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Dr. H. Nirmala Vs. State of Karnataka and Karnataka Public Service Commission - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 212 of 1983
Judge
Reported inILR1985KAR3462
ActsKarnataka Civil Services Rules, 1977 - Rule 20; Constitution of India - Article 226
AppellantDr. H. Nirmala
RespondentState of Karnataka and Karnataka Public Service Commission
Appellant AdvocateG.N. Seshagiri Rao, Adv.
Respondent AdvocateS.V. Narasimhan, HCGP
Excerpt:
.....essential opportunity and non-conformity with minimum requirements of rules of natural justice -- public service commission has no power to cancel appointment -- disciplinary action regarding employment not by public service commission but by government.;after selection and joining duty on 21-8-1980, show cause notice dated 19-11-1981 issued alleging suppression of correct income of family including that of petitioner and her father which exceeded rs. 10,000-00 on the basis of a salary certificate of father secured behind the back of the petitioner. petitioner submitted an explanation seeking proceedings to be dropped for the reasons set out therein. however, by a notification dated 17-6-1982, petitioner's selection was cancelled purporting to act under rule 20 also permanently..........to cancel her appointment. i can only support this view by the language and the scheme of the rule. rule 20 of the rules is as follows :'20. misconduct. - a candidate found guilty of impersonation or of submitting fabricated documents or documents which have been tampered with or of making statements which are incorrect or false or of suppressing material information or of using or attempting to use unfair means in an examination conducted for purposes of recruitment or otherwise resorting to any other irregular or improper means in connection with his recruitment may, in addition to rendering himself liable to a criminal prosecution and to disciplinary action, be debarred either permanently or for a specified period--(a) by the commission or other recruiting or examining authority.....
Judgment:
ORDER

Chandrakantaraj Urs, J.

1. The petitioner, Dr. (Smt.) H. Nirmala, was selected as Lady Medical Officer in the Department of Health and Family Welfare Services under the 1st Respondent-State of Karnataka. She was selected by the 2nd Respondent-Karnataka Public Service Commission as per the notification dated 15-3-1980 which is at Annexure-A to the Petition. Thereafter, she was appointed as a Lady Medical Officer by an order dated 9-7-1980 which is at Annexure-B to the Petition. She joined for duty however on 21-8-1980 as evanesced by Annexure-D to the Petition, pursuant to the posting order at Annexure-C dated 7th August, 1980. She has been continued in service at her posting. However, a show cause notice dated 19th November, 1981, was issued to her. In that show cause notice, a true copy of which is at Annexure-G to the Petition, it was stated that the 2nd respondent suspected that the petitioner had given false information in regard to her family income and obtained selection for the post of a Lady Medical Officer under respondent - 1 claiming the status of a person belonging to backward community. In other words, the gravamen of the charge was that she had suppressed, the correct income of the family including income of herself and her father which was more than Rs 10,000/-. She was asked to submit her defence within 15 days from the date of receipt of the notice and depending on her defence the enquiry would be held and if no explanation was received, enquiry would be proceeded ex parte. By a letter dated 4th May 1982 (I am informed from the Bar that time was extended to furnish the explanation) the petitioner explained that she was unemployed before her selection at the time of furnishing the application and therefore she had no income of her own and the income of the family solely came from her father's earnings. She emphasised that the certificate in the prescribed form was signed by her father and the Tahsildar and that she had no other knowledge than what was contained in the certificate. She in that circumstance requested the Public Service Commission to drop the proceedings. There-after by a notification dated 17th June 1982 issued by the 2nd respondent Public Service Commission, a true copy of which is at Annexure-J to the Petition, her selection was cancelled purporting to act under Rule 20 of the Karnataka Civil Services (General Recruitment) Rules, 1977 (herein-after referred to as the Rules) and also she was debarred permanently from appearing for any competitive examinations conducted by the Public Service Commission for selection of candidates for employment under the State. Aggrieved by the same, the petitioner has approached this Court under Articles 226 and 227 of the Constitution inter alia contending that the impugned notification dated 17th June 1982 is without the authority of law, without jurisdiction and contrary to all known principles of natural justice, denying opportunity to establish her innocence with reference to the charge against her. She has further asserted that she belongs to Kunchitiga community which is declared as one of the backward communities, subject however to the qualification on income.

2. The Respondents have filed the statement of objections. In that, it is claimed that the petitioner's father Shri H. Hanumantharayappa was working as a Superintendent in the establishment of a Minister. It was seen from the salary certificate dated 24-10-1979 that Shri H. Hanumantharayappa was drawing a sum of Rs. 10,610-20 per annum at the time the petitioner submitted her application for the post in question. Therefore, the Respondents drew the conclusion that the petitioner had suppressed the information and was guilty of misconduct as defined under Rule 20 of the Rules. They have denied that there was violation of the rules of natural justice in as much as the show cause notice was issued and reply obtained before issuing the notification at Annexure-J to the Petition.

3. It is in the light of these rival contentions that the matter has to be decided. The petitioner had no other opportunity than the furnishing of the explanation called for is not in dispute. Admittedly, 2nd respondent Public Service Commission relied upon what is described as the salary certificate of the petitioner's father who undisputedly was an employee of the Government at the point of time when the petitioner made the application which resulted in her appointment. Her own explanation is explicit that she had no other knowledge than what her father furnished in the prescribed form and the assertion that he was the sole earner of income in the family. It is not disputed by the Learned Government Pleader that neither the petitioner nor her father was confronted with the salary certificate on which the Public Service Commission founded its conclusion that the petitioner did not belong to the backward community, for the reason of the salary certificate as well as that the explanation offered was not tenable.

4. In this behalf it would be useful to notice that the power to issue Annexure-J has been exercised in accordance with Rule 20 of the Rules. According to that Rule, it is the candidate who has to be found guilty of impersonation, submitting fabricated document, documents that have been tampered with, incorrect statements or false statements or suppressing of material information or of attempting to use unfair means in an examination conducted for purposes of recruitment or otherwise resorting to any other irregularity or improper means in connection with his or her recruitment. Therefore, to drive home the charge in the case of the petitioner what was required to be demonstrated and established before action could be taken was that she had knowingly allowed her father to produce a certificate of income as well as his own declaration contrary to the facts which she knew. One cannot presume that a daughter or a son would know what the father's income is. It would be natural for the children to believe what the father has stated to be his true income, in other words, the charge of suppressing or falsely furnishing the correct income in order to get the benefit of backward community reservation the petitioner must be shown to have had the knowledge which the salary certificate established. In other words, apart from not confronting the petitioner or her father with the salary certificate the 2nd Respondent-Public Service Commission unilaterally relied upon that certificate which had been obtained behind the back of the petitioner. In fact, the Learned Counsel for the 2nd Respondent-Public Service Commission made available the records of the case. In the records there is only a reference to the salary certificate, a copy of which is also to be found. It is only on that noting that the decision was taken to act resulting in the impugned notification. That, I am convinced is not conforming to the minimum requirements of the rules of natural justice. The Supreme Court and the various High Courts including this Court have repeatedly held that the minimum requirements in any given case should be: (1) the delinquent or accused person must have knowledge of the charge and its imputation ; (2) the basis of that charge ; (3) the material on the basis of which that charge is going to be established ; (4) an opportunity to make a representation against such imputation of charge and the material relied upon and where found necessary an opportunity of being heard. If these four ingredients are not there, then there is not compliance with the requirements of rules of natural justice.

5. On the facts of this case I have no hesitation to come to the conclusion that the petitioner was aware of the charge but certainly not the material on the basis of which the charge was levelled against her. In fact it is not known whether the information as to salary of her father was obtained after her selection or before her selection. One must presume it was after her selection if not before her appointment having regard to the lapse of time between the date of application and the date of the impugned notification cancelling her selection debarring her from future competitive examinations. There is no doubt that the material relied upon was never brought to her notice. It is not the case of the respondents that such material was made known to her. If she had known she would have suitably replied and explained the position once again. If that opportunity was denied, a very vital and essential opportunity was denied to the delinquent. Therefore, the procedure followed cannot be held to be fair. In that view of the matter, this Court has no hesitation to come to the conclusion that the 2nd respondent-Public Service Commission has not afforded adequate opportunity to the petitioner to defend herself against the charge.

6. The next point urged by Shri G. N. Seshagiri Rao Learned Counsel for the petitioner is one of jurisdiction. It is contended by him that the 2nd respondent -Public Service Commission having regard to the provisions contained in Rule 20 of the Rules had been denuded of its jurisdiction the moment she was appointed by the Government and she joined duty in response to the appointment order. The thrust of the argument is that once she became an employee of the State Government, the 2nd respondent - Public Service Commission had no power conferred on it under the relevant rule either to cancel her selection or debar her from future competitions as the Government servant could only be subjected to the discipline of the employer and not of the 2nd respondent-Public Service Commission. I am of the view that this argument is partly tenable and partly untenable. Correct to the extent of calling for explanation in regard to the alleged misrepresentation of fact and claiming a benefit which she was not entitled to at the time of recruitment. Correct to the extent of having power to enquire whether misrepresentation was made or not. Also correct to the extent of debarring her from future competitive examinations but not to the extent of cancelling her selection because that selection had been acted upon and resulted in her appointment. The question of cancelling her selection is no more than mere academic exercise of power, as the 2nd respondent-Public Service Commission does not have the power to cancel her appointment. I can only support this view by the language and the scheme of the Rule. Rule 20 of the Rules is as follows :

'20. Misconduct. - A candidate found guilty of impersonation or of submitting fabricated documents or documents which have been tampered with or of making statements which are incorrect or false or of suppressing material information or of using or attempting to use unfair means in an examination conducted for purposes of recruitment or otherwise resorting to any other irregular or improper means in connection with his recruitment may, in addition to rendering himself liable to a criminal prosecution and to disciplinary action, be debarred either permanently or for a specified period--

(a) by the Commission or other recruiting or examining authority from admission to any examination or appearing for any inter-view for selection of candidates ; and

(b) by the Government from employment under it.'

Careful analysis of the above Rule and the language employed gives the following results. While the major portion of the paragraph is devoted to defining or describing the acts of misconduct, there is a declaration that the candidate renders himself liable to a criminal prosecution, disciplinary action or invite debarring permanently or for a specified period. In other words, the candidate invites upon himself three modes of punishments cumulatively or separately. One is the criminal prosecution. The other is disciplinary action which may mean any one of the several punishments that can be imposed on an employee by the master in accordance with the Rules governing such relationship and such disciplinary action. The third is debarment for limited period or permanently. Undoubtedly, the criminalprosecution can be launched by the employer as well as the 2nd respondent-Public Service Commission. But disciplinary action in the sense it is understood in service jurisprudence cannot be exercised by the 2nd respondent - Public Service Commission as it is not the disciplinary authority under the relevant Cadre and Recruitment Rules where the selected candidate has been duly appointed by the Government.It certainly can impose punishment debarring the candidate from future competitive examinations for any given period. This becomes very clear by the way the authorities specified under clause (a) and (b) of that Rule are to exercise the power of punishment. The Public Service Commission or other recruiting or examining authorities may debar or deny admission to any examination or for any interview for selection of candidates. Reference is to the candidates, thereby clearly indicating the legislative intent that those who fall under clause (a) for the appropriate punishment must necessarily exclude those who fall under clause (b) of that Rule which provides for the Government to act by denying employment to such a candidate. To deny employment is a stage which must necessarily precede the appoint-ment. Once the candidate is appointed question of denying appointment does not arise. It will only mean termination of employment which in turn implies disciplinary action to which reference is made in the main paragraph of the Rule.

7. No doubt Shri S.V. Narasimhan, Learned High Court Government Pleader, drew my attention to the ruling of the Kerala High Court in the case of S. Jayadev and two others -v.- Kerala Public Service Commission, Trivandrum 1974(1) Labour Law Journal 146. Undoubtedly, in that case that High Court took the view that Public Service Commission was competent to cancel the advice for appointment if it was subsequently found that such advice was made under a mistake. I have already pointed out that such a cancellation is a mere academic exercise if the advice has resulted in an appointment being made. What apparently compelled the Kerala High Court to come to that view was the language of the Rule which fell for consideration there, namely, Kerala State and Subordinate Services Rules. (Rule 3(c) is as follows : -

'Notwithstanding anything contained in these rules, the Commission shall have the power to cancel the advice for appointment of anycandidate to any service if it is subsequently found that such advice was made under some mistake. On such cancellation the appointing authority shall terminate the service of the candidate :

Provided that the cancellation of advice for appointment by the Commission and the subsequent termination of service of the candidate by the appointing authority shall be made within the period of probation of the candidate.'

8. It is clear from the difference in language that that Court had no other alternative than to come to theconclusion which it did. Under the Kerala Rule exercise of its power by the Public Service Commission is never academic in as much as once a cancellation is made, there is a mandate in the Rule directing the appointing authority to terminate the services of the candidate. Therefore, once the cancellation is made, termination must be resorted to by the employer.

9. In either event it is unnecessary to emphasise that the Public Service Commission must conform to the rules of natural justice before the cancellation is made of its advice or selection as in the instant case.

10. The latter argument urged for the petitioner is not free from doubt and controversy. But as on this date there is no termination order which is challenged before this Court in this proceeding. However, the Learned Government Pleader has brought to my notice the correspondence between the Government and the Secretary to the Respondent-Public Service Commission by which the Public Service Commission has been informed that the petitioner's services have been terminated and the Respondent-Public Service Commission may decide whether to prosecute her and her father in a Criminal Court.

11. However, that may be, for the reason I have given above, the cancellation of her selection and debarment from taking future competitive examinations is in violation of the rules of natural justice and therefore must be struck down. It is accordingly struck down reserving liberty to the Public Service Commission to proceed further from the stage of the receipt of the explanation furnished by the petitioner and afford her further opportunity to meet the charge against her in respect of the salary certificate of her father to explain any discrepancy that may be there in the salary certificate and the declaration made by her father. While on this point, I should not fail to point out that the Tahsildar also has certified the income to be less than Rs. 10,000/-. Therefore, Public Service Commission is under an obligation to examine the Tahsildar in question and find out on what basis he certified the income of the petitioner's father to be less than Rs. 10,000/-. If it was based on any legitimate material then the petitioner should have the advantage of the certificate issued by the Tahsildar notwithstanding the salary certificate. In any event, the petitioner and her father must be confronted with the salary certificate and their explanation obtained in that behalf.

12. Anything expressed by me in regard to the second of the contentions concerning the jurisdiction in thisproceeding should be considered no more than what is said but should not be construed as final as the 2nd Respondent-Public Service Commission was not the proper authority to meet that aspect of the case made out against the State of Karnataka in regard to jurisdiction. In an appropriate case, this question will be finally decided.

13. Rule will issue and be made absolute to the extent indicated above. No costs.


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