IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 OP.No. 9738 of 1999(H) --------------------------------- PETITIONERS: --------------------- 1. MURALEEDHARAN.C.K., TECHNICAL ASSISTANT (KHADI), DISTRICT KHADI & VILLAGE INDUSTRIES OFFICE, ERNAKULAM. 2. CHANDINI.K.K, TECHNICAL ASSISTANT (KHADI), DISTRICT KHADI & VILLAGE INDUSTRIES OFFICE, ERNAKULAM. BY ADV. SRI.N.K.KARNIS. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF INDUSTRIES, TRIVANDRUM. 2. THE KERALA KHADI AND VILLAGE INDUSTRIES BOARD, REPRESENTED BY ITS SECRETARY, TRIVANDRUM. 3. K.S. PRADEEP KUMAR, TECHNICAL ASSISTANT (KHADI), KERALA KHADI AND VILLAGE INDUSTRIES BOARD, GRAMA SOUBHAGYA, VANCHIYOOR.P.O., TRIVANDRUM. 4. THULASEEDHARAN PILLAI.R., TECHNICAL ASSISTANT (KHADI), DISTRICT KHADI AND VILLAGE INDUSTRIES OFFICE, KHADI GRAMA SOUBHAGYA, KOLLAM -691001. *ADDL.R5. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, TRIVANDRUM -4. * IS IMPLEADED AS ADDL.R5 AS PER ORDER DTD. 06/03/07 IN C.M.P. NO. 34400/00. R1 BY GOVERNMENT PLEADER SRI. M.R. SABU, R2 TO R4 BY ADV. SRI. V.V. JOSHI, ADDL.R5 BY ADV. SRI. ALEXANDER THOMAS, S.C. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 9738/1999-H: ORDER ON C.M.P. NOS. 16038/1999 & 23131/1999 IN O.P. NO. 9738/1999-H CLOSED 05/11/2008. SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPOINTMENT ORDER OF THE R.2. DTD. 25/03/1991. EXT.P.2: COPY OF THE COMMUNICATION ISSUED BY THE PUBLIC SERVICE COMMISSION TO THE R.2. DT. 13/03/92. EXT.P.3: COPY OF THE PAGE NOS. 26 AND 27 OF THE DRAFT GRADATION LIST PUBLISHED BY THE R.2. AS ON 01/01/1992. EXT.P.4; COPY OF THE REPRESENTATION SUBMITTED BY THE P.1. BEFORE THE R2. DTD. 08/05/1995. EXT.P.5: COPY OF THE REPRESENTATION SUBMITTED BY THE P.2. BEFORE THE R.2. DTD. 08/05/1995. EXT.P.6: COPY OF THE FORWARDING LETTER OF THE PROJECT OFFICER, DISTRICT OFFICE, ERNAKULAM TO THE R.2. DT. 03/01/1997. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 9738 OF 1999 ---------------------------------------- Dated this the 5th day of November, 2008 JUDGMENT The dispute in this original petition is regarding seniority as between the petitioners on the one hand and respondents 3 and 4 on the other in the post of Technical Assistant (Khadi) in the Khadi and Village Industries Board. The selection to the said post was made by the Kerala Public Service Commission. The following three qualifications were prescribed for the post. (i) Pass in S.S.L.C. Or equivalent examination; (ii) Diploma in Textile Technology recognised by the Government of Kerala; and (iii) Successful completion of training in Khadi Spinning and Weaving in any of the training centres recognised by the Khadi and Village Industries Board for conducting such training. It was also stated in the notification inviting applications that in the absence of candidates possessing all the three qualifications, the candidates possessing the first two qualifications will be selected for appointment. Respondents 3 and 4 applied for O.P.No.9738/99 2 selection claiming that they possessed all the three qualifications. The PSC prepared two rank lists. The first list was of persons having all the three qualifications and the other list was of persons having only the first two qualifications. Respondents 3 and 4 were the only persons, who claimed to possess all the three qualifications and therefore they were included in the first list. After almost seven years of appointment of respondents 3 and 4 the PSC found out that the certificates produced by respondents 3 and 4 regarding their third qualification were not genuine certificates, as prescribed. Therefore, it was found that respondents 3 and 4 did not possess the third qualification and therefore, they should also have been included only in the second list. However, since the period prescribed under Rule 3(c) of the Kerala State and Subordinate Service Rules for cancellation of the advice was over, the PSC requested the appointing authority to take appropriate steps against respondents 3 and 4. 2. Later on one Sri. T.K. Mohanan challenged the appointment of respondents 3 and 4, by filing O.P.No.15483/1992, in which a learned Single Judge of this O.P.No.9738/99 3 Court permitted the P.S.C. to take further action in the matter. Against that judgment, respondents 3 and 4 preferred W.A. No.554/1993, in which this Court held that after seven years, cancellation of appointment on the ground that initial appointment was wrong is not proper. That decision is reported in the decision of this Court in Pradeep Kumar V. Mohanan [1998(1) KLT 414]. 3. Thereafter the 2 nd respondent published a draft gradation list of its staff as on 1.1.1992, in which respondents 3 and 4 were shown above to the petitioners. Although the petitioners filed objections to the same, the same were not considered. It is under the above circumstances that the petitioners have approached this Court seeking the following reliefs: “(a) Call for the records relating to Exts.P1 to P6 from the 2 nd Respondent. (b) To issue a writ of mandamus or other appropriate writ, direction or order directing the 2 nd Respondent to refix the seniority of the petitioners placing the petitioners above the Respondents 3 and 4 in Ext.P3 gradation list; (c) To issue a writ of certiorari or other appropriate writ direction or order declaring that the petitioners are seniors to Respondents 3 and 4 in the post of Technical Assistant (Khadi) under the 2 nd Respondent”. O.P.No.9738/99 4 4. In view of the averments in the original petition, I passed the following order on 6.3.2007: “There would be a direction to the Public Service Commission to ascertain whether, if respondents 3 and 4 were to be included in the list of persons who do not have the training qualification for selection to the post of Technical Assistant (Khadi), what position they would have obtained in that list based on their ranking. This shall be done within three weeks. Post after three weeks.” In answer to the same, the PSC has filed a counter affidavit stating that since the selection was 18 years back, the Commission does not have the files relating to the selection and is not in a position to stay anything on the issue either way. 5. Even if they were excluded from the first list they were eligible to be included in the second list. In the absence of the marks obtained by them it cannot now be said with any amount of certainty as to whether they would have been above or below the petitioners if they were so included. In the above circumstances, since the delay in approaching this Court was partly due to the petitioners also, I O.P.No.9738/99 5 am not inclined to entertain the challenge against the seniority given to respondents 3 and 4 at this point of time. Accordingly, the original petition is dismissed. S. SIRI JAGAN, JUDGE Acd