IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 WP(C).No. 36424 of 2005(J) -------------------------- PETITIONER(S): --------------- C.ANIL CHANDRAN, ASSISTANT ENGINEER (MECHANICAL), OFFICE OF THE CHIEF ENGINEER (MECHANICAL), PUBLIC OFFICE, MUSEUM.P.O, THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, IRRIGATION & ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, THIRUVANANTHAPURAM. 3. K.K.SUBRAMONIAN, KOOLIYODATHI HOUSE, PATHAZHAKKADU.P.O, THRISSUR-680 668. 4. K.S.BADARUDEEN, KAYAMKULAM HOUSE, ANCHUMOORTHY, MANGALAM.P.O, PALAKKAD-678 680. 5. M.K.RAGHAVAN, ASSISTANT ENGINEER III, PUBLIC WORKS DEPARTMENT, MECHANICAL SUB DIVISION, KANNUR-2. 6. K.SURESHAN, ASSISTANT ENGINEER, SECTION NO.I, PUBLIC WORKS DEPARTMENT, REGIONAL ENGINEERING WORKSHOP, THONDAYAD, KOZHIKODE-17. 7. C.SATHEESAN, ASSISTANT ENGINEER, DREDGER NO.4, DREDGER SUB DIVISION, KAKKANAD, ERNAKULAM. 8. K.K.CHANDRABABU, ASSISTANT ENGINEER, DRY DOC AND WORKSHOP SUB DIVISION, ALAPPUZHA-11. WP(C).No. 36424 of 2005 -2- ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE FOR R5TOR8 SRI.V.K.SUBRAMANIAN FOR R3 SRI.M.K.SASEENDRAN FOR R3 SRI.ALEXANDER JOSEPH FOR R4 GOVERNMENT PLEADER SRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2010, ALONG WITH WPC NO. 4508 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36424 of 2005 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE ORDER APPOINTING THE PETITIONER AS AE IN THE MECHANICAL WING OF THE IRRIGATION DEPT. EXT.P2- TRUE COPY OF THE SPECIAL RULES OF THE KERALA ENGINEERING SUBORDINATE SERVICE (MECHANICAL) BRANCH PUBLISHED BY G.O.(P).149/78/PW & E DATED 22.11.78 EXT.P3- TRUE COPY OF THE SPECIAL RULES FOR THE KERALA ENGINEERING SERVICE MECHANICAL BRANCH PUBLISHED BY G.O.(MS)266/76 DATED 10.12.76 EXT.P4- TRUE COPY OF THE ORDER NO.A7-11012/1996 DTED 26.4.96 OF THE 2ND RESPONDENT EXT.P5- TRUE COPY OF THE PROVISIONAL SENIORITYLIST OF Aes (MECHANICAL) AS ON 1.3.96 APPENDED TO EXT.P4 EXT.P6- TRUE COPY OF THE ORDER NO.A7/796/97 DATED 18.10.97 OF THE 2ND RESPONDENT EXT.P7- TRUE COPY OF THE PROVISIONAL SENIORITY LIST OF ASSISTANT ENGINEER, MECHANICAL AS ON 1.9.97 APPENDED TO EXT.P6 EXT.P8- TRUE COPY OF THE ORDER NO.102.12343/99 DATED 22.11.01 OF THE 2ND RESPONDENT EXT.P9- TRUE COPY OF THE SENIORITY LIST OF ENGINEERS INCLUDING AEs, MECHANICAL, OF IRRIGATION DEPT. FOR THE PERIOD FROM 1.4.90 TO 31.10.98 APPENDED TO EXT.P8 EXT.P10- TRUE COPY OF THE LETTER NO.A7-8074/2003 DATED 2.4.03 OF THE 2ND RESPONDENT ADDRESSED TO THE PETITIONER EXT.P11- TRUE COPY OF THE LIST OF AEs ACCOMPANYING TO EXT.P10 EXT.P12- TRUE COPY OF THE ORDER NO.A7/26094/04 DATED 14.3.05 OF THE 2ND RESPONDENT EXT.P13- TRUE COPY OF THE REPRESENTATION DATED 7.7.04 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 2ND RESPONDENT EXT.P14- TRUE COPY OF THE REPRESENTATION DATED 12.10.04 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 2ND RESPONDENT EXT.P15- TRUE COPY OF THE REPRESENTATION DATED 10.9.04 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 2ND RESPONDENT EXT.P16- TRUE COPY OF THE REPRESENTATION DATED 11.10.04 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 2ND RESPONDENT EXT.P17- TRUE COPY OF THE REPRESENTATION DATED 7.7.04 SUBMITTED BY THE 7TH RESPONDENT BEFORE THE 2ND RESPONDENT EXT.P18- TRUE COPY OF THE REPRESENTATION DATED 30.11.04 SUBMITTED BY THE 7TH RESPONDENT BEFORE THE 2ND RESPONDENT EXT.P19- TRUE COPY OF THE REPRESENTATION DATED 13.9.04 SUBMITTED BY THE 8TH RESPONDENT BEFORE THE 2ND RESPONDENT WP(C).No. 36424 of 2005 -2- EXT.P20- TRUE COPY OF THE COUNTER AFFIDAVIT IN O.P.8824/97 FILED ON BEHALF OF THE 3RD RESPONDENT EXT.P21- TRUE COPY OF THE G.O.(Rt).593/05/WRD DATED 26.5.05 OF THE 1ST RESPONDENT (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ------------------- W.P.(C)s.36424/2005 & 4508/2006 -------------------- Dated this the 14th day of June, 2010 JUDGMENT The issue raised in these writ petitions are connected and therefore these cases were heard together and are being disposed of by this common judgment. I will first make reference to the facts pleaded in W.P.(C).36424/2005. 2. Petitioner was appointed as Overseer Grade-III in the Irrigation Department under the Compassionate Employment Scheme. Subsequently he was promoted as Assistant Engineer (Mechanical) in the Irrigation Department by Ext.P1 order dated 1.3.1995. Respondents 3 to 8 being diploma holders also joined service as Overseer Grade-III and were promoted as Assistant Engineer (Mechanical) with effect from 15.3.1995. Challenge in this writ petition is against Ext.P12 order dated 14.3.2005 by which the seniority of respondents 3 to 8 was re-assigned in the cadre of Assistant Engineer with effect from 1.8.1993. 3. Petitioner submits that in Exs.P4, P5 and P7 provisional seniority lists of Assistant Engineers, petitioner was consistently W.P.(C).36424/05 & 4508/06 2 shown as senior to respondents 3 to 8. These seniority lists were finalized by Ext.P9 seniority list for the period from 1.4.1990 to 31.10.1998. In that seniority list also, petitioner in W.P.(C). 36424/2005 is assigned as Sl.No.37 and the petitioners in W.P.(C). 4508/2006 is assigned as Sl.No.38 and 39 respectively where as the party respondents in these writ petitions were shown as still juniors. It is stated that Ext.P9 seniority list was published on 22.11.2001. 4. Long thereafter representations were made by party respondents in July and August, 2004, objecting to the seniority settled in favour of the petitioners herein. It would appear that respondents 3 to 8 also approached this Court complaining of delay in considering their representations by filing W.P.(C).37212/2004. That writ petition was disposed of directing consideration of their representations. It was accordingly that Ext.P12 order dated 14.3.2005 was passed by the Chief Engineer, assigning retrospective promotion to the party respondents in the cadre of the Assistant Engineer with effect from 1.8.1993 as a result thereof, respondents 3 to 8 have gained seniority over the petitioners contrary to the seniority settled as per Ext.P9. It is in these W.P.(C).36424/05 & 4508/06 3 circumstances, order dated 14.3.2005 was passed which has been produced as Ext.P4 in W.P.(C).4508/2006. 5. Petitioners contend that Ext.P9 seniority list having been finalized and published on 22.11.2001, seniority position should not have been reopened, at any rate after a period of almost four years. It is also contended that their settled seniority has been reopened without putting the petitioners on notice. 6. However, in the counter affidavit filed by the 2nd respondent what they contend is that the total sanctioned strength of Assistant Engineers (Mechanical) is 49 and that the strength allocated between Graduates, Diploma and Certificate holders is in the ratio of 29:15:5 (6:3:1). It is stated that while publishing the seniority list, there should have been 15 Diploma holders as Assistant Engineer (Mechanical) and that instead, there were only 6 and remaining 9 were kept vacant with effect from 1.4.1990 and that it is on that basis, retrospective promotion has been assigned. 7. However finalised seniority list was published by Exts.P8 and P9 as early as on 22.11.2001. Respondents 3 to 8 did not pursue W.P.(C).36424/05 & 4508/06 4 their remedies against the seniority list by approaching this Court or any statutory forums. Therefore, that seniority has become final. In such a case, when seniority has been settled, it could not have been reopened to the prejudice of the petitioners and that too without notice to them. Admittedly, Ext.P12 has been issued by the Chief Engineer giving retrospectivity to the promotions to respondents 3 to 8 without notice to the petitioners. In effect by Ext.P12, the entire seniority settled in favour of the petitioners have been unsettled which ought not have been done by the Chief Engineer. 8. Therefore, I am satisfied that Ext.P12 in W.P.(C).36424/2005, which is also produced as Ext.P4 in W.P.(C).4508/2006 is illegal and deserves to be set aside and I do so. Necessarily, orders reassigning the seniority to the petitioners shall be passed. This shall be done as expeditiously as possible at any rate within two months of production of a copy of this judgment. Writ petitions are disposed of as above. ANTONY DOMINIC, Judge mrcs