IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 OP.No. 14913 of 1997(A) ---------------------------------- PETITIONER: ------------------- B.BOSE, UPPER DIVISION CLERK, OFFICE OF THE CONTROLLER OF TECHNICAL EXAMINATIONS, PERUNTHANNI, THIRUVANANTHAPURAM. BY ADV. SRI.K.P.DANDAPANI (SR.). RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE LAW SECRETARY, LAW DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CONTROLLER OF ENTRANCE EXAMINATIONS, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 4. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT. PLEADER SRI. M.R. SABU, R4 BY ADV. SRI. ALEXANDER THOMAS, S.C, KPSC. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/12/2008 ALONG WITH O.P NOS.4567/1999 & 34360/2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 14913/1997-A: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTIFICATION NO. 15767/ADMN.II (2) 92/LAW DTD. 15/12/1992 ISSUED BY THE ADDITIONAL LAW SECRETARY, TRIVANDRUM. EXT.P.2: COPY OF THE RELEVANT EXTRACT OF PROCEEDINGS OF THE KERALA LEGISLATIVE ASSEMBLY - QUESTION NO.2269 AND THE REPLY DTD. 20/04/1994. EXT.P.3: COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA DTD. 25/01/1995 IN O.P. NO. 17663/1994-C. EXT.P.4: COPY OF THE NOTIFICATION NO. 15767/ADMN.II (2)/92/LAW DTD. 06/10/1995 OF THE R.2. EXT.P.5: COPY OF THE CIRCULAR NO. 69803/SA1/97/GAD DTD. 26/07/97 OF THE R.1. EXT.P.6: COPY OF THE ORDER G.O. (MS).NO.468/97/LAW DTD. 04/12/97 ISSUED BY THE GOVERNMENT OF KERALA. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-= O.P.Nos. 14913/1997, 4567/1999 & 34360/2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-= Dated this, the 10th December, 2008. J U D G M E N T The petitioner in all these original petitions are the same person. In O.P.No. 14913/1997, he raised a claim for appointment to the post of Legal Assistant Grade II in the Law Department of the Government Secretariat, which is a post borne on the Kerala Secretarial Subordinate Service, when the appointing authority did not follow the rotation prescribed in the Special Rules. In the Special Rules, the post of Legal Assistant Grade II in Law Department of Government Secretariat was to be filled up from four different sources. (i) Direct recruitment, (ii) from among Assistant Tamil and Kannada Translators, (iii) by promotion from Kerala Secretarial Subordinate Service and (iv) by transfer from any category in any department of Government or from High Court. For the purpose of prescription of ratio, these four were grouped into two groups, (i) and (ii) in one group and (iii) and (iv) in another group and from each category, 50% of the vacancies have to be filled up from each group. From among (iii) and (iv), there was internal ratio of 3:2. The Special Rules also provided for a rotation for appointment from the four categories as follows: “1st vacancy By the method specified in item (i) or (ii) of the method of appointment. 2nd Vacancy By the method specified in item (iii) of the method of appointment. 3rd Vacancy By the method specified in item (i) or (ii) of the method of appointment. 4th Vacancy By the method specified in item (iii) of the method of appointment. 5th Vacancy By the method specified in item (i) or (ii) of the method of appointment. O.P. No. 14913/97 etc. -: 2 :- 6th Vacancy By the method specified in item (iii) of the method of appointment. 7th Vacancy By the method specified in item (i) or(ii) of the method of appointment. 8th Vacancy By the method specified in item (iv) of the method of appointment. 9th Vacancy By the method specified in item (i) or (ii) of the method of appointment. 10th Vacancy By the method specified in item (iv) of the method of appointment.” 2. Selection was made for appointment to that post from various categories. Two merit lists were drawn up for appointment from among Kerala Secretarial Subordinate Service and from other departments under the Government. A list of 11 persons from the Kerala Secretarial Subordinate Service was prepared and a list containing 73 persons from the departments under the Government was prepared. Complaining that appointments have been made in violation of the rotation prescribed in the Special Rules, the petitioner filed O.P.No. 14913/1997 in which, in C.M.P. No. 39090/1997, this Court passed an interim order dated 2-2-1998 as follows: “It is submitted by the learned Government Pleader that the rank No. 7 was appointed and the above appointment was cancelled because the candidate did not join duty. The petitioner and the rank No. 7 belong to same group. Thereafter rank Nos. 8, 9 and 10 were appointed. The petitioner is rank No. 11 and he can very well be appointed in the vacancy which was caused due to the non joining duty by rank No. 7. Therefore, the first respondent is directed to issue appointment orders to the petitioner within two weeks from the date of receipt of a copy of this order.” Pursuant thereto, the petitioner has been appointed. Nobody now disputes the right of the petitioner to be appointed in accordance with O.P. No. 14913/97 etc. -: 3 :- that interim order. As such, O.P.No. 14913/1997 is only to be disposed of in terms of the said interim order. 3. In O.P.No. 4567/1999, the claim of the petitioner is regarding seniority over the 2nd respondent therein. The contention of the petitioner is that when the petitioner was appointed in the vacancy resulting from non-joining of duty by Sri. Mohanan from the same category, he should get seniority as available to a person appointed to that vacancy, which, according to the petitioner, would be above the 2nd respondent. 4. Pursuant to the interim order in O.P.No. 14913/1997, the petitioner was appointed by Ext. P3 order dated 20-2-1998 (in O.P.No.4567 of 1999). The petitioner filed Ext. P4 representation claiming seniority over others, which was partially granted by Ext. P5 order. Still dissatisfied, the petitioner filed another representation and pursuant to Ext. P6 judgment, the Government passed Ext. P7 order rejecting the claim of the petitioner for seniority over the 2nd respondent. The petitioner is challenging that order in O.P.No. 4567/1999. 5. As I have already stated, the contention now raised by the petitioner is that since he was eligible to be appointed to the 7th vacancy, the petitioner should have been given the seniority to be given to the person to be appointed in the 7th vacancy. I am unable to accept the contention of the petitioner in this regard. Originally by Ext. P2(a) order dated 4-12-1997, six persons were appointed. The 6th person was Sri. Suresh Babu, the 2nd respondent in O.P.No. 4567/1999 over whom the petitioner is claiming seniority. The petitioner does not challenge the rotation adopted in that order. The petitioner was entitled for appointment only on account of the person who was appointed to the 7th vacancy not having joined duty. All what O.P. No. 14913/97 etc. -: 4 :- the petitioner can aspire for is to be appointed in the resultant vacancy of non-joining duty of that person, which was actually granted to the petitioner by appointing him pursuant to the interim order in O.P.No. 14913/1997. That does not automatically follow that the petitioner should be given seniority also as available to that person who did not join duty had he joined duty. As rightly pointed out in Ext. P7 order, under such circumstances, the seniority has to be decided as per the general rules under the Kerala State and Subordinate Service Rules for determining seniority. Under Rule 27 (a) of Part II of the K.S & S.S.R, seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such service, class, category or grade. In this case, the petitioner was appointed by Ext. P3 order dated 20-2-1998 whereas the 2nd respondent was appointed by Ext. P2(a) order dated 4-12- 1997. Therefore, the petitioner is entitled to seniority only accordingly. That has been correctly given to the petitioner as per Ext. P5. Legally, the petitioner cannot aspire for more. Therefore, I do not find any merit in O.P.No. 4567/1999. 6. Lastly, we come to O.P.No. 34360/2000. In the list prepared for appointment from the members of other services under the Government, the petitioner was ranked no. 11, whereas the 2nd respondent in that original petition was ranked no. 12. Their appointment was also in that order. But, subsequently, on a representation made by the 2nd respondent, he was given seniority over the petitioner on the ground that both the petitioner and the 2nd respondent obtained the same marks in the written examination and since the 2nd respondent is senior in age to the petitioner he should be preferred for the purpose of seniority. Ext. P10 is the order passed in O.P. No. 14913/97 etc. -: 5 :- that respect. The petitioner is challenging that order. 7. Admittedly, in the rank list, the 2nd respondent was ranked no. 12 whereas the petitioner was rank no. 11. The rank list has not been challenged by the 2nd respondent. That rank list has not been changed by the 1st respondent also. Appointments have also been made in accordance with that rank list. When appointments have been made in the order in the rank list, subsequently, the same cannot be changed on the ground that the 2nd respondent is senior in age in so far as he continues to remain below the petitioner in the rank list. In the above circumstances, Ext. P10 order is unsustainable. Accordingly, the same is quashed. It is declared that the petitioner is entitled to be senior to the 2nd respondent in the category of Legal Assistant Grade II in the Law Department of the Government Secretariat. In the result, O.P.Nos. 14913/1997 and 34360/200 are disposed of as above and O.P.No. 4567/1999 is dismissed. S. Siri Jagan, Judge. Tds/ O.P. No. 14913/97 etc. -: 6 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-= O.P.Nos. 14913/1997, 4567/1999 & 34360/2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-= J U D G M E N T 10th December, 2008.