Secretary, Kerala Public Service Commission vs B. Malini and Others

K. Sreedharan, Actg. C.J.

When this Writ Appeal came up for admission, writ Petitioner-first Respondent entered appearance. We heard counsel appearing on either side in detail. As agreed to by counsel, we are disposing of this Appeal.

Kerala Public Service Commission, hereinafter referred to as the Commission, third Respondent in O.P. 10303/91 is the Appellant. Commission challenges the decision rendered by the learned Single Judge directing the appointing authority and the Commission to drop all proceedings pursuant to Exts. P-6 and P-8 and to allow the writ Petitioner to continue in service.

The short facts necessary for the disposal of the appeal are as follows: Commission invited application for appointment as Lower Division Clerk in various Departments as per Notification published in the Gazette dated 10th May 1988. Writ Petitioner submitted applications pursuant to the said Notification both in Palghat and Ernakulam Districts A written test was conducted by the Commission on 5th August 1989. District-wise rank list was published. Writ Petitioner was assigned rank No. 63 in Palghat and rank No. 603 in Ernakulam. On the basis of the higher rank obtained among the candidates of Palakkad District, she was advised for appointment as Lower Division Clerk as per Ext. P-2 dated 30th August 1990. Consequent to that advice, the Director of Technical Education issued Ext. P-1 order dated 3rd October 1990 appointing the writ Petitioner as Lower Division Clerk. She joined duty on 15th October 1990. Commission issued Ext. P-3 notice dated 28th July 1991 calling upon the Petitioner to show cause why her advise should not be cancelled under Rule 3(c) of the Kerala State and Subordinate Service Rules, hereinafter referred to as the Rules. The ground alleged in the notice was that she applied for selection to ''the post of L.D.C. in more than one District and gave information in her application that she did not apply in any other District Writ Petitioner submitted Ext. P-4 reply. Dissatisfied with the reply. Commission issued Ext. P-6 order dated 29th August, 1991 cancelling the advise for appointment. On the basis of Ext. P-6 order passed by the Commission, Director of Technical Education, the second Respondent, issued Ext. P-5 notice dated 18th September, 1991 calling upon the writ Petitioner to show cause why her appointment should not be terminated. Writ Petitioner filed representation dated 3rd October, 1991 stating that she had not suppressed any material in her application and that the termination of her service is not legal in view of the specific provision contained in the first proviso to Rule 3(c) of the Rules. However by Ext. p-8 order dated 10th October, 1991, services of the Petitioner as L.D.C. were terminated. Writ Petitioner challenged Exts. P-6 and P-8 orders passed by the Commission and the second Respondent, the Director of Technical Education. Learned Single Judge quashed Exts. P-6 and P-8 orders and directed the Respondents to allow writ Petitioner to continue in service. Hence this appeal.

The fact remains that writ Petitioner applied for the post of Lower Division Clerk pursuant to the Notification issued by the Commission both from Palakkad and Emakulam Districts. It is also common case that she was ranked in the list of Palakkad as also in the rank list of Emakulam. On the basis of the higher rank obtained by her among the candidates in the ranked list of Palakkad District, she got advice for appointment. Consequent to that advice, second Respondent issued the order of appointment as well. It is also beyond controversy that as per the Notification issued by the Commission, no candidate was to apply for selection in more District. Since writ Petitioner applied for selection in more than one district, she suppressed the actual facts and consecuenitly tried to take an undue advantage. Be that as it may, the appointment given to the writ Petitioner was sought to be revoked by the Commission by invoking the provision contained in Rule 3(c) of the Kerala State and Subordinate Service Rules As per that provision, Commission have the power to cancel the advise for appointment of any candidate to any service if it is subsequently found that such advice was made under some mistake. In the instant case writ Petitioner was advised on 30th August 1990. When it came to the notice of the Commission that she applied for selection from two Districts, show cause notice was issued to her to give reason why her advise should not be cancelled. That show cause notice is dated 28th July 1991. Writ Petitioner submitted her explanation. That explanation was found not acceptable. Consequently Commission issued orders cancelling the advice on 29th August 1991. That order was communicated to the writ Petitioner on 3rd October 1991. At this juncture it is worthwhile to note that even though the order cancelling the advice was passed on 29th August 1991, it was put in the process of communication on 31st August, 1991. On the basis of the order of cancellation, appointing authority initiated steps to terminate the appointment. Show cause notice was issued on 18th September 1991. Writ Petitioner submitted her written statement of defence on 3rd October 1991. Final order terminating her services was issued on 10th October 1991.

The short question that arises for consideration in this appeal is whether the services of writ Petitioner were terminated within the time frame fixed by the first proviso to Rule 3(c) of the Rules. For a proper understanding of that proviso, we read the same.

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.

A plain reading of this proviso makes it clear that the order, cancelling the advice, to be passed by the Commission and the subsequent order terminating the service of the candidate by the appointing authority should both be made within a period of one year from the date of the first advice. In other words, if the Commission and the appointing authority fail to pass orders cancelling the advice and cancelling the appointment respectively within one year from the date of advice, services of the candidate cannot be cancelled as per Rule 3(c) of the Rules.

Learned Counsel reresenting the Commission brought to our notice an unreported decision rendered by a Bench in W.A. 1398/93 to which one among us (Sreedharan, J.) was a party. In that judgment, it was observed:

A further contention was raised before us that though the notice of cancellation of the advice was within the period of one year mentioned in Rule 3(c) of the K.S. and S.S.R. that period expired by the date of service of order on the Appellant. In our view, the date of service of the order is not relevant. What is relevant is the date on which the order emanated and was put in the process of communication. If the contention of the Appellant is to be accepted, there may be situations where the rule may be rendered otiose, by persons evading service of notice of cancellation. We are, therefore, of the view that the notice of cancellation was issued within the time prescribed in the rules.

According to counsel, the above observation has the effect of stating that the order terminating the service of a candidate can be issued under Rule 3(c) of the Rules if notice of cancellation was issued within the time of one year prescribed in the Rules. We are not impressed with this argument. The point that was urged in W.A. 1398/93 was whether the order was to be passed within the time frame fixed or was it to be communicated within the period of one year. With reference to that aspect the Bench observed that what is relevant is the date on which the order emanated and was put in the process of communication. So the order that was made mention of by the Bench can only be the final order passed by the appointing authority. If that order happens to be passed within the period of one year fixed under Rule 3(c) and was put in the process of communication within the said period, then the mere fact that it happened to be served on the Government servant beyond the said period will not be a ground for challenging that order. The above observation by the Bench can under no circumstance, be taken as laying down the proposition that the cancellation of advice need alone be made within one year from the date of advice. Such an interpretation is clearly in violation of the specific provision contained in the proviso. Proviso makes if clear that both orders of cancellation of the advice and the termination of service by the appointing authority should be passed within a period of one year from the date of the first advice.

In the instant case, the advice is dated 30th September 1990. Show cause notice was issued calling upon the writ Petitioner to give her defence for not cancelling the advice was issued on 28th July 1991. It was well within the period prescribed by the first proviso. After considering her statement of defence, the Commission cancelled the advice by order dated 29th August 1991. That order was also within the time fixed by the proviso. But that order was not put in the process of communication within one year from the date of advice. The order dated 29th August 1991 cancelling the advice was put in the process of communication only on 31st August 1991. It was served on the writ Petitioner on 3rd October 1991. Even though the Commission passed the order cancelling the advice within the period of one year fixed by the first proviso, that order was not put in the process of communication within one year. That itself was fatal. Further pursuant to the order of cancellation, appointing authority issued show cause notice dated 18th September 1991. This is long after the expiry of the one year period fixed by the proviso. After considering the representation of the writ Petitioner, Ext. P-8 order terminating her services was issued on 10th October, 1991 only. That order was issued far beyond the period of one year fixed by the first proviso to Rule 3(c) of the Rules. So on the ground that the order passed by the Commission cancelling the advice was put in the process of communication to the writ Petitioner after the expiry of one year and on the ground that the writ Petitioner''s services were terminated by the appointing authority long after the expiry of the period fixed by the first proviso, writ Petitioner''s services cannot be cancelled or interfered with. Learned Single Judge has rightly allowed the Writ Petition quashing Exts. P-6 and P-8 orders as having been passed outside the period fixed by the first proviso to Rule 3(c) of the Rules. We do not find any ground to interfere with the said order.

Writ Appeal fails. It is dismissed.