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PETITIONER: V.A.RAMAN

       Vs.

RESPONDENT: K.V.JOHN & ORS.

DATE OF JUDGMENT:       12/02/1998

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                THE 12TH DAY OF FEBRUARY, 1998 Present:           Hon’ble. Mrs. Justice Sujata V. Manohar               Hon’ble. Mr. Justice D.P.Wadhwa K. John  Mathew, Sr,  Adv.,  N.  Sudhakaran,  Ms.  Prasantha Prasad, Advs. with him for the appellant A.S.Nambiar, Sr.adv.,  P.K. Manohar,  Adv. with  his for the Respondent No.1-5 P.Krishnamurthy, Sr.Adv.,  T.G.N.Nair,  Adv.  with  his  for intervenors.                          O R D E R      The following Order of Court was delivered:      The applications for impleadment are rejected.      By Notification dated 2.2.1971, the Kerala State Public Service Commission  invited applications  for appointment to the  posts   of  Junior   Engineers  in   the  Kerala  State Electricity Board.  This Notification was issued pursuant to the request received from the Kerala State Electricity Board for making  selections by direct recruitment to the posts of Junior Engineers.  It is an accepted position that the posts of junior  Engineers are  to  be  filled  in  the  following manner: 50%  by promotion and 50% by direct recruitment. 40% were to  be filled  by inviting  applications from  the open market while  10% were to be filled by inviting applications from departmental  candidates who  may be qualified for that post. Accordingly  the said Notification was issued inviting applications for  the posts  of junior  Engineers by  direct recruitment. By  subsequent Notification of 22.3.1971 issued by the  Kerala Public  Service Commission,  it was clarified that departmental  candidates who  are competing for the 10% posts in  the direct  recruitment category will also have to make applications as per the earlier Notification.      The Kerala  State Electricity  Board addressed a letter to the  Public Service Commission explaining its urgent need for filling  the posts of junior Engineers and requested the Public Service  Commission that  since the applications from the open market were over 900, the Public Service Commission could select  the departmental candidates first so that some posts of Junior Engineers could be manned in a shorter time. Acceeding to  this request,  the Public  Service  Commission

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prepared on  the basis  of  interview  the  select  list  of departmental candidates  in the 10% quota. The advice letter dated 4th  of June,  1971 from the Public Service Commission to the  Secretary,  Kerala  State  Electricity  Board  after giving a list of the selected candidates states, inter alia, in paragraph 2:-      "The advice  of these 12 candidates      will be provisional and their inter      se  seniority  vis-a-vis  the  open      market  candidates  will  be  fixed      only after  the finalisation of the      ranked   list    of   open   market      candidates and  after advising them      against the  40% vacancies allotted      to them."      In the body of the said letter also, the Public Service Commission has  referred to  the fact  that  each  candidate named in  the letter  has been  informed of the selection to the  Kerala   State  Electricity   Board.  Accordingly   the appointment  letters   were  issued   to  the   departmental candidates so  selected. A sample letter which was issued to the original  Petitioner No.  5 and  the present  Respondent No.1 dated  17.6.1971 clearly states that he is appointed as Action junior  Engineer (Electrical)  in  pursuance  of  the advice  dated   4.6.1971  of   the  Kerala   Public  Service Commission.      The open  category  candidates  were  selected  by  the Kerala  Public   Service  Commission  after  conducting  the written  examination  and  the  interview.  Their  list  was prepared  by   the  Kerala   Public  Service  Commission  on 15.10.1971.  In   their  case   also,  the   Public  Service Commission issued a letter dated 23.10.1971 addressed to the Kerala State  Electricity Board  forwarding  the  names  and stating that  their appointments  were provisional and their inter se seniority vis-a-vis departmental candidates will be fixed thereafter.  After the  finalisation of  the  list  of candidates,  the   Public  Service   Commission  prepared  a seniority  list  of  all  the  candidates  so  selected.  In prenaring this  list, the Public Service Commission was also required to  take into  account reservations  in  favour  of Scheduled Castes,  Scheduled Tribes and backward classes and other reserved  category candidates  under Rules 14 to 17 of the Kerala  State and  Subordinate Service Rules. As between the  open   category   candidates   and   the   departmental candidates,  since   the  ratio  was  1:4,  their  inter  se seniority was  fixed by  the Public  Service  Commission  by putting the  departmental candidate  at Serial No.1 followed bu four  open category  candidates and thereafter again by a departmental candidate  and so  on. The  final advice of the Public Service  Commission to  the Kerala  State Electricity Board is  their letter  of 18.1.1973  by  which  the  Kerala Public Service  Commission forwarded  the combined  list  of candidates in  their order of seniority from the open market and from  the department  to the  posts of  Junior  Engineer (Electrical) after taking care of reservations prescribed.      Thereupon the  present respondent nos. 1-5 filed a writ petition  before  the  Kerala  High  Court  challenging  the fixation of  their seniority as advised by the Kerala Public Service Commission.  They contended that they were senior to the open  market candidates  and other  reserved    category candidates in  view of the fact that their appointments were made earlier.  The Writ  Petition was dismissed by a learned Single judge  of the  Kerala High  Court  has  upheld  their contention. Hence, the present appeal has been filed.      The Division Bench of the Kerala High Court, has placed

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emphasis on  Rule 27 (c) of the Kerala State and Subordinate Services Rules.  The material  part of  Rule 27  (c)  is  as follows:      "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  advise,      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.      ...................................      .........................      ...................................      .........................      Note  :-   The  date  of  effective      advice in  this Rule means the date      to the  letter of the Commission on      the basis  of which  the  candidate      was appointed."      Rule 27  (c) requires the seniority to be determined by the  date  of  the  first  effective  advice  made  for  his appointment by the Public Service Commission and when two or more persons  are included  in such  effective advice, their seniority is  to be  fixed according  to the  order in which their names  are arranged  in  the  advice  list.  The  Note clarifies the  date of effective advice as being the date of the letter of Commission on the basis of which the candidate was appointed.  The letter, in the present case, of 4.6.1971 cannot be  construed as  the letter  giving effective advice when the  letter in  terms states  that the  advice is  only provisional and  the inter  se seniority of these candidates vis-a-vis the  open marking  list of  open market candidates and after  advice of  40% vacancies  allotted to  them.  The effective advice  in this  context can only be by the letter of 18.1.1973  which is  the final  and effective  advice. It also contains  the final advice list as per Rule 27 (c). The seniority, therefore, has to be determined with reference to the advice  list forwarded  by  the  Kerala  Public  Service Commission by its letter of 18.1.1973.      The fact  that the earlier letters issued by the Public Service Commission  were only  provisional advice,  is  also borne out  by the  appointment letters issued which are only acting appointments  and not  regular appointments  although the candidates  were regularly selected. This is because the final advice has yet to come. The Division Bench of the High Court,  therefore,   was  not  right  in  holding  that  the seniority of  the departmental candidates who were before it would depend upon the date of that provisional appointment.      It is  contended by learned counsel for respondent nos. 1-5 that  they were  never informed that they were appointed pursuant to  the provisional  advice issued  by  the  Public Service Commission  and hence  they are  not bound  by  such advice received  by the  Electricity Board  from the  Public Service Commission. This contention has no merit. The letter of appointment issued to each of the respondents 1-5 clearly

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states that  his appointment is an acting appointment and it is in  pursuance of  the advice dated 4.6.1971 of the Kerala Public  Service   Commission.  The   Kerala  Public  Service Commission had also filed an affidavit before the High Court in which  it stated  that such  advice was also forwarded by the  Kerala   Public  Service  Commission  to  each  of  the candidates.      It was next contended by learned counsel for respondent nos 1-5 that the Kerala State Electricity Board framed Rules fixing seniority as between the departmental and open market candidates recruited  directly only  in 1975. It is nobody’s case that  the  Public  Service  Commission  had  fixed  the seniority under the Rules which came into force in 1975. The seniority was  fixed by the Public Service Commission is the body  which   is  entrusted   with  the  task  of  selecting candidates and  the seniority of the candidates depends upon the order  in which  their names appear in the list prepared by  the   Public  Service  Commission.  The  Public  Service Commission  has   taken  into  account  valid  and  relevant considerations  in  preparing  the  list  in  the  order  of seniority while  forwarding its effective advice. Therefore, the seniority  list so prepared by the Kerala Public Service Commission cannon be rejected.      The  appeal   is,  therefore,   allowed.  The  impugned judgment and  order of  the Division Bench of the High Court is set  aside and  the judgment  and order  of  the  learned single judge  dismissing the  writ petition is upheld. There will, however, be no order as to costs.