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M.K. Santhamma Vs. the Kerala Public Service Commission and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 6741 of 1981-C
Judge
Reported inAIR1983Ker84
ActsConstitution of India - Articles 14, 16, 16(4) and 315; Kerala Public Service Commission Procedure Rules - Rule 22
AppellantM.K. Santhamma
RespondentThe Kerala Public Service Commission and anr.
Appellant Advocate S. Parameshwaran and; R. Nathyananadan, Advs.
Respondent Advocate Govt. Pleader and; T.P.K. Nambiar, Adv.
DispositionPetition allowed
Cases ReferredG. v. T.R.C.
Excerpt:
.....those responsible for giving her the stamp of that class had failed in their duty by making the relevant entry in her s. it may still fail in its duty if it attaches too much weight to one relevant factor and too little to others, and thereby reaches a decision which is 'preposterous' or 'shocking'.that the petitioner made an unauthorised entry in her s. 9. section 68 of the education act, 1944 empowered the secretary of state to give directions to a local education authority if he was satisfied that the authority was proposing to act unreasonably with respect to powers or duties exercisable under this act; 671):-to my mind, if a statute gives a minister power to take drastic action if he is satisfied that a local authority have acted or are proposing to ad improperly or unreasonably,..........those responsible for giving her the stamp of that class had failed in their duty by making the relevant entry in her s.s.l.c. book. all that she did therefore was to do something which others should have done, in order to effectuate her claim. to hold that that amounted to a misconduct serious enough to be visited with what could conceivably be the maximum penalty, is to act mechanically and arbitrarily, and to forget the behests of articles 14 and 16.8. the widest discretion may sometimes have to be controlled by imposing minimum standards of reasonableness. an authority may not stray into the path of irrelevancies; it may still fail in its duty if it attaches too much weight to one relevant factor and too little to others, and thereby reaches a decision which is 'preposterous' or.....
Judgment:
ORDER

M.P. Menon, J.

1. The petitioner was one of the applicants for selection to the post of staff Nurse, and was ranked as number 467 in the ranked list brought into force by the Public Service Commission, with effect from 20-12-1980. There was however some doubt about the entry in her S. S. L. C., book relating to community, and the commission referred the matter to the Commissioner for Government Examinations, for verification. The Commissioner issued a notice to the petitioner. She admitted that the relevant column was, originally blank and that she herself had filled it up by inserting the word 'Ezhava'. But the Commissioner found, after due enquiry, that the entry was correct, though unauthorised. A duplicate S. S. L. C. book was therefore issued and the Commissioner held that no further action was necessary.

2. But the Public Service Commission thought that the making of the unauthorised entry amounted to tampering with the S. S. L. C. book, even if the entry was not false. Rule 22 of the Kerala Public Service Commission Rules of Procedure empowers the Commission to proceed against a candidate if he or she is found guilty of misconduct. Attempts to influence the Commission, its staff and examiners, attempts to prefer false complaints, making of false statements in the application form, 'production of any false or tampered document', improper behaviour in connection with interviews and examinations, tampering with answer books and the like are all defined items of misconduct under the rule. The Commission therefore issued a notice to the petitioner to show cause why her name should not be deleted from the ranked list, for tampering with the S. S. L. C. book. She replied that the entry was made bona fide and truthfully and without knowing that it was such, a serious matter. By Ext. P12 order, however, the Commission rejected the explanation as unsatisfactory, and removed her name from the list.

3. This writ petition is directed againstExt. P12.

4. One does not know under what power the P. S. C. has framed its Rules of Procedure. But it is a high constitutional body entrusted with the task of selecting candidates for appointment to public services, and it should have some disciplinary power over such candidates, to prevent unqualified people from getting into the services by illegitimate means and on the strength of false certificates relating to qualification, age, community etc. Conceding that power, however, the question remains whether it has been properly exercised in the present case. The mere existence of a power may not justify its exercise and the manner thereof, in every case.

5. Ext. P-1 is a copy of the petitioner's School Admission Register. She was born in 1944. Her father was a 'coolie'. She belonged to the Ezhava Community. After studying up to standard X, she left school in 1966, 'to join the nursing course'. Children of middle class parents ordinarily complete S.S.L.C. by the age of 15 or 16 years, and leave school for joining colleges. The petitioner was able to reach the Xth standard only by the age of 22, and all that she could look for was a nursing career. Social and economic backwardness is writ large on the data supplied by Ext. P-1. By reason of some omission on the part of those responsible for making the necessary entries, the column in her S.S.L.C. book relating to community remained blank. She supplied that omission. Technically, that was tampering with a document. But what she entered was the truth and nothing but the truth, as could be seen from Exts. P-1 and P-10, and also from the result of the enquiry held by the Commissioner for Government Examinations. Even the P.S.C. has no case that the entry was false. The petitioner had owned up the mistake, both before the Commissioner and the Commission. There was no attempt to evade responsibility Or conceal the truth. Her prayer in Ext. P-11 was that she may be excused for doing something which, to her knowledge, was innocuous. Despite all these, the Commission removed her from the list, simply holding that her explanation was 'not satisfactory'. She is now more than 38 years old, and the effect of Ext. P-12 is to practically debar her from getting any employment under the State.

6. It appears to me that the Public Service Commission failed to address itself to all the relevant aspects of the case, when it, took Ext. P-12 decision. Irregularities, should be curbed, and the guilty should be punished. But the gravity of the misconduct and the punishment imposed should be rationally related. Counsel for the Commission contends that this Court cannot sit in appeal over the decision of the Commission in matters like these. I agree that it cannot be done ordinarily. The matter is in their discretion. But are there unreviewable discretionary powers, or absolute discretions totally immune from judicial scrutiny? It seems to me that all discretions must be exercised reasonably and in good faith, to promote the purpose for which they are granted, and with due regard to the impact on the rights affected. A discretion is not to be exercised capriciously, arbitrarily or even mechanically. The items of misconduct enumerated under Rule 22 are all designed to curb dishonest and improper conduct, and not to penalise errors of judgment or technical mistakes. When the rule speaks of false and tampered documents, 'tamper' has to get some colour from 'false', in the context of misconduct and punishment. With regard to age, qualification and other relevant particulars, the Commission itself was of the view that the petitioner was suitable for being selected. Their only doubt was with regard to her community a matter relevant for reservation of posts. That doubt was cleared by the Commissioner for Government Examinations, and a duplicate S.S.L.C. book was also issued. The socalled tampering amounted to no more than furnishing correct information, though the manner in which it was done was unauthorised. If the purpose of Rule 22 is to prevent the making of false claims and to punish those who make such claims, the petitioner had made no false claim at all. The power under the Rule is to be exercised for that purpose, and not for penalising everything that may generally be regarded as immoral or objectionable.

7. It is now settled law that Article 14 of the Constitution strikes not only at discrimination in the orthodox sense of the term, but also at arbitrariness in general. The power of judicial review in this country is thus wider; the courts can hold even the highest authorities to the leading strings of fair-play and reasonableness. Article 16(4) providing for reservation of appointments in favour of backward classes has to be read along with Article 14. The petitioner was entitled for preference as a member of a badward class. Those responsible for giving her the stamp of that class had failed in their duty by making the relevant entry in her S.S.L.C. book. All that she did therefore was to do something which others should have done, in order to effectuate her claim. To hold that that amounted to a misconduct serious enough to be visited with what could conceivably be the maximum penalty, is to act mechanically and arbitrarily, and to forget the behests of Articles 14 and 16.

8. The widest discretion may sometimes have to be controlled by imposing minimum standards of reasonableness. An authority may not stray into the path of irrelevancies; it may still fail in its duty if it attaches too much weight to one relevant factor and too little to others, and thereby reaches a decision which is 'preposterous' or 'shocking'. That the petitioner made an unauthorised entry in her S.S.L.C. book was a relevant factor; but that was not the only relevant factor to be taken into account.

9. Section 68 of the Education Act, 1944 empowered the Secretary of State to give directions to a local education authority if he was satisfied that the authority was proposing to act unreasonably with respect to powers or duties exercisable under this Act; and the question was raised, in Secy. of State v. Tameside (1976) 3 All ER 665, how far the satisfaction of the Secretary of State was subject to judicial control. Lord Denning M. R. said (at p. 671):---

'To my mind, if a statute gives a Minister power to take drastic action if he is satisfied that a local authority have acted or are proposing to ad improperly or unreasonably, then the Minister should obey all the elementary rules of fairness before he finds that the local authority are guilty Or before he takes drastic action overruling them............ the Minister must direct himself properly in law. Ho must call his own attention to the matters he is bound to consider.......And the decision to which he comes must be one which is reasonable in this sense, that it is, or can be, supported with good reasons or at any rate be a decision which a reasonable person might reasonably 'reach.'

When the case reached the House of Lords, Lord Wilberforce said (at pp. 681-682}:--

'The section is framed in a 'subjective' form -- if the Secretary of State 'is satisfied'. This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that, if a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must enquire whether those facts exist, and have been taken into account, whether the judgment has been made on a proper self direction as to those facts, whether the judgment has not been made on other facts which ought nor to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge.'

10. The question in REG. v. T.R.C., Ex parte National Federation of Self-Employed (1981) 2 WLR 722 was whether one section of taxpayers had locus standi to complain about the 'amnesty' given by the Board of Inland Revenue in favour of another section. The Board was charged with the care, management and collection of tax on behalf of the Crown; it enjoyed a wide managerial discretion as to the best means of obtaining for the national exchequer the best return practicable. But Lord Scarman refused to hold that the duty to collect tax was one exclusively owed to the Crown, and said: --

'......I am persuaded that the modern case law recognises a legal duty owed by the revenue to the general body of the taxpayers to treat taxpayers fairly, to use their discretionary powers so that, subject to the requirements of good management, discrimination between one group of taxpayers and another does not arise; to ensure that there are no favourites and no sacrificial victims. The duty has to be considered as one of several arising within the complex comprised in the care and management of a tax, every part of which it is their duty, if they can, to collect.'

The United Kingdom has no written constitution with an equality clause; yet, the question of 'discrimination' could arise in that country also if a public authority acted unfairly against the general body of taxpayers. Dealing with 'the duty of fairness as between one taxpayer and another', Lord Scarman added:--

'Is it a mere moral duty, a matter for policy but not a rule of law? If it be so, I do not understand why distinguished judges allow themselves to discuss the topic; they are concerned with law, not policy. And is it acceptable for the courts to leave matters of right and wrong, which give rise to genuine grievance and are justiciable in the sense that they may be decided and an effective remedy provided by the courts, to the mercy of policy? Are we in the twilight world of 'maladministration' where only Parliament and the Ombudsman may enter, or upon the commanding heights of the law? The courts have a role, long established, in the public law. They are available to the citizen who has a genuine grievance if he can show that it is one in respect of which prerogative relief is appropriate. I would not be a party to the retreat of the courts from this field of public law merely because the duties imposed upon the revenure are complex and call for management decisions in which discretion must play a significant role.'

11. The Public Service Commission, I repeat, may have a wide discretion; but that is no reason why the court's should make a retreat from the commanding heights of law and permit a genuine grievance to go unredressed. Where the decision of the Commission suffers from a failure to attach sufficient weight to all the relevant facts, where it amounts to a mere mechanical exercise of power and where it is found to be a decision which reasonable persons could not have reasonably arrived at, I think his Court has a duty to interfere.

I therefore set aside Exts. P-9 and P-12 and declare that the petitioner is entitled to be advised for appointment as a Staff Nurse on the basis of the ranked list. Original petition allowed as above. No costs.


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