K.V.JOHN Vs. KERALA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) THE appellants are the writ petitioners in O.P.No.72 of 1976,which was dismissed by a learned Judge of this court.They had challenged Ext.P -3 order of the Public Service Commission which assigned seniority to them after a selection as Junior Engineers,Kerala State Electricity Board.The appellants were aggrieved by the ranks assigned to them by the Public Service Commission,as this was contrary to the statutory provision in Rule 27(c)of the Kerala State and Subordinate Services Rules adopted by the Kerala State Electricity Board.The learned Judge,in dismissing the writ petition observed that the Board and Public Service Commission were more or less forced to adopt this mode of fixing seniority in view of administrative exigencies;and the learned Judge found nothing illegal in the proceedings.It was on this ground that the writ petition was dismissed.

(2.) THE appellants are Engineering Graduates who were appointed as I Grade Overseers in the Kerala State Electricity Board some time in 1968.By Ext.P -1 proceedings of the Board dated 9th December 1970,it was notified after consideration of the question of reserving a certain percentage of vacancies of Junior Engineers for appointment by direct recruitment,that in making appointment to the said post,40 per cent of the vacancies will be from open market and 10 per cent by direct recruitment,of Engineering Graduates in the service of Board as Overseers,Clerks,etc.We are not concerned with the rest of Ext.P -1 proceedings.On 2nd February 1971 the Public Service Commission invited applications for recruitment to the post of Junior Engineers in the Electrical Department consistent with terms of Ext.P -1 proceedings.A clarified notification was issued on 22nd March 1971.The appellants applied in pursuance of the these notifi­cations.They were interviewed by the Public Service Commission on 29th May 1971 and selected for the post of Junior Engineers.They were advised by the Public Service Commission on 4th June 1971 and appointed by Ext.P -2 dated 17th June 1971.Ext.P -2 order expressly recites that the appointment was in pursuance of the advice dated 4th June 1971.Three open market candidates were advised on 7th July 1971,11th October 1971 and 23rd October 1971.Respondents 4 and 5 were included in the advice list dated 11th October 1971.The Commission thereafter prepared a combined seniority list,Ext.P -3,of departmental and open market candidates,in which the petitioners were placed below the respondents.A perusal of the inter se seniority list,Ext.P -3,will show that it was prepared by following 1:4 ratio between the departmental candidates and open market candidates.Ext.P -3 itself is dated 18th January 1973.The Electricity Board had by its proceedings dated 25th September 1975,( See Ext.P -6)ordered that the existing ratio of Junior Engineer(Electrical)and I Grade Overseer(Electrical)under the Board between departmental and open market candidates was 1:4;and that accordingly,the first candidate from the advice list of departmental candidates would be ranked first,thereafter four candidates will be ranked consecutively from among those from the open market in the order of seniority in the advice list,and then the next candidate from the depart­mental quota,and the process will continue till the quota,of the departmental candidates is exhausted.Ext.P -3,in fact,seems to have followed this principle stated to be in vogue even prior to Ext.P -6.

(3.) FOR the Public Service Commission,and for the Electricity Board it was represented that having regard to the exigencies of administration and the difficult situation presented in filling up the vacancies from the two different sources,namely,from service candidates and from the open market,and collating the seniority of both,the procedure adopted by the Commission of finalising the list of departmental candidates first,and turning to the open market candidates next,was not illegal.The contention found favour with the learned Judge.We are unable to sustain the same.To make ourselves absolutely sure about the position,we called for the two notifications,namely,the one dated 2nd February 1971 and the other dated 22nd March 1971,in order to see whether by the terms of these notifications,the Commission had reserved to itself the power of making a provisional advice to be finalised later after recruitment from the two sources was completed.Whether such a provision could prevail against the statutory rule,is a different matter,on which we need not express ourselves.After taking time for production of the files,counsel for Public Service Commission intimated to us that no such reservation was made in the notification issued by the Public Service Commission.That being so,we see no ground on which Rule 27(c)of the Kerala State and Subordinate Services Rules is to be denied its full force and effect.We are unable to agree with the learned Judge that exigencies of service or administration would warrant a departure from the rigour of Rule.It was stated in the counter affidavit of the Public Service Commission that it was clearly stated in the advice letter of the Commission dated 4th June 1971 that the advice of candidates under the departmental quota will be provisional,and that seniority will be finalised after recruitment from open market.Ext.P -2 memo of appointment issued to the 1st appellant does not bear out this statement.It contains no such reservation. We allow this appeal and set aside the judgment of the learned Judge and quash Ext.P -3 list of the Public Service Commission in so far as it assigns seniority to the appellants which is at variance with Rule 27(c)of Kerala State and Subordinate Services Rules.We direct the Kerala State Electricity Board to assign seniority to the appellants in accordance with the rule.There will be no order as to costs.