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IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 700 of 2006() 1. SUMA V.G., VAVATHIKKALA HOUSE, ... Petitioner Vs 1. THE KERALA PUBLIC SERVICE COMMISSION ... Respondent 2. THE DISTRICT OFFICER, KERALA PUBLIC 3. THE DISTRICT MEDICAL OFFICER OF HEALTH, For Petitioner :SRI.P.K.SURESH KUMAR For Respondent :GOVERNMENT PLEADER Dated :/ / O R D E R K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------------- W.A. No.700 of 2006 ---------------------------------------------- Dated 18th January, 2010. J U D G M E N T
Balakrishnan Nair, J.
The writ petitioner is the appellant. She was a
candidate who applied for the post of Junior Public Health Nurse
Grade II, when the Public Service Commission (‘PSC’, for short)
invited applications for the same. She submitted applications for
Kozhikode and Palakkad Districts. As per the conditions attached
to the notification inviting applications by the PSC, a candidate
can apply only for one district. But, in violation of the above
condition, the appellant applied for both the districts. When the
written test was conducted, she appeared only for the test in
Kozhikode District. Thereafter, the appellant was included in the
rank list prepared by the PSC, and was advised for appointment
on 8.3.2000 by the Kozhikode District Office of the PSC. Pursuant
to the said advice, she was appointed by the appointing
authority, viz., the District Medical Officer of Health, Kozhikode,
on 28.6.2000. It is submitted that the appellant joined duty on
2. While so, after the lapse of about one year, the PSC
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issued Ext.P3 notice dated 22.2.2001, proposing to cancel the
appellant’s advice, for the reason that she applied for two districts
mentioned above. She submitted Ext.P4 reply. According to her,
she proposed to submit the application for one of the two
districts. Since she could not decide on the choice of the district,
she prepared applications for both the districts, but she finally
decided to apply only for Kozhikode district. But, her brother, who
was entrusted to send the application, by mistake, sent both the
applications. The PSC was not satisfied with the reply of the
appellant, and therefore, issued formal orders under Rule 3(c) of
Part II Kerala State and Subordinate Service Rules (‘KS and SSR’,
for short), cancelling her advice and removing her from the rank
list, as per Ext.P5 dated 25.4.2001. As a result, the appointing
authority terminated the appellant from service, by Ext.P6.
Challenging Exts.P5 and P6, the writ petition was filed.
3. The learned Single Judge quashed Exts.P5 and P6,
on the ground of violation of the principles of natural justice. The
learned Judge took the view that the petitioner was not heard
personally, and therefore, the order is vitiated. In that view,
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Ext.P5 order of the PSC, and the consequential order, Ext.P6,
passed by the District Medical Officer, were quashed. The PSC
was given liberty to pass fresh orders in the matter. Feeling
aggrieved by the said direction, the writ petitioner preferred this
4. We heard the learned counsel on both sides. The
learned counsel, who appeared for the appellant submitted that
since the final order was passed after the time limit prescribed in
rule 3(c) of the KS & SSR, there cannot be passing of any fresh
order in the matter. So, the liberty given to the PSC to pass fresh
orders, is vitiated and unsupportable in law, it is submitted. In
support of the contention, the learned counsel relied on the
decision of the Division Bench of this court in Kerala Public
Service Commission v. Malini (1996(2) KLT 332). The learned
counsel also submitted that, in this case, there is no whisper,
either in Ext.P3 or in P5 that there was fraud from the part of the
appellant, and therefore, the order should have been passed
within the time limit prescribed in the rule. According to the
learned counsel, since no fraud was played, the decision in
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Kerala Public Service Commission v. Hareendran (1999(2)
KLT 63) would not apply.
5. The learned Standing Counsel who appeared for the
PSC, on the other hand, supported the impugned order.
According to him, the latter decision, in Kerala Public Service
Commission v. Hareendran (supra), will govern the case.
6. Going by the above two decisions, and a recent
decision of this Court in W.A.1786/05 dated 5.1.2010, it is clear
that, if the advice is obtained by the candidate by playing fraud
on the PSC, the time limit under Rule 3(c) will not apply. Rule 22
of the Kerala Public Service Commission Rules of Procedure
permits action for fraud, and there is no time limit prescribed in it.
Rule 3(c), on the other hand, covers other cases of mistakes on
the part of the PSC, in making the advice of the candidates, which
are found out later. In such cases, action to cancel the advice
should be completed within the time limit of one year prescribed
in Rule 3(c).
7. In this case, we notice that the learned Single Judge
has remanded the matter, only on the ground of violation of
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principles of natural justice. So, the PSC may afford an
opportunity of personal hearing to the appellant, and pass final
orders, as expeditiously as possible. While passing orders, the
PSC will also take note of the contention of the appellant that this
not being a case covered by fraud, the bar under Rule 3(c) will
apply. Unless there is a finding of fraud, we are also of the view
that the time limit contained in Rule 3(c) will govern the
cancellation of advice. Having regard to the contents of the show
cause notice and the reply of the appellant, it is for the PSC to
decide on this aspect, at the first instance. Therefore, we are not
expressing any opinion on that.
With the above direction, the Writ Appeal is disposed
I.A.618/06 : Dismissed.
K.BALAKRISHNAN NAIR, JUDGE.
K.BALAKRISHNAN NAIR &
W.A. No.700 of 2006
J U D G M E N T
Dated 18th January, 2010.