KERALA PUBLIC SERVICE COMMISSION & THE PUBLIC RELATIONS OFFICER, KERALA PUBLIC SERVICE COMMISSION v. PRABITHA SUMOD SUMOD BHAVAN, THE POSTAL SUPERINTENDENT MANJERI DIVISION, MALAPPURAM, AND THE CONSUMER DISPUTES REDRESSAL FORUM MALAPPURAM

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ## **`THURSDAY, THE 6[TH] DAY OF JANUARY 2022 / 16TH POUSHA, 1943`** ## **`WP(C) NO. 25083 OF 2015`** ## **`PETITIONER/S:`** - `1 KERALA PUBLIC SERVICE COMMISSION, AGED 52 YEARS REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM.` - `2 THE PUBLIC RELATIONS OFFICER KERALA PUBLIC SERVICE COMMISSION, THULASI HILS, PATTOM, THIRUVANANTHAPURAM. BY ADV SRI.P.C.SASIDHARAN, SC, KPSC` ## **`RESPONDENT/S:`** - `1 PRABITHA SUMOD SUMOD BHAVAN, THEKKUPADIKUTTU, CHEMBRASSERY P.O., PANDIKKAD, MALAPPURAM DISTRICT.` - `2 THE POSTAL SUPERINTENDENT MANJERI DIVISION, MANJERI POST, MALAPPURAM.` - `3 THE CONSUMER DISPUTES REDRESSAL FORUM MALAPPURAM, REPRESENTED BY ITS CHAIRMAN.` ``` BY ADVS. ASSISTANT SOLICITOR GENERAL MANU S., ASG OF INDIA ``` ## **`OTHER PRESENT:`** ``` SMT.VIDYA KURIAKOSE, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- W.P.(C). No. 25083 of 2015 ## **P.V.KUNHIKRISHNAN, J.** ================================================= W.P.(C).No.25083 of 2015 ============================================================= Dated this the 6[th] day of January, 2022 ## **JUDGMENT** The above writ petition is filed with following prayers: “i) Declare that the action of the 3[rd] respondent in entertaining Exhibit P1 complaint preferred by the 1[st] respondent is without any power, authority or jurisdiction and that Ext.P1 complaint is not maintainable before the 3[rd] respondent. ii) Further declare that the Commission being a Constitutional Body will not come within the meaning of Section 2 (o) of the Consumer Protection Act. iii) To issue such other writ, order or direction as this Honourable Court may deem fit and proper in the circumstances of the case.” 2. The 1[st] petitioner herein is the Kerala Public Service Commission represented by its Secretary and the 2[nd] petitioner is the Public Relations Officer of the Commission. The petitioners are aggrieved by the notice issued by the 3[rd] -3- W.P.(C). No. 25083 of 2015 respondent on a petition filed by the 1[st] respondent seeking compensation from the Commission on the ground of deficiency in service on the part of the Commission in the matter of receipt of PSC Bulletin for which she had paid the subscription. It is the case of the petitioners that Commission is a Constitutional body charged with statutory duties and obligation and it was never intended by the parliament to treat Service Commissions as rendering any service within the meaning of Section 2(o) of the Consumer Protection Act. It is the case of the petitioner that no person is hiring a service from the Commission. It is submitted that Public Service Commission is periodically issuing its bulletin so as to furnish information to the candidates and public in general the recruitment notification issued by the Commission and other information concerning the candidates. But the publication is not a commercial publication and that there is no commercial -4- W.P.(C). No. 25083 of 2015 involvement in publishing bulletin. It is only an official publication of Commission furnishing information to the candidates and public. It is stated that any person can subscribe the bulletin by paying certain amount. The amount charged by the Commission is not real cost but only the expenses incurred for printing and sending the same. During the relevant period, when the 1[st] respondent was subscribing the bulletin the cost was Rs.100/- for 24 issues. No candidate has preferred any complaint in the matter of non receipt of the bulletin. It is also stated by the petitioners that the covers are sent by ordinary post. If the 1[st] respondent has not received the bulletin, it is submitted that she ought to have approached the Commission within time so as to get an extra copy rather than raising complaint against the Commission before the 3[rd] respondent. It is the specific case of the petitioners that the term ‘consumer’ has got a definite meaning and content under the Consumer -5- W.P.(C). No. 25083 of 2015 Protection Act. Section 2(d) of the Consumer Protection Act says that a person can claim to be a consumer only if he hire any service from an institution for consideration. It is also the case of the petitioner that the term ‘hire’ has also got a definite meaning and content. It is submitted that no subscriber to bulletin of the Commission can claim he is a consumer of the Commission. In such circumstances, this writ petition is filed challenging the notice issued by the Consumer Disputes Redressal Forum and the complaint. 2. Heard the learned Standing Counsel for the petitioners and also the learned Assistant Solicitor General of India. Even though notice was issued to the 1[st] respondent, there is no appearance for the 1[st] respondent. 3. I perused Ext.P1 complaint. After going through the complaint, I think there is some force in the arguments of the petitioners. A Division Bench of this Court in **KPSC v.** -6- W.P.(C). No. 25083 of 2015 ## **Consumer Disputes Redressal Forum (1993 KHC 445)** considered this point in detail. It will be better to extract the relevant portions of the above judgment. “6. It is, therefore, clear that recruitment to the Union and State services made by the various Service Commissions are based on the mandate in the Constitution of India in regard to which no other authority can recruit to any civil service or civil post under the Union of India or under any State. The Constitution gives such a special status to the Service Commissions. As pointed out by the Calcutta High Court in Mira Chatterjee v. Public Service Commission (AIR 1958 Cal. 345) 'Public Service Commission is a constitutional body charged with certain constitutional rights, duties and obligations'. In our view, it was never intended by the Parliament to treat Service Commissions as rendering any service within the meaning of S.2(o) of Consumer Protection Act. Nor can we say that the second respondent herein who sought recruitment through the Service Commissions as a peon is in the position of a 'consumer' within the meaning of the said word in S.2(d) of the above said Act. Under sub clause (ii) of S.2(d), second respondent can be a consumer only if he can be said to have 'hired' any -7- W.P.(C). No. 25083 of 2015 service of the Service Commission for a consideration. (We are here concerned with the above said definition before the amendment by the Ordinance of 1993). Emphasis here should be made on the word 'hire'. In our view, even though the second respondent had paid Rs. 10/- to the Service Commission for re-checking of the marks, he cannot be said to have hired the services of the Service Commission. As already stated, the Service Commission is exercising functions laid down in the various regulations made according to the provisions of the Constitution. It derives the said obligations; duties, responsibilities and rights to the said regulations made under the Constitution. We are, therefore, unable to hold services, if any, rendered by if can be said to be hired by the candidate. As already stated, for recruitment to any posts coming within the purview of the Service Commission, no other body or authority in the State can recruit any person and it is the exclusive prerogative of the Service Commission to deal with the said recruitment. It cannot be said that its services have been 'hired' by the candidate. 7. For the aforesaid reasons, we hold that this is an exceptional case in which this Court should interfere, in exercise of its discretion, under Art.226 of the Constitution of India. The notice issued by the -8- W.P.(C). No. 25083 of 2015 Consumer Court - first respondent is, therefore, quashed and it is directed to drop all proceedings pursuant to the complaint filed by the second respondent herein (petitioner before it). The Writ Petition is accordingly allowed.” 4. It is true that the petitioners can raise the maintainability issue before the 3[rd] respondent by filing a petition. This writ petition was admitted on 18.08.2015 and the proceedings before the 3[rd] respondent was stayed and that the interim order is in force even now. At this distance of time, it is not proper to ask to the petitioners to approach the 3[rd] respondent to raise the preliminary issue. After going through the contents in Ext.P1 complaint, according to me, the complaint is not maintainable before the 3[rd] respondent and the 1[st] respondent cannot be treated as ‘consumer’ under S. 2 (d) of the Consume Protection Act. Even though notice was issued to the 1[st] respondent, the 1[st] respondent has not appeared before this Court. That shows that the 1[st] respondent is also not interested -9- W.P.(C). No. 25083 of 2015 in this case. In the peculiar facts and circumstances of the case, I think the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India can be invoked in this case. Therefore, this writ petition is allowed. All proceedings pending before the 3[rd] respondent based on Ext.P1 complaint are quashed. sd/- **P.V.KUNHIKRISHNAN JUDGE** das -10- W.P.(C). No. 25083 of 2015 ## **`APPENDIX OF WP(C) 25083/2015`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1: TRUE COPY OF THE COMPLAINT PREFERRED BY THE IST RESPONDENT. ``` ``` EXHIBIT P2: TRUE COPY OF THE REPLY FURNISHED BY THE COMMISSION. ``` ``` EXHIBIT P3: TRUE COPY OF THE ADDRESS LIST OF SUBSCRIBERS. ```