IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 WA.No. 2016 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.13442/2009 DATED 15/7/2010 .................... APPELLANT(S): PETITIONERS 1, 3 & 5: ---------------------------------------------------------- 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. H. KABEERKUTTY, ASI - H 155, POLICE TELECOMMUNICATION SUB UNIT, KOLLAM. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): RESPONDENTS & 4TH PETITIONER: --------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, SECRETARIAT,TRIVANDRUM - 690 001. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS,THIRUVANANTHAPURAM - 690 001. 3. THE SUPERINTENDENT OF POLICE, TELECOMMUNICATION, THIRUVANANTHAPURAM - 690 001. 4. C.K. KRISHNAKUMAR, ASI -H 1047, POLICE TELECOMMUNICATIONS SUB UNIT, KOZHIKODE CITY, KOZHIKODE - 673 001. Kss ...2/- ...2.... WA.NO.2016/2010 5. B.VINOD, ASI - H 1081, POLICE TELECOMMUNICATION SUB UNIT, PATHANAMTHITTA - 689 645. R1 TO R3 BY GOVERNMENT PLEADER SRI. K.C. SANTHOSH KUMAR R4 BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, SRI.PETER JOSE CHRISTO, SRI.S.A.ANAND. R5 BY ADV. SRI.N.KRISHNA PRASAD THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2011 ALONG WITH WA NO. 2015 OF 2010 AND WA NO. 2017 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. .................................................................... Writ Appeal Nos.2015,2016 & 2017 of 2010 .................................................................... Dated this the 25th day of March, 2011. JUDGMENT Ramachandran Nair, J. Connected Writ Appeals are filed challenging the judgment of the learned Single Judge declining to interfere with Ext.P12 seniority list challenged in W.P.(C) No.13442/2010 against which W.A. No.2016/2010 is filed. We have heard counsel appearing for the appellants and counsel appearing for the respondents and also the Government Pleader. 2. Before proceeding to decide the correctness of the judgment impugned in the appeals we have to refer to the facts which are rather not in dispute. Appellants and the contesting respondents are Police Constables belonging to the Telecommunication Wing of the Police Department. Based on the Special Rules for Recruitment the department collected list of eligible candidates from the Employment Exchanges, conducted written examination, Medical test and oral test and prepared select list of about 240 candidates in 1986. However, W.A. 2016/10 & conn. 2 before appointment of the selected persons, Special Rules were amended and the system of appointment through Employment Exchange was substituted by handing over appointments to the Public Service Commission. This amendment to the Special Rules was made in the year 1990. In view of the amendment, Government did not take any action to appoint the persons selected in 1986. However, the selected candidates claimed appointment based on the selection already made by approaching this court and also by going to the Government through representation. Whether through court orders or otherwise, the Government directed the department to make appointments from the list of candidates selected in 1986. The appointments were accordingly made by Ext.P14 dated 24.1.1994 produced in the above Writ Appeal. Though selections were made in 1986, admittedly appointments were made clearly after 8 years of selection. What is clear from Ext.P14 is that the order in which appointments were made is based on the progressive number of hall tickets or in other words, it is not based on the merit in which the candidates were selected. The subsequent communication issued through Ext.P16 clearly shows that the W.A. 2016/10 & conn. 3 numbering of the selected candidates is only temporary and should not be taken as based on seniority or order of merit. It is stated in Ext.P16 that seniority will be finalised later. Again the department issued Ext.P17 dated 24.1.1996 giving serial numbers to all the 143 persons who continued in service on regular basis after training. The 143 left are from out of 240 selected by the department in the selection process. Thereafter a provisional seniority list was prepared which is Ext.P2 and the same was finalised through Ext.P3. Ext.P3 was challenged before the High Court stating that the method of seniority fixed is against the Special Rules. The learned Single Judge of this court found that seniority was fixed based on age and by maintaining communal rotation. This court held that communal rotation was not visualised at the time of selection and seniority on the basis of age is also not permissible under the Special Rules. Consequently Ext.P3 seniority list was vacated by the learned Single Judge directing the department to fix the seniority of appointed candidates after collecting all relevant materials and after giving opportunity to the candidates. What happened was that in the course of the time lag between the selection W.A. 2016/10 & conn. 4 and the actual appointment i.e. 8 years, except the list of candidates the department had not traced the results of examination both written and oral to rank the candidates based on relative merit in the selection process. Obviously when the Single Judge directed recasting of seniority list based on materials, the Judge expected the department to trace the files pertaining to written and oral test and to make the seniority based on the scoring in both the tests. Unfortunately since the judgment and even now, the department could not trace the files on selection. Therefore, there is no material available for finding out the scoring or rank and the relative merit exhibited by the candidates in the selection process. However, in between the litigation continued before Division Bench, which confirmed the Single Judge's decision. Ultimately another draft seniority list was prepared i.e. Ext.P10 dated 5.3.2009 and the same was finalised vide Ext.P12 dated 13.3.2009. It is this final seniority list i.e. Ext.P12 that was challenged by the appellants before the learned Single Judge in the three Writ Petitions. The learned Single Judge, however, declined to interfere in the matter because seniority refixed is based on original appointment order dated W.A. 2016/10 & conn. 5 24.1.1994. It is against this judgment, these connected Writ Appeals are filed. 3. After hearing both sides and after hearing the Government Pleader we feel the grievance originally raised by the parties that led to Ext.P4 judgment still survives because the Government Pleader on behalf of department admitted that the results of written, oral and medical examinations could not be traced and, therefore, the seniority which was originally fixed based on age was changed to the order in which the candidates are arrayed in the appointment order. What is clear from the appointment order is that appointments are made based on the serial numbers shown in the hall tickets except those candidates for whom supplementary list was prepared to provide for communal reservation. After going through several judgments rendered by the Single Judges and Division Benches of this Court what we find is that conclusion is drawn on two matters, (i) that the seniority should not be fixed based on age and (ii) communal reservation is not called for because Special Rules did not provide for the same as on the date of selection. These issues certainly cannot be reopened as it has got W.A. 2016/10 & conn. 6 concluded and neither of the contesting parties canvassed for restoration of seniority based on age. The only question to be considered is whether final list i.e. Ext.P12 prepared on 30.3.2009 is to be sustained. When we specifically asked the Government Pleader about the basis for fixing seniority, he fairly conceded that it is not based on the relative merit of the candidates because result of examination, written, oral or medical examination are not available. According to him, the examination results are missing and the department even today could not trace the same. We are, therefore, unable to sustain the judgment of the learned Single Judge by which the seniority list prepared based on serial numbers in hall tickets stands confirmed. In our view, between seniority fixed based on age and seniority fixed based on hall ticket numbers, the former one would have been more rational and sensible. Even the seniority list so prepared based on age was cancelled by this court vide Ext.P4 judgment of the learned Single Judge only to prepare the list based on merit of candidates. In our view, to have a rational basis for the interse seniority of the selected candidates, seniority list ought to have been W.A. 2016/10 & conn. 7 fixed based on the relative merit of the candidates exhibited in the qualifying examination i.e. written, oral examination and medical test. When this is not available, we have to only suggest to the department as to what could be the rational basis for fixing the seniority. We have two options, one to direct the department to conduct a test for this purpose among all the candidates and to fix their seniority based on such test-result. The alternative is to direct fixation of seniority based on the relative merit in the academic qualification i.e. based on the marks obtained in the qualifying examination like SSLC and I.T.I. examination in Communication. If a test is ordered to be conducted now, probably it will be a time consuming process and the same will also reflect the present merit of the candidates, whereas the merit to be considered is as on the date of selection which happened in 1986. Therefore, we feel instead of ordering a test for determining the relative merit for the purpose of seniority, the department can be directed to combine the marks obtained in the SSLC and ITI examination in Wireless, Telegraph or the examination on technical qualification and based on the same, to fix the seniority. Of course if same marks are W.A. 2016/10 & conn. 8 obtained by several persons, the seniority among them should be based on age. We, therefore, allow the Writ Appeals by vacating the judgment of the learned Single Judge and allow the W.P.(C)s by vacating Ext.P12 produced in W.P.(C) No.13442/2009 and direct the third respondent to fix the seniority of all selected candidates based on the marks obtained by them in the SSLC examination and technical examination that qualify them for the post. The draft should be published by showing the marks in both the courses and the combined mark in the list so that if there is any mistake, candidates can point out the same for correction and the final list should be prepared and published within a period of two months from date of receipt of copy of this judgment. C.N.RAMACHANDRAN NAIR Judge BHABANI PRASAD RAY Judge pms