Judgment :- 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 qualifications prescribed is the possession of a post-Graduate degree. In 1965 by G.O. Ms. 489/65/HLD dated 26 51965, it was further provided that a candidate in order to be qualified for appointment as Assistant Professor must have completed his probation as Tutor if such appointment as Assistant Professor was by way of promotion. Subsequent to the commencement of this R.3 posts of Assistant Professors fell vacant. This was on 30 91966. The 3 tutors in the Department then available were petitioner, the second respondent and the 3rd respondent of whom the second respondent was the seniormost, the next was the 3rd and then the petitioner. (Petitioner's counsel concedes that the statement otherwise in Para.3 of his petition is a mistake). This was on 30 91966. The 3 tutors in the Department then available were petitioner, the second respondent and the 3rd respondent of whom the second respondent was the seniormost, the next was the 3rd and then the petitioner. (Petitioner's counsel concedes that the statement otherwise in Para.3 of his petition is a mistake). They would have been entitled to be appointed as Assistant Professors in that order of seniority had they been qualified on that day and the Departmental Promotion Committee selected them. The Departmental Promotion Committee had to consider cases of such promotion. When the matter came up before the Departmental Promotion Committee, the Committee found it difficult to decide this question because in the case of the second respondent she did not have post-Graduate qualification at the time and in the case of the petitioner and the 3rd respondent though they possessed post-Graduate qualification they had not completed the period of probation when the vacancies arose. If the requirement of probation would apply only Tutors appointed after the date of G. O M. S.489 dated 26-5-1965 the petitioner and 3rd respondent would be qualified. If it be otherwise they would not be qualified on 30 91966. It was for this reason that the Departmental Promotion Committee decided to refer that question to the Government. They so referred the matter The Government seems to have decided to invite applications for direct recruitment to the post of Assistant Professors on the assumption that none of the 3 tutors were qualified for appointment by promotion. The petitioner as well as respondents 2 and 3 responded to the invitation and the Public Service Commission selected and advised all the 3 of them for appointment. By that time 2nd respondent bad acquired post-Graduate qualification. Naturally when they were so advised by the Public Service Commission respondent 2 was ranked as first, respondent 3 as second and the petitioner as 3rd, according to their seniority in the post of tutors. Thus the three of them became Assist Professors with the petitioner ranked as the junior most among the 3. It appears that in the meanwhile Government was considering the question whether G.G.M.S 489/65/HLD dated 26 51965 would apply only to those appointed after the date of the order or would apply to those appointed earlier too. Thus the three of them became Assist Professors with the petitioner ranked as the junior most among the 3. It appears that in the meanwhile Government was considering the question whether G.G.M.S 489/65/HLD dated 26 51965 would apply only to those appointed after the date of the order or would apply to those appointed earlier too. If the latter were the position then they would have to complete the probation as Tutors before they could seek promotion as Assistant Professors. The ultimate decision of the Government on this question was published by the Government in G. O MS 637/67/HLD dated 16 111967. The decision was that the Government Order of 26 51965 would not affect persons in service prior to the date of that order. Consequently when, on 30 91966, places were available for promotion the petitioner and 3rd respondent were qualified and had the Departmental Promotion Committee treated them as qualified they would have been appointed by promotion Consequently the Government passed Ext. P1 order dated 28101968. That referred to the appointments of the petitioner and respondents 2 and 3 pursuant to the advice of the Public Service Commission and said that in view of the subsequent clarification it had been found that the petitioner and the 3rd respondent did not require completion of probation as Tutors for their promotion. It further said that consequently the Government was ordering that petitioner as well as the 3rd respondent will be deemed to be promotees to the post of Assistant Professor with the consequence that their provisional service as Assistant Professors will be regularised with effect from the dates on which they assumed charge in pursuance of the G.O. Rt. 4630/66/HLD dated 29121966. Their ranks in the Grade of Assistant Professors were to be fixed above the second respondent whose seniority was to be effective only on the date on which she was advised by the Public Service Commission. That date was 9 51967. Consequently the ranking changed with the petitioner as the seniormost, 3rd respondent next and the second respondent as junior most. This order held the field for sometime. That there was no representation by the second respondent immediately after this order is not in controversy. That date was 9 51967. Consequently the ranking changed with the petitioner as the seniormost, 3rd respondent next and the second respondent as junior most. This order held the field for sometime. That there was no representation by the second respondent immediately after this order is not in controversy. But according to the second respondent she was not aware of the passing of the order and came to know of it only much later when the petitioner was promoted further in 1972 in preference to the second respondent. She seems to have filed some representation in 1973 which, as the records in the case show, was dismissed in the very same year. But it is the case of the second respondent that she filed a subsequent representation in the same year and it is thereupon that the Government took the advice of the Law Department, consulted the Public Service Commission and decided to issue a notice to the petitioner as well as the 3rd respondent calling upon them to show cause why Ext. P1 should not be revised so as to give a senior rank to the second respondent. Evidently in justification of this measure the Government purported to notice the fact that Ext. P1 order as passed without notice to the party that would be affected by it, namely, the second respondent and therefore it was said that the order called for reconsideration. It is on the issue of this notice that the petitioner has resorted to this Court. 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. 4. When a person is called upon to answer a show cause notice the resort to this court would normally be premature. 4. When a person is called upon to answer a show cause notice the resort to this court would normally be premature. This Court would not normally entertain the petition challenging the notice not because the right to show cause in answer is an alternative remedy but because merely on the issue of notice no injury is caused to the person. Showing cause in answer to the notice is not an alternative remedy. There is no question of remedy at that stage. When a notice to show cause is issued it is only any adverse order that is passed finally that causes a legal injury and it is against such order that remedy, if any, is to be sought At this stage, therefore, no question of remedy arises, for, the wrong has not been done yet. My attention has been drawn to the decision of the Calcutta High Court in Gulab Kanwar v. Enforcement Director (AIR. 1977 Cal. 383). The court, in that case seems to take the view that occasion to answer a show cause notice is not an alternative remedy because it is a remedy in the same proceedings. With great respect to the learned judge, while I agree that it is not an alternative remedy I cannot subscribe to the view that it Is a remedy in the same proceedings. 5. When dealing with a petition under Art.226 of the Constitution, where challenge is made even before a final order is passed on the plea that cause of action has already arisen by the issue of notice, the question is whether substantial injury has been caused, whether wrong has already been done to the petitioner which enables him to move the court. That would be on the assumption that notwithstanding that the notice is apparently only to show cause the notice is really the communication of the final decision. If the decision has been recorded and the notice is issued only to satisfy the technical requirement of a notice that would be meaningless, for it would serve no purpose. To say then that the petition is premature would be wrong because the right to challenge the order has already accrued since the notice is really a cloak for an order. Hence in such a case the court would certainly be right in interfering. To say then that the petition is premature would be wrong because the right to challenge the order has already accrued since the notice is really a cloak for an order. Hence in such a case the court would certainly be right in interfering. But the necessary pre-requisite for such interference would be a satisfaction by the court that what purports to be a notice is really not one such evincing anxiety to hear the answer to such notice but is a final decision and nothing more remains to be done except reiterate once again in the form of an order. I can envisage such cases and in fact I can recollect from my memory instances that have come up in courts when notices have really been make beliefs. To illustrate, when an order of the Government is passed and is ready to be communicated to the party the office may point out that the issue of a notice is pre-requisite and the notes file may show that the order was to be communicated only after notice to show cause was served. When a notice is consequently issued it is evident that the notice serves no purpose. It would only satisfy the requirement of law. I do not want to multiply such illustrations. But in practice it is rarely that the court will have material to find positively that the notice to show cause is really a final order in disguise and hence rarely will courts have occasion to entertain the challenge to such notice. In order that the court is satisfied on the matter there must be some relevant material. Mere suspicion would not be sufficient. The court must normally take the averments by the State that they are intending to go into the merits of the objection as honestly made. 6. I may in this context refer to the decision of the High Court of Andhra Pradesh in Govt. of India v. National Tobacco Co. (AIR 1977 A. P. 250). The Full Bench was examining in that case the scope of Art.226, as amended. There was a debate before the court as to the scope of the expression "injury of a substantial nature". Whether mere threat held out through a show cause notice to a person has caused an injury of substantial nature was examined in that case. The Full Bench was examining in that case the scope of Art.226, as amended. There was a debate before the court as to the scope of the expression "injury of a substantial nature". Whether mere threat held out through a show cause notice to a person has caused an injury of substantial nature was examined in that case. The court in that context said: "Whether even a threat, for instance held out through a show cause notice to a person, has caused an injury of substantial nature will naturally depend upon the circumstances of each case. In such matters, it would be impossible, at any rate unwise to lay down hard and fast guidelines. If the Court finds, on an examination of the threat, held out or notice issued, that causing of substantial injury is certain to follow or is imminent, then certainly it would be a case where injury of a substantial nature existed." I understand the learned judges to say that when on a reading of the notice and the other material available the court is able to form its conclusion that what it proposes is definite to follow then the injury is one of substantial nature calling for relief from the court. 7. Though the fact that advice of the Law Department has already been taken and the Public Service Commission's advice also has been obtained and the show cause notice is issued pursuant thereto and all these have been done despite the fact that the justification for reopening is only want of notice to the petitioner I am still not satisfied that I should hold that, for that reason Ext. P2 is not a notice of the Government but a final decision. Hence I am not interfering with Ext. P2. But, all the same, in view of the categorical statement as to their case made in the counter-affidavit though qualified as made for the purpose of Original Petition I think I should caution the Government to be truly and honestly independent in its final decision in the matter. Hence I am not interfering with Ext. P2. But, all the same, in view of the categorical statement as to their case made in the counter-affidavit though qualified as made for the purpose of Original Petition I think I should caution the Government to be truly and honestly independent in its final decision in the matter. This calls for an objective consideration of all the points raised by the petitioner, a proper dealing with these points, obtaining fresh advice on the objections of the petitioner from the Law Department and the Public Service Commission since such advice has been obtained from them in the earlier stage and to pass an appropriate order after bearing all parties concerned. In the circumstances I think it will also be fair to ask the Government, if it finally proposes to interfere to revise the earlier order to communicate to the petitioner the final decision before any further order of implementation is passed. Such order implementing that decision should be independently passed and that only after communication of the decision pursuant to Ext. P2 to the petitioner. 8. The petitioner has raised several contentions here by way of attack to Ext. P2 notice on the merits. It is said that Ext P1 order was passed as early as in 1968 and that is not liable to be interfered with at this distance of time. It is said that no hearing was necessary before passing Ext. P1 order because it was only the implementation of a policy decision. It is further said that the second respondent had disabled herself from challenging Ext. P1 by remaining silent for years and later even when her representation was dismissed she did not move the court, but filed repeated representations. All these objections and further objections in the matter are matters which could be urged before the Government If the objection filed by her is not sufficiently specific she can file an additional objection within 2 weeks from today. That will also be considered at the time of disposal of the matter. 9. The original petition is disposed of as above. No costs. A carbon copy of this judgment will be issued to Government Counsel free of costs.