Sony K. Paul v. Kerala Public Service Commission and District Officer, Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938** **WP(C).No. 27625 of 2014 (C) ----------------------------** **PETITIONER:** **-----------** **SONY K.PAUL,AGED 39 YEARS,** **S/O. LATE K.M.PAULOSE, KEEZHACHERIL HOUSE, VADAVUCODE P.O, ERNAKULAM DISTRICT, NOW WORKING AT L.D. TYPIST, SPECIAL COURT (SPE/CBI)-I, ERNAKULAM.** **BY ADVS.SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA** **RESPONDENT(S):** **--------------** **1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM - 695 001.** **2. DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, ERNAKULAM - 682 021.** **BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2016, THE COURT ON 22-11-2016 DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 27625 of 2014 (C)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **-----------------------** - **P1 - TRUE COPY OF THE LETTER DATED 12.9.13 OF THE KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICER, ERNAKULAM.** - **P2 - TRUE COPY OF TH LETTER DATED 24.10.13 OF BAR COUNCIL OF KERALA.** - **P3 - TRUE COPY OF THE ORDER OF THE DISTRICT COURT ERNAKULAM DATED 10.10.13.** - **P4 - TRUE COPY OF OFFICIAL MEMORANDUM OF DISTRICT COURT ERNAKULAM DATED 03.03.14.** - **P5 - TRUE COPY OF THE SHOW CAUSE NOTICE DATED 30.7.14 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION WITH ENGLISH TRANSLATION.** - **P6 - TRUE COPY OF THE APPOINTMENT CHART ISSUED BY KERALA PUBLIC SERVICE COMMISSION.** - **P7 - TRUE COPY OF THE JUDGMENT IN WPC NO. 20603/14 DATED 14.8.14.** - **P8 - TRUE COPY OF THE ORDER DATED 27.8.14 OF THE 2ND RESPONDENT WITH ENGLISH TRANSLATION.** - **P9 - TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 05.10.14 WITH ENGLISH TRANSLATION.** - **P10- TRUE COPY OF THE LETTER ISSUED BY THE DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION,ERNAKULAM REGIONAL OFFICE DATED 8.8.2014.** ## **RESPONDENT(S)' EXHIBITS NIL** **-----------------------** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## **ANU SIVARAMAN, J.** = = = = = = = = = = = = = = = = = = = = = = = = = = ## **W.P.(C).No.27625 of 2014** = = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 22[nd] day of November, 2016 ## JUDGMENT - 1.Heard the learned counsel for the petitioner and the learned standing counsel for the respondents. - 2.The petitioner challenges Exhibit P9 notice of the District Officer of the KPSC dated 15.10.2014 calling upon him to be present for a hearing with regard to a proposal for cancellation of advice issued to him. The petitioner was advised for appointment by Exhibit P1 Advice Memo dated 12.09.2013. He had joined service thereafter. Exhibit P5 show cause notice dated 30.07.2014 was issued to the petitioner stating that the advice made without clubbing vacancies which were reported to the Commission was erroneous and therefore the Commission had decided to cancel his appointment and transfer his lien to a post in Irrigation Department under Rule 3(c) of Part II KS & SSR, 1958. 3. The petitioner challenged the said show cause notice before this Court. By Exhibit P7 judgment dated 14.8.2014, the writ W.P.(C).No.27625/14 2 petition was disposed of directing the petitioner to prefer his explanation to Exhibit P5 and directing the 2[nd] respondent to take a decision in accordance with law, within two months. Status quo was ordered to be continued till then. Immediately thereafter, Exhibit P8 order dated 27.08.2014 was passed cancelling the advice given by Exhibit P1. This was without hearing the petitioner as directed in Exhibit P7 judgment. Thereafter, apparently on noticing the defect in issuing orders without hearing the petitioner as provided in Rule 3(c) of Part II KS & SSR, Exhibit P9 notice dated 15.10.2014 was issued to the petitioner. The petitioner contends that Exhibit P9 notice is bad in law since the entire proceedings with regard to hearing, as well as passing of final orders under Rule 3(c) of Part II KS & SSR and consequential orders of termination by the competent authority have to be completed within the period of one year from the date of advice. It is stated that even if the period from 14.08.2014; when the petitioner was directed to be retained on the strength of an interim order of status quo ordered by this Court is taken into account, Exhibit W.P.(C).No.27625/14 3 P9 show cause notice would be one issued after the period of one year, since the last date even as calculated excluding the period of status quo would expire on 14.10.2014. It is therefore contended that the show cause notice which is issued out of time is illegal and invalid and no action can be taken on the basis of the same. 4.I have considered the contentions advanced on either side. Rule 3(c) of Part II KS & SSR reads as follows:- - “(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 candidate by the appointing authority shall be made [within a period of one year from the date of such advice: 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” W.P.(C).No.27625/14 4 5.On a reading of the provision it is clear that orders of cancellation of advice can be passed only in cases where the advice is found to have been made under some mistake. The entire procedure for cancellation of advice and the subsequent termination of service is to be made within a period of one year from the date of advice. Cancellation of advice can be made only after giving the candidate “a reasonable opportunity of being heard in the matter” This Court in a decision reported in **V.V.Prakashini v. KPSC and others** [1993 (1) KLJ 632] **c** ase has held that the period during which the Commission is disabled from proceeding under the rule consequent on orders of stay issued is to be deducted while calculating the period of one year. In this case, even deducting the period when this Court had granted an order of status quo from 14.08.2014 and had directed the Commission to consider the matter within two months, the period of two months would expire on 14.10.2014. W.P.(C).No.27625/14 5 6.It is admitted that Exhibit P8 order dated 27.08.2014 which was issued without hearing the petitioner and without noticing Exhibit P7 judgment is unsustainable since it does not satisfy the requirements of the second proviso to Rule 3(c). Therefore, the only question which remains for consideration is whether the Commission could be permitted to proceed in pursuance to the Exhibit P9 notice for hearing which was issued on 15.10.2014. Since the time limit of one year prescribed in Rule 3(c) would take in not only the issuance of notice, subsequent hearing and passing of final orders by the Commission in terms of Rule 3(C), but also the orders of termination which is to be consequently passed by the appointing authority, I am of the opinion that the hearing notice dated 15.10.2014 which is itself beyond the period of one year from the date of advice is incompetent and no orders could legally and sustainably be passed in pursuance to such notice. In the above W.P.(C).No.27625/14 6 circumstances, Exhibit P9 is unsustainable in law. Exhibits P8 and P9 orders are therefore set aside. The writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj