IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 OP.No. 1606 of 1999(N) ---------------------- PETITIONER(S): --------------- SAJEEV P., PUTHENVELI, MUTTATHIPARAMBU P.O., CHERTHALA, ALAPPUZHA DIST. PIN-688 527. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.V.VARGHESE RESPONDENT(S): --------------- 1. KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-4. 2. KERALA MINERALS AND METALS LTD., CHAVARA, KOLLAM DISTRICT, REP. BY ITS MANAGING DIRECTOR. 3. A. NAHAS, OFFICE OF THE KERALA STATE POLLUTION CONTROL BOARD, KOTTAYAM. ADV. SRI.ALEXANDER THOMAS,SC,KPSC SRI.TPM.IBRAHIM KHAN SRI.U.K.RAMAKRISHNAN (SR.) SRI.P.V.LOHITHAKSHAN SRI.V.KRISHNA MENON SRI.E.K.MADHAVAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT, ON 07/10/2008, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 1606/1999. --------------------------------------------------------------- EXT.P1 TRUE COPY OF ADVICE MEMO DT. 4-7-1998. EXT.P2 SHOW CAUSE MEMO DT. 30-10-1998. EXT.P3 REPLY DT. 16-11-1998. EXT P4 SHOW CAUSE MEMO DT. 1-12-1998. EXT.P5 REPLY DT. 15-12-1998. EXT.P6 ORDER DT. 6-1-1999. RESPONDENTS' EXHIBITS: ------------------------------------- EXT.R3(A) COPY OF EXPLANATION DT. 11-6-1998. EXT.R3(B) ORDER DT. 16-8-1996. EXT.R3(C) COPY OF APPOINTMENT ORDER DT. 25-3-1999. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 1606 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= 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 O.P. No . 1606/1999 -: 3 :- 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 O.P. No . 1606/1999 -: 5 :- 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 a O.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 O.P. No . 1606/1999 -: 8 :- 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. O.P. No . 1606/1999 -: 9 :- 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 O.P. No . 1606/1999 -: 10 :- 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 O.P. No . 1606/1999 -: 11 :- 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