THE KERALA PUBLIC SERVICE COMMISSION v. JAYADEV — 1975 DIGILAW 22 (KER)

JUDGMENT : P. Govindan Nair, J. These Writ Appeals are taken by the Public Service Commission against the common Judgment in O. P. Nos. 1356, 1449 and 1814 of 1972. The petitioners therein had been advised by the Public Service Commission for appointment in the category of Lower Division Clerks. After that advice, the Public Service Commission purporting to act in exercise of their powers envisaged by R.3 (c) in Part II of the Kerala State and Subordinate Services Rules, 1958, for short, the Rules, issued notices to the three petitioners to show cause why the advices of their names for appointments should not be cancelled. At that stage, the petitioners in the three Original Petitions approached this Court for cancelling the show cause notices and Viswanatha Iyer. J., construed R.3 (c) and held that the mistake referred in that sub-rule must be understood as a mistake arising out of some conduct of the candidate whose name was advised. The learned Judge therefore directed that the representations of the three petitioners in the Original Petitions who are respondents to these Writ Appeals must be considered by the appellant, the Public Service Commission, in the light of the interpretation that was placed on the sub-rule by the judgment under appeal. The question arising for decision in these appeals is therefore whether the qualification added to the word 'mistake' in the manner suggested in the judgment under appeal is justified. The rule with the proviso is in these 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." This sub-rule was introduced with effect from 31st July 1969. A plain reading of the rule gives no doubt that the Public Service Commission will 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'. The mistake can therefore be exclusively that of the Public Service Commission. A plain reading of the rule gives no doubt that the Public Service Commission will 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'. The mistake can therefore be exclusively that of the Public Service Commission. The mistakes relied on by the Public Service Commission, as far as can be judged from the facts available before us, in the three cases, also appear to be mistakes arising exclusively from the acts or omissions of the Public Service Commission. There is nothing in the wording of the rule which would justify a limited meaning to be given to the word 'mistake' by limning it to mistakes committed by the Public Service Commission on the inducement of the candidate whose name has been advised. In fact it appears to us that the introduction of any such qualification would amount to a redrafting of the rule so as to change its amplitude and scope. Unless three are compelling reasons as in the case of the rule read as it is in the grammatical sense leading to absurdities or to arbitrariness so patent as to shake the judicial conscience it is not the function of a court to rewrite the rule however harsh it may appear to be The other circumstance in which rules or statutes can be "read down" is by understanding the written word in the light of the subject dealt with and with reference to the content as well as the purposes and objects sought to be achieved by the statute and the evil if any sought to be remedied by the law. In the circumstances expressions in a statute will be understood in the background of the above factors. These principles are not of assistance to the respondents who approached this Court for giving a limited meaning to the word mistake in this rule. We no doubt see that in given circumstances considerable hardship can be caused to persons by the exercise of this rather wide power conferred on the Public Service Commission to change an advice which they had formally and we expect, after due care and attention deemed fit to convey to the authority who has to make the appointment. We no doubt see that in given circumstances considerable hardship can be caused to persons by the exercise of this rather wide power conferred on the Public Service Commission to change an advice which they had formally and we expect, after due care and attention deemed fit to convey to the authority who has to make the appointment. This is particularly so when we find that this power can be exercised within a long period of two years which is the period of probation for fresh appointment by direct recruitment and which period is allowed by the proviso to sub-rule (c) of R.3. If there has been a challenge of this rule before us, we would have had to consider whether the rule could be allowed to stand when it would in normal circumstances have caused or at least given rise to a plausible argument of equitable estoppel; for the power could be exercised long after it had become difficult for the advisee either to sit for a further test to be conducted by the Public Service Commission or after he bad become over-aged. That this is possible has been brought out significantly from the facts of the cases before us for in one of the cases the candidate advised had on the strength of the advice resigned from the post he was holding in order to take up the new appointment and the new appointment in case the advice for the new appointment is cancelled will cease to exist leaving the candidate without having either the earlier job or the new one. It is most essential that such calamitous results should not follow by the exercise of power and it goes without saying that the period during which the power can be exercised must be limited to a far shorter duration from the fairly long period of two years. This we conceive is essential for the equality of opportunity in the matter of employment as far as the service under the State service is concerned, guaranteed by Art.16 of the Constitution. This we conceive is essential for the equality of opportunity in the matter of employment as far as the service under the State service is concerned, guaranteed by Art.16 of the Constitution. We expect that this aspect will engage the attention of Government and appropriate amendments will be made to sub-rule (c) of R.3 read with the proviso thereto in order to meet the ends of justice and to ensure that unnecessary and avoidable hardships which may result from the exercise of power in regard to a mistake committed by the Public Service Commission, long after such mistake had been committed is not cured. It is easy to conceive that within two years many persons can get past the age limit within which an advice should be made by the Public Service Commission and the advice itself might have given rise to a sense of false security preventing those advised from sitting for tests in which they could have participated It is necessary that the Public Service Commission must scrutinise the advice list soon after it is made in all detail to discover the mistake if any committed by the Public Service Commission. This is a debt that they owe to the candidates, and to the general public, and no rule should strike a discordant note in regard to those obligations and duties. We are sending a copy of this judgment through the Advocate-General to the State for necessary and expedient action in this regard. 2. Reverting back now to the question of interpretation of the rule, with great respect, we are unable to agree with Viswanatha Iyer, J., that we would be justified on the ground of hardship to give a content and meaning to the rule, different from its grammatical and literal sense. 2. Reverting back now to the question of interpretation of the rule, with great respect, we are unable to agree with Viswanatha Iyer, J., that we would be justified on the ground of hardship to give a content and meaning to the rule, different from its grammatical and literal sense. The learned Judge has referred to the principles often adopted by the court that it has inherent power to correct its mistakes but such mistakes should be corrected only if no vested rights had intervened in the meanwhile and only when the situations had not altered in a manner which would make it unjust to correct the mistakes thereafter Such a principle should be read into the power of the Public Service Commission as well though that power of the Commission stems from sub-rule (c) of R.3 and that therefore a different meaning must be given to the word 'mistake' in the view taken by the learned Judge. With great respect we cannot agree with this view. It is one thing to say that the Public Service Commission must bear in mind the principle that when vested rights bad accrued as a result of their action they should be wary and should not ordinarily cancel an advice already given and another to say that the word mistake in the rule must be understood in a limited sense. We do not understand the rule as laying down an obligation on the part of the Public Service Commission compelling them to cancel every advice when there has been some mistake committed by them, without any regard whatever to the time that had elapsed between the advice and the discovery of the mistake and without any regard whatever to the consequences of the cancellation of the advice. These are matters which we think can be considered by the Public Service Commission and ought to be considered by them before deciding to cancel or not to cancel the advices. But this is the maximum that a court can do in interpreting the scope and ambit of the rule. These are matters which we think can be considered by the Public Service Commission and ought to be considered by them before deciding to cancel or not to cancel the advices. But this is the maximum that a court can do in interpreting the scope and ambit of the rule. The very fact that the Commission have deemed it fit to issue notices to the candidates already advised to show cause why cancellation should not be effected indicates to our mind that the Public Service Commission wishes to act fairly in the matter and therefore wanted to afford the fullest opportunity to the candidates to place all the aspects of the matter before them and that any action taken by the Public Service Commission would be only after giving the representations from the candidates full and close consideration. This should be done and we feel no doubt that such would be the course that the Commission would be adopting. 3. We dispose of these appeals with the clarification that the mistake in sub-rule (c) of R.3 can be a mistake exclusively arising from the acts or omissions of the Public Service Commission. There will be no order regarding costs.