IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No. 29122 of 2008(P) --------------------------------------- PETITIONER(S): ------------------------ 1. K.P.AUGUSTINE,ASSISTANT SUB INSPECTOR H-1126, POLICE TELECOMMUNICATION SUB UNIT KOCHI CITY, KOCHI. 2. SIVAKUMARAN.S., ASSISTANT SUB INSPECTOR H-1119, POLICE TELECOMMUNICATION SUB UNIT, PALAKKAD. 3. SAGIR.S., ASSISTANT SUB INSPECTOR H-1105,POLICE TELECOMMUNICATION SUB UNIT KOLLAM. 4. TOMY JOSEPH, ASSISTANT SUB INSPECTOR H-1128, POLICE TELECOMMUNICATION SUB UNIT KOCHI CITY, KOCHI. 5. THOMAS.M.J., ASSISTANT SUB INSPECTOR, H- 1124, POLICE TELECOMMUNICATION SUB UNIT WAYANAD. BY ADV. MR .ELVIN PETER P.J. RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE POLICE HEADQUARTERS, THIRUVANANTHAPURAM. 3. SUPERINTENDENT OF POLICE, TELECOMMUNI- CATIONS, PATTOM, THIRUVANANTHAPURAM. W.P.(C) NO.29122/2008 4. M.PRAVEENKUMAR, HEAD CONSTABLE II, 1089, KERALA POLICE TELECOMMUNICATION SUB UNIT, TRIVANDRUM RURAL POST OFFICE, TRIVANDRUM. 5. K.SARACHANDRAN NAIR, HEAD CONSTABLE, H-1059, KERALA POLICE TELECOMMUNICATION HEAD QUARTERS, HF-CONTROL, PATTOM, THIRUVANANTHAPURAM. 6. G.SATHEESAN, HEAD CONSTABLE , H-1024, KERALA POLICE TELECOMMUNICATION HEAD QUARTERS, HF-CONTROL, PATTOM, THIRUVNANTHAPURAM. 7. V.K. JAYAPRAKASH, HEAD CONSTABLE H-1053,KERALA POLICE TELECOMMUNICATION HEAD QUARERS, HF-CONTROL, PATTOM, THIRUVANANTHAPURAM. 8. K.L. PRAVEENKUMAR, HEAD CONSTABLE, H-1054, KERALA POLICE TELECOMMUNICATION HEAD QUARTERS, HF-CONTROL, PATTOM, THIRUVANANTHAPURAM. 9. A.PREMKUMAR, HEAD CONSTABLE, H-1058, KERALA POLICE TELECOMMUNICATION HEAD QUARTERS, HF-CONTROL, PATTOM, THIRUVANANTHAPURAM. 10. THRIVIKRAMAN, HEAD CONSTABLE, H-1127, KERALA POLICE TELECOMMUNICATION HEAD QUARTERS, HF-CONTROL, PATTOM, THIRUVANANTHAPURAM. 11. M.MOHANAN, S/O K. MATHEW, HEAD CONSTABLE H-1028, KERALA POLICE TELECOMMUNICATION HEAD QUARTERS, HF-CONTROL, PATTOM, THIRUVANANTHAPURAM 12. P.V. ABRAHAM, S/O VARKEY ABRAHAM, PULIMPUZHA HOUSE, MANARCADU POST, KOTTAYAM TALUK, H-1033, KERALA POLICE TELECOMMUNICATION HEAD QUARTERS,PATTOM, THIRUVANATHAPURAM. W.P.(C) NO.29122/2009 13. JAYA DAS V., HEAD CONSTABLE, H.1056, KERALA POLICE TELECOMMUNICATIONS NCRS, PATTOM, THIRUVANANTHAPURAM. R4 – R12 BY ADVS. MR.S.P.ARAVINDAKSHAN PILLAY , SMT.N.SANTHA , MR.S.A.ANAND , MR.PETER JOSE CHRISTO GOVERNMENT PLEADER MR.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/01/2009, ALONG WITH WPC NO. 29022 OF 2008 AND CONNECTED CASES THE COURT ON 30/01/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.29122/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER DT. 19.4.2000 ALONG WITH THE LIST ISSUED BY THE 3RD RESPONDENT. P2:- COPY OF THE ORDER DT. 1.12.2000 ALONG WITH THE LIST ISSUED BY THE 3RD RESPONDENT. P3:- COPY OF THE ORDER DT. 22.3.2001 ISSUED BY THE 3RD RESPONDENT. P4:- COPY OF THE ORDER G.O. DT. 17.5.1963 ISSUED BY THE GOVERNMENT. P5:- COPY OF THE SELECT LIST FOR PROMOTION TO THE POST OF ASST. SUB INSPECTORS ISSUED BY THE DEPARTMENT. P6:- COPY OF THE ORDER DT. 14.12.2006 ISSUED BY THE I.G. OF POLICE. P6(a):- COPY OF THE ORDER DT. 18.2.2005 ISSUED BY THE 3RD RESPONDENT. P6(b):- COPY OF THE ORDER DT. 30.7.07 ISSUED BY THE 3RD RESPONDENT. P6(c):- COPY OF THE ORDER DT. 30 9.05. ISSUED BY THE 3RD RESPONDENT. P6(d):- COPY OF THE ORDER DT. 4.9.06 ISSUED BY THE I.G. OF POLICE. P6(e):- COPY OF THE ORDER DT. 7/07 ISSUED BY THE 3RD RESPONDENT. P7:- COPY OF THE JUDGMENT DT. 22.7.03 IN WRIT APPEAL NO.919/2000 OF THIS HONOURABLE COURT. P8:- COPY OF THE COMMON JUDGMENT DT. 17.9.07 IN OP. NO.29475/02 ETC. OF THIS HONOURABLE COURT. P9:- COPY OF THE STATEMENT FILED BY THE GOVERNMENT IN W.A. NO.2855/07 BEFORE THIS HONOURABLE COURT. P10:- COPY OF THE SENIORITY LIST OF CONSTABLE PUBLISHED BY DEPARTMENT AND PRODUCED BEFORE THIS HONOURABLE COURT ALONG WITH EXT.P9. P11:- COPY OF THE COMMON JUDGMENT DT. 18.9.08 IN W.A. NO.2953/07 ETC. OF THIS HONOURABLE COURT. P12:- COPY OF THE ORDER DT. 27.1.94 ISSUED BY THE 3RD RESPONDENT. P13(SERIES):- COPIES OF THE ORDERS DT. 27.1.1994 ISSUED BY THE 3RD RESPONDENT TO SEVEN CANDIDATES. W.P.(C) NO.29122/2008 RESPONDENT'S EXHIBITS R12(a):- COPY OF THE INTERLOCUTORY APPLICATION IN OP. 29475/02. R12(b):- COPY OF THE COMMON ORDER IN OP. NOS. 29475/02-H, 207/03-Y, 7122/03W DAND WP(C) NO.29211/03-C. R12(c):- COPY OF THE LIST OF CANDIDATES SELECTED FOR APPOINTMENT AS POLICE CONSTABLE (TELECOM). R12(d):- COPY OF THE S.O. 254/94/TELECOM DT. 18.11.1994 OF THE SUPERINTENDENT OF POLICE, TELECOM. R12(e):- COPY OF THE ORDER NO.A1-13399/93/TELE DT. 24.1.1994 OF THE SUPERINTENDENT OF POLICE, TELECOMMUNICATION, THIRUVANANTHAPURAM. R12(f):- COPY OF THE R.P. 1169/08 DT. 23.10.08. R12(g):- COPY OF THE JUDGMENT DT. 11.11.2008 OF THIS HONOURABLE COURT. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 29022, 29122, 29123 and 29129 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of January, 2009. JUDGMENT In all these writ petitions the challenge is against a seniority list. Therefore, they are disposed of by a common judgment. (The exhibits referred to herein are as they are marked in Writ Petition No.29122/2008.) 2. The contesting respondents and the learned Govt. Pleader submitted that the issues raised in these writ petitions are already covered by the judgment in O.P.No.29475/2002 and connected cases (Ext.P8). The seniority list has been prepared as per the directions in the said judgment. The writ appeals have also been disposed of leaving open the remedy of the appellants therein to challenge the seniority list. Even though a review petition was filed, that also stands dismissed. Therefore, it is contended that the remedy of the petitioners is only to raise objections to the seniority list before the competent authority and not by filing separate writ petitions as now done. 3. The undisputed facts show the following: The petitioners and contesting respondents were appointed to the post of Constables in the WPC29022/08, etc. 2 Kerala Telecommunication Unit which is governed by the Recruitment Rules to the Post of Police Constables (Telecommunication), Police Telecommunication Unit in the Kerala Police Subordinate Service. Candidates were sponsored through Employment Exchange and the list was prepared in the year 1986. Appointments were made only in the year 1994 after giving training to the candidates. A provisional seniority list of Police Constables was prepared as per the order dated 19.4.2000 (Ext.P1). As no records were available in the department to prepare a seniority list, they adopted two principles, i.e. age and communal rotation as the criteria for preparing the seniority list. A total number of 138 Constables were recruited and the entire records relating to the same were missing at that point of time. Objections were called for and the same was finalised as per order dated 1.12.2000 (Ext.P2). The same was challenged by various party respondents in Writ Petition No.29475/2001 and connected cases. Ultimately, this court by Ext.P8 judgment, allowed the writ petitions by quashing the seniority list and issued various directions in relation to the principles to be followed in preparing the seniority list. They are extracted below: “i) The impugned seniority list of police constables (Telecommunication) dated 1.12.2000, published as per WPC29022/08, etc. 3 S.O.No.145/2000/TELECOMM is set aside. ii) It is directed that the official respondents will ensure the immediate preparation of a seniority list after giving opportunity to the personnel to place all available documents to evidence their date of entry or such other matters, as may be relevant. A notice calling for such documents shall be issued fixing a cut off date for production of such materials. Individuals who seek to be personally heard shall be extended such opportunity. iii) The seniority list shall be prepared without applying any rule of reservation or communal rotation, so long as S.R.O.848/83 stands as it is. iv) Age shall not be treated as the criterion for fixing the seniority. v) All promotions and placements made on the basis of the impugned seniority list shall stand regulated by this judgment and shall be modified in terms of the seniority list that shall be prepared as directed above. vi) The final seniority list as directed above shall be prepared and published within an outer limit of six months from the date of receipt of a copy of this judgment.” 4. Writ Appeals were filed against the said judgment and the Division Bench by an interim order directed the official respondents to prepare a fresh seniority list on the basis of relevant documents which were to be called from the police constables. Accordingly, a list was prepared and that was produced before the Division Bench (Ext.P10). The Writ WPC29022/08, etc. 4 Appeals were disposed of by Ext.P11 judgment. The Division Bench closed the Writ Appeals with the following directions: “In the circumstances of the case, since new seniority list has been prepared, we are of the opinion that these writ appeals can be closed without any further orders. Appellants are entitled to challenge the new seniority list if they are advised to do so. We are not expressing any opinion regarding the contents in Ext.R3(a). However, since interim stay was granted in the writ appeals from 15.1.2008 onwards, we are of the opinion that status quo as on today shall be maintained for a period of two weeks.” It is thereafter that these writ petitions have been filed on various grounds. 5. In a nutshell, the contentions raised by the petitioners are that they have obtained subsequent promotions to the post of Head Constable and thereafter as Asst. Sub Inspector on inclusion of their names in the select list. It is contended that the said select list was never challenged in any proceedings. They rely upon various decisions of this court to sustain the said plea. 6. The stand taken by the party respondents in the counter affidavit filed and the Government are that the remedy of the petitioners that was left open by the Division Bench is only to approach the authority concerned under Rule 27B of the KS & SSR, by filing objections to the seniority list. WPC29022/08, etc. 5 The principles that were laid down by the learned Single Judge were never interfered with by the Division Bench and those directions have become final. It is pointed out that the earlier writ petitions were heard after taking out notice by publication. There was an interim order in the writ petitions to the effect that “operation of the seniority list of Police Constables (Telecommunication) dated 6.4.2004 will be subject to the result of the writ petitions” and hence any promotion obtained by the petitioners as Asst. Sub Inspector was by operating the seniority list dated 6.4.2004 which was subject to the result of the writ petitions. They also contend that the objections raised by the petitioners in these writ petitions on the assignment of seniority are also not correct. The respondents have also produced as Ext.R12(e), true copy of order No.A1-13399/93/Tele dated 24.1.1994 of the Superintendent of Police, Telecommunication, Thiruvananthapuram by which 156 persons were appointed as Police Constables. This order was subsequently traced out by the department authorities and was produced before this court along with the counter affidavit filed in Writ Petition No.29122/2008. It is pointed out that the same is the basic document for fixation of the inter-se seniority of the petitioners and the party respondents and therefore there is no difficulty to fix the inter-se seniority of the petitioners and the party respondents. It is pointed out that even though WPC29022/08, etc. 6 petitioners sought for a review of the judgment in the Writ Appeals, that was dismissed by the Division Bench by order dated 11.11.2008 in R.P.No.1169/2008 in Writ Appeal No.2953/2007. The Division Bench made it clear in the following terms: “In writ appeal, we have granted permission to challenge the seniority list. If the seniority list prepared is altered, placements and promotions will be made according to the revised seniority list. Petitioners will be free to challenge regarding the correctness of the seniority list.” The same has bee produced as Ext.R12(g). The learned Govt. Pleader submitted that material records are available for finalising the seniority list. 7. Therefore, the question is whether the writ petitions filed by the petitioners will be hit by the principles of res judicata and whether the contentions raised by them are open for consideration in this case. Going by the judgment of the learned Single Judge in Ext.P8, the earlier seniority list was set aside and various directions were issued with regard to the preparation of the seniority list. Those directions have become final, as they have not been interfered with in the judgment of the Division Bench in the writ appeals. Pending the writ appeals, the official respondents were allowed to prepare a seniority list which was produced before the Division Bench. The petitioners were permitted by the Division Bench to file WPC29022/08, etc. 7 objections to the seniority list. Even though learned counsel for the petitioners contended that what was allowed by the Division Bench is liberty to challenge the seniority list and therefore they can challenge the same in these writ petitions, the said contention cannot be accepted in the light of the judgments of the Division Bench in the writ appeals and in the review petition. The challenge to a seniority list as permitted, can only be by way of statutory representations. Otherwise, the matter would have been considered on merits then. This court sitting under Article 226 of the Constitution of India, will not be able to go into the disputed questions of facts relating to assignment of seniority or to engage in an exercise by way of fixing the seniority of the parties concerned. That is for the competent statutory authorities to consider before the list is finalised. Therefore, I do not find any reason to adjudicate the contentions raised by the petitioners and these writ petitions are dismissed with the following directions: The petitioners are given three weeks time from today to file objections to the seniority list as now published. (Ext.P10). The competent authority will consider the objections and pass final orders and publish the final seniority list within a period of two months from that date. Even though learned counsel for the petitioners submitted that they may not be reverted in the meanwhile, in the light of the position made clear in the WPC29022/08, etc. 8 judgment in the review petition, no separate orders are necessary. Consequential orders regarding promotion/reversion, etc. can also be passed depending upon the said seniority list. (T.R. Ramachandran Nair, Judge.) kav/