IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WA.No. 552 of 2009() AGAINST THE JUDGMENT WPC.31207/2008 Dated 30/01/2009 APPELLANT/ NOT PARTY IN THE W.P: GIRISH KUMAR M, BHAGEERATHI NIVAS, MUTTADA P.O., THIRUVANANTHAPURAM 695 025. BY ADV. SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU) RESPONDENTS/ PETITIONER & RESPONDENTS 1. K. MAHADEVAN, II GRADE OVERSEER, OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER'S OFFICE, TRAVANCORE DEVASWOM BOARD, ULLOOR, THIRUVANANTHAPURAM. 2. TRAVANCORE DEVASWOM BOARD, REP. BY ITS SECRETARY,THIRUVANANTHAPURAM -3 3. CHIEF ENGINEER (GENERAL), TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM. 4. V.K. HARILAL (III GRADE OVERSEAR), PROMOTED AS ASSISTANT ENGINEER, TRAVANCORE DEVASWOM BOARD, CHENGANNUR. BY ADV. SRI.P.G.PARAMESWARA PANICKER (SENIOR) STANDING COUNSEL- R2 &R3 SRI.P.GOPAL STANDING COUNSEL FOR R2 &R3 SRI.P. RAMAKRISHNAN-R4 SRI. B. GOPAKUMAR-R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2009 ALONG WITH WA NO.553 OF 2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NOS. 552 & 553 OF 2009 --------------------------------------------- Dated this the 7th day of July, 2009 JUDGMENT Balakrishnan Nair, J. W.A. No.553 of 2009. The appellant was the petitioner in W.P.(C) No. 21221 of 2008. He was an applicant for appointment to the post of Assistant Engineer (Civil) when the first respondent - Devaswom Board invited applications for the same by notification dated 24.5.2005. The notification provided that the rank list published will be used to fill up existing vacancies and those vacancies which may arise within one year of publication of the rank list. The rank list was published on 21.7.2005. So, it must be taken to have expired on 20.7.2006. According to the appellant, the then Devaswom Board in power extended the validity of the rank list upto 20.7.2008 and appointments were made from it. Vacancies in the cadre of Assistant W.A. NOS. 552 & 553/2009 2 Engineer were being filled up in the ratio of 60:40 between direct recruits and promotees. For promotees, there was an internal ratio of 30:10 between diploma holders and certificate holders. According to the appellant, at the relevant time when the list was going to expire, there was dearth in the cadre strength of promotees. But, since there were no qualified hands in the feeder category, that vacancy should go to the direct recruits. Altogether seven persons were appointed from the rank list. The appellant was the 8th candidate. So, if the vacancy available for appointment of a promotee remained unfilled for want of certificate/diploma holder, the appellant should have been appointed in that vacancy. This, in brief, was the case put forward by the writ petitioner. 2. The Writ Petition was heard along with another connected Writ Petition. A counter affidavit was filed on behalf of the Devaswom Board in the connected Writ Petition, i.e. W.P.(C) No.31207 of 2008, contending that the life of the rank list is valid for only one year and that the Devaswom Board illegally extended its life. Therefore, the said rank list cannot be operated to fill up the vacancy available in the diploma holders' quota, it is submitted. The learned Single Judge dismissed W.P.(C) No.21221 of 2008 and allowed W.P.(C) No.31207 of 2008. Feeling W.A. NOS. 552 & 553/2009 3 aggrieved by the above common judgment, this appeal and the connected appeal, W.A. No.552 of 2009 are filed. 3. We heard the learned counsel on both sides. We find that since the life of the rank list was only for one year and in the absence of a case for the appellant that the diploma holder's vacancy, which arose during the one year life of the rank list, was remaining unfilled, the appellant is not entitled to get any relief in this appeal. But, the learned counsel for the appellant would point out that the newly introduced Rule 9 of the Recruitment Rules in the place of the old Rule 9 is under the heading 'intermediate division' and, therefore, the life of the rank list contained in Rule 9 which was relied on by the Devaswom Board will not apply to the post of Assistant Engineer which comes under the higher division. In Government service, various posts are classified as Last Grade, Subordinate Service and State service. Likewise, the posts under the Devaswom Board are classified as higher division, intermediate division and lower division. We have gone through the old and the new rules. Though the amended Rule 9 is introduced under the sub heading 'intermediate division', it is a general rule applicable to all rank lists for appointment under the Devaswom Board. We are inclined to take this view for the reason that no other rule concerning the life of a rank list is W.A. NOS. 552 & 553/2009 4 available. Even assuming that the amended Rule 9 which prescribes the life of rank list as one year is not applicable for appointment to the post of Assistant Engineer, even then, it will not have any effect on the outcome, as the notification inviting applications itself contained a condition that the life of the rank list is one year. 4. Learned counsel for the appellant, also, relied on Rule 17 of the Rules which reads as follows: “17. The Board, may, however, for special reasons, grant exemption to deserving candidates from the applicability of any of the foregoing rules.” We think that the said rule will not enable the Devaswom Board to extent the life of the rank list. It is a rule which confers power on the Devaswom Board to relax the provisions of the rules for appointment of deserving candidates. 5. Finally, learned counsel submitted that the persons upto rank No.7 were appointed and that some of them were appointed in the vacancy which arose after the one year period. In exercise of our jurisdiction under Article 226 of the Constitution of India, we cannot ask the Devaswom Board to repeat an irregularity which it committed earlier. Unless the W.A. NOS. 552 & 553/2009 5 appellant has got a right, he cannot succeed by relying on the ground that some favour has been done to some other persons. 6. In the result, the appeal fails and it is dismissed. W.A. No.552 of 2009 In view of the judgment in W.A. No.553 of 2009, this appeal is also dismissed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NOS. 552 & 553/2009 6 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A. NOS.552 & 553/2009 JUDGMENT 7th July, 2009 W.A. NOS. 552 & 553/2009 7