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2010 Supreme(Ker) 3
High Court of Kerala
THE HONOURABLE MR. JUSTICE K. BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T. RAVIKUMAR
M. Babu
Versus
The Kerala State Electricity Board, Represented by its Managing Director & Others
WA.No.1786 of 2005
Decided on : 05-01-2010
Headnote:
Kerala State and Subordinate Services Rules, 1958 - Part II Rule 3(c) - Whether the time limit prescribed in the relevant Rules for cancellation of an advice by the Public Service Commission will apply to a case of fraud played by the candidate, which was discovered after the time limit - Held, Court have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation - No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim - Allegation made by the appellant Insurance Company, that the claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, for the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards - Court strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company - If Court fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to a serious miscarriage of justice.' - Court find no reason to interfere with the same - Writ Appeal Dismissed
Balakrishnan Nair, J.
The point that arises for decision in this case is whether the time limit prescribed in the relevant Rules for cancellation of an advice by the Public Service Commission will apply to a case of fraud played by the candidate, which was discovered after the time limit.
2. The brief facts of the case are the following:
The writ petitioner is the appellant. He applied for the post of Mazdoor in the Kerala State Electricity Board, when applications were invited by the Public Service Commission (for short "PSC") for the same. He was included in the rank-list published by the PSC. Based on his ranking, he was advised for appointment on 13.9.2002 and he joined service on 21.12.2002. Thereafter, he was promoted as Lineman Grade II on 5.11.2004. While so, the appellant was served with Ext.P2 show cause notice by the PSC on 20.01.2005, proposing to cancel his advice, invoking its power under Rule 22 of the Kerala Public Service Commission Rules of Procedure. He submitted Ext.P4 reply on 10.03.2005. He admitted in the said representation that he has passed the S.S.L.C. Examination as an over-aged private registration candidate. According to the PSC, it did not receive Ext.P4. His advice was cancelled by the PSC, as per Ext.P5 communication dated 6.6.2005. The Writ Petition was filed, challenging Ext.P5 and seeking consequential reliefs. The learned Single Judge dismissed the Writ Petition, relying on the judgment of the Division Bench of this Court in Kerala Public Service Commission v. Hareendran [1999(2) KLT 63]. Feeling aggrieved by the said judgment, the writ petitioner has preferred this appeal.
3. The learned counsel for the appellant brought to our notice the decision of the Division Bench of this Court in Appukuttan Pillay v. Kerala Public Service Commission [1984 KLT 880], wherein this Court interfered with the cancellation of advice of a candidate to a public sector undertaking, on the ground that the action was taken beyond the time limit contained in Rule 3(c) of Part II of the Kerala State and Subordinate Services Rules (for short "KS & SSR"). The learned counsel also brought to our notice the decision in Kerala Public Service Commission v. Malini [1996(2) KLT 332]. It was a case wherein the PSC cancelled the advice of a candidate for the reason that she applied simultaneously to two different districts for appointment to the same post, contrary to the specific stipulation contained in the notification. This Court, as per the said decision, interfered with the decision of the PSC on the ground that it was taken beyond the time limit stipulated in the proviso to Rule 3(c) of Part II of the KS & SSR. Therefore, the appellant prayed for quashing Ext.P5, as the order was passed beyond the time limit stipulated in Rule 3(c) of Part II of the KS & SSR.
4. The learned counsel for the PSC, on the other hand, submitted that Rule 3(c) applies only when a mistake is committed by the PSC. In this case, the PSC has not committed any mistake. Immediately on finding that the appellant obtained advice and consequential employment based on a fraud played by him, action was taken to cancel his advice. This is a case of fraud played by the candidate to gain personal benefit to him. The case of such a candidate is not covered by Rule 3(c). In support of that submission, reliance was placed on the decision of this Court in Kerala Public Service Commission v. Hareendran (supra).
5. We considered the rival submissions made at the Bar and went through the pleadings and materials on record. Before dealing with them, it is useful to quote Rule 3(c) of Part II of the KS & SSR, which reads as follows:
"3.Approved candidates:-(a) .........................
(c) Notwithstanding anything contained in these rules, the Commission shall have the power to cancel the advice for appointment of any candidate to any service if it is subsequently found that such advice was made under some mistake. On such cancellation the appointing
