IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 WA.No. 700 of 2006() -------------------- AGAINST THE JUDGEMENT IN OP.14875/2001 .................... APPELLANT(S): PETITIONER: ------------------------- SUMA V.G., VAVATHIKKALA HOUSE, PATTITHANAM P.O., ETTUMANOOR, KOTTAYAM DISTRICT, WORKING AS JUNIO PUBLIC HEALTH NURSE GRADE II, COMMUNITY HEALTH CENTRE, PERAMBRA, KOZHIKODE DISTRICT. BY ADV. SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER SMT.BINDHU ANTONY RESPONDENT(S): --------------- 1. THE KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 2. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER OF HEALTH, KOZHIKODE. GOVERNMENT PLEADER SMT.R.BINDU. SRI.ALEXANDER THOMAS,SC,KPSC FOR R1 & R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 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.