IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 WP(C).No. 14795 of 2009(T) -------------------------- PETITIONER(S): ---------------------- 1. M.ALEXANDER, FORMERLY WORKING AS ASSISTANT ENGINEER,GROUND WATER DEPARTMENT, KOLLAM. 2. THOMAS MATHEW,ASSISTANT ENGINEER,GROUND WATER DEPARTMENT,KOTTAYAM. 3. K.T.MURALI,ASSISTANT ENGINEER, GROUND WATER DEPARTMENT,THIRUVANANTAHPURAM. 4. P.BABU,FORMERLY WORKING AS ASSISTANT ENGINEER,GROUND WATER DEPARTMENT,MALAPPURAM. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENT(S): ----------------------- 1. STATE OF KERALA,REPRESENTED BY THE CHIEF SECRETARY,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR,GROUND WATER DEPARTMENT, JALA VIGNANA BHAVAN,AMBALAMUKKU, THIRUVANANTHAPURAM. 3. WATER RESOURCES(GW)DEPARTMENT, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY. ADDL.R4. NANDA KISHORE P.V.R, S/O.DR.P.V.RAMNARAYAN, AGED 28 YEARS, AT PRESENT RESIDING AT 9E, SOUBHAGYA APARTMENTS, INDIRA GANDHI ROAD, PUTHIYIRA, KOZHIKODE 673 004. (ADDL.R4 IS IMPLEADED AS PER ORDER IN IA NO.8711/2010 DATED 16.07.2010) GOVERNMENT PLEADER SRI.ANTONY MUKATH SRI.SHAJI P.CHALY FOR ADDL.R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/07/2010, ALONG WITH WP(C) NO.15117/09, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.14795/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER DT 6.12.2006 ISSUED BY THE SECOND RESPONDENT. EXT.P2: TRUE COPY OF THE LETTER DT 9.6.08 AND 18/6/2008 CONTAINING THE REPORT OF INSPECTION. EXT.P3: TRUE COPY OF THE JUDGMENT DATED 11.7.2008 IN WPC NO.18487/2008. EXT.P4: TRUE COPY OF THE FILE ISSUED TO THE PETITIONERS UNDER THE RIGHT TO INFORMATION ACT DT 2.3.09. EXT.P5: TRUE COPY OF THE NOTICE DT 6.1.2009. EXT.P6: TRUE COPY OF THE HEARING NOTES SUBMITTED BY THE SECOND PETITIONER DT 17.1.09. EXT.P7: TRUE COPY OF THE HEARING NOTES SUBMITTED BY THE SECOND PETITIONER DATED 17.1.09. EXT.P8: TRUE COPY OF THE ORDER DT 22.5.2009. EXT.P9: TRUE COPY OF THE ORDER DT 25.5.2009. EXT.P10: TRUE COPY OF THE LETTER DT 30.5.2009 ISSUED BY THE DISTRICT OFFICER, KOTTAYAM, TO THE 2ND RESPONDENT. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NOS. 14795 & 15117 OF 2009 ========================== Dated this the 27th day of July, 2010 J U D G M E N T WP(C) No.14795/2009 Petitioners were working as Master Drillers under the Ground Water Department. By Ext.P1 order, they were promoted to the post of Assistant Engineers on a provisional basis and on condition that they will be reverted when PSC hands are available. Subsequently, based on Ext.P2 report of the inspection conducted by the Finance Inspection (Non technical) Department to the effect that the promotions given to them were irregular, they apprehended reversion to the post of Master Drillers. At that stage, WP(C) No.18487/08 was filed before this Court and the writ petition was disposed of by Ext.P3 judgment clarifying that if the petitioners are proposed to be reverted, they will be given notice in that regard and heard by the Department before orders are passed. 2. Accordingly, they were issued Ext.P5 notice requiring them to appear for a hearing on 17/1/2009. It is stated that in pursuance thereof, they appeared before the 1st respondent and WPC Nos.14795 & 15117/09 :2 : submitted Exts.P6 and P7 hearing notes. However, Ext.P8 order was issued by the 1st respondent directing the 2nd respondent to revert the petitioners with effect from the date of promotion and to take urgent necessary steps to recover the financial loss sustained to the Government on account of their promotion. In pursuance to Ext.P8, 2nd respondent issued Ext.P9 proceedings according sanction for reversion of the petitioners and ordering recovery of the loss sustained to the Government. It is on the issuance of Ext.P9 that this writ petition was filed challenging Exts.P8 and P9. 3. One of the contentions raised is that before Ext.P5 notice of hearing was issued on 6/1/2009, petitioners were already ordered to be reverted as early as on 18/10/2008 and therefore, the notice was issued and they were heard, when a decision was already taken to revert the petitioners. This contention is raised referring to Ext.P4 note, which was obtained by the petitioners invoking the provisions of the Right to Information Act. The other contention raised is that under the Special Rules applicable, the post is to be filled up in the ratio of 1:1 by promotion and direct recruitment. It is contended that the WPC Nos.14795 & 15117/09 :3 : promotion quota is to be filled up in the ratio of 6:3:1 among graduates, diploma holders and certificate holders. It is stated that out of the 9 posts earmarked for promotion, one post is to be filled up from among certificate holders, and that, if so, one of the petitioners is entitled to be accommodated against that quota. It is stated that having regard to the fact that petitioners 1 and 4 have retired during the pendency of the writ petition, the only surviving claim now is that of the third petitioner. It is contended that due to absence of eligible hands for promotion or appointment from the other categories, they should be allowed to continue as Assistant Engineers. 4. Learned Government Pleader submits that under the Special Rules, the maximum post available for certificate holders is one post. It is stated that at the time when the petitioners were promoted, there was already one certificate holder occupying the post of Assistant Engineer. It is stated that, therefore, the very promotion of the petitioners by Ext.P1 was erroneous. Additional respondent who got himself impleaded submits that PSC has conducted selection and published a rank list and he is included in the said list. It is stated that the appointment of the petitioners WPC Nos.14795 & 15117/09 :4 : evidenced by Ext.P1 was on condition that they will be reverted once the PSC hands are available. It is stated not only that the promotion of the petitioners is irregular for the reason stated in Ext.P2 report, in any case, they are liable to be reverted since PSC candidates are available. 5. Admittedly, the petitioners are certificate holders. Their claim for promotion can only be to the one post earmarked for certificate holders. If as stated by the learned Government Pleader, there was already one person occupying the post in that quota, there could not have been further promotion of certificate holders. On the other hand, if as stated by the petitioners, that person has retired and the post has fallen vacant, it is up to the appointing authority to consider the eligibility of the petitioners in terms of the Special Rule and to promote either of them. Therefore, at any rate, the promotion of the petitioners at the time when certificate holders was already in place, was impermissible and if the post held by them were to be filled up by direct recruitment, the Appointing Authority should have reported those vacancies to the PSC and the PSC is to advice candidates from the list which is currently available. WPC Nos.14795 & 15117/09 :5 : 6. Therefore, writ petition is disposed of directing the 2nd respondent to assess whether any vacancy in the promotion quota is available to be accommodated by certificate holders, and if so, consider the case of the certificate holders including the petitioners and also to report the vacancies, if any, available in the direct recruitment quota to the PSC to advice candidates from the ranked list that is available. This process shall be completed within 2 months. 7. Ext.P8 shows that the petitioners were to be reverted and the pecuniary loss suffered by the Government is to be recovered. Having regard to the fact that the petitioners were promoted and they discharged the duties and received wages for the work they did, and also since two of them have retired, I do not find any justification for ordering recovery from the amount paid to the petitioners. Therefore, respondents shall not recover any amount paid towards the salary and allowances to the petitioners. 8. However, in respect of those who have retired, it is directed that it will be open to the respondents, if necessary, to revise the terminal benefits that are payable on the basis that WPC Nos.14795 & 15117/09 :6 : they retired from service as Master Driller. WP(C) No. 15117/2009 9. The claim of the petitioner is that if the third petitioner in WP(C) No.14795/2009 is promoted as Assistant Engineer, he is entitled to be promoted to the post of Master Driller. The fortunes of this petitioner will depend upon the implementation of the directions in the judgment in WP(C) No.14795/2009. In view of the above, this writ petition is disposed of directing that depending upon the outcome of the direction in the judgment in WP(C) No.14795/09, if warranted, appropriate orders will be passed by the Director. Writ petitions are disposed of as above. ANTONY DOMINIC, JUDGE Rp