Kerala High Court
Labour Commissioner vs Joshua on 15 July, 2005
Equivalent citations: 2006(1)KLT241
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor, K. Hema
JUDGMENT K.A. Abdul Gafoor, J.
1. The appeal is by the State of Kerala with a delay of 163 days. The appeal was filed in the month of March, 2002. When it came up for consideration for the first time in June, 2005, the Government Pleader was asked to give notice to the first respondent/ writ petitioner. Thus, the service is complete. We find that the delay has been satisfactorily explained. After hearing the respondents, we condone the delay. We also proceeded to hear the appeal as both sides were ready.
2. The State is impugning the judgment wherein the claim of the writ petitioner/ first respondent for seniority over respondents 3 to 5 in the Original Petition, was allowed and the petitioner was declared senior to them. It was contended before the learned Single Judge by the Appellant/State that respondents 3 to 5 were given seniority among the Lower Division Clerks in the Labour Department over the writ petitioner, placing reliance on the latter part of Ext.P18 Government Letter, which reads that:
I am to invite a reference to the letters cited and to inform you that G.O.(P)No. 7/91 P&ARD dated 15.2.91 has no retrospective effect a person who was re-advised/Re-appointed in another Department before 15-02-91 is not entitled to get seniority with effect from the date on which he was first advised, unless the Public Service Commission has specifically stated in the second advice memo that his advice was effective from the first date. Hence there is no need of reviewing the contents of the letter first cited.
The learned single Judge, on the other hand, applied Rule 27(c) of the General Rules in the K.S. & S.S. Rules and considered the date of effective advice of respondents 3 to 5 and determined the seniority thereupon, declaring the petitioner who did have earlier such date, as senior to them.
4. To decide the dispute on seniority now focused in this Writ Appeal, we have to recapitulate the bare minimum facts required for disposal of this case. We will describe the parties as arrayed in the Writ Petition for the sake of convenience.
5. The petitioner and respondents 3 to 5 responded to a notification issued by the Public Service Commission for appointment as Lower Division Clerks in various departments in different districts. Respondents 3 and 4 were advised on 12.5.1980 for appointment as Lower Division Clerks in Agriculture Department and the 5th respondent was advised on 31.5.1980 for appointment as Lower Division Clerk in Dairy Development Department whereas the petitioner was advised later than them on 12.6.1980 for appointment in the same category in Labour Department. Respondents 3 and 4 were not given appointment orders by the concerned appointing authority, as there were no vacancies at that time. The advice of the petitioner and the 5th respondent resulted in appointment orders. But, later, the latter was discharged from service for want of vacancy. He registered his name with the Public Service Commission for a fresh advice. The Public Service Commission, cancelled the advice of respondents 3 and 4 and they were re-advised for appointment as Lower Division Clerks in the labour Department on 12.6.1980. The 5th respondent was also readvised on 10.9.1980 for appointment in Labour Department. All of them were thus appointed in Labour Department.
6. For the purpose of appointment as Lower Division Clerks, concerned Revenue District is the unit of appointment. This is not disputed. The petitioner was advised and appointed in Alleppey District, respondents 3 and 4 in Palghat District and the 5th respondent in Kollam District.
7. How their seniority in the category of Lower Division Clerks, to which they were so appointed could be reckoned, for the purpose of their further promotion, is the point involved in this appeal.
8. As all of them were appointed on advice by the Public Service Commission, the relevant rule in this regard is Rule 27(c) of the General Rules in Part II of the Kerala State and Subordinate Services Rules, 1958. It reads:
(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.
The department prepared a draft gradation list Ext.P3, wherein respondents 3 and 4 were given a higher ranks above the petitioner. But the 5th respondent was given a lower rank than them. There was later refixation of their seniority as contained in Ext.P4 order, wherein the petitioner was placed above respondents 3 and 4, but below the 5th respondent. Still later, based on representations by the aggrieved parties, Ext-P5 order dated 8.1.1985 was issued showing the petitioner as juniors to respondents 3 to 5. This evoked Ext.P6 representation from the petitioner claiming seniority over respondents 3 and 4. He did not ask therein for seniority over the 5th respondent. That representation was turned down as per Ext.P7 order of the Labour Commissioner stating that his request for seniority could not be conceded.
9. The matter was taken up by the petitioner before Government as per Ext.P8 representation. Here also he did not ask for seniority over the 5th respondent. Government also by Ext.P9 rejected the request of the petitioner to revise his seniority. Later, in Ext.P 13 judgment, the matter was directed to be considered afresh. This resulted in Exts.P14 and P17 orders, again rejecting his claim for seniority over respondents 3 and 4.
10. According to Government, as per G.O. (P)No. 7/92/P & ARD dated 15.2.1991, the 3rd proviso introduced to Rule 27(c) did not have retrospective effect; but it was clarified in Ext.P18 that though the said proviso did not have retrospective effect, seniority could be refixed if the second advice letter issued by the Public Service Commission did disclose that the earlier advices of respondents 3 to 5 were made effective by the Public Service Commission. It was on its basis, the petitioner was declared junior to respondents 3 to 5 on the ground that in the letter advising respondents 3 to 5 for appointment in the Labour Department, reference to their earlier advices in Agricultural or Dairy Department were pointed out and that those earlier dates shall, therefore, be their 'first effective advice'; to reckon for seniority going by Rule 27(c). Aggrieved by the view taken by the Government, the petitioner approached this Court impugning such re-assignment of seniority to respondents 3 to 5 as per Ext.P 18 and consequent promotions.
11. The learned single Judge, relying on the decision reported in Sukumaran Nair v. State of Kerala 1987 (1) KLT 445 and Latheefa Beevi v. State of Kerala 1987 (2) KLT 41 declared that the petitioner was senior to respondents 3 to 5 based on their respective dates of first affective advice for appointment as Lower Division Clerks in the Labour Department. The State, therefore, has come up with this appeal.
12. Rule 27(c) extracted above makes it clear that the seniority of the candidates appointed on direct recruitment on advice by the Public Service Commission shall be "determined by the date of first effective advice made for" his/her appointment. What is the date of "first effective advice" of the respective incumbents?
13. Going by the counter affidavit filed by the State, it is clear that the advices given to respondents 3 to 5 on 12.5.1980 and 31.5.1980 for appointment in Agriculture Department or in the Dairy Development Department, as the case may be, had been cancelled by the Public Service Commission. This is not fully correct. So far as the 5th respondent is concerned, his advice was not cancelled. He was really appointed in Dairy Development Department, but was discharged for want of vacancy and was later readvised for appointment in Labour Department. This aspect is admitted by the petitioner as is seen from the averments in the Original Petition itself.
14. It is the specific case that respondents 3 and 4, on cancellation of their earlier advices, had been readvised for appointment in Labour Department on 12.6.1980. In the case of the 5th respondent, he was readvised on 10.9.1980. Their present appointments are based on such later advices.
15. Respondents 3 to 5 are given seniority over the petitioner only based on their 1st advice viz., 12.5.1980 in the case of respondents 3 and 4 and 31.5.1980 in the case of the 5th respondent, whereas the petitioner was advised for appointment only on 12.6.1980. It is an admitted fact before us by all that the 1st advice on 12.5.1980 in the case of respondents 3 and 4 did not result in any appointment. They were appointed only based on their later advice on 12.6.1980.
16. Rule 27(c) makes it clear that seniority shall be reckoned on the basis of "the date of first effective advice". Note under the said Rule explains the meaning of date of "effective advice" as follows:
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.
If there are more than one such "date of effective advice", going by the main part of the rule "the date of first effective advice" should be criterion for reckoning seniority.
17. Ext.P18 sought to be pressed into service by the Government Pleader on behalf of the appellant, cannot have any relevance in the light of the statutory provisions discussed above. It is true that in Ext.P18 it has been mentioned that if the Public Service Commission, has specifically stated in the second advice memo that the earlier advice, which did not fructify, is the 'first effective advice', it shall be taken for consideration of the seniority. It cannot have any relevance in the face of the statutory provisions contained in Rule 27. In an executive fiat, the Government cannot dilute the rigour of the statute which confers rights on incumbents for the purpose of reckoning seniority from the date of first effective advice.
18. The 4th proviso to Rule 27(c) added as per Ext.P10 notification reads as follows:
Provided also that the seniority of a person appointed in one service from a common selective list, prepared by the Commission and thereafter discharged from service for want of vacancy and got reappointed in another service or another Department/Institution on further advice of the Commission, shall be determined by the date of first effective advice.
It will apply only in the case of those who ware discharged after appointment based on earlier advice. It does not have any application in respect of respondents 3 and 4 as they were never discharged on an earlier occasion before their present appointment. Their earlier advice to Agricultural Department did not fructify. If they had been appointed, there and later discharged, the position would have been different. As there was no such discharge, this proviso, much less an executive clarification in Ext.P18, cannot come to their advantage.
13. This Court in Latheefa Beevi v. State of Kerala 1987 (2) KLT 41, though rendered by a single Judge, held that:
In other words, the term "effective advice" in the sub-rule has to be construed as an advice which results in the person commencing discharge of the duties attached to the post: there is no effective advice unless the candidate joins duty and becomes a "member of the service' as defined in Rule 2(9).
Therefore, going by Rule 27(c) and the Note thereunder, the determinative factor for the purpose of seniority of the respective incumbents is the date of 'effective advice' by the Public Service Commission on the basis of which they have been appointed. This is 12.6.1980 in the case of the petitioner and respondents 3 and 4. That was the date of only effective advice in their case.
20. They were so advised for appointment to the same category viz., Lower Division Clerk in the Labour Department by different District Offices of the Public Service Commission. Petitioner was advised by the Kollam District Office of the Commission; whereas respondents 3 and 4 were advised by the Palghat Office of the Commission; all on the same date viz., 12.6.1980. This is the date of first effective advice in respect of them. When they were advised on the same date, but in different districts, their seniority shall be determined applying the 2nd proviso to Rule 27(a). It reads:
Provided further that the seniority of persons advised for appointment to same category of post in a department on the same date by different District Offices/District units of the Public Service Commission shall be decided as follows :
(i) When not more than one person is advised for appointment from each District, on the basis of their age, the older being declared senior to the younger.
21. Admittedly, the petitioner is elder in age going by their dates of birth shown in Exts.P3 and P4. Necessarily, he shall be regarded as senior to respondents 3 and 4.
22. As between respondents 3 and 4, whose date of first effective advice is 12.6.1980 and that too made by the same district office of the Public Service Commission, their seniority shall be based on the 2nd limb of Rule 27(c) that:
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 they are advised for appointment.
23. But the case of the 5th respondent is bit different. He was first advised for appointment as Lower Division Clerk in Dairy Development Department in Kollam District on 31.5.1980. This is earlier than that of the petitioner. It is admitted in the Original Petition that he had been appointed based on the said advice. Therefore, that advice was an effective advice, going by the Note under Rule 27(c). The Note reads:
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.
But later, he was discharged from service for want of vacancy. This is also admitted by the petitioner. He registered with the Public Service Commission for fresh advice. He was then again advised on 10.9.1980 for appointment in the Labour Department. Accordingly, he was appointed in that department. This is also thus an effective advice so far as he is concerned, going by the said Note under Rule 27(c). Thus, he has two dates of effective advices (i) 31.5.1980 and (ii) 10.9.1980.
24. As already mentioned, seniority shall be reckoned with reference to the 'date of 1st affective advice'. When there are more than one date of effective advice, among the said two dates, 31.5.1980 is the date of first effective advice. If this is reckoned, he shall be senior to the petitioner, whose date of effective advice is only 12.6.1980. He shall have, therefore, to take a rank above the petitioner.
25. Relying on a Division Bench decision reported in Sukumaran Nair v. State of Kerala 1987 (1) KLT 445, it was contended that the latter among the said two dates shall be taken as the effective date of advice and that in such case, he shall be junior to the petitioner. The facts arising in that case is almost similar to the one on hand, as submitted by the petitioner. The petitioner places strong reliances on the following passage in Sukumaran Nair's case:
(sic)(c) of the K.S. and S.S.R. prescribes the principles for fixing seniority and speaks of the "date of first effective advice" made for the appointment to any category, class or grade. It also provides that 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. Therefore, the seniority claimed in a particular class, category or cadre will have to be fixed under this provision with reference to the date of effective advice for appointment to that class, category or grade. It is the effective advice which resulted in the appointment to that category, class or grade that is material. In the present case, where seniority is claimed in the category of Assistants in the Finance Department, it is the effective advice for appointment to the Finance Department that matters and not the advice made for appointment to any category or grade in any other Department. In this view, the effective advice of the appellant for appointment as an Assistant in the Finance Department was on 10.10,1967. He is entitled to seniority in that cadre in that Department from that date and not from any anterior date.
First of all, it has to be borne in mind that the 5th respondent is reckoned as senior to the petitioner in Ext.P5. Ext.P6 is the complaint of the petitioner against Ext.P5. His grievance in Ext.P6 is as follows:
But as per the order second cited, my seniority has been changed and M/s. Haneef and C.K. Sreekumar have been placed above me.
Respondents 3 and 4 are the said two persons. His further grievance is that:
Therefore, they are not at all eligible for seniority based on the ineffective advice issued by the D.R.B. His grievance was thus against respondents 3 and 4 and not against the 5th respondent. His grievance voiced in Ext.P8 is also against respondents 3 and 4 alone and not against the 5th respondent. What is decided in Ext.P14 is also that grievance alone. Therefore, he cannot for the first time raise a seniority dispute with the 5th respondent in this Writ Petition/Writ Appeal.
26. The principle laid down in Sukumaran Nair's case also cannot be applied as such in his case, because of the subsequent change in law due to Ext.P10 notification adding the 4th proviso to Rule 27(c).
27. Sukumaran Nair's case was decided on 4.12.1986. At that time, going by Rule 27(c), seniority has to be reckoned by the date at "first effective advice" which the Division Bench considered as follows:
In this view, the effective advice of the appellant for appointment as an Assistant in the Finance Department was on 10.10.1967. He is entitled to seniority in that cadre in that Department from that date and not from any anterior date.
The Division Bench did not give emphasis to the word "first" appearing in Rule 27(c), perhaps because of the meaning given to it in the Note under that rule. It was a possible interpretation at that time. But due to the introduction of the 4th proviso to Rule 27(c), a yet different interpretation has to be made. The proviso reads as follows:
Provided also that the seniority of a person appointed in one service from a common selective list, prepared by the Commission and thereafter discharged from service for want of vacancy and got reappointed in another service or another Department/Institution on further advice of the Commission, shall be determined by the date of first effective advice.
(Emphasis supplied) This amendment is in the nature of a clarification concerning those discharged from one department and "got reappointed in another service or another department on further advice". In the case of such persons, seniority shall be determined by the date of "first effective advice" obviously because, there are more than one date of effective advices. When the Note defining the date of effective advice is read along with this proviso, the word 'first' appearing in Rule 27(c) will get a meaning that, it is the date of effective advice based on which the 1st appointment was made. This proviso thus gives a clarification to the main provision contained in Rule 27(c). This is evident from the explanatory note. So, it can be applied to situations as the one arising in this case in between the petitioner and the 5th respondent. This proviso was not on the statute book when Sukumaran Nair's case was decided.
Necessarily, the 5th respondent shall be regarded as senior to the petitioner. To that extent, the Writ Appeal is allowed. In every other respects, Writ Appeal stands dismissed.