The petitioner a diploma holder in Civil Engineering has filed this writ petition challenging Exts.P7 and P8 proceedings issued by the first and second respondents respectively. The short facts of the case are as follows: 2. The petitioner obtained a Diploma in Civil Engineering in the year 1983. Thereafter, he was working abroad for a number of years. He had applied for registration as an Engineer-A under the Kerala Building Rules, 1984. As per the Kerala Building Rules, the qualification prescribed for the issue of a license of Engineer- A was, any Degree or Diploma in Civil or Municipal Structural Engineering required for corporate membership in the Institution of Engineers or which is required for appointment to the post of Junior Engineer. The case of the petitioner is that he was fully qualified to be granted such license. However, he was issued only with a license as Supervisor. He challenged the said proceedings before the Municipal council and thereafter in revision before the Government. The Government rejected his revision. Thereupon, he challenged the said order before this Court in O.P.No.20696 of 2001. The said original petition was disposed of by this Court as per Ext.P1 judgment dated 30.9.2003. As per the judgment, this Court directed reconsideration of the petitioner's revision by the Government. This Court has ordered in Ext.P1 as follows:
Regarding the eligibility of the petitioner to get engineering license under the old Rules, a reconsideration by the government is necessary after affording an opportunity of being heard to the petitioner and the Municipality. This, the Government shall do within three months from the date of receipt of a copy of this judgment. In case, it is found that he is qualified to be appointed as Assistant Engineer in the light of the rules in force at the time of consideration of the petitioner's application, his application shall be allowed notionally with retrospective effect and if that application is allowed, the building engineer's license so granted to him shall be renewed under the new Rules also. In other words, an illegal order passed by the competent authority or the delay in considering the petitioner's claim by this Court shall not prejudice him. To enable the Government to take a fresh decision, Ext.P11 is quashed. But, the contentions of both sides as to whether the petitioner is qualified to be appointed as Assistant Engineer are kept open.
3. Accordingly, the matter was reconsidered by the Government and as per Ext.P2 Government Order No.292/04 dated 20.1.2004, it has been ordered as follows:
After hearing the petitioner and the Municipality it was found that the petitioner is eligible to be granted license as Building Engineer as per the Kerala Building Rules, 1984. Since the benefit was not given to the petitioner he became ineligible for the license as Building Engineer as per Kerala Municipality Building Rules, 1999. As he is found to be eligible to grant license as Building Engineer as per the Kerala Building Rules, 1984, it shall be reviewed under the Kerala Municipality Building Rules, 1999 also. Hence sanction is accorded to grant license as Building Engineer to Sri.M.P.Sreekantan, Harisree, Karkidakom, Mankada.P.O., Malappuram-679324.
4. Though as per Ext.P2, it was found that the petitioner was eligible to be issued with a license, the application submitted by the petitioner was kept pending without passing any orders thereon. Therefore, the petitioner had to approach this Court again by filing W.P.(C) No.16241 of 2004. The said writ petition was disposed of by Ext.P5 judgment with the following directions:
“3. Evidently the matter is getting delayed without any justification. The petitioner's rights have been practically recognised by the Government and it cannot be possible for the first respondent to sit in judgment over such orders. Within three weeks from today the certificate, as is eligible is to be issued to the petitioner. In case, if there is any disability or objection, the petitioner should be advised of the above within that time limit.
The writ petition is disposed of with the above direction”.
5. The direction issued by Ext.P5 was therefore, to pass orders within three weeks on the petitioner's application and to inform the petitioner, if there was any disability or objection. Accordingly, the first respondent, Licensing Authority, considered the matter and passed Ext.P7 order finding that the petitioner was not eligible to be granted the license that was sought for. Ext.P7 is dated 31.8.2004. Thereafter, by Ext.P8 Government Order dated 4.2.2005, Ext.P2 Government order has been cancelled. This writ petition is filed challenging Exts.P7 and P8.
6. According to Sri.K.M.Sathyanatha Menon, who appears for the petitioner, Exts.P7 and P8 have been issued without any justification. The same is therefore liable to be set aside. Ext.P2 Government Order, passed as far back as on 20.1.2004, has been revoked by Ext.P8, obviously on the basis of Ext.P7, without issuing notice to or hearing the petitioner. Ext.P7 is unsustainable for the reason that, the first respondent has no authority to issue the same in the teeth of Ext.P2 Government Order. It is only to support Ext.P7 that Ext.P8 has been issued.
7. A counter affidavit has been filed by the first respondent producing Exts.R1(a) to R1(h) documents. It is pointed out by the learned Government Pleader that the petitioner had earlier submitted an application before the Government and obtained license as Engineer-A, furnishing incorrect information and documents that were not genuine. It was when the said action was detected, that the revision filed by him was rejected by the Government.
8. Heard. It is not in dispute that the petitioner had earlier obtained license as Engineer-A on the basis of incorrect information furnished by him. But, admittedly he had later on surrendered the certificate and applied afresh. On the basis of the said conduct, the revision filed by him had been rejected.
However as per Ext.P1 judgment, the said order in revision was set aside and the matter was directed to be reconsidered. Therefore, the contention regarding the previous conduct of the petitioner is no longer relevant. Pursuant to the direction contained in Ext.P1, the matter was considered and by Ex.P2, the second respondent has found that the petitioner was eligible. What remained was only for the first respondent/Licensing Authority to issue the license to the petitioner. Instead the matter was kept pending for no valid reason. That was why, in Ext.P5, this Court directed orders to be passed within three weeks. In view of Exts.P1, P2 and P5 what the first respondent had to decide was whether the petitioner who was found to be eligible to have been issued with license as Engineer-A under the Kerala Building Rules, 1984 was eligible to be issued with a similar license under the Kerala Building Rules, 1999. Instead, the first respondent has issued Ext.P7, without even referring to Ext.P2 Government Order. Therefore, Ext.P7 has been issued without considering a material document. Ext.P7 has been issued merely for the reason that the petitioner had not been issued with a license as Engineer-A from any Municipality. The authority failed to note that, as per Ext.P1 this Court had directed that the petitioner shall not be prejudiced by the illegal order passed earlier by the competent authority. Consequently, there was no justification for the petitioner to be penalised for the earlier illegal order that was set aside by Ext.P1.
9. Ext.P8 order cannot be sustained for more reasons than one. In the first place, the same has been issued reconsidering and revoking Ext.P2, another Government order that was passed in 2004. The Government Pleader has not been able to point out any power to support the said action. Secondly, the said order has been passed without issuing notice to or hearing the petitioner. Ext.P2 has conferred an advantage on the petitioner, which could not have been taken away as done by Ext.P8, without affording an opportunity of being heard to the petitioner. Thirdly, Ext.P8 does not state any reason for reconsidering and revoking Ext.P2. Ext.P8 is a cryptic order and has obviously been issued to justify Ext.P7 proceedings.
For the above reasons, it is found that the impugned proceedings are unsustainable. This writ petition is accordingly allowed. Exts.P7 and P8 are set aside. It is submitted by the counsel for the petitioner that pursuant to the interim order dated 5.7.2005, the petitioner has been issued with a license as Engineer-A, provisionally and subject to further orders in this writ petition. In view of the above finding that Exts.P7 and P8 are unsustainable, the provisional license shall be regularised forthwith.
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K.SURENDRA MOHAN, JUDGE.
rkc.