M. Ramachandran vs State of Kerala and Others

P.V. Asha, J.—1. The petitioner is challenging Annexure I order passed by the Kerala Administrative Tribunal in T.A.1424/12 by which Ext. P12 order transferring the petitioner from the Department of Irrigation as junior most in the Public Works Department was set aside and it was directed that petitioner would be treated as having continued in the Irrigation Department notwithstanding his transfer granted as per Ext. P12. The facts of the case are as follows.

The petitioner was a candidate who submitted application for selection and appointment as Assistant Engineer pursuant to the notification issued by the Public Service Commission as per Annexure A1 notification issued on 19.6.1986 in the erstwhile PWD. While so the PWD was bifurcated as per Annexure A2 order dated 29.3.1990. As per Clause (xxi) of this order the PSC has to be requested to prepare a common rank list from which advice was to be made to Public Works (Roads and Buildings) Department or Irrigation Department as per request of the department for the purpose of direct recruitment. Clause (xxii) provided that a committee consisting of two Chief Engineers each from Public Works Department and Irrigation Department be formed in order to examine the issues arising under bifurcation and to advise the Government for suitable action. The petitioner was thereafter advised by the PSC as per Ext. P1 advice memo issued on 11.5.1993 for appointment as Assistant Engineer in PWD. Thereafter by Ext. P2 he was appointed in the Irrigation Department on 28.5.1993. Aggrieved by the appointment in the Irrigation Department, as against his application for appointment in the PWD petitioner submitted several representations before the respondents. When the representation was rejected by Ext P5 letter dated 16.5.1998, saying that he should not have accepted the posting in Irrigation Department and ought to have waited for a posting in PWD. Challenging Ext P5, petitioner filed O.P.11910/98, for a direction to respondents appoint him in PWD. This Court, by Ext. P6 order dated 16.8.1999, issued an interim direction to keep one post of Assistant Engineer in the PWD vacant. During the pendency of the O.P, Government issued an order Ext. P8 on 6.8.2003 by which two Assistant Engineers M/s. P.S. Krishnadas and E.K. Hydru of the Irrigation Department were absorbed as Assistant Engineers in PWD. M/s. P.S. Krishnadas and E.K. Hydru were juniors to the petitioner and according to petitioner, they were absorbed in the PWD in preference to him. In these circumstances this court disposed of the O.P directing the petitioner to approach the government with a detailed representation and government was directed to pass orders taking into consideration of the order passed by the government in Ext. P8. Thereafter, Government issued Ext. P10 order rejecting the request of the petitioner, saying that applications were invited by PSC prior to the bifurcation of PWD and in the newly formed PWD there were no vacancies for fresh recruitment; the advice of the petitioner by the PSC was not only to PWD but also to Irrigation Department and therefore there was nothing wrong in his appointment in the Irrigation Department. Regarding the two Assistant Engineers referred to by the petitioner, it was stated that they were selected as Assistant Engineers in the departmental quota and they had opted PWD in the process of bifurcation while they were working as Overseers/Draftsmen in the erstwhile PWD. Hence his request was rejected, pointing out that petitioner was not entitled to be posted in PWD. The petitioner continued to submit representations requesting for posting in PWD. Finally by Ext. P12 order issued on 19.8.2005 government passed an order appointing the petitioner as Assistant Engineer in PWD, on interdepartmental transfer basis on his request subject to the terms and conditions stipulated in G.O(MS) No. : 4/61/OD dated 2.1.61 as a special case. The petitioner was directed to report within fifteen days on relieving from the Irrigation Department.

Petitioner joined duty in PWD. As the petitioner had not made any request for interdepartmental transfer agreeing to be junior most in PWD, he submitted representations Exts. P13 and P13 before the Minister on 6.9.05 and 12.9.05, requesting to delete the conditions in the order of his transfer. Govt. rejected it by Ext. P16 letter dated 20.3.07, saying that interdepartmental transfer was given to him following the spirit of the orders of this Court in the judgment in O.P.11910/98. It was stated the principles for transfer to the PWD can only be in terms of the principles laid down in Government Order dated 2.1.1961. It was further stated therein that he cannot seek cancellation of the conditions in the order, after joining duty in the PWD, based on the order dated 19.8.2005.

Aggrieved by the orders Exts.P12 and P16 petitioner again approached this Court in W.P.(C) 13145/2007 challenging the same and praying for a direction to the respondents to provide him all service benefits including seniority in the cadre of Assistant Engineer in PWD and consequential reliefs for assigning seniority accordingly.

The respondents filed a counter affidavit in the writ petition refuting the contentions in terms of their contentions in the orders of rejection. i.e. there were no vacancies in PWD till the year 1998, consequent to the bifurcation of PWD effected in 1990 and the 2 Assistant Engineers absorbed in PWD were Assistant Engineers selected in departmental quota and they had opted PWD while working as draftsman in the erstwhile PWD. It was also pointed out that their absorption in PWD were in the vacancies available in the departmental quota. Those who were in service before the bifurcation were eligible for submitting option but those Assistant Engineers submitted their options, though they were posted in Irrigation Department initially as Assistant Engineers. It was stated that at the time of appointment of the petitioner there were no vacancies in the newly formed PWD in the year 1993. As petitioner had joined PWD on account of Ext. P12 order of transfer, it was stated that he can be treated only as the junior most in terms of the conditions stipulated in G.O(MS)4/61/PD dated 2.1.1961. It was pointed out the petitioner did not submit any representation for cancellation of the order of transfer.

The KAT, after considering the rival contentions on either side found that petitioner could have declined to accept his appointment in Irrigation Department in case he was not satisfied with his appointment. Observing that there were no vacancies in PWD after the bifurcation was effected and that the ranked list was to operate for both the departments, KAT found that there was nothing wrong in his appointment in Irrigation Department. However, the order transferring the petitioner by Ext. P12 treating as junior most subject to the conditions contained in G.O(MS)4/61/PD dated 2.1.1961 was not found not proper, as there was no such request from the petitioner. At the same time, it was found that the petitioner''s request to continue in the PWD overlooking the claims of several others who were seniors to him cannot be allowed. It was observed that there were several persons who were in service in PWD as on 31.3.1990, were waiting for absorption in PWD, on the basis of their options submitted at the time of bifurcation. Therefore, In such circumstances the request of the petitioner who was a fresh appointee as on the date of bifurcation was found inadmissible as the same would result injustice to such persons.

The KAT therefore quashed Ext. P12 order in full and directed that applicant shall be treated as having continued in Irrigation Department all along and allowed the petitioner to work out further reliefs. It is as against this direction that the petitioner has approached this Court.

We have heard the learned counsel for the petitioner as well as the learned Govt. Pleader and considered the rival contentions and pleadings. The petitioner''s claim for absorption in PWD is mainly on the basis of the notification issued by the PSC for appointment to the PWD and thereafter on the basis of Ext. P8 order issued in the case of two Assistant Engineers who were absorbed from Irrigation Department to PWD. Regarding the claim on the basis of the notification Annexure 1 and the advice Ext. P1 for appointment in PWD, it is clear that petitioner could not have been appointed in PWD on account of the bifurcation effected to the erstwhile PWD in the year 1990. The notification was issued by the PSC inviting applications for appointment to the post of Assistant Engineers in the year 1986. The ranked list was published on the date of bifurcation in 1990. Advice was made only in the year 1993. Even though the advice was to the PWD, which was apparently issued, going by the notification inviting applications, in the absence of vacancies in the PWD, petitioner could not have been appointed in PWD. He got appointed in the Irrigation Department where alone vacancies were available. In case the appointment was not made to the Irrigation Department at the relevant time, an appointment in PWD would not have been possible before 1998, as it is stated that there was no vacancy in PWD till the year 1998. At any rate the petitioner joined duty as Assistant Engineer in the Irrigation Department.

The claim on the basis of Ext. P8 order, by which two Assistant Engineers were transferred/absorbed in PWD cannot also be accepted, since it is seen from Ext. P8 order itself that those two Assistant Engineers had joined the department in the erstwhile PWD as Overseers/Draftsman and when the erstwhile PWD was bifurcated they had opted for continuing in the PWD. They had appeared for the selection for appointment to the post of Assistant Engineers through PSC under the departmental quota. Accordingly they were advised to Irrigation Department. From Ext. P8 it can be seen that they had approached this Court in several writ petitions and the Chief Engineer considered their cases on the basis of direction from this Court. Finally government in Ext P8 order found that they were continuing in the erstwhile PWD till 1994. As per this their appointment as Assistant Engineers was in departmental quota and they were absorbed in the PWD against vacancies in departmental quota in PWD. The contention of the learned counsel for the petitioner is that once they joined as Assistant Engineers they cannot be considered in the departmental quota. It is further contended that petitioner is ranked far above them in the rank list and therefore they should not have been absorbed in PWD in preference to him. As already found that those Assistant Engineers were departmental hands who had submitted option while they were in service as Overseers/Draftsman at the time of bifurcation, who had already opted for PWD, the claim of the petitioner cannot be considered on par with them. The petitioner who is a directly recruited Assistant Engineer cannot have any claim over those Assistant Engineers who were posted in PWD in departmental quota and in preference to those awaiting absorption after submitting option.

We therefore find that the KAT has considered the relevant facts and circumstances of the case and protected the interests of the petitioner. In the circumstances we do not find any infirmity in the order passed by the KAT. The original petition is therefore dismissed.