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K.J. Antony Vs. Public Service Commission and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKerala High Court
Decided On
Case NumberOriginal Petn. No. 68 of 1955 (T)
Judge
Reported inAIR1958Ker352
ActsConstitution of India - Articles 226 and 311; Travancore-Cochin Public Service Commission Business Rules - Rule 5
AppellantK.J. Antony
RespondentPublic Service Commission and anr.
Appellant Advocate M.N. Parameswaran Pillai and; P. Ramakrishna Pillai, Advs.
Respondent AdvocateGovernment Pleader
Excerpt:
.....- re-registration - articles 226 and 311 of constitution of india and rule 5 of travancore-cochin public service commission business rules - candidate thrown out of service due to want of vacancy - candidate entitled to apply to commissioner along with relieving certificate from department concerned for re-registration of his name - such right cannot be denied to candidate merely on ground that head of department has noted in relieving certificate that conduct of candidates not very satisfactory - candidate appointed to public service can be removed from service for any misconduct only after alleged misconduct duly inquired into with notice to candidate concerned and after definite finding of guilt of misconduct - refusal to re-register name of candidate is also denial of candidate's..........to do so has resulted in great hardship to the petitioner.5. the business rules framed by the publicservice commission make it clear that a candidate who is thrown out of service, due to wantof vacancy, is entitled to apply to the commissionalong with a relieving certificate from the department concerned, for re-registration of his name,so that his, claims for re-employment may not gofor, default, clause (a) of rule 5 of the said rulesstates that 'on receipt of such relieving certificates, thecandidates' names will be re-registered by thecommission and they will have a preferentialclaim, subject to the rules of rotation to the postsfrom which they stand retrenched, over fresh recruits.' the clause further states that 'seniority among re-registered candidateswill be based on the date.....
Judgment:

1. The petitioner Shri K.J. Antony was employed for some time as a clerk in the Joint Stock Companies department of the Travancore-Cochin State. He was appointed to that post on the basis of the selection and advise made by the State Public Service Commission, He was relieved from service on 5-2-1955 on the ground that the vacancy in which he was acting as clerk had terminated. His complaint that the 2nd Respondent who was at that time the Registrar of Joint Stock Companies department, was acting mala fide in relieving him and at the same time allowing one Shri Vijayamma who was recruited as clerk more than a year after the recruitment of the petitioner, to continue in service.

His representations to have that mistake rectified and to get himself reinstated in service did not find favour with the authorities concerned and thereupon he has filed O. P. No. 20 of 1955 invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution for the issue of appropriate writs cancelling his wrongful termination of service and directing his reinstatement. In the meanwhile, the petitioner filed another application before the Public Service Commission to get his same re-registered for further appointment in the service of the State,

Along with that application he produced the relieving certificate issued to him by the 2nd Respondent, Copy of that relieving certificate has been produced in this Court and marked as Ext. A. The Public Service Commission is represented in this O. P. by the Secretary of the Commission who is the first Respondent. The Public Service Commission refused to entertain the petitioner's application for re-registration. The Commission went one step further and passed an order purporting to debar the petitioner from service for a period of 2 years with effect from 19-4-1955. Copy of the memo dated 23-5-1955 to that effect issued to the petitioner has been produced by him and it has been marked as Ext. B. The memo is in these terms :

'The petitioner is informed that the departmental superior under whom he was last working has reported that his conduct was not very satisfactory while in service. He is therefore debarred from service for a period of two years with effect from 19-4-1955.'

'The petitioner may apply for re-employment after the period referred to above is over.'

On receipt of this memo the petitioner applied to the Public Service Commission for a reconsideration of the order debarring him from service for a period of two years. In that application he had explained the position that there was no basis for the remark made by the 2nd Respondent that the petitioner's work was not satisfactory while in service and that such a remark was made as a result of the 2nd Respondent's malice towards the petitioner. That application was also summarily rejected by the Public Service Commission and a memo to that effect was issued to the petitioner on 20-10-1955. Copy of that memo has been produced in this case and it has been marked as Ext. C and it runs as follows :

'The petitioner is informed that there are no fresh grounds in his present petition calling for a reconsideration of the orders of the Commission contained in this office memo referred to as item 2 above.'

'Item 2 above' mentioned in Ext. C is Ext. A. Aggrieved by these orders the petitioner has filed this petition invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution and praying that appropriate writs may be issued quashing the orders Exts. B and C and issuing the necessary directions to the first Respondent to entertain the application for re-registration filed by the petitioner and to deal with it in accordance with rules.

The order embodied in Ext. B has been challenged as one passed by the Public Service Commission in excess of their powers. It is also contended that the said order was passed without conforming to the rules of natural justice and that the petitioner was condemned and punished without any notice to him of any charges in justification of the same and without hearing him. The petitioner has also contended that the 2nd Respondent was actuated by malice in making the adverse remarks against him in column 9 of the relieving certificate Ext. A. The petitioner has sought for a cancellation of that remark also.

2. In the counter-affidavits filed by both the Respondents, they have denied the allegations made against the validity of the orders embodied in Exts. B and C and of the remarks contained in Ext. A. They have sought to maintain that these orders and remarks are all legal and proper and have been passed in exercise of the lawful authority possessed by them.

3. The order embodied in Ext. B is on the face of it an order of punishment passed against the petitioner. It has not been possible for the Public Service Commission to show that the Commission has got the power and the jurisdiction under any statute or Standing Order to inflict such a punishment on candidates applying to the Commission for selection to the public service. That the Commission has no such power and jurisdiction is practically conceded in paragraph 10 of the counter-affidavit filed by the 1st Respondent.

Therein it is stated that the words 'debarred from service for two years' in the order Ext. B were intended to mean only that the re-entry of the petitioner's name as a candidate for recruitment has been refused for the specified period of two years. That such was the intention of the Commission in passing the impugned order can-not be gathered from the order. The order speaks for itself and the words used in it can only be understood in their plain and natural meaning.

As the order stands, it is undoubtedly an order of punishment. Since the Public Service Commission has not been empowered to pass such an order, the complaint of the petitioner that the order is ultra vires of the powers of the Commission has to be accepted as real and well-founded. It is also seen that such an order was passed without previous notice to the petitioner to enable him to vindicate his position and to show that there was no justification for condemning him in the manner done by the passing of the impugned order.

Clearly, therefore, the Commission had violated the, rules of natural justice in passing such an, order behind the back of the petitioner. In this view of the matter, the contention advanced on behalf of the Commission that the order Ext. B 'is valid and proper and in accordance with law, equity and justice' has only to be repelled. As already stated, it is not shown that the order was passed under any legal authority. The order is also unsupportable on grounds of equity and justice. These reasons in themselves are sufficient to justify interference with those orders and the cancellation of the order embodied in Ext. B and also the subsequent order Ext. C by which the petitioner's request for a reconsideration of the first order was summarily turned down.

4. It is not disputed by the Respondents that the petitioner is duly qualified for recruitment as a clerk in the service of the State. In fact, his application for such recruitment had been entertained in the first instance and he was actually recruited as a clerk and appointed to that post. The only ground on which he was relieved from that post was that there was no available vacancy in which he could be retained.

When such, a situation is reported to the Public Service Commission, the normal thing tobe done is to re-register his name for further appointment. But it is urged on behalf of the Commission that it has the right to refuse re-registrationunder certain circumstances and that the matteris regulated by rules. Here again, the commissionhas not been able to produce any statutory ruleson the subject.

All that the Commission, were able to produce is a set of rules framed by the Commission itself to regulate the course of business of the Commission. These rules, are designated as 'The Travancore-Cochin Public Service Commission Business Rules'. Rule 5 of these rules relates to the re-registration of candidates thrown out of service. Clause (b) of Rule 5 contains the provision that is relevant for the purpose of the present petition.

That clause states that the Commission may refuse re-registration if it is satisfied that the work and conduct of the candidate as noted by the departmental superior in his certificate are not satisfactory. Even if this rule is to be accepted as valid, it is obvious that the commission can refuse re-registration only if they are satisfied that the work and conduct of the candidate are not satisfactory. The emphasis is on the satisfaction of the Commission and not of the departmental superior:

The natural implication is that the Commission 'has the liberty to ignore any adverse remarks that may be made against a particular candidate by a departmental superior and to form its own independent conclusion whether the work and conduct of the candidate had been so unsatisfactory as to justify a re-registration of his name. The order embodied in Ext. B does not show that the Commission had independently considered this matter. On the other hand, it is seen that the Commission was acting merely on the adverse remark that had been made by the 2nd Respondent against the petitioner in the relieving certificate Ext. A. Even there the remark did not obviously satisfy the condition laid down in Clause (b) of Rule 5. The remark is to the following effect:

'Conduct not very satisfactory and work satisfactory.'

Such a remark would not attract Clause (b) of Rule 5 which justifies a refusal of re-registration, only on the Commission being satisfied that both the work and the conduct of the candidate are not satisfactory. In the present instance the 2nd Respondent's remark was that the work of the petitioner was satisfactory. As for his conduct, the 2nd Respondent was not prepared to go to the extent of saying that his conduct was not satisfactory.

The utmost that he has gone is to remark that the petitioner's conduct was not very satisfactory. The petitioner's case is that even in the matter of making such a remark the 2nd Respondent was actuated by malice against him and that there is nothing in his service book to justify such a remark. The 2nd Respondent has not been able to produce any record to show that during the period the petitioner was in service there was any occasion for his conduct to be adversely commented upon.

What induced the 2nd Respondent to make such an adverse remark, against the petitioner in the relieving certificate Ext. A has been explained by the 2nd Respondent himself in his counter-affidavit. The only charge levelled against the petitioner is that he had sent up repeated representations to the higher authorities challenging the propriety and the correctness of the 2nd Respondent's order relieving the petitioner from service and at the same time retaining in service one Shri. Vijayamma who was definitely junior to him.

The petitioner was clearly within his rights in sending up such representations to get his rights vindicated and he cannot be taken to task for having exercised that right, The 2nd Respondent as the head of the department should not have been upset by the challenge made against the validity of his own orders by the aggrieved subordinate and should not have entertained any grudge or malice against the petitioner on that account. O. P. 20 of 1955 filed by the petitioner seeking a cancellation of the 2nd Respondent's order relieving him from service, has been disposed of by us today by holding that no writs could be issued as prayed for by the petitioner.

All the same, it has been definitely found in that order that the petitioner's grievance that the 2nd Respondent was acting wrongly & against the rules in reliving the petitioner while retaining in service Shry. Vijayamma who was junior to him, was real and well-founded Thus it cannot be said that the petitioner was guilty of any misconduct in trying to ventilate his grievance and seeking redress thereof. The 2nd Respondent who did not like such a move on the part of the petitioner, appears to have been influenced by the resultant malice in making a remark in the relieving certificate Ext. A that the conduct of the petitioner was not very satisfactory.

It will be extremely unfair and unjust if the entire career of the petitioner is to be wrecked solely on the basis of such a remark. To do so will be to place the subordinate officers of a department at the absolute mercy of the head of the department. At least when the 2nd Respondent had explained the reason why he had made an adverse remark against the conduct of the petitioner in the relieving certificate Ext. A, the Public Service Commission should have realised the danger of placing undue reliance on that remark in condemning the petitioner and in refusing to re-register his application.

Even in the rules framed by the Commission for its own guidance, there is nothing compelling them to adopt such a course. A duly qualified candidate can be denied the opportunity of trying his chances of selection at the hands of the Public Service Commission, only on very substantial and valid grounds clearly proved against him. If only the Public Service Commission had independently considered the case of the petitioner on its merits, we are sure that the Commission would have been satisfied that the order embodied in Ext. A was unjust and undeserved and would have rightly reconsidered it and cancelled it. The failure to do so has resulted in great hardship to the petitioner.

5. The business rules framed by the PublicService Commission make it clear that a candidate who is thrown out of service, due to wantof vacancy, is entitled to apply to the Commissionalong with a relieving certificate from the department concerned, for re-registration of his name,so that his, claims for re-employment may not gofor, default, Clause (a) of Rule 5 of the said rulesstates that

'On receipt of such relieving certificates, thecandidates' names will be re-registered by theCommission and they will have a preferentialclaim, subject to the rules of rotation to the postsfrom which they stand retrenched, over fresh recruits.'

The clause further states that

'Seniority among re-registered candidateswill be based on the date of earliest effectiveadvice.'

This is a very valuable right recognised in favour of a candidate thrown out for want of vacancy. This right cannot be denied to him merely on the ground that the head of the department in which he was working has noted in the relieving certificate that his conduct was not very satisfactory. A candidate who has been appointed to the Public Service can be removed from such service for any misconduct on his part, only after the alleged misconduct has been duly inquired into, with notice to the candidate concerned, and after it is definitely found that he is guilty of such misconduct.

Refusal to re-register his name is also in substance and in effect a denial of the candidate's right to be re-employed and to have his seniority maintained on the basis of the date of earliest effective advice, and hence re-registration can be refused only if any misconduct is proved against him in the manner indicated above. It is for the Commission to decide whether the adverse remark made against the candidate concerned by the head of the department in the relieving certificate issued by him, requires further investigation so as to form a final conclusion whether the candidate's right of re-employment should be denied to him.

In the present instance, the Commission appears to have been of the view that such a right cannot be denied to the petitioner. This is obvious from the direction contained in the memo Ext. B that the petitioner may apply for re-employment after the period for which he was debarred from service is over. There can, therefore, he no doubt that the Commission did not consider the petitioner disqualified to be re-entertained merely because the head of the department had noted in the relieving certificate that the petitioner's conduct was not very satisfactory. After having come to such a conclusion, there was no justification for the Commission to keep out the petitioner for a period of 2 years by passing the impugned order Ext. B.

6. Coming to the remark made by the 2nd Respondent in the relieving certificate Ext. A, it has to be stated that the same is not liable to be reviewed by this Court. As the head of the department, he was perfectly within his right in disclosing his feelings about the conduct of the petitioner by making the remark which he thought the candidate deserved. But if on a consideration of all the relevant circumstances it is seen that in making such an adverse remark the head of the department was induced by malice towards the candidate concerned, the Public Service Commission will be perfectly justified in ignoring such adverse remarks, instead of acting upon the same as a proper basis for condemning the candidate and denying him his legitimate right to get re-employment.

7. In the result this petition is partly allowed and the order Ext. B passed by the first Respondent debarring the petitioner from service fora period of two years with effect from 19-4-1955and the subsequent order Ext. C refusing to reconsider the order Ext. B, are both quashed. Itis further directed that the adverse remark madeby the 2nd Respondent against the petitioner inthe relieving certificate Ext. A will be ignoredand the petitioner's application for re-registrationwill be dealt with on its merits and in accordancewith the rules, so that he may get a chance tohave his legitimate grievance redressed. In otherrespects the petition stands dismissed. We makeno order for costs.


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