Pattom, Tvpm to the complainant. P5 : Copy of the Experience Certificate dated 11/4/2001 issued by the Kerala Small Industries Development Corporation Ltd to the complainant. P6 : Copy of admission ticket dated 10/5/2002 issued by the KPSC, Pattom, Tvpm to the complainant. P7 : Copy of the letter dated 7/11/2002 issued by the Secretary " P8 : Copy of Appeal dated 14/11/2002 submitted by the complainant to the Secretary " P9 : Copy of the order dated 20/11/2002 issued by the KPSC, Tvpm to the complainant. P10: Copy of Original Peition dated 28/11/2002 filed by the applicant P11: Copy of Order dated 2/12/2002 by the Hon'ble High Court of Kerala P12: Copy of Judgment dated 25/3/2003 by the Hon'ble High Court of Kerala P13: Copy of Judgment dated 29/5/2003 by the " P14 : Copy of the Adv.notice dt. 19/2/2004 issued by the complainant. P15 : Copy of acknowledgment card No.414 addressed to the opp. Party. P15(a) : Copy of acknowledgment card No.413 addressed to the 1st opp. Party.
III. Opposite parties' witness : NIL
IV. Opposite parties' documents:
D1 : Copy of Index in O.P.36211/2002 submitted before the Honble High Court of Kerala D2 : Copy of order dated 2/12/2002 passed by the Hon'ble CDRF.
D3 : Copy of petition for stay with C.M.PNo.7232/03
D4 : Copy of counter affidavit of the 1st respondent.
D5 : Copy of judgment dated 25/3/2003 in O.P.No.36211/02 J.
PRESIDENT
ad. BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P. No. 203/2004 Filed on 13/5/2004 Dated: 15..05..2009
Complainant:
Sobhana, T.C.28/2797, Makairam, Vazhavila, Thiruvananthapuram. (By Adv. B. Vasudevan Nair)
Opposite parties:
Benny Antony Parel, Advocate, High Court, Metro Plaza, 5th Floor, Market Road, Ernakulam, Cochin-14. P.K. Sachidanandan, Advocate, High Court, Metro Plaza, 5th Floor, Market Road, Ernakulam, Cochin-14.
(By Adv. J.C. Stephenson)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 23..11..2006, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 30..03..2009, the Forum on 15..05..2009 delivered the following: ORDER
SHRI. G. SIVAPRASAD, PRESIDENT:
The facts leading to the filing of the complaint are that complainant had approached opposite parties and handed over some relevant documents to 1st opposite party to file an original petition before the Hon'ble High Court of Kerala challenging the illegal act of the Kerala Public Service Commission in rejecting the complainant's application, after allowing the complainant to attend the written test for the post of Deputy Chief Accounts Officer in the Kerala State Electricity Board, on the ground of complainant having no experience as required by the Gazette Notification dated 18/7/2000. Opposite parties filed O.P.No.36211 of 2002 before the Hon'ble High Court of Kerala, along with a CMP No.61061 of 2002 for an interim direction to permit the complainant to appear in the interview and the said CMP 61061 was allowed, that the KPSC in utter violation of the order of the Hon'ble High Court of Kerala published the rank list on 23/1/2003, whereas the original petition was finally heard and disposed on 25/3/2003, that after publishing rank list, the complainant informed the opposite parties about the utter violation of the order of the Hon'ble High Court and requested them to initiate contempt of Court proceedings against the KPSC. Opposite parties have agreed to the same. Complainant had paid the Advocate fee as demanded by the opposite parties for preparation of the contempt of court proceedings. But nothing was heard for them from the opposite parties in spite of repeated queries made by the complainant. Instead complainant was informed by opposite parties that the said O.P itself was dismissed by the Hon'ble High Court of Kerala taking into consideration, the contentions of the affidavit filed by the KPSC. KPSC filed the counter affidavit on 15/3/2003 and the copy of the same was duly served to the opposite parties. But opposite parties have not informed the complainant about the filing of the counter affidavit and the false contentions taken by the KPSC therein. Nothing was done by the opposite parties in order to protect the interest of the complainant consequent on which the O.P was happened to be dismissed. Opposite parties thereafter advised the complainant that it is a fit case for appeal, but opposite parties wilfully failed to prefer a Writ Appeal before the Division Bench of the Hon'ble High Court against the said dismissal of the said O.P. At last the complainant was constrained to file a Writ Appeal through another Counsel Mr. Ramkumar as Writ Appeal No.824 of 2003, but the same was also dismissed. Opposite parties ought to have called for the records from the KPSC in order to prove the marks scored by the complainant in the written examination as well as in the interview. Opposite parties have totally failed to do the same and evaded even from filing a reply affidavit. Opposite parties have collected an amount of Rs.17,000/- from the complainant for conducting the case. Complainant had spent an amount of Rs.10,000/- for preferring the writ appeal to the Hon'ble Division Bench of the High Court. Complainant had spent an amount of Rs.50,000/- for preferring the appeal before the Hon'ble Supreme Court. Opposite parties have failed to render the service. Hence this complaint to direct the opposite parties to pay an amount of Rs.20,00,000/- by way of compensation to the complainant.
2. Opposite parties filed version contending that the complaint is not maintainable either in law or on facts. There has not been any deficiency in service rendered by the opposite parties to the complainant. The complaint is only the reflections of a litigant losing a case even after earnest, sincere efforts were rendered by the counsels. It is true that the complainant had approached the opposite parties to prefer a Writ Petition. Opposite parties prepared the Writ Petition and the same was filed on 29/11/2002 along with the relevant documents attached thereto. Along with the Writ petition a CMP No.61061/02 was also preferred. Another CMP No.61062/02 was also filed for direction to call for records. CMP No.61061/02 was allowed and directed the KPSC that the result of the interview in relation to the complainant will be published only after further orders from the Court. On 23/1/2003 a supplementary rank list was published by KPSC which did not include the complainant. Hence opposite parties preferred another CMP for staying appointment which was numbered as 7232/03. It was at that point of time, there was request from the complainant to prefer a contempt against the KPSC for the violation of the order in CMP No.61061/02. As the direction issued by the Court was only to admit the complainant for interview and the result of interview in relation to the complainant was to be published after further orders from the court and in the order as it was made clear that "the order is provisional and subject to the result of O.P", the contempt petition was not filed being not maintainable. The counter was filed by the KPSC on the 25th day of March 2003, when the matter came up in the petition list on 25/3/2003, opposite parties prayed for time to file the reply to the counter since the counter was received only on that day which was turned down by the Hon'ble High Court and O.P was dismissed. When the complainant wanted to prefer a Writ Appeal, the opposite parties suggested the name of the Senior counsel Sri. K. Ramkumar which was accepted by the complainant. Opposite parties briefed the case to the Senior Counsel, who filed the Writ Appeal. There has not been any deficiency of service on the part of the opposite parties. The relief prayed for is not maintainable. 3. The points that arise for consideration are:
Whether there has been deficiency in service on the part of opposite parties? Whether the complainant is entitled to get compensation? If so, at what amount?
4. In support of the complaint, complainant has filed proof affidavit and Exts.P1 to P15 were marked. In rebuttal, 2nd opposite party has filed proof affidavit and Exts.D1 to D5 were marked.
5. Points (i) & (ii) : It has not been in dispute that complainant approached opposite parties and handed over some relevant documents to 1st opposite party to file an original petition before the Hon'ble High Court of Kerala challenging the illegal act of the Kerala Public Service Commission in rejecting complainant's application after allowing the complainant to attend the written test for the post of Deputy Chief Accounts Officer in the Kerala State Electricity Board on the ground of complainant having no experience as required by the Gazette Notification dated 18/7/2000. It has also not been in dispute that as requested by the complainant opposite party filed O.P.No.36211/02 before the Hon'ble High Court of Kerala along with a CMP No.61061 of 2002 for an interim direction to permit the complainant to appear in the interview and the said CMP 61061 was allowed. Ext.P4 is the copy of the letter dated 29/3/2001 issued by Kerala Public Service Commission to the complainant. Ext.P5 is the copy of experience certificate dated 11/4/2001 issued by Kerala Small Industries Development Corporation Ltd to the complainant. Ext.P6 is the copy of the Admission Ticket issued by KPSC to the complainant. Ext.P7 is the copy of the letter dated 7/11/2002 issued by the Secretary, KPSC to complainant informing her of the rejection of application on the ground of her having no experience as required by the Gazette Notification. Ext.P8 is the copy of the appeal dated 14/11/2002 submitted by the complainant to KPSC. Ext.P9 is the copy of KPSC's order dated 20/11/2002 dismissing the appeal petition. Ext.P10 is the copy of the original petition filed before the Hon'ble High Court of Kerala by the complainant. Ext.P11 is the copy of the order dated 2/12/2002 of the Hon'ble High Court in CMP 61061/2002 in O.P.No.36211/2002. As per Ext.P12 the Secretary, KPSC was directed to interview the complainant for appointment to the post of Deputy Chief Accounts Officer in KSEB, along with other candidates who applied for the same post under the same notification. Further it was directed that the result of the interview in relation to the complainant would be published only after further orders from this court. Ext.P12 is the copy of the order dated 25/3/2003 in O.P.No.36211 of 2002 of the Hon'ble High Court. Ext.P12 order is reproduced as under:
“The petitioner was an applicant for the post of Deputy Chief Accounts Officer in the 2nd respondent KSEB. Her application was rejected by Ext.P7 communication dated 7/11/2002, on the ground that she does not have the prescribed experience. Challenging the said order this Original Petition is filed. As per interim order of this court, the petitioner was permitted to take part in the interview. Even before the rejection of the application, the petitioner had already participated in the written test. Even though the petitioner was allowed to take part in the interview there was further direction from this court not to publish her result without the permission of this court. The first respondent PSC has filed counter affidavit in which it is stated as follows:
“It is submitted that the petitioner has not scored sufficient marks to be included in the Ranked List. Hence the question of her inclusion in the Ranked List even if her qualification is accepted does not arise”.
“In view of the above position, no purpose will be served even if it is found that the petitioner is having the prescribed qualification. Accordingly the original petition fails and it is dismissed”. Main thrust of argument advanced by the counsel appearing on behalf of the complainant was to the effect that KPSC in utter violation of the order of the Hon'ble High Court published the rank list on 23/1/2003, that although opposite parties were agreed to initiate contempt proceedings against the KPSC, the same was willfully not done by the opposite parties, that opposite parties neither informed the complainant about the counter by the KPSC nor filed any reply for the same. It is uttered further by the complainant, that she had given the fee for preferring the contempt as required by the opposite parties, that though opposite party was engaged to file writ appeal against the dismissal of the said OP they did not file the same, which forced the complainant to search for another advocate to file writ appeal. Ext.D1 is the certified copy of the memorandum or original petition filed by opposite parties before the Hon'ble High Court of Kerala. Ext.D2 and Ext.P11 are one and the same. Ext.D3 is the copy of the stay petition dated 4/2/2003. Ext.D4 is the certified copy of the counter affidavit filed by the PSC. On perusal of Ext.D4, it is seen that the counter affidavit by the PSC is dated 15/3/2003, while the copy of the same is seen served to opposite parties on 25/3/2003, on the date of posting of the said OP. Since Ext.D4 is the certified copy of the counter affidavit filed by the PSC and in the docket sheet of which it is seen endorsed that copy received by opposite parties on 25/3/2003, we presume the said affidavit was filed on 25/3/2003 after serving copy of the same to opposite parties and not on 15/3/2003 as alleged in the complaint. In version as well as affidavit filed by opposite parties, it is seen stated that when the matter came up in the petition list on 25/3/2003 opposite parties prayed for time to file the reply to the counter affidavit since the same was received only on that day. Nowhere in Ext.D5/P12 judgment dated 25/3/2003 is it mentioned that opposite parties sought time for reply to the counter affidavit. It is pertinent to point out that nowhere in Ext.D5/P12 it is mentioned that opposite parties were absent when the matter came up for in the petition list on 25/3/2003. Complainant has no case that the original petition was dismissed due to the absence or non-appearance of opposite parties on 25/3/2003. Thereby we find opposite party was present before the court on 25/3/2003, but not filed reply to counter affidavit by the PSC. It is to be pointed out that the Ext.D5/P12 judgment is seen pronounced on 25/3/2003, the date on which the matter came up for in the petition list. It is on that date the counter affidavit is seen filed by the KPSC after serving copy to opposite parties and it is on the strength of the said counter affidavit filed by the PSC, Hon'ble High Court, found that “no purpose will be served even if it is found that the petitioner is having prescribed qualification”. It is further to be highlighted that original petition was seen dismissed neither on the ground of non-appearance of opposite parties in the court on the ground of non-production of any reply by opposite parties to the counter affidavit filed by PSC, nor due to default of the opposite parties. It is further to be highlighted that along with the original petition opposite parties have filed two CMPs and CMP No.61061/02 was allowed and CMP No.61062/02 for direction to call records was pending. Submission by the opposite parties is that since supplementary rank list published by PSC on 23/1/2003 did not include the name of the petitioner, opposite parties preferred a petition for staying the appointment based on the same by Ext.D3. Opposite parties further submit that as per Ext.D2 Hon'ble High Court directed the PSC to admit the petitioner for interview and the result of the same in relation to the petitioner will have to be published after further orders, from the Court and in the said order it was made clear that 'the order is provisional subject to the result of opposite party'. As per para 5 of Ext.D4 counter affidavit, the petitioner was provisionally interviewed for the post pursuant to an interim order by the Hon'ble High Court and that petitioner had not scored sufficient marks to be included in the rank list. It was against this backdrop of counter affidavit. Hon'ble High Court found that no purpose will be served even if it is found that the petitioner is having sufficient qualification which led to the dismissal of the OP. It is uttered by the opposite parties that in the light of Ext.D5/P12 order, the contempt will not be maintainable and the same was informed to the complainant and that no amount was received by the opposite parties to prefer contempt. No material on record to proof otherwise. The onus of proving the receipt of fee by the opposite parties to prefer contempt would rest on the complaint. Further, submission by opposite parties is that when the original petition was dismissed by the Hon'ble High Court, the complainant wanted to prefer a writ appeal before the Division Bench, and opposite parties suggested the name of the senior counsel Sri. K. Ramkumar and the same was accepted by the complainant and that no amount was paid to the opposite parties at the point of time of preferring the writ appeal. Opposite parties further submission is that the observations passed by the Division Bench of the Hon'ble High Court in Writ Appeal is not due to the negligence of the opposite parties. In view of the foregoing discussion and in the light of evidence available on the records, we are of the considered opinion that complaint has no merit at all to attribute any deficiency on the part of opposite parties. Deficiency in service not proved. Hence complaint deserves to be dismissed.
In the result, complaint is dismissed.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15th day of May, 2009.
G. SIVAPRASAD, PRESIDENT. BEENA KUMARI .A : MEMBER
S.K. SREELA : MEMBER
ad. O.P.No.203/2004 APPENDIX I. Complainant's witness: NIL II. Complainant's documents: P1 : Copy of the Degree of Master of Commerce Certificate issued by the Kerala University dated 30/1/1985 to the complainant. P2 : Copy of the certificate of membership awarded by the Institute of Cost and Works Accountant of India dated 7/3/1997 to the complainant. P3 : Copy of the Gazette Notification dated 18/7/2000 P4 : Copy of the letter dated 29/3/2001 issued by the Secretary, KPSC, Pattom, Tvpm to the complainant. P5 : Copy of the Experience Certificate dated 11/4/2001 issued by the Kerala Small Industries Development Corporation Ltd to the complainant. P6 : Copy of admission ticket dated 10/5/2002 issued by the KPSC, Pattom, Tvpm to the complainant. P7 : Copy of the letter dated 7/11/2002 issued by the Secretary " P8 : Copy of Appeal dated 14/11/2002 submitted by the complainant to the Secretary " P9 : Copy of the order dated 20/11/2002 issued by the KPSC, Tvpm to the complainant. P10: Copy of Original Peition dated 28/11/2002 filed by the applicant P11: Copy of Order dated 2/12/2002 by the Hon'ble High Court of Kerala P12: Copy of Judgment dated 25/3/2003 by the Hon'ble High Court of Kerala P13: Copy of Judgment dated 29/5/2003 by the " P14 : Copy of the Adv.notice dt. 19/2/2004 issued by the complainant. P15 : Copy of acknowledgment card No.414 addressed to the opp. Party. P15(a) : Copy of acknowledgment card No.413 addressed to the 1st opp. Party.
III. Opposite parties' witness : NIL
IV. Opposite parties' documents:
D1 : Copy of Index in O.P.36211/2002 submitted before the Honble High Court of Kerala D2 : Copy of order dated 2/12/2002 passed by the Hon'ble CDRF.
D3 : Copy of petition for stay with C.M.PNo.7232/03
D4 : Copy of counter affidavit of the 1st respondent.
D5 : Copy of judgment dated 25/3/2003 in O.P.No.36211/02 J.
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
