Kerala Public Service Commission v Aby Thomas, Sunitha John, Smija P.S., Sreejina K.V., and Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 16[TH] DAY OF AUGUST 2023 / 25TH SRAVANA, 1945 WA NO. 1386 OF 2023** **AGAINST THE ORDER DATED 26.05.2023 IN WP(C) 15855/2023 OF** ## **HIGH COURT OF KERALA** ## **APPELLANT/2ND RESPONDENT:** KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM, PIN - 695004 BY ADV P.C.SASIDHARAN ## **RESPONDENT/PETITIONERS & RESPONDENT NO.1:** 1 ABY THOMAS AGED 30 YEARS, S/O THOMAS, PATTASHERIL, PULIKKAL MALA, DYMOCK, PERIYAR, IDUKKI, PIN - 685533 2 SUNITHA JOHN AGED 32 YEARS, D/O.JOHN MATHAI, MULAKULAM HOUSE, KANDANAD.P.O., THIRUVANKULAM, ERNAKULAM., PIN - 682305 3 SMIJA.P.S AGED 36 YEARS, W/O.DHANESH.P.RAJAN, PANIKKATHVEETTIL, VARAKKARA, AMBALLUR, MUKUNDAPURAM, THRISSUR., PIN - 680302 4 SREEJINA.K.V, AGED 33 YEAR, D/O.RAJENDRAN.O.K., KUNDUVALAPPIL, MOORIKOVVAL, PAYYANNUR.P.O., KANNUR., PIN - 670307 5 KERALA STATE ELECTRICITY BOARD - REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM., PIN - 695004 BY ADV ZAKEER HUSSAIN ## **OTHER PRESENT:** SRI. B.PREMOD-SC, SMT.K.A .SANJEETHA-R1 TO R4 **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **16.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS & C. JAYACHANDRAN, JJ.** **---------------------------------------------------------------------------** W.A. No. 1386 of 2023 _[arising out of the judgment in WP(C)No. 15855/2023 dated 26.05.2023 ]_ **----------------------------------------------------------------------** Dated this the 16[th] day of August, 2023 ## **J U D G M E N T** ## **Alexander Thomas, J.** The instant intra-court appeal, instituted under Section 5(i) of the Kerala High Court Act, is directed against the impugned interim order dated 26.05.2023 rendered by the learned Single Judge in W.P.(C)No. 15855/2023. The sole appellant herein (KPSC) is the 2[nd] respondent in the W.P.(C), R1 to R4 herein are the writ petitioners in the W.P.(C) and R5 herein (KSEB) is the R1 in the W.P.(C). **2.** Heard, Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission ('KPSC' for short), appearing for the appellant, Smt.K.A.Sanjeetha, learned counsel appearing for contesting respondents 1 to 4 herein/writ petitioners and ## W.A.No.1386/2023 ## -: 2 :- Sri.B.Premod, learned Standing Counsel for the Kerala State Electricity Board Limited ('KSEBL' for short) appearing for R5 herein. **3.** The prayers in the instant Writ Petition (Civil), W.P. (C)No. 15855/2023, filed by the respondents 1 to 4 herein, are as follows: i) To issue a writ of certiorari or other appropriate writ, order or direction, quashing rejection of petitioners' application as per Ext.P16 to P19 for the post of Assistant Engineer (Electrical) in Kerala State Electricity Board. ii) To declare that the petitioners are entitled to be considered for the post of Assistant Engineer (Electrical) in the 10% quota set apart for engineering graduates working in the Kerala State Electricity Board as per Ext.P15 order. iii) To issue a writ of Mandamus or other appropriate writ order or direction commanding to the 2nd respondent to accept petitioners' application and consider the same for appointment to the post of Assistant Engineer (Electrical) on the basis of their qualification; iv) Grant such other reliefs as may be prayed for and as the Court may deem fit to grant and v) Grant the cost of this Writ Petition. ## **4.** The interim prayer in the above W.P.(C) is as follows: Pass an interim order directing the 2nd respondent to accept the petitioners' application and consider the same for appointment to the post of Assistant Engineer (Electrical) on the basis of their qualification pending disposal of the Writ petitioner. ## **5.** The learned Single Judge, at the time of admitting the W.A.No.1386/2023 -: 3 :- above W.P.(C), has rendered the interim order dated 26.05.2023, directing R2 in the W.P.(C) (KPSC), to accept the applications of the writ petitioners and consider the same for appointment to the post of Assistant Engineer (Electrical) on the basis of their qualifications, provisionally. Further that, appointment, pursuant to this interim order, shall be made only after obtaining further orders from this Court. The operative portion of impugned interim order dated 26.05.2023, rendered by the learned Single Judge in the above W.P. (C), are as follows: “Admit. Respective standing Counsel takes notice for the respondents. There will be an interim order directing the 2nd respondent to accept the petitioners' application and consider the same for appointment to the post of Assistant Engineer (Electrical) on the basis of their qualifications, provisionally. Appointment pursuant to this interim order shall be made only after obtaining further orders from this Court.” A brief reference to the core facts of this case will be pertinent. **6.** According to the writ petitioners, they are holding the post of Meter Readers in the respondent Kerala State Electricity Board (KSEB) and that they have already acquired the Engineering Decree qualification in the branch of Electrical Engineering. That, W.A.No.1386/2023 -: 4 :- the KPSC has issued Ext.P13 Selection Notification dated 29.04.2023, wherein, it has been, _inter alia,_ provided in Clause No.5 thereon, related to the method of appointment, that recruitment is by-transfer under the 10% in-service quota and candidates should have declared probation or be an approved probationer in KSEBL, as on the date of the application. The last date of submission of application was 31.05.2023. That, the writ petitioners had the right to submit their online applications, in pursuance of Ext.P13 Selection Notification, but the same was not accepted by the Software system of the KPSC website, inasmuch as, the petitioners have not declared in the online system of application that they have already successfully completed the probation in the abovesaid post of Meter Reader. That, as a matter of fact, though all the writ petitioners were regularly appointed in the post of Meter Reader in KSEBL in the month of February 2023, their probation period had not yet been completed and hence, they could not declare in the online system that the probation period is over. Their further case is that, Ext.P15 is the Rules of recruitment framed by the respondent W.A.No.1386/2023 -: 5 :- KSEBL, and that as per Ext.P15, Rules framed as per Board Order No.EC-IV-17428/70 dated 09.12.1970, stipulated by the KSEB, that 40% of the vacancies of Junior Engineers in the KSEB will be filled up by direct recruitment of candidates in the open market and 10% of such vacancies will be utilized by direct recruitment of Engineering Graduates, who are in the service of the Board, etc. The other details of Ext.P15 norms are not important for the present purposes. The petitioner would contend that, in essence, the method of appointment in the 10% quota is by direct recruitment of employees, who are in the service of the Board and who have Engineering Degree as on the relevant records date. That the issue is no longer resintegra and it has been held by the Single Bench of this Court, as per Ext.P21 judgment dated 28.03.2017 in W.P. (C)No.28317/2016 in the case **Sanal Kumar P J & Ors v. Kerala State Electricity Board Limited & Ors** [2017 (2) KLT 893], has held in an identical situation that the above said 10% quota is by the method of appointment of direct recruitment of employees who are in the service of the Board and who have Engineering Degree W.A.No.1386/2023 -: 6 :- qualification and that it cannot be construed as a by-transfer quota and that therefore, the requirements of by-transfer quota in that the applicant should be an approved probationer/full member, as conceived in KS&SSR, is not required, inasmuch as, the method of appointment is by direct recruitment and not by by-transfer. Accordingly, similar candidates were given the benefit of participation in the selection process, even though, they were neither approved probationers or full members in the post held by the KSEBL. The KPSC, thereafter, issued a corregendum, to the Selection Notification concerned, as per Ext.P22 dated 09.05.2017, including the names of the successful writ petitioners therein in the Ranked List, in compliance to Ext.P21 judgment. Accordingly, the counsel for the petitioners would urge that the matter in issue is squarely and fully covered by the dictum laid down in Ext.P21 judgment in **Sanal Kumar P. J.** 's case supra and that therefore, the interim order rendered by the learned Single is fully justified. **7.** Per contra, Sri.P.C.Sasidharan, learned counsel for the Kerala Public Service Commission, appearing for the appellant, W.A.No.1386/2023 -: 7 :- would submit that the Selection Notification in this case is very specific and categoric, as can be seen from a reading of Ext.P13 Selection Notification dated 29.04.2023, where it has been stipulated that the method of appointment is by by-transfer appointment under the 10% in service quota and candidates should have declared probation or be an approved probationer in the KSEBL, as from the date of application and that the notification is binding on the KPSC as well as, all the candidates, who have applied in pursuance thereto. That, the petitioners could not submit their applications in the online mode, within the last date and now their applications in paper will have to be accepted by the KPSC, etc. **8.** After hearing both sides, we are of the view that a strong _prima facie_ case has been made out by the writ petitioners, in view of Ext.P21 judgment, which has been complied with by the KPSC, as per Ext.22 Erratum Notification, in respect of the previous selection. The Ext.P15 Rules of recruitment of the KSEBL is quite clear and categoric, inasmuch as the 10% quota is set apart for direct recruitment of employees in service of the KSEBL and who have ## W.A.No.1386/2023 -: 8 :- Engineering Degree qualification. _Prima facie_ , the case is made out, on the basis of Ext.P21 judgment, inasmuch as there is a fine distinction between the method of by-transfer appointment and the method of direct recruitment. Therefore, restrictions of by-transfer appointment need not necessarily be imported in the case of direct recruitment, though the Rule of eligibility is for employees who are in service of the employer organization. Accordingly, we find that a strong _prima facie_ case has been made out by the writ petitioners in the W.P.(C). Further, if no interim order is passed, then the selection process will go on and it will lead to futile plea whereby, the claims of the writ petitioners will become rather difficult to be enforced. Therefore, both the prima facie case and the balance of convenience is tipped in favour of the writ petitioners. True that, the learner Single Judge has not shown any reasonings for granting the interim order. Since, the matter is an intra court appeal, we have heard both sides and we are constrained to appreciate that the strong _prima facie_ case and balance of convenience is made out in favour of the writ petitioners and therefore, the conclusion arrived at W.A.No.1386/2023 -: 9 :- by the learned Single Judge need not be disturbed, in exercise of the discretion conferred for the intra court appellate process. **9.** However, it is ordered that, in case the respondentKPSC, completed the pleadings by filing a counter affidavit etc., then, they may seek for early hearing of the main matter in the W.P. (C), which may be duly considered by the learned Single Judge, inasmuch as the matter involves further steps to be taken for the selection process and therefore, the matter need not be kept pending. It is all the more so, since the writ petitioners have a specific case that the matter in issue is covered in their favour, as per Ext.P21 judgment. We make it clear that, we have appreciated only the _prima facie_ nature of the case and the balance of convenience and all conditions available to both sides are left open to be raised and decided in the main matter in the W.P.(C). The main matter in the W.P.(C) may be decided by the learned Single Judge untrammelled and uninfluenced, in any manner, by the view that we have taken in this appeal, which is only at interlocutory stage. W.A.No.1386/2023 -: 10 :- With these observations and directions, the O.P. will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **C. JAYACHANDRAN, JUDGE** TR2023