IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 OP (CAT).No. 3407 of 2011(Z) ---------------------------- OA.380/2011 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS/APPLICANTS: -------------------- 1. NARAYANAN POTTI.T., ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM, RESIDING AT TC 5/950 (1) KAUSTHUBHAM AMBADI NAGAR LANE-1, SREEKARYAM PO, THIRUVANANTHAPURAM 695 017. 2. RADHIKA R, ASSISTANT PASSPORT OFFICE, THIRUVANANTHAPURAM, RESIDING AT MRA-10A (REVATHY) MADATHUVILA LANE, MEDICAL COLLEGE PO THIRUVANANTHAPURAM. 3. AJITH KUMAR S.S, ASSISTANT PASSPORT OFFICE, THIRUVANANTHAPURAM RESIDING AT TC.29/274 BRIGADIAN LANE VIKAS BHAVAN POLICE QUARTERS -K1 VIKAS BHAVAN PO, THIRUVANANTHAPURAM. 4. AJITH KUMAR S.S,ASSISTANT PASSPORT OFFICE, THIRUVANANTHAPURAM RESIDING AT TC.27/861 (2) ATHANI HOUSE, ATHANI LANE,VANCHIYOOR PO THIRUVANANTHAPURAM 695 035. 5. ANITHA V , ASSISTANT PASSPORT OFFICE, SNSM BUILDING (SREE NARAYANA SADABDIPOORTHI MEMORIAL)THIRUVANANTHAPURAM RESIDING AT ROHINI KUNNIL,KAZHAKUTTOM PO, THIRUVANANTHAPURAM 695 582. 6. SHAMJI B SINGH ASSISTANT,PASSPORT OFFICE, SNSM BUILDING (SREE NARAYANA SADABDIPOORTHI MEMORIAL) THIRUVANANTHAPURAM RESIDING AT DWARAKA VALIYAVELI PO, THIRUVANANTHAPURAM 695 021. 7. REMA V ASSISTANT, PASSPORT OFFICE, SNSM BUILDING THIRUVANANTHAPURAM RESIDING AT SARA SREE, AISWARYA NAGAR,NALANCHIRA PO,THIRUVANANTHAPURAM. BY ADV. SRI.S.V.RAJAN SRI.S.ASOKAN SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH RESPONDENTS/RESPONDENTS: --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY MINISTRY OF EXTERNAL AFFAIRS GOVERNMENT OF INDIA, NEW DELHI 110 011. 2. THE JOINT SECRETARY, (CPV) AND CONSULAR PASSPORT VISA, CHIEF PASSPORT OFFICER MINISTRY OF EXTERNAL AFFAIRS GOVERNMENT OF INDIA, NEW DELHI 110 011. 3. THE REGIONAL PASSPORT OFFICER KAITHAMUKKU, THIRUVANANTHAPURAM 695 024. 4. V.VIJAYAKUMAR UDC, UPPER DIVISION CLERK, PASSPORT OFFICE COCHIN 682 036.' 5. BERTIN.M.N., UDC,(UPPER DIVISION CLERK) PASSPORT OFFICE, TRIVANDRUM-695 024. 6. GEETHAKUMARI.C.S., UDC, PASSPORT OFFICE, TRIVANDRUM-695 024. 7. MINI.D.K., UDC, PASSPORT OFFICE, TRIVANDRUM-695 024. 8. G.SRINIVAS RAO, ASSISTANT, PASSPORT OFFICE, HYDERABAD-500 003. 9. N.K.SURIYAPRAKASH, ASSISTANT, PASSPORT OFFICE, CHENNAI-600 006. 10. VIKAS MISRA, ASSISTANT, PASSPORT OFFICE, LUCKNOW-226 001. 11. ASOK KUMAR RAY, ASSISTANT, PASSPORT OFFICE, PATNA-800 001. 12. SHAILENDRA KUMAR SINGHA, ASSISTANT, PASSPORT OFFICE, RANCHI-834 004. 13. ASIF HUSSAIN, ASSISTANT, PASSPORT OFFICE, LUCKNOW-226 001. 14. SANJAY SIRVASTAVA, ASSISTANT PASSPORT OFFICE, LUCKNOW-226 001. 15. PAWAN KUMAR, ASSISTANT, PASSPORT OFFICE, AMRITSAR-143 001. 16. PANKAJ KUMAR AGARWAL, ASSISTANT, PASSPORT OFFICE, BAREILLY-243 001. 17. SANJEEV KUMAR, ASSISTANT, PASSPORT OFFICE, JALANDHAR-144 001. 18. SREEKUMAR V., ASSISTANT, PASSPORT OFFICE, TRIVANDRUM-695 024. 19. NARENDER KUMAR, ASSISTANT, PASSPORT OFFICE, JALANDHAR-144 001. 20. NARESH KUMAR, ASSISTANT, PASSPORT OFFICE, DELHI-110 011. 21. MAYA SHIVAKUMAR, ASSISTANT, PASSPORT OFFICE, KOCHI-682 036. 22. LINA RAJESH TAILOR, ASSISTANT, PASSPORT OFFICE, AHMEDABAD-380 006. 23. J.V.RAMA MURTHY, ASSISTANT, PASSPORT OFFICE, HYDERABAD-500 003. 24. SURESH CHAND, ASSISTANT, PASSPORT OFFICE, DELHI-110 011. 25. SANJAY KUMAR SRIVASTAVA, ASSISTANT, PASSPORT OFFICE, LUCKNOW-226 001. 26. SHARAD GUPTA, ASSISTANT, PASSPORT OFFICE, AHMEDABAD-380 006. 27. PRAKASH CHANDER,ASSISTANT,PASSPORT OFFICE,JAIPUR-802013. 28. MANISH JAIASWAL,ASSISTANT, PASSPORT OFFICE,PATNA-800 001. 29. UNNIKRISHNAN,UDC,PASSPORT OFFICE, KOZHIKODE-673006. 30. MURALI.R.S,UDC,PASSPORT OFFICE, TRIVANDRUM-695024. 31. AJILDAS.N,UDC,PASSPORT OFFICE, KOZHIKODE-673006. 32. VIJAYAKUMARI.A,UDC,PASSPORT OFFICE, TRIVANDRUM-695024. 33. USHAKUMARI AMMA.S,UDC,PASSPORT OFFICE, TRIVANDRUM-695024. 34. AJISH BABU.V,UDC,PASSPORT OFFICE, MALAPPURAM-676519. 35. KUNDAN SINGH,UDC,PASSPORT OFFICE, GHAZIABAD-201 001. 36. PARAMESWARAN.A.R,UDC,PASSPORT OFFICE, TRIVANDRUM-695024. 37. SOILE.P,UDC,PASSPORT OFFICE, TRIVANDRUM-695024. 38. JASMINE.S,UDC,PASSPORT OFFICE, TRIVANDRUM 695 024. 39. ZEEMA MARY, UDC,PASSPORT OFFICE,TRIVANDRUM 695 024. 40. BEENA.S.S, UDC,PASSPORT OFFICE,TRIVANDRUM 695 024. 41. REMADEVI.P.A, UDC,PASSPORT OFFICE,KOZHIKODE 673 006. 42. JAYACHANDRAN.V.D, UDC,PASSPORT OFFICE,COCHIN 682 036. 43. GIRIJA.N,UDC,PASSPORT OFFICE, KOZHIKODE 673 006. 44. JIJI.K,ASSISTANT, PASSPORT OFFICE, KOZHIKODE 673 006. 45. ANI SHIBU,ASSISTANT, PASSPORT OFFICE,COCHIN 682 036. 46. P.R.KRISHNAN,ASSISTANT, PASSPORT OFFICE, COCHIN 682 036. 47. K.K.ASOKAN,ASSISTANT, PASSPSORT OFFICE, KOZHIKODE 673 006. 48. VENUGOPALAN.P,UDC, PASSPORT OFFICE , KOZHIKODE 673 006. 49. MOHANAN.P,ASSISTANT, PASSPORT OFFICE, MALAPPURAM 676 519. 50. N.GEETHA,UDC, PASSPORT OFFICE, KOZHIKODE 673 006. 51. SALY JOSEPH MANI,ASSISTANT PASSPORT OFFICE, KOZHIKODE 673 006. 52. SHIBU JOHN,ASSISTANT, PASSPORT OFFICE, COCHIN 682 036. 53. ANNIE ALEX,ASSISTANT, PASSPORT OFFICE, COCHIN 682 036. 54. V.K.RAVINDRANATH,ASSISTANT, PASSPORT OFFICE, KOZHIKODE 673 006. 55. V.SURALIRAJAN,ASSISTANT, PASSPORT OFFICE, TRICHY 620 008. 56. VINODINI.P,ASSISTANT, PASSPORT OFFICE, KOZHIKODE 673 006. 57. SANDEEP SHUKLA,ASSISTANT, PASSPORT OFFICE, LUCKNOW 226 001. 58. JUNIE SUSAN ABRAHAM, UDC PASSPORT OFFICE, TRIVANDRUM 695 024. 59. RAJEEV SAXENA,ASSISTANT, PASSPORT OFFICE, LUCKNOW 226 001. 60. P.SIVARANI, ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 61. RAJALEKSHMY BALACHANDRAN, ASSISTANT, PASSPORT OFFICE, COCHIN-682 036. 62. N.K.AJAYAKUMAR, ASSISTANT, PASSPORT OFFICE, MALAPPURAM-676 519. 63. SANJEEV SAXENA, ASSISTANT, PASSPORT OFFICE, LUCKNOW-226 001. 64. KAVITA SAJAY PAI, ASSISTANT, PASSPORT OFFICE, MUMBAI-400 025. 65. USHAKUMARI.K.T., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 66. SATHISH KUMAR KOOTTIL, ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 67. SUHASINI.C.P., ASSISTANT, PASSPORT OFFICE, COCHIN-682 036. 68. BABY SHYLAJA KUNIYIL, ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 69. SHAMSHER BAHADUR SINGH, ASSISTANT, PASSPORT OFFICE, JALANDHAR-144 001. 70. M.P.AMBIKAMOL, ASSISTANT, PASSPORT OFFICE, COCHIN-682 036. 71. SANTHOSH KUMAR.K.V., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 72. BABU.P.K., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 73. PRATIBHA VERMA, ASSISTANT, PASSPORT OFFICE, BAREILY-243 001. 74. N.PARTHASARATHY, ASSISTANT, PASSPORT OFFICE, TRICHY-620 008. 75. THERESA.V.J.X.A, ASSISTANT, PASSPORT OFFICE, BANGALORE-560 095. 76. AJITHA KUMAR.S., ASSISTANT, PASSPORT OFFICE, COCHIN-682 036. 77. NEENA JOSE, ASSISTANT, PASSPORT OFFICE, BANGALORE-560 095. 78. BABY SREEJA.V., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 79. SHEEBA, ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 80. C.K.JAYALEKHA, ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 81. R.SRIDHARAN, ASSISTANT, PASSPORT OFFICE, MADURAI-625 002. 82. BEENA.N.K., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 83. RAMADEVI.P., UDC, PASSPORT OFFICE, KOZHIKODE-673 006. 84. MANOHARAN.C.P., UDC, PASSPORT OFFICE, KOZHIKODE-673 006. 85. RAJAGOPAL.P.T., UDC, PASSPORT OFFICE, KOZHIKODE-673 006. 86. BOOPATHY GANESH, ASSISTANT, PASSPORT OFFICE, TRICHY-620 008. 87. K.S.VANI, ASSISTANT, PASSPORT OFFICE, BANGALORE-560 095. 88. SEENA ULLAS, UDC, PASSPORT OFFICE, COCHIN-682 036. 89. MINI PAUL, ASSISTANT, PASSPORT OFFICE, COCHIN-682 036. 90. DAISY PAULOSE, ASSISTANT, PASSPORT OFFICE, COCHIN-682 036. 91. RAMADASAN.T.K., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 92. SALILAJA.L.G., UDC, PASSPORT OFFICE, TRIVANDRUM-695 024. 93. PREETHA.P.A., ASSISTANT, PASSPORT OFFICE, COCHIN-682 036. 94. BEENA.P., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 95. SHINE.C.M., ASSISTANT, PASSPORT OFFICE, COCHIN-682 036. 96. LATHA.A.S., ASSISTANT, PASSPORT OFFICE, COCHIN-682 036. 97. PRABHAVATHI.K.E., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 98. BINDU.K., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 99. JAYASREE.C., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 100. S.RAJESWARI, ASSISTANT, PASSPORT OFFICE, CHENNAI-682 036. 101. LALITHA.T., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 102. SOBHA AJAYAKUMAR, ASSISTANT, PASSPORT OFFICE, COCHIN-682 036. 103. REEJA.V., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 104. SHEEBA.K., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 105. BINDU.M., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 106. ANITHAKUMARI.M.K., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 107. SMITHA.U.V., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. 108. SUNIL KUMAR.M., ASSISTANT, PASSPORT OFFICE, MALAPPURAM-676 519. 109. REEMA.A.R., ASSISTANT, PASSPORT OFFICE, KOZHIKODE-673 006. ADV. SRI.SUNNY XAVIER, CGC FOR R1-3 THIS OP (CAT) HAVING COME UP FOR ADMISSION ALONG WITH O.P.(CAT) NO.3408/2011 ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(OPCAT 3407/2011) PETITIONER'S EXHIBITS: P1: TRUE COPY OF RELEVANT PORTION OF OFFICIAL MEMORANDUM NO.22011/86-ESST.(D) DT.19.7.1989 ISSUED BY DEPARTMENT OF PERSONNEL AND TRAINING, GOVT. OF INDIA. P2: TRUE COPY OF RELEVANT PORTION OF THE OFFICIAL MEMORANDUM NO.22011/1/3/98- ESST.(D) DT.17.9.1998 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING, GOVT. OF INDIA. P3: TRUE COPY OF RELEVANT PORTION OF THE OFFICIAL MEMORANDUM NO.22011/9/98- ESST.(D) DT.1.2.1999 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING, GOVT. OF INDIA. P4: TRUE COPY OF CIRCULAR NO.V.IV/551/34/08 DT.17/9/2008 ISSUED BY R1. P5: TRUE COPY OF ORDER BY FAX MESSAGE UNDER REF. NO.V.IV/551/34/08 DT.12.12.2008 ALONG WITH THE RANK LIST IN THE ORDER OF MERIT. P6: TRUE COPY OF ORDER PROMOTING THE UDCs TO THE POST ASSISTANTS UNDER REF. NO.CDR-II/551/34/2008 DT.9.1.2009 ISSUED BY R1. P7: TRUE COPY OF ORDER UNDER REF. NO.CDR-II/551/34/2008 DT.28.8.2009 WITH THE REVISED RANK LIST FOR THE XAMINATION CONDUCTED ON 23.11.2008. P8: TRUE COPY OF COMMON ORDER DT.1.4.2009 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, IN O.A. NO.739/2008, O.A. NO.754/2008 AND O.A. NO.45/2009. P9: TRUE COPY OF ORDER UNDER REF. NO.CDR-II/582/2/2009 DT.26.11.2009 ISUUED BY R1. P10: TRUE COPY OF CIRCULAR NO.V.IV/551/34/08 DT.12.1.2010 ISSUED BY R1 BY FAX TO ALL PASSPORT OFFICES. P11: TRUE COPY OF ORDER UNDER REF. NO.V.IV/551/34/08 DT.31/12/2010 ISSUED BY R1 BY FAX ALONG WITH COMBINED RANK LIST FOR THE LIMITED DEPARTMENTAL EXAMINATION HELD ON 23.11.2008 AND 21.3.2010. P12: TRUE COPY OF O.A. NO.380/2011 FILED BY PETITIONER HEREIN BEFORE THE CAT, ERNAKULAM BENCH. P13: TRUE COPY OF ORDER NO.CDR-11/551/34/2008 DT.1.7.2011 ISSUED BY R1. P14: TRUE COPY OF ORDER DT.25.7.2011 OF THE CAT, ERNAKULAM BENCH, IN O.A. NO.380/2011. TRUE COPY P.S. TO JUDGE C.N.RAMACHANDRAN NAIR, Ag. C.J. & P.S.GOPINATHAN, J. .................................................................... O.P.(CAT) Nos.3407 & 3408 of 2011 .................................................................... Dated this the 24th day of October, 2011. JUDGMENT Ramachandran Nair, Ag. C.J. Connected O.Ps. are filed by one set of LDC/UDC who participated in a departmental selection test for promotion to the post of Assistants. 16 years' combined service both in the cadre of LDC and UDC is the experience required for qualifying a candidate to participate in the departmental examination. When applications were invited, the Department of Personnel and Training fixed the cut-off date for acquiring qualifying service as 1.1.2008, whereas the last date fixed for submitting application for participating in the examination was 26.9.2008. The cut-off date fixed was challenged before the CAT on the ground that it is an arbitrary fixation of date and those completing 16 years' service as on the last date for submitting application for participating in the examination should be allowed to participate in the qualifying examination. By the time CAT heard the matter and allowed it, the Passport Officer had already held examination based on O.P.(CAT) 3407&3408/11 2 eligibility with reference to cut-off date fixed in the first notification. However, CAT allowed cases filed by a batch of people and directed the Passport Officer to hold another test for those who were qualified as on the last date provided for filing application. This order of the CAT was accepted by the Department and they held another test in which a few more people were qualified. The petitioners in these two O.Ps. are the candidates who participated in the first test and based on the result published, they were given promotion as Assistants. However, when the fresh list was published for the additional number of candidates permitted to write the examination based on CAT orders, the Department combined the list and made posting based on merit. It is against these orders the two connected O.Ps. are filed. We have heard counsel for the petitioners and Standing Counsel appearing for respondents 1 to 3. 2. After hearing both sides, we do not find any merit in the challenge against the order of the CAT giving opportunity to those who had the qualifying service as on the last date for submission of application to take part in the examination. This order is not seen O.P.(CAT) 3407&3408/11 3 challenged by the department and so much so, the department has accepted that the date fixed in the first Notification was arbitrary and all those who were qualified as on the last date for submission of application should be permitted to write the examination. The case of the petitioners is that since they were not parties in the O.A. before the CAT, they could not challenge the order issued by the CAT based on which the second batch candidates were allowed to write the examination. Consequently the prayer in the second O.P. is to vacate the order of the CAT and to cancel the second examination conducted and the selection made. We are unable to accept this contention because we feel the CAT rightly held that fixing cut-off date for acquiring qualifying service more than 8 months prior to the last date fixed for receipt of application for participation in the examination is an arbitrary decision by the department and that when selection is made on merit, the maximum number of candidates eligible as on date of receipt of application should be permitted to participate in the examination. This is exactly what the Tribunal ordered and the order of the Tribunal is not challenged by the department. We do not think O.P.(CAT) 3407&3408/11 4 those candidates who have acquired experience earlier has any right to challenge the order of the CAT permitting all eligible candidates to write the competitive examination for selection. Consequently we dismiss O.P.(CAT) No.3408/2011 by upholding the order of the CAT. 3. O.P.(CAT) No.3407/2011 is filed challenging the combination of selected candidates under single list and re-assignment of seniority based on merit. The appellants' case is that they were appointed earlier based on the first list prepared. However, the CAT noticed that both examinations, though separately held, the candidates are similarly placed and so much so, the two select lists should be combined together and seniority also has to be fixed based on relative merit of the candidates. We are in complete agreement with the finding of the Tribunal because the second examination was necessitated only because of the wrong decision taken by the department to exclude several candidates from the eligible category. When the Tribunal held that those who have the required experience as on the last date for filing application for the examination should be considered, we feel they should be given equal treatment with others who would have O.P.(CAT) 3407&3408/11 5 acquired required service earlier. So much so, when both the examinations were for the very same purpose of appointment of Assistants on merit quota from inservice candidates, all are entitled to be treated equally, no matter two examinations were held. Consequently we dismiss this O.P.(CAT) also upholding the combined seniority list prepared based on results of the two examinations. C.N.RAMACHANDRAN NAIR Acting Chief Justice P.S.GOPINATHAN Judge pms