IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 WP(C).No. 16852 of 2004(F) -------------------------- PETITIONER: ----------------- A.DAMODARAN, ERAVIL HOUSE, P.O. PILACODE, VIA. TRIKARIPURA, KASARAGOD DISTRICT NOW WORKING AS MECHANIC, OFFICE OF THE ASSISTANT DIRECTOR OF AGRICULTURE, KASARAGOD. BY ADV. SRI.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR SRI.ASWIN GOPAKUMAR RESPONDENTS: ---------------------- 1. DIRECTOR OF AGRICULTURE, THIRUVANANTHAPURAM. 2. JOINT DIRECTOR OF AGRICULTURE AND PRINCIPAL AGRICULTURAL OFFICER, KASARAGOD. 3. THE ASSITANT DIRECTOR OF AGRICULTURE, KASARAGOD. * 4. SUGUNAN K.N., MADOTHIL HOUSE, VADAKKUMPADU, TELLICHERRY, CANNANORE, KERALA. 5. RAVEENDRAN P.V., ERAVIL HOUSE, PILICODE P.O., KASARAGOD DISTRICT, KERALA. * 6. MANOJ P.L., M.R.S. SADANAM, KALLUMALAI, KAZHIVOOR HOUSE, PULLUVILA, TRIVANDRUM. 7. RAVEENDRAN K.N., RAVIKULAM, MYNAGAPPALLY, QUILON DISTRICT, KERALA. 8. M.SURESH BABU, S/O.RAMACHANDRAN NAIR, MECHANIC, OFFICE OF THE ASST.EXECUTIVE ENGINEER (AGRICULTURE), DEPT. OF AGRICULTURE, A.T. ROAD, KASARAGOD. (...........2) -: 2 :- 9. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 10. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, KASARAGOD. **Addl. 11. THE STATE OF KERALA, REP: BY ITS SECRETARY TO AGRICULTURE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. (* the 4th respondent is deleted from party array and the name of the 6th respondent is corrected as 'Maju P.K.' as per order dated 9.11.2006 in IA.No.15357/2006) (** Addl.R11 impleaded as per order dated 7.3.2008 in IA.No.1777/2008) BY ADV. SRI.ALEXANDER THOMAS FOR R8 SRI.R.T.PRADEEP FOR R6 SRI.V.VIJULAL FOR R6 GOVT.PLEADER SMT.M.R.SREELATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16852 of 2004(F) PETITIONER'S EXHIBITS:- Ext.P1:- Copy of the order issued by this Hon'ble Court in CMP.No.1656/98 in OP.No.956/98 dated 21.12.2000. Ext.P2:- Copy of the judgment in OP.No.956/98-L dated 10.04.2003 of this Hon'ble Court. Ext.P3:- Copy of the Show Cause Notice issued by the 10th respondent to the 8th respondent dtd.5.11.2003. Ext.P4: Copy of Judgment in WP(C).No.38564/2003-N dtd.9.12.2003 on this Hon'ble Court. Ext.P5:- Copy of the order No.E2-10693/2003 dated 15.1.2004 issued by Prl.Agricultural Officer, Kasaragod. Ext.P6:- Copy of representation dtd.25.9.2006 by petitioner to first respondent. Ext.P7:- Copy of the representation under Rule 28(b)(i)8(a) by Sri.Damodaran before the Convenor, Deptl.Promotion Committee, Trivandrum, dtd.29.5.2007. RESPONDENTS' EXHIBITS:- 6 th Respondent's Exhibits :- Ext.R6(a): Copy of the order dtd.13.2.1998. Ext.R6(b): Copy of the order dtd.21.6.2000. Ext.R6(c): Copy of the order dtd.20.3.2006. Ext.R6(d): Copy of the provisional seniority list of Mechanics as on 30.4.1999. Ext.R6(e): Copy of proceedings of respondent No.1 dtd.7.4.2007. Exr.R6(f): Copy of the order dtd.2.5.2007 by the Government. Ext.R6(g): Copy of the Notification dtd.2.5.2007. ( true copy ) PS TO JUDGE. kvs/- V. GIRI, J. ------------------------------- WP(C).NO. 16852 of 2004 --------------------------------- Dated this the 19th day of June, 2008 JUDGMENT Pursuant to applications invited by the PSC for the post of Mechanic in Agriculture Department in Kasaragod District, the petitioner responded. The qualification prescribed for the post as per the notification was a Trade Certificate from ITI either in Mechanic (Tracer) or Mechanic (Motor Vehicles) or mechanic (Diesel) or Fitter. The qualification of the petitioner is (i) JTSLC (ii) Diploma in Mechanical Engineering (iii) Experience as Motor Vehicles with effect from 20.11.86 to 10.9.1988. Apparently, the PSC did not consider the petitioner as qualified and therefore though the petitioner was included in the main list of the short list, he was deleted thereafter. This was challenged by the petitioner in OP.No.956/98. An interim order was passed by this court making it clear that the PSC will be free to advice any candidate. But the advice will be subject to the result of the OP. Ultimately, by Ext.P2 judgment OP.No.956/98 was allowed. This court found that the point raised by the petitioner is covered in WPC.16852 /2004 2 his favour by the decision of the Supreme Court in Jyothi vs. State of Kerala (2002(1) JT supplement 85). The respondents were directed to consider the petitioner for inclusion in the rank list in accordance with law. 2. Thereafter the petitioner was included in the rank list as Rank No.1A. Apparently the contention of the petitioner was that had he been treated as qualified by the PSC, he would have been rank No.1. Be that as it may, the petitioner was therefore decided to be included in the rank list as Rank No.1. 3. But in the meanwhile, all the other persons included in the rank list had been advised and appointed. Pursuant to Ext.P2 judgment, the petitioner was appointed as per Ext.P5 on 15.1.2004. The contesting respondents herein who were included in the rank list had completed the probation in the post of Mechanic and were even promoted to higher posts. This writ petition has been filed by the petitioner for a direction to respondents 1 to 3 to treat the petitioner as senior to respondents 4 to 8 and to extend him all service benefits including salary and other monetory benefits atleast with effect from the date on which the 8th respondent was offered the post of WPC.16852 /2004 3 Mechanic pursuant to Ext.P1. 4. A counter affidavit has been filed by the PSC affirming that the petitioner was included in the rank list as rank No.1A pursuant to Ext.P2 judgment. Counter affidavit has been filed by the 6th respondent also resisting the writ petition. 5. I heard learned counsel for the petitioner Sri.B.Gopakumar , learned Government Pleader and the learned counsel for the PSC Sri. Alexander Thomas. 6. I take note of the fact that all the contesting respondents herein were parties to Ext.P2 judgment as well. By Ext.P2 judgment this court found that the petitioner was qualified for appointment to the post of Mechanic and his exclusion from the short list was illegal. The PSC accepted the judgment and included the petitioner in the rank list and assigned rank No.1A. On such inclusion in the rank list, the petitioner is entitled to be treated as included in the rank list just below rank No.1 and above rank No.2. The mere fact that the petitioner's appointment was delayed by a period of almost six years obviously cannot be his fault. By Ext.P2 judgment this court found that he was qualified and the PSC in acceptance of the WPC.16852 /2004 4 judgment had included the petitioner in the rank list. It is the case where the petitioner acquired eligibility to be treated in the post of Mechanic on the strength of inclusion of the petitioner in the rank list as rank No.1A. In such circumstances, it is obvious that the petitioner is entitled to reckon his seniority with reference to the date on which he would have been normally advised, had he been included in the rank list as rank No.1A even when the same was published. To treat him as having entered service only with effect from 15.1.2004, in my opinion, will be an injustice. After all the petitioner had approached this court as early as in 1998. 7. I also take note of the fact that all the contesting respondents were actually appointed by Ext.R6(a) order dated 13.2.1998, after the institution of OP.No.956/1998 on 14.1.1998. Learned counsel for the petitioner submits that the petitioner should also be paid salary and other monetory benefits from the date on which the 8th respondent is appointed till the date on which he was actually given appointment. I am not inclined to accept the submission essentially because the petitioner had not actually worked during the said period. But interest of justice WPC.16852 /2004 5 requires the petitioner be treated as having been appointed atleast with reference to the date on which the person who was placed as rank No.2 ( immediately below rank No.1 which is assigned to the petitioner ), was appointed. In the result, the writ petition is allowed in part. It is made clear that the petitioner should be given notional seniority in the post of Mechanic in the Agriculture Department with reference to the date on which rank No.2 in Ext.P1 list was assigned such seniority in the same department. Consequential orders shall be passed by the first respondent within three months from the date of receipt of a copy of this judgment. V. GIRI, JUDGE. pmn/ WPC.16852 /2004 6