IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 1606 of 1999(N)
1. SAJEEV.P.
... Petitioner
Vs
1. THE K.P.S.C.
... Respondent
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent :SRI.ALEXANDER THOMAS,SC,KPSC
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :07/10/2008
O R D E R
S. Siri Jagan, J.
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O.P. No. 1606 of 1999
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Dated this, the 7th October, 2008.
J U D G M E N T
The petitioner and the 3rd respondent are aspirants for the post
of Shift Analyst in the Kerala Minerals and Metals Ltd., the 2nd
respondent herein, for selection to which post, the 1st respondent-
Public Service Commission invited applications by notification dated
24-5-1994 pursuant to which both of them applied. A written test was
conducted and a short list dated 27-2-1998 was published, in which
both found a place, but the 3rd respondent only provisionally on
account of want of submission of attested copies of certificates of
qualification along with the application, which was a notified
requirement for a valid application, at the relevant time. In the
interview which followed on 2-5-1998 and 4-5-1998, the petitioner
participated, but the 3rd respondent was not invited, since the defect
in the application was not cured, although allegedly a defect curing
memo was issued by the Public Service Commission to the 3rd
respondent on 23-12-1997. A rank list was published on 10-6-1998 in
which the petitioner was rank no. 1. Pursuant thereto, he was
advised for the post also, as per Ext. P1 advice memo. As instructed
in the advise memo itself, he wrote to the Public Service Commission
since he did not get appointment within three months.
2. Then came Ext. P2 show cause notice dated 30-10-1998,
directing the petitioner to show cause why the advice allegedly made
by mistake should not be cancelled invoking Rule 3(c) of Part II of the
Kerala State and Subordinate Services Rules on the ground that on
rectification of the rank list, the 3rd respondent had to be included as
rank no. 1, the petitioner’s rank number was reassigned as no. 1A,
and as there are only two vacancies, the petitioner being the junior-
most among those advised, his advice had to be cancelled. The
petitioner filed Ext. P3 reply stating inter alia that the reasons for
O.P. No . 1606/1999 -: 2 :-
lowering of his rank was not clear from the show case notice.
3. Thereafter, he received another show cause notice, Ext. P4,
stating that although the 3rd respondent did not respond to a defect
curing memo dated 23-12-1997 directing him to produce certificates
to substantiate his community and date of birth pursuant to a show
cause notice dated 23-4-1998, he produced copy of his SSLC
certificate, which was received by the Public Service Commission on
5-5-1998, consequent to which a supplementary interview was
ordered on 17-8-1998, and conducted on 3-10-1998, adding marks in
which to the marks obtained by him in the written test, the 3rd
respondent was found to have secured the 1st rank, as a result of
which the petitioner’s rank had to be lowered and his advice was
proposed to be cancelled invoking Rule 3(c) of Part II of K.S & SSR.
The petitioner was directed to show cause against such proposal. In
Ext. P4, Ext. P2 was cancelled also. The petitioner replied by Ext. P5,
specifically contending that Rule 3(c) is not attracted to the fact
situation as there was no mistake either on the part of the Public
Service Commission or the petitioner. The supplementary interview
and inclusion of the 3rd respondent in the rank list were also
challenged by the petitioner in that reply. However, by Ext. P6 order
dated 6-1-1999, the Public Service Commission confirmed the
proposal in Ext. P4 and cancelled the advice issued to the petitioner.
Challenging Ext. P4 order, the petitioner has filed this original
petition, seeking the following reliefs:
“i. Issue a writ of certiorari or any other appropriate writ,
order or direction calling for the records leading to Ext.P6 and
quashing the same.
ii. Declare that Ext.P1 advice is not liable to be cancelled
and the petitioner is entitled to be appointed based on it.
iii. Declare as void the decisions of the 1st respondent to
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admit the application of the 3rd respondent and to conduct a
supplementary interview for him, the decision to assign first rank
to him and the decision to lower the rank of the petitioner as IA.
iv. Issue a writ of mandamus or any other appropriate writ,
order or direction commanding the 1st respondent to revive Ext.P1
and the 2nd respondent to appoint the petitioner as Shift Analyst
based on Ext.P1 expeditiously and within a time limit to be fixed
by this Hon’ble Court.”
4. The 1st respondent- Public Service Commission and the 3rd
respondent have filed counter affidavits supporting Ext. P6.
5. I have heard counsel on both sides at length and
considered the arguments in detail.
6. The following facts are not disputed before me:
(a) No mistake whatsoever was committed by the petitioner and at
the time of publication of the rank list on 10-6-1998, the petitioner
was rightly included in the rank list as rank no. 1.
(b) The application of the 3rd respondent was not accompanied by
certain documents which were required to be produced as per the
notified requirements for a valid application, at the time of
submission of the same.
(c) The Public Service Commission had issued a defect curing
memo dated 23-12-1997 to the 3rd respondent directing him to cure
the defect of having not produced the SSLC certificate along with his
application, to which the Public Service Commission did not receive
any reply.
(d) The name of the 3rd respondent was included in the short list
dated 27-2-1998 only provisionally for want of production of the
required document.
(e) The Public Service Commission issued a show cause notice
dated 23-4-1998 to the 3rd respondent directing him to show cause
why for want of production of SSLC certificate his name should not
O.P. No . 1606/1999 -: 4 :-
be deleted from the short list.
(f) The interview was conducted on 2-5-1998 and 4-5-1998 in which
the petitioner participated and the 3rd respondent was not invited.
(g) Rank list was published on 10-6-1998 in which the petitioner
was included as rank no. 1.
(h) The petitioner was given advice memo dated 4-7-1998.
(i) A supplementary interview was conducted on 3-10-1998 for the
3rd respondent.
(j) Subsequently, pursuant to show cause notices, the advice given
to the petitioner was cancelled on 6-1-1999.
7. On the pleadings, the issue arising for consideration is as to
whether the petitioner’s advice could have been cancelled invoking
Rule 3(c) of KS & SSR. Rule 3(c) reads thus:
“3. Approved Candidates.-
** ** ** **
(c) Notwithstanding anything contained in these rules, the
Commission shall have the power to cancel the advice for
appointment of any candidate to any service if it is subsequently
found that such advice was made under some mistake. On such
cancellation the appointing authority shall terminate the service
of the candidates:
Provided that the cancellation of advice for appointment by
the Commission and the subsequent termination of service of the
candidate by the appointing authority shall be made within a
period of one year from the date of such advice.
Provided further that, a cancellation of advice under this
sub-rule shall be made only after giving the candidate concerned
a reasonable opportunity of being heard in the matter.
The provisions in this sub-rule shall be deemed to have
come into force on the 31st July, 1969.”
Precedents on the scope of Rule 3(c) are very scarce. In K.P.S.C. v.
Jayadev, 1977 KLT 85, a Division Bench of this Court explained the
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scope of the Rule thus:
“This sub-rule was introduced with effect from 31st July
1969. A plain reading of the rule gives no doubt that the Public
Service Commission will have the power to cancel the advice for
appointment of any candidate to any service if it is subsequently
found that such advice was made under ‘some mistake’. The
mistake can therefore be exclusively that of the Public Service
Commission, as far as can be judged from the facts available
before us, in the three cases, also appear to be mistakes arising
exclusively from the acts or omissions of the Public Service
Commission. There is nothing in the wording of the rule which
would justify a limited meaning to be given to the word ‘mistake’
by limiting it to mistakes committed by the Public Service
Commission on the inducement of the candidate whose name has
been advised. In fact it appears to us that the introduction of any
such qualification would amount to a redrafting of the rule so as
to change its amplitude and scope. Unless there are compelling
reasons as in the case of the rule read as it is in the grammatical
sense leading to absurdities or to arbitrariness so patent as to
shake the judicial conscience it is not the function of a court to
rewrite the rule however harsh it may appear to be. The other
circumstance in which rules or statutes can be “read down” is by
understanding the written word in the light of the subject dealt
with and with reference to the content as well as the purposes and
objects sought to be achieved by the statute and the evil if any
sought to be remedied by the law. In the circumstances
expressions in a statute will be understood in the background of
the above factors. These principles are not of assistance to the
respondents who approached this Court for giving a limited
meaning to the word mistake in this rule. We no doubt see that in
given circumstances considerable hardship can be caused to
persons by the exercise of this rather wide power conferred on
the Public Service Commission to change an advice which they
had formally and we expect, after due care and attention deemed
fit to convey to the authority who has to make the appointment.”
A learned Single Judge in Johnson v. KPSC, 1977 KLT 776, in which
Jayadev’s case (supra) was also referred to, held thus on the issue:
“4. The main controversy in this case concerns the
construction of the rule. That the information furnished by the
petitioner in his application was not true is conceded. The
petitioner was employed at the relevant time and he did not
disclose this information in his application form. Would that be
sufficient to invoke Rule 3(c) of the Kerala State and Subordinate
Services Rules? That is the question calling for an answer. There
was no doubt a mistake and that by reason of the wrong
information conveyed by the entries in the application form. But
evidently it could not be said that the petitioner was appointed as aO.P. No . 1606/1999 -: 6 :-
Deputy Superintendent of Police because the Public Service
Commission was not aware that he was an Inspector of Central
Excise. In other words, it could not be said that had the Public
Service Commission known that the petitioner was an Inspector of
Central Excise he would not have been appointed as a Deputy
Superintendent of Police. That information even if furnished
would not have in any way acted against the course of advice
which the Public Service Commission would have adopted. If the
scope of rule 3(c) is to enable cancellation of advice being made
when it is subsequently found that the original advice was made
under some mistake it appears to me that the mistake must be of
such a nature as could have caused the advice to be made. There
may be cases where candidates would not have obtained qualifying
marks in their examinations but they might have represented
otherwise in their applications, cases where they misrepresent that
they are in possession of qualifications required for eligibility but
they would not be really possessing them and cases where they
may represent that they belong to particular caste or community
by virtue of which they may be entitled to get the appointment but
they do not belong to such caste or community. There may be
similar other cases where the description would be of material
relevance in determining eligibility for appointment or suitability
for selection. In such cases it could very well be said that but for
the description relied on or the information acted upon by the
Public Service Commission which is found subsequently to be
mistaken the advice would not have been made. But there may be
mistakes which may not be material in the decision as to making
the advice. A candidate may assume that his father’s name is not
good enough for presentation in the application and he may
improve upon it. He may furnish similar such other information
not with a view to persuade the Public Service Commission to act
upon it so as thereby to advise for appointment. I do not think it
could be said that in those cases the mistakes, however serious or
slight it be, could be brought within rule 3(c), for, that rule
mentions “if it is subsequently found that such advice was made
under some mistake.” This expression necessarily conveys the
idea very emphatically that it should be subsequently found that in
making the advice the Commission acted under some mistake. Any
mistake not relevant in the causation of advice by the Commission
may not fall within the Rule.”
Going by the scope of the Rule as explained in those decisions, for
invoking Rule 3(c), three essential circumstances should arise, which
are:
(a) there must be a mistake resulting in the advice sought to
be cancelled;
O.P. No . 1606/1999 -: 7 :-
(b) the mistake must have been of the Public Service
Commission; and
(c) in making the advice sought to be cancelled, the
Commission acted under that mistake.
Now, I shall proceed to examine as to whether in the light of those
principles, the advice of the petitioner was liable to be cancelled as
was done by the Public Service Commission.
8. Strangely, the defect curing memo dated 23-12-1997 issued
to the 3rd respondent, the show cause notice dated 23-4-1998 issued to
the 3rd respondent and his reply to the same, though very relevant to
decide the issue, have not been produced before me either by the
Public Service Commission or the 3rd respondent. The files available
with the counsel for the Public Service Commission did not admittedly
contain the reply of the 3rd respondent to the show cause notice dated
23-4-1998. In the counter affidavit of the Public Service Commission,
although SSLC certificate of the 3rd respondent was stated to be
produced by him pursuant to show cause notice dated 23-4-1998,
his reply was not referred to therein. When I repeatedly insisted upon
seeing the same, the counsel for the Public Service Commission, in
the course of hearing, obtained a fax copy of the same from the office
of the Public Service Commission and made the same available to me
across the bar.
9. It cannot be disputed by anybody that as on the date of
advise of the petitioner viz. 4-7-1998, there was no mistake
whatsoever in the advise of the petitioner. A rank list was published
on 10-6-1998 in which the petitioner was rank no. 1 and he was
advised in accordance with that rank. There was no mistake in the
rank assigned to the petitioner or the advice made. The so called
mistake arose only much later in October 1998, three months after
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the advice memo was issued to the petitioner, that too, on the basis of
a supplementary interview conducted by the Public Service
Commission, which had to be conducted not because of any mistake of
the Public Service Commission, but on account of a mistake
committed by the 3rd respondent in not producing certificate, which he
was expected to produce along with his application, without which his
application was not liable to be considered even. Whether that can be
a relevant factor enabling the Public Service Commission to invoke
Rule 3(c) is the question before me.
10. From the facts, I find that the Public Service Commission
has been unusually magnanimous in the case of the 3rd respondent.
Usually, even in the case of candidates seeking time to produce
documents, the Public Service Commission opposes such prayers
before this Court is my experience in writ petitions coming before
me. In this case, admittedly, the 3rd respondent did not produce the
required certificate along with his application, which was a notified
requirement for a valid application. A defect curing memo was issued
to the petitioner on 23-12-1997. Except in Ext. R3(A) dated 11-6-1998
written by the 3rd respondent, nowhere is it stated by him that he has
not received the same. The 3rd respondent himself has handed over
across the bar to me the show cause notice dated 23-4-1998, in which
defect curing memo dated 23-12-98 (sic for 97) is the second
reference. By explanation dated (illegible) .4.98, the 3rd respondent
responded to the same thus:
“Received the show cause memo that you have sent on 23-4-
98. While I am submitting the application form for the post of Shift
analyst, my SSLC book was surrendered at the office where I was
provisionally appointed.
So, kindly consider the copies of certificate attached
herewith. I kindly request you to take favourable action. My Reg.
No. is 346.
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In the same, he does not deny having received the defect curing
memo. In the counter affidavit filed by the 3rd respondent in the
original petition, he does not emphatically state that he had not
received the same. This is what he says about the said memo in his
counter affidavit:
“2. On the basis of the Gazettee Notification dated 24-5-
1994 I have applied for the appointment in the Kerala Minerals
and Metals as Shift Analyst. I have participated in the Written
Test conducted on 9-12-1996 and I was included in the Short List.
But I have received a Show Cause Memo dated 23-4-1998. In the
said memo, it was informed that I was issued with a memo to cure
the defect in the Application and it was further informed that I
have not given any reply to the said memo. It was also informed
that on the basis of the above reason, my name from the Short List
would be removed.
3. As a matter of fact, I have received the Show Cause
Notice only on 23-4-1998 after the written test. As a reply to the
show cause notice, I have produced the self-attested copy of my
S.S.L.C. Book and sent the same by Registered Post, which was
received in the Office of the Public Service Commission on 2-5-
1998. In the said show cause notice, I have been given 15 days
time from 23-4-1998. But the interview for the said post happened
to be conducted on 2-5-1998. The said date of interview was
before the expiry of the time granted to me in the show cause
Memo. As a result of the said action, I was totally denied the
natural justice. The non production of the copy of the SSLC Book
was only a curable defect, which had occurred due to
inadvertence. The allegations contained in the Show Cause Notice
that I have not replied for the earlier communication cannot be
believed for a moment. I have given a detailed explanation to the
Show Cause Notice highlighting all the above grievances. A true
copy of the Explanation No. nil dated 11.6.1998 submitted before
the 1st Respondent, is produced herewith and marked as Ext.R3
(A)”.
Of course, in Ext. R3(A), he categorically says that he has not received
the same. But, that was on 11-6-1998 the day after the publication of
the rank list on 10-6-1998.
11. Further, by show cause notice dated 23-4-1998, the 3rd
respondent was asked to show cause why his name should not be
removed from the short list for not having produced the SSLC
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certificate along with the application. By the same, he was not being
given another opportunity to produce the certificate. Therefore, the
least that was expected of the 3rd respondent was to give an
acceptable explanation for non-production. What he says in his reply
is that his SSLC book was surrendered at the office where he was
provisionally appointed. The necessity for such surrender is not
explained. Ordinarily, no employee is expected to surrender his
certificates before his employer, at least in Government service.
Further, what he was expected to produce along with the application
before the Public Service Commission was not the original but only
an attested copy thereof. There is no explanation as to why he could
not have produced one. He also does not give the details of his
provisional employment for accepting which he had allegedly
surrendered his SSLC certificate. But, he has produced Ext. R3(B)
appointment order, whereby be was appointed in the Kerala State
Pollution Control Board provisionally in an existing vacancy. But, that
is dated 16-8-1996, i.e more than two years after the notification
dated 24-5-1994 of the Public Service Commission, pursuant to which
he applied for the post involved in this original petition. Therefore,
his explanation itself is totally unconvincing. Could the Public Service
Commission have, to the utter prejudice of the petitioner, conferred
on the 3rd respondent, such magnanimity, which they usually do not
give to others, by accepting the certificate after the interview was
over and conducting a supplementary interview for the petitioner
alone, two months after the rank list itself was published, on such
vague explanation? I think not. Even if they could have, that could
only have been without affecting the advice issued to the petitioner,
which advise was perfectly valid and proper when it was made.
12. In this connection, another question also arises for
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consideration, which is whether the Public Service Commission had
powers to re-open the selection process itself, by conducting a
supplementary interview, long after the rank list was published, that
too, without intervention of the court. The Supreme Court has, in the
decision of A.P. Public Service Commission, Hyderabad and
another v. B. Sarat Chandra and others, (1990) 2 SCC 669, held
that the selection process “consists of various steps like inviting
applications, scrutiny of applications, rejection of defective
applications, or elimination of ineligible candidates, conducting
examinations, calling for interview or viva voce and preparation of
that of successful candidates for appointment.” Therefore, the
selection process ended with the publication of the rank list. If that
be so, the Public Service Commission could not have on its own,
conducted a supplementary interview in favour of an errant
candidate, who did not even file a valid application, after giving him a
further opportunity to cure the defect long after the time given to him
for the purpose was over. The counsel for the Public Service
Commission has not been able to point out any provision by which
they are obliged or empowered to do so. In fact, they are not even
obliged to call upon a candidate to cure the defects in his application.
Of course, the counsel for the Public Service Commission relies on
two decisions of this Court, viz. Kuriakose v. State of Kerala &
others, 1984 KLT 925 and Manoj Kumar v. KPSC, 1999 (2) KLT
534) in support of the proposition that it is not illegal in allowing the
candidates to cure minor defects in the production of documents. It is
true that such a proposition of law cannot be quarrelled with.
Permitting candidates to appear in the selection process after curing
the defect is certainly a humane conduct. But, can such magnanimity
be taken to the extent of conducting a supplementary interview, after
O.P. No . 1606/1999 -: 12 :-
curing the defect, that too, after the rank list was published and a
candidate advised, to the prejudice of the advised candidate? Does
not have the advised candidate any rights of his own, even when the
other candidate is more meritorious, when he was validly advised on
the basis of his rank in the rank list validly published? In this case,
even if the late production of certificate by the 3rd respondent was
refused to be accepted for want of proper explanation for having not
produced it earlier, the same could not have been faulted. If that be
so, he was rightly refused to be interviewed. The only reasoning given
by the Public Service Commission is that by show cause notice dated
23-4-1998, the 3rd respondent was given 15 days’ time and the
interview was conducted before the expiry of the 15 days. I do not
think that such a reasoning could be adopted to give a candidate, who
was admittedly in the wrong, an opportunity to be separately
interviewed to deprive a validly advised candidate, the benefit of that
advise. The decisions in Kuriakose’s case and Manoj Kumar’s
case (supra) could have been pressed into service in favour of the 3rd
respondent only if the Public Service Commission had accepted the
certificates before the interview and interviewed him along with the
others or at least before the list was published. According to me,
when the Public Service Commission did not act on the reply of the 3rd
respondent to the show cause notice dated 23-4-1998, by permitting
him to attend the interview, they had decided not to accept his
explanation. In fact, they did not do anything on it till even four
months after the publication of the select list, which leads one to a
reasonable conclusion that the same was an afterthought to help the
3rd respondent, which magnanimity they do not show to others. It is
also clear that the action of the Public Service Commission was only
after receipt of Ext. R3(A) submitted by the petitioner after
O.P. No . 1606/1999 -: 13 :-
publication of the rank list. In any event, after publication of the rank
list, a validly advised candidate could not have been deprived of the
benefits of such advise, to give an undeserved chance to a candidate
who admittedly did not submit a valid application and did not avail of
the opportunities given to him to cure the defects in his application.
When the 3rd respondent knew that his name was included in the short
list only provisionally, even without receiving a defect curing memo,
he should have enquired about the reason for inclusion only
provisionally and cured the defect. As such, even if the contention
raised by him after the publication of the rank list that he did not
receive the defect curing memo dated 23-12-1997 is true, he was at
least negligent and such a candidate should not have been given an
undeserving benefit, which the Public Service Commission does not
normally give to others, that too, to deprive a candidate who had
done everything correctly to get himself included in the rank list as
no. 1 and advised, the benefit of that validly given advise.
13. In this connection, it may be noted that this Court, even
when allows the claim of a candidate who has been unjustly excluded
from the list by the Public Service Commission, to be included in the
rank list, ordinarily makes sure to direct that such inclusion shall not
affect advises already made from the list, which also has not been
done in this case by the Public Service Commission, which ought to
have been done especially since the whole imbroglio arose only
because of the fault of the 3rd respondent in not doing what he ought
to have done at the right time.
14. In the above circumstances, I am satisfied that the advice of
the petitioner by Ext. P1 was not by any mistake so as to enable the
Public Service Commission to invoke Rule 3(c) to cancel the said
advice. Rule 3(c) has no application to the facts of the case and
O.P. No . 1606/1999 -: 14 :-
therefore Ext. P6 order issued invoking that Rule is clearly illegal and
unsustainable. Accordingly, Ext. P6 is quashed.
15. The result is that Ext. P1 advice revives and the petitioner
becomes entitled to appointment by the 2nd respondent in accordance
with the advise, if necessary, by replacing the 3rd respondent. I direct
the 2nd respondent to do so. The petitioner would be entitled to all
service benefits as if he had been appointed to the post which the 3rd
respondent presently holds, with effect from the date when the 3rd
respondent was appointed to that post, except monetary benefits for
the period till he assumes charge. Orders in this regard shall be
passed by the 2nd respondent within one month from the date of
receipt of a copy of this judgment. However, taking into account the
peculiar facts of the case, the 2nd respondent, if they choose to do so,
taking into account the fact that he was working for the last about
nine years, would be free to accommodate the 3rd respondent in any
available vacancy, in which event, he would rank junior to the
petitioner in service. Since he had earned his salary by working and I
am not directing monetary benefits to the petitioner for the said
period, salary paid to the 3rd respondent for the period he worked
shall not be recovered from him.
The original petition is allowed as above.
Sd/- S. Siri Jagan, Judge.
Tds/