IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 WP(C).No. 3699 of 2009(M) ------------------------------------- PETITIONER: ------------------- K.S.JAYAN, KUNNATH HOUSE, THENGALOOR, THRISSUR- 660 581, JUNIOR HEALTH INSPECTOR GR.II. BY ADVS. MR.M.V.BOSE, MR.VINOD MADHAVAN, SMT.NISHA BOSE. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, TRIVANDRUM, REPRESENTED BY ITS SECRETARY. 3. THE DISTRICT MEDICAL OFFICER OF HEALTH, THRISSUR. 4. THE DISTRICT OFFICER, OFFICE OF THE PUBLIC SERVICE COMMISSION, THRISSUR. R1 & R3 BY GOVT. PLEADER MR. P. NANDAKUMAR, R2 & R4 BY MR.ALEXANDER THOMAS, SC,KPSC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3699/2009-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER OF THE R.3. DTD. 20/09/1999 (RELEVANT PAGES). EXT.P.2: COPY OF THE ORDER DTD. 14/03/2000 OF THE R.3. EXT.P.3: COPY OF THE SHOW CAUSE NOTICE DTD. 27/03/2000 ISSUED BY THE R.4. EXT.P.4: COPY OF THE REPRESENTATION DTD. 09/04/2000 BY THE PETITIONER BEFORE THE R.4. EXT.P.5: COPY OF THE JUDGMENT IN O.P. 12226/2000 DTD. 28/07/2000 OF THIS HONOURABLE COURT. EXT.P.6: COPY OF THE ORDER DTD. 25/10/2000 OF THE R.4. EXT.P.7: COPY OF THE ORDER OF THE R.3. EXT.P.8: COPY OF THE REPRESENTATION DTD. 15/01/2005 BY THE PETITIONER BEFORE THE R.1. EXT.P.9: COPY OF THE ORDER DTD. 28/02/2005 OF THE R.1. EXT.P.10: COPY OF THE ORDER DTD. 05/03/2007 OF THE R.1. EXT.P.11: COPY OF THE JUDGMENT DTD. 17/03/2008 IN W.P.(C).NO.8750/2008. EXT.P.12: COPY OF THE ORDER DTD. 20/12/2008 G.O.(RT).NO.4241/2008/H & FWD. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.3699 OF 2009 (M) -------------------------------------------------- Dated this the 3rd day of December, 2009 J U D G M E N T On 20.9.1999, the petitioner, who had secured rank No.66 in list II in a recruitment conducted by the PSC, was advised for appointment to the post of Junior Health Inspector Grade-II in Thrissur District. 2. Subsequently, by order dated 14.3.2000, the District Medical Officer regularized the service of the petitioner. Subsequently, by Ext.P3 dated 27.3.2000, a show cause notice was issued by the PSC, alleging that against the conditions of the notification, petitioner had applied for the post in Thrissur District as also in Ernakulam District. In Ext.P3 show cause notice, it is stated that it was decided to cancel the advise under Rule 3(c) of the General Rules of KS&SSR. Petitioner filed Ext.P4 reply and thereafter approached this court by filing O.P.No.1226/00. That Original Petition disposed of directing the PSC to consider Ext.P3 after hearing the petitioner. 3. Accordingly, the matter was considered and Ext.P6 proceedings were issued by the PSC, deleting the petitioner form WPC.No. 3699/09 :2 : the ranked list for the post of Junior Health Inspector Grade-II. In pursuance to Exts.P6 order of the PSC, P7 order was issued by the District Medical Officer of Health on 7.11.2000, terminating the service of the petitioner with effect from 13.11.2000. 4. Ext.P7 order was challenged before this court in O.P.No.137/00. That original petition was disposed of by judgment dated 7.1.2005 directing the petitioner to make a representation to the Government requesting to invoke Rule 39 of KS & SSR and allowing him to continue in service. During the pendency of the matter as above, according to the petitioner, Ext.P9 and P10 orders were issued by the Government extending the benefit of Rule 39 in the case of certain other persons whose advise was cancelled for similar reasons. 5. Producing Exts.P9 and P10 before this court petitioner again filed WP(c).No.8750/08, which was disposed of by Ext.P11 judgment. In Ext.P11 judgment this court directed that if the case of the petitioner is similar to the case dealt with in Exts.P9, there is no reason why a similar treatment should not be meted out to the petitioner. Accordingly, Government was directed to consider the case of the petitioner whether it is appropriate to invoke Rule 39 of Part-II KS &SSR. WPC.No. 3699/09 :3 : 6. Accordingly, the matter was considered and by Ext.P12 the request of the petitioner was rejected. In so far as Exts.P9 and P10 are concerned, that have been dealt with by the Government in paragraph 5 of Ext.P12 order which reads as under. “Therefore, Government find no reason to interfere in this case by invoking Rule 39 of Part II KS & SR. The precedents need not be taken into account as a material to support the claim of the petitioner. The stand taken by Kerala Public Service Commission is correct. The action of the District Medical Officer is also in accordance to rules and regulations. Hence, by quoting a precedent a person who was terminated from service has no legitimate claim for re-appointment. 7. It is challenging Ext.P12 and praying for a direction for his reinstatement in service that the writ petition is filed. 8. Counsel mainly relied on Exts.P9 and P10. It is stated that in similar cases power under Rule 39 has been invoked and benefits extended. Therefore, similar treatment should be given to the petitioner also. It is also her case that Rule 3(c) could not WPC.No. 3699/09 :4 : have been invoked beyond the period of one year from the date of advise and that too without hearing the affected parties. 9. On the other hand the Standing counsel for the PSC submits that Rule 3(c) can apply only in a case where a mistake has been committed by the PSC and that the rule has no application in a case where a fraud has been played by the candidate. He also relied on the decision reported in KPSC V. Hareendran (1999(2) KLT 63). In support of his contention he also stated that admittedly the petitioner had applied in two districts viz. Trissur and Ernakulam and that this itself was a ground good enough to cancel the advise in view of Rule 22(ii) of Rules of Procedure. 10. In my view the matter needs to be reconsidered. As already stated in Ext.P11 judgment, referring to Ext.P9, this court held that “ if the petitioner's case is similar to that of the case considered in Ext.P9 there is no reason why a similar treatment should not be meted out to the petitioner.” The facts as disclosed in Ext.P9 shows that the case dealt with was the case of candidates who had applied in more than one District against the terms of the notification. It is in such circumstances Government have invoked Rule 39 and allowed continuance of the petitioners WPC.No. 3699/09 :5 : therein. Ext.P11 judgment has become final and therefore, if the case dealt with in Ext.P9 is similar to that of the petitioner, the petitioner is entitled to the benefits similar to what is granted in Ext.P9. However, Ext.P9 is sought to be brushed aside in Ext.P12 by stating that since the action taken against the petitioner is in accordance with the rule, the proceedings against the petitioner need not be faulted. In my view, this is not the correct approach to the issue. On the other hand, in view of Ext.P11 judgment, what the Government was required to do, was to compare the case of the petitioner with the case dealt with in Ext.P9 and if satisfied that both are similar, to extend similar benefit to the petitioner as well. Therefore I quash Ext.P12 and direct the matter be reconsidered, taking into account the directions of this Court in Ext.P11 judgment referred to above. The matter shall be reconsidered by the first respondent and orders shall be passed as expeditiously as possible and at any rate within 3 months from the date of production of a copy of the judgment. (ANTONY DOMINIC) JUDGE vi/ WPC.No. 3699/09 :6 :