Kerala High Court
Raveendran Nair vs State Of Kerala on 5 July, 2001
Author: Kurian Joseph
Bench: Kurian Joseph
JUDGMENT Kurian Joseph, J.
1. Reluctance to follow the principal once clearly settled by a Bench decision of this Court gave rise to this Original Petition. The impugned orders are Exts. P2 and P3 relating to the Kerala Government Presses Subordinate Service. Ext. P2 is a letter wherein it is stated that if promotions are effected to Grade-I/Upper Division from different categories, seniority of the promoted personnel should be decided on the basis of date of birth. That is exactly the method condemned by this Court in Ext. P4 judgment wherein it was specifically held, and that too with reference to the very same Department, that "persons from the same cadre when get promotion to the higher posts, must carry along with them their seniority in the lower cadre. This legal position is beyond controversy".
2. That was case where the Division Bench considered the seniority of a person promoted from Category-IV and another person promoted from Category-VI. There also, the contention was that once promoted from Category-IV and Category VI, seniority in the promoted Grade-I should be decided on the basis of their respective dates of birth, the older being the senior. Turning down the said contention, this court held that seniority which they maintained in Grade II should be maintained in Grade I also. In spite of such a legal position settled with respect to the very same Department by the judgment dated 14.2.1995, one wonders how the Department can make a somersault and again come up with a letter in the nature of Ext.P2. And that takes us to the facts of the case.
3. The 1st petitioner entered service as Monotype Caster Operator Gr. II on 7.4.1971, the 2nd petitioner as Linotype Operator Grade II on 26.4.1973, the 3rd petitioner in the same category on 26.7.1973, the 3rd respondent as Mono Super Caster Operator Gr. II on 7.9.1973 and the 4th respondent as Foundry Worker Gr. II on 30.8.1974. The case of the 4th petitioner need not be considered in this case since he is admittedly a late entrant in service.
4. Thus, admittedly petitioners 1 to 3 are earlier entrants in Grade II than respondent 3 and 4. All of them were promoted to Grade I on 26.5.1982. It is true that respondents 3 and 4 were placed under Senior Grade earlier than petitioner 1 to 3 since such placement was available to them in their respective category. However, that is immaterial as far as further promotion to the post of Assistant Foreman is concerned, since the feeder category to the said promotion post is only Grade I. Admittedly, all of them come under the feeder category to the post of Assistant Foreman (Machine Composing). But when promotions were effected as per Ext. P3, the 2nd respondent promoted respondents 3 and 4 in preference to the 1st petitioner and petitioners 2 and 3 were left out and that took the petitioners to this Court in the Original Petition.
5. In the counter affidavit Ext. P3 promotion is justified based on Ext. P2 letter issued by the 1st respondent and addressed to the 2nd respondent. It is stated therein that there is no special ratio fixed for the purpose of promotion from different Grade-I/Upper Division posts to the post of Assistant Foreman (Machine Composing) since the Senior Grade is not included in the feeder category. However, in the said letter dated 9.3.1998 it is stated that when promotion is effected to Grade I, seniority among the promotes should be determined on the basis of their date of birth.
6. With reference to the very same Department of Printing, the issue came up for consideration before this Court and the principle has been settled ultimately in Ext. P4 Bench decision of this Court in W.A. No. 1233 of 1994. As already observed, that was a case relating to determination of seniority of two persons promoted from Category-IV and Category VI. There also the contention was that the seniority of personnel when coming to Grade I should be decided on the basis of the date of birth and that their entry to Grade II was irrelevant. Repelling that contention, this Court, as stated above, settle the principle that when promotion to the higher posts is effected, the promotes should carry along with them their seniority in the lower cadre. Referring to this facts case, the Court at paragraph 6 of the judgment held as follows:-
"6. Petitioner came into the category of Linotype Operator Grade II on 3.1.1972. The third respondent became Mono Key Board Operator Grade II on 15.3.1972. So in the above cadres petitioner got longer service because his service started on 3.1.1972. The third respondent entered that cadre only on 15.3.1972. In this view of the matter, petitioner must be senior to the third respondent in the above posts. When they came to the higher post of Mono Key Board Operator Grade I and Linotype Operator Grade I they must carry with then the respective seniority positions. That seniority position cannot be inter-changed."
7. On the teeth of such a well-settled principle, according to me, respondent 1 and 2 should not have dared to issue either Ext.P2 letter or make Ext.P3 promotion. To use the minimum expression, it is contempt of court per se, particularly since the principle we settled in respect of the very same Department.
8. The attempt of the learned Government Pleader is to justify Ext.P2 on the basis of the provision contained in clause (a) of the proviso to S.27 (a) of the Kerala State and Subordinate Rules, 1958. The relevant portion of R.27 (a) reads as follows:-
"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.
Explanation :- For the purpose of this sub-rule, "appointment" shall not include appointment under R.9 or appointment by promotion under R.3.
This amendment shall be deemed to have come into force with effect on and from the 17th December, 1958, but shall not affect the seniority of any member of a service settled prior to the date of publication of this amendment in the Gazette.
Provided that the seniority of person on mutual or inter-unit or inter-department transfer from one unit to another within the same department or from one department to another, as the case may be, on requests from such persons shall be determined with reference to the dates of their joining duty in the new unit or department. In the case of more than one person joining duty in the same grade in the same unit or department on the same date, seniority shall be determined.
(a) If the persons who join duty belong to different units or different departments, with reference to their age, the older being considered as senior, and
(b) If the persons who join duty belong to the same category of post in the same department, in accordance with their seniority in the unit or department from which they were transferred."
For one thing, it has to be ascertained whether the promotion effected to Grade I on 26.5.1982 was under R.31 of the Rules in which case such appointment are excluded. That apart, there is no case for the respondent in the counter-affidavit that petitioners 1 to 3 and respondent 3 and 4 belong to different units or different departments. There is only one service and that is Kerala Government Presses Subordinate Service.True, there are 12 branches but that classification into branches is based on the nature of the duty. As far as employees belonging to the said Service are concerned, it is clause (b) of the proviso that should be applied. The 1st respondent has understood the Service with respect to the category. This is evident from the stand taken in the counter-affidavit at paragraph 10 wherein it is stated thus:-
"The Grade I categories are, therefore, treated as feeder categories for promotion to the post of Assistant Foreman (Mechanical Composing)".
So the category as far this particular service is concerned, as rightly understood by the 1st respondent, is the category of Grade I and the category of Grade II. Admittedly petitioner 1 to 3 and 4 belonged to category II. It would be highly inequitable if on promotion to category-I they are not able to carry the inter se seniority with them.
9. AS held by the Supreme Court in Nirmal Kumar Choudhary v. State of Bihar (AIR 1988 SC 394), in the absence of rules the more enquitale way of preparing the combined gradation list would be to take the total length of service in the common grade as the basis for determining inter se seniority. The dictum laid down in Union of India v. Aususekhaar Guin (AIR 1989 SC 377) is also apposite for the resolution of the issue in question wherein it is held that counting continuous length of service for fixation of seniority is a well accepted rule when the service rule does not prescribe a mode of fixing inter se seniority.
10. Justifying Ext.P2, letter, reliance is placed, at paragraph 12 of the counter affidavit, on a Government letter dated 18.2.2000. It does not stand to reason how a letter issued on 9.3.1998 is sought to be defended by a letter issued on 18.2.2000. At any rate, the said letter is not produced for perusal before this Court. Hence it is not possible to understand to logic behind that letter and how the 1st respondent circumvented the dictum laid down by this Court in Ext.P4 judgment.
11. In the above circumstances, I have no hesitation to quash Exts. P2 and P3 and I do so, it is declared that petitioners 1 to 3 are entitled for promotion to the post of Assistant Foreman (Machine Composing) in preference to respondent 3 and 4, since admittedly they were earlier entrants in Grade II in their respective categories. Promotions as declared above, as far as petitioner 1 to 3 are concerned, should be effected within two weeks from the date of production of a copy of the judgment by the petitioner. It is also made clear that petitioner 2 and 3 will also be entitled to all the consequential benefits of their promotion with retrospective effect, from the date of Ext.P3 Such additional burden should be realised from the officers responsible for violating Ext.P4 judgment of this Court.
12. This is a fit case where respondent 1 and 2 should be mulcted with costs since in spite of the principle having been laid down by this Court, the 1st respondent had the audacity to state in paragraph 20 of the counter-affidavit thus:-
"20. It is respectfully submitted that on 14.2.1995 this Hon'ble Court in Writ Appeal No. 1233 of 1994 directed to review the seniority of Sri. Francis Joseph vis-a-vis F. Albert. The Court direction was complied with as far as that particular case is concerned. However, this benefit has not been extended to any other cases. The Government have thereafter clarified that in such cases the seniority be determined with reference to the date of birth as per the existing statutory provisions contained in the Kerala State and Subordinate Service Rules, 1958."
As held by this Court in Somukuttan Nair v. State of Kerala (1997 (1) KLT 601) "when the Court s declared the law, the Government is bound to implement the same uniformly to all the officers concerned. To say that only persons who approached the Court would be given the benefits of the declaration of law is really discriminatory and arbitrary. It is also not conducive to the administrative efficiency to drive all the officers to Courts for redressal of their grievances when the law was already declared by the Courts."
13. I direct respondent 1 and 2 to pay costs at the rate of Rs.1000/- each to petitioners 1 to 3. I further direct the Chief Secretary to conduct and enquiry as to who was responsible for issuing Ext. P2 letter when the law is declared by this Court in Ext.P4 judgment, which position has become final also. The costs and also the amounts mentioned at paragraph 11 above should be realised from the persons found responsible for ignoring the judgment of this Court.
14. The Original Petition is allowed as above.