Venkiteswaran v. Public Service Commission — 1992 DIGILAW 30 (KER)

JUDGMENT : Public Service Commission invited applications to the post of Chief (Evaluation Division) in the State Planning Board, as per notification dated 6-7-1988. That notification was published in the Gazette dated 16th August, 1988. Petitioner, a member of the staff of the department, and second respondent, a member of the staff in the Economics and Statistics Department, applied for the post. Petitioner was aged 35 years on the date of application and second respondent was aged 47 years. According to the petitioner, second respondent being over-aged, was not entitled to apply in pursuance to the notification. But, Public Service Commission interviewed the applicants and prepared a ranked list. Second respondent has been assigned rank No.l and petitioner rank No.2. This action of the Commission in assigning rank No. 1 to the second respondent is under challenge. 2. Special Rules governing the service in the State Planning Board, which is known as ‘Kerala State Planning Service’, fix the age limit in the following terms:- “Must not have completed 45 years of age and must have completed 30 years of age on the first day of January of the year in which applications for appointment are invited”. This provision is subject to a Note, which is in the following terms:- “Note:-2.-- The upper age limit for recruitment to the various posts specified under category 2 shall, in the case of any candidate already in the Department including the candidates belonging to the Sch. Castes/Sch. Tribes/Other Backward classes, be 50 years”. Second respondent, according to the petitioner, being not a candidate already in the Department is not eligible to apply in pursuance to the notification issued by the Public Service Commission because he has completed the age of 45 on 1-1-1988. 3. Detailed counter affidavits have been filed on behalf of the Public Service Commission and the State. Second respondent has also filed a detailed counter affidavit. The stand taken by the Public Service Commission in their counter affidavit is as follows:-Notification for the post was issued in accordance with the qualifications and age limit laid down by the Special Rules. 3. Detailed counter affidavits have been filed on behalf of the Public Service Commission and the State. Second respondent has also filed a detailed counter affidavit. The stand taken by the Public Service Commission in their counter affidavit is as follows:-Notification for the post was issued in accordance with the qualifications and age limit laid down by the Special Rules. The contention of the; petitioner is that second respondent has been working as Deputy Director in the Western Ghats Cell of the Planning and Economic Affairs Department of the Government Secretariat and hence the age relaxation application to the candidates who are in the service of the State Planning Board cannot be granted to him. Second respondent was not within the age limit. In column 10 of the application, in answer to the question whether he is eligible for relaxation of upper age limit and the ground for relaxation, second respondent stated that he is eligible for age relaxation on the ground that he is working in the Planning and Economic Affairs Department, Government Secretariat, which is stated to be the Administrative Office of the Planning Board. His application carried two defects,- (i) Experience in research work claimed, but not proved; and (ii) Eventhough he had claimed age relaxation, he did not produce proper proof to establish that he is a departmental candidate. Second respondent submitted a representation stating that he was working in the Planning and Economic Affairs Department and that upper age relaxation applicable to the officers of the State Planning Board may be made applicable to him also, since administratively State Planning Board comes under the Planning Department. An experience certificate issued by the Secretary to Government, Planning and Economic Affairs Department was also furnished. Subsequently the question of eligibility for age relaxation was examined in detail in consultation with the Government. As the result of this detailed examination, a conclusion was arrived at that the word “Department”, used under Note 2 under item-6, namely ‘age limit’, can be considered as “any Department of Government”. On this basis, his application was considered. 4. At the time of argument, learned Standing Counsel representing the Commission made available to Court the Minutes of the meeting of the Chairman of the Commission with the Commissioner and Secretary, Planning. On this basis, his application was considered. 4. At the time of argument, learned Standing Counsel representing the Commission made available to Court the Minutes of the meeting of the Chairman of the Commission with the Commissioner and Secretary, Planning. It reads as follows:- “The Upper age limit for recruitment to the post in the case of any candidate already in department including the candidate belonging to Scheduled Caste/Scheduled Tribe/Other Backward Communities shall be 50 years according to Gazette Notification. The case of Sri. R. Parameswaran Nair has been examined and arrived at a conclusion that the word ‘Department’ can be considered as any Department of Government and as such the application of Sri. Parameswaran Nair can be accepted”. 5. On behalf of Government, a Section Officer in the Planning and Economic Affairs Department, Secretariat has sworn to a counter affidavit. The averments made therein are to the following effect.-Second respondent belongs to the Department of Economics and Statistics. He has been working as Joint Director of the Western Ghat Cell of the Planning and Economic Affairs Department of the Secretariat. There are separate special Rules for the Department of Economics and Statistics and for the State Planning Board service. However, both these Departments come under the control of the Planning and Economic Affairs Department. Description of ‘Government Department’ is contained in Rules 4 and 6 of the Rules of Business of the Government of Kerala. In Part II First Schedule of the Rules of Business, Department of Economic and Statistics an 1 State Planning Board are both listed under ‘Planning and Economic Affairs Department’. Therefore, an Officer of the Department of Economics and Statistics is eligible for age relaxation, contemplated in the prescribed qualifications laid down in the Special Rules issued by Government. Hence second respondent also is eligible for relaxation of age limit for consideration of his application. 6. Second respondent in his counter affidavit has reiterated the contentions raised on behalf of the State and the Public Service Commission. 7. Rule 4 of the Rules of Business of the Government of Kerala, Part I, states that the Business of the Government shall be transacted in the Departments specified in the First Schedule, and shall be classified and distributed between those departments as laid down therein. Part II of the Rules of Business gives the various departments in the First Schedule thereto. Part II of the Rules of Business gives the various departments in the First Schedule thereto. Item No.21 is Planning and Economic Affairs Department. Planning and Economic Affairs Department has been sub-divided into 20 Groups, Group-16 being State Planning Board. On the basis of these provisions, it is argued that State Planning Board is a wing of the Planning and Economic Affairs Department and so, the members of the staff in Planning and Economic Affairs Department should be treated as candidates of the Department in relation to State Planning Board as well. This argument appears to be quite attractive. But on a closer scrutiny, I find it difficult to accept the same. 8. Rules of Business of the Government of Kerala Part II gives the list of Departments as first Schedule. Item-I therein is Agriculture Department. Agriculture Department in Secretariat has control over Agriculture Education and Research; Agriculture Directorate and Programmes; Public Enterprises and Commodities Boards; Animal Husbandry and Dairy Development. This will not make a member of the staff of Animal Husbandry Department a member of the staff of Agriculture Directorate or Dairy Development. So also Labour and Rehabilitation Department in Secretariat has control over Department of Labour, Department of Employment and Training, Factories and Boilers and Insurance Medical Services. On account of this, a member of the staff of the Department of Insurance Medical Service will not be treated as a member of the staff of the Department of Labour or Department of Factories and Boilers. Similarly the Planning and Economic Affairs Department in the Secretariat is the administrative department of Department of Economics and Statistics and the Department of State Planning Board. Consequently the member of the staff of one department cannot claim to be the member of the staff of the other Department. State in the Counter affidavit has admitted that the State Planning Board and Department of Economics and Statistics are two separate and distinct departments. By G.O.MS.48 dated 7-11-1974, Government made the State Planning Board a permanent Department. Members of the staff of Planning and Economic Affairs Department were drafted to the new Department. G.O.M.S.59/74/Plg. dated 28-12-1974 stated as follows:- “In G.O.M.S.No.48, Planning and Economic Affairs Department dated 7-11-1974 orders have been issued making the State Planning Board a permanent Department of Government. By G.O.MS.48 dated 7-11-1974, Government made the State Planning Board a permanent Department. Members of the staff of Planning and Economic Affairs Department were drafted to the new Department. G.O.M.S.59/74/Plg. dated 28-12-1974 stated as follows:- “In G.O.M.S.No.48, Planning and Economic Affairs Department dated 7-11-1974 orders have been issued making the State Planning Board a permanent Department of Government. The posts indicated in Annexure-I to this G.O. sanctioned for the Planning Board are now treated as additions to the corresponding cadre of the posts in the Bureau of Economics and Statistics. Government are now pleased to order that these posts will cease to be temporary addition to the corresponding cadre of posts in the Bureau of Economics and Statistics with effect from 7-11-1974, the date on which the State Planning Board was made permanent”. From this, it is abundantly clear that a new Department, known as “State Planning Board” came into existence in 1974 and it is independent of the Planning and Economic Affairs Department. 9. It is common case that the Department of Economics and Statistics is different and separate from the Department of State Planning Board. This fact is admitted in the counter affidavit filed on behalf of the State. Special Rules governing the Kerala State Planning Service applies to the service in the State Planning Board. Appointment to posts mentioned in Category-2 of the Special Rules is by Direct Recruitment. In fixing the age for Direct Recruitment, it is provided that candidate must not have completed 45 years of age on the first day of January of the year in which applications for appointment are invited. Relaxation of age is provided in Note-2. As per that, relaxation is given to any candidate already in the Department. The Department mentioned in Note-2 can only refer to the State Planning Board. As per ‘Chambers 20th Century Dictionary’, word “the” means “called the definite article, used to denote a particular person or thing”. When that word is used before the word Department, with reference to which an application is invited, it can only mean that particular department, namely the State Planning Board. Notification issued by the Public Service Commission specifically named the Department as State Planning Board. It is with reference to that Department, the candidate should have been in service. When that word is used before the word Department, with reference to which an application is invited, it can only mean that particular department, namely the State Planning Board. Notification issued by the Public Service Commission specifically named the Department as State Planning Board. It is with reference to that Department, the candidate should have been in service. .The Note-2, regarding the relaxation of the age, cannot relate to any candidate not already in the service of the State Planning Board. When the meaning of the Rule is specific, this Court is not to look into other materials to widen the scope of the Rule. This Court is not to venture into legislation. At this juncture, it is worthwhile to quote the following observations made by Their Lordships in Union of India v. Deoki Nandan Aggarwal, ( AIR 1992 S.C. 96 ). “It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous.The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to it said to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoice judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities”. 10. Since the Special Rules governing the service is clear and unambiguous, I do not think it necessary to refer to the Rules of Business of the Government of Kerala Part I, Part II or to the Minutes of the meeting of the Chairman of the Public Service Commission and Secretary to Government. In this view of the matter, Public Service Commission was clearly in error in considering the application of the second respondent for the post. He was over-aged on the date of the application. In this view of the matter, Public Service Commission was clearly in error in considering the application of the second respondent for the post. He was over-aged on the date of the application. So, his application ought to have been rejected at the threshold. Rank No. l assigned to him for appointment to the post of Chief (Evaluation Division) in State Planning Board is illegal and I quash the same. Public Service Commission will advice the candidate, who is next in the . ranked list, for filling up the vacancy in the State Planning Board without any delay. Original Petition is disposed of in the above terms. Issue photo copy of the judgment to the parties on usual terms.