S. Gopa Kumar Vs. State of Kerala
& Kerala Public Service Commission  INSC 168 (21 September 1981)
ISLAM, BAHARUL (J) ISLAM, BAHARUL (J) PATHAK,
CITATION: 1981 AIR 2027 1982 SCR (1) 744 1981
SCC (4) 415 1981 SCALE (3)1581
Practice and Procedure Inadvertant error in
the order of Supreme Court- If could be corrected.
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
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 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]
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
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
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 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.
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
"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
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 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
"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 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
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
There is no order as to costs.
P.B.R. Petitions dismissed.