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K.V. Sahadeva Kurup Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1972)IILLJ68Ker
AppellantK.V. Sahadeva Kurup;s. Ramachandran and ors.
RespondentState of Kerala and ors.;The State of Kerala and anr.
Excerpt:
- - concerned as well as their seniority in the promoted cadre should be governed by the kerala state and subordinate services rules, 1958. rules 27(a) and 28(bb) are the relevant provisions. and the protection granted thereunder should not be allowed to be defeated by such methods......as ext p-1 in o.p. no. 2530 of 1969. when the petitioners were initially promoted to the upper division cadre, respondents 3 to 6 in o.p. 2281 of 1969 did not have the test qualification, which is necessary for their promotion, but at the time they were given exemption from the operation of the rule regarding seniority consequent on transfer from one district to another as per co., dated 16-1-1968, they had passed the test qualification, and were eligible for promotion. they claimed that the petitioners' promotions were only provisional, and that they were, therefore, entitled to seniority over the petitioners in the cadre of upper division clerks. the district collector, trivandrum by his order, dated 16-4-1969, which is marked as ext. p 6 in o.p. 2530 of 1969, upheld the above.....
Judgment:

M.U. Isaac, J.

1. The petitioners were appointed as lower division clerks in the Revenue Department, in Trivandrum District, white respondents 3 to 6 in O. P. 2281 were appointed as lower division clerks in the same department in the Malabar area. The appointments of these respondents were earlier in point of time. All the appointments were made after the Kerala State and Subordinate Services Rules, 1958, came into force. As per G.O. MS. 4/PD (Services), dated 2-1-1961, a person transferred from one district to another district would take the lowest rank in his cadre in the district to which he is transferred. By G.O. MS. 29/68/RD, dated 16-1-1968, the lower division clerks appointed in the Revenue Department in the Malabar area up to 19-12 1962 were exempted from the said rule. Accordingly, these lower division clerks, if they are transferred to another district, would take their rank in the new district on the basis of their first appointment. Some persons availed of the above exemption, and got transferred to the Trivandrum District. Respondents 3 to 6 in O.P. No. 2281 of 1969) belong to that class. Long before they came to Trivandruni District, the petitioners had got promotion as upper division clerks. Their promotions were regularised by the District Collector by his order, dated 27-1-1968. which is marked as Ext P-1 in O.P. No. 2530 of 1969. When the petitioners were initially promoted to the upper division cadre, respondents 3 to 6 in O.P. 2281 of 1969 did not have the test qualification, which is necessary for their promotion, but at the time they were given exemption from the operation of the rule regarding seniority consequent on transfer from one district to another as per CO., dated 16-1-1968, they had passed the test qualification, and were eligible for promotion. They claimed that the petitioners' promotions were only provisional, and that they were, therefore, entitled to seniority over the petitioners in the cadre of upper division clerks. The District Collector, Trivandrum by his order, dated 16-4-1969, which is marked as Ext. P 6 in O.P. 2530 of 1969, upheld the above claim. Accordingly, he reviewed his earlier order regularising the services of the petitioners and Ors., promoted respondents 3 to 6 in O.P. No. 2281 of 1969 to the upper division cadre, and reverted the petitioners. The petitioners thereupon filed these writ petitions questioning their reversion, and claiming rank in the cadre of upper division clerks on the basis of their earlier appointments in that cadre. This Court, while admitting these writ petitions, passed interim orders with the result the petitioners are now continuing in the cadre of upper division clerks.

2. There can be no dispute that the promotion of the petitioners and respondents 3 to 6 in O.P. 2281 of 1969 and Ors. concerned as well as their seniority in the promoted cadre should be governed by the Kerala State and Subordinate Services Rules, 1958. Rules 27(a) and 28(bb) are the relevant provisions. Rule 27(a) reads:

Seniority of a person in service, class, category or grade, shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such service, class, category or grade. If any portion of the service of such person does not count towards probation under the rules, his seniority shall be determined by the date of commencement of his service which counts towards probation.

Rule 28(bb) reads:

Promotion in a service or class which depends upon the passing of any examination (General or Departmental) shall ordinarily be made with reference to the conditions existing at the time of occurrence of the vacancies and not with reference to those at the time when the question of promotion is taken up.

3. The District Collector has reviewed the promotion of the petitioners and ordered their reversion and promoted respondents 3 to 6 in O.P. 2281 of 1969 on the basis of the directions issued by the Government. The Government has filed a counter-affidavit justifying the said directions and the action taken by the District Collector. The Government has put forward a very involved defence, which is not easy for being understood. The substance of it seems to be this : The petitioners' promotions were temporary ; and they were stated to be provisional. The promotions became regular only by the order of regularisation, dated 27-1-1968. But on that date, respondents 3 to 6 in O.P. No. 2281 of 1969 had become seniors to the petitioners in the cadre of lower division clerks by virtue of the exemption granted to them by G.O., dated 16-1-1968; and they had by that time passed the test qualification also. So at the time of regularisation of the promotions to the upper division cadre, the petitioners should be reverted and respondents 3 to 6 in O.P. No. 2281 of 1969 should be promoted on the basis of their seniority in the lower cadre.

4. This appears to me to be a very ingenious process of reasoning. Rules 27(a) and 28(bb) of the Kerala State and Subordinate Services Rules, 1958 are very clear on this matter. Rule 28(bb) provides that the promotion shall be with reference to the conditions existing at the time of occurrence of the vacancy. It does not speak of temporary vacancy or temporary promotion, or about provisional promotion. Rule 27(a) provides that the date of order of first appointment would determine the seniority in the service, class, category or grade. This rule also does not speak of temporary or provisional appointments by promotion or otherwise. Temporary promotions are dealt with in Rule 31. They are of a temporary nature made otherwise than in accordance with the rules under emergency circumstances, and such promotions can only be till the person entitled to promotion according to the rules is promoted. Such promotees do not get any seniority or claim for future promotions by virtue of their temporary appointments. The petitioners were promoted in accordance with the rules on the basis of their seniority by virtue of their having passed the test qualification. At the time when the petitioners were promoted respondents 3 to 6 in O.P. No. 2281 of 1969 were juniors to the petitioners by virtue of the G.O., dated 2-1-1961, which provided that the transferees from one district to another district would take the lowest rank in the cadre ; and further they had not also passed the test qualification. In these circumstances, to say that the petitioners' promotions were temporary is an abuse of words, if not of truth. They were entitled to promotion according to the rules, whether the vacancies were temporary or permanent. They were accordingly promoted; and their promotions were also regularised in due course. According to the stand taken in the counter affidavit of the Government, it would appear that it is the order regularising the promotions that determines the seniority, and that, if in this case the order of regularisation which was passed on 27-1-1968, happened to be passed 12 days earlier, namely a day earlier than 16-1-1968, when the order exempting persons transferred from the Malabar area from the rule that they would take the lowest rank in their cadre was passed, the petitioners' promotions and their ranks in the upper division cadre would not have been affected. I am not told why the order of regularisation of the promotions were not passed earlier. How unfortunate would have been the fate of the service, if matters relating to their right of promotion and seniority depend on the inaction or delay, if not the manipulation, on the part of some of the secretariat officers in dealing with these matters or the manner in which they draw up orders. Exploitation of words or ingenuity of language employed in drawing up orders cannot alter the true position or affect the rights of persons. The Kerala State and Subordinate Services Rules, 1958, have been made to protect the rights of the service in these matters; and the protection granted thereunder should not be allowed to be defeated by such methods.

5. In the result, I hold that the petitioners are entitled to seniority in the cadre of upper division clerks according to Rule 27(a) of the Kerala State and Subordinate Services Rules on the basis of their first appointments in that cadre. I direct the State Government and the District Collector, Trivandrum to retain the petitioners in the above cadre and to fix their seniority accordingly. In the circumstances of the case, there will be no order as to costs.


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