Full Judgment Text
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PETITIONER:
V.A. RAMAN
Vs.
RESPONDENT:
K.V. JOHN & ORS.
DATE OF JUDGMENT: 12/02/1998
BENCH:
SUJATA V. MANOHAR, D.P. WADHWA
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
The applications for impleadment are rejected.
By Notification dated 2.2.1971, the Kerala State Public
Service Commission invited applications for appointment to
the posts of Junior Engineers in the Kerala State
Electricity Board. This Notification was issued pursuant to
the request received from the Kerala State Electricity Board
for making selections by direct recruitment to the posts of
Junior Engineers. It is an accepted position that the posts
of Junior Engineers are to be filled in the following
manner: 50% by promotion and 50% by direct recruitment. Out
of the posts to filled by direct recruitment, 40% were to be
filled by inviting applications from the open market while
10% were to be filled by inviting applications from
departmental candidates who may be qualified for that post.
Accordingly the said Notification was issued inviting
applications for the posts of Junior Engineers by direct
recruitment. By subsequent Notification of 22.3.1971 issued
by the Kerala Public Service Commission, it was clarified
that departmental candidates who are competing for the 10%
posts in the direct recruitment category will also have to
make applications as per the earlier Notification.
The Kerala State Electricity Board Addressed a letter
to the Public Service Commission explaining its urgent need
for filling the posts of Junior Engineers and requested the
Public Service Commission that since the applications from
the departmental candidates were few and the applications
from the open market were over 900. the Public Service
Commission could select the departmental candidates first so
that some posts of Junior Engineers could be manned in a
shorter time. Acceding to this request, the Public Service
Commission prepared on the basis of interview the select
list of departmental candidates in the 10% quota. The advice
letter dated 4th of June, 1971 from the Public Service
Commission to the Secretary, Kerala State Electricity Board
after giving a list of the selected candidates states, inter
alia, in paragraph 2:-
"The advice of these 12 candidates
will be provisional and their inter
se seniority vis-a-vis the open
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market candidates will be fixed
only after the finalisation of the
ranked list of open market
candidates and after advising them
against the 40% vacancies allotted
to them."
In the body of the said letter also, the Public Service
Commission has referred to the fact that each candidate
named in the letter has been informed of the selection to
the Kerala State Electricity Board. Accordingly the
appointment letters were issued to the departmental
candidates so selected. A sample letter which was issued to
the original Petitioner NO. 5 and the present Respondent
No.1 dated 17.6.1971 clearly states that he is appointed as
Acting Junior Engineer (Electrical) in pursuance of the
advice dated 4.6.1971 of the Kerala Public Service
Commission.
The open category candidates were selected by the
Kerala Public Service Commission after conducting the
written examination and the interview. Their list was
prepared by the Kerala Public Service Commission on
15.10.1971. In their case also, the Public Service
Commission issued a letter dated 23.10.1971 addressed to the
Kerala State Electricity Board forwarding the names and
stating that their appointments were provisional and their
inter se seniority vis-a-vis departmental candidates will be
fixed thereafter. After the finalisation of the list of
candidate, the Public Service Commission prepared a
seniority list of all the candidates so selected. In
prenaring this list, the Public Service Commission has also
required to take into account reservations in favour of
Scheduled Castes. Scheduled Tribes and backward classes and
other reserved category candidates under Rules 14 to 17 of
the Kerala State and Subordinate Services Rules. As between
the open category candidates and the departmental
candidates, since the ratio was 1:4, their inter se
seniority was fixed by the Public Service Commission by
putting the departmental candidate at Serial No.1 followed
by four open category, candidates and thereafter again by a
departmental candidate and so on. The final advice of the
Public Service Commission to the Kerala State Electricity
Board is by their letter of 18.1.1973 by which the Kerala
Public Service Commission forwarded the combined list of
candidates in their order of seniority from the open marked
and from the department to the posts of Junior Engineer
(Electrical) after taking care of reservations prescribed.
Thereupon the present respondent nos. 1-5 filed a writ
petition before the Kerala High Court challenging the
fixation of their seniority as advised by the Kerala Public
Service Commission. They contended that they were senior to
the open market candidates and other reserved category
candidates in view of the fact that their appointments were
make earlier. The Writ Petition was dismissed by a learned
Single Judge of the Kerala High Court. However, in appeal,
the Division Bench of the Kerala High Court has upheld their
contention. Hence, the present appeal has been filed.
The Division Bench of the Kerala High Court has placed
emphasis on Rule 27(c) of the Kerala State and Subordinate
Services Rules. The material part of Rule 27(c) is as
follows:
"Notwithstanding anything contained
in clauses (a) and (b) above, the
seniority of a person appointed to
a class, category or grade in a
service on the advice of the
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Commission shall, unless he has
been reduced to a lower rank as
punishment, be determined by the
date of first effective advice,
made for his appointment to such
class, category or grade and when
two or more persons are included in
the same list of candidates
advised, their relative seniority
shall be fixed according to the
order in which their names are
arranged in the advice list.
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Note :- The date of effective
advice in this Rule means the date
of the letter of the Commission on
the basis of which the candidate
was appointed.
Rule 27(c) requires the seniority to be determined by
the date of the first effective advice made for his
appointment by the Public Service Commission and when two or
more persons are included in such effective advice, their
seniority is to be fixed according to the order in which
their names are arranged in the advice list. The Note
clarifies the date of effective advice as being the date of
the letter of Commission on the basis of which the candidate
was appointed. The letter, in the present case, of 4.6.1971
cannot be construed as the letter giving effective advice
when the letter in terms states that the advice is only
provisional and the inter se seniority of these candidates
vis-a-vis the open market candidates will be fixed after
finalisation of the ranking list of open market candidates
and after advice of 40% vacancies allotted to them. The
effective advice in this context can only be the letter of
18.1.1973 which is the final and effective advice. It also
contains the final advice list as per Rule 27(c). The
seniority, therefore, has to be determined with reference to
the advice list forwarded by the Kerala Public Service
Commission by its letter of 18.1.1973.
The fact that the earlier letters issued by the Public
Service Commission were only provisional advice, is also
borne out by the appointment letters issued which are only
acting appointments and not regular appointments although
the candidates were regularly selected. This is because the
final advice has yet to come. The Division Bench of the High
Court, therefore, was not right in holding that the
seniority of the departmental candidates who were before it
would depend upon the date of that provisional appointment.
It is contended by learned counsel for respondent nos.
1-5 that they were never informed that they were appointed
pursuant to the provisional advice issued by the Public
Service Commission and hence they are not bound by such
advice received by the Electricity Board from the Public
Service Commission. This contention has no merit. The letter
of appointment issued to each of the respondents 1-5 clearly
states that this appointment is an acting appointment and it
is in pursuance of the advice dated 4.6.1971 of the Kerala
Public Service Commission. The Kerala Public Service
Commission had also filed an affidavit before the High Court
in which it stated that such advice was also forwarded by
the Kerala Public Service Commission to each of the
candidates.
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It was next contended by learned counsel for respondent
nos. 1-5 that the Kerala State Electricity Board framed
Rules fixing seniority as between the departmental and open
market candidates recruited directly on in 1975. It is
nobody’s case that the Public Service Commission had fixed
the seniority under the Rules which came into force in 1975.
The seniority was fixed by the Public Service Commission is
the body which is entrusted with the task of selecting
candidates and the seniority of the candidates depends upon
the order in which their names appear in the list prepared
by the Public Service Commission. The public Service
Commission has taken into account valid and relevant
considerations in preparing the list in the order of
seniority while forwarding its effective advice. Therefore,
the seniority list so prepared by the Kerala Public Service
Commission cannot be rejected.
The appeal is, therefore, allowed. The impugned
judgment and order of the Division Bench of the High Court
is get aside and the judgment and order of the learned
single Judge dismissing the writ petition is upheld. There
will, however, be no order as to costs.