IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 WP(C).No. 8792 of 2007(V) ------------------------------------- PETITIONERS: --------------------- 1. JOY VARGHESE,EXCISE GUARD,EXCISE RANGE OFFICE,PERUMBAVOOR. 2. SURESH KUMAR. T,EXCISE GUARD,EXCISE RANGE OFFICE,MATTANCHERRY. 3. BABU T.K,EXCISE GUARD,EXCISE RANGE OFFICE,KALADY. 4. VINOD T.M,EXCISE GUARD,EXCISE RANGE OFFICE,ALUVA. BY ADVS. MR.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, MR.PETER JOSE CHRISTO. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETATRY TO GOVERNMENT,TAXES DEPARTMENT. SECRETARIAT,THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, COMMISSIONERATE OF EXCISE,THIRUVANANTHAPURAM. 3. ASSISTANT EXCISE COMMISSIONER, ERNAKULAM. 4. P.M.JANARDHANAN,EXCISE GUARD,EXCISE RANGE OFFICE,ALUVA. 5. K.RAJKUMAR,EXCISE GUARD,K.S.B.C WAREHOUSE,ALUVA. R1 TO R3 BY GOVT. PLEADER SMT. SMITHA SUKUMAR, R4 & R5 BY ADVS. MR.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2009, ALONG WITH W.P.(C). NOS. 3736/2009 & 9237/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.8792/2007-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. E1-4713/2003 DTD. 19/09/2003 OF THE ASSISTANT EXCISE COMMISSIONER, ERNAKULAM. EXT.P.1.A: COPY OF THE RELEVANT EXTRACT OF THE APPENDED PROVISIONAL SENIORITY LIST OF EXCISE GUARDS OF ERNAKULAM DIVISION FOR THE PERIOD FROM 01/01/1999 TO 31/07/2003. EXT.P.2: COPY OF THE OBJECTION SUBMITTED BY THE P.1. BEFORE THE R.3. DTD. 13/10/2003. EXT.P.3: COPY OF THE OBJECTION SUBMITTED BY THE P.2. BEFORE THE R.3. DTD. 13/10/2003. EXT.P.4: COPY OF THE OBJECTION SUBMITTED BY THE P.3. BEFORE THE R.3. DTD. 15/10/2003. EXT.P.5: COPY OF THE OBJECTION SUBMITTED BY THE P.4. BEFORE THE R.3. DTD. 13/10/2003. EXT.P.6: COPY OF THE JUDGMENT IN W.P.(C).NO.33934/04-M DTD. 22/08/2005 OF THIS HONOURABLE COURT. EXT.P.7: COPY OF THE REPRESENTATION SUBMITTED BY THE P.1. BEFORE THE R.2. DTD. 12/12/2005. EXT.P.8: COPY OF THE REPRESENTATION SUBMITTED BY THE P.2. BEFORE THE R.2. DTD. 12/12/2005. EXT.P.9: COPY OF THE REPRESENTATION SUBMITTED BY THE P.3. BEFORE THE R.2. DTD. 12/12/2005. EXT.P.10: COPY OF THE REPRESENATION SUBMITTED BY THE P.4. BEFORE THE R.2. DTD. 12/12/2005. EXT.P.11: COPY OF THE JUDGMENT IN W.P.(C).NO.4563/2006(R) DTD. 19/09/2006 OF THIS HONOURABLE COURT. EXT.P.12: COPY OF THE ORDER NO. XE8-5907/06 DTD. 10/01/2007 OF THE R.2. RESPONDENTS' EXHIBITS: EXT.R4.A: COPY OF THE PROCEEDINGS OF THE BOARD OF REVENUE (EXCISE), THIRUVANANTHAPURAM DTD. 04/04/1995. EXT.R4.B: COPY OF THE PROCEEDINGS OF THE ASSISTANT EXCISE COMMISSIONER, ERNAKULAM DTD. 16/01/1998. EXT.R4.C:COPY OF THE RELEVANT EXTRACT OF THE FINAL SENIORITY LIST OF EXCISE GUARDS OF ERNAKULAM DIVISION FROM 01/05/1972 TO 31/12/1999, PUBLISHED AS PER ORDER NO. E1/14223/94 DTD. 08/09/2000 OF THE ASSISTANT EXCISE COMMISSIONER, ERNAKULAM. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) Nos. 8792 of 2007 and 3736 & 9237 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 4th August, 2009. J U D G M E N T In all these writ petitions, the petitioners are Excise Guards. The petitioners in W.P(C) No. 8792/2007 are employees of Ernakulam District, whereas the petitioners in the other two writ petitions are employees of Kollam District. They were appointed through Public Service Commission. The petitioners in W.P(C) No. 8792/2007 were appointed in 2001. The petitioners in the other two writ petitions were appointed in the year 2002. The selection and appointment of Excise Guards are District-wise. Therefore, the seniority also is District-wise. As per the Rules applicable, for filling up of vacancies in each year, quotas have been prescribed for direct recruitment, for inter-district transfer and for dying-in-harness appointments. 10% of the vacancies in each year is reserved for inter-district transfers and another 10% is reserved for appointment under the dying-in-harness scheme. The grievance of the petitioners in these writ petitions is that prior to their appointment, several persons have been appointed by inter-district transfer and under dying-in-harness scheme far in excess of the quota prescribed for the same in each year. They would submit that since such appointments in excess of the quota are illegal, those persons who have obtained illegal appointments cannot have seniority in preference to the petitioners. In other words, they claim that the persons who appointed have to be ranked below the petitioners in the rank list of Excise Guards. They have approached this Court when provisional seniority lists were published in which, according to them, persons so illegally appointed have been given seniority above them. It is under the above circumstances, these writ petitions have been filed seeking a direction to cancel all inter-district transfers and appointments under Compassionate Employment W.P.C. No. 8792/07 etc. -: 2 :- Scheme made in excess of 10% quota and directing the respondents not to assign rank and seniority in the category of Excise Guards to inter-division transferees and appointees under the Compassionate Employment Scheme in excess of the quota prescribed for them. 2. The contesting respondents have filed counter affidavits controverting the contentions raised by the petitioners. According to them, they were not appointed in excess of the quota. They would further submit that even otherwise, the petitioners having entered service subsequent to their appointments, the petitioners cannot now challenge the appointments and seniority allotted to them. 3. I have considered the rival contentions in detail. 4. I am of opinion that the issue involved in these writ petitions can be decided on the basis of a decision of this Court in Sreejitha v. Principal and Controlling Officer, 2008 (4) KLT 126, in which a learned Judge of this Court has held that persons in a rank list prepared by the Public Service Commission cannot challenge any appointment made prior to their inclusion in the rank list, since I am in respectful agreement with that decision. The petitioners are challenging appointments made prior to their inclusion in the rank list. That being so, they cannot now challenge the appointments of the inter-district transferees and under the compassionate employment scheme. Learned counsel for the petitioners in W.P(C) No. 8792/2007 would attempt to distinguish that decision on facts. W.P.C. No. 8792/07 etc. -: 3 :- Difference in facts notwithstanding, I am of opinion that the principle laid down in that decision squarely covers the issue involved in this writ petition also. Therefore, following that judgment, I dismiss these writ petitions. Sd/- S. Siri Jagan, Judge. Tds/