IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 WA.No. 108 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.16350/2004 Dated 15/12/2009 .................... APPELLANTS/ RESPONDENTS 4 & 5 ------------------------------- 1. C.G.SHALAPPAN, OILMAN (POWER HOUSE), COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI-9. 2. M.J.KUMARAN, OILMAN (POWER HOUSE), COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI-9. BY ADV. SRI.NAGARAJ NARAYANAN RESPONDENTS/ PETITIONER & RESPONDENTS 1 TO 3 & 6 ------------------------ 1. M.K.ASOKAN, OILMAN (POWER HOUSE), COCHIN PORT TRUST, RESIDING AT PORT TRUST QUARTER NO.E1/213, 10TH CROSS ROAD, WILLINGDON ISLAND,KOCHI-3. 2. KOCHI PORT TRUST, REPRESENTED BY ITS SECRETARY, WILLINGDON ISLAND, KOCHI-9. 3. CHIEF MECHANICAL ENGINEER, COCHIN PORT TRUST, KOCHI-3. 4. EXECUTIVE ENGINEER (ELECTRICAL), COCHIN PORT TRUST, KOCHI-3 5. P.V.BALAN, OILMAN (POWER HOUSE), COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI-9. SRI.E.K.NANDAKUMAR FOR R2 TO R4 SRI.A.K.JAYASANKAR NAMBIAR FOR R2 TO R4 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------- W.A. No.108 OF 2010 ----------------------------- Dated this the 28th day of January, 2010 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents 4 and 5 in the Writ Petition are the appellants. They were working as Mazdoors in the Sanitation Department under the Civil Engineering Division of the Cochin Port Trust. The 1st respondent herein was the writ petitioner, who was a Mazdoor working under the Electrical Division. When vacancies in the cadre of Oilman arose in the Power House, the Port Trust invited applications from Mazdoors working in the Electrical Division, as per Ext.P1. Later, Annexure-II notification was issued inviting application to the said post, but there was no stipulation that Mazdoors in the Electrical Division alone can apply. For appointment to that post, the appellants, 1st respondent and others applied. A Selection Committee constituted by the Port Trust conducted the selection, which included an interview and published Ext.P2 W.A.No.108/2010 2 (a) list of Mazdoors eligible for appointment as Oilman. The 1st respondent herein was shown as Serial No.1, whereas the appellants were shown as Serial Nos.3 and 4. All of them were appointed to the post of Oilman. Subsequently, when Ext.P6 seniority list of Oilman in the Power House was published, the ranking in Ext.P2(a) was maintained therein. Later, it was modified on more than one occasion and the same resulted in the 1st respondent being shown as junior to the appellants and the 5th respondent. Feeling aggrieved by the said change in his seniority in the category of Oilman, the Writ petition was filed by the appellant. He prayed for quashing Ext.P11, which is a seniority list in which he was shown as rank No.4 and Ext.13, as per which, the 1st appellant was further promoted based on the aforementioned seniority list. 2. The Cochin Port Trust filed a counter affidavit taking the stand that the appointment to the post of Oilman is an appointment by transfer and therefore, the seniority in the feeder category should be reflected in the seniority of the appointees. But, the learned Single Judge, after perusing the W.A.No.108/2010 3 recruitment rules, found that as per the said rules, the appointment is by direct recruitment and therefore, when a select list is published and appointments are made therefrom, the seniority in the cadre should be in accordance with the rank in the select list. In that view of the matter, the Writ Petition was allowed. The learned Single Judge ordered to restore the seniority of the 1st respondent over others. Feeling aggrieved by the said direction, the appellants have preferred this appeal. 3. According to the appellants, if the appointment is by direct recruitment, the age limit prescribed in the recruitment rule will apply. If that be so, all the incumbents including the appellants and the 1st respondent are ineligible to apply for the post. The appellants also submitted that Ext.P2(a) cannot be treated as a rank list, as the Port Trust does not have any such case. So, the learned Single Judge wrongly assumed that it is a rank list and therefore, the judgment under appeal is vitiated. W.A.No.108/2010 4 4. As noticed by the learned Single Judge, the appointment to the post of Oilman can be made only by direct recruitment. Unless the rules are amended, the Port Trust cannot say that the appointment is recruitment by transfer and therefore, the seniority in the feeder category will be reflected in the appointed category also. Since Ext.P2(a) is a select list, we are of the view that without anything more, the rank therein can safely be treated as the ranking based on merit. The said list was published after a selection process, which included personal interview of the candidates also. So, when a select list is published, unless otherwise specified, it can be taken that ranking therein is according to the merits of the candidates. As long as the method of appointment remains direct recruitment, we find nothing wrong with the view taken by the learned Judge that the ranking in the appointed cadre should be according to the ranking in the select list, Ext.P2(a). It is true, all the candidates were overaged and the appellants are also beneficiaries of that illegality. Yet another contention is that since the appointment is by direct recruitment, it should have been made after public notification. But, that irregularity also W.A.No.108/2010 5 has gone to the benefit of the appellants. Therefore, they cannot turn round and question those irregularities, which were committed by the Port Trust to favour them also. In view of the above position, we find no reason to interfere with the judgment under appeal. Accordingly, the Writ Appeal is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (P.N.RAVINDRAN, JUDGE) ps