SHAHANA.C.N. v. KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, KANNUR DISTRICT CO-OPERATIVE BANK, EDDAKKADAPPAN SERVICE CO-OPERATIVE BANK LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940** ## **WP(C).No. 3209 of 2019** ## **PETITIONER:** **SHAHANA.C.N., D/O.NARAYANAN, CLERK/CASHIER, KANNUR DISTRICT CO-OPERATIVE BANK, MAYYIL BRANCH, KANNUR DISTRICT, RESIDING AT PUTHIYAPURAYIL HOUSE, CHOOLIYAD, P.O.MALAPPATTAM, KANNUR-670631.** **BY ADVS. SRI.P.U.SHAILAJAN SMT.VIDYA KURIAKOSE SRI.M.SURESH KUMAR SRI.V.SREEJITH** ## **RESPONDENTS:** - **1 THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695004, REPRESENTED BY ITS SECRETARY.** - **2 THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, KANNUR-670001.** - **3 KANNUR DISTRICT CO-OPERATIVE BANK, HEAD OFFICE, P.B.NO.35, KANNUR-670001, REPRESENTED BY ITS GENERAL MANAGER.** - **4 THE EDAKKADAPPAN SERVICE CO-OPERATIVE BANK LTD, NADAL, P.O.EDAKKAD, KANNUR DISTRICT, PIN-670663, REPRESENTED BY ITS SECRETARY.** **BY ADV. SRI.M.SASINDRAN, SC, KANNUR DISTRICT CO.OP. BANK SRI P.C.SASHIDHARAN, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)3209 OF 2019 ## **JUDGMENT** The petitioner, who is presently employed as Clerk/Cashier in Mayyil Branch of the 3[rd] respondent District Co-operative Bank, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P7 show-cause notice dated 21.01.2019 issued by the 2[nd] respondent, proposing to cancel the advice for her appointment on the ground that such advice was made by mistake, overlooking the turn of Scheduled Tribe candidate. 2. Heard the learned counsel for the petitioner, the learned Standing Counsel for the Kerala Public Service Commission representing respondents 1 and 2 and also the learned Standing Counsel for the 3[rd] respondent Kannur District Co-operative Bank. 3. The pleadings and materials on record would show that the petitioner, who is presently employed as Clerk/Cashier in Mayyil Branch of the 3[rd] respondent Kannur District Cooperative Bank has been issued with Ext.P7 show-cause notice, by the 2[nd] respondent District Officer of the 1[st] respondent Public Service Commission, invoking the provisions under WP(C)3209 OF 2019 3 clause (c) of Rule 3 of Part II Kerala State and Subordinate Service Rules, 1958 (for brevity 'KS&SSR'). The petitioner joined the 3[rd] respondent Bank as Clerk/Cashier on 09.04.2018, pursuant to Ext.P2 advice memo dated 21.03.2018 issued by the 2[nd] respondent, being a candidate entitled for reservation as a member of Scheduled Caste community. Based on Ext.P3 advice, the 3[rd] respondent Bank issued Ext.P3 appointment order to the petitioner as Clerk/Cashier, on 03.04.2018. 4. Prior to the advice vide Ext.P2, the petitioner was working as Junior Clerk in the 4[th] respondent Service Cooperative Bank, on the strength of Ext.P1 order of appointment dated 09.08.2016, based on a recruitment process conducted by the Kerala Co-operative Service Examination Board. On receipt of Ext.P3, the petitioner submitted resignation before the 4[th] respondent Society, in order to join as Clerk/Cashier in the 3[rd] respondent Bank. Accordingly the petitioner was relieved from service by order dated 07.04.2018 of the 4[th] respondent and she was also issued with Ext.P5 experience certificate dated 07.04.2018. Thereafter, the petitioner joined as Clerk/Cashier in the 3[rd] respondent Bank on 09.04.2018 and 4 WP(C)3209 OF 2019 on 01.04.2018, she was transferred to Mayyil Branch in Kannur District. 5. On 13.12.2018, the 3[rd] respondent issued Ext.P6 memo dated 10.12.2018, directing the petitioner to appear before the 2[nd] respondent, on 13.12.2018, for verification of records. Based on that memo, the petitioner appeared before the 2[nd] respondent. Thereafter, the petitioner is issued with Ext.P7 show-cause notice dated 21.01.2019 of the 2[nd] respondent, wherein it has been stated that she is appointed in the category of Scheduled Caste candidate. Prior to her appointment, a Scheduled Caste candidate was appointed in the reservation category of Scheduled Tribe candidate, since there was no Scheduled Tribe candidate in the previous rank list. So, from the present rank list, the turn of the Scheduled Caste candidate has to be filled by a Scheduled Tribe candidate and thus the vacancy in question, against which the petitioner has been been advised, is set apart for Scheduled Tribe candidate. Therefore, the Commission has tentatively decided to cancel the appointment of the petitioner and she was directed to show-cause, within 15 days, by submitting her explanation. 5 WP(C)3209 OF 2019 6. On receipt of Ext.P7 show-cause notice, the petitioner is before this Court in this writ petition, contending that even without hearing the petitioner, the Commission has already taken a decision to cancel her advice and as such, there is a violation of the provisions under clause (c) of Rule 3 of Part II KS&SSR, and also the principles of natural justice. 7. Admittedly, Ext.P7 show-cause notice is one issued by the 2[nd] respondent, in exercise of his powers under clause (c) of Rule 3 of Part II KS&SSR. Clause (c) of Rule 3 of Part II KS&SSR reads thus; ## “3. **Approved candidates.-** |“3.<br>**Approved candidates.-**|“3.<br>**Approved candidates.-**|| |---|---|---| |(a)<br>xxxxxx<br>xxxxxx||xxxxxx| |(b)<br>xxxxxx<br>xxxxxx||xxxxxx| |(c) Notwithstanding anything|contained in these rules,|| |the Commission shall have the power to cancel the||| |advice for appointment of any|candidate to any service if|| |it is subsequently found that such advice was made||| |under some mistake. On|such cancellation, the|| |appointing authority shall terminate the service of the||| |candidate:||| Provided that the cancellation of advice for appointment by the Commission and the subsequent termination of service of the candidates by the appointing authority shall be made within a period of one year from the date of such advice: 6 WP(C)3209 OF 2019 Provided further that, a cancellation of advice under this sub-rule shall be made only after giving the candidate concerned a reasonable opportunity of being heard in the matter. The provisions in this sub-rule shall be deemed to have come into force on the 31st July 1969.” 8. The second proviso to clause (c) of Rule 3 of Part II KS&SSR provides that, a cancellation of advice under clause (c) shall be made by giving the candidate concerned a reasonable opportunity of being heard in the matter. It is in exercise of the powers under clause (c) of Rule 3 of Part II KS&SSR that, the 2[nd] respondent has issued Ext.P7 show-cause notice. What is reflected in Ext.P7 is only a _prima facie_ satisfaction of the 2[nd] respondent, so as to invoke the provisions under clause (c). Therefore, it cannot be said that the issuance of Ext.P7 show-cause notice is with a predetermined mind to terminate the service of the petitioner. 9. In **State of U.P v. Brahm Datt Sharma [(1987) 2 SCC 179]** the Apex Court held that, when the show cause notice was issued under a statutory provision calling upon to show cause, the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have 7 WP(C)3209 OF 2019 been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford an opportunity of hearing and once cause is shown it is open to the authority to consider the matter in the light of the facts and submission placed before it and only thereafter a final decision in the matter could be taken. Therefore, interference by the Court before that would be premature. 10. In **Seimens Ltd v. State of Maharashtra [(2006) 12 SCC 33]** the Apex Court held that ordinarily, a writ court may not exercise its discretionary jurisdiction to entertain a writ petition questioning a notice to show cause unless the notice appears to have been without jurisdiction. 11. In **Union of India v. Vicco Laboratories [(2007) 13 SCC 270]** the Apex Court held that, normally, the writ court should not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the authorities concerned and satisfy the authorities concerned about the absence of case for proceeding against the person against whom the show cause notices have been issued. Abstinence from interference at the stage of issuance of show 8 WP(C)3209 OF 2019 cause notice in order to relegate the parties to the proceedings before the authorities concerned is the normal rule. However, the said rule is not without exceptions. Where a show cause notice is issued either without jurisdiction or in an abuse of process of law, certainly, in that case, the writ court would not hesitate to interfere even at the stage of issuance of the show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. The mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out. 12. In the case on hand, the authority of the 2[nd] respondent to issue a show-cause notice under clause (c) of Rule 3 of Part II KS&SSR is not under challenge. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that on the grounds raised in this writ petition, no interference under Article 226 of the Constitution of India is warranted on Ext.P7 show-cause notice dated 21.01.2019 issued by the 2[nd] respondent. Therefore, it is for the petitioner to submit her explanation to Ext.P7 notice, WP(C)3209 OF 2019 9 within a reasonable time and thereafter, the 2[nd] respondent has to take an appropriate decision on the matter, with notice to the petitioner and after affording her and opportunity of being heard. 13. The learned Standing Counsel for Public Service Commission, representing respondents 1 and 2 would submit that further proceedings pursuant to Ext.P7 show-cause notice shall be taken only after considering the explanation offered by the petitioner, within the time limit specified in that notice, and after affording her an opportunity of being heard. The said submission is recorded. 14. In such circumstances, this writ petition is disposed of with the following directions; (i) The challenge made in this writ petition against Ext.P7 show-cause notice is repelled, since no interference is warranted on that show-cause notice, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. (ii) If not already made, the petitioner shall submit her explanation to Ext.P7 show-cause notice, within one week from the date of receipt of a certified copy WP(C)3209 OF 2019 10 of this judgment, raising all legal and factual contentions. (iii) On receipt of such explanation, within a time limit specified as above, the 2[nd] respondent shall consider the same and pass appropriate orders thereon, with notice to the petitioner and after affording her an opportunity of being heard. (iv) Necessary orders in this regard shall be passed, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of such explanation. (v) The order so passed by the 2[nd] respondent shall be a reasoned order meeting all the legal and factual contentions raised by the petitioner and the 3[rd] respondent, which shall be communicated to the petitioner forthwith. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 11 WP(C)3209 OF 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 09/08/2016 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE ADVICE MEMO ISSUED BY THE 2ND RESPONDENT DATED 21/3/2018 TO THE PETITIONER.** - **EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS DATED 3/4/2018 OF THE 3RD RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE RELIEVING ORDER ISSUED BY THE 4TH RESPONDENT DATED 7.4.2018 TO THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE 4TH RESPONDENT DATED 7.4.2018 TO THE PETITIONER.** - **EXHIBIT P6 TRUE COPY OF THE MEMO DATED 10.12.2018 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 21.1.2019 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** ## **RESPONDENTS' EXHIBITS:NIL** ## **TRUE COPY** ## **P.A. TO JUDGE**