IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 WP(C).No. 36100 of 2004(V) -------------------------- PETITIONERS: ------------ 1. SUNIL JOSEPH S/O. LATE ANTO CLETUS VADAKKUMTHALA HOUSE, PULLEPADY, ERNAKULAM, WORKING AS ASSISTANT EXECUTIVE ENGINEER, GENERATOR SUB DIVISION, THENMALA, KOLLAM DISTRICT. 2. EASA SAIT M., S/O. MOHAMMED HUSSAIN, SHAN VILLA, HOUSE NO.133, M.G.NAGAR, KARIPUZHA KAVANAD P.O., KOLLAM. WORKING AS ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, PALLIMUKKU, KOLLAM. 3. J.MOHAMMED SIYAD S/O. LATE K.JAMALUDDIN LABBA, GREEN VIEW, SASTHAMANGALAM P.O., THIRUVANANTHAPURAM, WORKING AS ASST.ENGINEER, 220 K.V.SUB STATION, CONSTRUCTION SECTION, K.S.E.B., KATTAKKADA, THIRUVANANTHAPURAM. 4. SAJAN P.A., S/O. P.H.ABDUL AZIZ, 'JEENUS', P.O.JUNCTION, PALLIMUKKU, KOLLAM, WORKING AS ASSISTANT ENGINEER, T.C.SECTION, 66 KV SUB STATION COMPOUND, AYATHIL, KOLLAM. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: ------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, HUMAN RESOURCES MANAGEMENT, K.S.E.B., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. WPC 36100/04 3. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 4. SUGATHAN C.G., ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KANHANGAD, KASARAGOD DISTRICT. 5. SAJEEV G., ASSISTANT EXECUTIVE ENGINEER, SYSTEM OPERATION CIRCLE, VYDHUTHI BHAVABAM, PATTOM, THIRUVANANTHAPURAM. 6. SANGEETHA, ASSISTANT EXECUTIVE ENGINEER, OFFICE OF THE DEPUTY CHIEF ENGINEER (COMMERCIAL) VYDHUTHI BHAVANAM, PATTAM, THIRUVANANTHAPURAM. *7. BABU K.GOPAL, ASSISTANT EXECUTIVE ENGINEER, GENERATION CIRCLE, MOOZHIYAR. *(IMPLEADED AS PER ORDER DATED 28.2.2006 IN IA 1409/06) BY ADV. SRI.N.N.SUGUNAPALAN, (SR.) SC, KSEB FOR R1&2 SRI.ALEXANDER THOMAS,SC,KPSC FOR R3 SRI.BIJU BALAKRISHNAN FOR ADDLR4,.R5 & 6 SRI.S.RAMESH BABU FOR ADDL.R7 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 36100/2004 APPENDIX PETITIONERS' EXTS. EXT.P1 - TRUE COPY OF THE JUDGMENT DT. 16.12.97 IN W.A.NOS.1875, 1870, 1874. 1876 AND 1877/1997 OF THIS HON'BLE COURT. EXT.P2 - TRUE COPY OF THE JUDGMENT DT.13.3.2002 IN O.P.NOS.17257/2000, 15736/2000 & 34358/2001 OF THIS HON'BLE COURT. EXT.P3 - TRUE COPY OF REPRESENTATION DT. 10.2.2003 SUBMITTED BY 3RD PETITIONER TO THE 1ST RESPONDENT. EXT.P4 - TRUE COPY OF COMMUNICATION DT. 18.12.2003 ISSUED BY THE 2ND RESPONDENT TO THE 3RD PETITIONER. EXT.P5 - TRUE COPY OF JUDGMENT DT. 9.6.2004 IN W.P.(C) NO.14948/2004 OF THIS HON'BLE COURT. EXT.P6 - TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONERS 1 TO 4 TO THE 2ND RESPONDENT ON 20.7.2004. EXT.P7 - TRUE COPY OF THE ORDER DATED 29.7.2004 PASSED BY THE 2ND RESPONDENT. EXT.P8 - TRUE PHOTO COPY OF THE RELEVANT PAGES OF THE SENIORITY LIST DATED 27.11.2004 OF ASSISTANT ENGINEERS (ELECTRICAL) EXT.P9 - A TRUE PHOTO COPY OF THE OBJECTION DATED 29.9.2004 FILED BY THE 3RD PETITIONER TO EXT.P7. RESPONDENTS' EXTS. EXT.R2(a) – TRUE COPY OF THE RELEVANT EXTRACT OF SENIORITY LIST. EXT.R6(a) – PHOTOSTAT COPY OF THE ORDER NO.B.O.NO.688/97/ESTT.II.I123/97 DT. 24.3.97 OF THE 1ST RESPONDENT. EXT.R6(b) – PHOTOSTAT COPY OF THE RELEVANT PAGES OF THE ANNUAL ADMINISTRATION REEPORT 1992-93. EXT.R6(c) – PHOTOSTAT COPY OF THE RELEVANT PAGES OF THE ANNUAL ADMINISTRATION REPORT 1993-94. /TRUE COPY/ K.BALAKRISHNAN NAIR, J. ----------------------------------------- W.P.(C) NO. 36100 OF 2004-V ----------------------------------------- JUDGMENT The petitioners were candidates, who were appointed in the Kerala State Electricity Board as Assistant Engineers (Electrical), based on the advice of the P.S.C., made pursuant to Ext.P1 judgment of the Division Bench of this Court. The rank list in which the petitioners were included was published by the P.S.C on 28.11.1989, which expired on 27.11.1992. Though 67 vacancies were available in the K.S.E.B., the appointing authority did not report them. So, the petitioners filed O.P.No.13471/1992 before this Court and as per the interim order dated 24.11.1992 in that original petition, this Court directed reporting of 67 vacancies of Assistant Engineers (Electrical) to the P.S.C. Ultimately, the said original petition was dismissed on 1.8.1997. The petitioners and others appealed, by filing W.A.No.1870/1997 and connected cases. The Division Bench allowed those appeals by Ext.P1 judgment dated 16.12.1997. Pursuant to the said judgment, the petitioners were advised by the P.S.C on 16.3.1998 WPC 36100/2004 2 and thereafter they joined duty also. But, they were assigned seniority in the cadre of Assistant Engineer (Electrical) only with effect from the date of their advice. In the meantime another batch of Assistant Engineers (Electrical) were advised from the rank list published by the P.S.C on 26.6.1997. The persons advised from the said list before the petitioners were advised on 16.3.1998, were shown as their seniors. Aggrieved by the same, the petitioners and others approached this Court and this Court by Ext.P2 judgment, allowed those original petitions. The relevant portion of the said judgment reads as follows: “5. Heard both sides. It is not in dispute that in normal circumstances, the seniority of a candidate advised by the Public Service Commission should be reckoned only in accordance with Rule 27(c). But the said principle cannot be pressed into service where a mistake is being corrected. There can be cases where a person has been wrongly overlooked and his advice happened to be made subsequently. If he is given the seniority only with effect from the date of advice, it will be highly arbitrary and unjust. In other words, somebody who got earlier advice illegally can safely retain his seniority. In the case at hand, the Division Bench of this Court found that there were 67 vacancies available for direct recruitment before the expiry of the rank list. Therefore, those vacancies should have been reported to the Electricity Board in the normal course and the Public Service Commission should have advised candidates to those vacancies so reported. If everything was done in accordance with law, the petitioners would WPC 36100/2004 3 have definitely got appointments earlier than those persons included in the subsequent rank list. This is also a case involving correction of mistake and therefore the date of their effective advice should also be modified accordingly. It will be quite anomalous to give seniority to persons who were advised from the rank list published on 26.6.1997 over the persons who were advised from the rank list published on 28.11.1989. In an identical case, the Apex Court in the decision reported in Dalala Shoja v. State of Kerala [1998 (1) KLT 567] held that a person wrongly denied appointment is entitled to get seniority over others who were appointed from a subsequent select list. The principles laid down in the said decision will squarely apply to the facts of the present case. So, the Original Petition is allowed. Exts.P7 and P8 are quashed. The second respondent shall assign seniority to the petitioners and similarly placed persons above the persons appointed from the subsequent rank list published on 26.6.1997. This, the 2nd respondent shall do within a period of three months from the date of receipt of a copy of this judgment. Needless to say, if any promotions are made to the post of Assistant Executive Engineer (Electrical), the same shall be reviewed in the light of the revised seniority of the petitioners.” (Emphasis supplied) Though the affected persons attempted writ appeals, before this Court, they were dismissed. Finally, the K.S.E. Board implemented the direction in Ext.P2 and the petitioners were assigned seniority over those persons who were advised from the rank list published on 26.6.1997, before the advice of the petitioners on 16.3.1998. But, WPC 36100/2004 4 when the seniority list of Assistant Engineers (Electrical) was published, the petitioners found that a few special recruits belonging to SC/ST advised and appointed in 1993 and some compassionate appointees who were appointed before the date of advice of the petitioners were shown as seniors to them. So, they filed Ext.P6 and similar representations. Relying on Ext.P2 judgment, the petitioners submitted that they should be assigned seniority over those persons also. Pursuant to the direction of this Court, the K.S.E. Board considered Ext.P6 and similar representations and rejected them by Ext.P7 order. Hence this writ petition challenging Ext.P7 and seeking consequential reliefs. 2. The K.S.E.B and the contesting respondents have filed counter affidavits, resisting the prayers in the writ petition. 3. Heard the learned counsel on both sides. The petitioners claimed seniority in Ext.P2 only over those persons who were advised by the P.S.C from the rank list published on 26.6.1997. When they filed the said original petition, their grievance regarding the seniority assigned to special recruits and compassionate appointees was WPC 36100/2004 5 remaining. They have acquiesced to that. That being so, they cannot be permitted to raise the said grievance in 2004. The principles of constructive res judicata or the principle of 'ought and not' will stand in their way. Further, the special recruits and compassionate appointees are entitled to sit back. The petitioners cannot be allowed to challenge their seniority position at this distance of time. Therefore, I find no reason to interfere with the rejection of the claim of the petitioners for seniority over special recruits and compassionate appointees, as per Ext.P7. The said grievance alone, as against Ext.P7, was canvassed before me. Accordingly, the Writ Petition is dismissed. 19th September, 2008. K.BALAKRISHNAN NAIR, JUDGE. Nm/