John Varghese And Ors vs Sudhakaran K.A. And Ors

Shaffique, J

Third parties had preferred this appeal after seeking leave of Court. They challenge judgment dated 19/12/2018 in WP(C) No.37101/2016. The

petitioners in the writ petition are respondents 1 to 3 herein. They approached the learned Single Judge challenging the attempt on the part of the

Board to fill up vacancies which arose after the date of Ext.P3, i.e., amendment to the Special Rules, from among the candidates selected pursuant to

Ext.P1 notification dated 29/11/2011.

Petitioners were working as Sub Engineers (Electrical) in the Kerala State Electricity Board. 10% of vacancies in the post of Assistant Engineers

(Electrical) is reserved for Sub Engineers (Electrical) having Engineering Degree. The selection is being conducted by way of direct recruitment

through the Kerala Public Service Commission (KPSC). The upper age limit of candidates in the cadre of Sub Engineers (Electrical) for applying to

the post of Assistant Engineers (Electrical) under the 10% quota was fixed at 45 years. 10 vacancies had arisen in the cadre of Assistant Engineers

(Electrical) in the aforesaid 10% quota which was reported to the KPSC and they issued Ext.P1 notification dated 29/11/2011. The last date of

submission of applications was 4/1/2012. Written test was conducted on 15/11/2014, interview was conducted on 31/8/2016 and a ranked list came to

be published on 30/12/2016. In the meantime, the Special Rules were amended as per Ext.P3 dated 5/6/2012, thereby the maximum age for

appointment by transfer under the aforesaid 10% quota was fixed at 50 years instead of 45 years. The writ petition came to be filed on 17/11/2016

prior to the preparation of the ranked list. It was contended that once the Special Rules have been amended increasing the age limit up to 50, those

vacancies which had arisen after 5/6/2012 have to be re-notified and a fresh rank list is to be prepared. They also contended that they were not

eligible to apply as per Ext.P1 notification and hence they did not apply. They contended that 58 vacancies of Assistant Engineers (Electrical) in the

10% quota had arisen after the amendment to Special Rules and therefore only vacancies that had arisen prior to 5/6/2012 could be filled up from the

said ranked list.

Counter affidavit was filed by the 1st respondent inter alia stating that petitioners were persons who were eligible to apply as per the age criteria on

the last date of application. But they did not apply. That apart, Ext.P3 order had been issued as early as on 5/6/2012, but the challenge is made only on

17/11/2016 after a long gap of four years. It is stated that if they have been qualified in terms of both upper age limit and educational qualifications,

they could have applied pursuant to Ext.P1 notification.

The learned Single Judge having observed that when the Special Rules have been amended, those vacancies which arose after the amendment can

be filled only in accordance with the amended rules after giving an opportunity to all such qualified hands. Reliance is made to judgments in Ramesh

Babu C. and Others v. State of Kerala and Others [2013 KHC 3353] and Mohanan K.R. v. Director of Homeopathy and Others [2006 KHC 855].

However, this Court having observed that the writ petition was filed only in the year 2016 and it was not proper to unsettle such appointments, the

following direction had been issued:

“Therefore, I am of the view that the Board shall invite fresh application to fill such 10% quota for all future vacancies and no

appointment shall be made pursuant to Ext.P1 without giving chance to all such qualified aspirants based on Exts.P2 and P3. If there are

vacancies, the Board shall invite notification without any delay at any rate within two months from the date of receipt of a copy of this

judgment. It is made clear that this court had not interfered with the appointment so far made. It is also made clear that the Board shall not

make any further appointment pursuant to Ext.P1. The writ petition is disposed of as above.â€​

Learned Senior counsel appearing for the appellants would submit that though there is no quarrel about the legal position on the basis of which the

learned Single Judge had decided the case, what is to be considered is whether the petitioners had a legal grievance to approach this Court at the

relevant time. First of all, it is submitted that at the time when the rules were amended, petitioners were not qualified as they did not have the

Engineering Degree. Nowhere in the writ petition have they stated as to when they have acquired the Engineering Degree. It is apparent that they had

obtained a degree only before the filing of the writ petition. That apart, there is delay and laches in filing the writ petition. It is also contended that

several persons are included in the ranked list and none of them had been impleaded. She also placed reliance on the judgment of the Apex Court in

Kulwant Singh and Others v. Daya Ram and Others [(2015) 3 SCC 177.] Reference is also made to judgment in Devicolam Distilleries Ltd. v. State

of Kerala and Others [2018 (4) KHC 703] in order to contend that if a litigant invokes the jurisdiction of the High Court, they must approach the Court

with clean hands and clean objects. If there is suppression or concealment of material facts, they are liable to be imposed with heavy costs.

In fact, taking into account the delay in filing the writ petition, the learned Single Judge did not interfere with the appointments made from the

ranked list but confined the appointments till the date of judgment.

Though it is contended by the learned Senior counsel that the writ petitioners are not entitled for any relief on account of the fact that they had no

locus standi and that material particulars have been concealed, when the law laid down by this Court in Mohanan (supra) clearly indicates that when

there is an amendment to the Special Rules, vacancies arising after the said date have to be filled up based on the amended rules, despite the

infirmities pointed out by the learned senior counsel, when such matters are brought to the notice of the Court regarding a patent illegality, there is no

impediment on the part of the Constitutional Court to take cognizance of such facts and issue appropriate directions. A public authority like the Kerala

State Electricity Board is bound to comply with the rules and the law laid down by this Court in the matter relating to appointments. Of course, it is not

mentioned in the writ petition as to when the petitioners acquired the qualification in terms of the Special Rules and there is also delay on the part of

the petitioners in approaching this Court. But when a statutory authority does not comply with the rules and the law laid down by this Court and the

matter is brought to the notice of this Court, being a public law remedy, this Court is entitled to issue appropriate directions. The learned Single Judge

also took cognizance of the fact that there has been violation of the Special Rules. But still, the learned Single Judge did not interfere with the

appointments made by the Board until then, especially on account of the fact that there was delay in challenging the action taken by the respondents.

Writ petitioners had contended that they did not apply pursuant to Ext.P1 notification as they were not eligible. However, when the upper age limit

was enhanced from 45 years to 50 years, their contention is that further recruitment has to be made only on the basis of the amended rules. Their

specific contention was that the vacancies that had arisen after the enhancement of age by the amended rules can be filled up only by a fresh

selection. It is true that they have not mentioned anything about their qualification for participating in the selection to be conducted based on amended

rules. But they have specifically pleaded that they did not apply as they were not eligible to apply as per the unamended rules. The appellants have

taken up a contention that the petitioners acquired the qualification for the post only after Ext.P1 notification. There is of course concealment of the

fact as to when the petitioners acquired the qualification. But even according to the appellants, at least two of them had become eligible to participate

in the selection process if a notification was issued after the Special Rules had been amended Therefore, it cannot be stated that the petitioners did not

have a legal grievance in the matter and therefore the contention that they had no locus standi to approach the court seeking the reliefs sought for is

totally out of place.

Yet another contention urged is that the persons in the rank list have not been made parties to the lis. First of all, the writ petition was filed even

before the rank list came into existence and the specific contention urged is not challenging the rank list as such, but on the ground that the vacancies

that had arisen prior to the amendments to the Special Rules alone could be filled up from the said ranked list. Therefore, not impleading all the

persons in the ranked list will not render any justification to interfere with the impugned judgment.

Learned senior counsel submits that from among the ranked list, only 16 persons are to be appointed and all others were appointed. We do not

think that we will be justified in issuing directions permitting further appointments to be made from the said ranked list especially when several other

persons from the ranked list who were qualified as per the earlier rules were appointed.

In the result, we do not find any ground to interfere with the judgment of the learned Single Judge. Appeal is dismissed.