IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 WA.No. 1563 of 2010() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.36424/2005 Dated 14/06/2010 .................... APPELLANT(S): RESPONDENTS 5-8 IN THE WRIT PETITION: ------------------------------------------------------------------------------------------ 1. M.K.RAGHAVAN, ASSISTANT ENGINEER III, PUBLIC WORKS DEPARTMENT, MECHANICAL SUB DIVISION, KANNUR-2. (NOW WORKING AS ASSISTANT EXECUTIVE ENGINEER, P.W.D.MECHANICAL SUB DIVISION, CIVIL STATION, KANNUR). 2. K.SURESHAN, ASSISTANT ENGINEER, SECTION NO.I, PUBLIC WORKS DEPARTMENT, REGIONAL ENGINEERING WORKSHOP, THONDAYAD, KOZHIKODE-17.(NOW WORKING AS ASSISTANT EXECUTIVE ENGINEER, MECHANICAL SUB DIVISION, IRRIGATION, CIVIL STATION, KANNUR). 3. C.SATHEESAN, ASSISTANT ENGINEER, DREDGER NO.4, DREDGER SUB DIVISION, KAKKANAD, ERNAKULAM. (NOW WORKING AS ASSISTANT EXECUTIVE ENGINEER, DREDGER SUB DIVISION, CIVIL STATION, KAKKANAD, ERNAKULAM). 4. K.K.CHANDRABABU, ASSISTANT ENGINEER, DRY DOC AND WORKSHOP SUB DIVISION, ALAPPUZHA-1. (NOW WORKING AS ASSISTANT EXECUTIVE ENGINEER, P.W.D.MECHANICAL SUB DIVISION, MAVELIKKARA). BY ADVS. SRI.V.A.MUHAMMED, SRI.M.SAJJAD. Kss ..2/- ..2... W.A.NO.1563/2010 RESPONDENT(S): PETITIONER AND RESPONDENTS 1TO4 IN THE WRIT PETITION: ------------------------------------------------------------- 1. SRI. C.ANIL CHANDRAN, ASSISTANT ENGINEER (MECHANICAL), OFFICE OF THE CHIEF ENGINEER (MECHANICAL), PUBLIC OFFICE, P.O.MUSEUM, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, IRRIGATION (ADMINISTRATION)DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1. 3. THE CHIEF ENGINEER, IRRIGATION (ADMINISTRATION), THIRUVANANTHAPURAM. 4. SRI.K.K.SUBRAMONIAN, KOOLIYODATHIL HOUSE, PATHAZHAKKADU P.O., THRISSUR-680 668. 5. SRI. K.S.BADARUDEEN, KAYAMKULAM HOUSE, ANCHUMOORTHY, MANGALAM P.O., PALAKKAD-678 580. R1 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/06/2011 ALONG WITH WA NO. 331 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WA.NO.1563/2010 APPENDIX PETITIONER'S ANNEXURES: ANNEX.1: COPY OF THE ORDER NO.EB-966/91 OF THE DEPUTY CHIEF ENGINEER DTD. 02/07/1991. ANNEX.II: COPY OF THE REPRESENTATION OF THE 2ND APPELLANT DTD. 26/02/1994. ANNEX.II(A): COPY OF THE ...DO.. 3RD APPELLANT DTD. 10/05/1994. ANNEX.III: COPY OF THE ORDER NO.IC.2-12343/99 OF THE CHIEF ENGINEER ALONG WITH TRANSLATION DTD. 29/04/2005. ANNEX.IV: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.27933 OF 2004 A DTD. 08/08/2005. ANNEX.V: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A.NO.2642/2005 DTD. 16/01/2006. ANNEX.VI: COPY OF THE NOTIFICATION NO.19695/A1/05/WRD OF THE GOVERNMENT DTD.31/12/2005. ANNEX.VII: COPY OF THE G.O.(RT) NO.462/06/WRD OF THE GOVERNMENT DTD. 20/04/2006. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss C.N.RAMACHANDRAN NAIR & BHABANI PRASAD RAY, JJ. ------------------------------------------------------ W.A.Nos. 1563 OF 2010 & 331 OF 2011 --------------------------------------------- Dated this the 27th day of June, 2011 J U D G M E N T Ramachandran Nair, J. The connected appeals are filed against the common judgment rendered by the learned single Judge in two writ petitions filed challenging Ext.P12 order produced in W.P(C) No.36424 of 2005 against which Writ Appeal No.1563 of 2010 is filed. Heard the learned common counsel appearing for the appellants in both appeals and separate counsel appearing for contesting respondents and also the learned Government Pleader for the State which has not field separate appeal, though judgment is not accepted by them. 2. The appellants herein are Diploma holders and were appointed as Overseer Grade-III in 1991. On completion of probation they were regularised in that cadre after two years that is, in 1993. However, their case is that vacancies were existing in the cadre of Assistant Engineer to be filled up from W.A.Nos. 1563 OF 2010 & 331 OF 2011 2 the quota reserved for promotees and in spite of the same they were not given promotion. The appellants case is that they came to know about the availability of vacancies in the cadre of Assistant Engineer to be filled up from the quota reserved for promotees only when the seniority list was published. Even though there was delay in challenging Ext.P11 seniority list published on 22.11.2001, the same was challenged by the appellants by filing writ petition No.37212 of 2004, which was disposed of by the Hon'ble High Court directing the Government to consider appellants claim for promotion to the post of Assistant Engineer in the quota reserved for promotees. Pursuant to the above judgment, the Government issued Ext.P12 order produced in W.P(C)No.36424 of 2005 where under all the appellants were given promotion to the post of Assistant Engineer in the quota reserved for promotees with effect from 01.08.1993. The operative portion under which, the benefit is given in paragraph-2 of Ext.P12 is as follows:- W.A.Nos. 1563 OF 2010 & 331 OF 2011 3 “The total sanctioned strength of Assistant Engineers in the Mechanical wing is 49 (Forty Nine). The strength is allocated between Graduates. Diploma and certificate holding Assistant Engineers as 29 15 05. As such there should be 15 Diploma holding Assistant Engineers on 01.04.1990. But due to non-availability of qualified 1 Grade D' man, those who had satisfactorily completed their probation on that date, they were not given promotion as Assistant Engineer. The date of declaration of probation of K.K.Subramonian, K.S.Badaruddin, M.K.Raghavan, K.Sureshan, C.Sathesan and K.K.Chandrababu were during 07/93.” Even though, promotion is with retrospective effect, it is clearly stated that no arrears will be paid on account of re- assignment of promotion and therefore promotion only help them to get the pay fixed from the date of promotion. 3. The above order was challenged by the party respondents herein by filing writ petitions. The respondents are Graduates Engineers who got employment on compassionate ground on account of death of their father/mother in service. Even though they were Graduate Engineers, they were also appointed in the cadre of Overseer Grade-III, which was challenged by them before this Court and this Court allowed W.A.Nos. 1563 OF 2010 & 331 OF 2011 4 their case. Pursuant to the judgment of this Court, the respondents were appointed as Assistant Engineers in the year 1995. Since the appellants continued as Overseers in the seniority list published, party respondents were senior in the cadre of Assistant Engineer. However, when the appellants were promoted as Assistant Engineers under Ext.P12 order with effect from 01.08.1993, the respondents became junior to the appellants and they filed writ petitions challenging Ext.P12 order. The learned single Judge allowed the respondent's case on the ground that there was delay on the part of the appellants to challenge the seniority list which had become final by Ext.P11 dated 22.11.2001 and quashed Ext.P12, against which the writ appeals are filed. 4. After hearing both sides and the learned Government Pleader, we are satisfied that appellants are entitled to succeed in the matter even if there is delay in challenging the seniority list. According to the appellants, Ext.P11 seniority list is corrected vide Ext.P12 order issued pursuant to the judgment of this Court in W.P(C)No.37212 of 2004. In our view, there can be W.A.Nos. 1563 OF 2010 & 331 OF 2011 5 no conflict of interest between appellants and contesting respondents because both claimed employment in the post of Assistant Engineer under two categories. The appellants admittedly are Diploma holders who are eligible for promotion on completion of probation as Overseer Grade-III by virtue of availability of fifteen posts of Assistant Engineers to be filled up by Diploma holders. But, appellants were not promoted. It is clearly stated in Ext.P12 order that though fifteen vacancies in the post of Assistant Engineer were available to be filled up by promotion of Diploma holders, eligible candidates were not available on 01.04.1990 and the vacancies continued as such and the appellants became qualified for promotion by successfully completing probation in the cadre of Overseer Grade-III only in July 1993. Therefore, respondents can have no case that if the appellants were promoted to the vacancies available for promotees in the cadre of Assistant Engineer in 1993, they could have successfully contested the same. There is no finding by the learned single Judge that appellants were not eligible for promotion in 1993 against the then available vacancies to be W.A.Nos. 1563 OF 2010 & 331 OF 2011 6 filled up by promotion of Diploma holders. The only reason why the learned single Judge interefered in the matters is the delay in contesting seniority list by the appellants. We do not find any merit in this because appellants had continued grievance in the denial of promotion to them. Further, it is stated in the impugned judgment itself that the seniority list published in the end of the year 2001 that is, on 22.11.2001 was challenged by the appellants in 2004 and the judgment was rendered in the very same year based on which Ext.P12 order was issued. What we notice is that the Government itself took into account the delay on the part of the appellants to claim promotion and that is why arrears of salary for back period is denied to the appellants in Ext.P12. In our view, the contesting respondents can have no grievance against the promotions given to the appellants because they have no rival claim as they are direct recrutees in the cadre of Assistant Engineer and have no claim for the post of Assistant Engineers reserved to be filled up through promotions. Of course the contesting respondents loose their positions in the seniority list which they got by virtue of the denial of timely W.A.Nos. 1563 OF 2010 & 331 OF 2011 7 promotions to the appellants. We therefore do not find any merit in the contention of the respondents that the delay in challenging the seniority list by the appellants will defeat their claim. 5. So far as the contesting respondents who are three in number are concerned, their claim was not for promotion to the post of Assistant Engineer. On the other hand, their appointments were directly as Assistant Engineers by virtue of the judgment issued by this Court in the writ petition filed by them. Even though their appointments were regularised in the cadre of Assistant Engineer only in the year 1995, they have not claimed for regularisation of appointment with effect from the dates on which they were originally absorbed in service. So much so, the respondents got appointment as Assistant Engineers in 1995 and they did not claim seniority over appellants, who were eligible to be promoted in the year 1993 in the quota reserved for Diploma holders. W.A.Nos. 1563 OF 2010 & 331 OF 2011 8 Therefore Writ Appeals are allowed by vacating the judgment of the learned single Judge and by restoring Ext.P12 order issued by the Government. C.N.RAMACHANDRAN NAIR, JUDGE BHABANI PRASAD RAY, JUDGE dmb