IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 OP.No. 35519 of 2000(C) ----------------------- PETITIONER(S): --------------- M.P. SAMUEL, ASST. EXECUTIVE ENGINEER (RETD), GROUND WATER DEPARTMENT, NOW RESIDING AT SANTHOSH BHAVAN, KANJOOR, CHEPPAD P.O., ALAPPUZHA DIST. BY ADV. SRI.T.K.ABRAHAM RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO IRRIGATION (GROUND WATER) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, GROUND WATER DEPARTMENT, PLAMOOD, PATTOM. 3. SRI. B. VIJAYAN, ASST. EXECUTIVE ENGINEER, WORKSHOP AND STORES, GROUND WATER DEPARTMENT, KUREEPUZHA, KOLLAM. ADV. SRI.N.DHARMADAN (SR.) SRI.ARAVINDA KUMAR BABU T.K. GOVERNMENT PLEADER SRI. M.R. SABU FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 35519/2000 ---------------------------------------------------------------- EXT.P1 TRUE COPY OF JUDGMENT IN O.P.10776/85. EXT.P2 JUDGMENT IN W.A.NO. 512/1990 EXT.P3 JUDGMENT IN O.P.NO. 3664/91. EXT.P4 ORDER DT. 29-11-1990. EXT.P5 ORDER DT. 15-3-1994. EXT.P6 ORDER DT. 16-3-1994. EXT.P7 ORDER DT. 9-1-1995. EXT.P8 ORDER DT. 26-4-1993. EXT.P9 JUDGMENT IN O.P.21095/99. EXT.P10 ORDER DT. 13-10-1999. EXT.P11 SPECIAL RULES DT. 30-7-1993. EXT.P12 CCC NO. 531/2000 DT. 16-8-2000. RESPONDENTS' EXHIBITS: ------------------------------------- EXT.R3(a) TRUE COPY OF SPECIAL RULES DST. 7-5-1976. EXT.R3(b) ORDER DT. 15-10-1994. EXT.R3(c) ORDER DT. 31-3-1995. EXT.R3(d) ORDER DT. 28-12-07. EXT.R3(e) ORDER DT. 31-12-07 EXT.R3(f) ORDER DT. 29-7-2000. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 35519 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 10th November, 2008. J U D G M E N T The petitioner retired from the service of the Kerala Ground Water Department as Assistant Executive Engineer. He became an Assistant Engineer by virtue of Ext. P7 order dated 9-1-1995. His claim in this original petition is for an anterior date of promotion as Assistant Executive Engineer with effect from 26-4-1993. A vacancy in the post of Assistant Executive Engineer (Drilling) arose by virtue of one Sri. J. Janardhanan having been relieved from the post, on granting leave without allowances for accepting employment abroad. The 3rd respondent was accommodated in that post by transfer by Ext. P5. One Mr. Stanley, the petitioner and two others challenged Ext. P5 order by filing O.P.No. 3664/1991. The 3rd respondent also filed O.P.No. 22530/1998 in respect of his claim for continuous service as Assistant Executive Engineer (Stores) with effect from 26-9-1990. By Ext. P3 common judgment in those two original petitions, a learned Judge of this Court held that the appointment of the 3rd respondent to the post of Assistant Executive Engineer (Drilling) was unsustainable and quashed Ext. P5 order, which was Ext. P21 in Ext. P3 judgment. Thereafter, the learned Judge directed the Director of Ground Water Department to consider the claim of the 3rd respondent for continuous service with effect from 26-9-1990 disposing of two representations filed by the 3rd respondent in that regard. Since, no consequential orders were passed pursuant to Ext. P3, the petitioner moved a contempt of court case in which Ext. P12 judgment was passed by a Division Bench of this Court holding that in view of the subsequent order passed by the 2nd respondent in that regard, the petitioner can challenge that order, if he is aggrieved by the same. That order is Ext. P10 in this original petition. The petitioner challenges Ext. P10 order and seeks the following reliefs: O.P. No.35519/2000 -: 2 :- “i) To issue a writ of certiorari quashing Ext. P10 order issued by the second respondent; ii) to issue a writ of mandamus directing 1st respondent to promote this petitioner as Asst. Executive Engineer w.e.f. 26.4.93 and declare that the petitioner is entitled to get higher monetary and pensionary benefits from 26.4.93 onwards with 18% interest. iii) to issue a writ of certiorari or mandamus direction directing the respondents to produce the concerned files before this Hon'ble Court.” 2. The contention of the petitioner is that on quashing of Ext. P5 order, the vacancy which arose on 26-4-1993 on account of the relieving of Sri. J. Janardhanan became vacant and one of the petitioners in Ext. P3 judgment becomes entitled to be appointed in that post. According to the petitioner, even before Ext. P3 judgment, the 1st petitioner, namely, Mr. Stanley, had already been promoted as Assistant Executive Engineer, leaving the petitioner as the next in line for promotion as Assistant Executive Engineer. Therefore, the post which arose with effect from 26-4-1993 should have been filled up by promoting the petitioner to that vacancy. According to the petitioner, by Ext. P10, that right of the petitioner has been rejected and therefore Ext. P10 is liable to be quashed. 3. The 1st respondent has filed a counter affidavit in which it is stated that Ext. P10 order has been passed in strict compliance with Ext. P3 judgment. According to the 1st respondent, although the right of the 3rd respondent to be accommodated in the post of Assistant Executive Engineer (Drilling) had been negatived by this Court in Ext. P3 judgment , the claim of the 3rd respondent to have his seniority, date of effect of promotion and continuous service as Assistant Engineer or Assistant Executive Engineer was directed to O.P. No.35519/2000 -: 3 :- be considered. The question of accommodating an eligible person in the vacancy which arose on 26-4-1993 and the claim of the 3rd respondent for continuous service as Assistant Executive Engineer (Stores) with effect from 26-9-1990 was considered together and disposed of by Ext. P10 order, which is the order impugned in this original petition. According to 1st respondent, Sri. K.J. Stanley who was the rightful claimant for the post of Assistant Executive Engineer (Drilling) was working as Assistant Executive Engineer (Stores) provisionally with effect from 29-1-1990. He who was senior to the petitioner in the post of Assistant Engineer was accommodated in the regular vacancy of Assistant Executive Engineer (Drilling) with effect from 26-4-1993 which arose as a result of Ext. P3 judgment. The 3rd respondent's claim for continuous service as Assistant Executive Engineer (Stores) with effect from 26-9-1990 was considered and found to be correct and accordingly by Ext. P10 order, it was ordered that the 3rd respondent would have continuous service as Assistant Executive Engineer (Stores) with effect from 26-9-1990 by deleting the reversion period as Assistant Executive Engineer with effect from 19-9-1992 to 16-3-1994. The petitioner has no claim whatsoever for the post of Assistant Executive Engineer (Stores) with effect from 26- 9-1990 and his only claim is to the vacancy which arose with effect from 26-4-1993, which became available for filling up on account of Ext. P3 judgment which was actually filled up by a person having better claim than the petitioner, namely, Sri. K.J. Stanley, who was the 1st petitioner in the original petition in which Ext. P3 judgment was rendered, is the contention raised by the 1st respondent. The 3rd respondent, with a counter affidavit filed, supports the contentions of O.P. No.35519/2000 -: 4 :- the 1st respondent. 4. I have considered the rival contentions in detail. 5. At the outset, I must note that, as pointed out by the respondents, the petitioner's claim is only to the vacancy which arose on 26-4-1993 in the post of Assistant Executive Engineer (Drilling). In the original petition, he has absolutely no claim for any post with effect from 26-9-1990. Therefore, the petitioner cannot have any claim whatsoever to the post to which the 3rd respondent was accommodated, namely, the post of Assistant Executive Engineer (Stores) with effect from 26-9-1990. As such, the petitioner cannot be said to be aggrieved by that part of Ext. P10 order, whereby the 3rd respondent was given continuous service as Assistant Executive Engineer with effect from 26-9-1990. 6. The next question which arises is as to whether the petitioner is entitled to be promoted to the vacancy which arose on 26-4-1993 on account of Ext. P3 judgment whereby the 3rd respondent's appointment to that post was quashed. Once the appointment of the 3rd respondent to the vacancy which arose on 26-4-1993 was quashed, then qualified persons have to be considered in the order of seniority for filling up that post. Admittedly, Mr. K.J. Stanley is senior to the petitioner in the post of Assistant Engineer. He was already working provisionally in the post of Assistant Executive Engineer (Stores) with effect from 29-11-1990. He along with the petitioner and others claimed the post of Assistant Executive Engineer (Drilling) which arose on 26-4-1993. Therefore, the said K.J. Stanley is entitled to be considered ahead of the petitioner for being accommodated in the regular vacancy which arose with effect from 26-4-1993. That only O.P. No.35519/2000 -: 5 :- has been directed in Ext. P10. The petitioner does not also claim promotion to that post in preference to Sri. Stanley. That being so, the petitioner cannot have any grievance in that respect also. In the above circumstances, I do not find any merit in the challenge against Ext. P10 or the petitioner's claim for promotion to the vacancy which arose on 26-4-1993. Accordingly, the original petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/