STATE OF KERALA Vs. BALAN

JUDGEMENT

(1.) THIS is an appeal by the State against the judgment of a learned Judge who allowed the Writ Petition by the 1st respondent and directed his appointment "in the next available vacancy as Excise Inspector " ;.The respondent was selected by Ext.P -1 memo dated 1st July 1974.The memo itself stated that the selection was subject to R.3(c)of the Kerala State and Subordinate Service Rules,1958 and subject to satisfactory proof of health and whatever further checking Government may find it necessary to do.By Ext.P -2 memo dated 17th February 1975 the 1st respondent was informed by the Public Service Commission that the advice for his recruitment as Excise Inspector by Ext.P -1 letter of the Commission was cancelled.This had been preceded by Ext.P -3 dated 25th January 1975(referred to in Ext.P -2)by which the 1st respondent was informed by the Government that his selection could not be given effect to as on verification under R.10 of the Kerala State and Subordinate Service Rules,his character and antecedents were found to be unsatisfactory.The learned Judge did not expressly quash Ext.P -3;but quashed Ext.P -2,and directed the 1st respondent's appointment as noted earlier.Briefly stated,the learned Judge's view was that it was only when the advice was sent under some misunderstanding that the Public Service Commission can cancel the advice;and while so cancelling,the Commission should act in accordance with the principles of natural justice and hear the party concerned.In regard to Ext.P -3 although the learned Judge did not in express terms declare it illegal or quash it,there can be little doubt that the learned Judge was discussing Ext.P -3 order in Para.7 of his judgment.There the learned Judge referred to R.10(b )(iii)of the Kerala State and Subordinate Service Rules and was of the view that there should be proper materials before the Government for taking action under the rule and holding that a person had to be discharged from service.The learned Judge noted that the assessment of the 1st respondent's character and antecedents had been based on the report of the Accountant General under whom the 1st respondent had been previously employed and who had terminated his service under R.5 of the Central Civil Services(Temporary Service)Rules,1965.This termination was not on the basis of any misconduct,and would not cast.any stigma on the 1st respondent.To take such action into account on the report of the Accountant General that the 1st respondent was participating in the activities prejudicial to the smooth and orderly running of the Government administration,without affording him an opportunity for explanation,was unfair and illegal,and violative of the principles of natural justice.Such was the learned Judge's view.

(2.) WE shall quote R.3(c)and R.10(b )(iii)and Note 2 thereof,as those are material rules for the purpose of this case. "R.3(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 or such cancellation the appointing authority shall terminate the service of the candidate: 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 the period of probation of the candidate. The provisions in this sub -rule shall be deemed to have come into force on the 31st July 1969 " ;. "Qualifications:10(6)No person shall be eligible for appointment to any service by direct recruitment,unless - (i)* * * * (ii)* * * * (iii)the State Government are satisfied that his character and antecedents are such as to qualify him for such service: Provided that,before the Government are satisfied of the character and antecedents of a person selected/advised for appointment by direct recruitment,the appointing authority may appoint him/her temporarily under clause(i)of sub -r.( a)of R.9 of these rules subject to the condition that his/her appointment shall be terminated without notice if Government are not satisfied of his/her character and antecedents on subsequent verification and that he/she shall be eligible for appointment:in regular service in accordance with the Rules only if his/her character and antecedents are found satisfactory on subsequent verification. Note:( 1)* * * * Note:( 2)The appointing authorities shall get the necessary details for verification of character and antecedents of the candidates advised by the Commission from the candidates themselves before they are allowed to join duty and the appointing authorities shall obtain the reports on the verification of character and antecedents of the candidates so advised within a period not exceeding six months from the date of joining duty of the candidates " ;.

(3.) THE question is whether R.10(b )(iii)of the rules quoted above violates Art.16 or Art.311 of the Constitution,or the principles of natural justice The rule is applicable to all persons alike,without distinction;and it does not,to our mind,spell a violation of Art.16 But the reasoning which is reflected in the judgment of the learned Judge is that if a person were to be ousted without being afforded an opportunity to show cause,the rule is likely to be used to perpetuate favouritism or victimisation by the Government.But it is well settled that mere prospect of abuse of a statutory provision is no ground to strike down the provision itself.( Vide Pannalal's case AIR 1957 SC 397 ).Individual cases of abuse or victimisation can be struck down.