IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 WP(C).No. 11731 of 2010(N) ----------------------------------- PETITIONERS: ---------------------- 1.T.P.ABOORAZIK SECOND GRADE DRAFTSMAN, P.W.D ROADS SUB DIVISION, KASARAGOD. 2.NOORUDHEEN K SECOND GRADE DRAFTSMAN, P.W.D ROADS SUB DIVISION, THALIPARAMBA, KANNUR DISTRICT. 3.GABRIEL N.P SECOND GRADE DRAFTSMAN, N.H.SECTION PAYYANNUR,KANNUR DISTRICT. 4. M.V.RAMAKRISHNAN SECOND GRADE DRAFTSMAN,N.H.SECTION KANNUR. 5.SURESH KUMAR T.M SECOND GRADE DRAFTSMAN,P.W.D ROADS DIVISION, KOTTAYAM. 6.K.N.CHANDRAMATHY SECOND GRADE DRAFTSMAN, P.W.D BUILDINGS SUB DIVISION,KOTTAYAM. 7.K.G.VENUGOPAL SECOND GRADE DRAFTSMAN, P.W.D.BUILDINGS SUB DIVISION,PALI,KOTTAYAM DISTRICT. 8.C.J.JOSEPH SECOND GRADE DRAFTSMAN, P.W.D ROADS SUB DIVISION KANJIRAPPILLY,KOTTAYAM DISTRICT. 9.P.O.JOY SECOND GRADE DRAFTSMAN, P.W.D O/O.THE SUPERINTENDING ENGINEER CENTRAL CIRCLE (BUILDING &LOCAL WORKS) THRISSUR-1 BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY .2. RESPONDENTS: ----------------------- 1.STATE OF KERALA REPRESENTED BY THE SCRETARY LOCAL SELF GOVERNMENT (EW) DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2.THE CHIEF ENGINEER LOCAL SELF GOVERNMENT DEPARTMENT THIRUVANANTHAPURAM. 3.THE SECRETARY TO GOVERNMENT PUBLIC WORKS DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4.THE CHIEF ENGINEER P.W.D. (ADMINISTRATION) THIRUVANANTHAPURAM FOR R1 TO R4 BY GOVT. PLEADER SRI. ARAVIND KUMAR BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/04/2010 ALONG WITH W.P(C) NOS. 12024/2010,11789/2010 & 11737/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PKK C.T. RAVIKUMAR, J. ------------------------------ W.P(C) Nos. 11731/2010, 12024/2010, 11789/2010,11737/2010 ----------------------------------------------------------------------------- DATED THIS THE 6TH DAY OF APRIL 2010 JUDGMENT ---------------- The petitioners who are working as Second Grade Draftsman under the Public Works Department challenge the order by which they are absorbed in the Local Self Government Department as per G.O(MS) No. 42/10/LSGD dated 4.3.2010. Since common questions arise in these Writ Petitions, they are jointly heard. For the sake of convenience the documents are referred to in the order they are marked in W.P(c) No. 11731 of 2010. 2. After the formation of the new department of Kerala Local Self Government Department various posts created under the said department are being filled up by deployment and absorption. In fact, Government have abolished some posts in the Public Works and Irrigation Department and corresponding number of posts has been created in the newly formed Engineering Wing of the L.S.G.D. Admittedly all the petitioners in these Writ Petitions are directly recruited in to the service of Public Works Department and W.P(C) Nos. 11731/2010, 12024/2010, 11789/2010,11737/2010 2 they are presently holding the posts of Second Grade Draftsman included in the Kerala Engineering Subordinate Service (General Branch). While continuing there, the Special Rules for the Kerala Local Self Government Engineering Subordinate Services 2007, hereinafter referred for brevity 'the Special Rules' only, have been framed. It came into force with effect from 1.1.2008. For the purpose of considering the issues involved in these cases Rule 2 (iii) & (iv) of the Special Rules are relevant. They reads as follows: “(iii) With effect from 1st January, 2008, the members in the categories of First Grade Overseer, First Grade Draftsman, Second Grade Overseer, Second Grade Draftsman and Third Grade Overseer/ Third Grade Draftsman in the Kerala Engineering Subordinate Service may opt to be included in the respective categories in the Kerala Local Self Government Engineering Subordinate Service, and on acceptance of their option they shall be absorbed into that Service and included in the respective categories. The acceptance of option under this sub-rule shall be in the order of seniority and subject to requirement.” W.P(C) Nos. 11731/2010, 12024/2010, 11789/2010,11737/2010 3 “(iv) With effect from 1st January, 2008, those members in the categories of First Grade Overseer/First Grade Draftsman, Second Grade Overseer/ Second Grade Draftsman and Third Grade Overseer/ Third Grade Draftsman in the Kerala Engineering Subordinate Service who are found to be excess in the respective categories in that service as a result of the transfer of functions and responsibilities of the Government to the Local Self Government Institutions and on consequent fixation of staff strength and determination of number of posts required in those categories and Service, shall, suo motu be absorbed into the Kerala local Self Government Engineering Subordinate Service and included in the respective categories in the Kerala Local Self Government Engineering Subordinate Service. The absorption under this sub-rule shall be in the order of juniority and subject to requirement.” 3. Petitioners in all these Writ Petitions have not exercised option in terms of Rule 2(iii) of the Special Rules. In other words the petitioners were not willing to get absorbed in the Local Self Government Engineering Subordinate Service. In the case of non optees, the question of their absorption into Kerala Local Self W.P(C) Nos. 11731/2010, 12024/2010, 11789/2010,11737/2010 4 Government Engineering Subordinate Service would be determined as per Rule 2(iv) of the Special Rules. It is evident that the absorption under the said rule would be in the order of juniority and subject to requirement. 4. At the very outset it is to be noted that after coming into force of the Special Rules, the petitioners who are non-optees in terms of Rule 2(iii) thereof were included in the list of personnels , suo moto, to be absorbed into the Kerala Local Self Government Engineering Subordinate Service. Such a list was prepared in terms of G.O (MS) No. 27/08/PWD dated 24.7.2008 which was referred as item No. 4 in Ext. P5. Though they were included in the said list, they were ordered to be absorbed only as per Ext.P5 dated 4.3.2010. In other words, despite the inclusion in the list prepared on 24.7.2008, they continued to remain in the Public Works Department. During such continuance as per Ext. P3 order No. E.B 4(a) 12/9/08 dated 13/10/2008, 99 3rd Grade W.P(C) Nos. 11731/2010, 12024/2010, 11789/2010,11737/2010 5 Overseers in the Public Works Department were promoted to the post of 2nd Grade Draftsman. So also, as per order No. E.B 4(a) 15139/00 dated 17/06/2009, 48 candidates were directly recruited to the cadre of 2nd Grade Overseer in the Public Works Department (Ext.P4). Based on the said subsequent developments, the petitioners in W.P(c) No. 11731/2010 contend that they cannot be treated as junior most persons, any more. They would contend that the question of juniority in the department has to be decided taking note of the said subsequent induction of persons in the cadre of 2nd Grade Overseer. According to the petitioners treating them as junior most persons and then ordering their absorption as per Ext.P5 is wholly unsustainable in the said circumstances. 5. The petitioners in the other writ petitions raised yet another contention. According to them they were directly recruited in the Public Works Department and therefore, the order of posting No. E5-2002/08/CE/LSGD dated 18.3.2010 issued by the 3rd W.P(C) Nos. 11731/2010, 12024/2010, 11789/2010,11737/2010 6 respondent,the Chief Engineer, Local Self Government Department cannot be sustained. In short based on Ext.P5, they could not be absorbed into the service of the Kerala Local Self Government Engineering Subordinate Service. 6. As noticed hereinbefore as per Rule 2(iii) of the Special Rules, a cut of date was prescribed as 1.1.2008 for the purpose of exercising option to be included in the respective categories in the Kerala Local Self Government Engineering Subordinate Service. According to the petitioners they did not opt in terms of Rule 2(iii). Therefore, Rule 2(iv) of the Special Rules assumes relevance. As per the said rule, such persons would be liable to be absorbed, suo moto, on becoming surplus in absorption under this rule would be made in the order of juniority juniority and subject to requirement. The petitioners did not dispute their inclusion in the list prepared for absorption into the service of Kerala Local Self Government Engineering Subordinate Services based on Govt. W.P(C) Nos. 11731/2010, 12024/2010, 11789/2010,11737/2010 7 order dated 24.7.2008. Para.2 of Ext.P5 would reveal that the said order is nothing but an order implementing the earlier order for absorption. In other words, the personnels included in the list for absorption issued in terms of order dated 24.7.2008 have now been absorbed with immediate effect. 7. In the context of contentions raised by the petitioners, the judgment of this Court in W.P(c) No. 26833/2008 , produced as Ext.P6, assumes relevance. Paragraph 4 in Ext.P6 judgment would reveal that, inter alia, the following contentions were also raised before the Division Bench:- “ The Rules provide for transfer of those incumbents, who did not opt, based on their juniority. But, the juniority should have also been taken with reference to the date of transfer to the new Department for absorption and not with reference to the cut off date 1.1.2008” The aforesaid contentions were dealt with in paragraph 13 of the Ext.P6 judgment. It reads thus:- W.P(C) Nos. 11731/2010, 12024/2010, 11789/2010,11737/2010 8 “ The next point to be decided is the validity of the fixation of a cut off date for the purpose of identifying the persons to be sent to the L.S.G.D. Even after deployment of the optees, if there is excess staff in a cadre, juniors among the non-optees have to be deployed as per the norms fixed by the Government. For taking action in this regard, a cut off date has to be fixed. If, as claimed by the writ petitioners, the date of actual order of deployment is taken as the criteria, it is practically impossible to implement the order. Every time, the membership of a group, from among whom deployment is to be made, will change, owning to efflux of time. There will be retirement/promotions etc. In this case, a date has been fixed, which is the date of coming into force of Ext.P11 Special Rules. The fixation of such a cut off date made earlier, for deployment, has been upheld by a Division Bench of this Court in W.A No. 746/2003 and connected cases, by judgment dated 2.7.2003. We are in respectful agreement with the reasons and conclusions of the Division Bench in that case on the above point”. In the light of Ext.P6 judgment the petitioners cannot be heard to contend that juniority should have been decided with reference to the date of transfer to the new department for absorption and not with reference to the cut-off date 1.1.2008. W.P(C) Nos. 11731/2010, 12024/2010, 11789/2010,11737/2010 9 8. Evidently, the petitioners in these Writ Petitions belong to the category of II nd Grade Overseers, either promotees or direct recruits. The question of infringement of the seniority/juniority in such situations, was also considered in Ext. P6 judgment. The reasoning that the endeavour of the Government is to maintain the ratio between promotees and direct recruits or Diploma holders and degree holders, in the parent Department as also in the transferee Department, was also upheld in Ext. P6 judgment. 9. In this case, as already taken note of, the petitioners did not challenge their inclusion in the list of personals for absorption into the service of Kerala Local Self Government Engineering Subordinate Service. The learned Government Pleader submits that the petitioners did not challenge their inclusion in the said list hitherto and therefore, they cannot challenge their absorption at this distance of time. In fact, Ext.P5 can be construed only as an order implementing the earlier order whereby a list was prepared W.P(C) Nos. 11731/2010, 12024/2010, 11789/2010,11737/2010 10 for the purpose of absorption. With reference to the contentions raised by the petitioners in other Writ Petitions that they could not be absorbed in to the Kerala Local Self Government Engineering Subordinate Service as they were directly recruited into the service of Public Works Department and that the 3rd respondent is not competent to issue order of posting No. E5-2002/08/CE LSGD dated 18.3.2010 (Ext.P5 in W.P(c) 11737/10). I am of the view that they nothing but claptrap and they cannot be countenanced. A scanning of the said order would reveal that it is nothing but, an order of posting issued by the 3rd respondent pursuant to the order of absorption issued by the Government. In fact, it is issued only for implementing the decisions taken by the government and the list prepared by the government in terms of aforesaid Government Order. There is no challenge against Rule 2(iii) and 2(iv) of the Special Rules in any of the Writ Petitions. So also, the competence of the Government to order absorption in the light of the said rules W.P(C) Nos. 11731/2010, 12024/2010, 11789/2010,11737/2010 11 is also not under challenge. In such circumstances, the challenge against the posting order issued by the Chief Engineer, Local Self Government Department is absolutely unsustainable. 10. The learned counsel for the petitioner also brought to my notice that as against Ext.P6 judgment of the Division Bench of this Court, a Special Leave Petition was preferred before the Hon'ble Apex Court. Ext.P7 order would reveal that in respect of the petitioners therein, the Hon'ble Apex Court ordered maintenance of status quo. Relying on Ext.P7 order, it is contended that the petitioners are not liable to be absorbed during the pendency of the said Special Leave Petition. The contention cannot be upheld in the light of the decision of the Division Bench of this Court reported in 2009 (4) KLT 485. It is held thus:- “ Even when a decision of Division Bench of this Court, it is stayed by the Supreme Court, the Single Judge of this Court are bound to follow the decision of the Division Bench as it continues to be a binding precedent for them” W.P(C) Nos. 11731/2010, 12024/2010, 11789/2010,11737/2010 12 11. In the light of the said decision, and in the light of Ext.P6 I am of the view that the contentions raised by the petitioners cannot be upheld. In the context of the contentions paragraph 12 of Ext. P6 judgment also assumes relevance and it reads thus:- “ But, we feel that those among the petitioners, who want to remain outside, without joining the L.S.G.D, to take their chance for re-appointment in their parent Department,shall be given a chance to do that. The incumbents who prefer retrenchment to absorption in the L.S.G.D may submit their options to the Government. In that event, they shall be retrenched with right to re-appointment as and when vacancies arise in their parent Departments, according to their seniority. The representations for retrenchment shall be filed before the Government within two months from today, so that the Government can consider them and retrench the persons found surplus in their parent Department.” In the light of the above those petitioners who want to remain outside without joining the L.S.G.D and to take their chances for appointment in their parent department viz; Public Works Department, may submit such options to the Government especially, in view of the pendency of the Special Leave Petition W.P(C) Nos. 11731/2010, 12024/2010, 11789/2010,11737/2010 13 filed against Ext. P6 judgment. Needless to say that in case of receipt of any such option from the petitioners on the aforesaid lines, they shall have to be retrenched with right to re-appointment as and when vacancies arise in P.W.D Department for accommodating them in accordance with their seniority, in terms of Ext. P6 judgment. However, in such cases, such optees do not have any right to claim for payment of salary, during the interregnum. In view of the discussions above, I am of the view that there is no merit in the contentions of the petitioners and accordingly these Writ Petitions are dismissed. C.T. RAVIKUMAR JUDGE pkk