IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 WP(C).No. 32323 of 2008(W) -------------------------- PETITIONER(S): --------------- RAJESH PLAMATTOM, PLAMATTOM HOUSE, KADALIKKADU P.O., VAZHAKKULAM, ERNAKULAM DIST 686 670 BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- 1. THE COMMISSIONER OF COMMERCIAL TAXES, COMMERCIAL TAXES DEPARTMENT, THIRUVANANTAPURAM. 2. THE KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 3. C.S.UNNIKRISHNAN, C.S.SADHAN, VEDIVACHALCOIL P.O., THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT. (TAXES DEPARTMENT), THIRUVANANTHAPURAM. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R2 SRI.ABRAHAM SAMSON FOR R3 SMT.LOVELY SAMSON FOR R3 GOVERNMENT PLEADER P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2011, ALONG WITH WPC NO. 2320/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 32323/2008. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE RELEVANT PAGES OF RANK LIST. P2. COPY OF THE ORDER DTD.2.5.08. P3. COPY OF THE ORDER DTD.19.6.08. P4. COPY OF THE APPOINTMENT CHART OF ASSISTANTS. P5. COPY OF THE CIRCULAR DTD.22.11.94. P6. COPY OF THE LETTER DTD.30.8.08. P7. COPY OF THE LETTER DTD.29.9.08. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).Nos.32323/2008 & 2320/2009 ================== Dated this the 14th day of January, 2011 J U D G M E N T Since the subject matter of these two writ petitions is intrinsically connected, they are being heard together and disposed of by this common judgment. 2. The petitioner in W.P.(C).No.2320/2009 is one Unnikrishnan.C.S. The petitioner in W.P.(C).No.32323/2008 is one Rajesh Palamattom. Both were included in the rank list prepared by the PSC for appointment to the post of Sales Tax Officer. Sri.Unnikrishnan was higher in rank. He was advised by Ext.P2 advice in W.P.(C).No.2320/2009, pursuant to which, he was appointed. He sought extension of time for joining duty till 16.6.2008. Sri.Unnikrishnan submits that although the same was granted, the order granting extension of time reached him only on 9.7.2008 and, therefore, he could not join duty on 17.6.2008. Therefore, Sri.Unnikrishnan requested the 1st respondent to issue fresh joining order as evidenced by Ext.P6 letter. Sri.Unnikrishnan complains that the same was kept pending by the 1st respondent and on 19.1.2009, he was served with a notice stating that Ext.P6 application is rejected. Subsequently, the 1st respondent requested the Public Service Commission to cancel the advice given to Sri.Unnikrishnan and consequently, by Ext.P8, the advice given to Sri.Unnikrishnan was cancelled also. It is under the w.p.c.32323/08 & cc 2 above circumstances; Sri.Unnikrishnan has filed W.P.(C). No.2320/2009 seeking the following reliefs: “(a) Writ of Certiorari or any other appropriate writ, direction or order calling for records leading upto Ext.P7 and Ext.P8 and quash the same. (b) Writ of Mandamus or any other appropriate writ, direction or order directing the respondents to reconsider Ext.P6 request letter and pass appropriate Orders after affording an opportunity to the petitioner of being heard. (c) Declaration to the effect (sic) the petitioner is entitled to get a fresh joining Order to the post of Commercial Taxes Officer as advised vide Ext.P2.” 3. In view of the fact that the advice to Sri.Unnikrishnan was cancelled, Sri.Rajesh Palamattom filed W.P.(C).No.32323/2008 seeking the following reliefs; “i) to issue a writ of mandamus or any other writ, direction or order, directing the first respondent to submit non joining duty report, regarding the failure of the third respondent to join duty pursuant to Ext.P2 appointment order, to the 2nd respondent forthwith; ii) to issue a writ of mandamus or any other writ, direction or order, directing the 2nd respondent to cancel the advise issued for appointing the third respondent as Sales Tax Officer (Commercial Tax Officer) and delete the name of the third respondent from Ext.P1 ranked list. iii) to issue a writ of mandamus or any other writ, direction or order, directing the 2nd respondent to advise the petitioner for appointment in the NJD vacancy of the third respondent so as to enable the first respondent to issue appointment order to the petitioner forthwith. iv) to declare that the petitioner was deemed to have been in service with effect from the date of non joining duty by the third respondent, for all purposes except salary and other emoluments.” 4. According to Sri.Rajesh Palamattom, Sri.Unnikrishnan has not approached this Court with clean hands. He points out that after having sought extension of time only till 16.6.2008, he could not have again staked a claim for further time for joining duty on the ground w.p.c.32323/08 & cc 3 that the order granting extension of time was received by him only on 9.7.2008. He further points out that even otherwise, for granting extension of time beyond 45 days only the Government has power and Sri.Unnikrishnan has not approached the Government for extension of time. It is further pointed out that the reason for seeking extension of time is also not that stated by Sri.Unnikrishnan insofar as he had obtained another appointment as an Assistant in the Government Secretariat and he wanted time to decide which of the two, he wanted to accept. Therefore, he approached this Court with unclean hands, which resulted in Sri.Rajesh Palamattom from not being advised at the appropriate time. Consequent on the non joining duty by Sri.Unnikrishnan, Sri.Rajesh Palamattom lost seven precious months of his service. Therefore, he is entitled to be compensated appropriately, is his contention. It is submitted that pursuant to the interim order in W.P.(C).No.32323/2008, Sri.Rajesh Palamattom has been advised and appointed, and he joined duty on 23.2.2009. In W.P.(C). No.2320/2009, despite the fact that Sri.Unnikrishnan was aware of W.P.(C).No.32323/2008 filed by Sri.Rajesh Palamattom, Sri.Unnikrishnan has not cared to implead Sri.Rajesh Palamattom as a party to W.P.(C).No.2320/2009. It is only pursuant to a direction from this Court that Sri.Unnikrishnan filed I.A.No.1364/2009 for impleading Sri.Rajesh Palamattom as a party to that writ petition. When the matter was taken up on 7.1.2011, the counsel appearing for w.p.c.32323/08 & cc 4 Sri.Unnikrishnan was not present and at the request of the counsel for Sri.Rajesh Palamattom, W.P.(C). No.32323/2008 was also directed to be posted, both for disposal, today. When the matter was taken up today also, the counsel for Sri.Unnikrishnan is again absent. Although the writ petition could have been dismissed for default, the learned counsel for Sri.Rajesh Palamattom pointed out that in view of the surreptitious manner in which Sri.Unnikrishnan filed W.P.(C). No.2320/2009, and because of his action, Sri.Rajesh Palamattom lost seven months of his service, the matter should be heard on merits. It is under the above circumstances that I have decided to consider the matter on merits. 5. I find considerable merit in the contention of Sri.Rajesh Palamattom. As rightly pointed out by the counsel for Sri.Rajesh Palamattom, after having applied for extension of time to join duty only till 16.6.2008, Sri.Unnikrishnan could not have waited beyond 16.6.2008 and the minimum he could have done is to report for joining duty on 17.6.2008. Further, by 16.6.2008, the 45 days' time grantable by the appointing authority was over and thereafter only Government could have granted further time, for which, Sri.Unnikrishnan had not applied. He has also not responded to the counter affidavit filed by Sri.Rajesh Palamattom, wherein it has been specifically pointed out that the reason for seeking extension of time is not the one given in the writ petition and is actually because of the indecision of w.p.c.32323/08 & cc 5 Sri.Unnikrishnan regarding the question as to which of the two employments, he should accept. I do not think that it was proper on the part of Sri.Unnikrishnan to have caused prejudice to Sri.Rajesh Palamattom because of his indecision. In fact he should have stated all these facts clearly in his writ petition and impleaded Sri.Rajesh in his writ petition at the time of filing the same itself. I am satisfied that Sri.Unnikrishnan has not approached this Court with clean hands. Therefore, not only his W.P.(C).No.2320/2009 is liable to be dismissed, but he is also liable to be directed to pay exemplary costs to Sri.Rajesh Palamattom. Accordingly, W.P.(C).No.2320/2009 is dismissed. In view of the fact in the place of Sri.Unnikrishnan who has not joined duty, Sri.Rajesh Palamattom is entitled to be advised and appointed, W.P.(C).No.32323/2008 is disposed of confirming the interim order dated 4.11.2008, which reads thus: “If the third respondent has not so far reported for joining duty as Sales Tax Officer (re-designated as Commercial Officer) pursuant to his appointment under Ext.P2, the first respondent shall report the said vacancy as a Non Joining Duty vacancy to the Kerala Public Service Commission. This shall be done within one month from the date of receipt of a copy of this order.” 6. In view of the conduct of Sri.Unnikrishnan detailed above, I direct Sri.Unnikrishnan to pay an amount of ` 25,000/- as costs to Sri.Rajesh Palamattom, which shall be paid within one month. Sri.Rajesh Palamattom shall forward a certified copy of this judgment to Sri.Unnikrishnan by registered post and if he does not pay the said costs of ` 25,000/- within one month from the date of receipt of a copy w.p.c.32323/08 & cc 6 of this judgment, it would be open to Sri.Rajesh Palamattom to move this Court for contempt of court. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge