IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 WP(C).No. 5400 of 2007(P) ------------------------- PETITIONER: -------------- RAHUMATH S, MELEVILA VEEDU, MYLAKKADU P.O, KOTTIYAM, KOLLAM. BY ADV. SRI.M.SREEKUMAR RESPONDENTS: ---------------- 1. KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2009, ALONG WITH WPC NO. 17753 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 5400/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE RANK CERTIFICATE ISSUED BY THE UNIVERSITY OF KERALA DATED 28.7.03. EXT.P2 : TRUE COPY OF THE ADVICE MEMO DATED 7.2.06 NO.RIA(1) 2469/06/GW EXT.P3 : TRUE COPY OF THE ORDER NO.ESTT II(3)6933/06/GW DATED 21.2.06. EXT.P4 : TRUE COPY OF THE NOTICE DATED 30.11.05 NO.SS1(2) 772/2005. EXT.P5 : TRUE COPY OF THE REPLY FILED BY THE PETITIONER DATED 2.1.06. EXT.P6 : TRUE COPY OF THE ORDER IN Crl.MC NO.2712/06 DATED 6.12.06 OF THE SESSIONS COURT, TVM. EXT.P7 : TRUE COPY OF THE REPORT OF THE VIGILANCE CELL OF THE COMMISSION DATED 7.1.06. EXT.P8 : TRUE COPY OF THE ORDER DATED 28.8.06 NO.SS1(2) 772/05/1. EXT.P9 : TRUE COPY OF THE NOTICE DATED 18.11.06 NO.ESTT.II(3) 6933/06/GW EXT.P10 : TRUE COPY OF THE REPLY FILED BY THE PETITIONER DATED 8.12.06. EXT.P11 : TRUE COPY OF THE ORDER DATED 23.1.07 NO.ESTT.II(3) 6933/06/GW. /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)Nos.5400 & 17753 OF 2007 ------------------------------------------------- Dated this the 22nd day of June, 2009 JUDGMENT The same petitioner has filed these two writ petitions. The subject matter in both the writ petitions are also the same, namely, denial of appointment after advice by the Public Service Commission (PSC) as a staff of the PSC and cancellation of the advice itself by the PSC. Petitioner applied for selection to the post of Assistant Grade II in the Kerala Public Service Commission. She was selected and advised by Ext.P3 advice memo. When she appeared before the 2nd respondent on 27.02.06 to join duty, she was not allowed to join duty on the ground that an enquiry is pending with respect to a foul play committed by the petitioner in the matter of submitting application to the post of Junior Assistant in the Kerala State Financial Enterprises earlier, which culminated in Ext.P8 order, whereby the petitioner was debarred from appearing in any examination to be conducted by the PSC for three years from 31.07.06. Subsequently, by Ext.P11 order in W.P.(C) No.5400 of 2007, the PSC, in exercise of powers under Rule 10(b) (iii) of Part I of KS & SSR cancelled the appointment of the petitioner as Assistant WPC :5400 & 17753/07 -:2:- Grade II. Thereafter, the PSC initiated proceedings of cancellation of the petitioner's advice, which resulted in Ext.P12 order, in W.P.(C). No. 17753 of 2007 cancelling the petitioner's advice for recruitment to the post of Assistant Grade II in the office of the Kerala Public Service Commission. Petitioner is challenging those two orders. 2. The contention of the petitioner is that the PSC is not competent to invoke the powers under Rule 10(b)(iii), which power according to the petitioner, vests exclusively with the Government. In support of this contention the petitioner relies on the decision of the Supreme Court in U.P. Public Service Commission v. Suresh Chandra Tewari [AIR (1987) SC 1953]. 3. Counter affidavits have been filed by the Public Service Commission in both writ petitions. The contention of the PSC is that, the PSC, in exercise of powers under Rule 3(c) read with Rules of procedure can cancel the advice as the recruitment agency and can also deny appointment to the petitioner invoking Rule 10(b)(iii) as the appointing authority. The contention is that since KS & SSR has been adopted by reference by the PSC, the word Government occurring in Rule 10(b)(iii) has to be substituted by the word PSC. The counsel for the PSC also draws my attention to the decision of a WPC :5400 & 17753/07 -:3:- Division Bench of this Court in Krishnan Nair v. Public Service Commission [1982 KLT 610] wherein this Court has after considering the scope of Rule 12 of the Public Service Commission (Composition and Conditions of Service of Members of Staff) Regulations, 1957, held that in respect of an employee of the PSC, the Government cannot exercise disciplinary function and as the appointing authority, that function vests exclusively with the PSC. 4. I have considered the rival contentions in detail. The petitioner does not dispute Ext.P8 order of the Kerala Public Service Commission, wherein the petitioner was held guilty of very serious misconduct in the matter of misleading the PSC into believing that the petitioner had requisite qualification for a post to which she applied pursuant to notifications invited by the PSC. Ext.P8 has become final. The petitioner has not challenged the same. Therefore, as on today, the petitioner stands found guilty of very serious misconduct invoking mis-representation of her qualification to the PSC, for which she has been debarred from appearing in any PSC examinations for three years from 31.07.06. The counsel for the PSC also points out that as is clear from Ext.P6 order granting bail to the petitioner, a criminal case has been registered against the WPC :5400 & 17753/07 -:4:- petitioner in respect of the same subject matter. That being so, even if the technical contention of the petitioner is correct, I am not inclined to exercise my discretionary jurisdiction in favour of such a petitioner to grant her the reliefs prayed for. For that reason alone, I am inclined to dismiss the writ petition. 5. However, probably with an eye to file an appeal, the counsel for the petitioner insists on my dealing with the technical contentions raised by the petitioner in these writ petitions to the effect that the PSC cannot under law exercise powers under Rule 10(b)(iii), which according to the petitioner only the Government can do. Therefore, I shall deal with that contention as well. The petitioner contends that in Rule 12(3) of the KPSC(Composition and Conditions of Service of Members and Staff) Regulations, 1957, the conditions of service of the members of the staff of the Commission shall save as expressly provided in those regulations, be the same as those prescribed by the State Government in respect of Government servants holding corresponding appointments. It is further pointed out that under Rule 14 thereof, in respect of any matter for which special provisions is not made by those regulations, conditions of service of a person serving as a member of the Commission or its staff shall be governed by the WPC :5400 & 17753/07 -:5:- rules and orders applicable to such classes of Government servants as shall be specified by the Governor. The petitioner’s contention is that these rules read with the decision of the Supreme Court in Suresh Chandra Thewari’s case (supra) makes it abundantly clear that the PSC could not, under law, exercise the powers vested under Rule 10(b)(iii). I am of opinion that, the reference to Rule 14 itself is misplaced. Rule 14 applies only when special provision is not made in those regulations regarding the conditions of service. Rule 12(3) is a special provision regarding the conditions of the service of the members of the staff of the Commission. Therefore, Rule 14 becomes inapplicable. As per Rule 12(3), the conditions of service of the members of the staff of the Commission are those prescribed by State Government in respect of Government servants. Conditions of service of Government servants are governed by the Kerala State and Subordinate Service Rules, Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, and Government Servants' Conduct Rules etc. When these rules have been incorporated by reference, then those rules have to be applied mutatis mutandis. Therefore, wherever in the KS & SSR the word 'Government' is mentioned, the word PSC should be substituted. The contention of WPC :5400 & 17753/07 -:6:- the petitioner is that such an interpretation is against the Supreme Court decision in Suresh Chandra Thewari’s case (supra). I am unable to agree. In Suresh Chandra Thiwari’s case, against an order in disciplinary action against the staff of the PSC an appeal was filed before the Government in accordance with the Rules applicable. In that case the PSC took the stand that since the PSC is a constitutional body, it is not subordinate to the Government and therefore the Government cannot exercise appellate functions against the orders of the PSC. That contention was repelled by the Supreme Court holding that the rule framed by PSC themselves prescribes the Governor as the appellate authority, pursuant to which only an appeal was preferred before the Governor and when the Governor is specifically named as the appellate authority against orders of punishment of the PSC, the Governor is entitled to exercise such appellate powers on the advice of the counsel of Ministers as provided in Article 166 of the Constitution of India. The fact situation there is totally different and that decision has no application whatsoever to the facts of this case. 6. Here the petitioner has no case that the Government is the appointing authority in respect of the employees of the PSC. Rule 10 WPC :5400 & 17753/07 -:7:- (b)(iii) provides that no person shall be eligible for appointment to any service by direct recruitment unless the State Government are satisfied that his character and antecedents are such as to qualify him for such service. If the Government cannot appoint members of the Staff of the PSC, then conversely the Government cannot pass an order under Rule 10(b)(iii) also. Of course, the learned counsel for the petitioner points out that in KS & SSR the appointing authority is different from Government. But that is because in Government service there are appointing authorities other than the Government. That distinction is not there in the service of the PSC where the appointing authority is the PSC itself. Therefore as the authority competent to appoint the petitioner, the PSC alone can pass an order invoking Rule 10(b)(iii) of the KS&SSR. I draw support in this view from the decision of the Division Bench in Krishnan Nair's case (supra). In that case in respect of an employee of the PSC the Government framed charges and the Division Bench held thus: “Under clause 12 of the Kerala Public Service Commission (Composition and Conditions of Service of Members and Staff) Regulations, 1957,(the Staff Regulations) it is for the Commission to employ the staff specified in Annexure I to these Regulations; the Commission being the appointing authority, and also the disciplinary authority, it was only the Commission that could have WPC :5400 & 17753/07 -:8:- framed the charge. It is not disputed that Ext.P2 memo of charges was framed by a Deputy Secretary to the Government, and Ext.P4 order for causing an enquiry into the charges mentioned in Ext.P2 by the Disciplinary Tribunal was passed by the Government, not by the Commission. We have not been shown any authority vested in the Government to initiate disciplinary proceedings against a member on the staff of the Commission; and, as such, the framing of the memo of charges(Ext.P2) by an officer under the control of the Government and the issue of an order in the nature of Ext.P4, by the Government are absolutely without jurisdiction; in our view, the fact that the memo of charges framed by the Government was communicated to the petitioner through the Commission would not cure the defect touching the very jurisdiction of the authority that framed the memo of charges in that behalf. The memo of charges having been drawn up by an authority not competent in that behalf, the entire proceedings based on such charge memo deserve to be quashed.” The ratio of that decision is squarely applicable to the powers of the PSC as an appointing authority. When the Government cannot appoint a staff of PSC it defies logic as to how the Government can deny employment to a person in the PSC in view of his antecedents. Therefore, I am completely satisfied that, the Government cannot exercise any powers under Section 10(b) (iii) in respect of members of the Staff of the PSC. The PSC being the appointing authority, such power vests exclusively with the PSC and not to the Government by any stretch of imagination. Therefore I do not find WPC :5400 & 17753/07 -:9:- any merit in that contention also. 7. The petitioner would raise another contention to the effect that since in Ext.P8 order dated 28.08.06, the petitioner has only be debarred from taking part in the examinations for three years from 31.07.06 and in this case the petitioner had appeared for the written examination conducted by the PSC on 05.06.04 and 02.04.05 and the advice thereto was dated 21.02.06. That contention looses of its relevance, since the advice itself has been cancelled by Ext.P12 order in W.P.(C) No. 17753 of 2007. For all the above reasons I do not find any merit in the technical contentions of the petitioner also. Accordingly, the writ petitions are dismissed. S. SIRI JAGAN, JUDGE ttb