IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 WP(C).No. 13442 of 2009(A) --------------------------------------- PETITIONERS: --------------------- 1. K.RAJASEKHARAN PILLAI, ASI-H 1120, POLICE TELECOMMUNICATION SUB UNIT, PATHANAMTHITTA. 2. S.DILEEF, ASI-H 1142, POLICE TELECOMMUNICATION SUB UNIT, PATHANAMTHITTA. 3. C.O.BHADRAN, ASI-H 1137, POLICE TELECOMMUNICATION SUB UNIT, KASARAGOD. 4. B.VINOD, ASI-H 1081, POLICE TELECOMMUNICATION SUB UNIT, PATHANAMTHITTA. 5. H.KABEERKUTTY, ASI-H 1155, POLICE TELECOMMUNICATION SUB UNIT, KOLLAM. BY ADV. SRI.S.RAMESH BABU. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT OF POLICE TELECOMMUNICATION, THIRUVANANTHAPURAM. W.P.(C). NO.13442/2009-A: 4. C.K.KRISHNAKUMAR, ASI-H 1047, POLICE TELECOMMUNICATIONS SUB UNIT, KOZHIKODE CITY, KOZHIKODE. R1 TO R3 BY GOVERNMENT PLEADER SRI. ANTONY MUKATH, R4 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY, SRI.PETER JOSE CHRISTO, SRI.S.A.ANAND, SMT.N.SANTHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2010, ALONG WITH W.P.(C. NO. 13364 OF 2009 AND 1966/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.13442/2009-A: APPENDIX PETITIONERS' EXHIBITS & ANNEXURE: EXT.P.1: COPY OF THE SRO. NO. 848/83 DTD. 18/05/1983. EXT.P.2: COPY OF THE PROVISIONAL SENIORITY LIST DTD. 19/04/2000. EXT.P.3: COPY OF THE S.O.NO.145/00/TELECOM DTD. 01/12/2000. EXT.P.4: COPY OF THE W.P.(C).NO.29211/2003 DTD. 17/09/2007. EXT.P.5: COPY OF THE DRAFT SENIORITY LIST. EXT.P.6: COPY OF THE COMMON JUDGMENT DTD. 18/09/2008 IN W.A. NO. 2953/2007. EXT.P.7: COPY OF THE ORDER DTD. 11/11/2008 IN R.P. NO. 1169/08. EXT.P.8: COPY OF THE JUDGMENT DTD. 30/01/2009 IN W.P.(C).NO.29122/08. EXT.P.9: COPY OF THE REPRESENTATION DTD. 19/02/2009 TOGETHER WITH THE SUPPORTING DOCUMENTS. EXT.P.10: COPY OF THE PROVISIONAL SENIORITY LIST DTD. 05/03/2009. EXT.P.11: COPY OF THE OBJECTION FILED BY THE P.5. DTD. 07/03/2009. EXT.P.12: COPY OF THE ORDER NO. A3/9848/08/TELE. DTD. 30/03/2009. EXT.P.13: COPY OF THE REPLY GIVEN TO THE P.5. DTD. 30/03/2009. EXT.P.14: COPY OF THE ORDER OF APPOINTMENT DTD. 24/01/1994. EXT.P.15: COPY OF THE MEMORANDUM DTD. 24/07/1986 ISSUED TO THE P.5. BY R.3. EXT.P.16: COPY OF THE MEMO DTD. 26/08/1986 ISSUED TO THE P.5. BY R.3. EXT.P.17: COPY OF THE COMMUNICATION DTD 09/11/93 FROM THE R.3. TO THE P.5. EXT.P.18: COPY OF THE MEMO DTD. 24/07/1986 ISSUED BY R.3. TO SRI. ABDULVAHAB.E. EXT.P.19: COPY OF THE PROVISIONAL SENIORITY LIST PUBLISHED VIDE ORDER NO. A3/9848/2008/TELE. DTD. 12/03/2010. ANNEXURE -1: COPY OF THE ORDER SO.NO.46/2009/TELE. DTD. 26/06/2009 ISSUED BY THE R.3. RESPONDENTS' EXHIBITS: EXT.R4.A: COPY OF THE I.A. IN O.P. NO. 29475/02-H OF THIS HON'BLE COURT. W.P.(C). NO.13442/2009-A: EXT.R4.B: COPY OF THE COMMON ORDER DTD. 16/09/2004 IN O.P. NOS. 29475/02-H, 207/03-Y, 7122/03-W AND W.P.(C).NO.29211/03-C OF THIS HON'BLE COURT. EXT.R4.C: COPY OF THE R.P.1169/08 DTD. 18/09/2008 OF THIS HON'BLE COURT. EXT.R4.D: COPY OF THE COUNTER AFFIDAVIT IN W.P.(C).NO.29122/2008-E OF THIS HON'BLE COURT. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. ----------------------------------------------------------------- W.P.(C) Nos.13442 & 13364/2009&1966/2010 ---------------------------------------------------------------- Dated this the 15th day of July, 2010 J U D G M E N T Issue raised in these writ petitions is common and therefore, these writ petitions were heard together and are disposed of by this common judgment. 2. For convenience, WP(C) No.13442/2009 is treated as the leading case. 3. Prayers sought in the writ petition are to quash Exts.P12, P13 & P14. 4. Briefly stated, the facts of the case are that during 1986, petitioners were recruited as Police Constables (Tele Communication). However, it was only on 24/01/1994 that Ext.P14 appointment order was issued in favour of 158 of the candidates. Subsequently individual orders of appointment were also issued to each of the appointees. 5. Admittedly, for the reason that the recruitment files were missing, only on 19/04/2000 Ext.P2 provisional seniority list was published. In this provisional seniority list, age was adopted as the WPC.No. 13442/09& ors. :2 : criteria for seniority and principles of reservation were also applied. Ext.P2 provisional seniority list was finalised by Ext.P3 on 01/12/2000. The finalised seniority list was challenged before this Court in WP(C) No.29211/2003 and connected cases. Those writ petitions were disposed of by Ext.P4 judgment. In that judgment, the following directions were issued:- (i) The impugned seniority list of police constables (Telecommunication) dated 1.12.2000, published as per 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 WPC.No. 13442/09& ors. :3 : 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.” 6. Writ Appeals were filed against Ext.P4 judgment, and in the Writ Appeals, an interim order was passed by a Division Bench of this Court, directing the respondents therein to prepare seniority list as directed in Ext.P4 judgment. Accordingly, Ext.P5 draft seniority list was prepared and produced in the Writ Appeals. Subsequently, the Writ Appeals came up for final hearing before the Division Bench of this Court on 18/09/2008, and were disposed of by Ext.P6 judgment. In that judgment, taking note of Ext.P5 draft seniority list that was prepared pursuant to the interim orders, this Court left it open to the appellants to challenge the new seniority list. It is stated that although R.P.No.1169/2008 was filed seeking review of Ext.P6 judgment, that Review Petition was dismissed by Ext.P7 order. 7. Subsequently, WP(C) Nos.29122/2008 & connected cases were filed before this Court challenging Ext.P5 draft seniority list. In WPC.No. 13442/09& ors. :4 : the counter affidavit filed therein, as Ext.R12(e), Ext.P14 order of appointment dated 24/01/1994 was produced by the respondents. Taking note of the submissions made, this Court disposed of the writ petitions by Ext.P8 judgment. Paragraphs 6 to 8 of the said judgment, being relevant, reads as under:- “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. 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 WPC.No. 13442/09& ors. :5 : 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 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.” WPC.No. 13442/09& ors. :6 : 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 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 WPC.No. 13442/09& ors. :7 : 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 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.” 8. Accordingly, objections were filed, a copy of which is Ext.P9. Thereafter, Ext.P10 provisional seniority list was published, to which also objections were filed, a copy of which is Ext.P11. WPC.No. 13442/09& ors. :8 : Considering the objections, by Ext.P12, Ext.P10 provisional seniority list was finalised and Ext.P13 communication was also issued informing that the objections filed against Ext.P10 were rejected. It was thereupon that this writ petition was filed on 07/05/2009 praying to quash Exts.P12 & P13 and to declare that Ext.P13 has been issued without following the principles laid down in Ext.P4 judgment of this Court and in an arbitrary manner. 9. While the writ petition was pending, the petitioners filed I.A.No.8246/2009 dated 05/07/2009 incorporating Ground F to the writ petition and an additional prayer seeking to quash Ext.P14 appointment order dated 24/01/1994. This I.A. was allowed by order dated 29/06/2010 and it is accordingly that the writ petition is coming up for final hearing. 10. In so far as Ext.P12, the finalized seniority list is concerned, the main contention raised by the counsel for the petitioners is that while finalizing the seniority list, the respondents have not complied with the directions in Ext.P4 judgment of this Court. It is their contention that, seniority has been finalized based on the seniority as reflected in Ext.P14 which according to the WPC.No. 13442/09& ors. :9 : petitioners is based on the serial number of hall ticket. In support of this contention, the petitioners have produced Exts.P15 and P18, the hall tickets issued to two of them. It is on this basis that Ext.P12 seniority list is challenged. 11. Ext.P14 also is challenged on the ground that the ranking as reflected in the order appointing 158 candidates, is based on the hall ticket numbers, which according to the petitioners, is impermissible. 12. On the other hand, the contesting respondents raised a contention that in terms of Rule 27-B of Part II KS & SSR, petitioners have an alternative remedy to approach the Government. It is also contended that Ext.P14 was issued as early as on 24.1.1994, fixing the seniority of the petitioners as shown therein and that the seniority as reflected in Ext.P12, based on the ranking in the order appointing them, is statutorily recognized by virtue of the provisions contained in Rule 27(b) of Part II KS&SSR. It is therefore contended that seniority fixed in Ext.P12 based on the seniority as reflected in the order of appointment cannot be impugned. It is also contended that the challenge against Ext.P14 dated 24.1.1994 is WPC.No. 13442/09& ors. :10 : highly belated and cannot be entertained at this distance of time. 13. In so far as the contention relying on Rule 27-B of Part II KS & SSR is concerned, it must be stated that this writ petition was admitted, notice to the affected parties were taken out by publication, parties filed their pleadings and lengthy arguments were heard on merits. That apart, the main contention urged is that in finalizing the seniority, the directions in Ext.P4 judgment have not been complied with. Therefore, I am not satisfied that writ petitioner should be relegated to the remedy under Rule 27-B of Part II KS & SSR and that the writ petition should be dismissed for that reason. 14. As already seen, the main contention of the petitioners is that while finalizing the seniority, the respondents have not complied with the directions contained in Ext.P4 judgment. A reading of Ext.P4 judgment shows that appreciating the contentions impugning the validity of Ext.P3 seniority list, this court held that it was prepared applying the rules of reservation and also adopting the age as the criteria for fixing seniority. This Court also recognized the fact that the recruitment file (No.A1-3906/86/Tel.) WPC.No. 13442/09& ors. :11 : was missing and was not recovered. It was taking into account the aforesaid situation, after holding that principles of reservation cannot be applied and that age cannot be adopted as the basis for fixing seniority, this court directed that the respondents shall reconstruct the file to the extent it is possible and permissible and decide the issue guided by rational and reasonable conclusion on the acceptability of the documents that are retrieved. It was on the basis of this direction that the respondents prepared Ext.P5 draft seniority list and produced before this court in the Writ Appeals against Ext.P4 judgment. After the writ appeals were disposed of by Ext.P7 judgment, when Ext.P5 draft seniority list was challenged before this court in WP(c).No.29122/08, that writ petition was disposed of by Ext.P8 judgment. A reading of that judgment shows that by the time, the respondents had retrieved Ext.P14, the order appointing 158 candidates. It was recording that development also and relegating the petitioners to file their objections to Ext.P5 draft seniority list, that the writ petition was disposed of. 15. In the counter affidavit filed in this writ petition, it is stated that during the course of further proceedings although the WPC.No. 13442/09& ors. :12 : recruitment file was not retrieved, respondents could retrieve `the link file'. However, pleadings do not show that any document was recovered by respondents on the basis of which they could have finalized the seniority, adopting any basis other than the ranking as indicated in Ext.P14 appointment order. Therefore, the respondents were led to a situation where they had only Ext.P14 appointment order, to be adopted as the basis for fixing the seniority and it was on that basis they have fixed the seniority also. 16. When the matter was heard, although counsel for the petitioners vehemently argued that there was violation of the directions in the judgment, I am not persuaded to accept that contention for the reason that in Ext.P12 seniority list the respondents have not adopted the age as the basis and they have not applied reservation principles. On the other hand, pursuant to the direction in Ext.P4 judgment, on the available documents, respondents have settled the seniority by Ext.P12, without applying communal reservation and without adopting age as the basis. Such a seniority list cannot be said to be finalised in violation of the directions contained in Ext.P4 judgment. WPC.No. 13442/09& ors. :13 : 17. I must also take note of yet another factual aspect. During the course of the hearing, although the petitioners were finding fault with the respondents in fixing the seniority as they have done in Ext.P12, counsel for the petitioners were asked whether they could suggest any acceptable principle other than what has been adopted in Ext.P12 for fixing seniority. However, the counsel for the petitioners could not even give a clear answer to this question and did not make any suggestion. This means even the petitioners have reconciled to the factual position that the respondents had no option other than what was adopted by them in Ext.P14 order appointing the petitioners, for fixing the seniority. It should also stated that such fixation of seniority, as has now been done, has statutory recognition by virtue of Rule 27(b) of the Rules as well. 18. In such circumstances I am satisfied that Ext.P12 seniority list, finalized on the basis of Ext.P14 appointment order was the only course of action which could have been adopted. In such a situation, I do not think that this court should exercise its discretionary jurisdiction under Artl.226 and interfere with Ext.P12 seniority list and create a situation which will only perpetuate WPC.No. 13442/09& ors. :14 : uncertainty and discontentment leading to endless litigations. 19. True there is a challenge against Ext.P14 appointment order dated 24.1.1994. On the basis of the files made available, the learned Government Pleader contended that Ext.P14 was communicated to the appointees way back in 1994 itself. From the files this submission appears to be well founded. That apart, in WP (c).Nos.29122/2008 and connected cases, resulting in Ext.P8 judgment, Ext.P14 was produced by the respondents in January, 2009. This writ petition was filed in May, 2009 and there was no challenge against Ext.P14 order. Subsequently, though I.A.No.8246/2009, dated 5.7.2009 was filed, the writ petition was amended only by order dated 29.6.2010 incorporating a challenge against Ext.P14. Therefore, going by the original date of Ext.P14, viz. 24.1.1994 and the order dated 29.6.2010 in I.A. No.8246/09, the challenge against Ext.P14 is highly belated and if it accepted at this stage, it will unsettle the seniority position which has been prevailing for long. Therefore I am not persuaded to entertain the challenge against Ext.P14 at this distance of time. In the result the W.P(c).No.13422/99 is only to be dismissed and I do so. WPC.No. 13442/09& ors. :15 : In view of the above, Writ Petition Nos.13364/09 and 1966/2010 are also to be dismissed and I do so. (ANTONY DOMINIC) JUDGE vi/