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Kerala High Court · body

1998 DIGILAW 518 (KER)

Sudarshanan v. KPSC

1998-10-26

A.R.LAKSHMANAN, K.NARAYANA KURUP

body1998
JUDGMENT 1. Heard Mr. Abdul Salam for the appellant. 2. The Writ Appeal is directed against the Judgment of K. S. Radhakrishnan,J. in O. P. 13601 of 1998 dated 27th July 1998 dismissing the Original Petitionfiled by the appellant to call for the records relating to Ext. P-11 order passedby the Public Service Commission and to quash the same and for other alliedreliefs. The learned Judge, on an elaborate consideration of the entirematerials placed before him, came to the conclusion that the Public ServiceCommission has rightly cancelled the advice of appointment in time since theyfound that a person having a higher rank in the main list was overlooked andthe appellant was advised. One Sivaprasad was having rank No. 605 in themain list. He is a physically handicapped person. Therefore, he could not beappointed to the post of Watcher and on the basis of Ext. P1 notification, hecan be considered only for the post of Peon. When a post of Peon in theCooperative Department arose, his claim ought to have been considered.However, due to a mistake, it was not done and the appellant, whose namewas included only in the supplemental list, was advised. Since evidently it is amistake committed by the Public Service Commission, they are bound tocorrect the same and accordingly the Service Commission has rectified themistake committed by them and cancelled the advice given in favour of theappellant. 3. Learned counsel for the appellant argued the matter before us at length.According to him. he was not given a reasonable opportunity by the ServiceCommission and since the procedure contemplated under the Rules has notbeen followed, the order passed by the Service Commission is liable to be setaside. He further contended that the Service Commission has no legal right toterminate his service since the appointing authority was the Registrar ofCooperative Society. Once he was appointed as a last grade servant, hisservice can be terminated only in accordance with R.19 of the Kerala Stateand Subordinate Services Rules (for short 'the Rules'). 4. We are unable to accept or appreciate the contentions raised by learnedcounsel for the appellant. The relevant Rule, which is to be applied in thiscase, is R.3 of the Rules. Once he was appointed as a last grade servant, hisservice can be terminated only in accordance with R.19 of the Kerala Stateand Subordinate Services Rules (for short 'the Rules'). 4. We are unable to accept or appreciate the contentions raised by learnedcounsel for the appellant. The relevant Rule, which is to be applied in thiscase, is R.3 of the Rules. R.3, Part II of the Rules states that all firstappointments to the service shall be made by the appointing authority on theadvice of the Commission in respect of posts falling within the purview of theCommission and in all other cases by the appointing authority from a list ofapproved candidates prepared in the prescribed manner. Clause (b) of R.3says that inclusion of a candidate's name in any list of approved candidates forany service (State or Subordinate) or any class or category in a service, shallnot confer on him any claim to appointment to the service, class or category.Clause (c) of R.3 authorises the Service Commission to cancel the advice forappointment of any candidate to any service notwithstanding anythingcontained in the Rules if it is subsequently found that such advice was madeunder some mistake and on such cancellation, the appointing authority shallterminate the service of the candidate. The first proviso to R.3(c) says that thecancellation of advice for appointment by the Service Commission and thesubsequent termination of service of the candidate by the appointing authorityshall be made within a period of one month from the date of such advice.Second proviso to R.3(c) provides that a cancellation of advice forappointment under that Rule shall be made only after giving the candidateconcerned a reasonable opportunity of being heard in the matter. 5. In this case, immediately after the mistake was found out by the ServiceCommission, they issued a notice under Ext. P-9. Appellant submitted hisobjection to Ext. P-9 under Ext. P-10. Thereafter, Ext. P-11 was passed by theService Commission cancelling the advice for appointment. Thereafter, thethird respondent, under Ext. P-12, has terminated the service of the appellantwithin the period of one year from the date of advice. So, in our opinion, as perR.3(c) of the Rules, the Service Commission has the right to cancel the adviceif the inclusion of a candidate's name in any list of approved candidates for anyservice or any class or category in a service has been done by mistake. So, in our opinion, as perR.3(c) of the Rules, the Service Commission has the right to cancel the adviceif the inclusion of a candidate's name in any list of approved candidates for anyservice or any class or category in a service has been done by mistake. It isalso made clear under clause (b) that inclusion of a candidate's name in anylist of approved candidates for any service or any class or category in aservice shall not confer on the candidate any claim to appointment to theservice, class or category. Therefore, the contention of learned counsel for theappellant that the appointment can be cancelled only as per the procedurecontemplated under R.19 of the Rules cannot at all be accepted. The onlyrelevant Rule which is applicable on the facts arid circumstances of the case isR.3 of the Rules. In the instant case, the Service Commission issued notice ofcancellation immediately after it is found out that the earlier advice was doneby mistake. It is also not the case of the appellant that the cancellation ofadvice for appointment by the Service Commission and subsequenttermination of service of the candidate by the appointing authority have beendone beyond the period of one year from the date of such advice. It is also notin dispute that an opportunity was given to the appellant before cancellation ofadvice and the appellant has also submitted his objections to the same. TheService Commission, on a consideration of the entire materials placed beforeit, cancelled the advice for appointment since the earlier advice was madeunder some mistake. In our opinion, the Service Commission as well as theappointing authority have acted within the framework of R.3 and, therefore, theaction taken by them is in order. No interference is called for with theJudgment of the learned Single Judge. The Writ Appeal, the before, fails and it is accordingly dismissed.