Suma V.G. vs The Kerala Public Service …

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Kerala High Court
Suma V.G. vs The Kerala Public Service …
       

  

  

 
 
  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

7.7.2000.

2. While so, after the lapse of about one year, the PSC

WA NO.700/06 2

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,

WA NO.700/06 3

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

appeal.

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

WA NO.700/06 4

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

WA NO.700/06 5

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

of.

I.A.618/06 : Dismissed.

K.BALAKRISHNAN NAIR, JUDGE.

C.T.RAVIKUMAR, JUDGE.

tgs

K.BALAKRISHNAN NAIR &

C.T.RAVIKUMAR, JJ.

———————————————-

W.A. No.700 of 2006

———————————————-

J U D G M E N T

Dated 18th January, 2010.

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