Bineesh John v. Kerala Public Service Commission & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **SATURDAY, THE 6TH DAY OF AUGUST 2016/15TH SRAVANA, 1938** **WP(C).No. 23340 of 2016 (N) ----------------------------** **PETITIONER(S): -------------** **BINEESH JOHN, S/O.JOHN, AGED 35 YEARS, PAIKKATTU HOUSE, KANNOTH P.O, KODENCHERY VIA, KOZHIKODE - 673 580, DRIVER, KERALA STATE ROAD TRANSPORT CORPORATION, THAMARASSERY DEPOT.** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** **RESPONDENT(S):** **--------------** **1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM - 695 004.** **2. THE REGIONAL OFFICE, KPSC REGIONAL OFFICE, KOLLAM - 691 001. 3. THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT P.O, THIRUVANANTHAPURAM - 695 023.** **4. THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O, THIRUVANANTHAPURAM - 695 023.** **5. THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, THAMARASSERY, DEPOT - 673 573.** **R1 & R2 BY ADV.SRI.P.C.SASIDHARAN, SC R3 TO R5 BY SRI.M.GOPIKRISHNAN NAMBIAR, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-08-2016 ALONG WITH WPC.23599/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 23340 of 2016 (N)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS: ----------------------EXHIBIT P1 : TRUE COPY OF THE ADVISE MEMO VIDE NO KLR IV(1) 2455/2010 DATED 26-02-2013. EXHIBIT P2 : TRUE COPY OF THE MEMORANDUM NO PL 14/007950/2013 DATED 24-05-2013 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P3 : TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 : TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO THE SHOW CAUSE NOTICE. EXHIBIT P5 : TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT CANCELLING THE ADVICE OF THE PETITIONER FOR APPOINTMENT.** **RESPONDENT(S)' EXHIBITS: NIL ----------------------//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **SHAJI P. CHALY, J.** ----------------------------------------------- **W.P.(C). Nos.23340 & 23599 of 2016 ----------------------------------------------Dated this the 6[th] day of August, 2016** ## **JUDGMENT** These writ petitions are substantially connected and therefore, I propose to pass a common judgment. The issue in these writ petitions are in respect of false entries with respect to the caste, in the application submitted to the Kerala Public Service Commission and the cancellation of appointment accordingly. I think it is better to narrate the facts of the writ petitions in brief separately. ## **2. W.P(C) No.23340/2016** Petitioner is a driver under the 3[rd] respondent in its Thamarassery depot. Pursuant to gazette notification dated 15.7.2010 issued by the 1[st] respondent for the post of Reserve Driver, petitioner submitted his application. Verification of the documents and physical examination of the petitioner was done and included in the rank list published by the 1[st] W.P.(C). Nos.23340 & 23599 of 2016 2 respondent as per Ext.P1 dated 26.2.2013. Accordingly, petitioner was appointed as per Ext.P2. 3. As per Ext.P3 dated 20.1.2016, petitioner was served with a show cause notice requiring the petitioner to show cause why his advice shall not be cancelled since in the application, petitioner has shown his community as Latin Catholic, while the petitioner is belonging to Roman Catholic Community, in order to secure appointment under the reservation quota earmarked for Latin Catholic. Petitioner submitted Ext.P4 reply basically stating that, application was submitted through a private DTP center at Thamarassery since petitioner was not having sufficient computer literacy. Therefore, petitioner stated that, it was due to a mistake only, the entry happened to be made in the column provided for community as Latin Catholic in spite of Roman Catholic. According to the petitioner, while his documents were verified, petitioner has only produced the correct certificate including the matriculation certificate, which shows that he W.P.(C). Nos.23340 & 23599 of 2016 3 belongs to Roman Catholic community. Therefore, according to the petitioner, petitioner has not suppressed anything before the Commission or produced any fabricated document and therefore, there is no fraudulent action from the part of the petitioner. That apart it is stated that, petitioner had completed 2 ½ years of service in the 3[rd] respondent Corporation and crossed the age limit of 35 years and further that, he has a family consisting of wife and a 5 year old child, who is physically disabled. Therefore, petitioner requested not to cancel the advice and also to give an opportunity of being heard to the petitioner. However, as per Ext.P5 order dated 10.6.2016, advice of the petitioner was cancelled. It is thus aggrieved by Ext.P5 order, petitioner has approached this court by filing this writ petition. ## **4. W.P.(C) No.23599/2016** Petitioner contends that he is a person belonging to Latin Catholic community. His father's name is D. George and grand father's name is A.Daniel and mother's name is W.P.(C). Nos.23340 & 23599 of 2016 4 Philomina and she is belonging to Latin Catholic community. A true copy of the baptism certificate of the petitioner dated 7.7.2016 is produced as Ext.P1, from which, it is discernible that the baptism was conducted on 17.12.1978. Petitioner has also produced Ext.P2 baptism certificate of petitioner's father dated 5.7.2016, which shows that he was baptized on 17.04.1946. Even though petitioner attempted to secure the baptism certificate of his mother, the same could not be procured for reasons beyond his control. That apart it is stated that, petitioner's father is a retired driver from the 3[rd] respondent. It is also stated that Ext.P3 admission register issued by the school where he studied till 4[th] standard will reveal that petitioner belongs to the Latin Catholic community. However, it is stated that after 4[th] standard, petitioner studied in different schools and finally at MD Seminary High School from where Secondary School Leaving Certificate was issued, evident from Ext.P4. There the entry against caste is shown as Paravan converted and the religion W.P.(C). Nos.23340 & 23599 of 2016 5 as Christian. According to the petitioner, the said entry is a mistake. That apart it is contended that, both Latin Catholic and Paravan Converted Christian belong to other backward communities. That Latin Catholic is included as Sl.No.3 in the grouping of other backward classes given in Rule 17(1) of the KS & SSR and Scheduled Caste converted Christian is included as Sl.No.5 in the grouping of backward classes. According to the petitioner, Paravan is a community, which is notified as Scheduled Caste by Presidential notification. Petitioner had never availed any benefit that is granted to persons belonging to Paravan Community, or Paravan Converted Christian. It is also stated that, in the application submitted by the petitioner to the 1[st] respondent Corporation, petitioner has claimed that, he is a person belonging to Latin Catholic community. His name was included in the short list of candidates eligible to participate in the driving test, based on his performance in the written test. Certificate verification was conducted on the same day but the petitioner could not W.P.(C). Nos.23340 & 23599 of 2016 6 produce the non-creamy Layer Certificate as the authorities refused to issue the same, as there is some discrepancy in the caste status of the petitioner in the S.S.L.C. book. At the time of certificate verification, petitioner was told that he will not be permitted to participate in the driving test unless he submitted a declaration, he shall not claim reservation of Latin Catholic community and it was on the basis of the said compulsion petitioner has given an undertaking. According to the petitioner, for the remaining part of the selection process, petitioner was treated as person belonging to Latin Catholic community by the 3[rd] respondent and his name is included in the rank list dated 23.8.2012, evident from Ext.P5, in which it is pointed out that petitioner belongs to Latin Catholic community. Thereafter, petitioner was issued with Ext.P6 advice memo dated 24.5.2013 and he was appointed as driver as per Ext.P7 dated 20.6.2013. 5. In the meantime, petitioner submitted application before the authorities for correction of caste status in the W.P.(C). Nos.23340 & 23599 of 2016 7 S.S.L.C. book, evident from Ext.P8 report issued by the Village Officer to the Tahsildar, Karunagapally dated 6.6.2013. Thereafter, Ext.P9 certificate dated 7.6.2013 was issued by the Tahsildar. Accordingly, the details regarding correction of entry in the S.S.L.C. book was published in the official gazette dated 24.9.2013, evident from Ext.P10, wherein it was notified that in the S.S.L.C. book of the petitioner, his caste status is corrected as Latin Catholic. 6. However, petitioner was served with Ext.P11show cause notice dated 20.1.2016, to which petitioner has submitted Ext.P12 explanation and thereafter he was served with Ext.P13 order cancelling the advice and it is thus challenging the said order, petitioner has filed this writ petition. 7. However, Public Service Commission, hereinafter called 'the Commission', has filed separate counter affidavits in the writ petitions. Since the material contentions raised being similar, apart from the factual circumstances, I propose W.P.(C). Nos.23340 & 23599 of 2016 8 to recite the contentions raised in the counter affidavit filed in W.P.(C) No.23599/2016. According to the Commission, in terms of rule 22 of the Rules of Procedure of the Commission, the candidature of a candidate is liable to be cancelled or the candidature included in the rank list can be removed if the candidate makes any false statement in the application form or suppressed any material fact relevant to the selection from the Commission. In the general conditions of notification, clause 30 says that, a candidate found guilty of misconduct of making any false statement in the application form or any document produced in connection with the selection or suppressed material facts relevant for selection from the Commission, the written test, practicals etc. etc. can be invalidated and disqualified for being considered for a particular post. It is also stated that the power of the commission accordingly is upheld by this court as well as the Apex Court in the judgment reported in 1993(1)KLJ 632, 1999 (2) KLT 63, 1991(1) ILR 598, ILR 2000(1) 189 and 2001(5) W.P.(C). Nos.23340 & 23599 of 2016 9 SCC 419. That apart it is also contended that, the petitioner has made a false statement in the application, he belongs to a backward community and got selected to the post based on such claim. It is also contended that the candidate has played a fraud on the Commission. So also it is stated that the inherent powers of the Commission to rectify a mistake on the part of it is not curtailed or controlled by Rule 3(c) of the General Rules, since such powers are expressly conferred on the general conditions of notification, which is binding both on the Commission and the candidate so also Rules of Procedure. Therefore, it is contended that since the petitioner has made material misrepresentation of facts, same is a fraud made on the Commission and therefore, the Commission was right in issuing the cancellation of the advice memo. 8. Heard learned counsel for the petitioners, learned Standing Counsel for the Commission and Corporation and perused the pleadings and documents on record. W.P.(C). Nos.23340 & 23599 of 2016 10 9. Learned counsel for the petitioners reiterated the contentions raised in the writ petitions and canvassed the proposition. the entry made can never be termed as a fraudulent act and it is only an innocent mistake. Learned counsel for the petitioner in W.P.(C) No.23599/2016 has contended that, so far as the Paravan community in Kollam District is concerned, they are persons of Christian community. Learned counsel has invited my attention to the Division Bench judgment of this court in **Rajan.S. v. State of Kerala and others** [2007(1) KHC 394] where it was held that Parava Christians of Kollam are different from Paravan or Bharathar community of the Scheduled Caste, and **Kerala Public Service Commission v. Pushpamma. T.** in Writ Appeal No.609/2008 dated 27.08.2008, it is held that, the community status claimed as Christian Parava submitted for selection to the post of Non-Vocational Teacher (English), for the purpose of non-Creamy Layer Certificate, she should be treated as Latin Catholic in view of the judgment in **Rajan** supra. Therefore, according to the counsel, the entry made against the community, as Latin Catholic by the petitioner is in accordance ## W.P.(C). Nos.23340 & 23599 of 2016 11 with law and it can never be termed as fraudulent act. Learned counsel for the petitioner in W.P.(C) No.23340/2016 contended that the original certificates and the documents produced before the authorities at the time of interview were verified and it was thereafter only petitioner was included in the rank list. Therefore, according to the learned counsel, there is no fraudulent act on the part of the petitioners in securing appointment in the respondent Corporation. Therefore, it is the contention of the counsel that, in terms of rule 3(c) of Part II of the Kerala State and Subordinate Service Rules, 1958 cancellation of the appointment after a period of one year cannot be sustained under law. 10. Per contra learned counsel for the Commission submitted that as provided under the Rules of Procedure of PSC, in rule 22 it is categoric and clear that, any false statement in the application form or its annexure or any document produced in connection with the selection or suppression of any material fact relevant to the selection from W.P.(C). Nos.23340 & 23599 of 2016 12 the Commission, Commission is at liberty to cancel the process of selection at any stage. So also learned counsel relied on clauses 27 and 28 of the Kerala Gazette Notification with respect to selection process and contended that petitioners are bound to fill up the application carefully relying on the terms and conditions laid down in the notification and the directions contained in the official website of the Commission. Therefore, according to the counsel, the entire act of the petitioners is absolutely in violation of the Rules of Procedure and the conditions prescribed for filling up the application for selection process and the same were done fraudulently to mislead the Commission. 11. Even though, petitioner in W.P.(C) No.23599/2016 filed a reply affidavit reiterating the stand adopted and produced the judgments referred to above, the same will not in any manner help the petitioner, in the action of PSC. 12. Taking into account the rival submissions made across the Bar, the question to be decided is whether any manner of ## W.P.(C). Nos.23340 & 23599 of 2016 13 interference is required in the cancellation order issued by the Commission with respect to the advice and appointment of the petitioners. Admittedly in the application form, petitioners have shown their community as Latin Catholic instead of Roman Catholic and Paravan Converted Christian. Therefore, the issue to be considered is whether such entry made in the application form amounts to a fraudulent act. The petitioners are duty bound as provided under the Rules of Procedure and the gazette notification to fill up the application form correctly and in accordance with the certificates held by them with respect to the community. Therefore, it can be seen that, at the time of filing the application, petitioners were not belonging to Latin Catholic and in the relevant certificates, their community was shown as Roman Catholic and Paravan Converted Christian. The petitioner in W.P.(C) No.23599/2016 has a case that, Paravan community in Kollam are belonging to Latin Catholic. Petitioner has subsequently changed the community in the S.S.L.C. book as Latin Catholic based on W.P.(C). Nos.23340 & 23599 of 2016 14 Ext.P9 certificate issued by the Tahsildar, as per Ext.P10 dated 24.9.2013. In my considered opinion, the said act of the petitioner itself, is a clear and conclusive proof to establish that at the time of submitting the application in the year 2010, petitioner was not belonging to the Latin Catholic community. That apart innocence pleaded by the petitioners in filling up the applications, as innocent mistake can never be sustained. In that view of the matter, the act and conduct on the part of the petitioner can only be viewed as a fraudulent act misleading the Commission at the time of scrutinizing the application, and further proceedings thereto, till the advice for appointment. Moreover, the issue is not whether the petitioner is entitled to succeed in a litigation that Paravan Converted is a Latin Christian, but at the time of making entry in the application, whether he belongs to the said caste. So also when the entry made is fraudulent in nature, rule 3(c) of Part II of KS & SSR will not come to the rescue of the petitioners. W.P.(C). Nos.23340 & 23599 of 2016 15 13. In that view of the matter, I do not think that petitioners are entitled to succeed in this writ petition. That apart I find that when the fraudulent act was unearthed by the Commission, a show cause notice was issued and sought explanation from the petitioners. Therefore, the Commission has complied with the principles of natural justice and it was after considering the explanation offered by the petitioners, cancellations were done. Therefore, the procedure adopted by the Commission can never be said to be illegal or arbitrary. 14. Upshot of the above discussion is that, petitioners have not made out any grounds warranting interference of this court in the cancellation of advice by the Commission. Resultantly, writ petitions fail and accordingly they are dismissed. Sd/- **SHAJI P. CHALY JUDGE** smv 08.08.2016