Dismissed

Praveen Ben George v. State of Kerala

Kerala HC1 Jan 2008WP(C)/32617/2007

Case brief

AI extract

What is this about?

Petitioners sought to enforce an expired rank list for police posts, arguing a notification error extended its validity. The Court held the rank list expired per the Rules, estoppel cannot bind a constitutional body to an error, and the PSC lacked jurisdiction to extend validity post-expiry.

What did the court decide?

Writ petition dismissed; no further directions issued for enforcement of the expired rank list.

Praveen Ben George Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE V.GIRI

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TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929

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WP(C).No. 32617 of 2007(G)

PETITIONER:

PRAVEEN BEN GEORGE, VALIYAVILAKAM, KULAKODE, VELLANAD P.O., THIRUVANANTHAPURAM.

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RAMJI.K.KARAN, RAM NIVAS, NETTAYAM P.O., AMBALAMKUNNU, KOLLAM DISTRICT.

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BIJOY S., PARVATHYKRIPA, PAZHAMAYIL HOUSE, S.PURAM P.O., KOTTAYAM DISTRICT.

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BY ADV. SRI.KALEESWARAM RAJ

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RESPONDENTS:

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STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM.

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THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM.

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KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM.

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BY GOVERNMENT PLEADER SRI. NANDAKUMAR

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SRI.ALEXANDER THOMAS,SC,KPSC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.GIRI, J

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W.P.(C).32617/2007

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Dated this the 1^st day of January, 2008

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JUDGMENT

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Petitioners are included in the rank list published by the Public Service Commission for the post of Reserve Sub Inspector Trainee/Armed Police Sub Inspector Trainee (Motor Transport Unit). Applications were invited by the PSC for the said post by notification dated 2.3.2004. Ext.P1 is described as copy of the notification which was downloaded from the website of the PSC. It refers to category No.52/2004. One column in Ext.P1 reads as follows:-

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“The above vacancy is now in existence. The list of selected candidates published by the Commission in response to this notification shall remain in force for a minimum period one year provided that the said list will continue to be in force till the publication of a new list after the expiry of the minimum period of one year or till the expiry of three years whichever is earlier. Candidates will be advised from the said list against the

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W.P.(C).32617/2007

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vacancy noted above and that may be reported to the Commission in writing during the period of currency of the list.”

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Conditions of service for the post in question was also incorporated in Ext.P1 and the same reads as follows:-

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“Candidates selected shall be on training for a period of 9 months in Police Training College, Thiruvananthapuram and Practical Training for 3 months in the concerned District Armed Reserve in which they are posted. They will be paid a stipend of Rs.5500/- per month during the period of training. On completion of the said training they will be posted as Reserve Sub Inspector in the Scale of Rs.5500-9075 and they will be placed on probation. The period of probation is two years on actual duty within a continuous period of three years. The probation of directly recruited Reserve Sub Inspectors will be commenced only after completion of the practical training as prescribed in G.O.(Rt) No.573/78/Home dated 21.3.1978. Every persons appointed

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W.P.(C).32617/2007

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to the post shall execute a bond before he joins for training to the effect that he shall serve the department for a minimum period of 5 years.”

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The petitioners were included in the rank list (Ext.P2), published on 19.8.2006. Apparently three persons were advised from the said rank list; petitioners were not. On enquiries, according to them, they were told that since the post is one to which a training is mandatory, the rank list published on 19.8.2006 expired on 18.8.2007 in terms of the first Proviso to Rule 13 of PSC Rules of Procedure. In other words, rank list has expired and therefore, cannot be enforced any further. Hence this writ petition seeking a direction to respondents 1 and 2 to re-assess the number of vacancies to the post in question and report the same to the third respondent. Petitioners inter alia refers to the note in Ext.P1 which declares that the rank list will be valid for a period of three years.

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W.P.(C).32617/2007

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In the counter affidavit filed by the PSC, it is inter alia contended that the rank list is in relation to a post to which training is mandatory and therefore, the validity of the rank list is governed the first proviso to Rule 13 of the PSC Rules of Procedure. Three vacancies were reported on 30.10.2006. Three candidates were advised and the training of the advised candidates started on 7.3.2007. Rank list expired on 18.8.2007.

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With regard to the contention of the petitioners that the note in Ext.P1 declares that the period of validity of the rank list is three years, the Commission submits that the same is a mistake and as a matter of fact, period of validity has been correctly noted in the gazette notification published as Ext.R3(a). At any rate the post in question is one in relation to which training is mandatory and therefore the validity of the rank list for the said post would be governed by the Ist proviso to Rule 13 of the Rules.

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W.P.(C).32617/2007

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On instructions, learned senior Government Pleader appearing on behalf of respondents 1 and 2 submits that three vacancies were reported to the PSC. Three persons were advised and they have been issued orders of appointment also. According to him, there are no further vacancies in the post of Reserve Sub Inspector Trainee/Armed Police Sub Inspector Trainee (Motor Transport Unit).

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I heard the learned counsel for the petitioner Mr. Kaleeswaram Raj, learned Standing Counsel for the PSC Mr.Alexander Thomas and the learned senior Government Pleader Mr.Nandakumar.

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The principal contention taken up by Sri. Kaleeswaram Raj at this stage centers around the declaration made in Ext.P1 that the rank list is valid for a period of three years from the date of its publication. According to him, this is a mistake committed by the PSC. They could have rectified the same by a notification of a similar character. Assuming that gazette

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notification Ext.R3(a) stipulates the validity of the rank list as one year in terms of the Ist proviso to Rule 13, there is a case of conflict between two publications by the same body. In such cases, according to him, it is open to the PSC as such to invoke its power under Rule 40 of the PSC Rules of Procedure and resolve the conflict, if necessary, by extending the period of rank list as such beyond the period of one year. He submits that the Rules of Procedure of PSC are not statutory. They are intended to govern the internal management of the PSC. Therefore, period mentioned in Ist proviso to Rule 13 cannot be elevated to the status of a statutory prescription. Consequently PSC cannot be denied the power to extend the period of rank list beyond the period of one year, to see that appropriate amends are made for the mistake committed in the publication of the notification as per Ext.P1.

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Mr.Kalleswaram Raj also refers to Ext.P4. This is a publication of a news item in the form of question and answer in relation to another selection wherein

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W.P.(C).32617/2007

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apparently a similar mistake was committed, in the publication of a notification for Women Police Constables which also requires mandatory training. In such cases, according to him, though Ist Proviso to Rule 13 was applicable to the post in question, PSC had kept the rank list alive beyond the period of one year to see that no person is detrimentally affected by reason of the mistake in the publication as such. According to him, such a decision could have been taken by the PSC, only by virtue of Rule 40 of the PSC Rules of Procedure. Therefore, there is adequate power with the PSC. There is no reason why PSC should not be required to consider whether a similar decision has to be taken in the present case.

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Learned Standing Counsel for the PSC, Mr.Alexander Thomas submits that though PSC Rules of procedure are not statutory in character, they will nevertheless have to be treated as law for the purpose of governing the PSC and for regulating its activities. The rules of Procedure will have to be sourced to the

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W.P.(C).32617/2007

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constitutional provisions providing for the constitution of the State PSC and in a sense they could be treated as legislative. At any rate it is not open to the PSC to deviate from it. Rule 40 of PSC Rules of Procedure may not be available in a case like the present one where the residuary power available to the PSC is not required to give effect to any provisions of the Constitution or for the proper discharge of the functions of the Commission.

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Mr.Nandakumar submits on instructions, that all the vacancies in the post in question were reported within one year from the date of publication of the rank list. Therefore, the petitioners may not be entitled to the reliefs sought for.

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The first question is whether the note, which has been incorporated in Ext.P1 as to the validity of the period of rank list can be treated as binding on the PSC or if it is a mistake, whether it can make any amends by way of extension of the validity of the rank list. In my view, three factors stand in the way of the petitioner.

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W.P.(C).32617/2007

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Firstly, the post in question is admittedly one where a training is mandatorily required. If that be so, the Ist Part of Rule 13 as such will not apply to the rank list for the said post. It is the proviso which is applicable and if that be so, obviously a declaration in Ext.P1 that the period of validity of the rank list is three years, notwithstanding the fact that it cannot be so, is obviously a mistake. It may not be possible for either the petitioners or any other person to compell the PSC to abide by the said erroneous declaration made in Ext.P1 which flys in the teeth of the Ist proviso to Rule 13 of the PSC Rules of Procedure.

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Secondly, as a general measure of advising

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candidates who turn up in large numbers, PSC had introduced a note of caution in Ext.P1 requiring all persons who come across Ext.P1 to cross check the details with the gazette notification. The details of the gazette in which the same notification has been published is also mentioned in Ext.P1. Thirdly, there is a disclaimer which has been published along with Ext.P1

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W.P.(C).32617/2007

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[produced as Ext.R3(b)] that specifically requires all persons concerned to cross check the final notification in the Kerala Gazette to ensure the correctness of the details provided therein. Even in Ext.P1, it is made clear that the post is one for which a training is mandatory.

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In my view, though admittedly there is a mistake in Ext.P1 it cannot be led to a situation PSC can be held bound to take further action in conformity with the mistake as to result in violating the Ist Proviso to Rule 13 as such.

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This contention may give rise to a question as to whether PSC Rules are statutorily binding. Learned counsel for the petitioners is right in submitting that they cannot be treated as statutory in character. But they have been framed by a constitutional body and in a manner of speaking, they could be described as legislative in character. In the case of constitutional bodies, Rules can be framed by exercising the powers

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W.P.(C).32617/2007

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conferred on them by the Constitution and in such cases, the rules are considered to be legislative in character. At any rate, PSC Rules of Procedure are binding on the PSC and relaxation, if any, must be in terms of the Rules. In other words, the Ist proviso to rule 13 would govern the period of validity of the rank list and consequently an obvious mistake in Ext.P1 will have to be treated only as a mistake. After all, though not statutory in character PSC cannot be bound by a rule of estoppal flowing from a mistake in Ext.P1. The principle that there cannot be any estoppal against a statute would by analogy apply to the present case also.

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Mr.Kaleeswaram Raj submits that Rule 40 of the Rules of Procedure confers a residuary power on the PSC to take such decision as are required notwithstanding anything contained in Parts I and II of the Rules, for the proper discharge of the functions of the Commission. Rule 40 reads as follows:-

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“Nothing contained in Parts I and II of these rules shall be deemed to limit or affect the power of the Commission to make such orders as may be necessary to give effect to any of the provisions of the Constitution of India or for the proper discharge of the functions of the Commission.

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Provided that no such order which has an over-riding effect on the provisions contained in Part-I of these rules shall be made by the Commission without the prior concurrence of the Government.”

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In my view, this may not be a proper case for issuing a writ of mandamus to the PSC to consider whether they should exercise a power under Rule 40 of the Rules of Procedure to consider whether the period has to be extended beyond the period of one year. Moreover, it may not be possible by the PSC to take any such decision in view of the decision of the Supreme Court reported in Thulaseedharan v. K.P.S.C (2007

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(3) KLT 19). Though Rule 40 of the PSC Rules as such was not considered by the Supreme Court, the

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broad principle laid down in the said decision to the effect that the PSC cannot extend the validity of the list under the Ist proviso to Rule 13 of the PSC Rules of Procedure after the expiry of the period of its validity, would stand in the way of exercise of power under Rule 40. I agree with the submission of the learned counsel for the PSC in this regard.

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Mr.Kaleeswaram Raj then makes reference to Ext.P4 which allegedly shows that the PSC had made amends for a mistake which is similar in character. Ext.P4 does not show whether the answer given to the question which is mentioned therein is authenticated by the PSC. In my view, if the PSC had extended the period of rank list after the period of its validity, then the said action would be without jurisdiction. If in spite of an absence of power in that regard a constitutional body has committed a mistake, such a mistake obviously cannot be perpetuated by the issue of a writ of mandamus. Refer to the decisions Union of India and Another v. International Trading CO. and

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W.P.(C).32617/2007

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Another (2003 (5) SCC 437) and State of Kerala v. Prasad (2007 (3) KLT 531) .

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For all these reasons, I do not find my way to grant the reliefs sought for. Since the rank list has expired on 18.8.2007, no further directions can be issued for enforcement of the same.

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Writ petition is dismissed accordingly.

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V.GIRI, Judge

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mrcs

Praveen Ben George v. State of Kerala

Case brief

What is this about?

What did the court decide?

Praveen Ben George v. State of Kerala

Case brief

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