JUDGMENT : A.K. Jayasankaran Nambiar, J. As both these appeals arise out of a common judgment in W.P.(C) No.22881 of 2020, they are taken up for consideration together and disposed by this common judgment. The brief facts necessary for disposal of these writ appeals are as follows: The appellants/writ petitioners in W.A.No.748 of 2021 are working as Assistant Engineers (Electrical) in the Kerala State Electricity Board [KSEB]. They were appointed on various dates between 2001 and 2008. In the writ petition, they were aggrieved by their respective placements in a provisional seniority list of Assistant Engineer (Electrical) drawn up by the KSEB. 2. The recruitment to the post of Assistant Engineer (Electrical) in KSEB is governed by Government orders and Board orders. During the relevant time those orders envisaged that the total strength of posts in the cadre would be filled in the ratio of 50% by degree holders through direct recruitment, 30% by promotion of diploma holders and 20% by promotion of certificate holders [Ext.P9]. As it was felt necessary to provide an avenue of recruitment to graduate engineers in the service of the Board in any of the lower posts, irrespective of the hierarchical placement of the post in the service, a quota of 10% was carved out from the 50% quota that was earmarked for direct recruitment of graduate engineers, for filling up through direct recruitment of the in-service candidates referred to above [Ext.P10]. While doing so, Ext.P10 Board order made it clear that 40% of the vacancies of Assistant Engineers in the Board would be filled up by direct recruitment of candidates from the open market and 10% of the vacancies by direct recruitment of the Engineering graduates who were in the service of the Board. It was further made clear that if at any time qualified candidates did not become available for direct recruitment to the 10% quota, then the vacancies to the said quota would also be filled up by direct recruitment of candidates from the open market. 3. It would appear that the appointment of candidates in the direct recruitment quota was done through the Kerala Public Service Commission [PSC], and the insistence by the PSC for following communal rotation even while preparing the merit list of in-service candidates was found to be causing hardship to the candidates. 3. It would appear that the appointment of candidates in the direct recruitment quota was done through the Kerala Public Service Commission [PSC], and the insistence by the PSC for following communal rotation even while preparing the merit list of in-service candidates was found to be causing hardship to the candidates. The selection of candidates under the 10% quota for in-service candidates was therefore taken out of the purview of PSC in November, 1983 [Ext.P11]. Later, by a Government order dated 21.3.1990 [Ext.P12], it was clarified by the Government that the ranking of in-service candidates under the 10% quota for graduate engineers would be based on the length of their service in KSEB after acquiring the academic and technical qualifications for the post of Assistant Engineer (Electrical). This Government order was also adopted by the Board [Ext.P13]. 4. In 2005, the Government, through a fresh order, entrusted the selection of the in-service candidates to the 10% in-service quota to the PSC, and pursuant thereto, the PSC has been conducting the selection and drawing up the merit list of such in-service candidates and thereafter advising them to the Board in accordance with the merit of the candidates concerned in the rank list drawn up for the purpose. While drawing up the seniority list of Assistant Engineer (Electrical), the inter se seniority of Assistant Engineer sourced through direct recruitment – both in-service candidates and new entrants – was determined by the Board by following the principle in the Kerala State and Subordinate Service Rules [KS & SSR] of reckoning their seniority with effect from the date of their advise by the PSC. A change to this practice was attempted in 2012 when, pursuant to proceedings of the Chief Engineer [HRM] of the KSEB [Ext.P35], it was felt that the seniority list of Assistant Engineer (Electrical) had to be recast to redetermine the inter se seniority of Assistant Engineer [Electrical] sourced through direct recruitment on the principles laid down in Rule 27(a) of Part II KS & SSR especially the 3rd proviso to the said Rule. The proceedings of the Chief Engineer was however cancelled vide another proceedings dated 14.9.2015 [Annexure IV] and the earlier seniority list was rendered operational. The proceedings of the Chief Engineer was however cancelled vide another proceedings dated 14.9.2015 [Annexure IV] and the earlier seniority list was rendered operational. It was aggrieved by the publication of a revised provisional seniority list that was prepared based on the practice that prevailed in the Board prior to Ext.P35, that the petitioners had approached the writ court through the writ petition. 5. No counter affidavit was filed by the Board or its Chief Engineer before the writ court. The additional 4th respondent, who was an Assistant Engineer (Electrical) appointed under the 40% direct recruitment category of graduate engineers, got himself impleaded in the writ petition and put forth arguments in support of the seniority list that was impugned in the writ petition. 6. The learned Single Judge, who considered the issue, found that the 3rd proviso to Rule 27(a) of the KS & SSR [mistakenly referred to as Rule 27A of the KS & SSR in the impugned judgment] had no application to the facts of the case since there was no roster maintained by the PSC of candidates from different sources within the direct recruitment category in the post of Assistant Engineer (Electrical). The relevant findings of the learned Single Judge are extracted herein below : “19. Viewed from that perspective, when one examines the third proviso to Rule 27A of the KS & SSR, it may not concede to much doubt that the said provision has been designed primarily to operate where a “roster” is enlivened, with a particular vacancy being earmarked for a particular category, succeeded by another category in the subsequent vacancy. Obviously, when there is no such roster available in the services of the KSEB, as far as the post of Assistant Engineer (Electrical) is concerned, the provisions of the afore proviso would apply only in a very restrictive sense. 20. That said, however, as I have already said above, there is no dispute between the rivals in this case that there is a particular quota fixed for the two categories of candidates. In that sense, the submissions of the learned senior counsel, relying upon the various judgments cited above, would obtain certain force. 20. That said, however, as I have already said above, there is no dispute between the rivals in this case that there is a particular quota fixed for the two categories of candidates. In that sense, the submissions of the learned senior counsel, relying upon the various judgments cited above, would obtain certain force. I say this because, as has been declared by the Hon'ble Supreme Court in the afore judgments, when different categories of recruitments are provided for filling up of a particular post and when quotas are specifically earmarked, candidates can be advised or appointed only within the confines of the said quotas and not beyond. It has been also declared affirmatively by the Hon'ble Supreme Court that when appointments are made in excess of the quota, those persons who obtained such appointments will have to make way to provide for seniority of those persons who are eligible to their quota, as are statutorily prescribed. 21. In other words, if there are direct recruits from open market appointed in excess of the 40% quota, but granted seniority over the 10% “in service” candidates appointed within their quota, certainly their position will have to be pushed down to accommodate the latter; and they cannot claim to the contrary merely because they were advised or appointed in excess of their eligible quota, before the candidates of the other quota had not been so advised or appointed. xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx 25. When such quotas have been so formulated, then it is needless to say that every time a vacancy arises, appointments will have to be confined from within the confines of the said quotas and it cannot be allowed to run haywire, merely because one category is not available at a particular point of time. If this is allowed, it will defeat the very purpose of the “quota” stipulations, particularly when the candidates who come in through these two streams as Assistant Engineers will then become a homogeneous group to be considered for the next promotion to the post of Assistant Executive Engineer. 26. If this is allowed, it will defeat the very purpose of the “quota” stipulations, particularly when the candidates who come in through these two streams as Assistant Engineers will then become a homogeneous group to be considered for the next promotion to the post of Assistant Executive Engineer. 26. From the perspective above, I am certain that, though the provisions of the third proviso to Rule 27A of the KS & SSR would not apply with respect to the fixing of seniority among the candidates who are advised by the PSC to the post of Assistant Engineers (Electrical) through direct recruitment, the enforcement of the quota requirements will certainly have to be kept in mind by the KSEB. They will have to thus assess the vacancy position at every stage where the process of recruitment had been taken forward and will then have to apportion it strictly in terms of the quota of 10% and 40% vacancies among the two categories of candidates, mentioned above. xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx 28. In its proper application of the quota Rule, the KSEB ought to have prepared the seniority list as and when each process was completed, so as to fix the candidates in the positions that are available to them under their respective quotas, but this does not appear to have been done; and they seem to have prepared Ext.P38 seniority list by taking all the Engineers together, available as on 25.03.2014, without verifying as to when they were appointed and against which vacancies. 29. This certainly cannot obtain my favour and I am sure that this Court will be justified in moulding relief to that extent, since it runs contrary to the provisions of law, as also the affirmative declarations of the Hon'ble Supreme Court, surveyed above. xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx 33. For the afore reasons, I am of the opinion that, though Ext.P38 need not be set aside by this Court, it requires to be reviewed by the competent Authority of the KSEB, verifying whether any person has been appointed in excess of the applicable quota at the relevant time, which will certainly necessitate an assessment of the vacancy position from time to time. This is certainly necessary, going by the judgments of the Hon'ble Supreme Court afore cited and without this, the fixing of seniority among the two categories ? who enjoy separate quotas ? This is certainly necessary, going by the judgments of the Hon'ble Supreme Court afore cited and without this, the fixing of seniority among the two categories ? who enjoy separate quotas ? recruited to the post of Assistant Engineer (Electrical), cannot be granted imprimatur. 34. Resultantly, this writ petition is ordered to the extent of directing the KSEB to re-examine Ext.P38 provisional seniority list, after affording necessary opportunity of being heard to the petitioners, as also to all other persons who are included therein; and then recast it, if so necessary, after assessing the vacancy position at the time when each of the recruitment processes had been completed and to re-publish it as a fresh provisional seniority list. The afore shall be done by the KSEB as expeditiously as is possible, but not later than six months from the date of receipt of a copy of this judgment.” 7. In W.A.No.748 of 2021, the contentions of the learned Senior Counsel Sri. O.V. Radhakrishnan, appearing for the appellant, briefly stated are as follows : - Merely because the Government had entrusted the selection process, in relation to the 10% quota for in-service candidates for the post of Assistant Engineer (Electrical), to the PSC, it did not follow that the recruitment of candidates against the said quota was in the nature of a direct recruitment. Ext.P14 GO clearly indicated that although the selection process was entrusted to the PSC, the method of recruitment was to be by-transfer. Accordingly, the provisions of the third proviso to Rule 27(a) of Part II KS & SSR would apply to determine the inter se seniority of appointees by transfer and direct recruits from the open market and the seniority had to be fixed by alternating on a roster system the actual intake of vacancies and dividing them between by transfer appointees and direct recruits from the open market in the ratio of 1:4. The co-existence of the quota and rota system cannot be snapped and the by transfer or direct recruits who have been filled in the vacancies beyond their quota had to suffer survival as invalid appointees acquiring new life when vacancies in their quota fall to be filled up. Reliance was placed on the following judgments to substantiate the above contention, namely, Bishan Sarup Etc. Etc. Reliance was placed on the following judgments to substantiate the above contention, namely, Bishan Sarup Etc. Etc. v. Union of India and Others - [ AIR 1974 SC 1618 ], Mervyn Continho and Others v. Collector of customs, Bombay and Others - [ AIR 1967 SC 52 ], Govind Dattatray Kelkar and Others v. Chief Controller of Imports and Exports and Others - [ AIR 1967 SC 839 ], P.S. Mahal and Others v. Union of India and Others - [ AIR 1984 SC 1291 ], M.S.L. Patil, Asstt. Conservator of Forests, Solarpur (Maharashtra) and Others v. State of Maharashtra and Others - [ (1996) 11 SCC 361 ], O.P. Singla and Another v. Union of India and Others - [ (1984) 4 SCC 450 ], A.K. Subraman and Others v. Union of India and Others - [ AIR 1975 SC 483 ]. - The stand of the respondents that the provisions of Rule 27 (c) of Part II KS & SSR would apply and that the inter se seniority of the direct recruits and by transfer appointees had to be determined based on the respective dates of advise by the PSC cannot be legally countenanced since the PSC was not called upon to prepare a ranked list or issue advises in the manner stipulated under the KPSC Rules of procedure while effecting by transfer appointments. Appointments through the PSC of in-service candidates under the 10% quota as ordered in Ext.P14 GO does not bring the appointment of in-service candidates under the purview of the KPSC for the purposes of the KS & SSR. - The respondent Board and its Chief Engineer having chosen not to file any counter affidavit in the writ petition before the learned single judge, could not have filed any counter affidavit in the Writ Appeal going by the provisions of Rule 153 of the Rules of the High Court of Kerala. That apart, the deponent in the affidavits filed in the writ appeal, although competent to swear the affidavit on behalf of the Board, was not competent to swear to an affidavit on behalf of the Chief Engineer since he had no authority to do so. 8. Per Contra, it is the submission of Sri. Elvin Peter, the learned counsel appearing for the appellant in W.A.No.874 of 2021 and the additional 4th respondent in W.A.No.748 of 2021, Sri. 8. Per Contra, it is the submission of Sri. Elvin Peter, the learned counsel appearing for the appellant in W.A.No.874 of 2021 and the additional 4th respondent in W.A.No.748 of 2021, Sri. Anil, the learned Standing counsel for the KSEB and Sri. P.C. Sasidharan, the learned counsel appearing for the interveners, to whose application for impleadment, objections were raised by the appellants in W.A.No.748 of 2021, that : - The scheme of appointment of candidates to the 50% quota earmarked for direct recruitment of Assistant Engineers (Electrical) in the KSEB contemplated the appointment of candidates through the PSC and accordingly the candidates from the open market as well as the in-service candidates that made up the said quota had to be treated as direct recruits for the purposes of the KS & SSR that was made applicable to the Board. - The scheme of effecting appointments through the KPSC was first envisaged in the earlier Government orders (Exts.P9 and P10) and since the said orders were not modified or varied in Ext.P14 Government Order that re-introduced the method of appointments through the KPSC for candidates in the 50% quota earmarked for open market and in-service graduates in the ratio of 40% : 10%, the reference to by transfer appointment in Ext.P14 GO had to be seen merely as a means to identify the candidates in question and not as indicating a separate source of candidates for appointment. The inter se seniority among the said candidates had therefore to be determined in terms of Rule 27 (c) of Part II KS & SSR. 9. We have considered the rival submissions and perused the pleadings before us. We have also gone through the judgments cited by either side at the time of hearing. On a consideration of the rival submissions, we are of the view that for the reasons that are to follow, W.A.No.748 of 2021 must fail and W.A.No.874 of 2021 must succeed. 10. W.A.No.874 of 2021 has been preferred by the 4th respondent in W.A.No.748 of 2021 aggrieved by the finding of the learned Single Judge in the impugned judgment that the seniority list that was impugned in the writ petition required to be reviewed. 10. W.A.No.874 of 2021 has been preferred by the 4th respondent in W.A.No.748 of 2021 aggrieved by the finding of the learned Single Judge in the impugned judgment that the seniority list that was impugned in the writ petition required to be reviewed. It is agreed by counsel on either side that this was not an issue that was either raised or argued in the writ petition and therefore there was no occasion for the learned single judge to have issued such a direction especially after finding that the recruitment of both in-service candidates and those from the open market under the 50% quota earmarked for graduate engineers had to be seen as a direct recruitment and consequently, the provisions of the third proviso to Rule 27(a) of Part II KS & SSR would have no application. We therefore vacate those findings in the impugned judgment of the learned Single Judge and allow W.A.No.874 of 2021. 11. Coming to W.A.No.748 of 2021, the sole issue that arises for our consideration is whether the finding in the impugned judgment, as regards the non-applicability of the third proviso to Rule 27(a) of Part II KS & SSR to the facts in the instant case, can be legally sustained ? As already noticed above, the contention of the learned senior counsel for the appellant is that the mere re-entrustment of the selection process for by-transfer candidates to the PSC cannot be construed as changing the method of appointment from by-transfer to direct recruitment. He points to the inherent contradiction in the submission of the respondents, that direct recruitment is the source of recruitment for in-service candidates, to contend that all that Ext.P14 GO did was to route the selection process of in-service candidates through the PSC and that it did not change the method of recruitment itself. He argues that the PSC was merely obliged to draw up a list of in-service candidates found eligible for appointment as Asst. Engineer (Electrical), after conducting a selection process to determine their inter se merit, and forward that list to the KSEB for effecting appointments to the particular quota. 12. We have considered the submissions of the learned senior counsel. He argues that the PSC was merely obliged to draw up a list of in-service candidates found eligible for appointment as Asst. Engineer (Electrical), after conducting a selection process to determine their inter se merit, and forward that list to the KSEB for effecting appointments to the particular quota. 12. We have considered the submissions of the learned senior counsel. While we do see the merit in his contention that the prescription of direct recruitment as a method of recruitment for in-service candidates does seem anomalous and riddled with contradiction, it is only when one traces the history of the Government and Board orders enumerated above that the real picture emerges. Ext.P14 GO modifies two earlier GO’s dated 23.11.1983 [Ext.P11] and 21.03.1990 [Ext.P12]. These GO’s dealt with the procedure to be followed by the KSEB while effecting by-transfer appointment of in-service candidates to the 10% quota earmarked for such candidates in the post of Assistant Engineer (Electrical). We have to bear in mind that the said two GO’s pertain to the period when the recruitment process of such in-service candidates was taken away from the PSC and entrusted to the KSEB itself. The paradigm shift effected by Ext.P14 GO was to once again entrust the recruitment process to the PSC by taking it away from the KSEB. The PSC is a functionary envisaged under our Constitution for effecting recruitment to public services in the centre and the states. The entrustment of a recruitment process to the said body carries with it certain implications and it cannot be seen as a mere outsourcing of the selection process to an independent body. The provisions of the earlier GO’s where under the process of selection of in-service candidates to the post of Assistant Engineer (Electrical) was entrusted to the PSC, envisaged a direct recruitment of such candidates to the post, albeit by permitting them to continue in service pending the recruitment. In other words, while under normal circumstances, the in-service candidates would have had to resign from service as a precondition to applying for the post of Assistant Engineer (Electrical) under the KSEB, in the quota earmarked for direct recruits, the GO’s in question permitted them to participate in the selection process conducted by the PSC without resigning from their extant service under the Board. These GO’s, that prescribed direct recruitment as a method of recruitment of in-service candidates under the circumstances mentioned above, were not modified by Ext.P14 GO that re-entrusted the selection process to the KPSC. Ext.P14 GO must therefore be seen as entrusting the selection process to the PSC for undertaking an independent assessment of the inter se merit of the candidates and thereafter advising the said candidates, in accordance with their ranking in the ranked list prepared by the PSC for the purpose. The procedure being in no way different from that followed in the case of direct recruitment of open market candidates to the post, the inter se seniority of the candidates advised had to be reckoned, as in the case of other direct recruits, from the date of advise of the candidate to the vacancies reported in relation to the post in question. This would be in accordance with Rule 27(c) of Part II, KS & SSR. 13. The decisions relied upon by the learned senior counsel that deal with the settled principle in service law that whenever candidates to a post are recruited from different sources, their inter se seniority must take into account the quota of posts earmarked for each category of candidates by maintaining a category-wise roster for that purpose, does not apply to the facts of the instant case when we find that the candidates from the open market and the in-service candidates were both sourced through direct recruitment, and pursuant to a selection process conducted by the KPSC. The provisions of Rule 27(a) of Part II KS & SSR can have no application to the facts and circumstances of the present case. 14. Before parting with these appeals, we might only add that we do not deem it necessary to address the technical arguments urged by the learned senior counsel as regards the reliance that can be placed on the counter affidavits of the respondents. This is because, we felt that these appeals could be decided solely on the basis of the pleadings that were available, and the contentions urged, before the learned Single Judge in the writ petition. We have not relied upon the affidavits filed on behalf of the respondents in the writ appeals to arrive at our findings in this judgment. This is because, we felt that these appeals could be decided solely on the basis of the pleadings that were available, and the contentions urged, before the learned Single Judge in the writ petition. We have not relied upon the affidavits filed on behalf of the respondents in the writ appeals to arrive at our findings in this judgment. In the light of the above findings, we dismiss W.A.No.748 of 2021 and allow W.A.No.874 of 2021 by upholding Ext.P38 provisional seniority list. W.P.(C) No.22881 of 2020 will stand dismissed.