{"id":210232,"date":"2008-10-07T00:00:00","date_gmt":"2008-10-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sajeev-p-vs-the-k-p-s-c-on-7-october-2008"},"modified":"2016-11-09T19:18:47","modified_gmt":"2016-11-09T13:48:47","slug":"sajeev-p-vs-the-k-p-s-c-on-7-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sajeev-p-vs-the-k-p-s-c-on-7-october-2008","title":{"rendered":"Sajeev.P vs The K.P.S.C on 7 October, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Sajeev.P vs The K.P.S.C on 7 October, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nOP.No. 1606 of 1999(N)\n\n\n\n1. SAJEEV.P.\n                      ...  Petitioner\n\n                        Vs\n\n1. THE K.P.S.C.\n                       ...       Respondent\n\n                For Petitioner  :SRI.S.P.ARAVINDAKSHAN PILLAY\n\n                For Respondent  :SRI.ALEXANDER THOMAS,SC,KPSC\n\nThe Hon'ble MR. Justice S.SIRI JAGAN\n\n Dated :07\/10\/2008\n\n O R D E R\n                              S. Siri Jagan, J.\n               =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=\n                        O.P. No. 1606 of 1999\n               =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=\n                  Dated this, the 7th    October, 2008.\n\n                            J U D G M E N T\n<\/pre>\n
      The petitioner and the 3rd respondent are aspirants for the post<\/p>\n
of Shift Analyst in the Kerala Minerals and Metals Ltd., the 2nd<\/p>\n
respondent herein, for selection to which post, the 1st respondent-<\/p>\n
Public Service Commission invited applications by notification dated<\/p>\n
24-5-1994 pursuant to which both of them applied. A written test was<\/p>\n
conducted and a short list dated 27-2-1998 was published, in which<\/p>\n
both found a place, but the 3rd respondent only provisionally on<\/p>\n
account of want of submission of attested copies of certificates of<\/p>\n
qualification   along with the application, which was a          notified<\/p>\n
requirement for a valid application, at the relevant time.        In the<\/p>\n
interview which followed on 2-5-1998 and 4-5-1998, the petitioner<\/p>\n
participated, but the 3rd respondent was not invited, since the defect<\/p>\n
in the application was not cured, although allegedly a defect curing<\/p>\n
memo was issued by the Public Service Commission to the               3rd<\/p>\n
respondent on 23-12-1997. A rank list was published on 10-6-1998 in<\/p>\n
which the petitioner was rank no. 1.          Pursuant thereto, he was<\/p>\n
advised for the post also, as per Ext. P1 advice memo. As instructed<\/p>\n
in the advise memo itself, he wrote to the Public Service Commission<\/p>\n
since he did not get appointment within three months.<\/p>\n
      2. Then came Ext. P2 show cause notice dated 30-10-1998,<\/p>\n
directing the petitioner to show cause why the advice allegedly made<\/p>\n
by mistake should not be cancelled invoking Rule 3(c) of Part II of the<\/p>\n
Kerala State and Subordinate Services Rules on the ground that on<\/p>\n
rectification of the rank list, the 3rd respondent had to be included as<\/p>\n
rank no. 1, the petitioner’s rank number was reassigned as no. 1A,<\/p>\n
and as there are only two vacancies, the petitioner being the junior-<\/p>\n
most among those advised, his advice had to be cancelled.            The<\/p>\n
petitioner filed Ext. P3 reply stating inter alia that the reasons for<\/p>\n
O.P. No . 1606\/1999                   -: 2 :-<\/span><\/p>\n
lowering of his rank was not clear from the show case notice.<\/p>\n
      3. Thereafter, he received another show cause notice, Ext. P4,<\/p>\n
stating that although the 3rd respondent did not respond to a defect<\/p>\n
curing memo dated 23-12-1997 directing him to produce certificates<\/p>\n
to substantiate his community and date of birth pursuant to a show<\/p>\n
cause     notice dated 23-4-1998, he produced copy of his SSLC<\/p>\n
certificate, which was received by the Public Service Commission on<\/p>\n
5-5-1998, consequent to which a supplementary interview was<\/p>\n
ordered on 17-8-1998, and conducted on 3-10-1998, adding marks in<\/p>\n
which     to the marks obtained by him in the written test, the 3rd<\/p>\n
respondent was found to have secured the 1st rank, as a result of<\/p>\n
which the petitioner’s rank had to be lowered and his advice was<\/p>\n
proposed to be cancelled invoking Rule 3(c) of Part II of K.S & SSR.<\/p>\n
The petitioner was directed to show cause against such proposal. In<\/p>\n
Ext. P4, Ext. P2 was cancelled also. The petitioner replied by Ext. P5,<\/p>\n
specifically contending that Rule 3(c)          is not attracted to the fact<\/p>\n
situation as there was no mistake either on the part of the Public<\/p>\n
Service Commission or the petitioner. The supplementary interview<\/p>\n
and inclusion of the 3rd respondent in the rank list were also<\/p>\n
challenged by the petitioner in that reply. However, by Ext. P6 order<\/p>\n
dated 6-1-1999, the Public Service Commission confirmed the<\/p>\n
proposal in Ext. P4 and cancelled the advice issued to the petitioner.<\/p>\n
Challenging      Ext. P4 order, the petitioner has filed this original<\/p>\n
petition, seeking the following reliefs:\n<\/p>\n<\/p>\n
             “i. Issue a writ of certiorari or any other appropriate writ,
\n      order or direction calling for the records leading to Ext.P6 and
\n      quashing the same.\n<\/p><\/blockquote>\n
             ii. Declare that Ext.P1 advice is not liable to be cancelled
\n      and the petitioner is entitled to be appointed based on it.\n<\/p><\/blockquote>\n
             iii. Declare as void the decisions of the 1st respondent to<\/p>\n
O.P. No . 1606\/1999                 -: 3 :-<\/span><\/p>\n
      admit the application of the 3rd respondent and to conduct a
\n      supplementary interview for him, the decision to assign first rank
\n      to him and the decision to lower the rank of the petitioner as IA.\n<\/p><\/blockquote>\n
             iv. Issue a writ of mandamus or any other appropriate writ,
\n      order or direction commanding the 1st respondent to revive Ext.P1
\n      and the 2nd respondent to appoint the petitioner as Shift Analyst
\n      based on Ext.P1 expeditiously and within a time limit to be fixed
\n      by this Hon’ble Court.”<\/p><\/blockquote>\n
      4.     The 1st respondent- Public Service Commission and the 3rd<\/p>\n
respondent have filed counter affidavits supporting Ext. P6.<\/p>\n
      5.     I have heard counsel on both sides at length and<\/p>\n
considered the arguments in detail.\n<\/p>\n
      6.     The following facts are not disputed before me:<\/p>\n
(a)   No mistake whatsoever was committed by the petitioner and at<\/p>\n
the time of publication of the rank list on 10-6-1998, the petitioner<\/p>\n
was rightly included in the rank list as rank no. 1.<\/p>\n
(b)   The application of the 3rd respondent was not accompanied by<\/p>\n
certain documents which were required to be produced as per the<\/p>\n
notified requirements         for a valid application, at the time of<\/p>\n
submission of the same.\n<\/p>\n
(c)   The Public Service Commission had issued a defect curing<\/p>\n
memo dated 23-12-1997 to the 3rd respondent directing him to cure<\/p>\n
the defect of having not produced the SSLC certificate along with his<\/p>\n
application, to which the Public Service Commission did not receive<\/p>\n
any reply.\n<\/p>\n
(d)   The name of the 3rd respondent was included in the short list<\/p>\n
dated 27-2-1998 only provisionally for want of production of the<\/p>\n
required document.\n<\/p>\n
(e)   The Public Service Commission issued a show cause notice<\/p>\n
dated 23-4-1998 to the 3rd respondent directing him to show cause<\/p>\n
why for want of production of SSLC certificate his name should not<\/p>\n
O.P. No . 1606\/1999                  -: 4 :-<\/span><\/p>\n
be deleted from the short list.\n<\/p>\n
(f)   The interview was conducted on 2-5-1998 and 4-5-1998 in which<\/p>\n
the petitioner participated and the 3rd respondent was not invited.<\/p>\n
(g)   Rank list was published on 10-6-1998 in which the petitioner<\/p>\n
was included as rank no. 1.\n<\/p>\n
(h)   The petitioner was given advice memo dated 4-7-1998.<\/p>\n
(i)   A supplementary interview was conducted on 3-10-1998 for the<\/p>\n
3rd respondent.\n<\/p>\n
(j)   Subsequently, pursuant to show cause notices, the advice given<\/p>\n
to the petitioner was cancelled on 6-1-1999.\n<\/p>\n
      7. On the pleadings, the issue arising for consideration is as to<\/p>\n
whether the petitioner’s advice could have been cancelled invoking<\/p>\n
Rule 3(c) of KS & SSR. Rule 3(c) reads thus:\n<\/p>\n<\/p>\n
              “3. Approved Candidates.-\n<\/p><\/blockquote>\n
                    **           **            **           **<\/p>\n<\/blockquote>\n
              (c) Notwithstanding anything contained in these rules, the
\n       Commission shall have the power to cancel the advice for
\n       appointment of any candidate to any service if it is subsequently
\n       found that such advice was made under some mistake. On such
\n       cancellation the appointing authority shall terminate the service
\n       of the candidates:\n<\/p><\/blockquote>\n
              Provided that the cancellation of advice for appointment by
\n       the Commission and the subsequent termination of service of the
\n       candidate by the appointing authority shall be made within a
\n       period of one year from the date of such advice.\n<\/p><\/blockquote>\n
              Provided further that, a cancellation of advice under this
\n       sub-rule shall be made only after giving the candidate concerned
\n       a reasonable opportunity of being heard in the matter.\n<\/p><\/blockquote>\n
              The provisions in this sub-rule shall be deemed to have
\n       come into force on the 31st July, 1969.”\n<\/p><\/blockquote>\n
Precedents on the scope of Rule 3(c) are very scarce. In K.P.S.C. v.<\/p>\n
Jayadev, 1977 KLT 85, a Division Bench of this Court explained the<\/p>\n
O.P. No . 1606\/1999                   -: 5 :-<\/span><\/p>\n
scope of the Rule thus:\n<\/p>\n
              “This sub-rule was introduced with effect from 31st July
\n      1969. A plain reading of the rule gives no doubt that the Public
\n      Service Commission will have the power to cancel the advice for
\n      appointment of any candidate to any service if it is subsequently
\n      found that such advice was made under ‘some mistake’.           The
\n      mistake can therefore be exclusively that of the Public Service
\n      Commission, as far as can be judged from the facts available
\n      before us, in the three cases, also appear to be mistakes arising
\n      exclusively from the acts or omissions of the Public Service
\n      Commission. There is nothing in the wording of the rule which
\n      would justify a limited meaning to be given to the word ‘mistake’
\n      by limiting it to mistakes committed by the Public Service
\n      Commission on the inducement of the candidate whose name has
\n      been advised. In fact it appears to us that the introduction of any
\n      such qualification would amount to a redrafting of the rule so as
\n      to change its amplitude and scope.      Unless there are compelling
\n      reasons as in the case of the rule read as it is in the grammatical
\n      sense leading to absurdities or to arbitrariness so patent as to
\n      shake the judicial conscience it is not the function of a court to
\n      rewrite the rule however harsh it may appear to be. The other
\n      circumstance in which rules or statutes can be “read down” is by
\n      understanding the written word in the light of the subject dealt
\n      with and with reference to the content as well as the purposes and
\n      objects sought to be achieved by the statute and the evil if any
\n      sought to be remedied by the law.             In the circumstances
\n      expressions in a statute will be understood in the background of
\n      the above factors. These principles are not of assistance to the
\n      respondents who approached this Court for giving a limited
\n      meaning to the word mistake in this rule. We no doubt see that in
\n      given circumstances considerable hardship can be caused to
\n      persons by the exercise of this rather wide power conferred on
\n      the Public Service Commission to change an advice which they
\n      had formally and we expect, after due care and attention deemed
\n      fit to convey to the authority who has to make the appointment.”\n<\/p><\/blockquote>\n
A learned Single Judge in Johnson v. KPSC, 1977 KLT 776, in which<\/p>\n
Jayadev’s case (supra) was also referred to, held thus on the issue:<\/p>\n
              “4.  The main controversy in this case concerns the
\n      construction of the rule. That the information furnished by the
\n      petitioner in his application was not true is conceded.          The
\n      petitioner was employed at the relevant time and he did not
\n      disclose this information in his application form. Would that be
\n      sufficient to invoke Rule 3(c) of the Kerala State and Subordinate
\n      Services Rules? That is the question calling for an answer. There
\n      was no doubt a mistake and that by reason of the wrong
\n      information conveyed by the entries in the application form. But
\n      evidently it could not be said that the petitioner was appointed as a<\/p>\n
O.P. No . 1606\/1999                  -: 6 :-<\/span><\/p>\n
      Deputy Superintendent of Police because the Public Service
\n      Commission was not aware that he was an Inspector of Central
\n      Excise. In other words, it could not be said that had the Public
\n      Service Commission known that the petitioner was an Inspector of
\n      Central Excise he would not have been appointed as a Deputy
\n      Superintendent of Police.      That information even if furnished
\n      would not have in any way acted against the course of advice
\n      which the Public Service Commission would have adopted. If the
\n      scope of rule 3(c) is to enable cancellation of advice being made
\n      when it is subsequently found that the original advice was made
\n      under some mistake it appears to me that the mistake must be of
\n      such a nature as could have caused the advice to be made. There
\n      may be cases where candidates would not have obtained qualifying
\n      marks in their examinations but they might have represented
\n      otherwise in their applications, cases where they misrepresent that
\n      they are in possession of qualifications required for eligibility but
\n      they would not be really possessing them and cases where they
\n      may represent that they belong to particular caste or community
\n      by virtue of which they may be entitled to get the appointment but
\n      they do not belong to such caste or community. There may be
\n      similar other cases where the description would be of material
\n      relevance in determining eligibility for appointment or suitability
\n      for selection. In such cases it could very well be said that but for
\n      the description relied on or the information acted upon by the
\n      Public Service Commission which is found subsequently to be
\n      mistaken the advice would not have been made. But there may be
\n      mistakes which may not be material in the decision as to making
\n      the advice. A candidate may assume that his father’s name is not
\n      good enough for presentation in the application and he may
\n      improve upon it. He may furnish similar such other information
\n      not with a view to persuade the Public Service Commission to act
\n      upon it so as thereby to advise for appointment. I do not think it
\n      could be said that in those cases the mistakes, however serious or
\n      slight it be, could be brought within rule 3(c), for, that rule
\n      mentions “if it is subsequently found that such advice was made
\n      under some mistake.”     This expression necessarily conveys the
\n      idea very emphatically that it should be subsequently found that in
\n      making the advice the Commission acted under some mistake. Any
\n      mistake not relevant in the causation of advice by the Commission
\n      may not fall within the Rule.”\n<\/p><\/blockquote>\n
Going by the scope of the Rule as explained in those decisions, for<\/p>\n
invoking Rule 3(c), three essential circumstances should arise, which<\/p>\n
are:\n<\/p>\n
      (a)    there must be a mistake resulting in the advice sought to<\/p>\n
      be cancelled;\n<\/p><\/blockquote>\n
O.P. No . 1606\/1999              -: 7 :-<\/span><\/p>\n
      (b)    the mistake must have been of the Public Service<\/p>\n
      Commission; and<\/p>\n<\/blockquote>\n
      (c)    in making the advice sought to be cancelled, the<\/p>\n
      Commission acted under that mistake.\n<\/p><\/blockquote>\n
Now, I shall proceed to examine as to whether in the light of those<\/p>\n
principles, the advice of the petitioner was liable to be cancelled as<\/p>\n
was done by the Public Service Commission.\n<\/p>\n
      8. Strangely, the defect curing memo dated 23-12-1997 issued<\/p>\n
to the 3rd respondent, the show cause notice dated 23-4-1998 issued to<\/p>\n
the 3rd respondent and his reply to the same, though very relevant to<\/p>\n
decide the issue, have not been produced before me either by the<\/p>\n
Public Service Commission or the 3rd respondent. The files available<\/p>\n
with the counsel for the Public Service Commission did not admittedly<\/p>\n
contain the reply of the 3rd respondent to the show cause notice dated<\/p>\n
23-4-1998. In the counter affidavit of the Public Service Commission,<\/p>\n
although SSLC certificate of the 3rd respondent was stated to be<\/p>\n
produced by him     pursuant to show cause notice dated 23-4-1998,<\/p>\n
his reply was not referred to therein. When I repeatedly insisted upon<\/p>\n
seeing the same, the counsel for the Public Service Commission, in<\/p>\n
the course of hearing, obtained a fax copy of the same from the office<\/p>\n
of the Public Service Commission and made the same available to me<\/p>\n
across the bar.\n<\/p>\n
      9.     It cannot be disputed by anybody that as on the date of<\/p>\n
advise of the petitioner viz. 4-7-1998, there was no mistake<\/p>\n
whatsoever in the advise of the petitioner. A rank list was published<\/p>\n
on 10-6-1998 in which the petitioner was rank no. 1 and he was<\/p>\n
advised in accordance with that rank. There was no mistake in the<\/p>\n
rank assigned to the petitioner or the advice made. The so called<\/p>\n
mistake arose only much later in October 1998, three months after<\/p>\n
O.P. No . 1606\/1999                -: 8 :-<\/span><\/p>\n
the advice memo was issued to the petitioner, that too, on the basis of<\/p>\n
a supplementary interview conducted by the Public Service<\/p>\n
Commission, which had to be conducted not because of any mistake of<\/p>\n
the Public Service Commission, but on account of a mistake<\/p>\n
committed by the 3rd respondent in not producing certificate, which he<\/p>\n
was expected to produce along with his application, without which his<\/p>\n
application was not liable to be considered even. Whether that can be<\/p>\n
a relevant factor enabling the Public Service Commission to invoke<\/p>\n
Rule 3(c) is the question before me.\n<\/p>\n
      10. From the facts, I find that the Public Service Commission<\/p>\n
has been unusually magnanimous in the case of the 3rd respondent.<\/p>\n
Usually, even in the case of candidates seeking             time to produce<\/p>\n
documents, the Public Service Commission opposes such prayers<\/p>\n
before this Court is my experience in writ petitions coming before<\/p>\n
me. In this case, admittedly, the 3rd respondent did not produce the<\/p>\n
required certificate along with his application, which was a notified<\/p>\n
requirement for a valid application. A defect curing memo was issued<\/p>\n
to the petitioner on 23-12-1997. Except in Ext. R3(A) dated 11-6-1998<\/p>\n
written by the 3rd respondent, nowhere is it stated by him that he has<\/p>\n
not received the same. The 3rd respondent himself has handed over<\/p>\n
across the bar to me the show cause notice dated 23-4-1998, in which<\/p>\n
defect curing memo dated 23-12-98 (sic for 97) is the second<\/p>\n
reference. By explanation dated (illegible) .4.98, the 3rd respondent<\/p>\n
responded to the same thus:\n<\/p>\n
             “Received the show cause memo that you have sent on 23-4-\n<\/p><\/blockquote>\n
      98. While I am submitting the application form for the post of Shift
\n      analyst, my SSLC book was surrendered at the office where I was
\n      provisionally appointed.\n<\/p><\/blockquote>\n
             So, kindly consider the copies of certificate attached
\n      herewith. I kindly request you to take favourable action. My Reg.
\n      No. is 346.\n<\/p><\/blockquote>\n
O.P. No . 1606\/1999                  -: 9 :-<\/span><\/p>\n
In the same, he does not deny having received the defect curing<\/p>\n
memo. In the counter affidavit filed by the 3rd respondent in the<\/p>\n
original petition, he does not emphatically state that he had not<\/p>\n
received the same. This is what he says about the said memo in his<\/p>\n
counter affidavit:\n<\/p>\n
             “2. On the basis of the Gazettee Notification dated 24-5-
\n      1994 I have applied for the appointment in the Kerala Minerals
\n      and Metals as Shift Analyst. I have participated in the Written
\n      Test conducted on 9-12-1996 and I was included in the Short List.
\n      But I have received a Show Cause Memo dated 23-4-1998. In the
\n      said memo, it was informed that I was issued with a memo to cure
\n      the defect in the Application and it was further informed that I
\n      have not given any reply to the said memo. It was also informed
\n      that on the basis of the above reason, my name from the Short List
\n      would be removed.\n<\/p><\/blockquote>\n
             3. As a matter of fact, I have received the Show Cause
\n      Notice only on 23-4-1998 after the written test. As a reply to the
\n      show cause notice, I have produced the self-attested copy of my
\n      S.S.L.C. Book and sent the same by Registered Post, which was
\n      received in the Office of the Public Service Commission on 2-5-
\n      1998. In the said show cause notice, I have been given 15 days
\n      time from 23-4-1998. But the interview for the said post happened
\n      to be conducted on 2-5-1998.      The said date of interview was
\n      before the expiry of the time granted to me in the show cause
\n      Memo. As a result of the said action, I was totally denied the
\n      natural justice. The non production of the copy of the SSLC Book
\n      was only a curable defect, which had occurred due to
\n      inadvertence. The allegations contained in the Show Cause Notice
\n      that I have not replied for the earlier communication cannot be
\n      believed for a moment. I have given a detailed explanation to the
\n      Show Cause Notice highlighting all the above grievances. A true
\n      copy of the Explanation No. nil dated 11.6.1998 submitted before
\n      the 1st Respondent, is produced herewith and marked as Ext.R3
\n      (A)”.\n<\/p><\/blockquote>\n
Of course, in Ext. R3(A), he categorically says that he has not received<\/p>\n
the same. But, that was on 11-6-1998 the day after the publication of<\/p>\n
the rank list on 10-6-1998.\n<\/p>\n
      11.    Further, by show cause notice dated 23-4-1998, the 3rd<\/p>\n
respondent was asked to show cause why his name should not be<\/p>\n
removed from the short list for not having produced the SSLC<\/p>\n
O.P. No . 1606\/1999               -: 10 :-<\/span><\/p>\n
certificate along with the application. By the same, he was not being<\/p>\n
given another opportunity to produce the certificate. Therefore, the<\/p>\n
least that     was expected of the 3rd respondent was       to give an<\/p>\n
acceptable explanation for non-production. What he says in his reply<\/p>\n
is that his SSLC book was surrendered at the office where he was<\/p>\n
provisionally appointed.     The necessity for such surrender is not<\/p>\n
explained.     Ordinarily, no employee is expected to surrender his<\/p>\n
certificates before his employer, at least in Government service.<\/p>\n
Further, what he was expected to produce along with the application<\/p>\n
before the Public Service Commission was not the original but only<\/p>\n
an attested copy thereof. There is no explanation as to why he could<\/p>\n
not have produced one.       He also does not give the details of his<\/p>\n
provisional employment        for accepting which     he had allegedly<\/p>\n
surrendered his SSLC certificate. But, he has produced Ext. R3(B)<\/p>\n
appointment order, whereby be was appointed in the Kerala State<\/p>\n
Pollution Control Board provisionally in an existing vacancy. But, that<\/p>\n
is dated 16-8-1996, i.e more than two years after the notification<\/p>\n
dated 24-5-1994 of the Public Service Commission, pursuant to which<\/p>\n
he applied for the post involved in this original petition. Therefore,<\/p>\n
his explanation itself is totally unconvincing. Could the Public Service<\/p>\n
Commission have, to the utter prejudice of the petitioner, conferred<\/p>\n
on the 3rd respondent, such magnanimity, which they usually do not<\/p>\n
give to others, by accepting the certificate after the interview was<\/p>\n
over and conducting a supplementary interview for the petitioner<\/p>\n
alone, two months after the rank list itself was published, on such<\/p>\n
vague explanation? I think not. Even if they could have, that could<\/p>\n
only have been without affecting the advice issued to the petitioner,<\/p>\n
which advise was perfectly valid and proper when it was made.<\/p>\n
      12.      In this connection, another question also arises for<\/p>\n
O.P. No . 1606\/1999             -: 11 :-<\/span><\/p>\n
consideration, which is whether the Public Service Commission had<\/p>\n
powers to re-open the selection process itself, by conducting a<\/p>\n
supplementary interview, long after the rank list was published, that<\/p>\n
too, without intervention of the court. The Supreme Court has, in the<\/p>\n
decision of A.P.      Public Service Commission, Hyderabad and<\/p>\n
another v. B. Sarat Chandra and others, (1990) 2 SCC 669, held<\/p>\n
that the selection process    “consists of various steps like inviting<\/p>\n
applications,     scrutiny of  applications,  rejection    of   defective<\/p>\n
applications, or elimination of ineligible candidates, conducting<\/p>\n
examinations, calling for interview or viva voce and preparation of<\/p>\n
that of    successful candidates for appointment.”        Therefore, the<\/p>\n
selection process ended with the publication of the rank list. If that<\/p>\n
be so, the Public Service Commission could not have on its own,<\/p>\n
conducted a supplementary interview in favour of an errant<\/p>\n
candidate, who did not even file a valid application, after giving him a<\/p>\n
further opportunity to cure the defect long after the time given to him<\/p>\n
for the purpose was over.       The counsel for the Public Service<\/p>\n
Commission has not been able to point out any provision by which<\/p>\n
they are obliged or empowered to do so. In fact, they are not even<\/p>\n
obliged to call upon a candidate to cure the defects in his application.<\/p>\n
Of course, the counsel for the Public Service Commission relies on<\/p>\n
two decisions of this Court, viz. Kuriakose v. State of Kerala &<\/p>\n
others<\/a>, 1984 KLT 925 and Manoj Kumar v. KPSC, 1999 (2) KLT<\/p>\n
534) in support of the proposition that it is not illegal in allowing the<\/p>\n
candidates to cure minor defects in the production of documents. It is<\/p>\n
true that such a proposition of law cannot be quarrelled with.<\/p>\n
Permitting candidates to appear in the selection process after curing<\/p>\n
the defect is certainly a humane conduct. But, can such magnanimity<\/p>\n
be taken to the extent of conducting a supplementary interview, after<\/p>\n
O.P. No . 1606\/1999             -: 12 :-<\/span><\/p>\n
curing the defect, that too, after the rank list was published and a<\/p>\n
candidate advised, to the prejudice of the advised candidate? Does<\/p>\n
not have the advised candidate any rights of his own, even when the<\/p>\n
other candidate is more meritorious, when he was validly advised on<\/p>\n
the basis of his rank in the rank list validly published? In this case,<\/p>\n
even if the late production of certificate by the 3rd respondent was<\/p>\n
refused to be accepted for want of proper explanation for having not<\/p>\n
produced it earlier, the same could not have been faulted. If that be<\/p>\n
so, he was rightly refused to be interviewed. The only reasoning given<\/p>\n
by the Public Service Commission is that by show cause notice dated<\/p>\n
23-4-1998, the 3rd respondent was given 15 days’ time and the<\/p>\n
interview was conducted before the expiry of the 15 days. I do not<\/p>\n
think that such a reasoning could be adopted to give a candidate, who<\/p>\n
was admittedly in the wrong, an opportunity to be separately<\/p>\n
interviewed to deprive a validly advised candidate, the benefit of that<\/p>\n
advise.    The decisions in Kuriakose’s case and Manoj Kumar’s<\/p>\n
case (supra) could have been pressed into service in favour of the 3rd<\/p>\n
respondent only if the Public Service Commission had accepted the<\/p>\n
certificates before the interview and interviewed him along with the<\/p>\n
others or at least before the list was published. According to me,<\/p>\n
when the Public Service Commission did not act on the reply of the 3rd<\/p>\n
respondent to the show cause notice dated 23-4-1998, by permitting<\/p>\n
him to attend the interview, they had decided not to accept his<\/p>\n
explanation. In fact, they did not do anything on it till even four<\/p>\n
months after the publication of the select list, which leads one to a<\/p>\n
reasonable conclusion that the same was an afterthought to help the<\/p>\n
3rd respondent, which magnanimity they do not show to others. It is<\/p>\n
also clear that the action of the Public Service Commission was only<\/p>\n
after receipt of Ext. R3(A) submitted by the petitioner after<\/p>\n
O.P. No . 1606\/1999              -: 13 :-<\/span><\/p>\n
publication of the rank list. In any event, after publication of the rank<\/p>\n
list, a validly advised candidate could not have been deprived of the<\/p>\n
benefits of such advise, to give an undeserved chance to a candidate<\/p>\n
who admittedly did not submit a valid application and did not avail of<\/p>\n
the opportunities given to him to cure the defects in his application.<\/p>\n
When the 3rd respondent knew that his name was included in the short<\/p>\n
list only provisionally, even without receiving a defect curing memo,<\/p>\n
he should have enquired about the reason for inclusion only<\/p>\n
provisionally and cured the defect. As such, even if the contention<\/p>\n
raised by him after the publication of the rank list that he did not<\/p>\n
receive the defect curing memo dated 23-12-1997 is true, he was at<\/p>\n
least negligent and such a candidate should not have been given an<\/p>\n
undeserving benefit, which the Public Service Commission does not<\/p>\n
normally give to others, that too, to deprive a candidate who had<\/p>\n
done everything correctly to get himself included in the rank list as<\/p>\n
no. 1 and advised, the benefit of that validly given advise.<\/p>\n
       13.   In this connection, it may be noted that this Court, even<\/p>\n
when allows the claim of a candidate who has been unjustly excluded<\/p>\n
from the list by the Public Service Commission, to be included in the<\/p>\n
rank list, ordinarily makes sure to direct that such inclusion shall not<\/p>\n
affect advises already made from the list, which also has not been<\/p>\n
done in this case by the Public Service Commission, which ought to<\/p>\n
have been done especially since the whole imbroglio arose only<\/p>\n
because of the fault of the 3rd respondent in not doing what he ought<\/p>\n
to have done at the right time.\n<\/p>\n
       14. In the above circumstances, I am satisfied that the advice of<\/p>\n
the petitioner by Ext. P1 was not by any mistake so as to enable the<\/p>\n
Public Service Commission to invoke Rule 3(c) to cancel the said<\/p>\n
advice. Rule 3(c) has no application to the facts of the case and<\/p>\n
O.P. No . 1606\/1999               -: 14 :-<\/span><\/p>\n
therefore Ext. P6 order issued invoking that Rule is clearly illegal and<\/p>\n
unsustainable. Accordingly, Ext. P6 is quashed.<\/p>\n
      15. The result is that Ext. P1 advice revives and the petitioner<\/p>\n
becomes entitled to appointment by the 2nd respondent in accordance<\/p>\n
with the advise, if necessary, by replacing the 3rd respondent. I direct<\/p>\n
the 2nd respondent to do so. The petitioner would be entitled to all<\/p>\n
service benefits as if he had been appointed to the post which the 3rd<\/p>\n
respondent presently holds, with effect from the date when the 3rd<\/p>\n
respondent was appointed to that post, except monetary benefits for<\/p>\n
the period till he assumes charge. Orders in this regard shall be<\/p>\n
passed by the 2nd respondent within one month from the date of<\/p>\n
receipt of a copy of this judgment. However, taking into account the<\/p>\n
peculiar facts of the case, the 2nd respondent, if they choose to do so,<\/p>\n
taking into account the fact that he was working for the last about<\/p>\n
nine years, would be free to accommodate the 3rd respondent in any<\/p>\n
available vacancy, in which event, he would rank junior           to the<\/p>\n
petitioner in service. Since he had earned his salary by working and I<\/p>\n
am not directing monetary benefits to the petitioner for the said<\/p>\n
period, salary paid to the 3rd respondent for the period he worked<\/p>\n
shall not be recovered from him.\n<\/p>\n
      The original petition is allowed as above.\n<\/p>\n<\/p>\n
                                          Sd\/- S. Siri Jagan, Judge.\n<\/p>\n
Tds\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Sajeev.P vs The K.P.S.C on 7 October, 2008 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-210232","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSajeev.P vs The K.P.S.C on 7 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sajeev-p-vs-the-k-p-s-c-on-7-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sajeev.P vs The K.P.S.C on 7 October, 2008 - 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