IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 OP.No. 16873 of 2002(H) --------------------------------- PETITIONER(S): ---------------------- 1. D.SIVAKUMAR, ASSISTANT ENGINEER, INLAND NAVIGATION SECTION NO.III, CHACKAI, THIRUVANANTHAPURAM. 2. B.SHAJI, ASSISTANT ENGINEER, OFFICE OF THE CHIEF ENGINEER, (IRRIGATION & ADMINISTRATION), THIRUVANANTHAPURAM. BY ADV. MR.N.SUGATHAN MR.A.V.RAMAKRISHNA PANICKER SMT.R.SEEMA RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, IRRIGATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER(IRRIGATION & ADMN.) THIRUVANANTHAPURAM. 3. THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER), REPRESENTED BY THE CONVENER & SECRETARY TO GOVT. IRRIGATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. T.PADMANABHAN, ASSISTANT ENGINEER, MINOR IRRIGATION SECTION, RAJAPURAM, KASARAGOD DISTRICT. * 5. K.P.V.SREEDHARAN, ASSISTANT ENGINEER, MINOR IRRIGATION SECTION, PERIYA P.O., CHITTARI, KASARAGOD DISTRICT. (* CORRECTED) OP.No. 16873 of 2002(H) * THE ADDRESS OF THE 5TH RESPONDENT IS CORRECTED AS * K.P.V.SREEDHARAN, ASSISTANT ENGINEER (RETD), IRRIGATION DEPARTMENT, RESIDING AT 'SREEPADAM', KARIVALLOOR P.O., KANNUR AS PER ORDER DATED 25/06/2002 IN CMP NO.29184/2002. GOVERNMENT PLEADER SMT.SMITHA SUKUMARAN FOR R1 TO R3 ADV. MR.K.P.SATHEESAN MR.K.K.GOPINATHAN NAIR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 16873 of 2002(H) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS NO.A3-8370/98 DATED 14/04/1999 OF THE 2ND RESPONDENT. EXT.P1(a): COPY OF THE RELEVANT EXTRACT OF THE FINAL SENIORITY LIST OF GRADUATE AES AS ON 31/12/1997. EXT.P2: COPY OF THE PROCEEEDINGS NO.A3-8370/98 DATED 19/08/1999 OF THE 2ND RESPONDENT. EXT.P2(a): COPY OF THE RLEVANT EXTRACT OF THE FINAL SENIORITY LIST OF AES (DIPLOMA)FOR THE PERIOD FROM 01/04/1990 TO 29/02/1996. EXT.P3: COPY OF THE PROCEEDINGS NO.A2-30412/2000 DATED 04/02/2002 OF THE 2ND RESPONDENT. EXT.P3(a): COPY OF THE FINAL SENIORITY LIST OF A.E. (DIPLOMA)FOR THE PERIOD FROM 01/04/1990 TO 31/01/1996. EXT.P4: COPY OF THE JUDGMENT DATED 20/07/2000 IN O.P. NO. 20425/2000. EXT.P5: COPY OF THE ORDER DATED 04/10/1999 IN CMP NO.32737/1999 IN O.P. NO. 19840/1999. EXT.P6: COPY OF THE ORDER DATED 14/12/2000 IN CMP NO.59665/2000 IN O.P. NO. 34965/2000. EXT.P7: COPY OF THE ORDER NO.A3-21967/92 DATED 07/11/1997 OF THE 2ND RESPONDENT. EXT.P8: COPY OF THE G.O.(MS)NO.86/94/PW &T DATED 03/10/1994. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 16873 of 2002 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 26th February, 2009. J U D G M E N T The 1st petitioner was directly recruited as Assistant Engineer in the Irrigation Department of the Government of Kerala by advice of the Public Service Commission dated 21-12-1992. The 2nd petitioner was so appointed as per advice dated 27-6-1993. Exts.P1 and P1(a) seniority lists of graduate Assistant Engineers were published on 14-4- 1999. The 1st petitioner was serial no. 154 whereas the 2nd petitioner was serial no. 363. Subsequently, the PWD was bifurcated into Roads & Buildings Department and Irrigation Department with effect from 1- 4-1990. Respondents 4 and 5 were working as First Grade Overseers at that time, who opted to come over to Irrigation Department. Thereafter, they were promoted as Assistant Engineers on 31-1-1990. By Ext. P2 dated 19-8-1991, final seniority list of Assistant Engineers (Diploma) for the period from 1-4-1990 to 29-2-1996 was issued, in which respondents 4 and 5 were assigned rank nos. 56 and 57 respectively with effect from 31-1-1994. Subsequently, on 4-2-2002, Ext. P3 revised seniority list of Assistant Engineers (Diploma) was published allegedly based on Ext. P4 judgment. According to the petitioners, Ext. P4 judgment does not contain any direction to revise Ext. P2 seniority list and in fact in that judgment, what was in issue was not the seniority list at all but claim of respondents 4 and 5 for promotion. The petitioners therefore challenge Ext. P3 order publishing Ext. P3(a) revised seniority list and seek the following reliefs: “i) Issue a writ of certiorari or any other appropriate writ or order quashing Ext. P3 order; ii) to issue a writ of mandamus or any other appropriate writ or order directing the respondents 1 to 3 that promotions to the category of Assistant Executive Engineer in the Irrigation O.P. No. 16873/2002 -: 2 :- Department shall be ordered only on the basis of the seniority position of the Assistant Engineer (degree holders) in Ext. P1 and of Assistant Engineers (diploma holders) in Ext. P2 and that no diploma holder Assistant Engineer, who is junior to a degree holder Assistant Engineer shall be promoted; iii) to stay all proceedings pursuant to Ext. P3 order for preparing the select list of Assistant Engineers (diploma holders) for promotion to the category of Assistant Executive Engineer.” 2. No counter affidavit has been filed. However, the learned Government Pleader argues in support of Ext. P3. None appears for respondents 4 and 5. The petitioners had impleaded respondents 4 and 5 in a representative capacity and had also taken out notice by publication in newspaper to all concerned. 3. I have considered the rival contentions in detail. 4. In Ext. P3, it is stated thus: “A provisional seniority list of Assistant Engineers (Diploma) for the period from 01-04-90 to 31-12-1997 was published vide, this office Order No. A3-8370/98 dt. 16-03-1998. The seniority list was made absolute for the period from 01-04-90 to 29-02-1996 vide this office Order No. A3-8370/1998 dt. 19-08-1999. The final seniority list was challenged before the Hon'ble High Court of Kerala by some Assistant Engineers (Diploma holders). The Hon'ble High Court in its judgment dt. 20-07-2000 has directed the respondents to consider the representations put forth by the petitioners and to publish fresh seniority list after accounting the shortfall that occurred at the time of bifurcation and to re-assign the rank numbers to the Diploma holder Assistant Engineers who were promoted from the post of First Grade D'man after 01-04- 1990.” Ext. P4 judgment reads thus: “Petitioners are presently working as Assistant Engineers in the irrigation Department. According to them, they are entitled to be promoted to the next higher posts and there are vacancies. It is stated that Exts.P3 and P4 are the representations sent to the first respondent for redressal of the said grievances and that the said representations are pending before the first respondent from January, 2000. 2. I have heard the learned counsel for the petitioner and O.P. No. 16873/2002 -: 3 :- the learned Government Pleader for respondents. Since it is stated that Exts.P3 and P4 representations were submitted before the first respondent as early as January, 2000, there will be a direction to the said respondent to dispose of the same in accordance with law with notice and opportunity to the petitioners, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The Government will also hear the other affected parties while disposing of Exts. P3 and P4.” From Ext. P4 judgment, I find that the only direction therein was to the Government to consider Exts.P3 and P4 representations filed by respondents 4 and 5 herein. The opening portion of the judgment also extracts the prayers in the original petition. From the prayers, it is clear that what the petitioners in that original petition were claiming was promotion in the ratio of 3:1 as stipulated in the rules applicable. Therefore, there was absolutely no challenge against Ext. P2 seniority list in that original petition. That being so, the narration in Ext. P3 that the seniority list was revised in accordance with Ext. P4 judgment is clearly false. No other reason is also mentioned as to why the seniority list which has already become final, should be revised as was done. For that reason, Ext. P3 revised seniority list is liable to be quashed. Accordingly, Exts.P3 and P3(a) are quashed. Ext. P2 final seniority list is restored. Any promotions from the post of Assistant Engineer shall be only in accordance with Exts.P1 and P2 seniority lists. If any promotions have already been made in accordance with Ext. P3, it shall be reviewed in accordance with the above direction. The original petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/