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PETITIONER: S. GOPA KUMAR

       Vs.

RESPONDENT: STATE OF KERALA & KERALA PUBLIC SERVICE COMMISSION

DATE OF JUDGMENT21/09/1981

BENCH: ISLAM, BAHARUL (J) BENCH: ISLAM, BAHARUL (J) PATHAK, R.S.

CITATION:  1981 AIR 2027            1982 SCR  (1) 744  1981 SCC  (4) 415        1981 SCALE  (3)1581

ACT:      Practice and  Procedure Inadvertant  error in the order of Supreme Court- If could be corrected.

HEADNOTE:      For selection  of candidates  for the  post  of  junior engineers in  the Public  Works Department, the State Public Service  Commission  prescribed  a  written  test  in  which persons  qualified   in  Civil   Engineering  could   answer questions in  category I  and those  qualified in Mechanical Engineering could  answer questions  in category II, both of which were contained in the same question paper.      After the test and interview but before the common rank list was  prepared some  candidates impugned  the method  of selection alleging  that the categories of Civil Engineering branch  and  Mechanical  Engineering  branch  could  not  be rationally included in a common rank list.      A single  Judge of  the High Court directed the Service Commission to  prepare separate  lists in respect of each of the two  branches.  A  Division  Bench  of  the  High  Court dismissed appeals of some of the aggrieved candidates      Dismissing the  petition for  grant  of  special  leave filed by  one candidate this Court observed that it was open to  the   petitioner  to  choose  the  Civil  or  Mechanical Engineering from  the "common  list" prepared by the Service Commission.  When   the  State   came  to   this  Court  for clarification of  the earlier  order, this  Court again said that if  the candidate’s  turn came  in The "common list" he was entitled  to claim  the post under the earlier orders of this Court.      Seeking  clarification   and  directions,   the   State Government prayed that the expression ’common list’ prepared by the Public Service Commission be deleted from the earlier orders of  this Court  so as  to enable  the  Commission  to prepare separate  lists in  conformity with the High Court’s directions. ^      HELD: The  words "common  list" mentioned  in  the  two earlier orders of this Court were used through inadvertance. The High  Court directed  the Public  Service Commission  to prepare two  separate rank  lists: one for Civil Engineering Graduates and  other for Mechanical Engineering Graduates on

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the basis  of  examination  already  conducted.  The  Public Service Commission 745 accordingly  prepared  two  rank  lists.  The  name  of  the petitioner herein  appeared A  in  the  list  of  Mechanical Engineering Graduates  and he  would be  appointed when  his turn came. [749 C-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition (Civil) Nos. 2081-84 of 1980.      From the  judgment and  order dated  the 23rd November, 1979 of  the High  Court of Kerala at Ernakulam in W.A. Nos. 149, 167, 169 and 170 of 1979.      A.S. Nambiar and P. Parameswaran for the Petitioner.      k. Sudhakaran  Adv. Gen.  of Kerala,  V. J. Francis and Mustafakani Rowthor for Respondent No. 2.      M. M. Abdul Khader and K.M.K Nair for Respondent no. 4, Kerala Public Service Commission.      P. Govindan  Nair and Mrs. Baby Krishnan for Respondent No. S.      K. Prabhakaran for the Intervener.      The Judgment of the Court was delivered by      BAHARUL ISLAM, J. In these special leave petitions, the petitioner  assails   the  judgment  and  order  dated  23rd November, 1979  of a Division Bench of the Kerala High Court dismissing a  number of writ appeals. The relevant facts may be stated thus:      2. The  Kerala Public  Service Commission  thereinafter ’KPSC’) invited  applications for  filling up  130  expected vacancies in  the posts  of Junior  Engineers in  the Public Works Department,  as  per  notification  published  in  the Kerala Gazette  dated 16th  May,  1978.  The  qualifications specified for  the posts  were B.Sc. in Civil Engineering or Mechanical Engineering  of  the  Kerala  University  or  its equivalent as  prescribed by the special rules of the Kerala Engineering  Subordinate   Service  (General   Branch).  The applicants had  to appear  in the  written test conducted by the KPSC  and there  after in an interview held by it. There was a  common question paper which contained, in category I, questions in Civil Engineering and in Category II, questions in Mechanical  Engineering. Applicants who were qualified in Civil engineering had to answer the 746 questions in  Category 1,  and those qualified in Mechanical Engineering the questions in Category II.      3. After the written test and the interview, but before a common  rank list was prepared by the KPSC as was intened, 8 Writ  Petitions were  filed in  the Kerala  High Court  by applicants holding  Civil Engineering degrees. By these Writ Petitions the preparation of a common rank list and also the procedure of  the examination and a method of selection were challenged. It  was prayed  in the  Writ Petitions  that the KPSC be directed to effect selection and prepare and publish separate rank lists of selected applicants holding Civil and Mechanical Engineering  degrees. It  was  contended  in  the applications that  the applicants who had qualified in Civil Engineering question  paper and  answered the  questions  in Category I  on the  one hand  and those who had qualified in Mechanical Engineering  and answered  questions indicated in Category II  in the  question paper  could not rationally be included in a common rank list after the interview.      4. The learned Single Judge of the Kerala High Court by

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a common  judgment dated  2nd April.  1979 allowed  the Writ Petitions and directed the Government of Kerala and the KPSC to prepare  "two lists,  namely, one for the Civil Bench and the  other  for  the  Mechanical  Branch  on  the  basis  of examination already conducted".      He  proceeded:   "With  respect   to  it   the  Service Commission has not yet published the rank list. On receiving information from  the Government  on the  above  lines,  the Public Service  Commission is  directed to  prepare the  two separate rank  lists, one  for the Civil Bench and other for the Mechanical  Branch. On  publication of the two lists the Government can  request the Service Commission to advise the candidates for appointment to these branches on the basis of the vacancies available in these two branches."      5. The  Kerala Government  and the  KPSC  accepted  the directions given  by the  learned Single Judge and proceeded to take  steps for the implementation thereof. However, some of the  aggrieved respondents  in the  Writ Petitions  filed appeals before  the Division  Bench of  the High  Court. The appeals were  ultimately dismissed, in view of the fact that the  KPSC  had  advised  239  candidates  according  to  the separate lists for Civil and Mechanical Engineering prepared on the basis of directions given by the learned Single Judge and that these candidates had already been appointed. 747      6. One of the respondents, Shri S. Gopa Kumar, who held a Mechanical  Engineering degree,  was one  of  the  Special Leave Petitioners  before us.  He challenged the judgment of the Division  Bench of  the Kerala  High  Court  dated  23rd March, 1979.  This Court  by an  ex-parte order  dated  23rd April, 1980  dismissed the  Special Leave  Petition with the following observations .           "The prejudice that the petitioner complains of is      taking care  of by  the High Court emphasizing the fact      that the petitioner is entitled to exercise his option.      It is  stated that  he has come high in the Common list      prepared by  the Public  Service Commission. It is open      to him to choose which wing, Civil or Mechanical, suits      him most.  In that  view, we are unable to perceive any      prejudice  especially   because  on  his  option  being      exercised for  the general  or mechanical  wing, as the      case may  be,  he  will  be  chosen  in  terms  of  his      willingness.      All SL.Ps dismissed."                                          (Emphasis supplied)      7. It  may be  mentioned that  preparation of no common list was  directed either  by the  Single judge  or  by  the Division Bench of the Kerala High Court. On the contrary the direction expressiy  was for  preparation of  separate lists for Civil  Engineer and  Mechanical Engineer  candidates  as stated  above.  It  has  also  been  stated  above  that  in pursuance of  the directions  given by  the  learned  Single Judge in his judgment in effect upheld by the Division Bench of the  High Court,  the Government  and the  Public Service Commission of  Kerala proceeded  to prepare  separate lists. But facing  difficulties, in view of the observation of this Court in  its order  dated 23rd April 1980 quoted above, the State of  Kerala filed  a petition  before  this  Court  for clarifications. This  Court passed the following order dated 11th November, 1980:           "We have  heard learned  Advocate General and Shri      A.S.  Nambiar  on  the  modification  or  clarification      sought. The  actual position has already been explained      in the  order by this Court dated 28.4.80. There it has      been  stated   clearly  that  the  petitioner  will  be

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    entitled to  exercise his option and then take his turn      according to  his rank  in the  common list prepared by      the Public Service Commission. 748           Therefore the  petitioner will  be entitled  to  a      post, if  he has  exercised his option in terms of this      Court’s order  and he is high enough in the common list      for claiming  the post.  We have  no idea,  nor are  we      concerned, whether such a vacancy has arisen. If a post      has become  vacant and  the petitioner’s  turn comes in      the common list he is entitled to claim that post under      the orders of this Court . .      8. The  above order,  as it  appears, also  refers to a common list  although no  common list  was  directed  to  be prepared or  was prepared by the KPSC. This was obviously an inadvertent mistake.      9. Since  there was  no common list and since no option was given  to the Special Leave Petitioners before us by the judgment  of   the  Kerala   High  Court,   the  KPSC  faced difficulties in giving effect to the directions given by the High Court.  The KPSC  therefore has made the Misc. Petition before us  for clarifications  and directions,  particularly praying that the expression "the common list prepared by the Public Service Commission should be deleted."      10. We  have heard  learned counsel  of the parties and perused the judgments of the Kerala High Court passed by the learned Single  Judge and  the Division Bench. This Court by its order  dated 28th  April, 1980 dismissed all the S.L.Ps. with observations  referred to  above. This order as well as the order  dated 11th  November, 1980  has been subsequently recalled by  this Court  by its order dated 7th April, 1981, and we do not find any valid ground to reverse the judgments of the  High Court. But in view of the difficulties faced by the KPSC  and the  Government of  Kerala, it is necessary to clarify the position and give necessary directions.      11. Clause  4  of  the  Government  order  No.  G.O.MS. 101/79/PWD&E  dated  27th  September,  1979  the  Government constituted  the   Kerala  Engineering  Service  (Mechanical Branch)   and   Kerala   Engineering   Subordinate   Service (Mechanical Branch)  with posts prescribed therein. It reads thus:           "Government also  order that  all those  who  have      submitted unconditional  options and  who  possess  the      required qualifications prescribed in the rules will be      appointed by transfer to the respective service. In the      case of any category for which the number of options is      more than the 749      appointment by  transfer aud the junior persons will be      admitted, to  the services as and when vacancies arise.      In case  where the number of officers who had submitted      options is less than the number of posts, the remaining      vacancies will  be provided  by direct  recruitment  as      provided in  rule (9)  of the respective special rules.      The Chief  Engineer & R will implement the above orders      forthwith."      Clause 4  gave unconditional  options to  those in  the Kerala Engineering Service (General Branch) to remain in the said branch  or  to  choose  the  newly  constituted  Kerala Engineering subordinate   Service  (Mechanical  Branch).  As stated earlier  the Kerala  Government or  the KPSC  was not directed to prepare a common list.  Common List was referred to in  the earlier  orders in  this  Court  through  certain misapprehensions.  The   KPSC  has  stated  in  its  counter affidavit to  the S.L.P. filed by Shri S. Gopa Kumar against

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the judgment of the High Court that there were directions to the KPSC  to prepare  two separate  rank lists one for Civil Engineering  graduates   and  the   other   for   Mechanical Engineering graduate  on the  basis of  examination  already conducted. Accordingly the KPSC prepared the two rank lirts- one for  Civil Engineering  and  other  for  the  Mechanical Engineering graduates. The name of Gopa Kumar appears in the latter list.  The rank list for Engineering (Civil) contains names of  152 candidates and the other (Mechanical) contains 202 candidates.  All the  Civil  Engineering  selected  have already been  appointed. Shri  Gopa Kumar’s  lank was 138 in the  rank   list  of  Engineers  (Mechanical).  He  will  be appointed when his turn comes.      We think  that the Division Bench of the High Court was right in  dismissing the  writ appeals, having regard to the developments which have taken place.      Accordingly, the special leave petitions are dismissed. There is no order as to costs. P.B.R.                            Petitions dismissed. 750