IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 WP(C).No. 34505 of 2008(G) --------------------------------------- PETITIONER(S): ----------------------- LIJI POTHEN, W/O. K.V. KURIAN, KOTTARATHIL, PAMPADY, KOTTAYAM. BY ADVS. SRI.M.RAJASEKHARAN NAYAR SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER RESPONDENT(S): -------------------------- 1. THE CHIEF ENGINEER (IRRIGATION AND ADMINISTRATION), PUBLIC OFFICE BUILDINGS, THIRUVANANTHAPURAM - 695 033. 2. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, PATTOM, FORT, THIRUVANANTHAPURAM. R1 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI R2 BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.34505/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ADVISE ISSUED TO THE PETITIONER NO.RIA (3) 25525/01/GW DATED 17/3/2006. P2 COPY OF THE ORDER IN R.P.NO.865 OF 2008 DATED 6/8/2008. P3 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 6/9/2008. P4 COPY OF THE LETTER NO.A6/18615/2007 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER DATED 10/11/2008. P5 COPY OF THE PROCEEDINGS OF CHIEF ENGINEER DATED 10/3/2005. P6 COPY OF THE PROCEEDINGS DATED 14/7/2006. P7 COPY OF THE PROCEEDINGS OF 1ST RESPONDENT DATED 16/1/2007. P8 COPY OF THE PROCEEDINGS OF 1ST RESPONDENT DATED 31/3/2006. P9 COPY OF THE PROCEEDINGSOF THE 1ST RESPONDENT DATED 28/10/2006 RESPONDENT'S EXHIBITS: R1(A) COPY OF THE JUDGMENT IN W.A.NO.503/2007. R1(B) COPY OF THE ORDER DATED 1/11/2007 IN R.P.NO.1045/07. /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 34505 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of January, 2011 J U D G M E N T The petitioner was an applicant for the post of Overseer Grade-III in P.W.D. and Irrigation Department. A rank list was published on 23.07.2001 which was current till 31.12.2004. The petitioner was included as rank No.1009. Some persons included in the rank list (not the petitioner) approached this court by filing W.P. (C) No.34519/2004. In the same an interim order was passed directing reporting of vacancies and later passed another order directing advise of candidates to 59 of those vacancies provisionally and subject to result of the writ petition. On the basis of that interim order, the petitioner was advised pursuant to Ext.P1. Subsequently that writ petition was disposed of accepting only 19 vacancies and directing advise against only those vacancies. Against the W.P.(C)No. 34505 of 2008 -2- same, the aggrieved persons filed W.A. No.503/2007. The appellants in that writ appeal tried R.P. No.1045/2007 which was also dismissed. The petitioner tried Review Petition in another similar writ appeal namely W.A. No.591/2004 in which the Division Bench observed thus: “Hence, if the review petitioner was given advice earlier to the judgment of the writ appeal, in one of the existing vacancies, he should be provided and should be given advice and subsequent change in the rank list will not affect the rights of the petitioner who was already advised. With the above observations, this review petition is disposed of.” Pursuant to the same, the petitioner staked a claim for appointment which was rejected by Ext.P4 holding that there was no vacancy available for accommodating the petitioner in accordance with her rank. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: “a) Call for the records relating to issuance of Exhibit P4 and quash the same by a writ in the nature of certiorari or other appropriate writ, order or direction, b) Issue a writ in the nature of mandamus or other appropriate writ, order or direction to respondents 1 and 2, to revert or discharge any one of the provisional hands occupying the NJD vacancies. c) Direct respondents 1 and 2 to revert or discharge any W.P.(C)No. 34505 of 2008 -3- one of the provisional hands occupying the post of Overseer Grade III and appoint the petitioner in that vacancy,” 2. Counter affidavit and additional counter affidavit have been filed by the State. Counter affidavit and additional affidavit has been filed by the Public Service Commission also. Their contention is that, this court accepted only further 19 vacancies to which alone advise and appointment could have been made. They have produced Ext.R1 (a) judgment in W.A. No.503/2007 and Ext.R1 (b) order in Review Petition dismissing the R.P. They point out that in paragraph 2 of Ext. R1(a) judgment, the Division Bench upheld the finding of the learned Single Judge that there were only 19 vacancies remaining. They would contend that as per the rank of the petitioner, the petitioner's turn did not arise while filling up the said 19 vacancies so accepted by this court. Therefore according to them the petitioner is not entitled to any relief in this writ petition. 3. I have considered the rival contentions in detail. W.P.(C)No. 34505 of 2008 -4- Paragraph 2 of Ext.R1 (a) judgment reads thus: “2. Learned Government Pleader submitted that only 27 vacancies were available as on 31.12.2004. Out of that, 8 vacancies were reported and advised. Remaining vacancies are only 19 which were also reported. Learned single Judge disposed of the Writ Petition directing the Public Service Commission to advise candidates to 19 vacancies of III Grade overseer, reported from the Irrigation Department.” That judgment was rendered against the final judgment pursuant to the interim order in which the petitioner was advised by Ext.P1. By the original interim order advise was to be made to 59 vacancies. From the above quoted paragraph of the Division Bench judgment it is very clear that ultimately while disposing of the writ petition in which the interim order was passed the learned Single Judge accepted only further 19 vacancies which finding was upheld by the Division Bench also. That being so, the petitioner can validly stake a claim for appointment pursuant to the interim order in W.P. (C) No.34519/2004 and the final judgment thereon only if the petitioner comes within the rank for advising 19 more vacancies. Admittedly if there are only 19 more vacancies the petitioner's turn W.P.(C)No. 34505 of 2008 -5- would not arise. The list has also expired long back. That being so, the petitioner is not entitled to any reliefs in this writ petition. Accordingly the same is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/