Jayadev v. Kerala Public Service Commission — 1973 DIGILAW 111 (KER)

JUDGMENT G. Viswanatha Iyer, J. 1. All these petitions relate to a common question, viz., the scope of the power of the Public Service Commission to cancel advices tendered by it for appointment of these petitioners in various Departments. 2. Petitioner in O. P. No. 1356 of 1972 is an L. D. Clerk in the office of the Executive Engineer, Irrigation Division, Malampuzha. On the advice of the Public Service Commission he was first appointed by the Superintending Engineer, Calicut, as an L. D. Clerk on 6-5-1971 and he is continuing in that post undergoing probation. He has got the minimum qualification prescribed under R.10 of the Kerala State and Subordinate Services Rules to hold the post of an L. D. Clerk to which he has been selected. Before tendering the advice the Public Service Commission conducted a selective test for L. D. Clerks on 5-8-1970. The petitioner was admitted to that test. The ranked list of candidates selected by the Public Service Commission was published in the Gazette and the petitioner's rank is No. 177. That list came into force on 1-1-1971. By letter dated 10-3-1971 the Public Service Commission advised the petitioner for recruitment as L. D. Clerk in the Public Works Department. It is in pursuance to this that the Superintending Engineer, Calicut, appointed the petitioner as L. D. Clerk on 6-5-1971. The appointment order is produced in this case as Ex. P2. Subsequently he was allotted to Trichur Unit and posted as L. D. Clerk in the office of the Executive Engineer, Malampuzha. He received a communication dated 15-2-1972 from the Public Service Commission to show cause why his advice should not be cancelled. It is alleged in that show cause notice that on inspection of the ranked list published in the Gazette dated 22-6-1971 it is seen that petitioner had obtained only 72 marks as against 80 marks prescribed and therefore the inclusion of the petitioner in the ranked list and subsequent advice to recruitment was made by mistake. A copy of that show cause notice is produced in this case as Ex. P4. Petitioner has submitted a reply on 25-2-1972. A copy of that show cause notice is produced in this case as Ex. P4. Petitioner has submitted a reply on 25-2-1972. In that reply the petitioner questioned the jurisdiction of the Public Service Commission to issue such a notice and he also asked for certain particulars regarding the basis of selection, the mark obtained by the last person in the select list, and the rule under which the minimum mark was fixed. But the petitioner has not so far been furnished with those particulars and therefore apprehending that he may not be furnished with those particulars and at the same time his advice may be cancelled, he has approached this Court for relief. In the notice it is also mentioned that the recruitment would be cancelled if satisfactory explanation is not offered on the show cause notice. The petitioner contends that the Public Service Commission has no jurisdiction to cancel the recruitment. It is no part of the function of the Public Service Commission to recruit. It can only tender an advice. These are in brief his allegation. 3. The Public Service Commission has filed a counter affidavit in answer to this petition. In the counter affidavit it is admitted that the petitioner submitted his application in pursuance of the notification inviting applications for selection to the post of Lower Division Clerks on Rs. 90-190 in the various Departments. A test was conducted on 5-8-1970, the petitioner was admitted to that test and the ranked list was published on 1-1-1971. It is further stated that on receipt of the answer papers of all the candidates who wrote the test, the answer papers were sent for valuation only after allotting false numbers to them so that neither the candidates nor the examiners or others interested could locate the answer books of any particular candidate. After receipt of the mark list the false numbers were decoded and the marks entered against the original admission numbers given to the candidates. Some mistake happened in the decoding and as a result, against the petitioner's admission ticket number the mark obtained by another candidate is seen to have been entered and the final selection list prepared on the basis. This was noticed only subsequently and that is the reason why Ex. Some mistake happened in the decoding and as a result, against the petitioner's admission ticket number the mark obtained by another candidate is seen to have been entered and the final selection list prepared on the basis. This was noticed only subsequently and that is the reason why Ex. P4 show cause notice was issued in exercise of the powers under R.3(c) of the Kerala State and Subordinate Services Rules to show cause why the advice should not be cancelled. 4. In O. P. No. 1449 of 1972 the petitioner alleged that on the advice of the Public Service Commission he was appointed as a Cleaner in the Kerala State Road Transport Corporation and while he was so working on a regular basis, on seeing the notification of the Public Service Commission inviting applications for the post of Lower Division Clerks in the N.C.C. Department published in the Gazette dated 30-12-1969 petitioner applied. He has the minimum qualification prescribed for the post, namely S.S.L.C. or equivalent examination. As per the notification only Exservice men can apply and that qualification is also possessed by him. On 17-7-1971 he received a selection memo from the Respondent, a copy of which is produced as Ex. P2 In that it was mentioned that he has been selected for appointment as Lower Division Clerk in the N.C.C. Department. Later, he was appointed by the N.C.C. Directorate as a Lower Division Clerk in that Department and on receipt of that appointment order he resigned his post in the Kerala State Road Transport Corporation and reported before the Commanding Officer I Kerala Naval Unit, Durbar Hall, Ernakulam, on 1-9-1971 and joined the service. While he continued in that post he received a show cause notice dated 15-2-1972 from the Public Service Commission and the ground stated in the notice is that he had not appeared for written test conducted by the Respondent and the inclusion of his name in the select list was due to a mistake. The petitioner has submitted an explanation stating that the notification inviting applications did not mention about any written test or interview and he was not aware of the conduct of any written test and he had not been required at any stage to appear for any written test and he cannot be penalised for any omission or mistake in the office of the Public Service Commission. He further alleged that on the basis of the appointment order he resigned his post in the Kerala State Road Transport Corporation and he will be put to great hardship and loss if for no fault of his the advice and the appointment as Lower Division Clerk are cancelled. To this also the Public Service Commission has filed a counter affidavit. All the facts alleged in the petition are admitted and it is further alleged that the mistake in decoding the numbers and entering the marks against the numbers of the candidates who appeared for the test was the reason which occasioned the inclusion of the petitioner's name in the select list. As he did not appear for the test he is not eligible for inclusion in the select list at all. It is further alleged that a selective test was mentioned in the notification. The averments in the petition that the petitioner was employed elsewhere and he resigned his job after being selected and appointed in the N.C.C. Department is not known to the Public Service Commission and therefore there is no substance in the plea of estoppel raised by the petitioner in his original petition. The test on 5-8-1970 was notified in the Gazette dated 28-7-1970 and if the petitioner had not received any admission ticket that is not the fault of the Public Service Commission. He should have contacted the Secretary of the Respondent and obtained the hall ticket to sit for the examination. The conduct of the test was also published in the dailies and there was a notice in the "Kerala Kaumudi" dated 26-7-1970 that the test would be conducted for selection on 5-8-1970. Therefore the Respondent opposed the petition. 5. The petitioner in O. P. No. 1814 of 1972 is now working as a Lower Division Clerk in the office of the Commissioner of Police, Trivandrum. Public Service Commission invited applications for appointment of Lower Division Clerks. Petitioner applied. She wrote the test held on 5-8-1970 and the ranked list of the candidates selected was published in the Gazette dated 22-6-1971 and her rank is 916. Before the publication of the said list the Public Service Commission again invited applications for appointment as Lower Division Clerks and the petitioner again applied. She was asked to appear for a selective test on 18-2-1971. Before the publication of the said list the Public Service Commission again invited applications for appointment as Lower Division Clerks and the petitioner again applied. She was asked to appear for a selective test on 18-2-1971. But, before the receipt of the admission ticket she got an appointment order as Lower Division Clerk in pursuance to the selection made under the earlier notification and test held on 5-8-1970 and therefore she did not appear for the test on 18-2-1972. She got a memo from the Public Service Commission on 14-7-1971 intimating her that she has been selected for appointment as Lower Division Clerk in the Police Department. On 2nd of August, 1971 the Inspector General of Police issued the appointment order appointing her as Lower Division Clerk in the District Police Office, Cannanore, and copy of that order is produced as Ex. P2 and she is continuing in that post on probation. While she is thus continuing, she has received a communication dated 15-2-1972 stating that on verification of the ranked list published in the Gazette dated 22-6-1971 the petitioner had received only 68 marks as against 80 marks required and therefore the inclusion of the petitioner's name in the ranked list and the subsequent advice for recruitment in the Police Department were made by mistake. The notice therefore directed her to show cause why the advice of recruitment should not be cancelled. Here also the petitioner had submitted an explanation against the show cause notice. Copy of that is produced in this case as Ex. P7. She has stated in that that by her accepting this job she did not write the subsequent test and she has lost all chances to apply for appointment now and the Public Service Commission is estopped from contending that the advice given for her appointment is not correct. The petitioner therefore prayed to the Public Service Commission to drop all the proceedings pursuant to the show cause notice. But she apprehends that without considering her explanation and without properly understanding the scope of the powers of the Public Service Commission the advice and her appointment may be cancelled and therefore she has approached this Court for relief. To this also the Public Service Commission has filed a counter affidavit. Therein the same stand is taken by the Public Service Commission. To this also the Public Service Commission has filed a counter affidavit. Therein the same stand is taken by the Public Service Commission. The mistake is stated to have occurred in the office of the Public Service Commission in decoding the false numbers and entering the marks obtained by each candidate against their true numbers and this was detected only subsequently and the Public Service Commission takes the stand that it is competent under R.3(c) of the Kerala State and Subordinate Services Rules to cancel the advice tendered by it because there was a mistake in tendering the advice. 6. The show cause notices issued in all the cases are similar in nature and give the same reason, viz., that some mistake occurred in the office of the Public Service Commission in decoding the false numbers given to the answer paper of petitioners and entering the marks obtained by them as against their true numbers and this mistake having been found out only subsequently the Public Service Commission is entitled to take action for cancellation of the advice under R.3(c) of the Kerala State and Subordinate Services Rules. R.3(c) is in the following terms: "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: 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). The validity of the rule is not questioned in these cases. The petitioners have come to this Court seeking a writ of prohibition against the Public Service Commission to restrain it from proceeding with the matter on the basis of the show cause notice issued by it. Though the rule does not require any show cause notice to be issued, the Public Service Commission was well advised in issuing a show cause notice on the proposed action. Though the rule does not require any show cause notice to be issued, the Public Service Commission was well advised in issuing a show cause notice on the proposed action. No doubt, if they make any cancellation, the appointing authority has to terminate the appointment which means these persons will be rendered jobless and put to very serious hardship and loss. Therefore, the action proposed being of such a nature that it will have serious civil consequences, the Public Service Commission was in order in issuing a notice mentioning the grounds on which they proposed to take action. In all cases where, on the basis of the advices, appointments have been made, before any step is taken to cancel the advices the Public Service Commission is bound to observe the principles of natural justice. In the notices issued to these petitioners on the same day an identical ground is stated in all of them, viz., the mistake occurred in the office of the Public Service Commission in tendering the advice. It is not alleged that the petitioners have any hand in this mistake happening. The petitioners also cannot make out that there might not have been any mistake. So, the facts stated in the show cause notices may not be proved to be incorrect by the explanations which these petitioners have submitted. They have only, stated how on the faith of these advices and appointment they have so conducted themselves and that it will not be possible for them to compete for any fresh examination that may be conducted by the Public Service Commission on account of their overage. In one case it has also been stated that on the faith of the advice and appointment the petitioner resigned from another job obtained by him on the advice of the Public Service Commission and that if this advice is cancelled he will lose this also which will be very prejudicial to him. In such circumstances how far the petitioners can claim to prohibit the Public Service Commission from proceeding in the matter at this stage is the first question that has to be examined. 7. The petitioners relied on the decision of the Supreme Court in East India Commercial Co. v. Collector of Customs ( AIR 1962 SC 1893 ). In that case proceedings were initiated under S.167(8) of the Sea Customs Act. 7. The petitioners relied on the decision of the Supreme Court in East India Commercial Co. v. Collector of Customs ( AIR 1962 SC 1893 ). In that case proceedings were initiated under S.167(8) of the Sea Customs Act. The statute did not provide for the issue of any notice, but in spite of it the authorities under the Sea Customs Act issued a notice. The notice was not laconic, it was a speaking one clearly specifying the alleged ground of contravention for which the proceedings were initiated. It was contended that a writ of prohibition cannot be issued to the Customs authorities because there was no contention in that case that the Customs authorities had no jurisdiction to proceed in the matter. Noticing that contention their Lord ships observed in Para.26 thus: "A writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise:................... " and in Para.27 thus: "If on a reading of the said notice, it is manifest that on the assumption that the facts alleged or allegations made therein were true, none of the conditions laid down in the specified sections was contravened, the respondent would have no jurisdiction to initiate proceedings pursuant to that notice. To state it differently, if on a true construction of the provisions of the said two sections the respondent has no jurisdiction to initiate proceedings or make an inquiry under the said sections in respect of certain acts alleged to have been done by the appellants, the respondent can certainly be prohibited from proceeding with the same. We, therefore, reject this preliminary contention". From this decision it can be seen that if the proceeding is contrary to the laws of the land or the facts disclosed in the notice do not constitute a ground coming within the scope of the rule under which the action is proposed, the Court can prohibit the authority from proceeding with the same. In a case where excess of jurisdiction is anticipated a writ of prohibition is generally issued. In a case where excess of jurisdiction is anticipated a writ of prohibition is generally issued. In these cases the petitioners' contention is that the grounds stated in the notices do not constitute the ground of "some mistake" mentioned in R.3(c) of the K. S. & S. R. for taking cancellation proceedings. Therefore, if on a fair interpretation of the R.3(c) the facts stated in these notice cannot come within the scope of "mistake" or do not enable the Commission to take action on account of other facts which have resulted from the original advice and appointment, it may be open to the petitioners to claim a writ of prohibition against the Commission from proceeding with show cause notice. 8. This leads me to the consideration of the second question namely whether the Public Service Commission has got the necessary power in these cases to cancel the advices. The rule only says that notwithstanding anything contained in the other rules the Commission shall have 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. The term "mistake" is an expression of wide import. Any error in the process of assessment of the merit of the candidate can be a mistake. In some cases the Commission may commit mistakes as a consequences of or referable to the conduct of the candidate either directly or indirectly. The candidate may have given wrong particulars, he may have given false certificates, or he would have in any other way contributed to the decision by the Commission and an advice would have been tendered for appointment. But for these incorrect particulars or the conduct of the candidate the Commission would not have chosen to include his name for advice. If the Commission subsequently comes to know this, certainly it will be justified in taking steps to cancel the advice. But, in a case where the mistake, if any, has been committed by the Commission without the candidates being in any way responsible and if on the basis of the advice and appointment the candidates have so altered their position then any termination of their appointment will not put them in the original position in which they were before the advice and appointment, and it will be a very serious step for the Commission to take. The mistake has occurred on account of the carelessness or negligence on the part of the Commission. To construe the word "mistake" so as to take in these cases also and allowing the Commission to cancel the advices will be really putting a premium to the incompetence of the Commission in the assessment of the merits of the candidates who applied for examination. May be that mistake may happen to anybody and if any correction of this mistake will not in any way prejudice the candidate, certainly the Commission may be entitled to confess their mistake and cancel their advice. But, if the candidates have altered their position in such a way that it may not be possible for restoring them to the original position, it will be a very inequitable and inexpedient exercise of the power to cancel an advice. Even in Courts if any mistake is committed the Courts are allowed to correct their mistakes. But even there judicial decisions are to the effect that if third party's rights have intervened or it is inequitable or inexpedient to permit the correction of the mistake, the Court will not be permitted and the Court will not exercise its power of correcting a mistake. This proposition is very well settled. In the leading case of Henry William Hatton v. Hugh Harris (1892 SC 547) Lord Watson stated the law thus: "When an error of that kind has been committed, it is always within the competency of the Court, if nothing has intervented which would render it inexpedient or inequitable to do so, to correct the recorded in order to bring it into harmony with the order which the judge obviously meant to pronounce". This principle has been followed in India also in large number of cases. The scope of the power of the Government to rectify its own mistake was considered by the Travancore Cochin High Court in Bhaskaran Nair v. The State (ILR 1956 TC 1213) and Varadaraja Iyengar J. stated the law thus at pages 1223 and 1224: "It is not unlikely, indeed it is inevitable that mistakes will occur, in various ways, in the day to day carrying on of the welter of activities as above. It seems to us that to deny a power to make good such mistakes as may occur will not conduce to the general good but will rather contribute to the perpetration of anomalies. At the same time such power cannot be unfettered but must be subject to limitations, e.g., where vested rights have arisen by virtue of prior order and principles of equitable estoppel may come in for application. Cf. Registerary v. Sundara (AIR 1956 Madras 309). Long lapse of time or impossibility in the matter of restitution may again preclude reconsideration. It will be difficult if not impossible to catalogue the restrictions or limitations in connection with the exercise of this power of review or reconsideration or rectification, whatever you may call it, and we there fore do not attempt to do so". This decision was approved by a Division Bench of this Court in O. P. No. 3760 of 1970 decided on 22-12-1972. 9. As I said earlier, mistakes may occur. But every mistake may not be made use of to cancel the advice. The rule itself allows the power 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. That 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. Likewise, in R.3(c) a limitation should be read into the power to cancel, it will be an arbitrary exercise of that power if the mistake has not been occasioned by the candidate and on the faith of the advice the candidate has been appointed and it may not be possible to restore him to the position which he occupied previous to the advice if cancellation of it is made. Similarly, if the candidate is not at all responsible for the mistake committed by the Commission, the exercise of the power of cancellation and as a consequence the termination of the appointments will be very unreasonable. In what all cases the power can be exercised even if there is a mistake is a matter which must be carefully examined by the Commission before they think of cancelling the advice. If the cancellation is arbitrary or unreasonable, certainly it will be an illegal or excessive exercise of the power which this Court can always supersede. In what all cases the power can be exercised even if there is a mistake is a matter which must be carefully examined by the Commission before they think of cancelling the advice. If the cancellation is arbitrary or unreasonable, certainly it will be an illegal or excessive exercise of the power which this Court can always supersede. Therefore, in all these cases the Commission will have to examine whether in the light of the observations mentioned above the petitioners are in any way responsible for the mistake alleged to have been committed and if they are not responsible and it is satisfactorily proved that other rights and claims of the petitioners will be affected by the cancellation of the advice, the Commission will have to consider whether the exercise of the power of cancellation will be justified. This is a matter for the Commission to decide on the facts in each case. Therefore, I direct the Respondent to consider the cases of these petitioners individually in the light of the observations made above and dispose of the proceedings initiated by the show cause notice against them. 10. The original petitions are disposed of as above. There will be 110 order as to costs.