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2010 DIGILAW 442 (KER)

U. Sharafali v. State Of Kerala

2010-06-17

ANTONY DOMINIC

body2010
Judgment : 1. The issues raised in these writ petitions are connected, and therefore, these cases were heard together and are disposed of by this judgment. 2. The main prayer in WP(c).No.9039/09 is to quash Exts.P15, P17 and P18 and to declare that since the petitioner who was absorbed in the regular vacancy of Deputy Commandant and regularized in that post, respondents have no power or authority to treat him supernumerary in the post of Deputy Commandant. 3. In so far as it is relevant, the facts of this case are that, by Ext.P2 order dated 14.5.1993, the petitioner was temporarily promoted as Assistant Commandant invoking the power under Rule 31(a)(1) of the General Rules. While continuing so, the DPC held on 25.4.1996, prepared select list for appointment to the post of Deputy Commandant and the petitioner was included in Ext.P3, the select list for the year 1993. Subsequently, Government issued Ext.P4 order dated 26.9.1998, regularizing the petitioner's promotion to the post of Assistant Commandant with effect from 1.6.1993. Subsequently, by Ext.P5 order dated 20.7.1999, his probation in the post of Assistant Commandant was declared with effect from 7.6.1994. 4. Meanwhile, Ext.P6 order dated 8.3.1994 was issued by the Government, again invoking its power under Rule 39 of the General Rules, and promoting five police officers, who were members of the Kerala State Football Team which had won Santhosh Trophy in the year 1993. By this order, the petitioner was promoted to the post of Deputy Commandant. On being communicated of Ext.P6 order, the Director General of Police reported to the Government by his letter dated 7.4.1994 that there was no vacancy of Deputy Commandant. The matter was considered and the Government issued Ext.P7 order dated 31.8.1994, conveying its decision to create one supernumerary post of Deputy Commandant in the Armed Police Battalion and ordering that the petitioner will be posted in the post so created. It was further ordered that the petitioner will be absorbed in the next arising regular vacancy, abolishing the supernumerary post. 5. Thereafter, by Ext.P8 order dated 29.1.1995, the petitioner was posted in a regular vacancy of Deputy Commandant. A reading of this order shows that such posting of the petitioner was subject to further orders of this court in O.P.No.12706/94 which was pending then. 5. Thereafter, by Ext.P8 order dated 29.1.1995, the petitioner was posted in a regular vacancy of Deputy Commandant. A reading of this order shows that such posting of the petitioner was subject to further orders of this court in O.P.No.12706/94 which was pending then. In the meanwhile, petitioner also approached this court in O.P.No.8940/94 seeking a direction to the respondents for his expeditious regularization as Deputy Commandant. That Original Petition was disposed of by Ext.P11 judgment dated 11.8.1995 recording the submission made by the respondents therein, undertaking to regularize the petitioner. Based on all the above, Ext.P9 order dated 30.6.2004 was issued regularizing the petitioner in the post of Deputy Commandant, with effect from 1.11.1994. This order was again subject to the final disposal of O.P.No.12706/04. Accordingly the petitioner's services were regularized and he was continuing as Deputy Commandant in the Armed Police Battalion. 6. O.P.No.12706/1994 mentioned above was filed by two Assistant Commandants in the Special Armed Police challenging Ext.P6 order whereby invoking Rule 39 of the General Rules, the petitioner was ordered to be promoted as Deputy Commandant. By Ext.P10 judgment rendered on 8.2.2006, the Original Petition was permitted to be withdrawn and was accordingly dismissed. The judgment shows that as far as the 1st petitioner therein was concerned, the Original Petition had become infructuous and that in view of the subsequent developments, the second petitioner therein could not pursue the Original Petition and he sought to withdraw the writ petition. While dismissing the writ petition, it was clarified that, rights if any of the second petitioner to challenge the regularization of the promotion granted to the petitioner will not be affected by the withdrawal and dismissal of the Original Petition and his contentions were left open to be urged in appropriate proceedings. It is the admitted position that the second petitioner in O.P.No.12706/94 did not institute any proceedings thereafter. 7. There was yet another Original Petition as O.P.No.3733/94, which was filed by five other Assistant Commandants with the petitioner as 3rd respondent, in which challenge was against Ext.P6 order referred to above and Ext.P8 order absorbing the petitioner in the regular vacancy. By Ext.P12 judgment rendered on 12th February, 2004, following the judgments in O.P.Nos.19716/95 and 6668/96, copies of which are Ext.P13 and P14 respectively, this court dismissed the Original Petition upholding the validity of Exts.P6 and P8 orders. By Ext.P12 judgment rendered on 12th February, 2004, following the judgments in O.P.Nos.19716/95 and 6668/96, copies of which are Ext.P13 and P14 respectively, this court dismissed the Original Petition upholding the validity of Exts.P6 and P8 orders. It is stated that an application filed seeking review of this judgment was also dismissed by this Court. In this context, it should be mentioned that in O.P.No.19716/1995, though the petitioner was not a party, four other beneficiaries of Exts.P6 and P8 orders were parties and this court upheld the orders impugned therein. 8. Thus though the petitioner's promotion as Assistant Commandant was initially on temporary basis, he was regularized in the post by Ext.P4 order. He completed probation and was promoted as Deputy Commandant, by Ext.P6 invoking Rule 39 of the General Rules and was accommodated in a supernumerary post created by Ext.P7 order. He was thereafter absorbed in a regular vacancy by Ext.P8 order and was regularized with effect from 1.11.1994 as per Ext.P9 order. These orders were challenged before this court and were upheld by this court in the judgments referred to above. 9. Subsequently, Ext.P15 notice dated 9.12.2008 was issued by the Director General of Police calling upon the petitioner to show cause against placing him in a supernumerary post, to be absorbed in the regular service on occurrence of vacancies in the sports quota and stating that if no vacancies arise in the sports quota, such officers will retire as supernumerary. Thereupon the petitioner submitted Ext.P16 objection. Again Ext.P17 notice was issued calling for objections in the matter and thereafter Ext.P18 provisional seniority list was published. In the provisional seniority list, petitioner was shown as a Deputy Commandant, holding a supernumerary post. It was thereupon that this writ petition has been filed seeking the reliefs mentioned earlier. 10. The contention of the Sr. Counsel for petitioner is that his service having been regularized invoking Rule 39 of the General Rules and after absorbing him in a regular vacancy of Deputy Commandant, the proposal now initiated to include him in the provisional seniority list, as a supernumerary, is illegal. It is stated that the Director General of Police, who issued the impugned proceedings had no jurisdiction to have reviewed the Government orders and that therefore the impugned proceedings being ultra vires and without jurisdiction, is open to challenge even at this stage before this court. 11. It is stated that the Director General of Police, who issued the impugned proceedings had no jurisdiction to have reviewed the Government orders and that therefore the impugned proceedings being ultra vires and without jurisdiction, is open to challenge even at this stage before this court. 11. On the other hand, relying on the judgment of this court in Koyit Joseph & Ors. V. Subash George & Ors. (2006 (3) Kerala 162), learned Government Pleader contended for the position that invocation of Rule 39 of the General Rules on the basis of which Exts.P6 to P9 orders were issued itself was illegal. He therefore contended that the respondents were justified in proposing to revise the seniority of the petitioner treating him as holding a supernumerary post. 12. Additional party respondents contended that, what were impugned in this writ petition are a show cause notice and a provisional seniority list. It was contended that it was upto the petitioner to file his objections to the provisional seniority list and invoke this court's jurisdiction only after the the provisional seniority list is finalized to his prejudice. It was stated therefore that the writ petition is premature and was not maintainable. It is further contended that, if relief is granted to the petitioner and it is held that the petitioner is entitled to hold a regular post on the strength of Exts.P6 to P9, that will adversely affect the seniority and further promotional avenues of several Deputy Commandants in service and that those Deputy Commandants who are likely to be affected by such an order should have been impleaded in this writ petition. Therefore, according to him, the writ petition is bad for non joinder of necessary parties. Learned Sr. counsel appearing for the party respondents also relied on the Apex Court judgment in Prabodh Verma & Ors. V. State of Uttar Pradesh & Ors. (1984(4) SCC 251) in support of this contention. 13. First, I shall deal with the contention of the respondents that there is non joinder of necessary parties and therefore the writ Petition is to be dismissed. It goes without saying that if a writ petition is filed seeking orders to the prejudice of any body, such person/persons should be made as eonominee party to the proceedings. 13. First, I shall deal with the contention of the respondents that there is non joinder of necessary parties and therefore the writ Petition is to be dismissed. It goes without saying that if a writ petition is filed seeking orders to the prejudice of any body, such person/persons should be made as eonominee party to the proceedings. On the other hand, if the parties who are likely to be affected are numerous, it is also open to the petitioner to implead the affected parties in a representative capacity and publish notice, so that the affected parties can come on record and safeguard their interests. However, such impleading of eonominee parties, will be insisted only in a case where reliefs are sought against anybody in particular. In this case, as already seen, what is under challenge is the decision of the respondents to treat the petitioner's post of Deputy Commandant, as a supernumerary one, which is reflected in the impugned orders. Therefore, the relief sought by the petitioner is against the State and its Officers and not against any of his colleagues in service. Therefore, it will not be proper to contend that the petitioner is seeking any individual relief against any of his colleagues, obliging him to bring them on party array, in order to give them an opportunity to contest the case and safeguard their rights. In this contest it is relevant to make reference to the Apex Court judgment in A. Janardhanan V. Union of India & Ors.(AIR 1983 SC 769), where rejecting contention regarding non-impleadment of affected parties in a proceedings where the challenge was against a seniority list, the Court held as follows; "However, there is a more cogent reason why we would not countenance this contention. In this case, appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that the criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. We may in this connection refer to General Manager, South Central Rly. Secundrabad V. A.V.R. Sidhati(1974(3)SCR 207 at p.212(AIR 1974 SC 1755 at p.1759). Repelling a contention on behalf of the appellant that the writ petitioners did not implead about 120 employees who were likely to be affected by the decision in the case, this court observed that the respondents (original petitioners) are impeaching the validity of those policy decisions on the ground of their being violative of Arts. 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating to seniority of government servants is assailed. In such proceedings, the necessary parties to be impleaded are those against whom the relief is sought and in whose absence no effective decision can be rendered by the Court. Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by any one individual against another particular individual and therefore even if technically the direct recruits were not before the Court, the petition is not likely to fail on that ground. The contention of the respondents for this additional reason must also be negatived. " 14. Having regard to the nature of the relief sought and in view of the law laid down by the Apex Court, I cannot accept the contention of the respondents that the writ petition is bad for non- joinder of necessary parties. In support of their contention, the judgment of the Apex Court in Prabodh Verma & Ors. V. State of Uttar Pradesh & Ors. (1984(4) SCC 251) was relied on by the party respondents. In this judgment, it has been held that parties who would be vitally affected by the judgment, or at least some of them should be impleaded in a writ petition. In the facts of this case, in my view, this judgment has no relevance. 15. The 2nd question, which should be dealt with at the threshold itself is regarding the maintainability of the writ petition. In the facts of this case, in my view, this judgment has no relevance. 15. The 2nd question, which should be dealt with at the threshold itself is regarding the maintainability of the writ petition. Ordinarily, a writ petition challenging a show cause notice or a provisional seniority list will not be entertained by this court for the reason that, it is for the petitioner to show cause or file his objection and challenge the final order if he is aggrieved. However, this rule is not without exceptions. If, in a case, where proceedings initiated is without authority of law or ultravires or without jurisdiction, this court will be perfectly justified in entertaining a writ petition, without relegating the parties to work out their remedies before the appropriate authority. In this case, as already seen, by Exts.P6 to P9 orders, promotions have been granted to the petitioner invoking Rule 39 of the General Rules, the promotions have been regularised and he was absorbed in the regular service. These orders were challenged and were upheld by this Court. These judgments have attained finality and several years have passed. It is thereafter that the respondents have initiated proceedings by Exts.P15 to P18, to review the settled seniority of the petitioner showing him as holding a supernumerary post. The official respondents and the State are bound by the judgments of this court. So long as those judgments hold the field, any action contrary to those judgments is absolutely without authority of law and is illegal. The question is when a person complains to this court that the State and its functionaries have initiated proceedings in violation of the judgments of this court, which are binding on them, whether he should be told to take his chance before the authorities themselves, and to approach this court only if the ultimate decision is against him or should this court assert its power and come to the rescue of the petitioner whose rights are violated. In my view, the answer has to be that this court will not remain a mere spectator, as otherwise this court will be encouraging authorities to flout its judgments. If that is allowed to happen, it will only lead to lawfulness and anarchy. In my view, the answer has to be that this court will not remain a mere spectator, as otherwise this court will be encouraging authorities to flout its judgments. If that is allowed to happen, it will only lead to lawfulness and anarchy. In this context, I must also make reference to the Apex Court judgment in State of U.P v. Brahm Datt Sharma (AIR 1987 SC, 943), where after laying down the law that, when a show cause notice is issued to a Government servant under a statutory provision, the Government servant must ordinarily place his case before the concerned authority by showing cause, the Apex Court held that the courts should be reluctant to interfere with the notice at this stage unless notice is shown to have been issued palpably without any authority of law. Again, in the judgment in Executive Engineer, BSHB V. Ramesh K. Singh & Ors. (JT 1995(8)SCC 331), it has been held in paragraph 10 as follows; "No question of infringement of any fundamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ext.P4 notice is ex facie a "nullity" or totally "without jurisdiction" in the traditional sense of that expression -that is to say that even the commencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthorized. In such a case, for entertaining a writ petition under Article 226 of the Constitution of India against a show cause notice, at that stage, it should be shown that the authority has no power or jurisdiction to enter upon the enquiry in question. In all other cases, it is only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India." 16. In Whirlpool Corporation V. Registrar of Trade Marks, Mumbai (1998(8) SCC page 1), interfering with a show cause notice, the Apex Court highlighted the circumstances where a High Court will be justified in exercising its jurisdiction under Article 226, in the following words. In Whirlpool Corporation V. Registrar of Trade Marks, Mumbai (1998(8) SCC page 1), interfering with a show cause notice, the Apex Court highlighted the circumstances where a High Court will be justified in exercising its jurisdiction under Article 226, in the following words. "Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. 17. These principles were reiterated in Siemens Ltd. V. State of Maharashtra & Ors. (2006(12) SCC page 33) as follows; "Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this court in some decisions including State of U.P. V. Brahm Datt Sharma, Special Director V. Mohd. Ghulam Ghouse and Union of India V. Kunisetty Satyanarayana, but the question herein has to be considered from a different angle viz. when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose(See K.I. Shephard V. Union of India). It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter-affidavit as also in its purported show cause notice." 18. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter-affidavit as also in its purported show cause notice." 18. Applying the law thus laid down by the Apex Court in the aforesaid judgments, I hold that this writ petition is maintainable in view of the finality that Exts.P6 to P9 and the judgments have attained. 19. The main question that remains to be considered is whether the respondents were justified in issuing Exts.P15 to P19. On consideration of the rival contentions raised, I am of the firm view that Exts.P16 to P18 to the extent it affects the petitioner are illegal. Reason for my conclusion is that by Exts.P6 to P9, promotions given to the petitioner invoking Rule 39, his absorption in the regular vacancy of Deputy Commandant and his regularization in that post with effect from 1.11.1994 were ordered by the Government of Kerala. These orders were questioned before this court and O.P.No.12706/94 was allowed to be dismissed at the instance of the 2nd petitioner therein. Though, on account of the subsequent developments, liberty was reserved for him to pursue his remedies against the impugned proceedings, he did not avail of that opportunity. Again the orders were challenged in O.P.NO.3733/94. Following Ext.P13 and P14 judgments, O.P.No.3733/94 was also dismissed by Ext.P12 judgment. All these judgments including Exts. P13 and P14 have attained finality. These judgments and the directions therein bind the Government and its officers. So long as these judgments remain final and binding, nobody can act contrary to the directions, and to say the least, what is reflected in Exts.P15 to P19 is an attempt to overreach the directions in these judgments. Therefore, for this very reason and in view of the inter-party judgments which have attained finality, the judgment in Koyit Joseph & Ors. V. Subash George & Ors. (ILR 2006(3) Kerala 162) relied on by the learned Government Pleader for contending that invocation of Rule 39 was illegal, has no relevance. For the above reason itself, the impugned orders Exts.P15 to P19 to the extent the Petitioner shown as holding a supernumerary post of Deputy Commandant in the Armed Police Battalion are illegal. 20. (ILR 2006(3) Kerala 162) relied on by the learned Government Pleader for contending that invocation of Rule 39 was illegal, has no relevance. For the above reason itself, the impugned orders Exts.P15 to P19 to the extent the Petitioner shown as holding a supernumerary post of Deputy Commandant in the Armed Police Battalion are illegal. 20. In view of the above, WP(c).No.9039/09 is disposed of upholding the contention that the petitioner who was absorbed in the regular vacancy of Deputy Commandant and regularized in that post by Exts.P6 to P9, could not have been treated as a supernumerary. 21. In this writ petition, the petitioner is challenging Exts.P8, P9 and P13. These documents are Exts.P6, P7 and P9 respectively in WP(c).No.9039/09. Although these three orders are under challenge, counsel for the petitioner confined his submissions only against Ext.P13 which is Ext.P9 in WP(c). No.9039/09. He further contended that Ext.P15 order dated 23.6.2007 has been issued by the Government of Kerala during the pendency of the writ petition and in the absence of petitioner in WP(c). No.9039/2009, challenging the said order, the proposal to treat him as supernumerary cannot be questioned. 22. As far as the challenge against Ext.P13 regularizing the petitioner in WP (c).No.9039/09 as Deputy Commandant with effect from 1.11.1994 is concerned, it is true that by the said order, the petitioner herein has become junior to the petitioner in WP(c).No.9039/09. However, the question is whether the petitioner herein can validly challenge the said order. As already seen, Exts.P8 and P9 orders were the subject matter of OP.Nos.12706/94 & 3733/94. These Original Petitions were dismissed by judgment dated 8.2.2006 and 12.2.2004 respectively. Judgment dated 12.2.2004 was rendered following Exts.P13 and P14 judgments in WP(c).No.9039/09. Although, in the pleadings, the petitioner herein is also seeking relief against Exts.P8 and P9, no arguments were addressed. Even otherwise, such a challenge in my view is impermissible. This is for the reason that these orders have already been upheld by this court in the judgments referred to above. Even if he is not a party to the proceedings upholding the said order, if he is aggrieved, course open to the petitioner is not to file another writ petition before this court and seek a judgment contrary to the judgments that this court has already rendered. Even if he is not a party to the proceedings upholding the said order, if he is aggrieved, course open to the petitioner is not to file another writ petition before this court and seek a judgment contrary to the judgments that this court has already rendered. On the other hand, he should have applied for leave and sought review of the judgment or filed an appeal with leave and got the judgment invalidated. 23. This very question was considered by this court in Ramachandran v. Food Corporation of India (1989(2) KLT 112) and it was held that; Assuming for the sake of argument that respondents 3 and 4 were necessary parties in the earlier cases, the question for consideration is as to what is the proper procedure to be adopted in a case like this. As things stand, there is one set of directions issued in O.P.No.4420/78 affirmed in W.A.No.251/82 directing the Food Corporation of India to assign notional dates of promotion to the appellants as and when vacancies in the category of Assistants Grade II arose after they stood transferred to the south zone. The said decision having been implemented and Exts.P3 and P3(a) having been passed by the Corporation, at the instance of respondents 3 and 4 the learned Single Judge has issued a direction in O.P.No.71/82 quashing those orders which were made in obedience to the directions issued by this Court to the Corporation and issued a further direction to the Corporation to examine the matter afresh after due notice to all the parties. Thus we arrive at a situation where there are two conflicting directions, one in O.P.No.4420/78 affirmed in W.A.No.251/82 directing the Food Corporation of India to do certain things and another direction issued by the learned single Judge in O.P.No.71/83 commanding the Corporation to do something at variance with what has been directed by this court in the earlier case. So far as the Corporation is concerned, it cannot satisfactorily comply with the conflicting directions issued by this court in two sets of cases. So far as the Corporation is concerned, it cannot satisfactorily comply with the conflicting directions issued by this court in two sets of cases. In a situation like this, if a particular person is a necessary party and a decision has been rendered without impleading the necessary party, the proper course to be adopted is not to seek contrary directions at the hands of this court under Art.226 but to make an appropriate petition to reopen the earlier judgment on the ground that he was a necessary party and that the adverse decision rendered affects him and to get himself impleaded as a party and get the judgment rendered behind his back reviewed. That is the procedure which has to be followed as laid down by this court in W.A. No. 683 of 1982, wherein it is observed as follows: "It is necessary to point out that the decision in O.P. No. 1392/80 has become final, it having been affirmed by a Division Bench on appeal in WA.No.693/82. The said decision, therefore operates as res-judicata in this appeal even though the appellant was not a party to the said proceedings (vide Joseph v. State of Kerala (AIR 1965 SC 1514). The proper course open to the appellant is to get the previous decision reopened, as otherwise the appellant would be barred by the principle of res judicata. That this is the correct principle to be followed is what was ruled by the Supreme Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC 1909). Hence on this short ground the appeal is liable to be dismissed, as the decision in W.A. No. 693/82 operates as res judicata." Following the said decision it has to be held that the learned Single Judge could not have allowed the writ petition and quashed Exts.P3 and P3(a) which have been passed in obedience to the judgment of this court in W.A.No.251/82. It is also not possible to understand the judgment of the learned single Judge as having the effect of reopening the earlier decision of this court, for the obvious reason that the earlier judgment rendered in O.P.No.4420/78 stood affirmed and merged in the judgment rendered in W.A.No.251/82 by a Division Bench. It is also not possible to understand the judgment of the learned single Judge as having the effect of reopening the earlier decision of this court, for the obvious reason that the earlier judgment rendered in O.P.No.4420/78 stood affirmed and merged in the judgment rendered in W.A.No.251/82 by a Division Bench. Hence the learned single Judge would not have reopened a judgment rendered by a Bench of two Judges of this Court in W.A.No.251/82." Such a course of action has not been adopted by the petitioner. 24. Ext.P13 order dated 30.6.2004 which is challenged is only an order consequential to Exts.P8 and P9. Therefore, so long as Exts.P8 and P9 herein are unassailable in these proceedings, Ext.P13 order is also unassailable. Therefore, the contentions against Ext.P13 order are only to be rejected and I do so. 25. The other contention strongly urged by the petitioner was by placing reliance on Ext.P15 order dated 23.6.2007. This order has been issued by the Government of Kerala where it has been held that sports personnel recruited in excess of their quota will be retained as supernumerary until vacancies arise in that quota or that they will retire as supernumerary. Counsel contends that since the petitioner in WP (c).No.9039/09 has not challenged this order, he has to accept the supernumerary post conferred on him and he also contended that WP(c).No.9039/09 has to be dismissed. 26. I am not able to accept this contention. While dealing with WP(c).No.9039/09, I have already held that in view of the binding judgments to which the Government is also a party, it was not open to the Government to treat the petitioner in WP(c). No.9039/09 as supernumerary. In Ext.P15, what is ordered is that the petitioner will be treated as supernumerary. This order is directly in conflict with the judgments of this court which have attained finality. Therefore, on the face of it, this order is unsustainable. If an order is unsustainable on the face of it, when that order is pressed into service, even in the absence of a formal challenge against the validity of the order, the court can justifiably ignore the order, particularly when the party in sufferance is the respondent to the proceedings. {see in this connection the Apex Court judgment in Bharathidasan University & Anor. V. All India Council for Technical Education & Ors. (2001 (8) SCC 676)}. {see in this connection the Apex Court judgment in Bharathidasan University & Anor. V. All India Council for Technical Education & Ors. (2001 (8) SCC 676)}. Therefore, the absence of challenge against Ext.P15, so long as the said order is illegal one, cannot be a ground for the petitioner to succeed. In the result WP (c).No.17479/05 is only to be dismissed.