IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 WP(C).No. 6725 of 2009(I) ------------------------- PETITIONER(S): ------------------ SHIJOSH, AGED 30 YEARS, S/O.SIVADASAN, VANIYATHOOR HOUSE, POST KAKKODI, CALICUT-673611. NOW WORKING AS PEN CHIEF ENGINEERS (NR) OFFICE KWA, KAKKODI BY ADV. SRI.P.V.KUNHIKRISHNAN SMT.BINDU GEORGE RESPONDENT(S): ---------------------- 1. CHIEF ENGINEER (HRD & GL), KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM. 2. MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM. 3. EXECUTIVE ENGINEER, QUALITY CONTROL DIVISION, KERALA WATER AUTHORITY, KOZHIKODE. 4. STATE OF KERALA, REP.BY ITS SECRETARY, IRRIGATION DEPARTMENT, THIRUVANANTHAPURAM. ADV. SRI.J.KRISHNA KUMAR, SC, KWA FOR R1-3 GOVT.PLEADER SRI.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.6725/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: A COPY OF THE CIRCULAR NO.KWA/JBN/E7/4506/97-VOL.II DT 23.7.2005 OF THE 1ST RESPONDENT. EXT.P2: A COPY OF THE CIRCULAR NO.KWA/JB/E7-4506/97/VOL.II DT 20.1.2006 OF THE 1ST RESPONDENT. EXT.P3: A COPY OF LETTER NO.QCD/KKD/153/09 DT 24/1/2009 FROM THE EXECUTIVE ENGINEER TO THE CHIEF ENGINEER. EXT.P4: A COPY OF THE CONSOLIDATED VACANCY POSITION OF STAFF AS ON 31/1/2009 PUBLISHED BY THE 3RD RESPONDENT DT NIL. EXT.P5: A COPY OF THE ORDER OF THE MANAGING DIRECTOR DT 16.9.95. EXT.P6: A COPY OF GO(RT0 NO.47/99/IRD DT 11.1.1999. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 6725 OF 2009 (I) ===================== Dated this the 11th day of December, 2009 J U D G M E N T By Ext.P1, applications were invited by the respondents for appointment to the post of Sanitary Chemist. Petitioner was an applicant and after selection process, Ext.P2 select list was prepared and the petitioner was assigned Rank No.9. The fact that the petitioner is the next candidate to be appointed does not seem to be a matter of dispute as that position has been taken by the respondents also in their affidavits also. 2. The controversy is whether there is a vacant post still available to appoint the petitioner, which according to the petitioner, is at Kasargod. This contention of the petitioner is raised on the basis of Exts. P3 and P4. Ext.P3 is the communication issued by the Executive Engineer to the Chief Engineer, Northern Region dated 24/1/2009, in which, it is stated that as against sanctioned strength of 8 in the Northern Region, there were only 7 Sanitary Chemists and it is also mentioned that there is one vacancy in the District Lab, Kasargod. Ext.P4 is the consolidated vacancy position of staff as on 31/1/2009 issued by WPC 6725/09 :2 : the Executive Engineer, Kozhikode, which also shows the existence of one vacancy at District Lab, Kasargod. 3. In the affidavit dated 20th of June, 2009, the 2nd respondent has taken up the position that there are only 18 posts of Sanitary Chemists. In so far as the Kasargod vacancy claimed by the petitioner is concerned, it is stated that though there is one post of Sanitary Chemist sanctioned to Kasargod Division, Sri.Murali V.D, the person posted in that post, is now working at the Quality Control Division, Aluva against the post of Water Analyst. In the affidavit dated 1st December, 2009 also, the 2nd respondent seems to be adopting the same position. 4. However, in the reply affidavit filed by the petitioner, he has produced certain documents. First one is Ext.P5, an order issued by the 1st respondent on 16/9/95. Annexure 3 to the said order shows that there are two posts of Sanitary Chemists in Kannur as against the claim in the counter affidavit that there is only one post. This document shows that the total number of posts of Sanitary Chemists is 15 as on 16/9/95. Ext.P6 is the order passed by the Government of Kerala on 11/1/99, which shows that the Government had accorded sanction for the creation of WPC 6725/09 :3 : additional four posts of Sanitary Chemists. It is relying on Exts.P5 and P6 that the counsel for the petitioner contends that there are in fact 19 posts and not 18 posts as contended by the respondents. It is argued that since the respondents themselves have accepted that the petitioner is the next man to be appointed, he should be appointed to the 19th vacancy. 5. Thus, while the petitioner claims existence of 19 vacancies in the post of Sanitary Chemist, respondents argue for the position that there are only 18 posts. Admittedly, petitioner is the next one to be appointed and therefore what is to be assessed is the correctness of the claim of the petitioner regarding the existence of a vacancy. 6. In view of the rival claims and documents that are relied on by either sides, I do not think it proper that this Court will be justified in entering into such disputed factual controversy. On the other hand, I feel it will be more appropriate that the 1st respondent considers this matter duly adverting to the relevant materials. 7. Therefore, I dispose of this writ petition directing that the 1st respondent shall examine whether any vacancy in the WPC 6725/09 :4 : category of Sanitary Chemist is available in the light of the documents referred to above and the contentions raised by the respondents in the counter affidavits about which reference has been made in the earlier portion of this judgment. If on such assessment, vacancy is found to be available as stated by the respondents themselves in the affidavits, orders of appointment shall be issued to the petitioner. Petitioner may produce a copy of this judgment before the 1st respondent, who shall consider the matter as above and pass appropriate orders with notice to the petitioner as expeditiously as possible, at any rate within 6 weeks of production of a copy of this judgment. ANTONY DOMINIC, JUDGE Rp