IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 WA.No. 1620 of 2007() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.32756/1999 Dated 18/01/2007 .................... APPELLANT(S): PETITIONERS 4,6 TO 11,14 & 17. ------------------------------------------------------------------- 1. SINDHU K.K., HEAD DRAFTSMAN, M.V.I.P.DIVISON NO.2, KOOTHATTUKULAM. 2. SAM ANTONY, ASSISTANT ENGINEER, K.I.P.L.B. SECTION, 20/13, KOLLAM. 3. ANJANA.S., ASSISTANT DIRECTOR, COASTAL ENGINEERING SECTION, KOLLAM. 4. SHEEJA.S., ASSISTANT ENGINEER, INLAND NAVIGATION SECTION, ERAVIPURAM. 5. JYOTHI MARY CHACKO, ASSISTANT ENGINEER, MINOR IRRIGATION SECTION, PERUMBAVOOR. 6. WILSON.P.M., ASSISTANT ENGINEER, M.I.SECTION, PIRAVOM. 7. BASIL PAUL, ASSISTANT ENGINEER, L.S.G.D.SECTION, MARADY, S.MARDY P.O. 8. SAJISH.R., ASSISTANT ENGINEER, M.I.SECTION, BALARAMAPURAM, THIRUVANANTHAPURAM. 9. BALACHANDRAN P.K., ASSISTANT ENGINEER, N.I.P. CHANNEL SECTION, PALLICHAL, THIRUVANANTHAPURAM. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.A.HAROON RASHEED RESPONDENT(S): RESPTS./PETITIONERS 1 TO 3,5,12,13,15,16,18 TO 20 -------------------------------------------------------------------------------------------------- 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. WA NO.1620/2007 -2- 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER(GENERAL ADMINISTRATION), PUBLIC WORKS DEPARTMENT, THIRUVANANTHAPURAM. 4. S.MANOMOHAN, RESIDING AT T.C.11/906, KRISHNA NIVAS, NANTHANCODE, WATT'S LANES, THIRUVANANTHAPURAM-695003. 5. DIANA M.J., ASSISTANT ENGINEER, MVIP SECTION, NO.2/9, RAMAMANGALAM, ERNAKULAM. 6. JIJI ANNA VARGHESE, ASSISTANT DIRECTOR, IDRB, VIKAS BHAVAN, THIRUVANANTHAPURAM. 7. BIJU R., ASSISTANT ENGINEER, INLAND NAVIGATION SECTION, VARKALA. 8. VINOD MOHAN.S., ASSISTANT ENGINEER, INLAND NAVIGATION SECTION-1, KOLLAM. 9. ANIL KUMAR M.G., HEAD DRAUGHTSMAN, MI CIRCLE, THIRUVANANTHAPURAM. 10. SOBHANAKUMARI.B., ASSISTANT ENGINEER, VIP SECTION NO.5/2, NEDUMANGADU, THIRUVANANTHAPURAM. 11. ANIL KUMAR.D., ASSISTANT ENGINEER, KIP RB SECTION, 45/27, KARUNAGAPPALLY. 12. NADEER A., ASSISTANT ENGINEER, INLAND NAVIGATION SECTION-II, KOLLAM. 13. SANTHOSH KUMAR M.S., ASSISTANT ENGINEER, VIP SECTION, NO.2, VALAYANKI, NEDUMANGADU. 14. GEETHA.G., ASSISTANT ENGINEER, PROJECT SECTION NO.1, THANNEERMUKKAM. 15. YESODA DEVI.N., ASSISTANT ENGINEER, MVIP SECTION NO.2/16, KADUTHURUTHY. ADV. SRI.P.C.SASIDHARAN FOR R1 SR.GOVT.PLEADER SMT.K..MEERA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J. =============================== W.A. NO. 1620 OF 2007 =================== Dated this the 6th day of April, 2011 J U D G M E N T J.Chelameswar, C.J. Aggrieved by the judgment in OP No.32756/99 dated 18th of January, 2007, the unsuccessful petitioners preferred the instant appeal. The facts in the brief background of the litigation stated in the judgment under appeal is extracted below:- “The petitioners are Assistant Engineers/Assistant Director/Head Draughtsmen under the Irrigation Department. They were advised from a rank list, published by the Public Service Commission on 3.12.1998. It was a common rank list for appointment to the Public Works Department also. The ranks of the petitioners in the said list were 294, 11, 12, 13, 16, 20, 28, 29, 35, 36, 39, 45, 47, 53, 110, 5 and 591. The 4th respondent was placed lower in the rank list, when compared to the petitioners. But, he was advised to the PWD. The petitioners wanted very much to join the PWD. But, options were not called for before advices were made and therefore, they were advised and appointed in the Irrigation Department. They submit, the 4th respondent is likely to get accelerated promotion in the PWD. So, they have approached this Court, seeking a WA No.1620/07 : 2 : declaration that they are entitled to be advised to the PWD in preference to persons with lesser merit like the 4th respondent. They also seek consequential reliefs”. 2. The original petition was dismissed by the learned Judge holding; “For making advices, going by the rank list and according to the vacancies reported, the petitioners cannot blame the Public Service Commission. After accepting the advice and joining duty, they cannot turn round and say, they have been wrongly advised and their claim for appointment to the PWD should be considered. Further, their claim that those joined in the PWD will get accelerated promotion, has no factual foundation. In the result, the Original Petition fails and it is dismissed.” 3. No doubt, it is the fortuitous circumstances which determine the career of a successful candidate and there is an element of arbitrariness in the said process. A Division Bench of this Court earlier dealt with a similar situation and the same legal question in a case reported in Sukumaran Nair v. State of Kerala (1987 KLT (1) 445). In para 16 of the judgment, it was observed as follows:- WA No.1620/07 : 3 : 16, We are inclined to take the view that the practice now followed of giving no option to the candidates included in the common rank list to indicate their preference, if any, for appointment to any particular department and all orders, notifications in support thereof, practically make the decision of the Commission to allot them to a particular department plainly a delicate balance, a purely fortuitous circumstance as to whether he will be allotted to a department where usually there are better avenues of promotion or to a department where the risk of retrenchment is almost inevitable. The procedure now adopted seems to be perilously near to a successful constitutional challenge under Articles 14 and 16 of the Constitution. It is high time that the authorities consider all aspects of this question and reformulate the principles and procedure to be adopted in making advice from a common rank list. We are not, however, expressing any final opinion in this case, for, the Commission which made the advice is not a party to the proceedings and the petitioner did not challenge the advice made in his favour for appointment to the Public Services Department at the appropriate time. 4. However, the Division Bench did not record any conclusive statement of law. However, it appears that the observations made by the Division Bench were not approved by the Supreme Court in an SLP carried against the said judgment. WA No.1620/07 : 4 : The Supreme Court dismissed the SLP with the following order:- “The S.L.P. Is dismissed. However, we make it clear that we are not approving the observations made by the High Court in respect of the Rules.” In the circumstances, we see no reason to interfere with the judgment under appeal. Writ appeal is dismissed. J.CHELAMESWAR CHIEF JUSTICE. ANTONY DOMINIC JUDGE. Rp