Pradeep Kumar v. Mohanan — 1998 DIGILAW 586 (KER)

Judgment :- Om Prakash, C.J. The short question for consideration in this appeal filed by the appellants (respondent Nos. 4 and 5 in O.P. No. 15483/92) is : whether they could be asked to vacate the post of Technical Assistant (Khadi) after about seven years of service on the ground that some mistake was discovered by the Kerala Public Service Commission (respondent No. 3 in O.P. - hereinafter referred to as the Commission) in their selection. 2. The Commission invited applications for selection to the post of Technical Assistant (Khadi) and Khadi Development Officer in the Kerala Khadi and Village Industries Board. The qualification prescribed for the above posts, as per the notification were as follows: (i) Pass in SSLC or equivalent, (ii) Diploma in Textile Technology recognised by the Government of Kerala and (iii) Successful completion of training in Khadi Spinning and Weaving in any of the training centres recognised by the Khadi and Village Industries Commission or Kerala Khadi and Village Industries Board for conducting such training. It is also made clear that in the absence of candidates possessing all the three qualifications, the candidates possessing the first two qualifications will be selected for appointment. The petitioner, respondent Nos. 4 and 5 and others submitted their applications for selection. After an interview, the Commission prepared two rank lists. Respondent Nos. 4 and 5 were placed in the first rank list and the petitioner and others were included in the second rank list. Respondent Nos. 4 and 5 (appellants herein) were included in the first rank list for the reason that according to the Commission, they possessed all the three qualifications prescribed in the notification. The persons included in the second rank list possessed only the first two qualifications. Appellants were appointed to the post of Technical Assistant (Khadi). By Ext. P1 letter addressed by the Commission to the Secretary, Kerala Khadi and Village Industries Board informed as under: "Sri. Pradeep Kumar K.S. and Sri. R. Thulaseedharan Pillai were two candidates for the above posts. The documents both the candidates produced to prove the training qualifications were those issued by the Chavara Block Khadi Producers Industries Co-operative Society Ltd. No. C TND (QV 152. Thevalakkara P.O.. (Quilon District. In the certificate it has been stated that the society has been certified by the Khadi and Village Industries Commission. The documents both the candidates produced to prove the training qualifications were those issued by the Chavara Block Khadi Producers Industries Co-operative Society Ltd. No. C TND (QV 152. Thevalakkara P.O.. (Quilon District. In the certificate it has been stated that the society has been certified by the Khadi and Village Industries Commission. The name of both the above candidates were thus included in the ranked list for the post of Technical Assistant after due process of selection and were advised for appointment on 18.2.1991. The question of admissibility of the Training qualification possessed by these candidates was raised at the time of interview for the post of Development Officer (Khadi) in the Kerala Khadi and Village Industries Board during March, 1991 for which the qualification of training fixed is the same and the matter was got clarified from Khadi and Village Industries Commission and Kerala Khadi and Village Industries Board that the training undergone by the two candidates was not acceptable and so they were not considered for appointment as Development Officer (Khadi) the selection to which was finalised later. S/Sri. K.S. Pradeepkumar and Thulaseedharan Pillai are found to be not qualified for the post of Technical Assistant. But they were advised for appointment to the above post on 18.2.1991. The Commission is not in a position to invoke R.3(c) of the General Rules in their cases since one year limitation has elapsed". (emphasis supplied) 3. Respondent No.1 petitioner prayed in the Original Petition that respondent No. 2 be directed to terminate the service of the appellants as Technical Assistants (Khadi) forthwith as their appointment made by the Commission was purely under mistake. The learned single judge held that the Commission was misled by the certificate issued by the Chavara Block Khadi Producers Industries Co-operative Society, who wrongly stated that the same had been certified by the Khadi and Village Industries Commission. In fact the said society was not certified by the Khadi and Village Industries Commission and therefore, the learned single judge took the view that the training qualification was not fulfilled by respondent Nos. In fact the said society was not certified by the Khadi and Village Industries Commission and therefore, the learned single judge took the view that the training qualification was not fulfilled by respondent Nos. 4 and 5 (appellants) and, therefore, the advice by the Commission for their appointment as Technical Assistants (Khadi) was purely a mistake, which the Commission was entitled to cure by cancelling their selections even beyond one year, inasmuch as the members of the staff of the Kerala Khadi and Village Industries Board are governed by the Staff Regulation, 1967, which is a special enactment governing the conditions of service of the staff of the Kerala Khadi and Village Industries Board and not by the Kerala State and Subordinate Services Rules, 1958 which are general statutory rules. The learned single judge held that the former, being the special enactment, shall apply in preference to the latter. This is how the learned single judge having regard to the provisions contained in Clause 16 of the Kerala Khadi and Village Industries Board Regulations, 1967, directed the Commission to take appropriate action for cancelling the selection of respondent Nos. 4 and 5 (appellants). 4. Learned counsel for the appellants submits before us that the appellants are not responsible in any way for the wrong certificate issued by the Chavara Block Khadi Producers' Industries Co-operative Society on the basis of which the Commission believed that the appellants had possessed the required qualifications as well. It is submitted by counsel for the appellants that the appellants had successfully completed seven years service in the post of Technical Assistants (Khadi) and that the Khadi and Village Industries Board had no complaint against their efficiency, experience and service. It is, therefore, submitted that the appellants should not be made to suffer for no fault of them and if they are ousted from service after seven years, they would suffer irreparable loss, inasmuch as by passage of time they are rendered ineligible to apply and compete for any other service. The appointment order of the appellants dated 25.3.1991 is annexure Al to the affidavit of the first appellant. We are now in February 1998 and, therefore it is clear that the appellants have put in about 7 years service in the post they were selected for. No doubt, the Commission by Ext. The appointment order of the appellants dated 25.3.1991 is annexure Al to the affidavit of the first appellant. We are now in February 1998 and, therefore it is clear that the appellants have put in about 7 years service in the post they were selected for. No doubt, the Commission by Ext. P1 letter dated 13.3.1992 ie., after about one year of the date of appointment of the appellants, asked the Board to take up necessary steps to cancel the selection of the appellants and the learned single judge passed the judgment in the Original Petition on 25.3.1993 ie., after two years of the date of appointment of the appellants. The fact remains that the appeal against the judgment of the learned single remained pending right from 1993 and this is how about 7 years have elapsed from the date of the appointment. 5. C1.16 of the Regulation 1967 entitles the Commission to cancel the advice for the appointment of any candidate to the service of the Kerala Khadi and Village Industries Board, if it is subsequently found that such advice was made under some mistake. Such power is to be exercised by the appointing authority within the period of probation of the appointee or within 240 days from the date of joining duty whichever is applicable. Without entering into the legal verbiage whether the period of probation or the period of 240 days will be applicable in the case of the appellant' s, we are of the view that the broader question for consideration is : whether the appointment of the appellants could be cancelled after about 7 years on the ground that the appellants did not possess the training qualification, namely, successful completion of training in Khadi Spinning and Weaving in any of the training centres recognised by the Khadi and Village Industries Commission or Kerala Khadi and Village Industries Board. 6. 6. In Public Service Commission v. Jyadev (1977 KLT 85) a Division Bench of this Court was called upon to answer precisely the identical question and then this court held pointed out calamitous results following from R.3(c) as under: "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 except, after due care and attention deemed fit to convey to the authority who had 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-r.(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 advise either to sit for a further test to the conducted by the Public Service Commission or after he had 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 afar 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 amendment will be made to sub-r. (c) of R.3 read with the proviso thereto i n 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 him it 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". 7. In the case of Jyadev (supra), the Division Bench of this Court was of the view that the period of two years' probation within which the Commission was entitled to correct its mistake by cancelling its advice for the appointment was unduly a long period, because during that period several appointees might miss their future prospects of employment. When two years' period could be held unduly long period, surely it must be held that giving effect to the advice of the Commission after about a period of 7 years in the case of the appellants would be arbitrary and a travesty of justice. Moreover, there is no finding in the case at hand by the learned single judge that the appellants fradulently procured the certificates from the Chavara Block Khadi Producers' Industries Co-operative Society to mislead the Commission that they had fulfilled the training qualification as well. Moreover, there is no finding in the case at hand by the learned single judge that the appellants fradulently procured the certificates from the Chavara Block Khadi Producers' Industries Co-operative Society to mislead the Commission that they had fulfilled the training qualification as well. The Chavara Block Khadi Producers' Industries Cooperative Society might have given the certificates to the appellants under a misbelief or a confusion for which the appellants cannot be held responsible and they could not be made to suffer for no fault of them. If there were any finding that the appellants fradulently obtained the certificates from the said Society, then though not argued, it could be argued that the discretionary jurisdiction under Art.226 of the Constitution should not be exercised in favour of the appellants, but in the situation, as developed after the appeal having been filed, it would be a gross injustice to the appellants if they appointment is cancelled after 7 years of their service. 8. Looking to the arrears and considering the fact that the courts are overburdened with the work, these instances may multiply. To obviate recurrence of such instances when the delay is likely to give rise to calamitous results, as they arise in this case, counsel for appellants should be made responsible to draw the attention of the court without fail that if the appeal is not decided early, then the appellants would miss future prospects of employment. If they fail in doing so, then the courts should not deter in giving effect to the legal provisions in letter and spirit. In the result, the appeal succeeds and is allowed. The impugned judgment dated 25.3.1993 is set aside.