Kerala High Court
Sukumaran Nair vs State Of Kerala on 4 December, 1986
Equivalent citations: (1987)IILLJ397KER
JUDGMENT Bhaskaran Nambiar, J.
1. A short question in service law, an apparent conflict between Rule 7(b) and Rule 27(c) of the Kerala State and Subordinate Services Rules (K.S. & S.S.R. for short) and the correctness of the decision in Dayanandan v. Public Service Commission 1985 KLJ 475 arise for determination in this Writ Appeal.
2. In 1964, the Public Service Commission conducted a common test to select candidates for appointment as Lower Division Clerks in several departments in this State. The appellant and the second respondent were selected and included in the common rank list, the appellant securing the 47th rank and the second respondent, the 103rd rank. The appellant on advice by the Commission was appointed to the Public Relations Department on 27th May 1966. He was, however, retrenched for want of vacancy in that department on 6th September 1967. Thereafter, he re-registered with the Public Service Commission as provided in Rule 7 of the K.S. and S.S.R. He got an appointment in the Finance Department of the Secretariat on 28th October 1967 as per the advice of the Commission dated 10th October 1967. He is continuing in the department.
3. The second respondent who had got a lower rank than the appellant in 1964 select list and respondents 3 to 8 who were subsequently selected and included in a later list were advised to the Finance Department before 10th October 1967 and joined that department before the appellant could secure appointment after re-registration. The appellant contends that under Rule 27(c), seniority has to be determined by the date of the first effective advice, and as he was advised earlier than respondents 2 to 7 for initial appointment, he is entitled to seniority over them. It is stated that there is no legal basis for depriving him of the benefit of the service rendered in the Public Relations Department from 1966 to 1967 and it was only an accident that he was advised for appointment to the Public Relations Department. It was also stressed that had he also been advised for appointment to the Finance Department, he would not have lost his seniority over respondent 2 to 8, in view of the higher rank he obtained over the second respondent and his inclusion in an earlier list so far as respondents 3 to 8 are concerned. This claim was rejected by the Government on the basis of the second proviso to Rule 7(b), and the further request of the appellant for exemption under Rule 39 of the K.S. and S.S.R. was also rejected on the ground that it was not a fit case for granting any Relaxation in favour of the appellant. Challenging this order of the Government, the writ petition was filed. A learned Single Judge dismissed the petition and this appeal is against the said judgment.
4. The order in which probationers and approved probationers shall be discharged is provided in Rule7 of the K.S. and S.S.R. The second proviso which is relevant reads thus:
Provided further that in the case of posts in more than one Department/Institution, for which a common selective list is prepared by the Commossion, the candidates discharged from service for want of vacancies may either re-register their names in the Office of the Commission and get themselves re-appointed on the further advice of the Commission, in which case they shall lose their right of probation to the posts in the Departments/Institutions concerned from which they were discharged for want of vacancies, or they may await their turn for re-appointment to the posts under Sub-rule (b) in case they desire to continue as probationers in the posts from which they were discharged.
5. The appellant obtained the benefit of this proviso and in fact, claimed rights available under this provision for a fresh advice and an appointment to the Finance Department. He got himself re-registered in the office of the Commission after he was retrenched from the Public Relations Department. He was advised afresh by the Commission in October, 1967. He was appointed on that basis. He lost even his right of probation in the Public Relations Department from which he was discharged. The question is whether even then, he can rely on Rule 27(c) of the K.S. and S.S.R. for claiming seniority on the basis of the original advice in 1966 when he was appointed in the Public Relations Department.
6. Rule 27(c) of the K.S. and S.S.R. reads thus:
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.
Rule 27(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 the 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 10th October 1967. He is entitled to seniority in that cadre in that Department from that date and not from any anterior date.
7. The second limb of Rule 27(c) which is attracted when two or more persons are advised from the same list applies only when there is only one advice list and two or more persons are included in that advice list. The Public Service Commission prepares a rank list showing the names of candidates selected and arranged according to merit and when vacancies are notified by the Government to the Commission and a requisition is made, the Public Service Commission prepares an advice list according to the principles of reservation, from out of the rank list. Thus there are two lists, the rank list and the advice list. The list referred to in the latter part of Rule 27(c) is the advice list and not the rank list, as would be evident from the last portion of the rule which says that the seniority will be "according to the order in which the names are arranged in the advice list". In this case, the appellant and respondents 2 to 8 were not advised as per the same list for appointment to the Finance Department. Therefore, the latter part of Rule 27(c) does not apply to the instant case. We have, therefore, no doubt that in the present case, even applying Rule 27(c),the appellant will not be entitled to claim seniority in the Finance Department, with reference to the earlier advice list in 1966 for appointment to another Department, ignoring the effective advice in 1967 for appointment to this very same Finance Department.
8. The second proviso to Rule 7(b) is a special provision intended to meet a particular situation. Where a common select list is prepared by the Commission in respect of posts in more than one Department and the candidate is appointed in a particular Department on the advice to that Department, he can continue in that department only till the vacancy continues. If he is discharged from that Department for want of vacancy, he can as well wait for a vacancy to arise in the same Department in future in which case his seniority based on his effective advice for earlier appointment will be maintained. The fact that there was a break in service when he is re-appointed in the same Department does not affect him as his seniority is fixed with reference to the effective advice. This right is protected under this rule and also under Rule 27(c). He has, however, an option to elect to be appointed to some other Department, in which event, he has to re-register with the Public Service Commission and claim another effective advice for appointment to the new Department. This new appointment involves loss of prior service in the earlier Department for purpose of seniority and recognises the right to be treated as a probationer in the new Department. It was under the second proviso to Rule 7(b) that the appellant opted for re-registration, knowing full well that it would involve loss of prior service and it was thus that he obtained a fresh appointment on the basis of a fresh effective advice. Thus "the loss complained of is his own making" as stated by the learned Judge. There is thus no conflict between Rule 7(b) and Rule 27(c) of the K.S. &. S.S.R. In this case, applying both the Rules, the appellant can seek to maintain seniority in the Finance Department only from the date of his advice for appointment to that Department, namely, 10th October, 1967. He has no right to seniority over respondents 2 to 8 who were admittedly advised earlier.
9. But the learned Counsel for the appellant placed considerable reliance on the decision of this Court in Dayanandan v. Public Service Commission (supra) and that decision, of course, supports her.
10. In the said decision, the petitioner and respondents 2 and 3 therein were selected for appointment as Assistants without specifying the Department in which they were to be appointed. The petitioner obtained a higher rank and got an appointment earlier in the Secretariat. Unfortunately for him, as in this case, he was retrenched for want of vacancy. Respondents 2 and 3 who had only lower rank in the Public Service Commission list were advised later and secured appointment in the Commission and continued in that office without interruption. The petitioner registered afresh with the Commission and was advised for a second time and the secured appointment was in the Commission Office. He was not given seniority over respondents 2 and 3 on the ground that so far as the Public Service Commission office was concerned, they were advised and appointed earlier.
11. The learned Judge observed thus:
Nor can it be said that at the time when the petitioner re-registered afresh for appointment, he was aware of the consequence of such re-registration as depriving him of the benefit of earliest effective advice for purposes of seniority under Rule 27(c)of the Kerala State and Subordinate Services Rules.
He was advised for appointment earlier than respondents 2 and 3, and not withstanding the break in service, he would have retained the benefit of the period of service rendered prior to discharge for purposes of probation as well in the new post but for the provisions contained in the second proviso to Rule 7(b) of the Kerala State and Subordinate Service Rules. In the above circumstances, I feel, that justice requires that the relief sought by the petitioner for seniority above respondents 2 and 3 in the category of Assistants and in all the promotion categories should have been allowed by the Public Service Commission.
and held thus-
The submission of the counsel for the petitioner that the second proviso to Rule 7(b) deals with a topic other than seniority and cannot control the provisions of Rule 27 of the Kerala State and Subordinate Services Rules also seems to be fully justified.
The date of first effective advice for appointment is a fixed and unalterable factor, whereas voluntary actions of parties or accidents unrelated to their volitions may result in the earlier joining of duty by persons advised or ranked in the advice later and vice versa. Such accidents shall not be determinative of seniority. If that be the position, the aspect of seniority has to be decided only with reference to Rule 27(c) as between the petitioner and respondents 2 and 3. The delay in the commencement of probation of the petitioner as enjoined by the second proviso to Rule 7(b) does not in any manner affect the seniority which was to be determined as provided in Rule 27(c).
On both grounds therefore, firstly, since Ext. P1 order is not legal and does not have the effect of overriding the provisions of Rule 27(c) of the rules, and secondly, since it is not just since the petitioner is sought to be deprived of his seniority for an accident in his service he would not have visualised, I am of the opinion that Ext. P1 order has to be quashed.
12. With great respect, we are unable to agree with the reasoning and conclusion of Sivaraman Nair, J. in Dayanandan v. Public Service Commission (supra).
13. Rule 7(b) as it stands now was substituted in 1977. But even earlier, the rule contained the same provisions relating to "re-registration" and "Re-appointment on the further advice of the Commission" and "the turn for re-appointment" in the Department where he commenced his probation. The learned Judge probably omitted to note the earlier rule before it was substituted and possibly came to the wrong conclusion on the basis that the candidate was not actually aware of the consequences of such re-registration. The learned Judge concluded that Rule 27(c) alone dealt with seniority and Rule 7(b) dealt with other topics relating to probation and thus in cases of this type Rule 27(c) alone operated. As we understand the scope and object of the two provisions, the general rule regarding seniority as contained in Rule 27 of the K.S. & S.S.R. Rule 7(b) takes care of a particular situation and is a special provision applicable to a class of persons who, when retrenched, are given the option to obtain fresh advice for appointment to a new Department. But for this provision, the retrenched person could only await his turn for appointment in the department from which he was discharged. It cannot, therefore, be said Rule 7(b) has nothing to do with seniority and is confined to probation alone. The second proviso to Rule 7(b) makes a positive reference to an effective advice enabling re-appointment to a new department and the date of this effective advice is unalterable for the purposes of fixing the seniority and for commencement of the probation in the new department. Rule 27(c) and the second proviso to Rule 7(b) have to be harmoniously construed, and these two provisions are really complementary to each other. Under both rules, it is the advice list and not the rank list that is relevant and when persons are included in the same advice list for re-appointment, afresh, to a new Department, the rank in that advice list alone is material for fixation of seniority in the new Department. Moreover, Rule 7(b) is an enabling provision under which a person retrenched for want of a vacancy is given option for re-appointment in another department. In the absence of this rule, he would not have been entitled to be so appointed, but would be compelled to wait till a vacancy arises in the department from which he was retrenched. He, therefore, elects to take advantage of the provisions contained in the second proviso of Rule 7(b) or prepares to wait for his turn in the first department. When he elects to be appointed afresh, it is he who makes the choice knowing full well that he forfeits the benefit of his past service. He cannot thereafter contend that notwithstanding Rule 7(b) he is still entitled to cling to his seniority on the basis of the first effective advice which became ineffective subsequently for re-appointment. This is the view expressed by M.P. Menon, J. in the judgment appealed against and we are in entire agreement with the reasoning of the learned Judge expressed thus:
As to the constitutional validity of the proviso aforesaid, all that is argued is that it will be unjust, and also discriminatory, to deprive a person of his past services. I can see no such discrimination, where the rule itself gives an option to the party concerned. The petitioner could as well have waited for a vacancy in the clerk's post in the Public Relations Department, in which case, his seniority would not have been affected. It was affected, because he wanted a post elsewhere, and re-registered for that purpose, knowing fully well that such a course would involve loss of prior service for the purposes of seniority. Thus the loss complained of is his own making and the rule cannot be struck down for that reason.
14. It was then contended by the counsel for the appellant that Rule 7(b) is ultra vires as offending Articles 14 and 16 of the Constitution, for, he had no right to be appointed to the department of his choice and in fact, he was not given any choice at all. Therefore, the retrenchment was the mere accident of being appointed to a particular Department and the high rank which he once secured and the earlier advice which he fortunately got could not have been lost for no fault of his. Thus, it is contended, that the method adopted by the Commission for advising candidates when selection is made to several departments when only one common rank list is prepared, was plainly arbitrary.
15. From the particulars, brought to our notice, as seen from notifications issued by the Commission, it is evident that when the Public Service Commission prepares a common rank list for purpose of appointment to several departments, the Commission tenders its advice "in the order of requisition received in the office from the concerned heads of departments" It is also clear that if advice for application to a particular service is given in respect of a candidate, he or she was bound to join duty in that service or relinquish his/her claim for appointment. A decision of the Supreme Court in State of Mysore v. S.R. Jayaram throws considerable light on this aspect.
A single competitive examination is held to test the suitability of candidates for several cadres. Those who succeed in the examination are found suitable for all the cadres and their list in order of merit is published under Rule 8. No separate examination is held to test the suitability of the candidate for any particular cadre. The list of successful candidates published under Rule 8 does not indicate that any candidate is more suitable for cadre 'A' rather than for cadre 'B'. The Rules do not give the Public Service Commission the power to test the suitability of a candidate for a particular cadre or to recommend that he is more suitable for it. Nor is there any provision in the Rules under which the Government can test the suitability of a candidate for any cadre after the result of the examination is published. The result is that the recommendation of the Public Service Commission is not a relevant material nor is there any other material on the basis of which the Government can find that a candidate is more suitable for a particular cadre. It follows that under the last part of Rule 9(2) it is open to the Government to say at its sweet will that a candidate is more suitable for a particular cadre and to deprive him of his opportunity to join the cadre for which he indicated his preference. Take the present case. An open competitive examination was held for recruitment to the posts of Assistant Commissioner in the Mysore Administrative Service and Assistant Controllers in the Mysore State Accounts Service. Though both are Class I posts, the post of Assistant Commissioner has better prospects. But for the last part of Rule 9(2) the successful candidates would have the preferential claim for appointment as probationers to the post of Assistant Commissioners in order of merit and thereafter to the posts of Assistant Controllers in the order of merit. As a matter of fact, there were 20 vacancies in the posts of Assistant Commissioners. The respondent ranked fourth in the order of merit. He indicated his preference for the post of Assistant Commissioner and had a preferential claim for appointment to that post. The candidates ranking 1st, 2nd, 3rd and 5th were appointed as Assistant Commissioners. The respondent though ranking fourth in order of merit was singled out and was debarred from the post of Assistant Commissioner. It is because of the arbitrary power under the last part of Rule 9(2) that the Government could make this unjust disrcimination.
16. We are inclined to take the view that the practice now followed of giving no option to the candidates included in the common rank list to indicate their preference, if any, for appointment to any particular department and all orders, notifications in support thereof, practically make the decision of the Commission to allot them to a particular department plainly arbitrary. The fate of the candidate who has secured a high rank depends on a delicate balance, a purely fortuitous circumstances as to whether he will be allotted to a department where usually there are better avenues of promotion or to a department where the risk of retrenchment is almost inevitable. The procedure now adopted seems to be perilously near to a successful constitutional challenge under Articles 14 and 16 of the Constitution. It is high time that the authorities consider all aspects of this question and reformulate the principles and procedure to be adopted in making advice from a common rank list. We are not, however, expressing any final opinion in this case, for, the Commission which made the advice is not a party to the proceedings and the petitioner did not challenge the advice made in his favour for appointment to the Public Relations Department at the appropriate time.
17. He acquiesced in the advice so made, accepted the appointment to that department without demur, did not challenge the retrenchment in 1967, instead exercised the option open to him under the second proviso to Rule 7(b), re-registered for fresh advice and obtained a fresh appointment in 1967. He files the writ petition in 1979, aggrieved by the seniority assigned in the new department. His conduct and the delay in approaching this Court also disentitle him to challenge, at this belated stage, the vires of the procedure and practice followed for advice to the Public Relations Department.
18. It was contended by the appellant that in this case, considering all circumstances, the Government were bound to exercise their powers under Rule 39 of the K.S. and S.S.R. and relax the rules in his favour. The Government considered this question, as well, to come to the conclusion that this was not a fit case where the petitioner could be granted exemption. We do not think that there are grounds made out for the appellant to claim any preferential treatment, against the tenor of the second proviso to Rule 7(b). especially when he re-registered knowing full well about the consequences.
19. The counsel for the appellant then relied on an unreported decision in O.P. No. 1866 of 1978 to contend that in similar circumstances the Government had granted exemption in another case. This cannot confer any right to the appellant to claim exemption as of right and a mistake committed by the Government once cannot be the forerunner for a second mistake to be committed in future. The Government could correct that mistake when the same was brought to their notice.
20. The 9th respondent was appointed as a Typist and was promoted as a Section Officer as per the orders applicable to Typists/Stenographers. The appellant cannot claim that post and have no right to seniority over him whose earlier appointment to higher categories assured seniority over the appellant.
21. We, therefore, reject the contentions of the appellant and also overrule the decision in Dayanandan v. Public Service Commission (supra) for reasons already stated.
In the result, the appeal tails and it is dismissed without any costs.
A copy of this Judgment will be sent to the Public Service Commission for necessary action in the light of the observations contained in this Judgment.