Kerala High Court
Pradeep Kumar S vs Kerala State Road Transport ...
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
MONDAY,THE 18TH DAY OF AUGUST 2014/27TH SRAVANA, 1936
WP(C).No. 27841 of 2013 (E)
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PETITIONERS:-:
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1. PRADEEP KUMAR S
(MECHANIC, KSRTC, THIRUVANANTHAPURAM CITY DEPOT)
MADATHUVILAKATHU VEEDU, KELESWARAM, KALLIYOOR P.O.
THIRUVANANTHAPURAM, PIN - 695 042.
2. SHAIK NAUSHAD A.,
(MECHANIC, KSRTC, THIRUVANANTHAPURAM CITY DEPOT)
HIGIRA MANZIL, CHARUVILAKATHU VEEDU, THYCAUD P.O.
THIRUVANANTHAPURAM.
3. CHANDRA BABU K.,
(MECHANIC, KSRTC, THIRUVANANTHAPURAM CITY DEPOT)
PANAYIL VEEDU, VENPALAVATTOM, ANAYARA P.O.
THIRUVANANTHAPURAM, PIN - 695 029.
BY ADV. SRI.K.P.RAJEEVAN
RESPONDENTS:-:
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1. KERALA STATE ROAD TRANSPORT CORPORATION,
REPRESENTED BY ITS MANAGING DIRECTOR,
TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM - 695 023.
2. KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY, PATTOM
THIRUVANANTHAPURAM-695004.
3. JIJI SHINE J.S.,
MECHANIC, KSRTC, NEYYATTINKARA DEPOT
NEYYATTINKARA, THIRUVANANTHAPURAM-695121.
4. DILEEPAN B.,
MECHANIC, KSRTC, KARUNAGAPPALLY DEPOT
KARUNAGAPPALLY, KOLLAM-691001.
* ADDL.R5 & 6 IMPLEADED
PJ
...2/-
..2..
WP(C).No. 27841 of 2013 (E)
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5. ANOOPALAL S.G., S/O.SRI.S.K.GOVINDAN,
AGED 44 YEARS, MECHANIC GRADE-I,
REGIONAL WORKSHOP, THOTTAKATTUKARA, ALUVA,
RESIDING AT MATTATHIL HOUSE, PUTHIYAKAVU,
THRIPPUNITHURA P.O., PIN-682301.
6. SAJI.V., S/O.SRI.R.VIJAYAN, AGED 3 YEARS,
MECHANIC GRADE I, KSRTC, RESIDING AT SAJI HOUSE,
THENNOOR P.O., PERINGAMALA, THIRUVANANTHAPURAM-695563,
IS IMPLEADED AS PER ORDER DATED 17/6/14 IN IA.7925/14
R1 BY ADV. SRI.GOPIKRISHNAN NAMBIAR,SC,KSRTC
R2 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC
R3,R 4 BY ADVS. SRI.S.RAJASEKHARAN NAIR
SRI.RAJU SEBASTIAN VADAKKEKKARA
SRI.K.S.SALIM
R5 & 6 BY ADVS. SRI.O.V.RADHAKRISHNAN (SR.)
SMT.K.RADHAMANI AMMA
SRI.ANTONY MUKKATH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 18-08-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
PJ
WP(C).No. 27841 of 2013 (E)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1. TRUE COPY OF NOTIFICATION VIDE CATEGORY NO.32/98 PUBLISHED
IN THE KERALA GAZETTE DATED 17.03.1998.
EXHIBIT P2. A TRUE COPY OF 1ST PAGES OF ITI AND NON ITI CATEGORIES OF THE
RANKED LIST PUBLISHED BY THE PUBLIC SERVICE COMMISSION ON
28.10.2003 FOR THE POST OF WORK ASSISTANT IN KSRTC.
EXHIBIT P3. A TRUE COPY OF PAGE NUMBERS 1, 12 TO 16 OF THE FINAL
GRADATION LIST OF MECHANIC AS ON 01.04.2010.
EXHIBIT P4. A TRUE COPY OF REPRESENTATION DATED 06.09.2013 SUBMITTED BY
THE PETITIONERS BEFORE THE MANAGING DIRECTOR OF KSRTC.
EXHIBIT P5. A COPY OF MEMORANDUM DATED 15/11/13 ISSUED BY THE
RESPONDENT CORPORATION
EXHIBIT P6. A TRUE COPY OF OBJECTION AGAINST THE GRADATION LIST
SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT
EXHIBIT P7. A TRUE COPY OF APPLICATION FOR THE GRADATION LIST
SUBMITTED BY THE PETITIONER AND THE RECEIPTS
EXHIBIT P8. A TRUE COPY OF INFORMATION DATED 29/1/13 FROM THE OFFICE OF
THE 1ST RESPONDENT
EXHIBIT P9. A TRUE COPY OF OBJECTION AGAINST THE GRADATION LIST
SUBMITTED BY THE PETITIONERS AND SIMILARLY PLACED PERSONS
BEFORE THE 1ST RESPONDENT
RESPONDENT(S)' EXHIBITS
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EXHIBIT R1(A): TRUE COPY OF THE RELEVANT PORTION OF SPECIAL RULES OF
WORK ASSISTANT.
EXHIBIT R3(A): TRUE COPY OF THE ORDER NO.PL4/00225/11 DATED 18/4/13.
EXHIBIT R3(B): TRUE COPY OF THE PL4/00225/11 DATED 3/9/13
/ TRUE COPY /
P.S. TO JUDGE
PJ
C.K. ABDUL REHIM, J.
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W.P.(c) No. 27841 OF 2013
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DATED THIS THE 18th DAY OF AUGUST, 2014.
J U D G M E N T
The petitioners as well as the party respondents 3 to 6 herein are Work Assistants (now re-designated as Mechanics) appointed in the 1st respondent Corporation by virtue of a selection conducted by the Kerala Public Service Commission (PSC) on the basis of Ext.P1 notification. Qualification prescribed for the post of 'Work Assistant' in Ext.P1 notification, which is extracted from the special Rules, is quoted below for easy reference.
"WORK ASSISTANT:
Method of appointment: By direct recruitment through Public Service Commission.
Age Limit : 18 - 30
Qualifications : (1) (a) Must possess I.T.I or
Craftsman Certificate or Junior Technical School Certificate or Certificate of any other Technical Educational Institution in the Trades of Mechanic (Motor Vehicle) or Mechanic (Diesel) or Electrician or I.T.I Tractor Mechanism (Order No.R.Dis133209/CL2/78/RTC dated 03-10-1979.
OR W.P.(c) No.27841/2013 -2-
(b) K.G.T.E Certificate (Automobile) or K.G.C.E in Automobile Engineering. (Order No.04369/78/SRS1 dated 17-04-1978.) OR (2) Literacy in Malayalam, Tamil or Kannada with not less than 3 years experience in the Mechanical Section in a Workshop.
Physical Qualification: Must be physically fit to work of arduous nature.
Note :- (1) 2% of the total number of vacancies subject to a maximum number of 4 in a year shall be reserved to be filled in from among persons proficient in Sports and Games provided they satisfy all other conditions; for which the Public Service Commission need not be consulted.
(2) The vacancies will be divided equally between
persons possessing the two categories of
qualifications viz. (1) Certificate holders and (2) Workshop Experience hands. (Order No.3974/CL/70/RTO dated 07-02-1970."
2. Exhibit P2 is the Rank List forwarded by the PSC on the basis of the selection conducted. Exhibit P2 contained two lists, List-I in I.T.I category and List-II in non- I.T.I category. PSC had advised equal number of candidates from both the lists on the same day i.e. on 25-02-2005. The 1st respondent corporation effected appointment on the basis of such advise from among the candidates included in W.P.(c) No.27841/2013 -3- both the category on the same day. The petitioners in these writ petitions are candidates so appointed from the non-I.T.I category. The party respondents are candidates belonging to the I.T.I category.
3. Grievance agitated in this writ petition is against Ext.P3 gradation list published by the 1st respondent in the category of Mechanics (Work Assistants) as on 01-04-2010. Crux of the challenge is that in Ext.P3 the 1st respondent had illegally fixed seniority of the Mechanics appointed from non-I.T.I category below in seniority to those who were appointed from the I.T.I category. According to the petitioners the seniority ought have been fixed maintaining the ratio 1:1 between the two categories. It is mentioned that, promotion was effected to certain persons to the next higher post of 'Charge Man' based on the illegal gradation list. The petitioners and similarly placed others have submitted several representations before the Managing Director of the 1st respondent Corporation when the draft gradation list was published. According to the petitioners, W.P.(c) No.27841/2013 -4- Exts.P4 & P6 are such representations. After publishing Ext.P3 gradation list the petitioners have preferred complaints as evidenced from Ext.P9. But the same was not considered. Hence the petitioner is seeking to quash Ext.P3 gradation list. Inter alia, the petitioners seek direction for modification of the gradation list maintaining ratio 1 : 1 between I.T.I and non-I.T.I category and seeks consequential direction for promotion to the post of 'Charge Man' following the ratio 1:1.
4. In the counter affidavit filed by the 1st respondent Corporation it is stated that Ext.P3 list was finalised after publication of a draft list and after calling for objections. There was no objection received against finalisation of the seniority. It is mentioned that the Special Rules (Ext.R1(a)) does not prescribe any ratio for appointment between the ITI and non-ITI category. In the counter affidavit filed by respondents 5 & 6 it is contended that, the petitioners have acquired only workshop experience and their qualification is the least alternative qualification prescribed under Ext.R1 W.P.(c) No.27841/2013 -5-
(a) Special Rules. Candidates in ITI category were advised under list No.1 forwarded by the PSC, which is independent of the advise made under list II with respect to non-ITI category. Therefore there is no violation of Rule 27(c) of the KS & SSR. The said Rule cannot be applied in determining inter se seniority between candidates included in list I and list II. It is further contended that, the alternative qualification of workshop experience prescribed cannot be treated as equivalent to the qualification of ITI and it is not comparable or corresponding or inter changeable with the principal basic qualification of ITI prescribed. Since the Special Rules prescribe setting apart of 50% vacancy for non-ITI category, it is only a 'QUOTA' earmarked with respect to the non-ITI category and the rule of 'ROTA' cannot be read into the provisions contained in the Special Rules. There is no rotation system specified or implied, is the contention. Therefore the relief sought for to the extent of following rule of rotation does not arise. The preference given for ITI category is sustainable. It is W.P.(c) No.27841/2013 -6- further contended that a judicial review is not possible in this matter because of the availability of statutory appeal as contemplated under Rule 27B of the KS and SSR. Non- impleadment of all the affected persons is also contended stating that apart from the party respondents herein there are persons in the ITI category who will be affected by the judgment in this writ petition. It is pointed out that the respondents were not impleaded in the representative capacity.
5. Heard Sri.K.P.Rajeevan, learned counsel appearing for the petitioner, Sri.O.V.Radhakrishnan, Senior counsel appearing for respondents 5 & 6, counsel appearing for the 3rd respondent and also the standing counsel appearing for the KSRTC.
6. One of the contentions raised is regarding non- impleadment of all the affected persons. Learned Senior counsel appearing for respondents 5 & 6 pointed out that, the respondents 3 to 6 impleaded herein are only few among the Mechanics included in Ext.P3 list from among W.P.(c) No.27841/2013 -7- ITI category. All the other persons in the said category are not impleaded. Learned Senior counsel pointed out a decision of the hon'ble Supreme Court in K.H.Siraj V. High Court of Kerala and others 2006 (6) SCC 395, wherein it is held that, it is imperative to include all the candidates in the select list as parties in the writ petitions otherwise they will be affected without being heard. In the said case the challenge was with respect to selection to the post of Munsiff/Magistrate, conducted by this court. The hon'ble apex court observed that it is not as if there are a large unspecified number of people to be affected and in such cases resort cannot be made to Rule 148 of the Kerala High Court Rules.
7. Per contra, Sri.K.P.Rajeevan contended that challenge against Ext.P3 is on the basis of violation of a statutory Rule, ie. Rule 27(c) of the KS & SSR and in such circumstances it is not necessary to implead all the affected persons. He relied on a Division Bench decision of this court in Gopalakrishnan Nair N.K. and others V. State W.P.(c) No.27841/2013 -8- of Kerala and others (1992 KHC 577). Question as to whether the non-impleadment of all the affected persons will render the writ petition not maintainable, will depend upon the decision as to whether the impugned list is prepared in violation of any statutory provisions. Therefore this court is inclined to proceed further in examining such legal aspects.
8. Another technical objection raised is that no objection was raised against the draft seniority list published. Specific averment in the writ petition is that, Ext.P6 representation was submitted at the time when the draft list was published. Learned Senior counsel pointed out that such contention is not supported by any documentary evidence and hence the same cannot be countenanced. He had placed reliance on the decision of the hon'ble apex court in Bharat Singh and Others V. State of Haryana and Others (1988) 4 SCC 534). It is held therein that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party W.P.(c) No.27841/2013 -9- raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which is evident from the pleadings. If the evidence in support of such facts is not annexed to the writ petition the court will not entertain the point. In the case at hand, the KSRTC had made only vague denial to the effect that no objection was received against the draft gradation list. However, the impugned list does not contain anything to the effect that the finalisation of seniority is made on the basis of the draft list published and the objections invited. It does not indicate anything about receipt or non-receipt of objections. As contented by the petitioner, if the gradation list is made totally in violation of statutory provisions, judicial review is possible, dehors the fact that such contention was not raised at the time of publication of the draft list.
9. Alternative remedy provided under Rule 27(B) of Part II KS & SSR is raised as a contention for non- entertaining this writ petition. Rule 27(B) provides that in case of any dispute regarding seniority and matters W.P.(c) No.27841/2013 -10- connected with it arises by reason of any Government Order, representation for reconsideration of such order shall be submitted to the Government by the aggrieved person within a period of six months from the date of receipt of the order. Here the dispute with respect to the seniority is not arising by reason of any order of the Government. Further, the representation to the Government contemplated under Rule 27(B), of the KS & SSR is intended only in respect of Government Servants to whom the said provisions are applicable. In the case of KSRTC the Rules were only adopted for the purpose of governing service conditions of its employees. In such case an appeal to the Government is not proper. On the other hand, such provisions can be construed as facilitating appeals before the higher authorities of the KSRTC itself. Learned counsel for the petitioner had pointed out a decision of this court in Abdul Jabbar V. K.S.E.B. (2010 (1) KLT 586). It is held therein that when the provisions of the Service Rules is adopted by the K.S.E.B., wherever the word 'Government' is W.P.(c) No.27841/2013 -11- used in the Rules, the same has to be understood as K.S.E.B. On the facts it is pointed out that the petitioners have submitted Ext.P9 before the Chairman of the Board which can even be considered as an appeal filed in compliance of Rule 27B.
10. Coming to merits of the issue, going by the special Rules and the notification published by PSC, the qualifications prescribed for the post of 'Work Assistant' are alternate in nature. The first being candidates having ITI or Craftsman Certificate or Junior Technical School Certificate and the second category is the KGTE Certificate holders/ KGCE Certificate holders in Automobile Engineering. The third category is candidates who are literate in any one of the languages of Malayalam, Tamil and Kannada and having workshop experience in the Mechanical field for not less than 3 years. Qualifications in all the 3 categories are made as alternate qualifications by putting 'or' in between them. It cannot be disputed that the selection is made to one and the same cadre in the service of the corporation. The only W.P.(c) No.27841/2013 -12- stipulation contained in Ext.R1(a) which is reproduced in Ext.P1 notifications that, the vacancies should be filled up equally from among the certificate holders and Workshop experience candidates. The PSC had published separate Rank Lists in order to facilitate filling up of the vacancies equally from both the categories. Contention of the respondents that the non-ITI category are candidates having inferior qualification than the certificate holders, cannot be accepted as far as the selection process is concerned, when the appointment is made to one and the same cadre based on the qualifications prescribed. Even with respect to promotion to the next higher cadre there is no classification prescribed among the 2 categories. In other words, there is no quota fixed with respect to such promotions. In such context, question remains as to how the seniority in the cadre of Work Assistant (Mechanic) is to be fixed among candidates advised through the separate Rank Lists. It is not disputed that the date of advise of the candidates from both the categories and the date of the W.P.(c) No.27841/2013 -13- appointment orders issued with respect to both the categories are one and the same. Since KSRTC has adopted provisions contained in Part II of KS & SSR, the crucial question to be decided is as to whether the impugned gradation list will violate any of the provisions of the said Rules.
11. Rule 27(a) provides that the seniority of a person in any particular service, class, category or grade shall be determined by the date of order of his first appointment to such service, class, category or grade. Rule 27(b) provides that the appointing authority shall at the time of passing orders appointing two or more persons simultaneously to a service, fix the order of preference among them and seniority shall be determined in accordance with the same. But in the case of candidates appointed based on advise made by the PSC, Rule 27(C) will apply. It provides that, notwithstanding anything contained in Sub Rule (a) & (b) the seniority shall be determined by the date of first effective advise made for appointment of the candidate to W.P.(c) No.27841/2013 -14- such class, category or grade. It further provides that when two or more persons are included in the same list of advise their relative seniority should be fixed according to the order in which their names are arranged in the advise list. Factually there is no dispute that PSC had advised candidates from both the lists for appointment to the same class, category or grade of Work Assistants (Mechanics). Therefore the criteria to be followed in the matter of seniority is the date of effective advise of such candidates. Merely because PSC had prepared separate Rank Lists with respect to candidates in the different categories of qualification, with a view to fulfill the ratio to be followed in filling up of the vacancies, it cannot be contended that one category should be given preference in the matter of seniority than the other one. Even accepting the contention that ITI category is named as list-I or even accepting the contention that the candidates included in such category are certificate holders having a better qualification, any such factors cannot be considered as a criteria in fixing W.P.(c) No.27841/2013 -15- seniority in contrary to Rule 27(C). This is because the advise is made for appointment to one and the same class, category or grade and the effective advise is made on the very same date.
12. Learned Senior counsel appearing for respondents 5 & 6 contended that, the Special Rules stipulates filling up of vacancies on an equal basis among the two categories. When such a stipulation is complied with, it is left open to the appointing authority to decide their relative seniority. If the appointing authority in its wisdom decides that the certificate holders should be given preference in the matter of seniority, they being better qualified, it cannot be interfered as an illegal method. This is especially because the Special Rules does not prescribe any "rotation" to be followed in the matter of appointment. It is contended that the Rule insisting 'quota' to be followed in the matter of filling up of the vacancies by itself cannot be construed as a provision directing appointment of candidates of a rotational basis. The statute does not W.P.(c) No.27841/2013 -16- specifically included any Rule of 'ROTA' and therefore observation of rotation in the matter of appointment does not arise. He had placed much reliance on a larger bench decision of the hon'ble Supreme Court in N.K.Chauhan V. State of Gujarat (AIR 1977 SC 251). It is held that quota necessarily postulates more than one source of recruitment. But it does not demand the manner in which each source is to be provided for after the recruitment, especially in the matter of seniority. The quota can be fixed in each category but that fixes only the entry. On the other hand, rotational or roster system is a method adopted for figuring out the placement or officers on entry. It cannot be read as an inevitable consequence. The hon'ble Apex court accepted the contention that quota is not viable without provisions for seniority and is nothing more as found in the rule of quota itself must be understood to apply to each post as and when it falls to be filled. But if exigencies of administration demands posting in the vacancies and one of the sources has gone dry for a while, then the proper course W.P.(c) No.27841/2013 -17- is to wait for a direct recruit and give him notional date of entry as of the quota vacancy and mange to keep the wheels of the Government moving through improvised promotions, expressly keeping such ad hocist of rights flowing from temporary occupancy, is the method to be followed.
13. On a careful examination of the facts contained in the above cited decision it is evident that the method discussed is only with respect to promotions from two distinct streams falling under two distinct feeder category. There also the hon'ble apex court held that Rule of Quota is so interlinked with the Rule of 'Rota' making it not viable without provision for seniority made in the Rule of Quota. But in a case where any express rule of Rota is applicable the seniority inter se among candidates having different qualifications advised to one category need to be decided only on the basis of specific statutory provisions, when such statutory provisions are available in the matter of fixation of seniority.
W.P.(c) No.27841/2013 -18-
14. Learned Senior counsel further contended that seniority in service is not a right vested with an employee, because no employee has a right for promotion, but has only a right to be considered for promotion according to the Rules. It is contended that seniority is only a facet of interest and is not a right vested on the employee. The decision in Ashok Kumar Gupta and another V. State of U.P. and Others (1997 (5) SCC 201) is cited in support of such contention. There also, the hon'ble Supreme court held that when the Rules prescribes method of seniority to be governed by the ranking given, no one has a vested right for promotion or seniority rather than one acquired through such statutory provisions. Here again the question is as to whether the statutory prescriptions confer any seniority on the candidates advised on the very same date or when effective advise of the candidates remain one and the same.
15. In the case at hand, question arises as to how the seniority need to be fixed, when the date of effective advise is one and the same for both the categories. Rule 27(C) W.P.(c) No.27841/2013 -19- prescribes that when two or more persons are included in the same list of candidates advised, their relative seniority should be fixed in accordance with the order in which their names are arranged in the advise list. But in the case at hand there are two lists containing names of two distinct categories advised for appointment of one and the same category. In such case the method should be adopted on a rational basis. Note (ii) to Rule 27(a)(b) provides that seniority of persons advised for appointment to the same category or post on the same date by different District Officers/District Units of PSC shall be decided as follows:
(i) when not more than one person is advised for appointment for each district on the basis of their age, the elder being declared senior to the younger.
(ii) When more than one person is advised for appointment the persons having the same serial number in the various advised list shall be grouped together separately and the inter se seniority in which grouping shall be fixed on the basis of their age, the elder being declared senior to the younger."
W.P.(c) No.27841/2013 -20-
The method adopted in Clause (ii) extracted above gives an indication as to how the seniority is to be fixed when candidates are advised to the same post from more than one list and each such list contains more than one persons having the same serial number. The statutory rule prescribed therein can safely be followed in the matter of fixation of seniority with respect to candidates advised on the very same day for appointment to the very same post of Work Assistant in two separate lists. Therefore this court is of the opinion that the impugned gradation list finalised without following such procedure and putting the ITI category in seniority position than the non-ITI category, is violative of the statutory provisions contained in Rule 27(C) of Part II KS & SSR. The impugned list being prepared in violation of statutory provisions as mentioned above is legal and unsustainable and is liable to be quashed.
16. Under the above mentioned circumstances, this writ petition is allowed and Ext.P3 is hereby quashed. The 1st respondent Corporation is directed to revise the seniority W.P.(c) No.27841/2013 -21- list in the category of Work Assistants (now re-designated as Mechanic) with respect to appointment made on the basis of Ext.P2 advise list, by following the methods prescribed under the proviso to Note(ii) of Rule 27 (a)(b). Necessary steps in this regard shall be taken and the gradation list shall be finalsied afresh, if necessary after giving opportunity to all concerned, at the earliest possible, at any rate within a period of 3 months from the date of receipt of a copy of this judgment.
17. Promotions if any already effected from the category of Mechanics included in Ext.P3 gradation list shall be reworked appropriately on the basis of preparation of fresh seniority list as directed above.
Sd/-
C.K. ABDUL REHIM, JUDGE.
AMG/Pn The word "legal" occurring in the last sentence in paragraph 15 of the judgment dated 18-08-2014 in W.P (c) No.27841/2013 is corrected and substituted as "illegal", vide order dated 01-10-2014 in I.A. No.12875/2014.
Sd/-
Registrar (Judicial) True copy P.A to Judge