Aruna vs Kerala Public Service Commission and Others

K.A. Abdul Gafoor, J.—The Petitioner has approached this Court challenging Ext. P-2 order. By Ext. P-2 her advise for appointment to the post of Junior Assistant/Cashier in the service of the Kerala State Electricity Board has been cancelled by the Public Service Commission on the ground that she "failed to report for duty as stated by the Chief Engineer (Electrical) Kerala State Electricity Board".

The Petitioner''s father was an employee in the Kerala State Electricity Board. They were residing in Thiruvananthapuram within the postal area of Nalanchira Post Office. At that time the Public Service Commission issued a notification inviting application for appointment to the post of Junior Assistant/Cashier in the services of the Electricity Board. The Petitioner was an applicant. The Petitioner was included in the rank list prepared by the Public Service Commission as rank No. 1433. The tank list was published in March, 1992. The Petitioner''s father retired in 1993 and this resulted in shifting of the family to their native place at Cherthala. The Petitioner submits that she had notified to the 4th Respondent, Post master of Nalanchira Post Office the change in her address and requiring him to send postal articles addressed to her in her new address, namely, Arun Vihar, Cherthala South P.O., Alapuzha Dist. The Petitioner was getting several postal articles as re-directed from Nalanchira post office. While so the Petitioner received a communication to re-directed on 29th June 1995. Ext. P-1 is the cover of that postal article. It specifically shows that it was addressed to the Petitioner in her address at Nalanchira Post Office and was re-directed to Cherthala South, Alapuzha. Ext. P-1 cover contained Ext. P-2 communication canceling her advise for appointment. It is at that time the Petitioner for the first time came to know about her advise and an appointment said to be issued by the second Respondent. The Petitioner did not get any advise or any appointment order. So she appraised this position before the first Respondent, Public Service Commission with a copy to the second Respondent seeking revocation of Ext. P-2 cancellation. It seems that the Public Service Commission had addressed the second Respondent in Letter No. R. 1B(2)8757/92-G.W., dated 10th July 1995 referred to as item No. 5 in Ext. P-4 with regard to the Petitioners''s case. Thereupon the Electricity Board in Ext. P-4 letter addressed the Public Service Commission that there are enough vacancies of cashier still existing and that revival of advise will not cause any problem to give her appointment. In spite of that also there was no action from the Public Service Commission. It was in the above circumstances the Petitioner approached this Court.

The Public Service Commission had filed a counter affidavit producing there with a representation submitted by the Petitioner pursuant to Ext. P-2 on 30th June 1995. She had submitted to the Public Service Commission about her instruction given to the Nalanchira Post Master about the change of address and the above details. The Public Service Commission submits that "the Chief Engineer (Electrical General), K.S.E.B. in the letter dated 18th February 1995 has informed the commission that as the 150 candidates including the Petitioner advised to the post have not joined duty and therefore the advice tendered in respect of the candidates may be cancelled and substitutes advised. The Commission being satisfied that the appointing authority has issued the appointment order in terms of the rules, the advise in respect of the 150 candidates including that of the Petitioner was cancelled and substitutes were advised on 5th April 1995 as per Rules". This cancellation was informed to the Petitioner in Ext. P-2 and that was served on the Petitioner in the re-directed address as evidenced from Ext. P-1 photo copy of the cover containing Ext. P-2. The Public Service Commission did not send advise letter by registered post. There is also no case for Public Service Commission that such advise letter was sent by registered post to the Petitioner. Thus the Petitioner was not aware of her advise. The advise was cancelled by Ext. P-1 on the reason that the Electricity Board had informed that the Petitioner failed to report for duty. This cancellation is in terms of Rule 18(1) of the Public Service Commission Rules of procedure, which reads as follows:

The advise of a candidate made by the Commission for recruitment to any post in the service who does not join duty in the post in pursuant of an order of appointment shall, unless the Commission are satisfied that the order has not been sent to the candidate by registered post with acknowledgment due be cancelled and his name deleted from the rank list.

The Rules of Procedure are not statutory rules. Even then it is an accepted procedure followed by the Public Service Commission but before canceling the advise, the Public Service Commission has to verify whether the order of appointment has been sent to the Petitioner by registered post. Ext.P-2 does not indicate any application of mind by the Public Service Commission as to whether it is satisfied all the requirement of Rule 18(1). Ext. P-2 does not show that the Public Service Commission has been informed by the Chief Engineer that appointment order has been sent by registered post. Even if it is sent by registered post whether it is in the correct address of the Petitioner. Thus Ext. P-2 was issued automatically and without applying mind and without satisfying the requirement of Rule 18(1) extracted above. On that reason itself Ext. P-2 is liable to be quashed. Even going by the counter affidavit of the Public Service Commission the following aspects is revealed.

The Commission has forwarded the above petition to the K.S.E.B. for their remarks. The K.S.E.B. has stated that appointment order was issued to the Petitioner by registered post and that the postal authority has returned the same with remarks ''Addressee Left''.

This shows that the application of mind was subsequent to the issuance of Ext. P-2 and the Public Service Commission was informed that the appointment order was sent by registered post only subsequent to Ext. P-2 and when Ext. R-1(a) was forwarded for the comment of the Electricity Board. On that reason also Ext. P-5 is violative of Rule 18(1). They ought to have get satisfied that the registered letter had been sent to the Petitioner even before issuance of Ext. P-4.

The more important aspect is the one concerning the compliance with the principles of natural justice. Rule 3 of the Kerala State and Subordinate Service Rules made applicable to the K.S.E.B. provides that all first appointment to the service shall be made by the appointing authority on the advise of the commission in respect of the post falling within the purview of consultation with the Commission. As a result of Kerala Public Service Commission (Additional Functions Act), 1963, consultation with Public Service Commission for appointment to the post in the service of the Kerala Electricity Board has been made statutory. The Electricity Board can appoint candidates only on consultation with the Public Service Commission, in terms of the said statutory provisions read with Article 321 of the Constitution of India. Thus the Public Service Commission is discharging an important role in the recruitment of the candidates to the service of the Electricity Board. It is pursuant to a notification issued by the Public Service Commission, the Petitioner applied for the post and she has been selected. She can be appointed only when she is advised. The Public Service Commission had advised the Petitioner, but it was not sent to the Petitioner by the registered post. The Electricity Board issued an appointment order to the Petitioner but it did not reach the Petitioner, because of the shifting of the residence by the Petitioner, though it had been notified to the concerned post master. By reason of that, advise is cancelled by Ext. P-2. Thus Ext. P-2 results in adverse and civil consequences on the Petitioner. In such circumstances as the appointment is only based on the advise given by the Public Service Commission, before canceling that advise, the Public Service Commission was duty bound to afford an opportunity to the Petitioner. So before such cancellation minimum fair requirement has to be followed by the Public Service Commission. Even in case of cancellation of advises on the ground of mistake coming under Rule 3(c) of K.S. and S.R. affording of reasonable opportunity of being heard to the candidate is made statutory. Of course this is not a cancellation coming under Rule 3(c). This is a cancellation of an advise on the basis of the communication from the appointing authority and when that cancellation visits the candidate with adverse civil consequences it was incumbent on the Public Service Commission to afford the candidate an opportunity. Protection against the arbitrary and unreasonable exercise of power by all authorities is enshrined under Article 14 of the Constitution of India. Every form of arbitrariness or irrationality is anathima in the Constitutional scheme. It is now a basic requirement of Article 14 that exercise of discretion must always be guided by some standards or norms so that it does not degenerate into arbitrariness. Where unguided or unfettered discretion is conferred on any authority, it can be exercised arbitrarily or capriciously. This arbitrariness can be avoided only by observance of principles of natural justice when the action visits the incumbent with adverse civil consequences. Thus the observance of rules of natural justice is a requirement of Article 14 and it must be observed unless expressly excluded as held by the Supreme Court in Sharad Kumar Tyagi Vs. State of Uttar Pradesh and Others, .

The Public Service Commission did not afford an opportunity to the Petitioner even to exercise the powers vested with them in the non-statutory rules contained in Rule 18(1) of the Rules of Procedure. The Public Service Commission is bound to issue notice to the incumbent before canceling the advise because cancellation of advise visits the incumbent with adverse consequences of denying an opportunity for appointment. Merely because notification is invited and candidates are afforded an opportunity to contest the selection, the equality of opportunity enshrined in Article 16 is not achieved. The recruiting agency shall also see that the candidates selected are afforded an opportunity of being appointed also. Thus cancellation also results in violation of the equality clause enshrined under Article 16. On that reason also it is essential that the recruiting agency, formed under the Constitutional provision and conducting recruitment on the basis of the statutory provision as mentioned above, shall follow the principles of natural justice when they cancel the advise once made. In this case before Ext. P-2 was issued no opportunity was given to the Petitioner. Thus Ext. P-2 is illegal and is quashed.

The Public Service Commission submits that when the Petitioner''s advise was cancelled by Ext. P-2 substitute candidates, was advised. Revocation of the cancellation will lead to difficulties. This submission is not correct, because as seen from Ext. P-4 dated 29th July 1995 there are enough vacancies of cashiers still exist in the K.S.E.B. Hence it will not cause any problem. Therefore the Petitioner is entitled to be appointed.

Ext. P-2 is quashed. Necessarily her advise is revised and consequently the Electricity Board is liable to appoint the Petitioner. Accordingly, the second Respondent is directed to issue appointment order to the Petitioner on the basis of the original advise given by the Public Service Commission. Appointment order shall be issued to the Petitioner in registered post in her changed address within 15 days of the date of receipt of the copy of this judgment.

Original Petition is allowed. There will be no order as to costs.

*A Reproduction from ILR(Kerala series)