Allowed

Johnson S v. Kerala State Road Transport Corporation

Kerala HC5 Dec 2018WP(C)/17113/2015

Case brief

AI extract

What is this about?

The court examined a driver's appointment challenged due to age limit violations, analyzing whether empanelled service counts as provisional service. It further ruled on the time limit for the Public Service Commission to cancel appointment advice, holding the cancellation invalid due to delay beyond one year.

What did the court decide?

The writ petition was allowed and the order cancelling the petitioner's appointment advice was quashed.

Johnson S Vs Kerala State Road Transport Corporation — Service and Employment | Kerala HC (2018)

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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.G.ARUN

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WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940

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WP(C).No. 17113 of 2015

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PETITIONER:

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JOHNSON S AGED 46 YEARS JERIN VILLA, ERIKKAVU, KARTHIKAPPALLY PO, ALAPPUZHA DISTRICT, (DRIVER K.S.R.T.C HARIPAD UNIT)

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BY ADVS. SRI.T.P.PRADEEP SRI.P.K.SATHEES KUMAR

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RESPONDENTS:

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1 KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY THE MANAGING DIRECTOR,KSRTC, THIRUVANANTHAPURAM-695023

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2 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTAM, THIRUVANNATHAPURAM

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3 THE REGIONAL OFFICER, KERALA PUBLIC SERVICE COMMISSION,REGIONAL OFFICE, KOLLAM

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BY ADVS.

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SRI.P.C.SASIDHARAN, SC, KPSC SHRI.T.P SAJAN, SC, KERALA STATE ROAD TRANSPORT CORPORATION - KSRTC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2018, THE COURT ON 05.12.2018 DELIVERED THE FOLLOWING:

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WP(C).No. 17113 of 2015 2

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C.R

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V.G.ARUN, J.

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W.P.(C) No.17113 of 2015

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Dated this the 5^th day of December, 2018

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JUDGMENT

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The Petitioner is presently working as Driver Grade-II in the Kerala State Road Transport Corporation. He was appointed pursuant to the selection procedure initiated vide Ext P1 Notification. As per clause 6 of Ext P1 Notification, the upper age limit prescribed for appointment to the post of Driver was 40 years. It is further specified that only candidates born between 2.1.1970 and 1.1.1989(both dates included) are eligible to apply for the post, with usual relaxation to SC/ST/OBC. Note(ii) to clause 6 provides for age relaxation of maximum five years to the provisional hands working in the K.S.R.T.C, provided they are within the prescribed age limit as on the date of their first appointment. The date of birth of the petitioner is 23.5.1969 and therefore, he had crossed the upper age limit of 40 years when he applied for the post of Driver. Based on Ext P2 certificate, which is to the effect that the petitioner had worked as a provisional driver in the K.S.R.T.C for a period of six years and

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WP(C).No. 17113 of 2015 3

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two months and was continuing as such, the petitioner claimed the benefit of age relaxation provided under Note (ii) to Clause 6 of Ext P1 Notification. The petitioner's application seeking appointment was accepted and after written test and practical test Ext P3 advice memo dated 26.2.2013 was issued by the third respondent. By Ext P4 order dated 13.5.2013, the petitioner was appointed as Driver Grade-II in the service of the Corporation.

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It is submitted that while continuing in service, the

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petitioner was issued with Ext P5 notice by the Public Service Commission, requiring him to show cause as to why the Commission should not cancel its advice for appointing the petitioner. The reason stated for the proposed cancellation of appointment was that the provisional service of the petitioner could not have been reckoned for the purpose of age relaxation, since it had been decided by the Court that empanelled service, otherwise than through the Employment Exchange, shall not be taken into consideration for the purpose of granting age relaxation. The petitioner submitted Ext P6 explanation pointing out, among other things, that his advice for appointment was not liable to be cancelled after 1½ years. There upon Public Service Commission proceeded

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to issue Ext P7 communication informing the petitioner that the explanation offered by him was not satisfactory and hence, it had been decided to cancel his advice.

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The Writ Petition is filed seeking to quash Ext P7 and for a direction, commanding the respondents to allow the petitioner to continue in the service of the K.S.R.T.C. While admitting the Writ Petition, this Court had granted an interim order allowing the petitioner to continue in service. The petitioner has challenged Ext P7 mainly on two grounds:(1) That Ext P7 order is in violation of Rule 3(c) of the Kerala State and Subordinate Services Rules, inasmuch as Ext P3 advice memo was issued on 26.2.2013 and Ext P7 order of cancellation was issued only on 27.5.2015, more than two years after the issuance of Ext P3. (2) That the provisional service rendered by the petitioner as an empanelled driver in the K.S.R.T.C was rightly reckoned for the purpose of granting him the benefit of age relaxation.

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The Public Service Commission has filed a counter affidavit inter alia contending that as per the Division Bench judgment of this Court in W.A.No.2055 of 2012 and connected cases, it had been declared that empanelled service should not be considered as employment service and

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relaxation in upper age limit should be given only for the provisional employees working in the K.S.R.T.C, selected through Employment Exchange. That pursuant to the judgment the experience certificate of the petitioner and similarly situated persons was verified and on finding that the certificate produced by the petitioner to prove his provisional service was issued based on his empanelled service, other than through Employment Exchange, the Commission decided to initiate proceedings for cancellation of the petitioner's advice. It is contended that the action taken by the Public Service Commission is in conformity with the judgment of the High Court and that the Commission is empowered to cancel an advice of the candidate if it was done under a mistake. The Commission contends that such reserve power is conferred on the Commission, which has been accepted by this Court as well.

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On the basis of the contentions advanced by the

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respective learned counsels, the following questions emerged for consideration.

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Whether the empanelled service rendered by the

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petitioner can be treated as provisional service, as contemplated under Note(ii) to Clause 6 of Ext P1

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WP(C).No. 17113 of 2015 6

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Notification, for the purpose of granting relaxation in upper age limit?

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Whether, the Public Service Commission is clothed with the power to cancel the advice for appointment of a candidate after a period of one year from the date of such advice ?

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The answer to the first question would essentially depend upon an understanding of the judgment rendered by the Division Bench of this Court in W.A.No.2055 of 2012 and connected cases in Kerala Public Service Commission v

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Anilkumar (2013(2) KLT S.N 103 ).

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The Writ Appeals which resulted in the judgment had been filed by the Public Service Commission aggrieved by the finding of the Single Bench that the term 'provisional service' used in the Notification inviting application to the post of Reserve Driver, would take in the service rendered by empanelled drivers also. The Division Bench, differed with the finding of the Single Bench and expressed its definite opinion that age relaxation to the provisional employees in the Corporation refers to appointments made from a valid source, on an exigency, as stipulated in Rule 9 of Kerala State and Subordinate Services Rules or similar situations and

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postulate continuing service with or without artificial break. The Division Bench took note of the fact that empanelled drivers are engaged in the absence of regular hands. Therefore it was observed that such appointment cannot be said to be to a vacancy in a sanctioned post,since admittedly there was no vacancy and the engagement was only for reason of the absence of regular hand and made in order to ensure the non-cancellation of services in regular routes. Based on its findings, the Division Bench reversed the judgment of the Single Bench and dismissed the Writ Petitions. The petitioner has no case that he was appointed in the manner stipulated in Rule 9 of Kerala State and Subordinate Services Rules. Therefore, the Division Bench decision reported in Kerala Public Service Commission v Anilkumar (2013(2) KLT S.N 103 ) is squarely applicable as far as the petitioner is concerned. Resultantly, it has to be held that the petitioner was not eligible for relaxation of upper age limit granted to him on the strength of Ext P2 certificate.

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The second question to be considered is whether the Public Service Commission is empowered to cancel the advice for appointment of the petitioner after a period of two years,

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even if it is found that the petitioner was ineligible for such advice. The answer to this question would essentially depend upon Rule 3(c) of the Kerala State and Subordinate Services Rules, 1958, the relevant portion of which reads as under:

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3. Approved Candidates :- (a) All first appointments to the service shall be made by the appointing authority on the advice of the Commission in respect of posts falling within the purview of the Commission and in all other cases by the appointing authority from a list of approved candidates prepared in the prescribed manner.

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(b).xxx xxxx

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xxxx

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(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 candidate:

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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.

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On a plain reading of the first proviso to Rule 3 (c) it

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is clear that after the period of one year from the date of advice, the Commission is not empowered to cancel the

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WP(C).No. 17113 of 2015 9

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advice for appointment of a candidate. In the instant case, the advice was issued by the Commission on 26.2.2013 and its decision to cancel the advice is dated 27.5.2015, which is more than 2 years and 3 months after issuance of the advice.

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The impact of the first proviso to Rule 3(c) was considered by this Court in Jayadev & others v Public Service Commission (1973 KLJ 915). That case arose on account of issuance of show cause notice to cancel the advice for appointment issued to the petitioner's therein on the ground that a mistake in decoding the false numbers allotted to the candidates during the process of selection was found out by the Public Service Commission only after issuance of the advices. In that context this Court observed that even though mistakes are bound to occur, every mistake may not be made use of to cancel the advice. Rule 3(c) allows the power of cancellation to be exercised only until the person appointed becomes a full member of the service, or in other words, there is a time limit for cancellation. This shows that even though a mistake has been found out nothing is done or can be done to cancel the advice and appointment after a period. It was also observed that unless a limitation is read into the power to cancel under Rule 3(c), it will result in

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arbitrary exercise of that power, if the mistake has not been occasioned by the candidate and that if on the faith of the advice the candidate has been appointed, it may not be possible to restore him to the position which he occupied prior to the advice. In this context it may be pertinent to note that the observations in the judgment was made prior to the substitution of the words 'within the period of probation of the candidate', in the first proviso to Rule 3(c) with the words 'within a period of one year from the date of such advice' vide G.O.(P) No.501/79/GAD Dated 10.9.1979. It is therefore, evident that the substitution has been made consciously, so as to reduce the length of the period during which the Public Service Commission would be empowered to cancel the advice for appointment issued to a candidate.

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The first proviso to Rule 3 (c) in its present form also came up for consideration before a Division Bench of this Hon'ble Court in Kerala Public Service Commission v Malini (1996(2) KLT 332) . Dilating on the impact of the first proviso, the Division Bench held that if the Commission and the appointing authority fail to pass orders cancelling the advice and cancelling the appointment respectively within one year from the date of advice, service of the candidate cannot

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be cancelled as per Rule 3(c) of the Kerala State and Subordinate Services Rules. In the instant case the Commission had communicated its decision to cancel the advice for appointment issued to the petitioner after a period of 2 years and 3 months. The appointing authority, namely the K.S.R.T.C, is yet to terminate the service of the petitioner. In such circumstance, it has to be held that Ext P7 is invalid, being a decision taken by the Commission without authority.

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The learned counsel for the Public Service Commission contended that Rule 22 of the Kerala Public Service Commission Rules of Procedure empowers the Commission to take action for removal of candidates from service at any point of time and that the time limit prescribed under Rule 3(c) has no application when action is taken by the Commission in exercise of its power under Rule 22 of the Kerala Public Service Commission Rules of Procedure. The said contention cannot hold good for the reason that Rule 22 is applicable only in the case of candidates who are found guilty for any of the items of misconduct enumerated in that Rule. Evidently, Ext P7 has not been issued in exercise of the Commission's power under Rule 22, nor does Ext P7 refer to any misconduct having been committed by the petitioner.

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The Kerala Public Service Commission Rules of procedure has been formulated by the Kerala Public Service Commission itself, prescribing the procedure to be followed by the Commission for the discharge of its functions. Therefore, the Kerala Public Service Commission Rules of procedure cannot be termed as statutory rules, which can override the provisions of Kerala State and Subordinate Services Rules.

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The question as to whether the Public Service Commission could cancel an advice for appointment after the period prescribed under the first proviso to Rule 3(c) of the Kerala State and Subordinate Service Rules, in purported exercise of its power under Rule 22 of the Kerala Public Service Commission Rules of Procedure was considered by a Division Bench of this Court in Appukuttan Pillay v Kerala Public Service Commission(1984 KLT 880) . Answering an identical contention based on Rule 22 of the Kerala Public Service Commission Rules of Procedure, the Division Bench held as follows:

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“Our attention has been drawn by the learned counsel for the Commission to Rule 22 of the Kerala Public Service Commission Rules of Procedure which deals with the procedure in regard to candidates who are found guilty of certain items of misconduct. Those Rules are admittedly not statutory Rules and are framed for the guidance of the

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WP(C).No. 17113 of 2015 13

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PSC. The terms and conditions in the Notification subject to which the applications are invited, are only reproductions of the contents of Rule 22 of the Rules of Procedure. It is not as if in the matter of inviting applications and making advices, the Kerala Public Service Commission was entering into any contract with the candidate. This condition will operate only subject to the Rules and therefore despite the notice given that action will be taken for misconduct, that must be subject to the limitations in Rule 3 (c) of the Kerala State and Subordinate Services Rules. In this case that would be subject to the limitations in the first proviso and the action if at all taken must be within one year.

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Based on the said reason, the Division Bench allowed the Writ Appeals filed by the advised candidates and quashed the action taken by the Public Service Commission for cancellation of their advices for appointment.

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The issue was again considered by another Division Bench of this Court in Danimon George v K.S.R.T.C (2018(2)KLT 1014) . That was a case which arose out of the very same Ext P1 Notification inviting applications for appointment to the post of Reserve Conductor. Therein, the issue was with regard to a caste certificate submitted by the candidate, which the Public Service Commission alleged was incorrect and proceeded to cancel that candidates advice for appointment. In that case also the Commission attempted to

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sustain its action by contending that it has inherent powers of cancellation, de hors Rule 3(c) of the Kerala State and Subordinate Services Rules. Answering the contention the Division Bench held as follows:

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“Though it was contended before us that he had not produced a creamy layer certificate and therefore his advice was liable to be cancelled, we are of the opinion on that score action could have been taken against him only under Rule 3(c) of the Kerala State and Subordinate Services Rules and not under Rule 22 of the Kerala Public Service Commission Rules of Procedure or paragraph 30 of the general conditions. Rule 22 and paragraph 30 of the general conditions are applicable only in cases where the candidate is guilty of misconduct of the various kinds mentioned therein. Rule 3 (c) applies in cases where the Commission mistakenly advices a candidate without the candidate having any role to play in the Commission of the mistake”.

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In order to supplement the contention that the

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Commission is clothed with power to cancel the advice for appointment of a candidate, in exercise of its power under Rule 22 of the Kerala Public Service Commission Rules of Procedure, the following decisions were pressed into service.

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i) Kerala Public Service Commission v Hareendran (1999(2) KLT 63)

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ii) Ashok v Kerala Public Service Commission (2000(1) KLT 374

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iii) Omana v Kerala Public Service Commission & others(ILR 2000(1) Ker.189)

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iv) Ashok v Public Service Commission (2001)5

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SCC 419

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v) Santhamma v Public Service Commission (1982 KLT 786)

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The first four cases cited above were rendered in

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the context of the candidates having applied in two districts, in spite of a specific stipulation in the Notification that a candidate can apply in only one district. It was in that factual background that the decision of the Public Service Commission to reject/cancel the candidature/advice was found to be correct and the courts refused to exercise discretion in favour of the candidates.

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As far as Santhamma 's case is concerned, the facts revealed that an entry, relating to community was made by the applicant in her S.S.L.C book. Though the entry was made unauthorisedly, it was a correct entry. But the Public Service Commission, in exercise of power under Rule 22 of

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the Kerala Public Service Commission Rules of Procedure, proceeded against the applicant and deleted her name from the ranked list, alleging that the candidate had tampered with

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WP(C).No. 17113 of 2015 16

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her S.S.L.C.book. The applicant challenged the action of the Public Service Commission. While upholding the challenge the learned Single Judge observed that the items of misconduct enumerated under Rule 22 of the Kerala Public Service Commission Rules of Procedure are all designed to curb dishonest and improper conduct, and not to penalise errors of judgment or technical mistakes. On the question of the authority of the courts to interfere with the discretion exercised by the Public Service Commission, during the process of selection, it was held as follows:

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“The Public Service Commission, I repeat, may have a wide discretion; but that is no reason why the courts should make a retreat from the commanding heights of law and permit a genuine grievance to go unredressed. Where the decision of the Commission suffers from a failure to attach sufficient weight to all the relevant facts, where it amounts to a mere mechanical exercise of power, and where it is found to be a decision which reasonable persons could not have reasonably arrived at, I think this court has a duty to interfere.”

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In the instant case also, as found earlier, the Commission has not alleged fraud against the petitioner. The Commission's case, as discernible from the counter affidavit is that, the ineligibility was found out on verification of the petitioners records pursuant to the judgment in Anilkumar 's

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case supra . Surprisingly, though the judgment in Anilkumar's case was rendered on 2.4.2013, Ext P5 show cause notice was issued by the Commission only on 14.11.2014. Another relevant aspect to be considered is that in Ext P4 memorandum, under which the petitioner was appointed, it has been specifically spelt out that the appointment of the candidate is subject to Rule 3(c) of the Kerala State and Subordinate Services Rules. Further, even in Ext P7, the Commission has not stated that cancellation of the advice for appointment is effected, in exercise of the power under Rule 22 of the Kerala Public Service Commission Rules of Procedure. After a careful scrutiny of the relevant provisions and the precedents on the point, the only conclusion that can be arrived at is that the Public Service Commission cannot cancel the advice for appointment of a candidate after the period of one year prescribed in the first proviso to Rule 3(c) of the Kerala State and Subordinate Services Rules, otherwise than in a case where fraud is alleged against the candidate. Therefore, the answer to the second question is found in favour of the petitioner. Consequently, Ext P7 is quashed.

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For the reasons mentioned above, the Writ Petition is

allowed.

V.G.ARUN, JUDGE.

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WP(C).No. 17113 of 2015 19

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE NOTIIFICATION DATED 15.07.2010 EXHIBIT P2 TRUE COPY OF THE CERTIFICATE DATED 03.03.2011 ISSUED BY THE DTO HARIPAD EXHIBIT P3 TRUE COPY OF THE ADVICE MEMO DATED 26.02.2013 ISSUED BY THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF THE MEMORANDUM DATED 13.05.2013 ISSUED BY THE 1ST RESPONDENT EXHIBIT P5 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 14.11.2014 ISSUED BY THE 3RD RESPONDENT EXHIBIT P6 TRUE COPY OF THE EXPLANATION DATED 27.11.2014

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EXHIBIT P7 TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 27.05.2015

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EXHIBIT P8 TRUE COPY OF EMPANELLED SERVICE DETAILS OF THE PETITIONER OBTAINED UNDER RIGHT TO INFORMATION ACT

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RESPONDENTS EXTS NIL /TRUE COPY/ P.S.TO JUDGE cms

Johnson S v. Kerala State Road Transport Corporation

Case brief

What is this about?

What did the court decide?

Johnson S v. Kerala State Road Transport Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

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