PADMANABHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner was one of the applicants for selection and appointment to the post of Junior Engineer (now redesignated as Assistant engineer) in the Radio Branch of the Kerala Engineering subordinate Service attached to the office of the 2nd respondent, the Chief Engineer, (Buildings & Roads ). Public Works Department, Government of Kerala, Trivandrum , pursuant to the notification issued by the 3rd respondent, the Kerala Public Service Commission. Ext. P-1 is the copy of the ranked list showing 13 persons selected in the order of merit. THE petitioner's rank in Ext. P-1 is 10. Ext. P-1 being dated 25-1-1979, in terms of R. 13 of the Kerala Public Service Commission Rules of Procedure it was to lapse after 24-1-1981. According to the petitioner, till 1979 the cadre strength of Junior Engineer (Radio Branch) was 23, out of which there were only 2 direct recruits, whereas there should have been 14 direct recruits, applying the ratio of 3:2 as per the Kerala Engineering Subordinate Service (Radio branch) Rules issued in GOMS. 26/67/pw dated 3-2-1967; the shortfall was occasioned by the delay in recruitment caused by a variety of circumstances. THE grievance of the petitioner is that though there were enough number of candidates who were eligible to be recruited, the recruitment did not take place till about the middle of 1979; the remaining vacancies earmarked for direct recruits were filled up by promoting Radio Mechanics temporarily, in excess of the ratio available to them. Ext. P-2 is a copy of the appointment order temporarily promoting two hands from service to fill up the posts earmarked for the direct recruits. In Ext. P-2 it is made clear that the promotion was purely provisional subject to the condition that the promotees would be reverted when the P. S. C. hands joined duty; it was after obtaining a declaration to that effect that the incumbents shown in Ext. P-2 were allowed to join duty as Junior Engineers. Having noticed that the ranked list Ext. P-1 was about to lapse shortly, and only 6 out of the 10 candidates in the main list had been advised for appointment, the petitioner on 18-12-1980 filed this writ petition seeking the following reliefs: " (a) to direct the 1st and 2nd respondents by issue of a writ in the nature of mandamus to appoint the petitioner as Junior engineer-now redesignated as Assistant Engineer (Radio) in one of the vacancies earmarked for direct recruits according to the Kerala Engineering Subordinate service (Radio Branch) Rules prior to its amendment by Ext. P-3 order; (b) to direct the 2nd respondent to appoint the petitioner as a Junior Engineer-redesignated as Assistant Engineer (Radio)subject to final orders of this Hon'ble Court;" This Court on 21-1-1981 in C. M. P No. 722 of 1981 issued the following order: - "heard counsel for the petitioner and the learned government Pleader. THE 2nd respondent, the Chief Engineer (B and R) P. W. D. , trivandrum, will appoint the petitioner as a provisional Junior Engineer (Radio) on or before 24-1-1981, if there is a vacancy for that post and if the petitioner has been advised by the Public Service Commission and if the candidates above him have already been appointed or having been advised they have not joined the service. " It is admitted on all hands that the direction contained in the said order has not been implemented.

(2.) SRI Rawther, the Government Pleader, appearing on behalf of respondents 1 and 2, submitted that the direction contained in the order dated 21-1-1981 could not be implemented because there was no vacancy for absorbing the petitioner; and Ext. P-1 ranked list had ceased to be in force after 24-1-1981. He also submitted that the petitioner not having been advised by the 3rd respondent, he could not have been appointed for the reason that the mere inclusion in the ranked list prepared by the Public service Commission by itself did not confer any title to the post in so far as the person included in the list was concerned. It was also his submission that in Ext. P-1 ranked list the petitioner ranked No. 10; and the P. S. C. having advised only 6 among the persons mentioned therein, the petitioner would not have been advised or appointed in the next vacancy to be filled up. A further submission made by sri. Rawther is that the Kerala Engineering Subordinate Service (Radio Branch)Rules, 1967, having been amended by Ext. P-3 Government Order, and in consequence the ratio between the direct recruits and promotees having been altered from what was 3:2 previously to 25:75, the petitioner could not have aspired to get the appointment if and when the amended rules which came into force on 28-7-1979 was put into operation. Lastly, it was submitted by SRI. Rawther that assuming that the petitioner was entitled to some relief, that could not be granted to him for the reason that those who were likely to be affected by his appointment were not made parties to the writ proceedings.

(3.) ELABORATING bis argument. Sri Sivaraman Nair submitted that the admitted fact is that the cadre strength of Junior Engineers was 23,14 were to be filled up by direct recruits, and 9 by promotees; only 7 posts were held by direct recruits; this was the position as on 28-7-1979; thereafter, therefore, there were 7 posts to be filled up by direct recruits against which the 3rd respondent admittedly had advised only six persons out of whom three did accept the post, thus leaving four posts to be filled up by direct recruitment. He also drew my attention to Para. 9 of the counter affidavit of the 3rd respondent to highlight his contention that if only the 2nd respondent had reported the vacancy, the petitioner would have been the person whom the 3rd respondent would have advised. Again for the sake of precision and to avoid any vagueness, I shall quote the averments made in the earlier part of that paragraph which read as follows: - "9, Regarding the averments of the petitioner in para. 4 to 7 of the O. P. , the following facts are submitted. Only two vacancies were reported by the Chief Engineer for making direct recruitment and those vacancies were notified in the Gazette dated 12-7-1977. The number of vacancies notified was only two and not 13 as stated by the petitioner. Altogether 6 candidates were however advised for recruitment from the ranked list, as per this office letters No. RIIA (4) 17881/77/gw dated 8-2-1979, GR I (4)17881/77/gw dated 2-10-1980, GR I (4)17881/77/gw dated 10-11-1980, GR 1 (4)17881/77/gw dated 1211-1980 and GR I (4) 17881/ 77/gw dated 17-11-1980, in four vacancies, two being the vacancies which arose consequent on the cancellation of the advice on recruitment of two candidates, viz. S. Ganeshan and m. D. Ramachandran who were not willing to accept the appointment. The vacancy that arose consequent on the relief or Sri Vijaya-chandran had not been reported to the Commission. No more vacancies in the post were reported during the pendency of the list. " Sri Sivaraman Nair contended that the facts disclosed in the passage quoted above themselves would show that actually 6 persons were advised, 3 persons advised had declined to accept the post, and the next post was to be filled up by the 10th in the list, namely the petitioner. There, of course, is dispute between the petitioner on the one hand, and the respondents on the other, as to whether, on the application of the principles of communal rotation, it would be the petitioner belonging to the forward community, ranked 10th in the list, or any one among the three belonging to the backward class shown in the supplementary list that would be entitled to the post if the post was to be filled up. Sri. Sivaraman Nair would contend that as against 7 posts 6 persons were advised, 3 persons alone accepted the appointment, thus leaving four posts vacant, and even assuming that the post declined by Sri. Vijayachandran, rank No. 3, is to go to an Ezhava or Thiyya (serial No. 13), then also, in the next turn, the appointment would have gone to the petitioner. I would revert to this question after considering the other contentions raised in the writ petition.