OP(KAT) No.189 of 2023: Sajaya v. Kerala Public Service Commission & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` FRIDAY, THE 2[ND] DAY OF JUNE 2023 / 12TH JYAISHTA, 1945 ``` ## **`OP(KAT) NO. 189 OF 2023`** ``` AGAINST THE IMPUGNED INTERIM ORDERS DATED 02.02.2023 & DATED ``` ``` 02.03.2023 IN O.A.(EKM) NO.222/2023 ON THE FILE OF THE KAT, ERNAKULAM ``` ## **`BENCH]`** ## **`PETITIONERS/RESPONDENTS 1 TO 3:`** ``` 1KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THULASI HILLS, PATTOM PALACE P.O., THIRUVANANTHAPURAM, PIN – 695004. 2KERALA PUBLIC SERVICE COMMISSION, PALAKKAD DISTRICT OFFICE, REPRESENTED BY THE DISTRICT OFFICER, OPPOSITE GOVERNMENT GUEST HOUSE, PALAKKAD P.O., KERALA, PIN – 678622. 3THE DISTRICT OFFICER, PALAKKAD DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, OPPOSITE GOVERNMENT GUEST HOUSE, PALAKKAD P.O., KERALA, PIN – 678622. ``` ``` BY ADV P.C.SASIDHARAN ``` ## **`RESPONDENT/APPLICANT:`** ``` SMT.SAJAYA VS AGED 28 YEARS, W/O NAGARAJ S., MUTHALITHARA, ELAPPULLY, TENARI P.O., PALAKKAD, PIN – 678622. ``` ``` BY ADV S.SABARINADH ``` ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 02.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **ALEXANDER THOMAS & C. JAYACHANDRAN, JJ. -------------------------------------------------------------------------** ## O.P.(KAT) No.189 of 2023 _[arising out of the impugned interim orders dated 02.02.2023 & dated 02.03.2023 in O.A. (Ekm) No.222/2023 on the file of the KAT, Ekm Bench]_ ## **--------------------------------------------------------------------** Dated this the 02[nd] day of June, 2023 ## **JUDGMENT** ## **Alexander Thomas, J.** The prayers in the instant O.P. (KAT), filed under Articles 226 & 227 of the Constitution of India, are as follows:- - _“i) To set aside Exhibits P2 and P3 orders of the Hon’ble Tribunal dated 02/02/2023 in O.A (Ekm) No.222/2023 and thereby dismiss the Original Application._ _And_ - _(ii) To issue such other order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case.”_ 2. The petitioners herein (Kerala Public Service Commission (PSC) and its officers are respondents 1 to 3 in the original application (O.A.). The sole respondent herein is the sole applicant in the O.A. 3. The sole respondent/sole applicant has preferred the instant original application, O.A. (Ekm) No.222/2023, before the Kerala Administrative Tribunal, Ernakulam Bench, with the following prayers. - _“I. Declare that the issuance of Annexure A9 Show Cause Notice is illegal;_ _**and**_ O.P.(KAT) No.189 of 2023 2 - _II. Issue an order or direction to quash Annexure A9 Show Cause Notice issued against the Applicant and drop all proceedings pursuant to Annexure A9;_ _**and**_ - _III. Pass such any other direction, order or reliefs, as this Hon’ble Court may deem fit in the interest of justice, equity and good conscience.”_ ## 4. The Tribunal has passed Ext.P2 interim order dated ## 02.02.2023, in the above O.A., which reads as follows:- _“ ORDER_ _Learned Standing Counsel for PSC takes notice on behalf of the respondents._ _There will be an interim stay against further action for cancellation of the advice of the applicant, pursuant to Annexure A9 notice, for a period of one month.”_ 5. Later, the Tribunal has passed Ext.P3 interim order dated 02.03.2023, extending Ext.P2 interim order and Ext.P3 interim order reads as follows:- _“ ORDER_ _Learned Standing Counsel seeks further time. Interim order is extended by one month.”_ 6. The respondents in the O.A. (PSC and its officials), being aggrieved by the abovesaid impugned interim orders rendered by the Tribunal, has approached this Court by filing the aforecaptioned original petition. 7. The order under challenge in the above O.A. is the proceedings, by way of show cause notice at Anx.A9 dated O.P.(KAT) No.189 of 2023 3 16.01.2023, whereby the PSC authority has directed the original applicant to show cause as to why the advice memo tendered by the PSC, in favour of the original applicant, for selection and appointment to the post of Lower Division Clerk (Tamil/Malayalam), shall not be cancelled, by exercise of the powers under Rule 3(c) of the Kerala State and Subordinate Services Rules, 1958 (KS & SSR, Part-II). So also, the said Anx.A9 notice also directs the petitioner to show cause as to why his name, included in the short list and the rank list, shall not be deleted. It is the case of the PSC authorities that their earlier action in including the name of the original applicant in the short list, rank list and also in the issuance of an advice memo in his favour, as above, was on account of a mistake committed by the PSC and therefore, the same is liable to be rectified and corrected by recourse to the statutory powers conferred under Rule 3(c) of the KS & SSR, Part-II. The PSC authorities also contend that they have the enabling powers, by way of inherent powers, to correct the mistake and also the enabling powers under the Kerala Public Service Commission (Rules of Procedure), etc. However, the main plea of the PSC is that they are obliged to take recourse to the exercise of O.P.(KAT) No.189 of 2023 4 correction and rectification of the mistake, on account of the binding verdict of the Tribunal at Ext.P4 final verdict, rendered on 24.01.2023 by the Kerala Administrative Tribunal (Ernakulam Bench) in O.A.(Ekm) No.251/2022. Further that, advice memo has been issued by the PSC in favour of the original applicant on 26.02.2022, etc. 8. The Tribunal now has passed the impugned Ext.P2 interim order that the very operation and enforcement of Anx.A9 show cause notice dated 16.01.2023, issued by the PSC, under Rule 3(c) of KS & SSR, Part-II, will remain stayed. 9. The learned counsel appearing for the original applicant has raised various contentions on merits that even the verdict of the Tribunal, relied on by the PSC, at Ext.P4 in O.A. (Ekm) No.251/2022, has nothing to do with the selection process and advice of the petitioner for the selection, on account of the inclusion in the instant rank list. Further that, in matters of this nature, the PSC authorities may invariably cancel the advice memo, which will then lead to the cancellation of the appointment order at the instance of the appointing authority and that, therefore, the applicant has got not only a _prima facie_ case but also a balance of O.P.(KAT) No.189 of 2023 5 convenience in his favour and hence, the impugned interim order, rendered by the Tribunal, is not liable for interference. 10. Per contra, Sri.P.C. Sasidharan, the learned Standing Counsel for the PSC, appearing for the petitioners, would submit that it is a consistent practice of this Court, in matters of this nature, that a show cause notice may not be interfered with and further that, if at all a challenge, as against the show cause notice under Rule 3(c) is admitted, then the correct and proper approach is that the Commission should be permitted to proceed with the show cause proceedings and to take a decision thereon and if there is an adverse decision, this Court may pass appropriate protective orders in the interest of justice. Further that, even such an approach may not be warranted and ordinarily, if the adverse order was passed by the PSC for canceling the advice, the appointing authority should proceed for cancellation of the appointment order and at best, the implementation of the cancellation of the appointment order by the appointing authority alone need be interdicted, etc. 11. The learned Standing Counsel for the PSC would submit that the period of limitation for the PSC, to pass orders on O.P.(KAT) No.189 of 2023 6 the show cause notice for cancellation of advice memo, is one year from the date of issuance of advice memo and not one year from the date of discovery of the mistake. Further that, the consequential action for cancellation of the appointment order is also within a period of one year from the date of appointment order. 12. Further, this Court has also consistently held, in decisions as in _**Prakasini v. Kerala Public Service Commission & Others**_ [1993 (1) KLJ 632], that, even if stay is granted by the writ courts on Rule 3(c) proceedings and ultimately, the challenge is repelled by this Court, then the period of stay is liable to be excluded for computing the abovesaid period of limitation. 13. However, it is also pointed out by the learned Standing Counsel for the PSC that, even if that be so, the decision making process should be expeditious and fast and at the same time a reasonable procedure should be followed. If stay is allowed to continue, it will be against the very scheme of the statutory provisions etc. 14. After hearing both sides, without getting into the merits O.P.(KAT) No.189 of 2023 7 of the reasons for the proposed action for cancellation of advise, we are of the view that, in matters of this nature, it is really doubtful whether there should even be a stay of the show cause notice for cancellation of the advice memo. _Prima-facie,_ we would feel that the PSC should be permitted to go ahead with the show cause process and if an adverse order for cancellation of the advice memo is issued, the appointing authority may also proceed further for cancellation of the appointment order and if an adverse order is passed by the appointing authority, for cancellation of the appointment order, as envisaged in Rule 3(c), then it could be ordered, subject to the merits of the _prima-facie_ case of the applicant, that the actual process of implementing the decision to cancel the appointment order may be kept in abeyance. 15. However, in view of the peculiar facts and circumstances of this case and in the light of the contentions of the applicant, we are persuaded to take the view that, for the time being, the PSC may be permitted to proceed with the show cause process and after affording reasonable opportunity of being heard to the applicant, they will be at liberty to pass final orders in the matter, and if the final order is adverse to the original applicant, as O.P.(KAT) No.189 of 2023 8 an order for cancellation of advice memo, such adverse order for cancellation of the advice memo shall be kept in abeyance, until the Tribunal considers the matter. Further aspects of the matter at the interlocutory stage or at the final stage could be appropriately considered by the Tribunal. 16. Accordingly, it is ordered that the impugned interim orders at Exts.P2 & P3 will stand modified. It is further ordered that the PSC will be at liberty to proceed with the show cause process under Rule 3(c) and shall give reasonable opportunity to the original applicant, and as already indicated in this Court’s interim order dated 26.05.2023, passed in this O.P., documents which are relevant for the controversy should be given to the original applicant, if requested by him. If the PSC is of the opinion that some of the relevant documents are minutes or other proceedings, etc., then the applicant may be given reasonable opportunity to peruse the same, in the presence of an officer of the PSC and also take notes. 17. After the completion of this process, the petitioner may immediately file his written objections against the show cause notice and the PSC may afford reasonable opportunity of being O.P.(KAT) No.189 of 2023 9 heard to the original applicant, either in person or through authorised counsel/authorised representative, as per the choice of the original applicant, and then a considered decision may be taken in terms of Rule 3(c). However, it is made clear that if the PSC takes a decision to cancel the advice memo of the original applicant, then the same shall not be implemented by the appointing authority, without orders from the Tribunal. The impugned interim orders of the Tribunal will stand modified and substituted as above. 18. We make it clear that we have not entered into the merits of the main controversy relating to the show cause process and such issues are left open. With these observations and directions, the above original petition will stand disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- **C. JAYACHANDRAN, JUDGE** Skk //2 O.P.(KAT) No.189 of 2023 10 ## **`APPENDIX OF OP(KAT) 189/2023`** ## **`PETITIONERS' ANNEXURES:`** - `ANNEXURE A1 A TRUE PHOTOCOPY OF THE NOTIFICATION DATED 30.05.2017 IN CATEGORY NO. 116/2017 ISSUED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION FOR APPOINTMENT TO THE POST OF LOWER DIVISION CLERK (TAMIL & MALAYALAM KNOWING)` - `ANNEXURE A2 TRUE PHOTOCOPY OF THE SECOND NCA NOTIFICATION DATED 10.04.2019 IN CATEGORY NO.48/2019 FOR APPOINTMENT OF CANDIDATES FROM DHEEVARA COMMUNITY TO THE POST OF LOWER DIVISION CLERK (TAMIL & MALAYALAM KNOWING)` - `ANNEXURE A3 TRUE COPY OF THE PROBABILITY LIST NO.09/2021/DOP DATED 03.12.2021 IN CATEGORY NO. 116/2017 ISSUED BY PALAKKAD DISTRICT OFFICER OF KERALA PUBLIC SERVICE COMMISSION FOR APPOINTMENT TO THE POST OF LOWER DIVISION CLERK (TAMIL & MALAYALAM KNOWING)` - `ANNEXURE A4 TRUE PHOTOCOPY OF THE PROBABILITY LIST NO.08/2021/DOP DATED 03.12.2021 IN CATEGORY NO. 48/2019 ISSUED BY PALAKKAD DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION FOR APPOINTMENT TO THE POST OF LOWER DIVISION CLERK (TAMIL & MALAYALAM KNOWING) FROM DHEEVARA COMMUNITY` - `ANNEXURE A5 TRUE COPY OF THE RANK LIST NO. 59/22/DOP DATED 29.01.2022 IN CATEGORY NO 48/2019 ISSUED BY PALAKKAD DISTRICT OFFICER OF KERALA PUBLIC SERVICE COMMISSION FOR APPOINTMENT TO THE POST OF LOWER DIVISION CLERK (TAMIL & MALAYALAM KNOWING)` - `ANNEXURE A6 TRUE COPY OF THE RANK LIST NO. 110/2022/DOP DATED 25.02.2022 IN CATEGORY NO. 116/2017 ISSUED BY` O.P.(KAT) No.189 of 2023 11 - `PALAKKAD DISTRICT OFFICER OF KERALA PUBLIC SERVICE COMMISSION FOR APPOINTMENT TO THE POST OF LOWER DIVISION CLERK (TAMIL & MALAYALAM KNOWING)` - `ANNEXURE A7 TRUE COPY OF THE ADVICE NO. P (V(1) 2617/06 DATED 26.02.2022 ISSUED BY PALAKKAD DISTRICT OFFICER OF KERALA PUBLIC SERVICE COMMISSION TO THE APPLICANT` - `ANNEXURE A8 TRUE PHOTOCOPY OF THE APPOINTMENT ORDER NO.E4-9893/2019 DATED 30.03.2022 ISSUED BY PANCHAYATH DEPUTY DIRECTOR, PALAKKAD TO THE APPLICANT` - `ANNEXURE A9 TRUE COPY OF THE SHOW CAUSE NOTICE NO. P IV (1) 2617/06 DATED 16.01.2023 ISSUED BY PALAKKAD DISTRICT OFFICER OF KERALA PUBLIC SERVICE COMMISSION TO THE APPLICANT` - `ANNEXURE A10 TRUE COPY OF THE REQUEST DATED 23.01.2023 SUBMITTED BY THE APPLICANT BEFORE THE DISTRICT OFFICER OF KERALA PUBLIC SERVICE COMMISSION AT PALAKKAD, SEEKING SUPPLY OF DOCUMENTS` - `ANNEXURE A11 TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT DATED` - `24.01.2023 SUBMITTED BY THE APPLICANT BEFORE THE PUBLIC INFORMATION OFFICER AT PALAKKAD DISTRICT OFFICE OF KERALA PUBLIC SERVICE COMMISSION` - `ANNEXURE A12 TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT DATED 24.01.2023 SUBMITTED BY THE APPLICANT BEFORE THE PUBLIC INFORMATION OFFICER OF KERALA PUBLIC SERVICE COMMISSION` - `ANNEXURE A13` - `TRUE COPY OF THE PRELIMINARY OBJECTION DATED 25.01.2023 SUBMITTED BY APPLICANT TO SHOW CAUSE NOTICE NO. P IV(1) 2617/06 DATED 16.01.2023 ISSUED BY PALAKKAD DISTRICT OFFICER OF KERALA PUBLIC SERVICE COMMISSION ALONG WITH ACKNOWLEDGMENT CARD` - `EXHIBIT P1 THE TRUE COPY OF THE APPLICATION IN O.A(EKM) NO.222/2023 FILED BEFORE THE TRIBUNAL` O.P.(KAT) No.189 of 2023 12 ``` EXHIBIT P2THE TRUE COPY OF THE INTERIM ORDER DATED 02/02/2023 IN O.A.(EKM) 222/2023 EXHIBIT P3THE TRUE COPY OF THE INTERIM ORDER DATED 2/3/2023 EXHIBIT P4THE TRUE COPY OF THE ORDER DATED 24/1/2023 IN O.A (EKM) NO. 251/2022 EXHIBIT P5TRUE COPY OF THE INTERIM ORDER IN OP (KAT) 130 OF 2023 DATED 27.03.2023 ```