Kerala High Court
K. Koolikan, Senior Accountant, ... vs K. Madhavi Kutty, Telex Operator, ... on 21 July, 2003
Equivalent citations: (2003)IIILLJ497KER
Author: A.K. Basheer
Bench: A.K. Basheer
JUDGMENT
Jawahar Lal Gupta C. J.
1. The appellant joined service as a Clerk on May 15, 1986. The first respondent was appointed as a Telex Operator on November 7, 1984. Despite having joined after the first respondent the appellant claims to be senior to the first respondent Is his claim tenable? This is the short question that arises for consideration in this appeal. The relevant facts may be noticed.
2. On September 27, 1980, the Government issued an order declaring that persons working as Cashier/Clerk/ Typist/ Steno-Typist shall be eligible for promotion to the post of Junior Accountant. Some time later the Bank proposed the inclusion of the post of Telex Operator. The Bank's proposal was approved by the Registrar vide order dated March 30, 1995. A copy of this order is on record as Ext.P2. On October 10, 1995, the Registrar issued instructions directing the preparation of a combined seniority list of persons working on different posts who were eligible for promotion to the post of Junior Accountant. It was also directed that the claim of the first respondent shall be considered. A copy of the communication is Ext. P3.
3. In pursuance to the directions of the Registrar, the seniority list was prepared. The appellant was placed at serial No. 10. The first respondent was assigned her position as serial No. 4. Aggrieved by the action, the appellant filed a petition under Article 226 of the Constitution, viz. O.P. No. 3199/1996. This petition was disposed of with the direction that the appellant may file an appeal. In compliance with the direction given by the Court, the appellant filed an appeal before the State Government. It was accepted vide order dated November 4, 1996. The Government took the view that the seniority of the first respondent had to be fixed with effect from March 30, 1995 when the post of Telex Operator was included in the list of eligible categories. A copy of the order is on record as Ext.P8.
4. The first respondent challenged this order through a petition under Article 226 of the Constitution. The present appellant was impleaded as a respondent. The learned single Judge, on consideration of the matter, found that the writ petitioner - now, the 1st respondent, was entitled to the benefit of the entire service rendered by her since November 7, 1984. Her claim was upheld. Thus, the writ petition was allowed. The order dated November 4, 1996 passed by the Government was set aside. Hence, this appeal by the 4th respondent in the writ petition.
5. Mr. Shenoy, learned counsel for the appellant contends that the post of Telex Operator having been included in the eligible category on March 30, 1995 the incumbent's position in the list had to be determined on that basis. He submits that the view taken by the learned single Judge is contrary to the provision contained in Rule 185 of the Kerala Co-operative Societies Rules, 1969, as it stood at the relevant time. Thus, it cannot be sustained.
6. The relevant provision has been extracted in ground 'H' of the memorandum of appeal. It reads as under:
"185. Promotions 1) Appointment to higher categories of service in a society shall ordinarily be made by promotion from among members eligible for appointment to such category in accordance with these rules on the basis of seniority in the feeder category. The feeder category for this purpose shall be prescribed by the society by framing suitable subsidiary regulations with the approval of the Registrar."
A perusal of the above provision shows that appointment to a higher post has to be made by promotion from amongst the eligible persons on the basis of seniority in the feeder category. The feeder category has to be prescribed by the society with the approval of the Registrar.
7. The rule does not even remotely suggest that the inter se seniority shall be determined on the basis of the date of inclusion of particular post in the feeder category. It does not in any way indicate that the total period of service by a person in the feeder category shall not be taken into account. In this situation, we find that the view taken by the learned single Judge is just and fair. It gives the first respondent the benefit of the complete service rendered by her. It promotes justice. It protects the interest of a person who has longer length of service vis-a-vis the appellant who had admittedly joined service at a later stage. It is the admitted position that all the posts in the feeder category arc in an identical scale of pay. Each person has to fulfil the prescribed qualification of B.Com. for promotion to the post of Junior Accountant. Thus, there can be no legal or valid justification for excluding the respondent's service from November 7, 1984 to March 30, 1995 from consideration.
8. No other point has been raised.
9. In view of the above, we find no merit in this appeal. It is, consequently, dismissed in limine.