Skip to content


T.K. Joseph and anr. Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1972)IILLJ76Ker
AppellantT.K. Joseph and anr.
RespondentState of Kerala and ors.
Excerpt:
- - i agree, but would like to add a few words of my own, the facts have been stated in the judgment of isaac, j. s(d)2-43405/56/pd, dated 25-2-1957, (passed before the rules came into force), we are not satisfied that the said g......terms:consequent on the reorganisation of the states from 1-11-1956, the question of unifying service rules, departmental manuals, code of instructions, etc. applicable to the officers of the kerala state has been engaging attention of government and action in this regard is being taken. however, as an interim arrangement, government are pleased to order that every officer in the service of the new state will be bound by the service rules of the state, travancore-cochin or madras, as the case may be, to which he belonged prior to 1-11-56, until common service rules are framed and issued. persons who are newly appointed on or after 1-11-1956, will be governed by the t.s.r. till unified rules are issued.the finance department is requested to take early action for unifying service.....
Judgment:

P. Govindan Nair, J.

1. I have read the judgment of Isaac, J. I agree, but would like to add a few words of my own, The facts have been stated in the judgment of Isaac, J.

2. The short question is whether the 4th respondent is entitled to claim the benefit of the proviso to Rule 27(a) and (b) of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as the Rules). I shall extract the Rule 27(a) and (b) and the proviso:

27. Seniority.-(a) Seniority of a person in a 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,

(b) The appointing authority shall, at the time of passing an order appointing two or more persons simultaneously to a service, fix the order of preference among them; and seniority shall be determined in accordance with it:Provided that nothing contained in Sub-rules (a) and (b) above shall be deemed to have superseded the orders of the Travancore-Cochin Government in R. Dis. No. 8207/50/CS, dated 7th May, 1951, as subsequently clarified in respect of any person who was a member of any service on the date of coming into force of these rules.

3. Rule 1 states:

1. Scope of the General Rules.-The rules in this Part shall apply to all State, and Subordinate Services and the holders of all posts, whether temporary or permanent in any such service, appointed thereto before, or after the date on which these rules come into force as provided in Sub-rule (b) of Rule 1 in Part I except to the extent otherwise expressly provided, (a) by or under any law for the time being in force, or (b) in respect of any member of such service by a contract or agreement subsisting between such member and the State Government.

4. Rule 1 makes it clear that the rules also apply to those who were appointed before the date on which the rules came into force. So the 4th respondent though appointed before the date on which the rules came into force, that is 17-12-1958, will also be governed by the rules. But this does not mean that the rules have retrospective effect. The rules will apply to those who were in service on 17-12-1958, and any promotions for instance, thereafter will be governed by the provisions therein unless the proviso applied.

5. All the promotions in the case took place after the rules came into force. Seniority will, therefore, have to be determined by the date of the order of first appointment (Rule 27(a)). unless the 4th respondent could claim the benefit of the proviso. The proviso, I think, will only apply to those who were governed by the G.O. of the 7th May, 1951, on the date on which the rules came into force, i.e., 17-12-1958. For the seniority of those not governed by the proviso at the time of promotion will have to be determined by applying (Rule 27(a)). This also appears to me to be the plain meaning of the wording of the proviso. If that is the meaning to be given, and I think that should be the meaning, any execu-' tive order that is passed after 17-12-58, saying that the benefit of the G.O. of 7-5-1951, will apply to any class of employees governed by the rules will be against the rules and will have the effect of attempting to alter the consequences of applying the rules. This, of course, cannot be done by executive orders and so Exts. P1 and P2 which are only executive orders cannot change the meaning of the proviso. Though reference was made to a G.O. No. S(D)2-43405/56/PD, dated 25-2-1957, (passed before the rules came into force), we are not satisfied that the said G.O. made the principles of the G.O. of 7-5-1951, applicable. The G O. is in these terms:

Consequent on the Reorganisation of the States from 1-11-1956, the question of unifying service rules, Departmental Manuals, Code of Instructions, etc. applicable to the Officers of the Kerala State has been engaging attention of Government and action in this regard is being taken. However, as an interim arrangement, Government are pleased to order that every officer in the service of the new State will be bound by the Service Rules of the State, Travancore-Cochin or Madras, as the case may be, to which he belonged prior to 1-11-56, until common service Rules are framed and issued. Persons who are newly appointed on or after 1-11-1956, will be governed by the T.S.R. till unified rules are issued.

The Finance Department is requested to take early action for unifying service regulations, Financial and Account Code, etc.

This G.O., in terms, only makes the 'T.S.R.' applicable to those newly appointed after 1-11-1956. 'T.S.R.' must refer to the 'Travancore Service Regulations'. On perusing the bound volume of the 'Travancore Service Regulations', we do not find any mention of the G.O. of the 7th May, 1951. The order dated 7th May, 1951, mentioned in the proviso to Rule 27(a) and (b) of the Rules had thus not been made applicable before the rules came into force to those appointed between 1-11-56 and 17-12-58. No other order passed before the rules came into force has been brought to our notice making the G.O. of 7-5-1951, applicable to those so appointed.

6. In the light of the above, necessary consequential orders fixing seniority in accordance with Rule 27(a) and orders granting promotions on the basis of Rule 28(b)(ii) will have to be passed. ThisI direct.

M.U. Isaac, J.

1. Petitioners 1 and 2 and 4th respondent were appointed as lower division clerks in Kozhikode District in the Revenue Department of the Kerala State on 20-12-1961, 27-6-1960 and 21-1-1958, respectively. Passing of the Account Test (Lower) is a necessary qualification for their promotion to the cadre of upper division clerks. The first petitioner was promoted as upper division clerk on 131-1965 as the second petitioner and the 4th respondent, who were seniors to the first petitioner, had not then passed the above test. For the same reason, the second petitioner was promoted over the 4th respondent on 27-3-1965. Subsequently, the 4th respondent also was promoted as upper division clerk, when a vacancy arose after she passed the test. The first petitioner was further promoted to the cadre of section head/sub-treasury head accountants on 6-12-1967. The fourth respondent claimed that she was senior in the cadre of upper division clerks by virtue of her seniority in the lower division and that she was, therefore, entitled to earlier promotion. Her claim was upheld and she was accordingly promoted in a leave vacancy which then arose. When this vacancy ceased, the fourth respondent was continued in the promoted cadre in the regular vacancy; and the first petitioner was consequently reverted with effect from 8-10-1968. The petitioners have been promoted subsequently to the higher cadre, when vacancies arose.

2. The fourth respondent's claim for seniority in the cadre of upper division clerks was upheld by the Government on the basis of the directions contained in two Government memos, Ext. P1, dated 26-7-1961 and Ext. P2 dated 15-9-1961, to the effect that persons appointed in the Malabar area from 1-11-1956 to 16-12-1958 would be governed by the Travancore Cochin Rules in the matter of promotion and their inter se seniority. These Rules are laid down in G.P.R. Dis., 8207/50/CS dated 7th May, 1951. According to the said rules, the fourth respondent would be entitled to seniority over the petitioners in the upper division cadre. But they contend that Exts. P1 and P2 are illegal and invalid and they are entitled to seniority according to the Kerala State and Subordinate Services Rules, 1958. They have filed this writ petition to quash Exts. P1 and P2 to declare that they are seniors to the fourth respondent and for incidental reliefs.

3. The Kerala State and Subordinate Services Rules, 1958, came into force on 17-12-1958. The petitioners and the fourth respondent were promoted to the cadre of upper division clerks after the said rules came into force. There can be no dispute that to the extent these rules provide for promotion and fixation of inter se seniority, those things would be governed by the said rules. There is also no dispute that promotions to the cadre of section head/sub-treasury head accountants should be on the basis of seniority (vide Rule 28(b)(ii)). Rule 27 contains the provision regarding seniority. It reads:

27. Seniority-(a) Seniority of a person in a 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.

(b) The appointing authority shall, at the time of passing an order appointing two or more persons simultaneously to a service, fix the order of preference among them; and seniority shall be determined in accordance with it:

Provided that nothing contained in Sub-rules (a) and (b) above shall be deemed to have superseded the orders of the Travancore-Cochin Government in R. Dis. No. 8207/50/CS, dated 7th May, 1951, as subsequently clarified in respect of any person who was a member of any service on the date of coming into force of these rules.(c) Notwithstanding anything contained in Clauses (a) and (b) above, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list.

Note:-The date of effective advice in this rule means the date of the letter of the Commission on the basis of which the candidate was appointed.

4. The petitioners were entitled to promotion to the cadre of upper division clerks earlier than the 4th respondent, on account of the fact that she had not qualified for promotion by passing the prescribed test on the dates when the petitioners were promoted. Accordingly, they were rightly promoted to the upper cadre earlier than the fourth respondent. It is clear from the above rule that they are entitled to seniority over the 4th respondent in the said cadre, unless the case falls under the proviso to Clauses (a) and (b) of the rule and the fourth respondent is entitled to seniority under the rules contained in the order of the Travancore-Cochin Government in R. Dis. No. 8207/50/CS, dated 7-5-1951, which is saved by the said proviso. The above order reads:

The erstwhile Travancore and Cochin Governments had been following different rules and procedure in respect of the passing of departmental tests for purposes of promotion, confirmation, etc, of persons in service. Consequent on the integration of the two States it has become necessary to lay down a common set of rules for the State of Travancore-Cochin as a whole. In consultation with the Public Service Commission, the Government are, therefore, pleased to prescribe the following general rules:

1. Wherever it is laid down that a person should pass a test or tests to qualify himself for a higher grade or post, preference should be given to those who. have passed the test or tests in making promotion to that higher grade or post whether in an officiating or substantive capacity.

2. If a person with the required test qualification is not available for promotion to the grade or post which requires the qualification, the senior-most person in the lower grade should be promoted.

3. In cases where a senior is passed over for want of the test qualification and a junior with such qualification is promoted, the junior will not be liable for reversion to give place to the senior so long as there is a vacancy in the higher grade or post against which the junior can continue without break. But if the junior reverts for want of vacancy in the higher grade or post and if by the time another vacancy in the higher grade or post arises and the senior acquires the test qualification, the senior with the test qualification should be preferred for promotion.

4. Notwithstanding the provisions contained in Rule 3, a person who was superseded by his junior for want of test qualification will not lose his claim for confirmation in the higher grade or post, if, by the time permanent vacancy arises, the senior person passes the test.

(Clauses 5 to 11 are omitted, as they are not necessary for this case).

5. It is clear from the above order that it applies only to Travancore-Cochin Service ; it has no application to the persons in the service of the Kerala Government except to the extent it has been made applicable by the proviso to Clauses (a) and (b) of Rule 27 of the Kerala State and Subordinate Services Rules, 1958. The proviso states that the above order would be saved in respect of every person who was a member of any service on the date of coming into force of the said rules, namely, on 17-12-1958. In other words, persons who were governed by the above order as subsequently clarified till the coming into force of the rules would be governed by the said order in the matter of determining seniority. The State has no case that the said order, as such, would apply to persons appointed in Kerala. Its case is only that it has been made applicable to t.hose appointed in the Malabar area, between 1-11-1956 and 17-12-1958,;by Exts. P1 and P2. If the proviso did not apply to such persons on 17-12-1958, they would be governed by the main rule without the proviso. Then it is not open for the Government to amend the rule by executive orders, and bring them within the ambit of the proviso, which would amount to an amendment of the rule. Exts. P1 and P2 are not orders issued in the name of the Governor as required by Article 166 of the Constitution. They are only memos issued by an Additional Secretary to the Government. All that Ext. P1 stated in this respect is that the benefits of the rule contained in the Government Order, dated 7-5-1951, relating to determination of seniority can be claimed by the T.C. Officers including those appointed by the Kerala Government during the period from 1-11-1956 to 16-12-1958. Ext. P2 is issued to the Secretary, Board of Revenue, informing him that persons appointed in the Malabar area between 1-11-1956 and 17-12-1958 would be governed by the T.C. Rules and that those appointed after that would be governed by the general rules. It is the rules which should provide to which all services they would apply; and the rules have made provision in that respect. Such administrative memos or even executive orders of the Government cannot amend the rules in respect of their application.

6. For the reasons stated above, I hold that Exts. P1 and P2 are illegal and void in so far as they direct that the persons appointed in the Malabar area between 1-11-1956 and 17 12-1958, would be governed by the order of the Travancore-Cochin Government-R. Dis. 8207/50/CS, dated 7-5-1951. It follows therefrom that the petitioners are seniors to the fourth respondent in the cadre of upper division clerks and that their seniority in the said cadre should be fixed in accordance with Clause (a) of Rule 27 of the Kerala State and Subordinate Services Rules, 1958. The petitioners will also be entitled to promotion to the cadre of section head/sub-treasury head accountants in accordance with Rule 28(b)(ii) of the said rules, and to have their seniority in the cadre fixed on that basis. Respondents 1 to 3 are directed to pass appropriate orders accordingly. In the circumstances of this case, there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //