Antony Dominic, J. This OP is filed challenging the order passed by the Kerala Administrative Tribunal dismissing OA No.684/12 filed by the petitioner. In the OA, the prayer made was to set aside Annexure AXIV order passed by the respondents and to allow to exercise option to be included in the seniority list of degree holders in the graduate quota. The Tribunal having dismissed the OA, this OP is filed.
2. We heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.
3. The petitioner joined service as First Grade Draftsman in the Public Works Department on 7/12/1985. At that time, he was a diploma holder. Later, he was promoted as Assistant Engineer on 18/10/99 under the diploma quota. While continuing as Assistant Engineer, he passed B.Tech degree in Civil Engineering and certificate was issued on 4/11/2010. According to the petitioner, he obtained the degree certificate only on 3/12/10. In the meantime, based on Annexure AVIII, DPC list of 12/3/2010, the Chief Engineer made Annexure AVII recommendation dated 4/8/2010 for the promotion of the petitioner as Assistant Executive Engineer in the diploma quota. Accordingly, on 30/11/2010, he was promoted as Assistant Executive Engineer in the diploma quota and he joined that post on 3/12/2010.
4. Rule 5 of the Kerala Engineering Service (Civil and General Branch) Rules (hereinafter referred to as 'the Special Rules') provide for option for diploma holders who acquire degree while in service. In the purported exercise of his rights under Rule 5 of the Special Rules, petitioner submitted Annexure AIV request dated 27/12/10 opting to go over to the graduate quota so that he will have further avenue of promotion to the post of Executive Engineer. By Annexure AV, the Government accepted the option and in implementation thereof, he was included in the seniority list of degree holders.
5. Subsequently, the Chief Engineer sought a clarification on the eligibility of the petitioner for option and accordingly the Government issued Annexure AXIV holding that the petitioner was ineligible to exercise option. It was in these circumstances, he filed OA No.684/12 before the Kerala Administrative Tribunal seeking to set aside Annexure AXIV and to direct the respondents to include his name in the seniority list of Assistant Executive Engineers under the graduate quota.
6. The impugned order of the Tribunal shows that it has applied the principles laid down by this Court in the judgment in OP(KAT) No.3719/12 where this Court has set aside the order passed by the Tribunal in TA No.1576/12. However, we find from the pleadings of the petitioner in the OA that he has raised a specific contention in ground D thus;
“D. The Annexure AXIV communication issued in utter violation of the principles of natural justice. The applicant's right to get included in the seniority list of Assistant Executive Engineer under Degree quota has been considered and appropriate order has been passed as Annexure AVI. Thereafter the applicant's name was included as Rank No.229 in the seniority list of Assistant Executive Engineers under degree quota. When the right has already accrued on the applicant, the respondents cannot take away the right simply by issuing an order without giving an opportunity of being heard. The opportunity of being heard is none of fundamental principles of natural justice. So the Annexure AXIV communication issued in derogation of the principles of natural justice is legally unsustainable. Hence the interference of this Hon'ble Tribunal is required for.”
7. Respondents have no case that Annexure AXIV was passed after affording an opportunity of hearing to the petitioner. Evidently, in pursuance of Annexure AV order passed by the Government, the petitioner's name was included in the seniority list of Assistant Executive Engineers in the graduate quota. However, as a result of Annexure AXIV, which has been passed acting upon Annexure AXI request of the Chief Engineer seeking clarification in the matter, the petitioner is deprived of that benefit.
8. In our view, when such an order having civil consequence is passed against a government servant, the government servant should have been put on notice and should also have been heard in the matter. In other words, we find that Annexure AXIV order dated 27/9/11 was passed by the Government in violation of the principles of natural justice.
9. On that ground, we set aside Annexure AXIV to the extent it concerns the petitioner herein and direct that the 1st respondent shall pass fresh orders on Annexure AXI with notice to the petitioner and also after affording him an opportunity of hearing, if he so desires. Such orders shall be passed, at any rate, within three months of receipt of a copy of this judgment and we clarify that, in the meanwhile, it will not be open to the petitioner to claim any benefit on the basis of his inclusion in the seniority list of Assistant Executive Engineers under the graduate quota pursuant to Annexure AV mentioned above.
10. Petitioner will produce a copy of this judgment before the 1st respondent for compliance.
O.P is disposed of as above.
Rp //True Copy// PA to Judge Sd/-
ANTONY DOMINIC JUDGE Sd/-
ANIL K. NARENDRAN JUDGE