VIJAYALAKSHMI KUNJAMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) On the issue of a show cause notice Ext. P2 calling upon the petitioner as well as the 3rd respondent to file objection to a proposal to revise seniority as between the petitioner, second respondent and third respondent, modifying an earlier order of the Government the petitioner has approached this Court seeking to quash the notice Ext. P2. Though it is conceded that normally a show cause notice by itself may not be challenged in this Court as the proper course would be to answer the notice and wait for the decision it is said for the petitioner that there are circumstances warranting interference by this Court with Ext. P2 in this case. In support of this it is said that though apparently what is issued is a show cause notice it really conveys the final decision of the Government to take action as proposed therein and therefore the compliance with the notice is mere a matter of form. It is for this reason the petitioner seeks orders from this Court to quash the show cause notice. To understand this contention of the petitioner it may be necessary to refer to a few facts.

(2.) The petitioner is at present an Associate Professor in Obstetrics and Gynaecology in the Medical College at Calicut. Respondents 2 and 3 are also Associate Professors in Obstetrics and Gynaecology in the same Medical College. The petitioner joined service in 1955 and in August 1964 she became a Tutor in Obstetrics and Gynaecology. The venue for promotion for a Tutor is that of an Assistant Professor and in order to get promotion to that post one of the

(3.) Since the main question urged by both sides concerns the propriety of moving the court at this stage I will first refer to the respective cases of the parties on this question In the counter affidavit, Para.2, it is categorically averred by the Deputy Secretary to Government, Health Department, who has filed the counter affidavit on behalf of the Government, that the Government has not decided the matter finally The Government will be, it is averred, passing orders only after considering the representation filed by the petitioner and the 3rd respondent and will examine the question independently considering all the points raised by the petitioner in her representation. The averments contained in the counter affidavit are said to have been made only for the purpose of meeting the allegations contained in the Original Petition and it is further averred that those statements would not prejudice the proposed order to be passed by the Government. It is reiterated that the Government will consider the whole matter untrammelled by what is stated in the counter affidavit. But, in the circumstances disclosed, if the petitioner has, notwithstanding these assurances, an apprehension that Government may carry out what they proposed without much of ceremony I would not say it is entirely unfounded. The reason for taking action by way of issue of notice Ext. P2 is said to be that the Government felt that the second respondent should have been heard, in passing Ext. P1 order. If that was the reason I think the proper course would have been to issue notice to reopen Ext. P1 and reconsider the matter without committing one way or the other on the merits of the question at that stage. In other words even a tentative view should have been taken only after the parties were beard on the issue. That is because if the order is bad for want of notice the order could be reopened merely for that reason and the parties could be heard again. Now the Law Department is said to have been consulted and the advice of the Law Department is said to have been obtained. That advice on the merits is said to be in the lines indicated in the notice. The Public Service Commission is said to have been consulted and its advice also obtained by the Government. These have prompted the proposal on the merits That has given room for apprehension on the part of the petitioner, notwithstanding the high sounding assurances made in the counter affidavit, that what is left to be done is only the formality of an order confirming the proposal made in Ext. P2. Whatever may be the reasonableness of the apprehension of the petitioner or the cause for such apprehension I do not think that I should find positively that on the facts and circumstances of the case Government has taken a final and irreversible decision in the matter.