Manuel Jaison v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN SATURDAY, THE 20TH DAY OF SEPTEMBER 2014/29TH BHADRA, 1936 OP(KAT).No. 3182 of 2013 (Z) ----------------------------AGAINST THE ORDER IN OA 1586/2013 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 25.7.2014 PETITIONER(S)/IST APPLICANT: ------------------------------------------------------ MANUEL JAISON, AGED 43 YRSTD, S/O.V.K.MANI, OFFSET PRINTING MACHINE OPERATOR GR.II GOVERNMENT PRESS, VAZHOOR, KOTTAYAM-684114. BY ADVS.SRI.C.P.SUDHAKARA PRASAD (SR.) SRI.P.N.SANTHOSH SRI.S.RAMESH SRI.NAVEEN.T SMT.POOJA SURENDRAN RESPONDENT(S)/RESPONDENTS 1 TO 3 & ADDL.4TH RESPONDENT: -------------------------------------------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT PRINTING AND STATIONERY DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE DIRECTOR OF PRINTING, THIRUVANANTHAPURAM-695001. 3. THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, OFFICE OF THE K.P.S.C PATTOM, THIRUVANANTHAPURAM-695004. ## ADDL.4. HARI.S, OFFSET PRINTING MACHINE OPERTOR GR-I GOVERNMENT PRESS, MANNANTHALA THIRUVANANTHAPURAM-695015. (ADDL.R4 IS IMPLEADED AS PER ORDER DATED 12.9.13 IN IA.12384/13) R1,2 BY SR GOVERNMENT PLEADER SRI.P.M.SANEER R3 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 20-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 3182 of 2013 (Z) ----------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- - EXT.P1 TRUE COPY OF THE ORIGINA APPLICATION NO.1586/2013 FILED BY THE PETITIONER - BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL. - EXT.P2 TRUE COPY OF THE JUDGMENT DATED 13-3-2002 IN O.P.34358/2001 ETC.OF THIS HON'BLE COURT. - EXT.P3 TRUE COPY OF THE ORDER DATED 25TH JULY,2013 IN O.A.1586/2013 OF THE KERALA ADMINISTRATIVE TRIBUNAL. /TRUE COPY/ PS TO JUDGE ANTONY DOMINIC & ANIL K.NARENDRAN, JJ. ----------------------------------O.P(KAT).No.3182 of 2013 ----------------------------------Dated this the 20[th] day of September, 2014 ## JUDGMENT ## Antony Dominic, J. 1. This original petition is filed by the first applicant in O.A.1586/13 on the file of the Kerala Administrative Tribunal, Trivandrum, aggrieved by Ext.P3 order dated 25.7.2014 of the Tribunal dismissing the OA. 2.Before the Tribunal, the challenge was against the order dated 15.3.2013 produced as Annexure A-15 (Annexures referred to in this judgment are Annexures to OA.1586/13 filed before the Tribunal). By the said order, the PSC rejected Annexure A-11 representation filed by the petitioner claiming seniority over his juniors in the ranked list dated 17.10.2005 published by the Public Service Commission for appointment to the post of Offset Printing Machine Operator Gr-II in the Printing Department of the Government of Kerala. - 3.The factual background in which the controversy led to Annexure A-15 originated from the ranked list OP(KAT).3182/13 2 dated 17.10.2005 mentioned above. Though the petitioner was included in the short list that preceded the ranked list, on the ground that he was not qualified, the PSC did not include him in the ranked list and issued a show cause notice proposing to remove his candidature from the short list itself. That was challenged before this Court in W.P(C). 30941/05. That writ petition was disposed of by Annexure A-1 judgment dated 13.3.2006, where, this Court directed the PSC to consider the representation made by the petitioner against the show cause notice issued. Accordingly, the PSC considered the matter and Annexure A-2 order dated 11.1.2007 was passed, rejecting the representation. 4.Annexure A-2 order was challenged in W.P(C).6899/07. That writ petition was allowed by Annexure A-3 judgment rendered on 30.9.2008. In the said judgment, considering the request of the PSC for a clarification that the advice that may be made in relation to the petitioner based on his placement in the ranked list may not affect the advices already OP(KAT).3182/13 3 effected by the PSC, this Court held as follows in paragraph 22: “22. Accordingly, it is clarified that the persons, who have already been advised from the rank list should not be disturbed, for the purpose of accommodating the petitioners, except where there are no vacancies available to accommodate the petitioners and the Public Service Commission finds that they are otherwise eligible to be included in the rank list and their position, had they been otherwise included, would have resulted in they being advised much earlier. In other words, if there are vacancies, which could accommodate the petitioners currently available or which may become available and which are reported before the expiry of the rank list, then the implementation of the directions issued in this judgment should not result in disturbance of the persons who are advised by the Public Service Commission.” 5.In compliance with the directions in Annexure A-3, PSC issued Annexure A-5 addendum notification dated 2.12.2008 including the petitioner at Sl.No.2A in the ranked list. This was followed by Annexure A-6 dated 5.1.2009, by which, the petitioner was advised for appointment as Offset Printing Machine Operator GrII. Accordingly, by Annexure A-8 order dated OP(KAT).3182/13 4 6.6.2009, he was appointed and on joining the post, his probation was also declared by Annexure A-9 order dated 2.2.2012. 6.It was subsequent to all this that he made Annexure A-11 representation dated 22.03.2012 claiming seniority above his juniors in the ranked list and this was rejected by the PSC by Annexure A-15. It was in these circumstances the petitioner, along with another person who had also obtained appointment pursuant to Annexure A-4 judgment in W.P(C).6930/07, filed OA.1586/13. In Ext.P3 order, the Tribunal referred to paragraph 22 of Annexure A-3 judgment extracted above and also made reference to the clarification in Annexure A-4 judgment, which was to the effect that advices already made from the ranked list need not be disturbed by reason of inclusion of the peititoner therein. The Tribunal held that there was no such stipulation in Annexure A-3 judgment that the advices would be with retrospective effect. Therefore, the Tribunal took the view that the seniority claimed by the petitioner was, in view of the directions in Annexure A-3 judgment, hit by the OP(KAT).3182/13 5 - principles of res judicata and constructive res judicata. On that reasoning, the Tribunal dismissed the OA. It is this judgment which is challenged before us. - 7.Pursuant to the order dated 12.9.2013 in IA.12384/13, the petitioner carried out publication of notice of this OP in Kerala Kaumudi daily, impleading the additional 4[th] respondent in a representative capacity. Though publication has been carried out, nobody has sought impleadment in this original petition to contest the claim of the petitioner. - 8.We heard learned senior counsel for the petitioner, learned Government Pleader appearing for respondents 1 and 2 and the standing counsel appearing for the third respondent. 9. As we have seen from the facts, the exclusion of the petitioner from the ranked list on the ground that he was unqualified for the post was held to be illegal in Annexure A-3 judgment rendered by this Court in W.P(C).6899/07. It was pursuant to the directions in OP(KAT).3182/13 6 that judgment, which has become final that the PSC issued Annexure A-5 addendum notification, including the petitioner at Sl.No.2A in the ranked list dated 17.10.2005. Accordingly, he was advised on 5.1.2009 and was appointed on 6.6.2009. 10.The above facts, therefore, show that it was on account of an illegality committed by the PSC that his advice and appointment got delayed and for this, the petitioner is in no way responsible and cannot be made to suffer. The question is whether, in spite of it, the seniority which he was entitled to should be denied, relying on the clarification contained in paragraph 22 of Annexure A-3 judgment. Reading of Annexure A-3 judgment shows that the PSC wanted that implementation of the direction contained in the judgment leading to inclusion of the peititoner in the ranked list should not affect the advices already made from the ranked list. Finding the request made by the PSC to be a reasonable one, this Court held that the persons advised from the ranked list shall not be disturbed. OP(KAT).3182/13 7 11.Such a clarification was provided by this Court in Annexure A-3 judgment mentioned above only for the purpose of ensuring that the persons already advised from the ranked list, ignoring the claims of the petitioner, are not displaced consequent on the inclusion of the petitioner in the ranked list or his eventual advice and appointment. That, in our view, was not made to safeguard the undeserved seniority conferred on the persons junior to the petitioner on account of an illegality committed by the PSC in excluding the petitioner from the ranked list and advising his juniors earlier. Same is the effect of the clarification contained in Annexure A-4 judgment in W.P(C).6930/07. Therefore, we are not persuaded to think that the directions in Annexure A-3 judgment would, in any manner, result in depriving the petitioner the seniority which he legitimately was entitled to, consequent on his inclusion in the ranked list at Sl.No.2A. - 12.This view which we have taken is fully fortified by the principles laid down by the Apex Court in the judgment in Dalalah Gojah v. State of Kerala [1998 OP(KAT).3182/13 8 (1) KLT 567(SC)], where, the Apex Court has held thus: “It appears to us that the appellant has been made to suffer for no fault of hers. From the facts enumerated hereinabove, it is quite clear that when two vacancies arose on 6th October 1972, the appellant had a right to be appointed against one of the said vacancies. At that point of time none of the respondents had even been selected for appointment to the said post, their selection having been notified only on the second list which was prepared on 22nd March, 1974. The right which had therefore, accrued to the appellant for appointment against a vacancy after she had been duly selected could not have been taken away merely because of the delay or inaction on the part of the Government in notifying her appointment. The High Court, in our opinion, fell in error in observing that the appellant's name could not be placed at Serial No.1 in the second select list. What was in fact done was that the appellant was being appointed against the vacancy which had arisen on 6th October, 1972 when admittedly, the select list was still alive. We see no reason, under these circumstances, when the appointment of the appellant has not been set aside, as to why she should be deprived of the seniority. She was selected earlier in point of time that the respondents and her selection should have resulted, as it must now, with her filling the vacancy which had arisen on 6th October, 1972.” OP(KAT).3182/13 9 Similar view has been taken by the Apex Court in Pilla Sitaram Patrudu v. Union of India [(1996) 8 SCC 637] also. - 13.The contention raised by the standing counsel for the PSC that seniority has to be reckoned based on rule 27(C) of the General Rules has already been negatived by this Court in similar circumstances in the judgment dated 13.3.2002 in OP.17257/00 and connected cases, where, it has been held thus: “5. Heard both sides. It is not in dispute that in normal circumstances, the seniority of a candidate advised by the Public Service Commission should be reckoned only in accordance with Rule 27(C). But the said principle cannot be pressed into service where a mistake is being corrected. There can be cases where a person has been wrongly overlooked and his advice happened to be made subsequently. If he is given the seniority only with effect from the date of advice, it will be highly arbitrary and unjust. In other words, somebody who got earlier advice illegally can safely retain his seniority. In the case at hand, the Division Bench of this Court found that there were 67 vacancies available for direct recruitment before the expiry of the ranklist. Therefore those vacancies should have been reported by the Electricity Board in the OP(KAT).3182/13 10 normal course and the Public Service Commission should have advised candidates to those vacancies so reported. If everything was done in accordance with law, the petitioners would have definitely got appointments earlier than those persons included in the subsequent ranklist. This is also a case involving correction of mistake and therefore the date of their effective advice should also be modified accordingly. It will be quite anomalous to give seniority to persons who were advised from the rank list published on 26.6.1997 over the persons who were advised from the ranklist published on 28.11.1989. In an identical case, the Apex Court in the decision reported in **Dalalah Gojah** v. **State of Kerala** [1998 (1) KLT 567] held that a person wrongly denied appointment is entitled to get seniority over others who were appointed from a subsequent selectlist. The principles laid down in the said decision will squarely apply to the facts of the present case. “ 14.Resultant position is that the view taken by the Tribunal in Ext.P3 order dismissing OA.1586/13, in so far as it concerns the petitioner herein, is unsustainable and is to be set aside. Annexure A-15 is set aside and the OA will stand allowed. Respondents are directed to restore the seniority of the petitioner in the post of Offset Printing Machine OP(KAT).3182/13 11 Operator Gr-II, with effect from the date on which his juniors were given advice and appointment, with all consequential benefits other than monetary benefits. Original Petition is allowed. Sd/ANTONY DOMINIC, Judge. Sd/- ANIL K.NARENDRAN, Judge. kkb.