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2014 Supreme(Ker) 716

IN THE HIGH COURT OF KERALA AT ERNAKULAM
THOTTATHIL B.RADHAKRISHNAN, A.MUHAMED MUSTAQUE, JJ.
B.KHADARKUNJU DRAFTSMAN GR.I., OFFICE OF THE EXECUTIVE ENGINEER QUALITY CONTROL DIVISION, KERALA WATER AUTHORITY ALUVA – Petitioner
Vs.
A.SURENDRAN, ASSISTANT ENGINEER, AUGMENTATION SECTION KERALA WATER AUTHORITY, VADAKARA – Respondent
R.P. No.538 of 2014 in W.A.No.467 of 2009, R.P.No.540 of 2014 in W.A.No.192 of 2009, R.P.No.544 of 2014 and W.A.No.151 of 2009
Decided on : 20.10.2014

Advocates:
Advocate Appeared:
For the Petitioner: SRI. K.JAJU BABU (SR.), SMT. M.U.VIJAYALAKSHMI, SRI.BRIJESH MOHAN
For the Respondent: SRI.P.C.SASIDHARAN, SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY

Headnote:

Constitution of India, 1950 - Article 226 - Service Matter - Appointment - Seniority - Eligibility - Seniority - Challenged - Service litigations, particularly when inter se seniority lists are under challenge, impleadment of some of the persons in a seniority - Held, Identity of persons in a seniority list is a fact available and one that can be noticed from that list itself. Hence, individual notice to each of them cannot be excluded on the specious plea that they are numerous, to excuse their impleadment and to exclude notice to each of them, individually. In service litigations, particularly when inter se seniority lists are under challenge, impleadment of some of the persons in a seniority list which is sought to be impugned and publication of notice of that Writ Petition in news paper are insufficient substitution to due personal service on all persons, who may be affected if the relief sought for against a seniority list is granted, in any manner, affecting any such person who is not joined in the array of parties

Order

Thottathil B.Radhakrishnan, J.

1. These review petitions are filed against a common judgment dated 27.06.2014. Heard the learned counsel for the parties.

2. Disputes relating to seniority between promotees and direct recruits in the category of Draftsman Grade I in the Kerala Water Authority were the subject matter of two original petitions. They were decided as per a common judgment. That led to a bunch of writ appeals. They were allowed setting aside the impugned common judgment on the ground of non-joinder of necessary parties to the original petitions. Resultantly, the original petitions were remitted paving way for impleadment of the necessary parties and consideration of all issues after such impleadment. That judgment, which is an order of open remand, is sought to be reviewed on the premise that paper publication was made, with notice on the private respondents in the original petitions, who, going by the contentions, were impleaded in representative capacity, as well.

3. The learned senior counsel for the review petitioners argued that the finding in paragraph No.8 of the judgment sought to be reviewed is vitiated by error apparent on the face of the record, inasmuch as, the paper publication was made after order of court was obtained for such publication and, therefore, it is in conformity with the requisite notice in accordance with Rule 148 of the Rules of the High Court of Kerala, 1971, for short, "Rules".

4. The learned counsel for the opponents to the review petitions, who were the appellants in the writ appeals, impeached the aforesaid; stating, inter alia, that the principle of audi alteram partem cannot be ignored in the situation and the judgment sought to be reviewed is well founded and is not vitiated on any count warranting review.

5. Paragraph 8 of the judgment sought to be reviewed reads as follows:-

"8. Keeping aside all the other contentions and arguments for the time being, it is the undisputed position that the correctness of the seniority list was decided and directions to re-cast the seniority list and as regards the ratio were issued without all parties to the seniority list impugned before the learned single Judge being on array in those proceedings. As rightly pointed out by the learned counsel, the seniority list itself would show the identity of the persons included in the list. Those persons would definitely be affected by the decision rendered in such original petitions. It is trite law that while deciding such seniority disputes, including as to the modality in which a particular rule has to be operated, all persons who would be affected by the decision that would be rendered in the writ proceedings are entitled to be heard. Though we, at the first blush, thought that this matter could be further adjudicated by the Division Bench by deciding all other issues, including the effect of the finality of the judgment rendered by the Division Bench in W.A.No.1906 of 1998 and connected cases and the argument that the said judgment is not correct, on a deeper consideration, we are of the view that it would not be wise for us to do so because, when the correctness of that decision is being decided, the persons who would be affected by any such exercise, including those employees in the cadre who wound stand by that judgment would be eligible to be heard. Therefore, we think that the proper course that would be open to us is to preserve the examination of all issues and set aside the impugned judgment on the ground that the original petitions in which the impugned judgment was issued ought to have been decided only after affording opportunity to the petitioners therein to seek impleadment of all persons included in the seniority list which was subject matter of the original petitions, if so advised, or otherwise, to their peril. The two original petitions having been consolidated for consideration, it would be inappropriate for us to segregate and decide issue partly here, thereby excluding opportuni











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