Full Judgment Text
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PETITIONER:
S. GOPA KUMAR
Vs.
RESPONDENT:
STATE OF KERALA & KERALA PUBLIC SERVICE COMMISSION
DATE OF JUDGMENT21/09/1981
BENCH:
ISLAM, BAHARUL (J)
BENCH:
ISLAM, BAHARUL (J)
PATHAK, R.S.
CITATION:
1981 AIR 2027 1982 SCR (1) 744
1981 SCC (4) 415 1981 SCALE (3)1581
ACT:
Practice and Procedure Inadvertant error in the order
of Supreme Court- If could be corrected.
HEADNOTE:
For selection of candidates for the post of junior
engineers in the Public Works Department, the State Public
Service Commission prescribed a written test in which
persons qualified in Civil Engineering could answer
questions in category I and those qualified in Mechanical
Engineering could answer questions in category II, both of
which were contained in the same question paper.
After the test and interview but before the common rank
list was prepared some candidates impugned the method of
selection alleging that the categories of Civil Engineering
branch and Mechanical Engineering branch could not be
rationally included in a common rank list.
A single Judge of the High Court directed the Service
Commission to prepare separate lists in respect of each of
the two branches. A Division Bench of the High Court
dismissed appeals of some of the aggrieved candidates
Dismissing the petition for grant of special leave
filed by one candidate this Court observed that it was open
to the petitioner to choose the Civil or Mechanical
Engineering from the "common list" prepared by the Service
Commission. When the State came to this Court for
clarification of the earlier order, this Court again said
that if the candidate’s turn came in The "common list" he
was entitled to claim the post under the earlier orders of
this Court.
Seeking clarification and directions, the State
Government prayed that the expression ’common list’ prepared
by the Public Service Commission be deleted from the earlier
orders of this Court so as to enable the Commission to
prepare separate lists in conformity with the High Court’s
directions.
^
HELD: The words "common list" mentioned in the two
earlier orders of this Court were used through inadvertance.
The High Court directed the Public Service Commission to
prepare two separate rank lists: one for Civil Engineering
Graduates and other for Mechanical Engineering Graduates on
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the basis of examination already conducted. The Public
Service Commission
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accordingly prepared two rank lists. The name of the
petitioner herein appeared A in the list of Mechanical
Engineering Graduates and he would be appointed when his
turn came. [749 C-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Special Leave Petition
(Civil) Nos. 2081-84 of 1980.
From the judgment and order dated the 23rd November,
1979 of the High Court of Kerala at Ernakulam in W.A. Nos.
149, 167, 169 and 170 of 1979.
A.S. Nambiar and P. Parameswaran for the Petitioner.
k. Sudhakaran Adv. Gen. of Kerala, V. J. Francis and
Mustafakani Rowthor for Respondent No. 2.
M. M. Abdul Khader and K.M.K Nair for Respondent no. 4,
Kerala Public Service Commission.
P. Govindan Nair and Mrs. Baby Krishnan for Respondent
No. S.
K. Prabhakaran for the Intervener.
The Judgment of the Court was delivered by
BAHARUL ISLAM, J. In these special leave petitions, the
petitioner assails the judgment and order dated 23rd
November, 1979 of a Division Bench of the Kerala High Court
dismissing a number of writ appeals. The relevant facts may
be stated thus:
2. The Kerala Public Service Commission thereinafter
’KPSC’) invited applications for filling up 130 expected
vacancies in the posts of Junior Engineers in the Public
Works Department, as per notification published in the
Kerala Gazette dated 16th May, 1978. The qualifications
specified for the posts were B.Sc. in Civil Engineering or
Mechanical Engineering of the Kerala University or its
equivalent as prescribed by the special rules of the Kerala
Engineering Subordinate Service (General Branch). The
applicants had to appear in the written test conducted by
the KPSC and there after in an interview held by it. There
was a common question paper which contained, in category I,
questions in Civil Engineering and in Category II, questions
in Mechanical Engineering. Applicants who were qualified in
Civil engineering had to answer the
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questions in Category 1, and those qualified in Mechanical
Engineering the questions in Category II.
3. After the written test and the interview, but before
a common rank list was prepared by the KPSC as was intened,
8 Writ Petitions were filed in the Kerala High Court by
applicants holding Civil Engineering degrees. By these Writ
Petitions the preparation of a common rank list and also the
procedure of the examination and a method of selection were
challenged. It was prayed in the Writ Petitions that the
KPSC be directed to effect selection and prepare and publish
separate rank lists of selected applicants holding Civil and
Mechanical Engineering degrees. It was contended in the
applications that the applicants who had qualified in Civil
Engineering question paper and answered the questions in
Category I on the one hand and those who had qualified in
Mechanical Engineering and answered questions indicated in
Category II in the question paper could not rationally be
included in a common rank list after the interview.
4. The learned Single Judge of the Kerala High Court by
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a common judgment dated 2nd April. 1979 allowed the Writ
Petitions and directed the Government of Kerala and the KPSC
to prepare "two lists, namely, one for the Civil Bench and
the other for the Mechanical Branch on the basis of
examination already conducted".
He proceeded: "With respect to it the Service
Commission has not yet published the rank list. On receiving
information from the Government on the above lines, the
Public Service Commission is directed to prepare the two
separate rank lists, one for the Civil Bench and other for
the Mechanical Branch. On publication of the two lists the
Government can request the Service Commission to advise the
candidates for appointment to these branches on the basis of
the vacancies available in these two branches."
5. The Kerala Government and the KPSC accepted the
directions given by the learned Single Judge and proceeded
to take steps for the implementation thereof. However, some
of the aggrieved respondents in the Writ Petitions filed
appeals before the Division Bench of the High Court. The
appeals were ultimately dismissed, in view of the fact that
the KPSC had advised 239 candidates according to the
separate lists for Civil and Mechanical Engineering prepared
on the basis of directions given by the learned Single Judge
and that these candidates had already been appointed.
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6. One of the respondents, Shri S. Gopa Kumar, who held
a Mechanical Engineering degree, was one of the Special
Leave Petitioners before us. He challenged the judgment of
the Division Bench of the Kerala High Court dated 23rd
March, 1979. This Court by an ex-parte order dated 23rd
April, 1980 dismissed the Special Leave Petition with the
following observations .
"The prejudice that the petitioner complains of is
taking care of by the High Court emphasizing the fact
that the petitioner is entitled to exercise his option.
It is stated that he has come high in the Common list
prepared by the Public Service Commission. It is open
to him to choose which wing, Civil or Mechanical, suits
him most. In that view, we are unable to perceive any
prejudice especially because on his option being
exercised for the general or mechanical wing, as the
case may be, he will be chosen in terms of his
willingness.
All SL.Ps dismissed."
(Emphasis supplied)
7. It may be mentioned that preparation of no common
list was directed either by the Single judge or by the
Division Bench of the Kerala High Court. On the contrary the
direction expressiy was for preparation of separate lists
for Civil Engineer and Mechanical Engineer candidates as
stated above. It has also been stated above that in
pursuance of the directions given by the learned Single
Judge in his judgment in effect upheld by the Division Bench
of the High Court, the Government and the Public Service
Commission of Kerala proceeded to prepare separate lists.
But facing difficulties, in view of the observation of this
Court in its order dated 23rd April 1980 quoted above, the
State of Kerala filed a petition before this Court for
clarifications. This Court passed the following order dated
11th November, 1980:
"We have heard learned Advocate General and Shri
A.S. Nambiar on the modification or clarification
sought. The actual position has already been explained
in the order by this Court dated 28.4.80. There it has
been stated clearly that the petitioner will be
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entitled to exercise his option and then take his turn
according to his rank in the common list prepared by
the Public Service Commission.
748
Therefore the petitioner will be entitled to a
post, if he has exercised his option in terms of this
Court’s order and he is high enough in the common list
for claiming the post. We have no idea, nor are we
concerned, whether such a vacancy has arisen. If a post
has become vacant and the petitioner’s turn comes in
the common list he is entitled to claim that post under
the orders of this Court . .
8. The above order, as it appears, also refers to a
common list although no common list was directed to be
prepared or was prepared by the KPSC. This was obviously an
inadvertent mistake.
9. Since there was no common list and since no option
was given to the Special Leave Petitioners before us by the
judgment of the Kerala High Court, the KPSC faced
difficulties in giving effect to the directions given by the
High Court. The KPSC therefore has made the Misc. Petition
before us for clarifications and directions, particularly
praying that the expression "the common list prepared by the
Public Service Commission should be deleted."
10. We have heard learned counsel of the parties and
perused the judgments of the Kerala High Court passed by the
learned Single Judge and the Division Bench. This Court by
its order dated 28th April, 1980 dismissed all the S.L.Ps.
with observations referred to above. This order as well as
the order dated 11th November, 1980 has been subsequently
recalled by this Court by its order dated 7th April, 1981,
and we do not find any valid ground to reverse the judgments
of the High Court. But in view of the difficulties faced by
the KPSC and the Government of Kerala, it is necessary to
clarify the position and give necessary directions.
11. Clause 4 of the Government order No. G.O.MS.
101/79/PWD&E dated 27th September, 1979 the Government
constituted the Kerala Engineering Service (Mechanical
Branch) and Kerala Engineering Subordinate Service
(Mechanical Branch) with posts prescribed therein. It reads
thus:
"Government also order that all those who have
submitted unconditional options and who possess the
required qualifications prescribed in the rules will be
appointed by transfer to the respective service. In the
case of any category for which the number of options is
more than the
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appointment by transfer aud the junior persons will be
admitted, to the services as and when vacancies arise.
In case where the number of officers who had submitted
options is less than the number of posts, the remaining
vacancies will be provided by direct recruitment as
provided in rule (9) of the respective special rules.
The Chief Engineer & R will implement the above orders
forthwith."
Clause 4 gave unconditional options to those in the
Kerala Engineering Service (General Branch) to remain in the
said branch or to choose the newly constituted Kerala
Engineering subordinate Service (Mechanical Branch). As
stated earlier the Kerala Government or the KPSC was not
directed to prepare a common list. Common List was referred
to in the earlier orders in this Court through certain
misapprehensions. The KPSC has stated in its counter
affidavit to the S.L.P. filed by Shri S. Gopa Kumar against
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the judgment of the High Court that there were directions to
the KPSC to prepare two separate rank lists one for Civil
Engineering graduates and the other for Mechanical
Engineering graduate on the basis of examination already
conducted. Accordingly the KPSC prepared the two rank lirts-
one for Civil Engineering and other for the Mechanical
Engineering graduates. The name of Gopa Kumar appears in the
latter list. The rank list for Engineering (Civil) contains
names of 152 candidates and the other (Mechanical) contains
202 candidates. All the Civil Engineering selected have
already been appointed. Shri Gopa Kumar’s lank was 138 in
the rank list of Engineers (Mechanical). He will be
appointed when his turn comes.
We think that the Division Bench of the High Court was
right in dismissing the writ appeals, having regard to the
developments which have taken place.
Accordingly, the special leave petitions are dismissed.
There is no order as to costs.
P.B.R. Petitions dismissed.
750