IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 16590 of 2004(Y) ------------------------------------- PETITIONER(S): ------------------------- R. MOHANAN NAIR, (CASUAL SWEEPER (PART TIME SWEEPER), K.I.P. (O & M) SUB DIVISION NO.1, ADOOR), "PRASAD BHAVANAM" CHERUPUNJA, PERINGANAD P.O., ADOOR, PATHANAMTHITTA. BY ADVS.MR .M.V.BOSE MR.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, IRRIGATION & ADMINISTRATION, THIRUVANANTHAPURAM. 3. THE SUPERINTENDING ENGINEER, K.I.P. (R.B) CIRCLE, KOTTARAKKARA. 4. THE EXECUTIVE ENGINEER, R.B. DIVISION NO.2, KOTTARAKKARA. 5. THE ASSISTANT EXECUTIVE ENGINEER, K.I.P. (O & M) SUB DIVISION NO.1, ADOOR. 6. C.V. ANANDAVALLY, (PART TIME SWEEPER ASST. ENGINEER'S OFFICE, MINOR IRRIGATION SECTION THIRUVALLA P.O.), THADATHILMALATHIL VEEDU, MONNALAM, ADOOR P.O., PATHANAMTHITTA. ADV. SMT.I.SHEELA DEVI FOR R6 GOVERNMENT PLEADER SMT.N.SUDHA DEVI FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.16590/2004 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE G.O.(P) 550/86/FIN. DT. 16.8.86. P2:- COPY OF THE G.O.(RT NO.571/89/PW & T DT. 30.3.1989. P3:- COPY OF THE JUDGEMENT IN W.A. 617/90 DT. 15.3.99. P4:- COPY OF THE REPRESENTATION BEFORE THE SUPERINTENDING ENGINEER, KIP ADOOR CIRCLE DT. 15.7.99. P5:- COPY OF THE LETTER OF THE CHIEF ENGINEER DT. 19.8.99 TO EXECUTIVE ENGINEER KIP (ON) DN. NO.ADOOR. P6:- COPY OF THE LETTER DT. 16.9.99 OF THE ASST. EXECUTIVE ENGINEER ADDRESSED TO THE 3RD RESPONDDENT. P7:- COPY OF THE REPRESENTATION DT. 27.9.99 BEFORE THE CIRCLE SUPERINTENDING ENGINEER ADOOR KIP M.C.S. P8:- COPY OF THE ORDER DT. 3.1.2000 OF THE SUPERINTENDING ENGINEER, KIP (MCS) CIRCLE , ADOOR. P9:- COPY OF THE JUDGMENT IN OP. 1285/2000. P10:- COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER, BEFORE THE PRINCIPAL SECRETARY TO GOVERNMENT. P11:- COP NOTE DT. 20.4.04 FILED BY THE 6TH RESPONDENT BEFORE THE PRINCIPAL SECRETARY TO GOVT. P12:- COPY OF THE REPLY DT. 23.4.04 SUBMITTED BY THE PETITIONER BEFORE THE PRINCIPAL SECRETARY TO GOVERNMENT. P13:- COPY OF THE ORDER DT. 22.5.04 G.O.(RT) NO.544/04/WRD. P14:- COPY OF THE G.O.(MS)NO.7/03 WRD DT. 17.1.03. P15:- COPY OF THE LETTER NO.04325/05 DT. 8.2.05 FROM THE CHIEF ENGINEER, IRRIGATION AND ADMN., THIRUVANANTHAPURAM. P16:- COP G.O.(P) NO.361/05/FIN. DT. 2.8.05. P17:- COPY OF THE G.O.(MS) NO.26/06/WRD DT. 20.5.06. P18:- COPY OF THE CERTIFICATE DT. 28.11.05 ISSUED BY THE ASST. EXECUTIVE ENGINEER, KIP BUILDING SUB DIVISION, ADOOR. TRUE COPY, P.S. TO JUDGE TSS P.R.RAMACHANDRA MENON, J. ====================== W.P.(C) No.16590 of 2004 ====================== Dated, this the 4th day of March, 2009 J U D G M E N T The substantive question involved in this writ petition is as to the relative right to be appointed in respect of the vacancy notified by Exhibit P2; i.e., whether it should be the petitioner or the sixth respondent. 2. The petitioner was working as a Part-Time Contingent Sweeper in the office of the Executive Engineer, K.I.P. (Operation and Maintenance), Sub Division No.1, Adoor right from 3-6-1985. About one month later, the sixth respondent started working as a Part-Time Contingent Sweeper with effect from 6-7-1985, in Divisional office No.1. Even though both the offices were functioning in separate rented premises, later, they were shifted to the very same building on 11-2-1988. W.P.(C) No. 16590/2004 -:2:- 3. While so, a post of Part-Time Sweeper was sanctioned by the Government in the Divisional Office, where the sixth respondent was working, as per Exhibit P2 Government Order dated 16-8-1996. The sixth respondent approached this Court by filing O.P.No.3397 of 1990 praying for a direction to appoint her as Part-Time Sweeper in the above post. It is stated by the petitioner that despite he being a party to the above proceedings, no counter affidavit could be filed in the said case, which led to a positive direction to the concerned respondent to appoint the sixth respondent herein who was the petitioner in O.P.No.3397 of 1990. Aggrieved by the above verdict, it was subjected to challenge before the Division Bench by both the Government as well as by the present petitioner, by filing separate appeals (Writ Appeal No.600 of 1990 and Writ Appeal No.617 of 1990 respectively). W.P.(C) No. 16590/2004 -:3:- 4. During the course of hearing, the Division Bench, taking note of the observation/recommendation made by the second respondent to accommodate both the persons concerned, sought for necessary instructions as to whether both the contestants could be given placement, which was not positively responded. In the absence of necessary instructions in this regard, the Division Bench of this Court vide Exhibit P3 Judgment directed the fourth respondent therein to consider the claims of both the claimants for being absorbed in the post in terms of Exhibit P1 order (same as Exhibit P1 produced in the present writ petition) and if it was not possible to accommodate both, to consider who between the two was better entitled to be absorbed in the post. 5. In compliance with the above verdict, the matter was considered by the concerned respondent, which led to Exhibit P8 order, whereby a positive finding was rendered that Smt.C.V.Anandavally, the sixth respondent herein was W.P.(C) No. 16590/2004 -:4:- the “better entitled person” to be considered for the post created vide Exhibit P2. The said finding was sought to be intercepted by the petitioner by filing O.P.No.1285 of 2000. 6. During the course of hearing, it was observed by this Court that no specific Rules or Orders were brought to the notice of this Court so as to resolve the dispute, as observed in paragraph 2 of Exhibit P9 verdict passed therein. The Chief Engineer was of the view that the senior among the contestants could be given preference in the matter of appointment as Part-Time Sweeper on a regular basis; whereas the concerned respondent (Superintending Engineer), who was directed to consider the matter by this Court was of the view that the absence of the petitioner herein from the service for the period from 19.3.1991 to 13.5.1991 was to weigh more for tilting the balance in favour of the sixth respondent. It was in the said circumstances, that this Court decided to have the matter W.P.(C) No. 16590/2004 -:5:- referred to the Government and accordingly, the parties were relegated to approach the Government, giving consequential directions to the Government/first respondent, though the Government was not a party to Exhibit P9 Judgment (after hearing the learned Government Pleader). 7. In furtherance to Exhibit P9 verdict, the first respondent considered the matter at depth including the relevant aspects pointed out by the second respondent vide his letters No.C5-8863/2004 dated 16-4-2004 and 29-4-2004 (referred to as item No.6 in the impugned order) and after weighing the credentials of both the claimants properly, issued Exhibit P13 order holding that the sixth respondent herein was the “better entitled person” to the post of Part- Time Sweeper sanctioned vide Exhibit P2 order and accordingly, the claim putforth by the petitioner vide his representation dated 30-1-2004 filed pursuant to Exhibit P3 W.P.(C) No. 16590/2004 -:6:- judgment passed by the Division Bench was rejected, which in turn, has been subjected to challenge in the present writ petition. 8. It is argued by the learned counsel appearing for the petitioner that the inference given by the first respondent as contained in Exhibit P13 order rejecting the petitioner's claim and in settling the alleged better rights in favour of the sixth respondent, is not at all correct or proper and that the petitioner who admittedly commenced his service as Part-Time Contingent Sweeper with effect from 3-6-1985 should have been preferred, in terms of Exhibit P1 Government Order to the sixth respondent, who admittedly commenced her career in similar capacity only later, with effect from 6-7-1985. This Court finds it very difficult to accept the above preposition, particularly in view of the fact that such a contention was very much putforth in Writ Appeal No.617 of 1990 as well. If the matter had to be considered merely on the basis of the alleged seniority of W.P.(C) No. 16590/2004 -:7:- the petitioner that is, with reference to the date of commencement of service as a Part-Time Contingent Sweeper, the matter could have been decided then and there by the Division Bench, which course was obviously not pursued, since the issue had to be subjected to detailed analysis. It was in the said circumstance, that Exhibit P3 Judgment was passed directing the concerned respondent to look into the matter and to decide the “better eligible candidate” between the two, if both the candidates could not be accommodated simultaneously. It was for the very same reason, that of the necessary facts and figures were analysed by the Government pursuant to Exhibit P9 verdict (upon challenging Exhibit P8 passed by the Superintending Engineer in compliance of the directions given by the Division Bench in Exhibit P9 Judgment) leading to Exhibit P13 order. The factual analysis and appreciation conducted by the concerned respondent in the Writ Appeal as borne by Exhibit P8 and the subsequent exercise at a much higher W.P.(C) No. 16590/2004 -:8:- level by the Government vide Exhibit P13 do not call for any further fact adjudication at the hands of this Court. More so, when there is no specific plea of malafides on the part of the concerned respondents who passed Exhibit P8 or Exhibit P13 orders and nobody has been impleaded in their personal capacity to sustain any such plea. In the above facts and circumstances, no interference is called for and the writ petition is dismissed accordingly. No costs. Sd/- P.R.RAMACHANDRA MENON, JUDGE. skr // True copy // P.A. to Judge.