MANOJ.J, SREEHARI.S, MANOJKUMAR.K, JONA T.J., SHAJILA.A.S. v. STATE OF KERALA and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 06TH DAY OF JANUARY 2020/16TH POUSHA, 1942** ## **WP(C).No.23288 OF 2020(I)** ## **PETITIONERS:** **1 MANOJ.J, AGED 43 YEARS, ASSISTANT ENGINEER, JnNURM(JAWAHARLAL NEHRU NATIONAL URBAN RENEWAL MISSION) PROJECT CIRCLE, KERALA WATER AUTHORITY, KOCHI-11. 2 SREEHARI.S, ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, PROJECT DIVISION, CHITTUR, PALAKKAD-678101. 3 MANOJKUMAR.K, ASSISTANT EXECUTIVE ENGINEER, WATER SUPPLY PROJECT DIVISION, PALAKKAD. 4 JONA T.J., ASSISTANT ENGINEER, KERALA WATER AUTHORITY, W.W.SECTION NO.II, THRISSUR-680020. 5 SHAJILA.A.S., ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, W.S.P SUB DIVISION, PALA, KOTTAYAM-686575. BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA KUM.THULASI K. RAJ SMT.MAITREYI SACHIDANANDA HEGDE** WP(C) No.23288/2020 : 2 : ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF TECHNICAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DIRECTOR OF TECHNICAL EDUCATION, DIRECTORATE OF TECHNICAL EDUCATION, PADMAVILASAM RD, FORT, NALUMUKKU, PAZHAVANGADI, THIRUVANANTHAPURAM, KERALA-695023.** - **3 KERALA WATER AUTHORITY, REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695033.** - **4 CHIEF ENGINEER (HRD AND GL), KERALA WATER AUTHORITY, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695033.** - **5 COLLEGE OF ENGINEERING, THIRUVANANTHAPURAM, REPRESENTED BY THE PRINCIPAL, ENGINEERING COLLEGE P.O., SREEKARYAM, THIRUVANANTHAPURAM-695016.** - **6 GOVERNMENT ENGINEERING COLLEGE, THRISSUR, REPRESENTED BY THE PRINCIPAL, THRISSUR-680009.** - **R3-4 BY ADV. SMT.MARY BENJEMIN R1,2,5&6 SPL. GOVT. PLEADER SRI. M.A.ASIF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-01-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.23288/2020 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.23288 of 2020 ````````````````````````````````````````````````````````````` _Dated this the 6[th] day of January, 2021_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioners, who are Assistant Engineers and Assistant Executive Engineers working under the Kerala Water Authority, are aggrieved by non-allotment of seats for Post-Graduation Courses set apart for the sponsored employees of Kerala Water Authority in the College of Engineering, Thiruvananthapuram. The petitioners seek the following reliefs:- “i) To issue a writ of certiorari quashing Ext.P9 allotment list to the extent to which it does not allot 2 seats for M.Tech in Environmental Engineering to the petitioner nos.3 and 5 and for M.Tech in Structural Engineering to the petitioner no.2 in the College of Engineering Thiruvananthapuram under the sponsored candidates' quota working in the Kerala Water Authority; ii) To issue a writ of certiorari quashing Ext.P10 as unjust, illegal and arbitrary; WP(C) No.23288/2020 : 4 : iii) To declare that the petitioners together are entitled to get admission for 5 seats of M.Tech in total, 3 in the College of Engineering, Thiruvananthapuram and 2 in Government Engineering college, Thrissur giving the benefit of Ext.P1 and Ext.P1(a) G.O.s respectively under the sponsored candidates' quota working in the Kerala Water Authority. iv) To issue a writ of mandamus directing the first and second respondents to revoke the allotments of seats granted by denying the seats which are due to the petitioners on account of Ext.P1; v) To issue a writ of mandamus directing the first and second respondents to rework Ext.P9 and to allot 5 seats of M.Tech in total, 3 in the College of Engineering, Thiruvananthapuram and 2 in Government Engineering College, Thrissur giving the benefit of Ext.P1 and Ext.P1(a) G.O.s respectively under the sponsored candidates' quota working in the Kerala Water Authority.” 2. The petitioners state that the 1[st] and 4[th] petitioner are working as Assistant Engineers and petitioners 2, 3 and 5 are working as Assistant Executive Officers under the Kerala Water Authority(KWA). According to the petitioners, each year a maximum of 5 candidates are sponsored by the KWA for undergoing Post-Graduate studies in Engineering. In the College of Engineering, Thiruvananthapuram (CET), two seats of M.Tech are set apart in the branch of Environmental Engineering and one seat in the branch of Structural WP(C) No.23288/2020 : 5 : Engineering. In the Government Engineering College, Thrissur, two seats are set apart in the branch of Environmental Engineering. 3. The petitioners state that the three seats in CET were set apart pursuant to Ext.P1 Government of Kerala, Public Health Engineering Department proceedings. Ext.P1 was issued before the formation of KWA, when the functions now discharged by the KWA were being discharged by Public Health Engineering Department of the Government of Kerala. The two seats in Government Engineering College, Thrissur were allocated to KWA pursuant to Ext.P1(a) Government Order dated 28.12.2007. 4. The petitioners applied for sponsorship to pursue the Post Graduation Course for the years 2020–'22. The KWA issued Exts.P2 to P6 sponsorship certificates in favour of the petitioners. The KWA forwarded Ext.P7 letter also to the 2[nd] respondent-Director of Technical Education along with a list of candidates who are selected for admission to M.Tech Course in Civil Engineering for the years 2020–'22 under the WP(C) No.23288/2020 : 6 : sponsorship quota of the KWA. The name of the petitioners are included in Ext.P7. The petitioners' names were included in Ext.P8 rank list also. 5. However, to the surprise of the petitioners, in the first allotment list made by the 2[nd] respondent for admission made on 23.10.2020, petitioners 2, 3 and 5 were denied allotments and only petitioners 1 and 4 were allotted seats in Government Engineering College, Thrissur. Ext.P9 allotment list is challenged by the petitioners. On enquiry, the petitioners learnt that no allotment was made in respect of the three seats in CET on the ground that Ext.P1 proceedings of the Government of the year 1977 was with respect to reserving seats for candidates working in the Public Health Engineering Department and would not apply to employees working under the KWA. 6. The petitioners would submit that KWA came into existence in the year 1986 under the Kerala Water Supply and Sewerage Act, 1986. All the benefits available to the employees of the Public Health Engineering Department were WP(C) No.23288/2020 : 7 : extended to the employees recruited/deputed in the Kerala Water Authority. Till the year 2019, the 2[nd] respondent was allotting seats to the sponsored candidates of the KWA without any objection, as is evidenced by Exts.P11 and P12. After adopting and following Ext.P1 proceedings from 1977 to 2019, the 2[nd] respondent is estopped from denying the applicability of the same to the Kerala Water Authority. In the circumstances, Exts.P9 and P10 are liable to be quashed and the petitioners are entitled to get admission for five seats of M.Tech, three in the CET and two in the Government Engineering College, Thrissur. 7. The 2[nd] respondent resisted the writ petition filing a statement. The 2[nd] respondent stated that admission to M. Tech Courses are governed by the prospectus approved by the Government of Kerala. In Annexure-1 Prospectus, there is no provision for reservation for any sponsored candidates. Clause VIII(g) of the prospectus states that sponsored candidates, if any, will be admitted as per the relevant Government Orders. The 2[nd] respondent stated that Ext.P1 is WP(C) No.23288/2020 : 8 : not a Government Order prescribing reservation to Engineers of the Public Health Engineering Department/KWA. Ext.P1 is an order which permits the employees of erstwhile Public Health Engineering Department to avail the benefit of the Government Order and treat such period of studies as deputation. It only means that if got selected, such candidates will be treated as on duty during the period of studies and training and salary will be paid to them treating them as on deputation. 8. According to the 2[nd] respondent, Ext.P1 only means that if employees of Public Health Engineering Department get sponsored for admission on their merits for M.Tech Course at CET in Environmental or Structural Engineering Courses, their studies can be treated as deputation for service benefits and nothing beyond that. The 2[nd] respondent would further contend that if the claim of the petitioners is allowed, the total reservation for sponsored candidates would come to 22% which when added to statutory/special reservations, would make the total WP(C) No.23288/2020 : 9 : reservation 67%. 9. The 2[nd] respondent further pointed out that working professionals are getting opportunity to undergo their PG studies as an evening M.Tech programme. At present, most of the seats in the evening M. Tech programmes are vacant due to insufficient applications. Admission for M.Tech courses in each academic year is distinct and is governed by the prospectus approved by the Government for that year. The 2[nd] respondent conceded that reservations which were granted on the basis of Ext.P1 during the previous academic years were on a wrong understanding of Ext.P1. 10. The learned counsel for the petitioners argued that the employees of the KWA were enjoying the benefit of reservation of five seats in M.Tech pursuant to the orders issued by the Government from 1977 to 2019. Now, by Ext.P10 Order, reservation has been reduced and confined to 2 seats. As the KWA was formed for the purpose of discharging the functions of Public Health Engineering Department, the benefit of reservation provided to the WP(C) No.23288/2020 : 10 : erstwhile PHED was made available to employees of KWA. This was an accepted practice and continued for a considerably long time since the year 1977. 11. Relying on the judgment of the Hon'ble Apex Court in _**M.P. Oil Extraction and another v. State of M.P. and others**_ [(1997) 7 SCC 592], the learned counsel for the petitioners argued that the doctrine of long past practice would come into play in the case of the petitioners and the respondents are compellable to follow a practice continued for considerably long period. The learned counsel for the petitioners relied on the judgment of the Apex Court in _**M.G.B. Gramin Bank v. Chakrawarti Singh**_ [AIR 2013 SC 3365] and the judgment in _**Manuelsons Hotels Private Limited (M/s.) v. State of Kerala and others** [2016 (3) KHC 206]_ . The learned counsel for the petitioners also relied on Ext.P17 to point out that sponsorship of candidates are contemplated by the prospectus. 12. The learned Government Pleader, on the other hand, argued that Ext.P1 envisages only deputation of WP(C) No.23288/2020 : 11 : employees and does not contemplate any reservation in educational institutions. Ext.P1 would only show that if the employees of PHED get admission to the said educational institutions on their own, they can be deputed for studies. The learned Government pleader further argued that reservation in higher educational institutions can be made only by the Department of Higher Education and not by any other Department. The ranked list given by the KWA cannot be treated as allotment letters. The learned Government pleader, relying on the judgments of the Apex Court in _**Rajasthan State Industrial Development and others v. Subhash Sindhi Cooperative Housing Society Jaipur and others** [(2013) 5 SCC 427]_ and _**Bondu Ramaswamy and others v. Bangalore Development Authority and others** [(2010) 7 SCC 129]_ argued that even if an error is committed by the government and continued for some time, such error cannot be carried on indefinitely. The petitioners, by no stretch of imagination, can have a right founded on an error committed by the respondents. WP(C) No.23288/2020 : 12 : 13. Heard learned counsel for the petitioners and learned Government pleader appearing for respondents. 14. The specific case of the petitioners is that three seats are reserved for employees of PHED/KWA in the CET and two seats are reserved in Government Engineering College, Thrissur. To establish this point, the petitioners rely on Ext.P1 order of the Public Health Engineering Department issued in the year 1977. A plain reading of Ext.P1 would show that the said Government Order provides only deputation of employees of Public Health Engineering Department for higher studies. It does not speak of or create reservation of seats in the College of Engineering Thiruvananthapuram. 15. Furthermore, the specific stand of the Government of Kerala is that as of now any reservation/quota in courses of higher education can be made only by the Higher Education Department. It is also an admitted position that the prospectus for admission does not contemplate such quota or reservation for KWA employees in five seats, as claimed by WP(C) No.23288/2020 : 13 : the petitioners. If the practice of allotting employees of KWA to the CET, Thiruvananthapuram was in vogue during earlier years, it can only be treated as an erroneous practice. Such an error committed by the Authorities cannot vest a corresponding right on the petitioners under the doctrine of long past practice or under the doctrine of estoppel. This Court therefore finds that the writ petition filed by the petitioners is without any merit and it is therefore dismissed. It is made clear that respondents 2 and 3 will be at liberty to pursue their claim for allotment in Government Engineering College, Thrissur in accordance with law, if they are otherwise eligible in all respects. Sd/- **N. NAGARESH, JUDGE** aks/22.12.2020 WP(C) No.23288/2020 : 14 : ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **TRUE TYPED COPY OF G.O(MS)NO.332/ 77/LWSD DATED 18.11.1977.** **EXHIBIT P1(A)** **TRUE COPY OF G.O(RT)NO.2137/2017/H.EDN DATED 28.12.2017.** ## **EXHIBIT P2** **TRUE COPY OF THE SPONSORSHIP CERTIFICATE ISSUED TO THE 1ST PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE SPONSORSHIP CERTIFICATE ISSUED TO THE 2ND PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE SPONSORSHIP CERTIFICATE ISSUED TO THE 3RD PETITIONER.** **EXHIBIT P5 TRUE COPY OF THE SPONSORSHIP CERTIFICATE ISSUED TO THE 4TH PETITIONER.** **EXHIBIT P6 TRUE COPY OF THE SPONSORSHIP CERTIFICATE ISSUED TO THE 5TH PETITIONER.** **EXHIBIT P7 TRUE COPY OF LETTER NO.8464/AE1/ (TC)/2020/KWA DATED 15.10.2020 ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT.** **EXHIBIT P8** **TRUE COPY OF THE RELEVANT PAGES OF THE RANKED LIST FOR ADMISSION TO M.TECH/M.ARCH/PLANNING DEGREE COURSES 2020 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P9** **TRUE COPY OF THE RELEVANT PAGES OF RANKED LIST OF THE 1ST ALLOTMENT FOR ADMISSION TO M.TECH DEGREE COURSES IN THE COLLEGE OF ENGINEERING, THIRUVANANTHAPURAM.** WP(C) No.23288/2020 : 15 : **EXHIBIT P10 TRUE COPY OF THE LETTER NO.T2/24269/2020/DTE DATED 23.10.2020.** - **EXHIBIT P11 TRUE COPY OF THE LETTER NO.KWA/HO/TRG1/95/2015-16 DATED 10.06.2015.** - **EXHIBIT P12 TRUE COPY OF THE LETTER NO.KW/HO/TRG1/2019-20 DATED 22.06.2019.** **EXHIBIT P13** - **TRUE COPY OF THE LETTER NO.8464/HEL/TC/2020/KWA DATED 26.10.2020 ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT.** - **EXHIBIT P14 TRUE COPY OF THE DETAILS OF THE PROCESS OF ADMISSION ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P15 TRUE COPY OF THE ADMISSION MEMO ISSUED TO THE 1ST PETITIONER ON 22/10/2020 ISSUED BY 2ND RESPONDENT.** - **EXHIBIT P16 TRUE COPY OF THE ADMISSION MEMO ISSUED TO THE 4TH PETITIONER ON 22/10/2020 ISSUED BY 2ND RESPONDENT.** **EXHIBIT P17** - **TRUE COPY OF G.O.(MS) NO.235/2020/ H.EDN DATED 26/06/2020, PROPECTUS FOR ADMISSION TO P.G.DEGREE COURT FOR ENGINEERING FOR THE YEAR 2020-2021.** - **EXHIBIT P18 TRUE COPY OF THE ADMISSION MEMO DATED 17/07/2019 ISSUED TO AL SHAINY S DEEN BY THE 2ND RESPONDENT.** - **EXHIBIT P19 TRUE COPY OF THE LIST OF CANDIDATES WHO FAILED TO PAY THE FEES WITHIN THE STIPULATED TIME DOWNLOADED FROM THE OFFICIAL WEBSITE OF THE 2ND RESPONDENT.** - **RESPONDENTS' EXHIBITS:** - **ANNEXURE-I** - **TRUE COPY OF THE PROSPECTUS ISSUED FOR THE ADMISSION TO M.TECH COURSES FOR THE ACADEMIC YEAR 2020-21.** WP(C) No.23288/2020 : 16 : **ANNEXURE-II TRUE COPY OF THE G.O.(Rt.) No.1875/93/H.Edn DATED 08-12-1993. ANNEXURE-III TRUE COPY OF THE G.O.(Rt) No.1259/94/H.Edn DATED 16-08-1994. ANNEXURE-IV TRUE COPY OF THE G.O.(Rt.) No.595/2014/H.Edn DATED 19-03-2014.**