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CASE NO.: Appeal (civil) 3569-3580  of  2001 Appeal (civil)  3582     of  2001 Appeal (civil)  3581     of  2001

PETITIONER: K.G. ASHOK  & ORS.

       Vs.

RESPONDENT: KERALA PUBLIC SERVICE COMMISSION & ORS.

DATE OF JUDGMENT:       03/05/2001

BENCH: G.B. Pattanaik, S.N. Phukan & B.N. Agrawal

JUDGMENT:

WITH Civil Appeal No.3582 of 2001 (Arising out of SLP (C) No.12254/2000) and Civil Appeal No.3581  of 2001 (Arising out of SLP (C) No. 11170/2000

J U D G M E N T

B.N. AGRAWAL,J.

       Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   These  appeals have been filed against different  orders passed  by  Kerala  High Court upholding  orders  passed  by Kerala Public Service Commission (hereinafter referred to as the  Commission)  rejecting  applications   filed  by  the appellants  for  the  posts  of  Junior  Health   Inspector, Grade-II, in Kerala Health Service either on the ground that they  made  false statement in the application form  to  the effect  that they had not applied in more than one  district for appointment on the said posts though they had so applied or  applied  in  more  than one districts  contrary  to  the instructions  in  the  gazette  notification  published  for appointment   on   the  said  posts   both  of   which   are independently  sufficient  grounds  for   rejection  of  the applications.

   The  short  facts giving rise to these appeals are  that the  Commission issued a notification, inviting applications for  filling  up  348  posts  of  Junior  Health  Inspector, Grade-II,  in 14 districts of the State of Kerala, published in  Kerala  Gazette  on 2-4-1996 and  in  Part-I,  Note-(2), thereof   a  restriction  was  put   to  the   effect   that applications  should not be sent for more than one  district in  response  to  the   notification,  and  if,  application contrary  to  said  direction is sent and the  candidate  is selected,  his  name would be liable to be struck  off  from rank list and disciplinary action will be taken.  Part-II of

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the said notification contained, apart from application form in  which  application  was required to  be  filed,  general conditions.   In  column no.8(b) of the application form,  a candidate  was required to state Yes or No in answer  to the  question  whether  he had applied for the post  in  any other  district  pursuant to the said  notification.   Under general  condition  25 (b), an application was liable to  be summarily  rejected if a candidate had applied for more than one   district   for  a  post  in  response  to   the   said notification.   Under condition No.29 it was enumerated that if  a candidate was, inter alia, found guilty of making  any false  statement  in  the application, he was liable  to  be debarred  from  applying for the post either permanently  or for  any particular period and if such a person had  already appeared  in  any  written or practical test that  would  be considered  invalid and if any appointment made, a  criminal prosecution  may  be  initiated against him and  action  for removal from service be taken.

   Thereafter  on 11-4-1996 a short notification was issued by  the  Commission  which was published  in  the  newspaper inviting applications for filling up the said posts and last date  of  receipt of applications was 15-5-1996 and  it  was enumerated  therein  that  for more  details  the  concerned gazette  notification  dated 2-4- 1996 should  be  referred. Pursuant  to the said notification 1270 persons applied, out of  whom 436 persons applied for more than one district.  In all  1233  persons  appeared in written  test  conducted  on 8-7-1998 in all the 14 district simultaneously.  In the year 1999,  candidature  of  all those 436 persons  was  rejected either on the ground that they had applied for more than one district  or  they  had  given   false  declaration  in  the application  form  that  they had not applied to  any  other district while in fact they had so applied.

   Appellants  in  civil appeals arising out  of  S.L.P.(C) Nos.4955-4966  of  2000 and SLP (C) No.12254 of  2000  filed separate  writ applications challenging the aforesaid  order of  the rejection of their candidature which were  dismissed by  a  Division Bench of the High Court under  two  separate judgments.   Sole  appellant in civil appeal arising out  of S.L.P.(C)  No.   11170  of  2000   filed  a  separate   writ application   challenging   order  of   rejection   of   his candidature  and the same was dismissed by a learned  Single Judge of the High Court which order was upheld by a Division Bench.   The  aforesaid orders passed by the High Court  are subject matter of challenge in these cases.

   When  these SLPs were placed for consideration before  a two  judge bench on 2-2-2001, it was pointed out that in SLP (C)  No.12562  of 1999, such order passed by the High  Court was upheld by this Court by dismissing the SLP on 13.9.99 by a  speaking order, whereas in other SLPs notices were issued and interim orders passed.  In view of these facts the Bench thought  it appropriate that the matter may be considered by a  larger bench and accordingly these cases have been placed before  us.   It  may be necessary to refer to  order  dated 13.9.99  passed in S.L.P.  (civil) no.  12562 of 1999  which runs thus:

   The  petitioner knew that she could apply for a post in only  one district.  She applied for posts in two  districts while stating in each of the forms that she had applied only for  that  district.  This having been discovered after  she was  in employment, the employment has been cancelled.   The

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High Court has declined her relief on her writ petition.  We concur  with the High Court.  Having regard to her  conduct, our discretion under Article 136 is not available to her.

   The Special Leave Petition is dismissed.

   Learned  counsel on behalf of the appellants in  support of  this  appeal  firstly contended that Note-2  of  gazette notification  dated  2-4-1996  restricting   the  choice  of candidates  to one district is violative of equality  clause enshrined  in  Article 14 and 16 of the Constitution, as  by restricting  choice of a candidate to one district his right for  being  considered for the posts in other  districts  is taken  away.   For  appreciating  the   point  it  would  be expedient  to  refer to certain statutory  provisions.   The Kerala   State   and  Subordinate   Services   Rule,   1958, (hereinafter referred to as 1958 Rules) were framed by the State  Government  under  proviso  to  Article  309  of  the Constitution  in  respect  of  Members   of  the  State  and Subordinate Services, Rule 2(4) whereof defines Commission to  mean  the Kerala Public Service Commission.  Rule  2(12) defines  expression  recruited direct to mean a  candidate recruited to service in consultation with the Commission for which  it  was  required  to  issue  notification   inviting applications  for the recruitment.  Under Rule 3 appointment has  to be made on the advice of the Commission from a  list of  approved  candidates prepared by the Commission  in  the prescribed  manner  which  advice  would  be  liable  to  be cancelled  if it is found that the same was given under some mistake.    Rule  4  prescribes  that   in  response  to   a notification issued by the Commission, a candidate may apply in   the  form  published  by   the  Commission   with   the notification inviting applications for the post.  Under Rule 5A weightage marks have been provided in certain cases.  The said Rules 3, 4 and 5A reads thus:

   Rule 3.  Approved candidates (a) All first appointments to  the service shall be made by the appointing authority on the  advice  of the Commission in respect of  posts  falling within  the purview of the Commission and in all other cases by  the  appointing  authority  from   a  list  of  approved candidates prepared in the prescribed manner.

   b)  The  inclusion of a candidates name in any list  of approved  candidates for any service (State or  Subordinate) or  any class or category in a service, shall not confer  on him  any  claim  to  appointment to the  service,  class  or category.

   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  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 a period of one year from the date of such advice.

   Provided further that, cancellation of advice under this sub-rule  shall  be  made only after  giving  the  candidate concerned  a  reasonable opportunity of being heard  in  the matter.

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       The provisions in this sub-rule shall be deemed to have come into force on the 31st July, 1969.

   4.   Every candidate for appointment to any service  or for admission to any suitability/eligibility test, whether a member  of  a  service  or  not,   who  in  response  to   a notification  issued by the Commission makes an application, shall  make such application either printed or typed in  the model  form prescribed for the purpose and published by  the Commission   along   with     the   notifications   inviting applications for the post, for which no fee shall be levied.

   5A.  Award of weightage marks in certain cases:-

   Where the method of recruitment to any service, class or category  is  by direct recruitment on district wise  basis, such  of  the  candidates  belonging to  that  district  who qualify for interview/become qualified to be included in the Ranked List for such of the district-wise posts mentioned in the annexure to this rule shall be given a weightage of five marks for the selection:

   Provided that the candidates who are eligible to get the above   weightage  marks  shall   produce  along  with   the application  a  nativity certificate issued by  a  competent authority  not below the rank of Tahsildar of the  concerned taluk.

   Acting  under  Rule 3 of the 1958 Rules  the  Commission framed rules known as Kerala Public Service Commission Rules of  Procedure  published in the Kerala Gazette on  5.10.1976 prescribing  therein detailed procedure for making selection by  the Commission, Rule 22 whereof lays down conditions for disqualifying  candidature of a person.  Rule 40 of the said rules  recognises powers of the Commission to pass necessary orders  for proper discharge of functions of the Commission. Relevant portion of the said Rule 22 and Rule 40 run thus:

   22.   Candidates who are found guilty of the  following items of misconduct shall be liable for disqualification for being  considered  for a particular post or department  from applying  to  the Commission either permanently or  for  any period  or  the  invalidation  of their  answer  scripts  or products  in a written, practical test or the initiation  of criminal  or other proceedings against them or their removal or  dismissal  from  office  or the ordering  of  any  other disciplinary  action against them if they have already  been appointed,   or   any   one   or    more   of   the    above ..

   (iii)  Making of any false statement in the  Application form  or its Annexure or any document produced in connection with  a  selection  or  suppression  of  any  material  fact relevant      to     the         selection     from      the Commission

   40.   Savings.-  Nothing contained in Parts I &  II  of these  rules shall be deemed to limit or affect the power of the  Commission  to make such orders as may be necessary  to give  effect to any of the provisions of the Constitution of India  or  for the proper discharge of the functions of  the

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Commission:

   Provided  that  no such order which has an over-  riding effect  on the provisions contained in Part I of these rules shall   be  made  by  the   Commission  without  the   prior concurrence of the Government.

   In  exercise  of  the  powers  conferred  upon  it,  the Commission   issued   notification  on   2.4.1996   inviting applications  for  filling  up the posts in question  in  14 districts  of the State, providing therein restrictions  not to  apply in more than one district and consequences for its breach,  incorporated  in  Part  I, Note  (2)  and  Part  II condition nos.25(b) and 29 and Note (1) and column no.  8(b) of the application form which read thus:

   Note  (2) Applications should not be sent to more  than one   District  in  response  to  this   Notification.    If applications are sent contrary to the above direction and if he/she  is  selected his/her name will be removed  from  the ranked  list  and disciplinary action will be taken  against him/her.  Candidates should submit application for this post to  the  concerned  District Officer of the  Commission  and should  note  the name of the District against the  relevant column  in  the  application.  The address of  the  District Officers  to which applications are to be sent is  furnished in column (9) of the notifications.

   25.   (b)  The  application having one or more  of  the following  defects  will  be  summarily rejected:   1  to  8 deleted.

   9.   If  the candidates apply to more than one  District (For  District-wise selection) for a post in response to the same notification.

            (Emphasis added)

29.    Warning

   Candidates  who are found guilty of the following  items of misconduct shall be liable for disqualification for being considered  for a particular post of debarment from applying to  the  Commission either permanently or for any period  or the  invalidation  of their answer scripts or products in  a written/practical  test  or the initiations of  criminal  or other proceedings against them or their removal or dismissal from office or the ordering of any other disciplinary action against  them if they have been appointed or any one or more of the above.

       (i) and (ii) deleted.

   (iii)  Making of any false statement in the  application form  or any document produced in connection with  selection or suspension of any material fact relevant to the selection from the Commission.

                (Emphasis added)

               APPLICATION FORM         Name of Post . Scale of pay.

Department/Company/Corporation/Board/Local Authority..  Gazette Date.

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   Note.   (1)  Leave  5  cm.   Space on  the  top  of  the application form.

   (2)  Furnish  full and correct information.   Candidates should  read  the  relevant  Gazette  notification  inviting applications  before  filling  up   the  application   form. Enclose  self-attested true copies of documents in proof  of the claim.

   Column 8(b) of the application form reads as follows:

   8(b)  -  Have  you applied for the post  in  any  other District as per this notification (Answer Yes or No.

                          (Emphasis added)

   Thereafter on 11.4.1996 short notification was issued by the  Commission  inviting  applications for filling  up  the posts in question, relevant portion whereof runs thus:

   Model  application  form  is appended  to  the  gazette notification....   Candidates applying to posts under  general  recruitment belonging to Scheduled  Caste  / Scheduled  Tribe  /  Other Backward Class will be  given  by relaxation  benefit admissible under law.  For more  details refer to the concerned gazette notification.

                                    (Emphasis added)

   From  bare  perusal  of the aforesaid rules as  well  as notifications  referred  to above it would be clear  that  a person  was debarred from applying in more than one district pursuant  to  notification  dated 2nd April,  1996,  whereby application could be filed by a person seeking employment in any  one  of  the  14  districts of  his  choice  for  which vacancies  were notified and if a candidate applied for more than  one district his application was liable to be rejected on  this  ground alone.  Similarly, application of a  person was  liable  to  be rejected also on the ground  if  he  had applied  in  more  than  one district  but  had  made  false declaration  in  the  application form that he  had  not  so applied.   Apart  from rejection of the application  on  the said  grounds, in case such a candidate had appeared in  the written  test  and  interview  the same were  liable  to  be declared invalid and in case such a person was appointed, he was  liable to be dismissed or removed from service treating the  same  to be one of the misconducts over and  above  any criminal action that may be taken against him.

   It    appears    that     the   government    introduced decentralisation  of  recruitment to the  lower  ministerial cadre in various departments and teaching posts in Education Department to district level vide G.O.  (MS) No.154/71 dated 27.5.1971  with a view to avoid administrative inconvenience caused  due to dearth of recruits in such cadres in northern districts  of  Kerala.   It  was with  this  intention  that Government  stipulated conditions restricting inter district transfers  vide Government Order dated 27.5.1971.   However, while  implementing the decentralisation, a lot of practical problems  cropped  up before the Commission.  If  candidates are  allowed to apply to more than one district in  response to  the same notification, they have to be allowed to appear in  the  tests  to be conducted in  different  districts  on different  dates  and subsequently, if they find a berth  in

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the  ranked  list relating to more than one  district,  they will  have to be advised for recruitment from more than  one district  if  the  occasion  arises.   A  candidate  who  is appointed in one district will have to forego appointment in another  district  and the same defeats the very purpose  of the  aforementioned Government Order.  The circumstances  as detailed  above would put the Commission in an  embarrassing situation   and  cause   administrative  difficulties.   The situation  would assume fresh dimensions if it is allowed to prevail  in  the  present   day  district-wise   selections. Therefore,  the  candidates are permitted to apply  for  one district  only in one notification.  It is in order to avoid such  exigencies  and  to facilitate  a  feasible  selection process,  the  Commission issued orders to the  effect  that candidates  are  prohibited from applying to more  than  one district  for  the  post  notified  in  one  and  the   same notification.   Accordingly  in  the  notification  inviting applications   for    district-wise    selection,   specific instructions  are incorporated to the effect that candidates should  not send applications for the post in more than  one district  and  his failure to observe the same would  entail rejection  of application of such a person apart from taking other actions enumerated above.

   Though  a candidate is prohibited from applying to  more than  one district, he is free to choose any district of his choice  and thus the only thing is that the candidate is not entitled  to  apply  for  the same post  in  more  than  one district at a time.  Here, the right of the candidate is not curtailed  as  he/she  is not prevented  from  choosing  the district  of  his/her  choice.  At the same time,  if  every person is permitted to apply for all districts the number of applications received by the Commission will be 14 times the number  of  applications now being received with the  result that  the  Commission  will be doing a  futile  exercise  of selection  work,  in the other 13 districts, as a  candidate can  after  all  accept appointment in  only  one  District. Considering all these aspects the Commission has imposed the restriction  on  candidates from applying in more  than  one district  in response to one and the same notification.  The restriction does not tantamount to the denial of opportunity to a candidate for applying to any post.

   In  the case of Radheshyam Singh and Ors.  Vs.  Union of India and Ors.  (1997) 1 SCC 60, reliance whereupon has been placed  by  learned  counsel on behalf  of  the  appellants, zone-wise   separate   merit  list   was  prepared  by   the Subordinate  Services  Commission  on   the  basis  of  same examination albeit conducted in various zones which resulted devaluation  of  merit  of   the  selection  examination  by selecting   a  candidate  having   lesser  marks  over   the meritorious  candidate  who  had   secured  more  marks  and consequently  the rule of equal chance for equal marks would be violated.  It was laid down that such a selection process would  not  only  be against the  principles  enunciated  in Articles  14  and 16 of the Constitution but it  would  also result  in  heart burning and frustration amongst the  young men  of  the country.  It was directed in that case that  if the  government  is keen to make zone-wise  selection  after allocating  the  same posts for each zone, it may make  such scheme or the Rules or adopt such process of selection which may  not clash with the provisions contained in Articles  14 and 16 of the Constitution.

   In  the case of Minor P.  Rajendran vs.  State of Madras

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&  Ors., 1968 (2) S.C.R.  786 State Government framed  rules for  selection  of candidates to medical course and  Rule  8 provided  for district-wise allocation of seats on the basis of  population.  A case was made out that in view of such  a rule  candidates of inferior calibre were being selected  in one district and those of superior calibre were not selected in  another  district.   Validity  of   the  said  rule  was challenged on the ground that it was violative of Article 14 of the Constitution of India by way of filing an application under  Article 32 of the Constitution apart from filing SLPs against  order  of Madras High Court upholding the rule  and Constitution Bench of this Court had no option but to strike down  the  said  Rule 8 for admission  to  medical  colleges providing  therein district-wise allocation of seats on  the basis of population as the same was found to be violative of Article 14 of the Constitution.

   In the case of Minor A.  Peeriakaruppan and Sobha Joseph vs.   State of Tamil Nadu and others, 1971 (1) SCC 38, which was  also  for admission in the medical college,  the  seats were  distributed unit wise treating each medical college to be  a  separate unit and an application under Article 32  of the  Constitution was filed before this Court assailing  the selection  according  to  the aforesaid mode  and  making  a complaint  that the writ petitioners though had higher marks and brilliant academic carrier were not selected but persons having  inferior merit were selected.  It was held that  for admission in medical college unit wise distribution of seats was  violative  of Article 14 of the Constitution  as  there were  no  reasonable nexus behind it.  In that case, such  a selection  was struck down as unit wise allocation of  seats was  found to be violatie of Article 14 of the  Constitution being  discriminatory and direction was given to make  fresh selection on a state-wise basis.

   In  the  case  of  Nidamarti  Maheshkumar  vs.   Stateof Maharashtra  and others, 1986 (2) SCC 534, in the matter  of admission to medical colleges region wise scheme was adopted by  the State of Maharashtra meaning thereby that a  student from  a school or college situate within the jurisdiction of a  particular  university was not eligible for admission  to medical  college  situate  in   the  jurisdiction  of  other university  but  was  confined only to  medical  college  or colleges within the jurisdiction of the same university.  As a  result of such a region wise classification in the matter of  admission  a  student from one region  who  had  secured lesser  marks than another from a different region could  be selected  for  admission to the medical college or  colleges within  his region while the student who had secured  higher marks  may  not  succeed  in getting  himself  selected  for admission  within his region.  Such a region wise scheme  in the matter of medical admission was held by this Court to be violative  of Article 14 of the Constitution and accordingly struck down.

   None  of the aforesaid decisions has any application  to the  facts of the present case as it has been simply pleaded that  Note-II  of the gazette notification was violative  of Article  14 of the Constitution.  Neither before High  Court nor before this Court necessary facts showing discrimination have  been pleaded inasmuch as there is nothing to show that more  meritorious  persons have been deprived of  employment whereas persons of inferior merit have been selected.  Apart from   the  fact  that  the   necessary  facts  leading   to discrimination have not been pleaded, there is absolutely no

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material  to show that a case of discrimination is made  out and  accordingly the submission of learned counsel is devoid of any substance.

   Learned  counsel for the appellants, next submitted that as  in these appeals one advertisement was issued for making selection  in  14  districts and though the  candidates  had applied in more than one district but they could appear only in  one district in view of the fact that test was conducted in  all the districts on one day, rule restricting filing of application  for one district incorporated in Note-2 of  the notification  should be read down in its application to  the cases  like  the appellants.  The submission has  been  made only  to be rejected as in the present case we have  already held  that the aforesaid restriction contained in Note-2  is not  violative of Article 14 of the Constitution, therefore, the  question  of  reading  down the same  does  not  arise. Reference  in  this connection may made to the  decision  of this  Court in the case of Electronics Corporation of  India Ltd.   And others vs.  Secretary, Revenue Department,  Govt. of  Andhra  Pradesh and others, 1999 (4) SCC 458,  in  which case  it was submitted that Article 285 of the  Constitution was  intended  to  protect  public revenue,  the  shares  of appellant  Companies, in those appeals, being fully owned by the Central Government, their funds were public revenue.  As such  it was found not necessary to read down the provisions of  Sections 2(j) and 12 of Andhra Pradesh  Non-Agricultural Lands Assessment Act, 1963 (14 of 1963) to exclude therefrom all but private owners and lessees of land.

   This Court while rejecting the submission observed thus:

   The  question  of reading down comes in if it is  found that  these  provisions are ultra vires as they  stand.   We have  held that these provisions are not ultra vires because Article  285 does not apply when the property that is to  be taxed  is  not of the Union of India but of a  distinct  and separate  legal  entity.   Each  of  the  appellants   being companies  registered  under  the Companies  Act,  they  are entities  other  than the Union of India.  The  question  of reading down does not, therefore, arise.

   Learned  counsel  for the appellants  further  submitted that out of 1270 candidates 436 persons including appellants in  these appeals applied for more than one district as they were  misled  by the short notification dated 11.4.1996  and were not aware of the penal provisions contained in Note-(2) of  gazette notification dated 2-4-1996.  In this regard, it may  be  stated that in the concluding portion of the  short notification  dated 11.4.1996 it was specifically  mentioned that  for more details a candidate was required to refer  to concerned   notification  meaning   thereby  the   aforesaid notification  dated 2-4-1996.  Moreover it has been  further stated in the short notification that model application form has  been appended in the gazette notification again meaning thereby notification dated 2-4-1996.  In these cases some of the appellants in their application form, in reply to column 8(b),  which  required a candidate to state whether  he  had applied  in  more  than one district, had  stated  No  and others  Yes,  though all of them had applied in more  than one district.  In view of language in the short notification a  candidate was obliged under law to look into the  gazette notification dated 2-4-1996, more so when in the application form  which  was  duly filled up by the appellants,  it  was specifically  enumerated  that candidates should  read  the

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relevant  gazette notification inviting applications  before filling up the application form.  Thus we find no substance in this submission as well.

   Learned  counsel for the appellants also submitted  that decision  of  this  Court  in the case of  O.N.   Omana  vs. Kerala Public Service Commission and others (S,L.P.  (civil) No.12562  of 1999) is quite distinguishable as in that  case though  there was one notification inviting applications for appointment in several districts and similar restriction was there and in contravention of the same application was filed for  appointment in more than one district, but written test was  conducted in different districts on different dates and not on one date and the candidates appeared in more than one district.   In our view, though in the present case  written test  was  conducted in all the 14 districts on one day  but that  cannot  be  a  ground   for  making  any  distinction. Application  of some of the appellants have been rejected on the  ground that though they had applied for appointment  in more  than  one district but made a false  declaration  that they had applied in one district only whereas in other cases they  did apply in more than one district and stated in  the application  that  they  had so applied.  According  to  the gazette  notification  both the grounds  were  independently sufficient  for rejection of candidature of a candidate.  It appears  that  the  Commission has been  liberal  in  simply rejecting  their candidature for the time being and had  not debarred them from applying for any public post either for a specified  period  or permanently inasmuch as for  making  a false  declaration  though the appellant were liable  to  be criminally  prosecuted  but  no such steps have  been  taken against them.

   Learned counsel for the appellants lastly submitted that as  number of appellants had crossed the upper age limit and number  of  vacancies  are   available,  without  disturbing already   selected  candidates,  the   appellants   can   be considered  for selection on the basis of their placement in the  merit  list.   In  our   view  seeing  the  conduct  of appellants  in making false declaration and applying in more than  one district in contravention of gazette notification, it  is  not  possible  to accede to  their  prayer  even  on equitable grounds.

   For the foregoing reasons we are in respectful agreement with  the view expressed by a two Judge Bench of this  Court in  the case of Omana and the High Court was quite justified in  upholding  order  of  rejection of  candidature  of  the appellants by the Commission.

   Accordingly the appeals are dismissed but there shall be no order as to costs.