P.M. Swopna vs Kerala State Electricity Board

A. Muhamed Mustaque, J.—The petitioners in this writ petition are currently working as Engineers in Kerala State Electricity Board. The selection to the post of Sub Engineer invited as per Ext. P1 notification by the Kerala Public Service Commission, the petitioners applied for the same. The qualification prescribed in the above notification is Diploma in Electrical Engineering. The petitioners are holders of B.Tech Degree in Electrical Engineering. On perusal of the applications, it was found that the petitioners were not eligible to apply for the post as qualification one which prescribed for the post, was Diploma in Electrical Engineering.

Though the petitioners are having higher qualification, the petitioners applications were rejected. The petitioners thereafter challenged the action of the Public Service Commission before this Court. This Court allowed the petitioners to take part in the selection process and the petitioners were included in Ext. P2 rank list published by the Kerala Public Service Commission based on the interim orders passed in the original petitions. The Division Bench of this Court ultimately negatived the claim of the petitioners. The petitioners thereupon challenged the judgment of the Division Bench before the Hon''ble Supreme Court in SLP in which Ext. P3 judgment was rendered. The Hon''ble Supreme Court accepted the petitioners claim and petitioners were directed to be appointed to the post in the vacancies which are available within three months from the date of order. In Ext. P3 judgment it has been observed by the Hon''ble Supreme Court as follows:

However, we must notice one aspect of the matter. The Diploma holders who had been selected by the Public Service Commission have already been appointed and, therefore, it would not be appropriate for us to disturb those appointments. They shall continue in such appointments. Such of those eligible Degree holders who fulfill the qualifications referred to above and found suitable to be appointed shall be appointed taking note of the vacancies which are available within a period of three months from the date of this order.

Pursuant to Supreme court judgment Public service commission issued an addendum notification and published rank list of candidates including petitioners. This is produced as Ext. P4. The petitioners were appointed to the post pursuant to the judgment of the Hon''ble Supreme Court as per the advice memo issued by the Kerala Public Service Commission dated 11.12.2002 as evident from Ext. P5 issued in favour of the first petitioner.

The petitioners in this writ petition assail the seniority assigned to the various candidates. According to the petitioners, they are placed above ranks of the persons who were appointed before 11.02.2002 in Ext. P4. However they submit in the gradation list of Sub Engineers (Electrical) prepared as on 01.01.2004 they are placed lower to the persons based on the ranking in Ext. P4. Gradation list is produced as Ext. P7 which is prepared based on advice list of Public Service Commission. It is further submitted that in the gradation list those have been advised earlier than petitioners though juniors in ranking are figured as seniors. In short their argument is that they were duly qualified to be appointed to the post of sub engineer and it is due to adamant stand post of Public Service Commission delay in advising them occurred. The petitioners challenge seniority assigned to them in Ext. P7 gradation list.

The learned counsel for Kerala the Public Service Commission by referring to Rule 27(c) of K.S. and S.S.R. submits that seniority shall be reckoned from date of effective advice made and not based on ranking in Ext. P4 which was issued as addendum to include petitioners pursuant to Supreme Court Judgment. Rule 27 (c) is quoted herewith.

Notwithstanding anything contained in clauses(a) and (b) above, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list.

The normal rule is that the person, who is appointed in service, whose seniority is determined by the date of first effective advice made for his appointment. At the time of rendering judgment by Hon''ble Supreme Court the third respondent and other similarly situated candidates were already appointed in the service. If petitioners were aggrieved by such seniority, they would have raised their objection before the Hon''ble Supreme Court. However, it is seen from the judgment of the Hon''ble Supreme Court, the Hon''ble Supreme Court never intended to disturb the seniority of the persons who were appointed as on the date of rendering the judgment by giving retrospective effect to the appointments of the petitioners to be made based on that order. In view of the above fact, I see no reason to interfere with Ext. P7.

Accordingly, the writ petition fails and the same is dismissed. No costs.