A 744,
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S. GOPA KUMAR
_v._
STATE OF KERALA & KERALA PUBLIC
SERVICE COMMISSION
_September 21, 1981_
(R.S. PATHAK AND BAHARUL ISLAM, JJ.]
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_Practice and Procedure-lnadvertant error_ _in_ _the order of Supreme_ _Court-_
_lf could be corrected._
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 CiviJ 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
G 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.
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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 the
basis of examination already conducted. The Public Service Commission
s. GOPA KUMAR _v._ KERALA _(Baharu/ Islam,_ J.) 745
**accordingly** **prepared** **two** **rank** **lists.** **The** **name** **of the** **petitioner herein appeared**
**in** **the** **list of** **Mechanical** **Engineering** **Graduates** **and** **he** **would** **be** **appointed.**
when his turn came. [749 C-E]
CIVIL APPELLATE JURISDICTION : Special Leave Petitio::. (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 170of1979.
_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.
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_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 D
No. 5.
_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 :
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2. The Kerala Public Service Commission (hereinafter
'KPSC') imited 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 thereafter 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
746 SUPREME COURT REPORTS [1982] 1 S.C.R
A questions in Category I, and those qualified in Mechanical Engineering the questions in Category II.
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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 Wr,it 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 bad 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 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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s. GOPA KUMAR _v._ KERALA _(Baharul Islam,_ J.) 747
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 rroceeded 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 entitled to exercise his
option and then take his turn according to his rank in the
common list prepared by the Public Service Commission.
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748 SUPREME COURT REPORTS [1982] I s.c.R.
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
C mistake.
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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
tas made t~e 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."
IO. 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.1.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
s. GOPA KUMAR _v._ KERALA _(Baharul Islam,_ J.) 749
appointment by transfer aud the junior persons will be A
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 B & R will implement the above orders **B**
forthwith."
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Clause 4 gave unconditional options to those in the Kerala
Engineering Service (General Branch) to remain in the said bra.1ch
or to choose the newly constituted Kerala Engineering SubJrdin1te i
Service (Mechanical Branch). As stated earlier the Kerala G Jvernment or the KPSC was not directed to prepare a commJn list.
Common List was referred to in the earlier orders in this Court
through certain misapprehensions. The KPSC bas stated in its
counter affidavit to the S.L.P. filed by Shri S. Gopa Kumar against
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 l 52 candidates and the other (Mechanical) cJutains 202 candidates. All the Civil Engineering selected have already
been appointed. Shri Gopa Kumar's iank was 138 in the rank list
of Engineers (Mechanical). He will be appointed when his turn
**comes.**
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We think that the Division Bench of the High Court was right F
in dismissing the writ appeals, having regard to the developments
which have taken place.
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,_, Accordingly, the special leave petitions are dismissed. There
' is **no order as to costs.**
G
P.B.R. _Petitions dismissed ._
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