APPUKUTTAN PILLAY Vs. KERALA PUBLIC SERVICE COMMISSION

JUDGEMENT

(1.) The appellants before us in both these cases are the petitioners in the Original Petitions. Both of them were Advocates practising in the Quilon Bar. While so, they responded to a notification by the Kerala Public Service Commission inviting applications for appointment as Assistant Personnel Officers in the Kerala State Cashew Development Corporation Ltd. The candidates were to possess a degree in Arts, Science or Commerce or a Diploma in Social Science or the degree of M.S.W or a degree in law. Besides this they were to have practical experience of not less than two years after obtaining the academic qualification, in State Government or Central Government or any company registered under the Indian Companies Act. The petitioners in both these cases produced certificates showing experience for two years in two companies and evidently on the basis of these certificates also they were selected and advised for appointments. Both of them were in due course appointed as Assistant Personnel Officers in the Kerala State Cashew Development Corporation Ltd. More than one year later the Kerala Public Service Commission seems to have thought of looking into the matter over again on some complaints received by them. The complaint was about the experience shown by the two candidates in support of their applications. The Kerala Public Service Commission caused investigation to be made by the Vigilance Wing, contacted the employers and on the report of the Vigilance Wing prima facie came to the conclusion that the petitioners in both the cases were not full time employees of the companies and as such they had misrepresented their qualification in their applications. In that view they issued notice to the petitioners to show cause why their ranks in the ranked list should not be cancelled and similarly why their advice should not be cancelled. To this the petitioners objected contending that they had not made any misrepresentation, that they were employees of the companies, they had the requisite experience and therefore they were qualified. Notwithstanding such objection and without anything further the Kerala Public Service Commission proceeded to pass orders in the case of both the petitioners cancelling their ranks in the ranked list and also cancelling the advice for appointment. These are the orders challenged in the Original petitions.

(2.) The main ground of challenge is that the Kerala Public Service Commission, once it performs its function of selecting a candidate and advising him for appointment becomes functus officio and has no further power to cancel the advice or to cancel the appointment. It was therefore stated that the action of the Kerala Public Service Commission was incompetent.. R.3(c) of the Kerala State and Subordinate Services Rules enables the Commission to cancel the advice for appointment of any candidate to any service if it was subsequently found that such advice was made under some mistake. That rule further provides that on such cancellation the appointing authority shall terminate the services of the candidate. Resort was not made to this rule by the Commission in issuing the notice to the petitioners or in passing the order evidently because if this rule was invoked the power could not be exercised as the time limit within which such power could be exercised had expired by that time. The first proviso to that rule specified a period of one year from the date of the advice as the period within which the cancellation of advice of appointment and subsequent termination of services of the candidate by the appointing authority were to be made. In other words, if action is taken under the rule both the advice and the termination of the appointment must be within one year from the date of the advice and that one year had expired long prior to the initiation of action by the Kerala Public Service Commission in these cases. In the counter affidavit the Public Service Commission explained, by way of justification for its conduct, that resort was made to the conditions in the notification inviting applications. Our attention has been drawn by the learned counsel for the Commission to R.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 Public Service Commission. The terms and conditions in the notification subject to which the applications are invited are only reproductions of the contents of R.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 candidates. These conditions 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 R.3(c) of the Kerala State and Subordinate Services Rules. In this case that would be subject to the limitation in the first proviso and the action if at all taken must be within one year. The learned single Judge has not noticed this aspect of the matter and has dismissed the Original Petitions.

(3.) R.3(c) does not admittedly apply to the case and was not invoked by the Commission because the action taken was beyond the period of one year. If that be so no resort can be made to such action only because the notification refers to the right of the Commission to take such action. As already mentioned such action should necessarily be subject to the provisions of law.