IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933 WP(C).No. 31464 of 2011(G) ----------------------------------------- PETITIONER(S): ------------------------ T.M.ANI, COOK, GOVT.GUEST HOUSE, ALUVA, RESIDING AT THANNAM KUZHIYIL, PERINGALA, ERNAKULAM - 683 565. BY ADVS. SRI.N.SUGATHAN, SMT.M.C.BINDUMOL. RESPONDENT(S): ---------------------------- 1. THE DISTRICT OFFICER, KPSC DISTRICT OFFICE, KAKKANAD, ERNAKULAM. 2. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, PATTOM PALACE P.O., THIRUVANANTHAPURAM 695 004. 3. THE DIRECTOR, DEPARTMENT OF TOURISM, PARK VIEW, THIRUVANANTHAPURAM - 695 033. 4. THE SENIOR ADMINISTRATIVE OFFICER, DEPARTMENT OF TOURISM, PARK VIEW, THIRUVANANTHAPURAM - 695 033. R1,R3 & R4 BY GOVERNMENT PLEADER SRI. LIJU STEPHEN R2 BY ADV. SRI. P.C.SASIDHARAN, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.31464/2011 G APPENDIX PETITIONER'S EXHIBITS: EXT.P-1: TRUE COPY OF FIRST PAGE OF THE S.S.L.C. BOOK OF THE PETITIONER. EXT.P-2 TRUE COPY OF CRAFT CERTIFICATE IN FOOD PRODUCTION DATED 16-1-2006 ISSUED TO THE PETITIONER. EXT.P-3 TRUE COPY OF NOTIFICATION PUBLISHED BY THE PSC IN THE GAZETTE DATED 14-8-2007. EXT.P-4 TRUE COPY OF LETTER DATED 11-12-2009 OF THE 1ST RESPONDENT TO THE PETITIONER. EXT.P-5 TRUE COPY OF EXPERIENCE CERTIFICATE DATD 1-1-2008 ISSUED BY THE MANAGER, GOVT.GUEST HOUSE, ERNAKULAM. EXT.P-6 TRUE COPY OF RANKED LIST FOR THE POST OF COOK IN THE TOURISM DEPARTMENT - ERNAKULAM DISTRICT PUBLISHED BY THE 2ND RESPONDENT. EXT.P-7 TRUE COPY OF ADVICE LETTER DATED 27-1-2010 OF THE 1ST RESPONDENT TO THE PETITIONER. EXT.P-8 TRUE COPY OF ORDER DATED 22-2-2010 ISSUED BY THE 4TH RESPONDENT. EXT.P-9 TRUE COPY OF SHOW CAUSE NOTICE DATED 20-8-2011 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P-10 TRUE COPY OF EXPLANATION DATED 22-9-2011 SUBMITTED BY THE PETITIONER TO THE SHOW CAUSE NOTICE. EXT.P-11 TRUE COPY OF LETTER DATED 9-11-2011 OF THE 1ST RESPONDENT TO THE PETITIONER. RESPONDENTS' EXHIBITS; N I L /TRUE COPY/ P.S.TO JUDGE Kss K.SURENDRA MOHAN, J --------------------------------------------- W.P.(c)No.31464 of 2011 --------------------------------------------- Dated this the 25th day of November 2011 JUDGMENT The petitioner is working as a Cook in the Government Guest House, Aluva. He was advised for such appointment by the first respondent on 27.1.2010 in the Department of Tourism. Pursuant to such advice, he was advised to the post on 22.2.2010. He was working in the said post continuously from 3.3.2010. While so, the first respondent passed an order dated 9.11.2011 cancelling the advice for appointment of the petitioner on the ground that he was over aged for such selection. The petitioner has filed this writ petition challenging the said action. 2. According to the petitioner, he has passed SSLC as well as the Food Production Course conducted by the Food Craft Extension Centre, Thodupuzha under the Board of Technical Examinations, Kerala. 3. As per Ext.P3 notification, the Kerala Public Service Commission ('PSC' for short) invited applications for appointment to the post of Cook in the Tourism Department in various districts. WPC No.31464 of 2011 2 There was one post of Cook available in Ernakulam District. According to the petitioner, since he possessed the qualifications stipulated by Ext.P3, he submitted an application for selection and appointment to the said post. He was called for an interview as per letter dated 11.12.2009, which is Ext.P4. At the time of interview, he was asked to produce certificates to prove his date of birth as well as certificates to prove the essential qualifications stipulated for the post. Accordingly, the petitioner appeared for the interview with all the relevant documents that were directed to be produced. He also produced Ext.P5 experience certificate. The petitioner was admitted for the interview only after his certificates were examined by the concerned officers. After the interview, the second respondent published a rank list, which came into force on 5.1.2010. The same is Ext.P6. Since the petitioner was ranked No.1 in the said list, as per Ext.P8 order dated 22.2.2010, the petitioner joined service on 3.3.2010 and was working at the said place ever since. 4. In the above circumstances, after the lapse of one year and seven months, the petitioner was served with Ext.P9 show cause notice dated 20.8.2011, directing him to show cause why his advice should not be cancelled. The petitioner replied to the said show WPC No.31464 of 2011 3 cause notice by Ext.P10. However, by Ext.P11, his explanation has been rejected and his advice for appointment has been cancelled. This writ petition has been filed challenging Ext.P11. 5. According to the counsel for the petitioner, Ext.P9 show cause notice has been issued after the lapse of one year and seven months of his advice and appointment. The power to cancel the advice of appointment is available only in Rule-3(c) of the Kerala State and Subordinate Service Rules, 1958 ('KS&SSR' for short). The proviso to the said provision stipulates that the cancellation of advice for appointment and subsequent termination of service shall be done within a period of one year from the date of advice. Therefore, it is contended that the impugned action Ext.P11 which is issued after expiry of the period of one year is unsustainable and liable to be set aside. With reference to Rule-22 of the Kerala Public Service Commission Rules of Procedure ('Rules of Procedure' for short), it is contended that the said provision applies only to cases where fraud has been played by the candidate on the PSC and therefore is not applicable to the present case. The counsel also presses into service the decision in JYOTHI NAYAR V PUBLIC SERVICE COMMISSION (1988 (1) KLT 641) to support his contention that in the facts and circumstances of the present case, WPC No.31464 of 2011 4 it is Rule-3(c) that applies. It is further contended by the counsel for the petitioner that the omission on the part of the PSC to mention the specific item of misconduct enumerated in Rule-22 of the Public Service Commission Rules of Procedure (Kerala), on the basis of which action has been initiated against the petitioner, has incapacitated him from submitting his explanation effectively thereby denying to him a proper right of hearing. Further, it is contended by the counsel for the petitioner that the petitioner has not made any wrong statement in his application and therefore, the mistake in proceeding to advise the petitioner assuming that he was eligible for such advice was a mistake committed by the PSC. For the above reasons, he contends that Ext.P11 is liable to be set aside. 6. Adv.P.C.Sasidharan who appears for the PSC on the other hand contends that Rule-3 of the KS&SSR has no application to the facts of the present case. The said provision applies only to cases where an advice and subsequent appointment is sought to be cancelled on the ground of some mistakes committed by the PSC. Where a candidate is responsible for misconduct that has led the PSC to make a wrong advice, it is Rule 22 of the Rules of Procedure that applies. The counsel for the PSC has relied on the Division WPC No.31464 of 2011 5 Bench decision of this Court in Kerala Public Service Commission v Hareendran (1999)2 KLT 63). He also relies on a decision of this Court in Ashok v Kerala Public Service Commission (2000(1) KLT 374) and OMANA v KERALA PUBLIC SERVICE COMMISSION and others (2000(1) ILR Kerala 189) to support his contention that Rule 3(c) is not applicable to the facts of this case. It is also pointed out that in Ext.P9 show cause notice, the entire facts and circumstances relied on by the PSC for the purpose of initiating action against the petitioner have been elaborately set out and for the above reason, in Ext.P11 only a brief reference has been made, which does not in any way affect the validity of the proceedings. He, therefore, seeks the dismissal of the writ petition. 7. I have heard the counsel for the petitioner as well as the PSC at length. I have also considered the rival contentions anxiously. 8. It is not in dispute that as per Ext.P3 notification, an age restriction has been stipulated by clause-6 thereof. As per the said clause, only persons who have completed 18 years of age as on 1.1.2007 and who have not crossed the age of 35 years are eligible to apply. Therefore, it follows that the petitioner who was admittedly past 36 years of age was not entitled to apply for the WPC No.31464 of 2011 6 post. It appears that the petitioner had stated in his application that he was entitled to relaxation of the age. However, on a pointed question, the counsel for the petitioner is not able to say on what ground he had presumed that he was entitled to age relaxation. Reply of the counsel is that the petitioner had bonafide believed that he was entitled to such relaxation. It was probably because of his statement that he was entitled to age relaxation that his application was accepted by the PSC. Therefore the contention of the counsel for the petitioner that the petitioner had not furnished any false information in his application cannot be accepted. Knowing fully well that he was over aged and ineligible to apply for the post, the petitioner had applied claiming that he was entitled to age relaxation. Thereby, he has certainly furnished false information. 9. It is true that a Single Bench of this Court in Jyothi Nayar v. Public Service Commission {1988(1) KLT 641} has held that cancellation of advice can be made only under Rule 22 of the Rules of Procedure. If removal or dismissal from office is also initiated, the same can be done only under Rule 3(c) of K.S. & S.S.R and that too subject to the limitation of one year stipulated by the said rule. However, a later Division Bench of this Court in Kerala Public WPC No.31464 of 2011 7 Service Commission v. Hareendran {1999(2) KLT 63} has taken a different view. Naraayana Kurup, J speaking for the Bench has held at page 68 as follows:- “From a plain reading of R.3(c) of the Kerala State and Subordinate Service Rules and the first proviso thereto, we are of the view that the learned single Judge has misdirected himself in treating the false information furnished by the first respondent as a 'mistake' thereby bringing the case within the scope of the aforesaid Rule. In the process learned single Judge lost sight of the crucial fact that the period of limitation provided under the first proviso to R.3(c) of the Kerala State and Subordinate Services Rules will be attracted only in case of advice made by the Commission under a mistake on its part in which case cancellation of advice for appointment shall be made within a period of one year from the date of such advice and will have no application in a case where an applicant has played fraud on the Commission by furnishing false information as in the present case. On the facts disclosed, we have no doubt in our mind that the first respondent perpetrated fraud on the Commission by giving a false answer against column No: 17(b) of the application submitted by him suppressing the fact that he had applied for selection in respect of Wayanad District also WPC No.31464 of 2011 8 knowing fully well that since a candidate gets selection by applying to more than one District for the same post, his selection is liable to be cancelled and he would also be subjected to disciplinary proceedings. Viewed in the context of fraud, the first respondent cannot be heard to say that Ext.P4 is barred by limitation as provided under the first proviso to R.3(c) of the Kerala State and Subordinate Services Rules as the said bar of limitation applies only to a case of mistake committed by the Commission and not to a case of fraud being played on the Commission. A party to a fraud cannot be permitted to take advantage of a Rule providing for limitation on the power of the Commission to cancel an advice if it is subsequently found that such advice was made on some mistake. The mistake on the part of the Commission and the fraud practised on the Commission are different things. Whereas limitation will apply to the former, the same will not apply to the latter.” In view of the above, which is also the dictum in Ashok v. Kerala Public Service Commission {2000(1) KLT 374}, it cannot be disputed that the action initiated by the PSC under Rule 22 of the Rules of Procedure is invalid. 10. I notice that in Ext.P9 the PSC has set out in detail the facts relied on for the purpose of initiating action against the WPC No.31464 of 2011 9 petitioner. A reading of Ext.P10 explanation of the petitioner shows that no tenable explanation has been offered by the petitioner except to state that he was desirous of getting a job. Therefore the PSC has issued Ext.P11 order cancelling the advice. 11. As already found, the petitioner by applying for a post to which he was not not qualified to apply for the reason that he was over aged, had furnished wrong information to the PSC and therefore, the action initiated against him is perfectly justified. 12. I do not find any grounds to interfere with Ext.P11 order. The petitioner who has furnished false information cannot be permitted to take advantage of the said wrongful act and to continue in service. For the above reasons, the writ petition fails and is accordingly dismissed. sd/- K. SURENDRA MOHAN Judge css/jj true copy P.S.TO JUDGE