IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 WP(C).No. 37755 of 2004(T) -------------------------- PETITIONER: ------------ ROSHNY, AGED 41, D/O. LATE ITTIYERA THOMAS, ASSISTANT ENGINEER, K.S.E.B. METER TESTING UNIT, ELECTRICAL CIRCLE, K.S.E.B., ALAPPUZHA. BY ADV. SRI.DINESH R.SHENOY RESPONDENTS: ------------- 1. KERALA STATE ELECTRICITY BOARD REP. BY ITS SECRETARY, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION REP. BY THE SECRETARY, O/O. K.P.S.C., PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.N.N.SUGUNAPALAN, SC, KSEB SRI.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37755 of 2004 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT-P1: TRUE PHOTOCOPY OF THE RANK LIST PUBLISHED BY 2ND RESPONDENT W.E.F 28.11.1989 EXHIBIT-P2: TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 24.11.1992 IN C.M.P. NO.24327/1992 IN O.P. NO.1347/1992 EXHIBIT-P3: TRUE PHOTOCOPY OF THE JUDGMENT DATED 16.12.1997 IN WRIT APPEAL NO.1877/1997 EXHIBIT-P4: TRUE PHOTOCOPY OF THE ORDER DATED 17.12.1998 IN SLP (CIVIL) NOS 8709 TO 8711/1996 EXHIBIT-P5: TRUE PHOTOCOPY OF THE COMMON JUDGMENT DATED 18.3.2002 IN OP NOS 15736/2000,17257/2000 AND 34358/2001 EXHIBIT-P6: TRUE PHOTOCOPY OF THE REPRESENTATION DATED 10/6/1999 SUBMITTED BY THE PETITIONER EXHIBIT-P7: TRUE PHOTOCOPY OF THE LETTER DATED 14.5.2001 ISSUED BY THE PETITIONER EXHIBIT-P8: TRUE PHOTOCOPY OF THE REPRESENTATION DATED 12.6.2003 /TRUE COPY/ P.A. TO JUDGE V.GIRI,J. ------------------------- W.P ( C) No. 37755 of 2004 -------------------------- Dated this the 28th February, 2008 J U D G M E N T Exhibit P1 rank list was published by the Public Service Commission on 28.11.1989, in relation to the post of Assistant Engineer (Electrical) in the Kerala State Electricity Board. The rank list was operational and valid till 27.11.1992. Apparently, in spite of existing vacancies, the Electricity Board did not report all such vacancies to the Public Service Commission. By Exhibit P2 order, this Court directed the Electricity Board to report 67 vacancies of Assistant Engineers (Electrical) to the Public Service Commission on or before 27.11.1992 subject to furthers orders from this Court. It seems that though the writ petitions were dismissed, there were a batch of appeals before the Division Bench including the appeal filed by the petitioner. This ultimately led to Exhibit P3 judgment. The operative portion of the said judgment reads as follows: All the appeals, therefore, succeed and are allowed. The Public Service Commission (respondent) is directed to send advice to the Electricity Board within one month to fill up 67 W.P ( C) No. 37755 of 2004 2 vacancies falling to the share of direct recruits from the rank list dated 28.11.89, within two months from the date a certified copy of this judgment is produced before the said respondent by the appellants. 2. The Electricity Board took up the matter before the Hon'ble Supreme Court and the SLPs were also dismissed by order dated 17.12.1998. It may be noted herein that Exhibit P3 judgment itself was rendered on 16.12.1997. 3. It is common case that by the time Exhibit P3 judgment was delivered, subsequent selection had already been undertaken by the Public Service Commission and rank list was published by the Public Service Commission with effect from 26.6.1997. Exhibit P3 judgment therefore came to be delivered on 16.12.1997, when the subsequent rank list published by the PSC on 26.6.1997 was in force. 4. Petitioner came to be included in the subsequent rank list published on 26.6.1997 and by enforcement thereof she was advised and appointed as Assistant Engineer with effect from 9.11.1998. 5. Apparently, 67 advice memos were issued by the Public Service Commission pursuant to Exhibit P3 judgment, to the W.P ( C) No. 37755 of 2004 3 persons who were included in Exhibit P1 rank list. It seems that though 67 persons were issued orders of appointment, 26 persons failed to report for duty. All these happened subsequent to Exhibit P3 judgment dated 16.12.1997 and by the time, as noted above, the rank list dated 26.6.1997 had already come into force and petitioner herself was appointed on 9.11.1998. 6. The persons who were appointed pursuant to Exhibit P3 judgment, actually came to be appointed only after the appointment of persons who were included in the rank list dated 26.6.1997. But on the premise that they should be considered against the vacancies which were existing and which had to be filled up by operation of Exhibit P1 rank list, they claim seniority over the persons who came to be appointed by operation of the rank list dated 26.6.1997. This ultimately led to writ petitions before this Court, disposed of under Exhibit P5 judgment. This Court found that normally the seniority of a candidate advised by the PSC should be reckoned only in accordance with Rule 27(c). The said principle will have to be followed only in case a where there is no correction of any mistake. Persons who were advised against 67 vacancies identified by the Division Bench and in W.P ( C) No. 37755 of 2004 4 relation to which directions were issued under Exhibit P3 judgment, would have in the normal course been appointed much earlier to the publication of the rank list on 26.6.1997. In the words of this Court in Exhibit P5 judgment “if everything was done in accordance with law, petitioners would have definitely got appointments earlier than those persons included in the subsequent rank list. This is also a case involving correction of mistake and therefore the date of their effective advice should also be modified accordingly. It will be quite anomalous to give seniority to persons who were advised from the rank list published on 26.6.1997 over the persons who were advised from the rank list published on 28.11.1989. In an identical case, the Apex Court in the decision reported in Dalalah Gojah Vs. State of Kerala [1998 (1) KLT 567] held that a person wrongly denied appointment is entitled to get seniority over others who were appointed from a subsequent select list'. Thus, those among the 67 persons, who were issued advice memos pursuant to Exhibit P3 judgment and who were actually appointed on the basis of such advice memos came to be assigned seniority over the persons who were appointed by enforcement of the W.P ( C) No. 37755 of 2004 5 subsequent rank list. 7. Petitioner's case stands on a different footing. Petitioner submits that she was appointed by enforcement of the subsequent rank list dated 26.6.1997. She should have been actually appointed by enforcement of the earlier rank list. She points out that 67 persons were issued advice memos as per Exhibit P3 judgment. As a matter of fact 26 persons did not join duty and therefore those 26 vacancies should have been treated as NJD vacancies. Had advice memos been issued against those NJD vacancies, the petitioner also would have been advised. Consequently, at any rate, the petitioner would have got the benefit which was given to the petitioners in Exhibit P5 judgment. This is resisted by the Electricity Board. 8. I heard learned counsel for the petitioner Mr.Dinesh R.Shenoy and learned standing counsel for the Electricity Board. 9. The short question is whether the petitioner should be directed to be considered against the NJD vacancies, which arose after 26 out of 67 persons advised pursuant to Exhibit P3 judgment had failed to report for duty. 10. Learned counsel for the petitioner Mr.Dinesh W.P ( C) No. 37755 of 2004 6 R.Shenoy submits that after all petitioner had a vested right or at least an enforceable right in terms of Exhibit P3 judgment to be considered against the vacancies, out of the 67 vacancies which were directed to be filled up by the Division Bench in Exhibit P3 judgment. The contention is that if all the 67 vacancies had been filled up, then the petitioner also would have been advised against one of those vacancies. Consequently, it would have resulted in the petitioner being placed as a senior to those persons who were advised by enforcement of the second rank list dated 26.6.1997. 11. I am afraid that I am unable to accept the submission. In my view, the operative direction in Exhibit P3 is to the Public Service Commission to advice against those 67 vacancies by enforcement of the rank list dated 28.11.1989, obviously notwithstanding the fact that the rank list had expired in 1992. Though the Electricity Board had challenged Exhibit P3, Public Service Commission had issued advice memos to 67 persons. Had the 67 persons joined duty, obviously, the petitioner would not have come into the picture at all. Apparently, there were 26 NJD vacancies. Unfortunately for the petitioner, Exhibit P3 judgment did not provide for the said contingency. Though Mr.Shenoy W.P ( C) No. 37755 of 2004 7 vehemently contends that the directions in the last paragraph of Exhibit P3 judgment should be construed as a direction to fill up the vacancies, and therefore, what was required is to see whether the 67 vacancies have been filled up by enforcement of Exhibit P1 rank list, I am of the view that the only direction that is discernible from Exhibit P3 judgment is that the Public Service Commission has to issue 67 advice memos to persons included in Exhibit P1 rank list. This was done. NJD vacancies need not be filled up taking note of the direction contained in Exhibit P3 judgment, in the absence of specific direction issued in that regard. 12. It may not be possible for the petitioner to claim parity of treatment with the petitioners in Exhibit P5 judgment for the simple reason that petitioners therein were among the 67 persons who were issued with advice memos and admittedly petitioner comes into the picture only if she was considered against the NJD vacancies out of the 67 vacancies. In my view, an extension of such benefit, was not contemplated by Exhibit P3 judgment. At any rate, a clarification was necessary. Such clarification should have been obtained from the Bench which W.P ( C) No. 37755 of 2004 8 passed Exhibit P3. 13. In my view, yet another fact which stands in the way of the petitioner is that by the time, the NJD vacancies had arisen, petitioner had already been advised by enforcement of the rank list dated 26.6.1997. If this be so, she could have not been again advised by the PSC against the NJD vacancies. I need not elaborate on this point further, essentially on account of the finding as above. 14. Learned counsel for the petitioner placed reliance on the judgment of the Supreme Court in Dalalah Gojah Vs. State of Kerala [1998 (1) KLT 567]. It is essentially accepting the principle laid down in the case of Dalalah Gojah's case that Exhibit P5 judgment was delivered by this Court. As noted above, the crucial distinction which marks out the petitioner's case from the case considered in Exhibit P5 judgment was that petitioners' claim was not against the original 67 vacancies covered by Exhibit P3 judgment but only against the NJD vacancies out of the 67 above mentioned vacancies. Since the right made available to the aforementioned 67 persons was only a right which accrued by the directions in Exhibit P3 judgment\, it would not be possible to W.P ( C) No. 37755 of 2004 9 bring the petitioner within the fold of the said crucial factor which distinguishes the petitioner's case from Exhibit P5 judgment. In the ultimate analysis, I am also not inclined to accept the contentions of the petitioner in circumstances where she had already been appointed by enforcement of the rank list published on 26.6.1997. Further, the acceptance of the petitioner's claim would be an assignment of seniority to the petitioner over those persons who had been advised ahead of her by enforcement of the rank list dated 26.6.1997. In other words, if the reliefs prayed for by the petitioner are granted, it will affect persons who are not parties to the writ petition. For all these reasons, I do not find any merit in the writ petition and the same is therefore, dismissed. (V.GIRI, JUDGE) ma W.P ( C) No. 37755 of 2004 10 K.THANKAPPAN,J CRL.A. NO.92 OF 1999 ORDER W.P ( C) No. 37755 of 2004 11 25th May, 2007