Supriya S v. Kerala Water Authority and Kerala Public Service Commission

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 24[TH] DAY OF JULY 2023 / 2ND SRAVANA, 1945 ``` ## **`WP(C) NO. 7785 OF 2016`** ## **`PETITIONER:`** ``` SUPRIYA S AGED 46 YEARS DRAFTSMAN GRADE-II, KERALA WATER AUTHORITY, PROJECT DIVISION, THIRUVANANTHAPURAM. ``` ``` BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.ANOOP.V.NAIR SRI.P.MOHANDAS ERNAKULAM SRI.K.SUDHINKUMAR SRI.S.VIBHEESHANAN ``` ## **`RESPONDENTS:`** ``` 1KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM-695 033. 2KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PSC OFFICE, PATTOM, THIRUVANANTHAPURAM-695 004. ``` ``` BY ADVS. P.M.JOHNY, SC, KWA SRI.P.C.SASIDHARAN, SC, KPSC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `WP(C) NO. 7785 OF 2016 -` 2 `-` ## **`JUDGMENT`** 1. Order Ext.P6 dated 16.01.2016 by the second respondent – Kerala Public Service Commission – rejecting the case of assigning the seniority to the petitioner is under challenge in the present writ petition. 2. In the process of appointment initiated by Kerala Water Authority through Public Service Commission (PSC) for appointment of Draftmen Grade II, petitioner applied and was included in the short list. However, before publishing the final rank list, for the reason best known, PSC removed the name of the petitioner from the rank list purportedly having possessed higher qualification. Aggrieved of the same jurisdiction of this Court was invoked in O.P.No.12048 of 1997. The petition was allowed. But some way of the other the directions were not considered by the PSC for issuance of the advice. The said situation gave a cause of action to petitioner to submit Review Petition bearing `WP(C) NO. 7785 OF 2016 -` 3 `-` No.636 of 2003. The Review Petition vide order dated 15.12.2003 Ext.P1 was accepted and a direction was issued to the respondents that the name of the petitioner should be considered for advice in the next arising vacancy or in turn which could normally be considered for appointment. 3. Learned counsel appearing on behalf of the petitioner submitted that the respondents without considering the order of this Court in letter and spirit rejected the case vide impugned communication, for, during the period from the date of finalisation of the rank list and appointment, many junior persons were included in the rank list. In other words ,the seniority was assessed from the date of the advice memo dated 14.01.2004 Ext.P3 and appointment was made on 30.01.2004 Ext.P4 in pursuance of the order passed in the Review Petition. 4. On the other hand, learned counsel appearing `WP(C) NO. 7785 OF 2016 -` 4 `-` on behalf of the respondents opposed the aforementioned contentions and submitted that the law on the point of assigning the seniority is from the date of advice or re-advice, this is precisely what has been done in letter and spirit of the judgment of this Court and also by following Rule 227(c) of the Kerala State & Subordinate Service Rules. In support of the contentions, averments in paragraph Nos.9 and 10 of the counter affidavit have been relied. 5. I have heard learned counsel for the parties and appraised the paper book. 6. The whole controversy hinges upon the interpretation of the order of this Court passed in the review petition dated 15.12.2003 Ext.P1. The same reads as under: ## “ **ORDER** In view of the judgment of the Supreme Court in Jyothi v. P.S.C. [2002 Suppl(2) JT 85], the petitioner was directed to be granted reliefs of `WP(C) NO. 7785 OF 2016 -` 5 `-` being considered for selection and appointment. As a consequence, the petitioner’s name is included in the rank list. Because of the passage of time, persons who have got their name included in the rank list and who are below the rank of the petitioner has at present secured appointment. 2. Government Pleader was heard in the matter. Petitioner’s claim requires a favourable and sympathic consideration. Appropriate further orders are to be passed taking notice of the circumstances. Hence I direct that the petitioner should be considered for advice in the next arising vacancy or in the turn which she could normally be considered for appointment.” 7. On the basis of the aforementioned order, advice memo was issued on 14.01.2004 Ext.P3 and appointment letter on 30.01.2014. Contents of the same reads as under: ## “ **Ext.P3** You are informed that you have been advised for recruitment as Draftsman Grade II on Open Competition/Turn in the above Company /Corporation/Board. The selection is subject to Rules and Orders issued by the `WP(C) NO. 7785 OF 2016 -` 6 `-` Company/Corporation/Board. Further instructions will be issued to you in due course by the above Company/Corporation/Board. ## **Ext.P4** ## **PROCEEDINGS OF THE DEPUTY CHIEF ENGINEER (GENERAL)** Sub: KWA-Estt-Appointment to the post of Draughtsman Gr.II on Rs.3770-5785 through K.P.S.C-orders issued. ------------------------------------------------------------------------ ## KERALA WATER AUTHORITY No.756/E4/96/J.B./KWA-Vol II Thiruvananthapuram.Dated: 30-01-2004 ------------------------------------------------------------------------Read:-1.Lr.No.RIB(3)3365/01/GW dated 14-012004 of Secretary KPSC 2.G.O.(P)No.56/2002/Fin.dt.16-01-2002 3.G.O.(P)No.758/2002/Fin.dt.11-12-2002 4.Rule 3(C)of KS&SSR 1958. G.O.(P)No.45/91/P&ARD Dated3-12-1991 ----------- ## **ORDER** The undermentioned candidates who are advised by Kerala Public Service Commission for appointment to the post of Draughtsman Gr.II are provisionally appointed as `WP(C) NO. 7785 OF 2016 -` 7 `-` Draughtsman Grade II in this organisation on Rs.3770-5785, subject to Rule 3(C)of KS&SSR 1958 and posted to the offices noted against their names. |Sl.|Name||Posted to| |---|---|---|---| |No.|||| |1|Supriya S.|31.05.1969|Office of the| ||Saraswathi|P.R.Sukumaran|Managing| ||Vilasom,Aramada|Achari|Director,| ||P.O.,|(Dip. in Civil|Thiruvanant| ||Thiruvananthapuram|Engg)|hapuram| ||-695032||| ||(VISWAKARMA)||| |2|xxx|xxx|xxx| |3|xxx|xxx|xxx| |4|xxx|xxx|xxx| |5|xxx|xxx|xxx| |6|xxx|xxx|xxx| |7|xxx|xxx|xxx| |8|xxx|xxx|xxx| |9|xxx|xxx|xxx| They will be on probation for a period of two years on duty within a continuous period of three years from the date on which they join duty in this organisation. They will have to report for duty in the office of the Managing Director and office of the Chief Engineer (Southern Region, Thiruvananthapuram) immediately on receipt of this order. If they fail to join duty within 15 days from the date of `WP(C) NO. 7785 OF 2016 -` 8 `-` receipt of this order their appointment will be cancelled without further notice. They should produce the certificate of physical fitness for appointment in Kerala Water Authority obtained from the Medical Officer not below the rank of Civil Surgeon and also the documents in original to prove the date of birth, qualifications, Non Creamy Layer Certificate, etc. at the time of their joining duty in this Organisation. They should produce the enclosed proforma to the officer concerned duly filled up and singed at the time of their joining duty They are informed that the application for the correction of date of birth if any needed shall be made within five years of one’s entry in service in accordance with Government Order 5[th] cited. Sd/- DEPUTY CHIEF ENGINEER(GENERAL)” 8. The petitioner concededly was placed at seniority list of Rank List No.16A. It is a matter of record that the persons appointed along with the petitioner and lower in rank have also been offered appointment and `WP(C) NO. 7785 OF 2016 -` 9 `-` thus, petitioner has been left junior to them which gave cause of action for making a representation. But the respondents did not take into consideration aforementioned prayers while passing the impugned order. Relevant portion of the order reads as under: “The power to assign seniority of an employee who has joined the service is vested with the Appointing Authority under the rules. A candidate excluded from the selection process by the Commission for any reason, if included later by a Court Order can be considered to the subsequent vacancy unless otherwise directed by the Court. In the judgment there is no direction to the Commission regarding your seniority. But the appointing authority is directed to consider and take a decision. There is direction in the Judgment that others' rights shall not be affected by the same.” 9. On perusal of the order it is evident that the entire focus of the respondents had been only on the arising of the vacancy but had not taken into consideration the rest of the order, that is direction regarding turn in which petitioner could have been `WP(C) NO. 7785 OF 2016 -` 10 `-` considered for appointment. The turn petitioner could have been considered in the appointment would mean the seniority to be assigned over and above the persons who were lower in rank in the Rank list. There is no such deliberation on the same. 10. Thus the impugned order in my view is wholly unsustainable, fallacious and capricious. The same is set aside. Writ petition is allowed. Writ in the nature of mandamus is issued to the PSC and Water Authority to assign seniority to the petitioner above the persons who are lower in rank in the ranked list, in accordance with law after affording opportunity to those who would be affected. Let this exercise be undertaken within a period of four months from the date of receipt of a certified copy of the judgment. ## **`Sd/-`** ``` AMIT RAWAL JUDGE ``` ``` vv ``` `WP(C) NO. 7785 OF 2016 -` 11 `-` ## **`APPENDIX OF WP(C) 7785/2016`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1TRUE COPY OF THE ORDER DT 15-12-2003 IA NO.16006/2013 IN RP NO.636/2003 IN OP NO.12048/1997 ``` - `EXHIBIT P2 TRUE COPY OF THE NOTIFICATION DT 3112-2003 ISSUED BY THE 2ND RESPONDENT.` - `EXHIBIT P3 TRUE COPY OF THE ADVICE MEMO ISSUED BY THE 2ND RESPONDENT DT 14-1-2004` - `EXHIBIT P4 TRUE COPY OF THE ORDER NO.756/E4/96/JB/KWA-VOL.II DT 30-12004` - `EXHIBIT P5 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DT 14-10-2015.` - `EXHIBIT P6 TRUE COPY OF THE ORDER NO.A III(1)9840/15/CW DT 16-1-2016 ISSUED BY THE 2ND RESPONDENT.` ``` EXHIBIT P7TRUE COPY OF THE JUDGMENT DT 8-2-2016 IN WPC.NO.2654/2016. ```