IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 WA.No. 2898 of 2007(E) ---------------------- AGAINST THE JUDGEMENT IN WPC.35460/2005 Dated 22/11/2006 .................... APPELLANT: PETITIONER --------------------- GEETHA LAKSHMI.K., RESIDING AT "VIDHA VIHAR", HOUSE NO.6, KALLEKULANGARA, PALAKKAD-9. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS/RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, KOZHIKODE DISTRICT OFFICE. 3. KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 4. MANIYUR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, MANIYUR P.O., KOZHIKODE DISTRICT. 5. HEADMASTER, MANIYUR PANCHAYATH SECONDARY SCHOOL, PALAYADNADA P.O., IRINGAL (VIA), KOZHIKODE DISTRICT. 6. P.P.MANOHARAN, RESIDING AT KILLIAMPARATH HOUSE, KINALUR P.O., (VIA) BALUSSERI, KOZHIKODE DISTRICT. WA 2898/2007 BY GOVERNMENT PLEADER SRI.BENNY GERVASIS SRI.ALEXANDER THOMAS, SC FOR PSC SRI.P.V.KUNHIKRISHNAN - R6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- W.A. NO. 2898 OF 2007-E ----------------------------------------- Dated 14th March, 2008. JUDGMENT Balakrishnan Nair, J. The writ petitioner is the appellant. The respondents were the respondents in the writ petition. The appellant was a candidate included in the rank list published by the Public Service Commission for appointment to the post of H.S.A (Physical Science) in Kozhikode district. The rank list was published on 28.3.2001. The petitioner submits, though the rank list was due to expire on 28.3.2004, its validity was extended for a further period of six months and it expired on 28.9.2004. On the eve of the expiry of the rank list the District Office of the P.S.C., published a notification in the newspapers, calling for willingness of the candidates included in the rank list for appointment in the available vacancies in the Panchayat schools. Pursuant to the said notification, the appellant and another gave their consent to be considered for appointment in the Panchayat schools. On the basis of the consent so given, the P.S.C advised the appellant for WA 2898/2007 2 appointment, by Ext.P1 dated 15.12.2004 in the school run by the 4th respondent. Pursuant to the said advice, she joined the school. While so, she was served with Ext.P4 notice dated 30.8.2005, calling upon her to show cause why the advice should not be cancelled. Ext.P4 mentioned about some irregularity in seeking consent from candidates for appointment in Panchayat schools. The appellant submitted Ext.P5 reply. But, rejecting her contentions, her advice was cancelled by the P.S.C and she was informed of the same by Ext.P6 communication dated 17.11.2005. Based on the cancellation of her advice, the Panchayat terminated her from service by Ext.P7 proceedings dated 1.12.2005. The writ petition was filed, challenging Exts.P4, P6 and P7. Consequential reliefs were also sought. 2. The P.S.C filed a counter affidavit in the writ petition, contending that as per the standing instructions, consent should have been directly sought from the candidates who are likely to be advised for appointment in the Panchayat schools, if they give their willingness. In the instant case, the said procedure was not followed and only newspaper publication was given. Two persons included in the supplementary list for Ezhava candidates alone responded to the said notice. But, noticing that there were 30 Ezhava candidates in the main list and none of them gave consent for being appointed in the Panchayat schools, the P.S.C reviewed the matter. It was WA 2898/2007 3 found that the District Office did not follow the instruction to seek consent from the probable candidates who may be advised. Only newspaper advertisement was given. Based on that irregularity the appellant happened to be advised. Therefore, Ext.P4 was issued. It was also submitted that later, following the due procedure the 6th respondent herein was advised. He was a candidate included as Rank No.42 in the main list. Thus, the P.S.C defends its action. According to it, it only corrected the mistake committed by the District Officer. 3. The learned single Judge,who heard the writ petition, dismissed the same, holding that the appellant has no right to continue in service. This appeal is filed, challenging the decision of the learned single Judge. 4. The learned counsel for the appellant submitted that the show cause notice Ext.P4 issued to the appellant was vague and it did not contain the reasons for the proposal to cancel her advice. So, she was disabled from properly submitting her reply. So, according to the learned counsel, the impugned notice Ext.P4 is liable to be quashed. If that be so, since the one year's time limit prescribed under Rule 3(c) of Part II, K.S. & S.S.R being over, no action is permissible against the appellant. Secondly, it was contended that there was no material on record to show that it was mandatory to inform the candidates included in the rank list, who are likely WA 2898/2007 4 to be advised. For that reason also, the impugned decision of the P.S.C is bad. The appellant also claimed that since her appointment has been approved by the D.E.O., under the provisions of the K.E.R., the subsequent cancellation of the advice is of no consequence. 5. We heard the learned standing counsel for the P.S.C and the learned Government Pleader. It is submitted by the learned counsel for the P.S.C that since there was no stipulation in the gazette notification that the list will be operated for advising candidates to the vacancies reported from the Panchayats, it was decided to seek individual consent from the candidates who are likely to be advised and the said decision was flouted by the District Office, Kozhikode. Therefore, the appellant happened to be advised. The said mistake was rectified and the most meritorious candidate who opted from the main list was advised in the place of the appellant, it is submitted. 6. We notice that it is not fully clear from Ext.P4 that what was the irregular procedure followed by the District Office and which resulted in vitiation of the advice of the appellant. But, going through Ext.P4 as a whole, it would appear that in the matter of seeking consent, the District Office has committed some irregularity. The same is the ground for cancellation of the advice of the appellant. But, from the facts disclosed by WA 2898/2007 5 the counter affidavit filed by the P.S.C., the position has been made clear. The proper procedure of seeking consent from the probable candidates was not followed. That was the reason why the meritorious candidates in the main list belonging to Ezhava community could not opt. So, we notice that by the vagueness in the notice, no prejudice has been caused to the appellant and there is no failure of justice. But, on the other hand, if we interfere with the notice on the technical ground of vagueness in it, the same will result in miscarriage of justice. The persons who are lower in rank will get appointment, when there are 30 candidates in the main list, who are entitled to be considered for appointment in the vacancies available in the Panchayat schools. So, we are not inclined to interfere with the impugned notice Ext.P4 or the consequential order, on the basis of the technical contention raised by the appellant. 7. Further, we notice that two candidates were earlier appointed from the very same rank list in the very same school. Evidently, that was after getting consent from them individually and not by paper publication. If the said appointments were made after paper publication, the appellant would have responded earlier and she would have pleaded the same in the writ petition also. Last of the contentions of the appellant which we have noticed earlier was that once her appointment is approved by the D.E.O., the WA 2898/2007 6 same cannot be cancelled. We are of the view that the said contention is plainly untenable. If the advice of the appellant is cancelled, all other proceedings being dependent proceedings will also collapse. So, once the advice of the appellant goes, she cannot claim any benefit based on the approval of appointment granted under Rule 8 of Chapter XIV A of K.E.R. 8. In the result, we find no merit in the Writ Appeal. We affirm the judgment of the learned single Judge, as we are in agreement with the reasons and conclusions therein. But, we notice that the appellant has actually worked in the Panchayat school, pursuant to the advice of the P.S.C and also the appointment order issued by the competent authority. Thereafter she continued in service and worked pursuant to the interim orders passed by this Court. In the appeal there was an interim order in favour of the appellant. Therefore, we feel that the appellant should be paid salary for the period she has actually worked, provided there was a vacancy to accommodate her. So, we order that the appellant shall be retained in service up to 31.3.2008 and terminated with effect from 1.4.2008. The 5th respondent Headmaster shall claim the salary for the period she has actually worked, by presenting proper bills before the D.E.O concerned. If there is a post to accommodate the appellant, the D.E.O shall release the salary due to WA 2898/2007 7 her. Subject to the above direction, the Writ Appeal is dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/