W.A. No. 151 of 2009 (Kerala High Court)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **FRIDAY, THE 27TH DAY OF JUNE 2014/6TH ASHADHA, 1936`** **WA.No. 151 of 2009 ( )** **---------------------------------(AGAINST THE JUDGMENT IN OP.NO. 879/2002 DATED 26-11-2008)** **---------------------------** **APPELLANT(S)/RESPONDENTS 5 TO 7:-** **--------------------------------------------------------------** **1. MUHAMMED.A.A, DRAFTSMAN GRADE-I,** - **W.W.SUB DIVISION, KERALA WATER AUTHORITY, KALOOR, KOCHI-17 (NOW WORKING AS ASSISTANT ENGINEER, WATER SUPPLY SECTION NO.II, KERALA WATER AUTHORITY, NORTH PARAVUR).** **2. PREMAN.K.R., DRAFTSMAN GRADE-I,** - **W.W.SUB DIVISION, KERALA WATER AUTHORITY, KALOOR, KOCHI-17 (NOW AT QUALITY CONTROL DIVISION, KERALA WATER AUTHORITY, ALUVA).** **3. POULOSE.T.V., DRAFTSMAN GRADE-I, P.H.CIRCLE, KERALA WATER AUTHORITY, KOCHI-11, (NOW AT P.H.DIVISION, KERALA WATER AUTHORITY, ALUVA).** **BY ADV. SRI.WILSON URMESE** ## **RESPONDENT(S)/PETITIONERS & RESPONDENTS 1 TO 4 & 8 TO 10:-** - **----------------------------------------------------------------------------------------------------** **1. P.MOHANAN, DRAFTSMAN GR-I, P.H.CIRCLE, KERALA WATER AUTHORITY, PALAKKAD.** **2. K.T.RAJAN, DRAFTSMAN GR-I,** - **P.H.SUB DIVISION, KERALA WATER AUTHORITY,** - **MALA P.O., ASHTAMICHIRA.** **3. B.KHADARKUNJU, DRAFTSMAN GR-I, OFFICE OF THE EXECUTIVE ENGINEER, QUALITY CONTROL DIVISION, KERALA WATER AUTHORITY, ALUVA.** **4. KERALA WATER AUTHORITY, VELLAYAMBALAM, THIRUVANANTHAPURAM,** **REPRESENTED BY ITS MANAGING DIRECTOR.** **5. THE CHIEF ENGINEER (PS & GL), KERALA WATER AUTHORITY, VELLAYAMBALAM, THIRUVANANTHAPURAM.** **2/-** **sts** **-2-** **W.A.NO.151/2009** **6. THE DEPUTY CHIEF ENGINEER (GL), KERALA WATER AUTHORITY, VELLAMBALAM, THIRUVANANTHAPURAM.** **7. A.SURENDRAN, ASSISTANT ENGINEER, AUGMENTATION SECTION, KERALA WATER AUTHORITY, VADAKARA.** **8. P.Y.JOHNSON, DRAFTSMAN GRADE-I, KERALA WATER AUTHORITY, WATER SUPPLY DIVISION,** **KOLLAM.** **9. K.R.VIJAYA KUMAR, DRAFTSMAN GRADE-I, KERALA WATER AUTHORITY, P.H.DIVISION, THIRUVALLA, PATHANAMTHITTA DISTRICT.** **10. AHAMMED BASHEER V.P., DRAFTSMAN GRADE I, P.H.DIVISION, KERALA WATER AUTHORITY, MALAPPURAM.** ## ***ADDL.R11 & R12 IMPLEADED** - ***R11: SALIH.K.K., DRAFTSMAN GRADE-1,** **WATER WORKS SUB DIVISION, KERALA WATER AUTHORITY, KOCHI-16 AND GENERAL SECRETARY, KERALA WATER AUTHORITY ENGINEERING STAFF ASSOCIATION, ERNAKULAM.** - ***R12: N.C.VELAYUDHAN, DRAFTSMAN GRADE-I,** - **P.H.SECTION, KERALA WATER AUTHORITY.** ***ADDL.R11 & R12 ARE IMPLEADED AS PER ORDER DATED 18/09/09 IN IA.NO.912/09.** **R1 TO R3 BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI** **SRI.BRIJESH MOHAN** **R4 TO R6 BY SMT.SUMATHY DANDAPANI,SENIOR ADVOCATE ADVS.SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY SMT. AMBIKA DEVI, SC, KWA** **SRI.C. UNNIKRISHNAN** **R7 & R10 BY ADV. SRI.P.C.SASIDHARAN** **R8 BY SRI.M.R.RAJENDRAN NAIR,SENIOR ADVOCATE ADV. SRI.VARUGHESE OOMMEN** **R10 BY ADV. SRI.T.S.SHYAM PRASANTH** **ADDL.R11 & R12 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY** **SMT.N.SANTHA SRI.S.A.ANAND SRI.PETER JOSE CHRISTO** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11-03-2014,ALONG WITH WA.NO.192 OF 2009 AND CONNECTED CASES, THE COURT ON 27-06-2014 DELIVERED THE FOLLOWING:** **sts** ## **W.A.NO.151/2009** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** ## **NIL** ## **RESPONDENT'S ANNEXURES:** - **ANNEX R3(A) COPY OF THE JUDGMENT DATED 6/7/2012 OF THIS HON'BLE COURT IN WP(C)NO.13500/2012** - **ANNEX R3(B) COPY OF THE ORDER OF THIS HON'BLE COURT DATED 13/12/2012 IN R.P.NO.1052/2012** - **ANNEX R3(C) COPY OF THE JUDGMENT DATED 17/1/2013 OF THIS HON'BLE COURT IN WP(C).NO.13500/2012** - **ANNEX R3(D) COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 25/9/2012 IN WP(C).NO.22051/2012** - **ANNEX R3(E) COPY OF THE ORDER OF THIS HON'BLE COURT DATED 19/11/2012 IN R.P.NO.1063/2012** - **ANNEX R8(A) COPY OF THE CIRCULAR KWA/HO/E4(B)-6565/2012 DATED 25/08/2012 ISSUED BY THE MANAGING DIRECTOR** - **ANNEX R8(B) COPY OF THE LETTER NO.KWA/HO/E4(B)-6565/2012 DATED 25/8/2012 ISSUED BY THE M.D., KWA TO THE STANDING COUNSEL, WHICH WAS OBTAINED UNDER RTI ACT ALONG WITH COVERING LETTER NO.KWA/JB/E4(B)-6565/2012 DATED 09/01/2013** - **ANNEX R8(D) COPY OF THE JUDGMENT DATED 19/11/2012 IN R.P.NO.996/2012 IN WP (C).NO.22051/2012** - **ANNEX R8(E) COPY OF THE COMMUNICATION NO.KWA/HO/E4/161/94 DATED 19/01/2013 ISSUED BY THE M.D., KWA TO THE STANDING COUNSEL.** **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## Thottathil B.Radhakrishnan & A.Muhamed Mustaque, JJ. = = = = = = = = = = = = = = = = = = = = = = = = W.A.Nos.151, 192, 203 and 467 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27[th ] day of June, 2014 ## Judgment ## Thottathil B.Radhakrishnan, J. - 1.These appeals arise from a common judgment delivered in O.P.Nos.33514 of 2001 and 879 of 2002. - 2.Heard the learned advocates appearing for the appellants in the different appeals, the learned senior counsel for the Kerala Water Authority and the learned advocates appearing for the private respondents in the appeals, including those who have been impleaded later on. - 3.The dispute in these cases relates to seniority between promotees and direct recruits in the WA151/2009 & con.cases -: 2 :- category of Draftsman Grade-I in the Kerala Water Authority. The direct recruits in that category are on one side. The promotees to that category from Draftsman Grade-II, including those who moved up the ladder from still lower cadres, are on the other. 4.With the issuance of Government Order dated 17.12.1990 [GO(P).No.210/90/LAD] inserting certain provisions into the Kerala Public Health Engineering Subordinate Service Rules with retrospective effect from 1.4.1968, disputes arose as to the retro-activity that could be effectuated under such rule making power. The validity of those rules was upheld by a Division Bench of this Court in W.A.No.1906 of 1998 and connected cases. However, the seniority list, which was also the subject matter of that litigation, was found to be otherwise invalid since the dates of entry into service by direct recruits were fixed without taking note of the advice given by the Public Service Commission. That seniority list was, therefore, set aside by WA151/2009 & con.cases -: 3 :- this Court and KWA was directed to prepare seniority list afresh taking into account Rules 27(a), (b) and (c) of Part II K.S.& S.S.R and the afore-noted amendments made as per GO(P) No.210/90/LAD, validity of which was upheld in that judgment. - 5.As per the judgment impugned in these appeals, the learned single Judge followed the afore-noted decision of the Division Bench on the vires of the retrospective amendment, but went further and issued certain directions as regards ratio to be maintained while drafting the seniority list. - 6.It was argued on behalf of the appellants that the learned single Judge has erred in law in construing the provisions of the Special Rules and the application of a ratio between promotees and direct recruits for appointment to the category of Draftsman Grade-I. Adjudication of the factual issues in the seniority dispute is criticised. The direction given by the learned single Judge to prepare seniority list of WA151/2009 & con.cases -: 4 :- Draftsman Grade-I maintaining the ratio of 5:2:3 among the promotees from Draftsman Grade-II, the promotees from the category of Work Superintendents and direct recruits in the implementation of the retrospective amendment is impeached as not available on the basis of the rules. It is argued that in the absence of such a ratio being prescribed in the Special Rules, it is impermissible to formulate any such ratio in an adjudicatory process. We may also record that the correctness of the decision rendered by the Division Bench in W.A.No.1906 of 1998 and connected cases on 13[th] July, 2000 was also sought to be impeached as being in conflict with the law laid by the Apex Court in Jacob v. Kerala Water Authority [1990 (2) KLT 673] and persuading that the matter requires re-consideration. It is pithily argued that the challenge to the seniority list could not have been entertained by the learned single Judge without all persons included in the seniority list being in the array of parties. It is argued that the number of persons are definite and those persons are WA151/2009 & con.cases -: 5 :- identifiable and hence, in terms of the principles governing the adjudication in service law, the issue as to the correctness of the seniority list ought not to have been decided without impleading such parties. 7.We may record that the learned counsel for parties referred also to the decisions of the Apex Court in S.B.Patwardhan v. State of Maharashtra [1977(2) SLR 235], A.Janardhana v. Union of India [1983(2) SLR 113], Direct Recruit - ' Class II Engineering Officers Association's case [AIR 1990 SC 1607], State of Bihar v. Akhouri Sachindra Nath [AIR 1991 SC 1244], State of Uttaranchal v. Dinesh Kumar Sharma [(2007) 1 SCC 683] and Premanand v. Mohan Koikal [2011(2) KLT 26(SC)] and of this Court in Aloysius v. Sarada Muraleedharan [1995(2) KLT 741] and State of Kerala v. Krishna Kumar [2009(3) KLT 274], on the different issues noted above. - 8.Keeping aside all the other contentions and arguments for the time being, it is the WA151/2009 & con.cases -: 6 :- undisputed position that the correctness of the seniority list was decided and directions to recast the seniority list and as regards the ratio were issued without all parties to the seniority list impugned before the learned single Judge being on array in those proceedings. As rightly pointed out by the learned counsel, the seniority list itself would show the identity of the persons included in the list. Those persons would definitely be affected by the decision rendered in such original petitions. It is trite law that while deciding such seniority disputes, including as to the modality in which a particular rule has to be operated, all persons who would be affected by the decision that would be rendered in the writ proceedings are entitled to be heard. Though we, at the first blush, thought that this matter could be further adjudicated by the Division Bench by deciding all other issues, including the effect of the finality of the judgment rendered by the Division Bench in W.A.No.1906 of 1998 and connected cases and the argument that the said judgment is not correct, on a deeper WA151/2009 & con.cases -: 7 :- consideration, we are of the view that it would not be wise for us to do so because, when the correctness of that decision is being decided, the persons who would be affected by any such exercise, including those employees in the cadre who wound stand by that judgment would be eligible to be heard. Therefore, we think that the proper course that would be open to us is to preserve the examination of all issues and set aside the impugned judgment on the ground that the original petitions in which the impugned judgment was issued ought to have been decided only after affording opportunity to the petitioners therein to seek impleadment of all persons included in the seniority list which was subject matter of the original petitions, if so advised, or otherwise, to their peril. The two original petitions having been consolidated for consideration, it would be inappropriate for us to segregate and decide issue partly here, thereby excluding opportunity for all the parties to raise all contentions before learned single Judge. WA151/2009 & con.cases -: 8 :- For the aforesaid reasons, the common judgment impugned in these writ appeals is set aside on the ground of non-joinder of necessary parties and leaving open all other issues paving way for re-consideration of O.P.Nos.33514 of 2001 and 879 of 2002 on merits after necessary parties are brought on record on application of the petitioners in those original petitions. No action taken on the basis of the interlocutory orders in the writ appeals or on the basis of the judgment impugned would survive. Interim orders, if any, which governed the parties as on the date of final hearing of the original petitions by the learned single Judge, will govern the parties for the time being, until varied or vacated by the learned single Judge following this order of remit. The parties will be at liberty to seek interim relief, if so advised, as may be found just and proper at the hands of the learned single Judge or for expeditious consideration of the original petitions. The original petitions are, therefore, remitted for consideration of WA151/2009 & con.cases -: 9 :- learned single Judge. These writ appeals are ordered accordingly. Thottathil B.Radhakrishnan Judge A.Muhamed Mustaque Judge Sha/