# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN**
**&**
**THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN**
**THURSDAY, THE 21[ST] DAY OF SEPTEMBER 2023/30TH BHADRA, 1945**
**WA NO.1045 OF 2023**
**JUDGMENT IN WP(C) 21424/2018 OF HIGH COURT OF KERALA DATED 9.11.2022**
**--------------------**
## **- APPELLANTS/RESPONDENT Nos.1 TO 3 :**
1 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM POST, THIRUVANANTHAPURAM - 695 004. 2 THE CHAIRMAN KERALA PUBLIC SERVICE COMMISSION, OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, PATTOM POST, THIRUVANANTHAPURAM - 695 004. 3 THE INTERNAL VIGILANCE OFFICER KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004. BY ADV P.C.SASIDHARAN
## **- RESPONDENTS/PETITIONER & RESPONDENT No.4 :**
1 A.SUNIL KUMAR, RETIRED DEPUTY GENERAL MANAGER, PALAKKAD DISTRICT CO-OPERATIVE BANK LIMITED, RESIDING AT PALLATHERY HOUSE, MATTATHURKUNNU.P.O., KODAKARA, PIN - 680 684. 2 DISTRICT CO-OPERATIVE BANK, PALAKKAD, REPRESENTED BY ITS GENERAL MANAGER, PALAKKAD, PIN - 678 001. BY ADVS. N.KRISHNA PRASAD M.SASINDRAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.09.2023, THE COURT ON 21.09.2023 DELIVERED THE FOLLOWING:
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**ANU SIVARAMAN, J. & C. JAYACHANDRAN, J. -----------------------------------------------------------------W.A. No.1045 of 2023 ------------------------------------------------------------Dated this the 21[st] day of September, 2023**
## **JUDGMENT**
## **Anu Sivaraman, J.**
This Writ Appeal is preferred by the Kerala Public Service Commission (for short, 'KPSC') against the judgment dated 9.11.2022 allowing the writ petition filed by the 1[st] respondent by setting aside Ext.P1 communication therein and issuing directions to the 4[th] respondent, District Co-operative Bank to grant all eligible benefits, both service and retiral, within three months from the date of receipt of a copy of the judgment.
2. It is contended that the 1[st] appellant had invited applications for appointment to the post of Deputy General Manager (for short, 'DGM') in the District Co-operative Bank, Palakkad. The 1[st] respondent, who was the petitioner in the writ petition, was an applicant. He produced two experience certificates to prove his experience and qualification. It is submitted that since the said certificates were not acceptable, the petitioner was required to produce an experience certificate in the format prescribed by the KPSC. Pursuant to
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which, he produced certificate dated 24.3.2011 stating that he was working as Secretary on deputation in the Shornur Scheduled Tribe Co-operative Society for the period from 10.3.2003 to 31.12.2008. The said certificate was accepted by mistake and included him in the ranked list published on 21.7.2011 and advised him for appointment to the post of DGM. It is submitted that on further verification of the documents, it was found that the date of publication of the result of the MBA degree examination was on 7.4.2006 and the 1[st] respondent therefore had only two years eight months and twenty one days of post qualification experience in a managerial capacity. Since the inclusion of the petitioner in the ranked list and his subsequent advice and appointment as DGM was on a mistaken understanding of facts, the KPSC had proceeded to take steps to cancel the advice and the consequential appointment, which are perfectly legal and valid. It is contended that the notification provided for three years of post qualification experience and since the petitioner did not have such experience, the action taken against him was perfectly justifiable.
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3. The learned Standing Counsel appearing for the appellants placed reliance on the decision of a Full Bench of this Court in **Kerala Public Service Commission** v. **Reshmi K.R. and others** [2019 (5) KHC 875] to contend that there can be no relaxation of instructions in the application and where the application revealed illegalities or incorrect statements, further steps are liable to be taken in accordance with law.
4. The learned counsel appearing for the 1[st] respondent submits that the 1[st] respondent, who was the writ petitioner, had produced all relevant details with regard to his employment before the KPSC and that there was never any attempt to defraud the KPSC or to gain any undue advantage in the selection process. It is submitted that the petitioner had more than five years experience in managerial/supervisory capacity and that the aspect of the service as Senior Cooperative Inspector also counting as requisite service has been considered by the learned Single Judge. It is further contended that the provisions of Rule 10(ab) of Part II, KS & SSR are not applicable to the post and further, Rule 22(iii) of the KPSC Rules of Procedure have absolutely no application in
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the instant case since there is not even an allegation of any fraud played by the petitioner on the KPSC and that the appeal is, therefore, liable to be dismissed with costs.
5. Having considered the contentions advanced, we notice that the petitioner had produced experience certificate to show that he had worked as Secretary of a Scheduled Tribe Co-operative Society on deputation from 10.3.2003 to 31.12.2008. His contention was that he had rejoined service in the Co-operative Department as Senior Co-operative Inspector and had continued in the said post till he was selected for appointment pursuant to Ext.P2 notification. It is submitted that Ext.P1 show cause notice was dated 22.5.2018 and it was received by the petitioner only after he retired from service on 30.5.2018. It is further contended that a reading of the notice itself would show that a decision had been taken to terminate the petitioner's services and it was only after taking the said decision that the post decisional notice had been issued to the petitioner.
6. We further notice that the petitioner had been included in the ranked list for appointment to the post of DGM
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of the Palakkad District Co-operative Bank in the year 2011. He had been appointed and had continued in service as such. It was only seven years later, that is, on the eve of the petitioner's retirement that Ext.P1 show cause notice was issued by the KPSC. A reading of the show cause notice would reveal that the KPSC had already arrived at a conclusion that the petitioner was guilty of submitting false declarations before the KPSC and that his services are, therefore, liable to be terminated.
7. Rule 22 of the KPSC Rules of Procedure provides that candidates found guilty of enumerated misconduct shall be liable for disqualification or for removal or dismissal or disciplinary action or any one of the above. Rule 22(iii) provides as follows :-
“22(iii) Making of any false statement in the Application form or its Annexure or any document produced in connection with a selection or suppression of any material fact relevant to the selection from the Commission.”
Therefore, apparently it is only in a case where a candidate is found guilty of making any false statement in connection with the selection that the action under Rule 22(iii) can be initiated.
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Ext.P8 specifically refers to Rule 22(iii) and states that a decision has been taken to require the appointing authority to take steps to terminate the service of the petitioner after conducting due disciplinary enquiry.
8. It is the specific case of the 1[st] respondent that there was no willful falsification or suppression involved in the instant case. All the details with regard to the qualifications and experiences of the 1[st] respondent had been fully and factually disclosed before the KPSC. A perusal of Ext.P5 call letter, especially the noting made in the bottom therein, would establish that the KPSC had specifically considered the sufficiency of the experience certificates produced by the 1[st] respondent and required of him to produce a fresh experience certificate from the Assistant Registrar of Co-operative Societies in the prescribed format, which the 1[st] respondent had complied with. The KPSC apparently had failed to notice the date of acquisition of the qualification by the 1[st] respondent and had granted him the benefit of experience in managerial capacity as claimed by him from 2003 onwards. The 1[st] respondent, who had been selected for appointment, had been
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advised, appointed and had continued in service for seven years and it was only a week before his date of superannuation that the notice under Rule 22(iii) was issued by the KPSC. The 1[st] respondent has a specific case that the notice was received by him only after his retirement. In the above factual scenario, we are of the opinion that the decision relied on by the appellants has no application to the facts of the instant case.
9. The specific contention raised by the 1[st] respondent that he had continued in the post of Senior Co-operative Inspector which was considered as a supervisory post by the Government as well as by the appointing authority has also been considered by the learned Single Judge. Though it is contended by the learned counsel for the appellants that Ext.P1 is only a show cause notice, a reading of the notice itself would show that a decision has been taken by the KPSC and that the hearing proposed would only be a post decisional one. Moreover, in a case where the jurisdictional prerequisites for the invocation of the power under Rule 22(iii) are lacking, we are of the opinion that an exercise as proposed in Ext.P1 would be totally illegal.
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10. The act of the appellants in proposing cancellation of advice made in the year 2011 by Ext.P8 notice issued, at best, on the eve of retirement of the employee, that too, after having decided to proceed with the penal action against him was completely an illegal exercise. This is more so, in the absence of any sustainable material to show that the 1[st] respondent was guilty of making any false statement or suppression of any material fact in the application.
In the result, we are of the opinion that the judgment of the learned Single Judge does not require any interference in this intra court appeal. The Writ Appeal fails and the same is, accordingly, dismissed.
## **Sd/-**
**ANU SIVARAMAN**
**JUDGE**
**Sd/C. JAYACHANDRAN JUDGE**
Jvt/12.9.2023
