IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 WA.No. 2278 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.5400/2007 Dated 22/06/2009 .................... APPELLANT(S): PETITIONER: ------------------------- RAHUMATH.S., MELEVILA VEEDU, MYLAKKADU P.O., KOTTIYAM, KOLLAM. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): --------------- 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI8. ALEXANDER THOMAS - SC FOR R1 AND R2 SENIOR GOVT. PLEADER SRI. BENNY GERVASIS IR3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13/11/2009 ALONG WITH WA NO. 2291 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NOS. 2278 & 2291 OF 2009 --------------------------------------------- Dated this the 13th day of November, 2009 JUDGMENT Ravikumar, J. Both these appeals are filed by the same person against the common judgment in W.P.(C) Nos. 5400/07 and 17753/07. In fact, the appellant himself was the writ petitioner in both those writ petitions on the same subject matter. He was a selectee to the post of Assistant Grade-II under the Public Service Commission. The former writ petition was filed with the prayer to quash Order No.ESTT. II(3) 6933/06/GW dated 23.1.07 of the PSC cancelling the appointment of the appellant as Assistant Grade- II in its office by invoking the powers under Rule 10(b)(iii) of Part-II of the KS & SSR(Ext.P11 therein) and the latter writ petition was filed with the prayer to quash the further proceedings initiated pursuant to Ext.P11 that culminated in Ext.P12 order of cancellation of his very advice for recruitment to the said post. 2. It was contended before the learned Single Judge that the Public W.A.NOS. 2278 & 2291/2009 2 Service Commission was incompetent to invoke the powers under 10(b) (iii) of Part-II of the KS & SSR to pass Ext.P11 order as the said power is exclusively exercisable by the Government. To buttress the said contention the decision of the Hon’ble Apex Court in U.P. Public Service Commission v. Suresh Chandra Tewari reported in AIR 1987 SC 1953 was relied on. The PSC has filed counter affidavits resisting the claims and contentions. PSC could cancel the advice for appointment as recruitment agency in exercise of power Rule 3(c) of Part-II of the KS &SSR read with its Rules of Procedures and also could cancel an appointment made into its service by invoking the power under Rule 10(b)(iii) of Part-II of the KS & SSR, as appointing authority, was the main thrust of its contentions. It was further contended that KS & SSR was adopted by reference by the PSC and therefore, the word ‘Government’ occurring in Rule 10(b)(iii) of Part- II of the KS & SSR had to be substituted by the word ‘Public Service Commission’. To substantiate the said contention a Bench decision of this Court in Krishnan Nair v. Public Service Commission reported in 1982 KLT 610 was relied on. After considering the rival contentions the learned Single Judge dismissed the said writ petitions as per the common judgment dated 22.6.2009. Hence these appeals. 3. We have heard the counsel for the appellants Sri. M. Sreekumar W.A.NOS. 2278 & 2291/2009 3 and also the learned Standing Counsel for the Public Service Sri. Alexanader Thomas. Both of them reiterated the contentions raised before the learned Single Judge which were adverted to in the preceding paragraph. 4. Before considering the rival contentions it is only appropriate to refer briefly the facts that led to the issuance of the impugned orders. The appellant was an applicant for selection to the post of Assistant Grade-II in various departments. After a due selection processes a ranked list was published on 31.12.2005. Based on the rank as also the rules of reservation Ext.P2 memo of advice dated 7.2.2006 was issued to the appellant by the 2nd respondent. That was followed by Ext.P3 order dated 21.2.2006 of the 2nd respondent appointing the appellant in its office itself. However, he was not permitted to join duty when he turned up for joining duty for the reason that in the enquiry made against him for a grave misconduct in the matter of submission of application to the post of Junior Assistant in the Kerala State Financial Enterprises he was debarred from appearing in any examination conducted by the PSC for a period of three years from 31.7.2006, as per Ext.P8 order. Later, Ext.P9 notice was issued to him to show cause why the appointment to the post of Assistant Grade-II made as per Ext.P3 should not be cancelled under Rule 10(b)(iii) of the KS & SSR W.A.NOS. 2278 & 2291/2009 4 and after considering Ext.P10 reply the order of appointment was cancelled as per Ext.P11 order. Thereafter, Ext.P12 order dated 12.3.2007 was issued cancelling the very advice for his appointment to the said post. 5. The undisputed facts obtained in these cases are that as per Ext.P8 the appellant was found guilty of grave misconduct in misleading the PSC that he possessed the prescribed qualification for the post of Junior Assistant in the Kerala State Financial Enterprises and was debarred from appearing in any PSC examinations for a period of three years from 31.7.06. Ext.P8 has become final as it was not challenged hitherto. It is also not in dispute that in respect of the said incident Crime No. 710/06 of Mangalapuram Police Station was registered against the appellant and he is now, facing trial in the said case. 6. Now, we may deal with the rival contentions raised before us. To canvass the position that PSC lacks competence to invoke powers under Rule 10(b)(iii) of the KS & SSR the appellant has relied on Suresh Chandra Tewari’s Case (supra) and Rules 12(3) and 14 of the KPSC (Composition and Conditions of Service of Members and Staff) Regulations, 1957(for short ‘the Regulations’).The contention based on Rule 14 therein is nothing but misconceived on account of the specific W.A.NOS. 2278 & 2291/2009 5 provision regarding the conditions of service of the staff of the PSC in Rule 12(3) because Rule 14 would be applicable only in the absence of special provisions in the regulations regarding the conditions of service. Rule 12(3) therein provides that 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. There is no dispute regarding the fact that the conditions of service of Government employees are governed by various enactments including the Kerala State and Subordinate Service Rules and that the Kerala State and Subordinate Service Rules have been adopted by reference by the PSC. The inescapable conclusion in the said circumstances is that the conditions of service of the members of the Commission are those prescribed by the State Government in respect of Government servants. In other words, on account of the adoption by reference and in the light of Rule 12(3) it cannot be contended that there is no special provision regarding the conditions of service of the staff of the PSC. Naturally, in the light of the said admitted position that KS & SSR has been adopted by reference by the PSC those rules have to be applied mutatis mutandis to the employees of the PSC. Another vital and crucial aspect is that indisputably the Appointing Authority in respect of employees of the PSC is PSC itself W.A.NOS. 2278 & 2291/2009 6 and not the Government. Consequently, whenever KS & SSR is pressed into service relating service under Commission the word ‘Government’ occurring in Rule 10(b)(iii) of Part-II of KS & SSR has to be substituted invariably by the word ‘Public Service Commission’. We are fortified in our view by another bench decision of this Court in Krishnan Nair v. Public Service Commission reported in 1982 KLT 610. The said decision, in so far as it is relevant for the purpose of this case, reads as hereunder:- “ 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 framed the charge. It is not disputed that Ext.P2 memo of charges framed by the Deputy Secretary to 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 and not by the Commission. We have not been shown any authority vested in Government to initiate W.A.NOS. 2278 & 2291/2009 7 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 by an authority not competent in that behalf, the entire proceedings based on such charge memo deserves to be quashed.” 7. In the light of the decision in Krishnan Nair’s case (supra) and in view of the facts obtained in the case we have no hesitation to reject the contention that PSC is incompetent to invoke the powers under Section 10 (b)(iii) of Part-II of KS & SSR. We are also fortified in our view by the decision of the Hon’ble Apex Court in Union of India V. Rati Pal Saroj reported in AIR 1998 SC 1117. That was a case where the selectee was working as under Secretary, having not been relieved and thus failed to join as an IAS probationer within the due date. Subsequently, CBI had W.A.NOS. 2278 & 2291/2009 8 registered a case against him for abusing his official position and entering into conspiracy with certain others and got his original answer papers removed and substituted by others. In respect of the said incident criminal proceedings were also initiated against him. Consequently, cancellation of his appointment was made. The Hon’ble Apex Court held that the employer is competent to withdraw/cancel the offer of appointment. In this case, admittedly the appellant is facing the trial in the case registered against him in connection with the commission of foul play in the matter of PSC selection to the post of Junior Assistant in the Kerala State Financial Enterprises. The verification of antecedents and character is the concern and duty of the appointing authority and in this case, admittedly PSC is the appointing authority. The appellant had failed to bring to our attention any provision which enables the Government to cancel an appointment made in to the service of the PSC and therefore, when once it is found that Government have no role at all in the matter of appointments of staff in the PSC the contention of the appellant attributing incompetence on PSC for invoking the powers under Section 10(b)(iii) of Part-II of KS & SSR cannot be upheld. Consequently, the decision of the Hon’ble Apex Court in U.P. Public Service Commission v. Suresh Chandra Tewari reported in AIR 1987 SC 1953 cannot have any application in the facts and admitted position of absolute absence of any W.A.NOS. 2278 & 2291/2009 9 role for the Government in the matter of appointment. 8. The long and short of this long discussion is that there is no basis for the attack against Exts.P11 and P12 orders as rightly held by the learned Single Judge. The common judgment of the learned Single Judge suffers from no illegality or perversity warranting appellate interference. The Writ Appeals are therefore, liable to fail. Accordingly, the above Writ Appeals are dismissed. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A.NOS. 2278 & 2291/2009 10 KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.A.NOS.2278 & 2291/09 JUDGMENT 13th November, 2009 W.A.NOS. 2278 & 2291/2009 11