Joshi K.R. v. Kerala Public Service Commission, Internal Vigilance Officer, Kerala Public Service Commission, Kerala State Electricity Board Ltd. (Tripunithura Division) and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 8TH DAY OF FEBRUARY 2018 / 19TH MAGHA, 1939** **WP(C).No. 3876 of 2017** ## **PETITIONER:** **JOSHI K.R., AGED 54 YEARS, S/O.RAVEENDRAN, RESIDING AT ARUNIMA, POLASSERY, VAIKOM, KOTTAYAM DISTRICT, NOW WORKING AS LINEMAN GRADE-I, ELECTRICAL SECTION, AMBALLOOR, P.O.AMBALLOOR, ERNAKULAM DISTRICT-682315.** **BY ADVS.SRI.K.SHRIHARI RAO SMT.N.SHOBHA** ## **RESPONDENT(S):** **1. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695004, REPRESENTED BY ITS SECRETARY.** **2. THE INTERNAL VIGILANCE OFFICER, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695004.** **3. THE KERALA STATE ELECTRICITY BOARD LTD. REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN, THIRUVANANTHAPURAM-695004.** **4. THE EXECUTIVE ENGINEER** **KERALA STATE ELECTRICITY BOARD LTD., TRIPUNITHURA DIVISION,TRIPUNITHURA, ERNAKULAM DISTRICT-682301.** **5. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, AMBALLOOR, KERALA STATE ELECTRICITY BOARD LTD., P.O.AMBALLUR, ERNAKULAMM DISTRICT-682315.** ## ***ADDL.R6 IMPLEADED** ***ADDL.R6: K.V.SUPRAN,S/O VAVA, AGED 52 YEARS, KOCHUVADAKUZHIYIL, VAIKKOM VILLAGE, POLASSERY, VAIKOM PO, KOTTAYAM.** ***ADDL.R6 IS IMPLEADED AS PER ORDER DATED 7.4.2017 IN I.A.NO. 4697/17** **R1& R2 BY SRI.P.C.SASIDHARAN, SC R3 TO R5 BY SRI.M.K.THANKAPPAN, SC SMT.ANEETHA A.G., SC ADDL.R6 BY ADV. SRI.SAJEEV KUMAR K.GOPAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PBS** **WP(C).No. 3876 of 2017 (H)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE SHOW CAUSE DATED 7-1-2016 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE EXPLANATION SUBMITTED ON 10-2-2016 TO THE EXHIBIT P1.** - **EXHIBIT P3 TRUE COPY OF THE SHOW CAUSE NOTICE DATED** **23-11-2016 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE EXPLANATION DATED 5-12-2016 OF THE PETITIONER TO THE EXHIBIT P3 SHOW CAUSE.** - **EXHIBIT P5 TRUE COPY OF THE EXPLANATION DATED 30-12-2016 GIVEN BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 17-1-2017 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 30.03.2016 IN O.S NO. 78/2014 BEFORE THE MUNSIFF'S COURT, VAIKOM.** - **EXHIBIT P8 TRUE COPY OF THE FIR NO. 455/2015 FILED BY THE VAIKOM POLICE BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, VAIKOM.** - **EXHIBIT P9 TRUE COPY OF THE FIR NO. 1338/2015 FILED BY THE VAIKOM POLICE BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, VAIKOM.** - **EXHIBIT P10 TRUE COPY OF THE IA. NO. 912/2015.** - **EXHIBIT P11 TRUE COPY OF THE EXTRACT OF ADMISSION REGISTER DATED 13.1.99 ISSUED BY THE HEADMASTER OF THE GOVERNMENT HIGH SCHOOL, VAIKOM.** ## **RESPONDENT'S EXHIBITS** - **EXHIBIT R6(A) TRUE COPY OF THE INFORMATION FURNISHED BY THE PUBLIC INFORMATION OFFICER OF THE KERALA PUBLIC SERVICE COMMISSION.** - **EXHIBIT R6(B) TRUE COPY OF THE INFORMATION FURNISHED BY THE APPELLATE AUTHORITY OF THE OFFICE OF THE EXAMINATION COMMISSIONER, THIRUVANANTHAPURAM** - **EXHIBIT R6(C) TRUE COPY OF THE INFORMATION FURNISHED BY THE PRINCIPAL OF THE DEVASWOM BOARD COLLEGE, THALAYOLAPARAMBU DATED 16/06/2015.** - **EXHIBIT R6(D) TRUE COPY OF THE COMMUNICATION RECEIVED FROM THE HEAD MASTER, GOVERNMENT BOYS HIGH SCHOOL, VAIKOM.** **EXHIBIT R6(E) TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 6TH RESPONDENT AND OTHER LOCAL PEOPLE BEFORE THE VIGILANCE OFFICER, KSEB.** **WP(C).No. 3876 of 2017 (H)** **EXHIBIT R6(F) TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE HON'BLE CHIEF MINISTER.** **EXHIBIT R6(G) TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO. 35611 OF 2016.** **/TRUE COPY/** **PA TO JUDGE** **PBS 26/2/2018** ## **P.V.ASHA J.** ## **------------------------------------** ## **W.P.(C).No.3876 of 2017** ## **-------------------------------------** Dated this the 8[th] day of February, 2018 ## **JUDGMENT** Petitioner challenges Ext.P6 order by which the Kerala Public Service Commission ('PSC' for short) confirmed its provisional decision in Ext.P3 by which the appointment of the petitioner was cancelled under Rule 22(iii) of the Gazette notification and his candidature was barred in the future selections to be conducted by the Public Service Commission. 2. Petitioner joined duty as a Mazdoor in the Kerala State Electricity Board (hereinafter referred as 'the Board') on 13.01.2004 for appointment, on the basis of advice by the District Public Service Commission, Ernakulam. He got promotion as Lineman Grade-II in 2006 and thereafter as Lineman Grade-I in 2009. While continuing so, he received Ext.P1 notice dated 07.01.2016 from the Executive Engineer of the Board, W.P(C) Nos.3876 of 2017 2 informing that a complaint was received against him alleging that he had passed S.S.L.C and had undergone education in College. He was therefore directed to submit explanation within 15 days. 3. Petitioner submitted Ext.P2 explanation stating that he joined as Mazdoor on 13.01.2004 after submitting all the necessary certificates before the concerned authorities and he was given appointment only after the concerned authorities were satisfied of his qualifications and eligibility. It was stated that he did not conceal or suppress any of his qualifications. He further stated that, the complaint was submitted against him by his neighbour, Sri. Supran in order to wreak personal vengeance, because of the civil and criminal litigations between them for the last several years. He stated that a baseless complaint has been preferred after a period of 12 years of his appointment and requested to drop the proceedings pointing out that there is no proof in support of the allegations raised 3 W.P(C) Nos.3876 of 2017 against him. 4. Thereafter, he received Ext.P3 show cause notice dated 23.11.2016 from the Internal Vigilance Officer, Kerala Public Service Commission. In that notice, it was stated that petitioner joined as Mazdoor on advice dated 13.10.2003 from the rank list published by PSC on 14.01.2003; a complaint was received alleging that petitioner obtained appointment suppressing his pass in S.S.L.C; the Vigilance Department of PSC conducted an enquiry and in its report No.VE 03/16 dated 25.10.16, it was found that he had passed S.S.L.C, after undergoing his studies in Govt. Boys High School, Vaikom in the year 1982 and that thereafter he underwent PreDegree course in Devaswom Board College, Thalayolaparambu and thus he obtained employment fraudulently. Therefore, he was informed that he was liable to be punished under Rule 22(iii) of the PSC Rules of Procedure and Paragraph 28(iii) of the Gazette notification for fraudulently obtaining employment, 4 W.P(C) Nos.3876 of 2017 concealing the higher qualifications acquired by him and that a provisional decision was taken to terminate his services and to debar him in future selections. Petitioner was directed to submit explanation within 15 days. 5. Petitioner submitted Ext.P4 explanation in which he stated that, he had produced all his certificates of qualification he possessed, before the Commission, at the time of his appointment. It was stated that, he did not conceal or suppress anything from the Commission and that he was given appointment only after all the authorities were convinced of his qualification. He stated that the findings in the show cause notice that he passed S.S.L.C and studied PreDegree were not correct. The petitioner pointed out that the civil and criminal litigations were going on between Sri.K.V. Supran and the petitioner for a long time and stated that the complaint of Sri.Supran was only to wreak personal vengeance and that he had openly W.P(C) Nos.3876 of 2017 5 declared that he would see that petitioner loses his employment. Sri.Supran, (who got impleaded as additional 6[th] respondent in this writ petition), had filed W. P.(C) No.35611/2016 for expediting action against the petitioner on his complaint. 6. Petitioner was given a personal hearing when he submitted Ext.P5 representation repeating his contentions in the explanation and pointing out that he has a family to look after with daughters of marriageable age. He stated that apart from the documents obtained under the Right to Information Act, there is nothing in the complaint of Sri.Supran and that there were no material to show that those informations relate to the petitioner. He stated that there was no evidence to prove that he has passed S.S.L.C or studied Pre-Degree course. 7. The PSC thereafter issued Ext.P6 order confirming its provisional decisions in Ext.P3. This writ petition was filed challenging Ext.P6 order. W.P(C) Nos.3876 of 2017 6 8. The 1[st] respondent filed counter affidavit stating that Ext.P3 show cause notice was issued after conducting an enquiry by the Vigilance cell. As per rules, a person who has passed SSLC is not eligible to apply for the post of Mazdoor in the Board. As per the Board Orders in force, the educational qualification prescribed for appointment of Mazdoor is: “should have passed Standard IV and should not have passed Standard X”. Applications were invited for appointment to the post of Mazdoor in the Board in Ernakulam District, as per notification issued in gazette extra-ordinary dated 01.12.1998. Based on his application, petitioner was considered and was included in the rank list as Rank No.382, published on 14.01.2003 and he was advised for the post on 13.01.2003. It was stated that a complaint was received from Sri.K.V.Supran and 14 others alleging that petitioner obtained the job concealing his pass in S.S.L.C. On receipt of the complaint, the Chairman ordered a Vigilance inquiry to be conducted and W.P(C) Nos.3876 of 2017 7 thereupon Vigilance and Security Officer, after conducting inquiry, submitted a report No.VE 3/2016 dated 25.10.2016. In the report, it was found that petitioner had passed S.S.L.C. in March, 1982 with Reg. No.282301 from Govt. Boys High School, Vaikom and studied Pre-degree in Thalayolaparambu Devaswom Board College. It was stated that the Pareeksha Bhavan Secretary had informed in his letter that Sri.Joshi.K.R. had passed S.S.L.C. Examination in 1982 March with Register No.282301 from the Vaikom Govt.Boys High School and the Principal of Devaswom Board College stated that the petitioner had studied in the above college during 1982-84 for Pre-degree course. It was therefore stated that as per Rule 22(iii) of PSC Rules of procedure, the candidate who suppresses the fact that he was not qualified for the job, is liable for dismissal from the post and for permanent debarring. A show cause notice was issued calling for the explanation of the petitioner and after considering his explanation and giving him a W.P(C) Nos.3876 of 2017 8 personal hearing. Ext P6 order was issued thereafter confirming the provisional decision. It is stated that as per letter dated 30.11.2016, PSC had directed the Board to remove the petitioner from service, as it was found that the action of the petitioner was contrary to the Rules of Procedure. 9. The additional 6[th] respondent got impleaded stating that he submitted a complaint against the petitioner. He filed a counter affidavit producing Ext.R6 series, the information he collected under the Right to Information Act. Furnishing the register number in the S.S.L.C Examination and the results, it was stated that petitioner, who passed the S.S.L.C examination and underwent studies in the Devaswom Board College, Thalayolaparambu, and was hence disqualified for appointment and he obtained appointment suppressing his qualification. It is stated that local people submitted complaint before the Executive Engineer on 23.09.2015 and another complaint before the PSC. The 6[th] W.P(C) Nos.3876 of 2017 9 respondent filed W.P.(C).No.35611/2016 which was disposed of as per Ext.R6(g) judgment dated 10.01.2017 directing the PSC to finalise the proceedings pursuant to the show cause notice. 10. Along with reply affidavit, petitioner produced Ext.P7 judgment in O.S.No.78 of 2014 filed by petitioner, Ext.P8 FIR filed by the Vaikom Police before the Judicial First Class Magistrate Court, Vaikom. Ext.P9 FIR filed before the very same Court pointing out the civil and criminal cases between petitioner and the 6[th] respondent, who filed the complaint before PSC, and stated that the attempt was only to see that the petitioner is removed from service on false allegations. In the reply affidavit the petitioner stated that he has not passed S.S.L.C or that he has not studied in the College. 11. The Board has also filed a counter affidavit. 12. Heard learned Counsel appearing on both sides. The notification published by the PSC as well as the W.P(C) Nos.3876 of 2017 10 Board Order relating to qualification for appointment of Mazdoors in the Board is “should not have passed standard X.” The allegations against the petitioner are that he concealed his qualification viz. pass in S.S.L.C while submitting application for selection; at the time of certificate verification and at the time of joining. Therefore, he is liable to be removed from service. The PSC relies on the inquiry report submitted by the Vigilance Officer to conclude that petitioner passed S.S.L.C and he underwent Pre-Degree. Based on the said report PSC found that the appointment of petitioner is liable to be cancelled. 13. The case of the petitioner is that Rule 22(iii) of PSC Rules of Procedure or paragraph 28 of the Gazette Notification does not apply in his case. Relying on the judgments in **Jyothi Nayar v. Public Service Commission: 1988 KLT 641** and **Kerala Public Service Commission v. Malini: 1996 (2) KLT 332** , learned Counsel for the petitioner argued that the PSC Rules of W.P(C) Nos.3876 of 2017 11 procedure do not have any statutory force so as to invoke the same to remove the petitioner or any candidate from service. Para 28(iii) of the notification cannot also have any force than the guidelines in the Procedure Rules. It is also the case of the petitioner that appointment can be cancelled or his services can be terminated only by invoking Rule 3(c) of KS&SSR, that too if any mistake is found in the advice. Rule 3(c) cannot be invoked after one year of the advice. 14. The contention of the first respondent is that there is no time limit prescribed for invoking Rule 22 (iii) of the PSC Rules of Procedure. It is therefore necessary to examine Rule 22(iii) of PSC Rules of Procedure, which reads as follows: - _“22. Candidates who are found guilty of the following items of misconduct shall be liable for disqualification for being considered for a particular post or debarment from applying to the Commission either permanently or for any period or the invalidation of their answer scripts or_ 12 W.P(C) Nos.3876 of 2017 _products in a written, practical test or the initiation of criminal or other proceedings against them or their removal or dismissal from office or the ordering of any other disciplinary action against them if they have already been appointed, or any one or more of the above_ _Xxxx_ - _(iii). Making of any false statement in the Application form or Annexure or any document produced in connection with a selection or suppression of any material fact relevant to the selection from the commission.”_ 15. Para 28(iii) of Part II General Conditions in the Gazette notification, which is more or less similar to Rule 22(iii) of PSC Rules of Procedure, reads as follows: - _“28. Warning.--candidates who are found guilty of the following items of misconduct are liable to be disqualified for being considered for a particular post or debarment from applying to the Commission either permanently or for any period or the invalidation of their answer scripts or products in a written/practical test or the initiations of legal or other proceedings against them or their removal or dismissal from the office or the ordering of any other legal/disciplinary action against them if they_ 13 W.P(C) Nos.3876 of 2017 _have been appointed on or any one more of the above._ - _(i) xxxx xxxx xxxx xxxx_ - _(ii) xxxx xxxx xxxx xxxx_ - _(iii) Making of any false statement in the application form or any document produced in connection, with selection or suppression of any material fact relevant to the selection from the Commission.”_ 16. The proceedings for termination of services of petitioner is initiated after about 12 years of the advice and appointment of petitioner. 17. According to the petitioner, there is no document available before the respondents to show that he has passed S.S.L.C examination or that he has studied in College. It is stated that Chairman of the 1[st] respondent relied on the inquiry report and passed Ext.P6. Petitioner also stated that none of the documents referred to in Ext.P6 was furnished to him before arriving at a conclusion that his services were liable to be terminated. He also stated that copies of the documents referred to in reference No.3, 4 and 8 W.P(C) Nos.3876 of 2017 14 mentioned in Ext.P6 order should have been given to him before a decision was taken. The case of the petitioner is that he has not passed S.S.L.C and has not continued any further education and therefore findings against him are in violation of the principles of natural justice. 18. The judgment in **Union of India and another v. Indian Rayon and Industries: 2005 (7) SCC 177** was also relied on, in order to assert the contention that appointment cannot be cancelled in the absence of relevant documents. 19. Learned counsel for the petitioner referring to the judgments of this Court in **Appukuttan P.C v. State of Kerala and others: 2012 (2) KHC 690 and Babu M. v. Kerala State Electricity Board, Tvm. and others: 2010 (1) KHC 379,** in which this Court held that there is no period of limitation for cancellation of advice when fraud is detected after lapse of one year and Rule 3 will not apply such cases, pointed out that in both these cases candidates had admitted that they had passed W.P(C) Nos.3876 of 2017 15 S.S.L.C or that they were having the qualification which was alleged to have been suppressed. In this case, since the petitioner had not admitted the allegation against him, those judgments will not apply. 20. PSC proceeded with the complaint, conducting an inquiry, in which documentary evidence were available from the Commissioner of Examination as well as from the College based on which it was concluded that petitioner is a person who had passed the S.S.L.C examination and that petitioner had suppressed his qualification. The learned Standing Counsel for the PSC submits that they had proceeded to advise the petitioner on the basis of the declaration submitted by the petitioner that he was duly qualified for the post which was correct when it was specifically stated that the candidates should not have passed class X. 21. The contention of the petitioner in the present case is that documents relied on by the PSC to arrive at a conclusion that his appointment is liable to be W.P(C) Nos.3876 of 2017 16 cancelled referred to in Ext.P6 order were not furnished to him. It is seen that petitioner did not request for these documents either when he submitted Ext.P4 explanation to the show cause notice, in which the vigilance report dated 25.10.2016 was referred to, or at the time of personal hearing. The documents relied on in Ext.P6 are the same as in the show cause notice. 22. However, it is a case where the appointment is directed to be cancelled after a period of more than 12 years. Therefore, even though the petitioner did not request for copy of the report, I find it necessary that interest of justice demands that petitioner should have been given a copy of the inquiry report based on which the first respondent decided to terminate his services, especially when petitioner stick on to the contention that he is not the person referred to as the one who has passed S.S.L.C or underwent studies in the college. Therefore, I direct the PSC to furnish copy of the vigilance inquiry report, referred to in Ext.P6 17 W.P(C) Nos.3876 of 2017 order, to the petitioner within a period of one month from the date of receipt of a copy of this judgment. The petitioner will be free to furnish further explanation, along with additional materials if any, in support of his contentions against the findings in the said vigilance inquiry report, within a period of two weeks of its receipt. PSC shall thereafter afford an effective opportunity of hearing to petitioner, consistent with the principles of natural justice, before passing final orders within a period of 'three months' from the date of receipt of a copy of this judgment. Ext.P6 order is quashed in order to enable the PSC to pass fresh orders. Accordingly, this writ petition is disposed of. Sd/- **P.V.ASHA, JUDGE.** Ww/rkc