IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WP(C).No. 35300 of 2003(B) --------------------------------------- PETITIONER(S): ----------------------- 1. K.SURENDRAN, MASTER DRILLER, GROUND WATER DEPARTMENT, KUMBAZHA P.O., PATHANAMTHITTA DISTRICT HAVING PERMENANT ADDRESS AT K.S.BHAVAN,VEERANAKAVU P.O., KATTAKADA, THIRUVANANTHAPURAM DISTRICT. 2. K.T.MURALI, MASTER DRILLER, GROUND WATER DEPARTMENT, VADAVATHUR P.O., KOTTAYAM DISTRICT HAVING PERMENANT ADDRESS AT VENGAZHA HOUSE, EZHUMATTOOR P.O., MALLAPPALLY,PATHANAMTHITTA DIST. BY ADV. MR.T.K.ABRAHAM RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, IRRIGATION (GROUND WATER DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, GROUND WATER DEPARTMENT, KESAVADASAPURAM, PATTOM, THIRUVANANTHAPURAM. 3. K.K.SASI, ASSISTANT ENGINEER, GROUND WATER DEPARTMENT, DISTRICT OFFICE, VADAVATHOOR P.O., KOTTAYAM. W.P.(C) NO.35300/2003 ADDL. R4 IS IMPLEADED. 4. CHERIYAN POLOSE, S/O.M.C.POULOSE, AGED 50 YEARS, MASTER DRILLER, (HIGHER GRADE) GROUND WATER DEPARTMENT, DISTRICT OFFICE, AT ERNAKULAM, KAKKANAD. ADDL. R4 IS IMPLEADED AS PER ORDER DTD. 16.1.08 IN IA. 607/08. R1 & R2 BY GOVT. PLEADER MR K.SANILKUMAR R3 BY ADVS.MR.V.B.PREMACHANDRAN MR.P.K.SIVADASAN NAIR MR.V.R.KESAVA KAIMAL MR.N.M.MADHU ADDL. R4 BY ADV. MR.M.P.ASHOK KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.35300/2003 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.E(2) 3987/97 DTD. 6.1.98 ISSUED BY THE 2ND RESPONDENT (SENIORITY LIST) OF MASTER DRILLERS. P2:- COPY OF THE G.O.(MS) 166/76 (AD) DTD. 7.5.76. P3:- COPY OF THE JUDGMENT DTD. 14.6.1990 OF THE HONOURABLE HIGH COURT OF KERALA IN OP. 10776/85. P4:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WA. 512/90 DTD. 27.11.90. P5:- COPY OF THE G.O.(P) NO.32& 33 /93 /IR. D. DTD. 30.7.93. P6:- COPY OF THE JUDGMENT IN OP. 3170/98 DTD. 29.5.98. P7:- COPY OF THE ORDER NO.E(2) 185/2001 /DGW DTD./ 8.3.01 ISSUED BY THE 2ND RESPONDENT. P8:- COPY OF THE LETTER NO.S(2) 6278/86 IR. DIS. DTD. 25.7.86 ISSUED BY THE 2ND RESPONDENT. P9:- COPY OF THE REPRESENTATION FILED BY THE IST PETITIONER DTD. 27.10.01 BEFORE THE IST RESPONDENT. P10:- COPY OF THE LETTER NO.1635/GW1/2001/WRD DTD. 13.6.02. P11:- COPY OF THE ARGUMENT NOTE DTD. 27.6.02 SUBMITTED BY THE ADVOCATE OF THE IST PETITIONER. P12:- COPY OF THE LETTER DTD. 7.5.02 BEING NO.E(2) 868/02/GW ISSUED BY THE 2ND RESPONDENT TO THE DISTRICT OFFICER, KOLLAM. P13:- COPY OF THE SENIORITY LIST OF STORE-IN-CHARGE IN THE GROUND WATER DEPARTMENT. P14:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURST DTD. 17.1.03 (A) IN OP. 1689/03. P15:- COPY OF THE G.O.(RT) NO.580/03 /WRD DTD. 6.5.03 ISSUED BY THE IST RESPONDENT. P16:- COPY OF THE G.O.(RT) NO.935/2006/WRD DTD. 18.8.06. P17:- COPY OF THE MEMORANDUM OF WPC. 4252/06. P18:- COPY OF THE JUDGMENT DTD. 9.10.06 IN WPC. NO.4252/06. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. ================ W.P.(C) NO. 35300 OF 2003 (B) ===================== Dated this the 15th day of October, 2009 J U D G M E N T Exts.P7 and P18 are under challenge. By Ext.P7 order of 8/3/2001, the 3rd respondent a Diploma holder in Mechanical Engineer and appointed as a Store-in-charge, was promoted as Assistant Engineer w.e.f. 31/12/90. Ext.P15 is an order rejecting the representation filed by the petitioners against Ext.P7. Petitioners' case is that they were appointed as Drilling Assistants in the Ground Water Resources Department on 23/10/78. They were promoted as Driller, Senior Driller and Master Driller, in which post, they were regularised w.e.f. 14.10.85. 2. It is stated that in so far as the 3rd respondent is concerned, he commenced his service as a Store-in-charge. Ext.P5 is the copy of the Special Rules, which were implemented w.e.f. 30.7.93. Prior to the introduction of the Special Rules, some of the Store-in-charges were promoted to the post of Assistant Engineers which came to be challenged before this Court in OP No.10776/85. By Ext.P3 judgment rendered on 14/6/90, this Court upheld the contention that the Store-in-charge is outside WPC 35300/03 :2 : the feeder category to the post of Assistant Engineer and on that basis promotions were invalidated. The judgment of the learned Single Judge was confirmed by the Division Bench by dismissing WA No.512/90, a copy of which is Ext.P4. 3. As already stated, Ext.P5 is the Special Rules. In terms of the Special Rules, a Store-in-charge can aspire for promotion as Senior Driller, who in turn can aspire for the post of Master Driller. Therefore, the contention is that the 3rd respondent being only a Store-in-charge, at best could have aspired for promotion as Senior Driller, and nothing else. Despite this, the 3rd respondent claimed promotion as Assistant Engineer and obtained Ext.P6 judgment in OP No.3170/98 directing consideration of his claim. Accordingly, by Ext.P7, order was issued on 8/3/2001 promoting the 3rd respondent as Assistant Engineer w.e.f. 31/12/90. 4. Petitioner objected to the promotion and finally he approached this Court by filing OP NO.1689/03 and obtained Ext.P14 judgment directing consideration of his representation. Accordingly, his representation was considered and was rejected by Ext.P15. It was at that stage this writ petition was filed. 5. Petitioner also submits that even by Ext.P16 order, WPC 35300/03 :3 : passed pursuant to the direction in WP(C) NO.4252/06 filed by the 3rd respondent, the Government had taken the view that as on 31/12/90, there was no post available to have promoted the 3rd respondent. It is stated that suppressing real facts, the 3rd respondent had filed the aforesaid writ petition, a copy of which is Ext.P17. Petitioner has produced as Ext.P18, the judgment rendered in WP(C) No.4252/06 directing that the 3rd respondent's probation shall be declared and that his claims for further promotion to the post of Assistant Executive Engineer shall be considered. It is contended that the said judgment having been obtained suppressing vital facts is vitiated for fraud and suppression of facts and therefore this Court should not be guided by the directions issued therein. 6. The 3rd respondent denies the allegations against him. According to him, he is entitled to retain his promotion as Assistant Engineer and is also entitled for further promotions. 7. Petitioner seems to be right that going by Ext.P5 Special Rules introduced on 30/7/93, Store-in-charge can aspire only for promotion as Senior Driller and not to the post of Assistant Engineer. It is also a fact that by Ext.P3 judgment, this WPC 35300/03 :4 : Court has held that Store-in-charge was not in the feeder category for the post of Assistant Engineer. Despite all this, fact remains that by Ext.P7, the 3rd respondent was promoted w.e.f. 31/12/90. It is this order which is under challenge in this writ petition. 8. The effect of the said promotion will have to be judged in the light of the directions issued in Ext.P18 judgment. True, as contended by the learned counsel for the petitioners, if the judgment is vitiated for fraud, may be possible for the petitioner to avoid the judgment and therefore the question is what are the circumstances in which the judgment has been rendered and what are the facts which have been taken note of by the learned Judge and whether the judgment is vitiated for any reason. 9. A reading of Ext.P18 judgment shows that after promotion as Assistant Engineer, despite having completed the required length of service, the 3rd respondent's probation was not declared. He produced as Ext.P4, an order passed by the Government rejecting the representation filed objecting to his promotions. Similarly, the seniority list maintained by the Department retaining the 3rd respondent as Assistant Engineer was also produced. WPC 35300/03 :5 : 10. During the pendency of the writ petition, interim order was passed by this Court directing consideration of a representation made for declaration of the 3rd respondent's probation. Accordingly, the Government considered the claim and passed order dated 18/8/06 which was produced in WP(C) No.4252/06, as Ext.P14 and the writ petition was amended incorporating a challenge to the said order. It is this order, which is now relied on by the petitioner as Ext.P16 in this writ petition. 11. During the course of the arguments, one of the contentions raised by the learned Government Pleader was that by Ext.P4 judgment rendered by a Division Bench, it was held that the post of Store-in-charge was outside the feeder category. The impact of that judgment was also considered and inspite of it the learned Judge took the view that individual orders issued in favour of a Government employee will not get nullified or diluted by judgments, to which the employee is not a party. Proceeding further, the contentions put forward by the 3rd respondent was accepted and accordingly, his promotion as Assistant Engineer was upheld and it was directed that his probation shall be declared and his case for further promotions shall be considered. WPC 35300/03 :6 : Therefore, the judgment cannot be said to be vitiated for any reason and in the light of the said judgment, what the petitioner is seeking in this writ petition viz., to quash his promotions cannot be granted. Such a direction will be contradictory to Ext.P18. Petitioner has no case that he has filed any appeal or review against Ext.P18 judgment, which ought to have been pursued by him. Therefore, in view of Ext.P15, petitioner cannot seek any direction in this writ petition and for that reason, this writ petition will stand dismissed. ANTONY DOMINIC, JUDGE Rp