IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 WA.No. 1140 of 2009 ------------------------- (AGAINST THE JUDGMENT IN O.P.NO.34360/2000 DATED 10.12.2008) .............. APPELLANT/2ND RESPONDENT: ---------------------------------- M.DAYANANDA BABU,LEGAL ASSISTANT GRADE - II,LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENTS/PETITIONER & 1ST RESPONDENT: ------------------------------------------------------- 1. B.BOSE, LEGAL ASSISTANT GRADE II, LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LAW DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R2 BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2011,, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & Antony Dominic, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1140 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2011 JUDGMENT Antony Dominic, J. The 2nd respondent in O.P. No. 34360 of 2000 is the appellant. The controversy in the Original Petition was regarding the seniority between the appellant and the 1st respondent herein, who had filed the Original Petition. 2. Ext.P1 is a merit list prepared by the Law Department of the Government of Kerala, from among candidates who were found suitable in the written test that was conducted by the Controller of Entrance Examinations on 26.08.1995, for appointment by transfer to the post of Legal Assistant Grade II in the Law Department, Government Secretariat, Thiruvananthapuram. In the said merit list, the 1st respondent was placed at the 11th position and the appellant was placed at the 12th position. Based on the above, appointments were also made and candidates joined the posts. WA No. 1140 of 2009 -:2:- 3. Subsequently, relying on Ext.R2(a) Circular dated 12.08.1997 issued by the Public Service Commission, which provided that in cases where more than one candidate secure equal marks, the relative position among them is to be fixed on the basis of their Date of Birth i.e., elder should have precedence over the younger, the appellant made representations to the Government contending that he ought to be given seniority over the 1st respondent. That representation was considered and finally, Government passed Ext.P10 order dated 24.11.2000. The order reads as under: “S/ShriM.Dayananda Babu and B.Bose were appointed as Legal Assistants Grade II in Law Department vide G.O.(MS) No.59/98/Law dated 20.02.1998 from the merit list published vide the Notification read as 1st paper above. That notification was issued on the basis of the merit list prepared by the Controller of Entrance Examinations on the basis of the written test conducted on 26.08.1995 for appointment by transfer to the post of Legal Assistant Grade II. In that merit list Shri.B.Bose was placed 11th and Shri.M.Dayananda Babu was placed 12th. Shri.M.Dayananda Babu as per his representations read above requested to give him seniority above Sri.B.Bose WA No. 1140 of 2009 -:3:- since they have scored equal marks and Sri.M.Dayananda Babu was older than Sri.B.Bose and requested for a personal hearing. Accordingly, both the parties were heard on 25.10.2000. The Government have examined the matter in detail and perused all the relevant records and it is seen that the date of birth of Sri.M.Dayananda Babu is 17.05.1959 and that of Sri.B.Bose is 12.03.1963 and that they have both scored 489 marks each. In such situations the equitable and salutory principle adopted by the Kerala Public Service Commission vide Circular No.18/97 dated 12.08.1997 is to prefer the older one over the younger one in the matter of seniority between the candidates scoring equal marks. Accordingly the seniority between Sri.M.Dayananda Babu and Sri.B.Bose is refixed placing Sri.Dayananda Babu at 58th place and Sri.B.Bose at 60th place in the seniority list published vide the Government Order read above.” 4. It was challenging Ext.P10 order, the 1st respondent filed the Original Petition. The Original Petition was heard along with two other cases and by judgment under appeal, the learned Judge allowed the Original Petition. The reasoning of the learned Judge is contained in paragraphs 6 and 7 of the judgment which reads as under: “6. Lastly, we come to O.P. No.34360/2000. In the list prepared for appointment from the members of WA No. 1140 of 2009 -:4:- other services under the Government, the petitioner was ranked no.11, whereas the 2nd respondent in that original petition was ranked no.12. Their appointment was also in that order. But, subsequently, on a representation made by the 2nd respondent, he was given seniority over the petitioner on the ground that both the petitioner and the 2nd respondent is senior in age to the petitioner he should be preferred for the purpose of seniority. Ext.P10 is the order passed in that respect. The petitioner is challenging that order. 7. Admittedly, in the rank list, the 2nd respondent was ranked no.12 whereas the petitioner was rank no.11. The rank list has not been challenged by the 2nd respondent. That rank list has not been changed by the 1st respondent also. Appointments have also been made in accordance with that rank list. When appointments have been made in the order in the rank list, subsequently, the same cannot be changed on the ground that the 2nd respondent is senior in age in so fa as he continues to remain below the petitioner in the rank list. In the above circumstances, Ext.P10 order is unsustainable. Accordingly, the same is quashed. It is declared that the petitioner is entitled to be senior to the 2nd respondent in the category of Legal Assistant Grade II in the Law Department of the Government Secretariat.” 5. A reading of the judgment shows that it was only on the basis that the appellant did not challenge Ext.P1 WA No. 1140 of 2009 -:5:- merit list that the learned Judge, interfered with Ext.P10. In our view, the said reasoning of the learned Single Judge is unsustainable. As we have already seen, Ext.P10 is the outcome of the representation filed by the appellant complaining about his position in Ext.P1 merit list and seeking appropriate modification. Thus, the appellant had in fact challenged Ext.P1 merit list. Therefore, the conclusion of the learned Judge otherwise is erroneous. 6. A reading of Ext.P10 order shows that in the matter of assigning of seniority in the merit list, the Government is following Ext.R2(a) Circular of the Public Service Commission referred to above. It is also the admitted position that, going by their dates of birth, the appellant is elder to the 1st respondent. Both of them also had scored 489 marks each. In such situation applying Ext.R2(a), the appellant ought to have been assigned seniority over the 1st respondent. This position has been rightly recognised by the Government in Ext.P10 and this order deserves to be upheld. WA No. 1140 of 2009 -:6:- 7. In the aforesaid circumstances, the judgment under appeal is liable to be set aside and we do so. As a result, O.P. No. 34360 of 2000 will stand dismissed and the appeal is allowed. J.Chelameswar, Chief Justice. Antony Dominic, Judge. ttb