Kerala High Court
B. Chandran (U.D. Compiler), General ... vs State Of Kerala Represented By The ... on 29 May, 2003
Author: M. Ramachandran
Bench: M. Ramachandran
JUDGMENT M. Ramachandran, J.
1. The above three Original Petitions are being disposed of by a common judgment. As a matter of fact, the two subsequent Original Petitions came to be filed in view of the pendency of the earlier Original Petition, since according to the petitioners there, the interim orders and pendency of O.P.No. 6841 of 2000 were blocking the promotions and postings on a wholesale basis in the department.
2. I had occasion to hear the senior counsel Sri. N. Dharmadan on behalf of the petitioners in O.P.No. 6841/2000 and Sri. T.V. Ajayakumar appearing for the petitioners in the connected two Original Petitions. Representing the interest of persons who might have been affected because of the Original Petitions Sri. N. Nandakumara Menon was heard. He appeared on behalf of an officer who got himself impleaded in O.P.No. 6841/2000. The learned Government Pleader also made submissions on the basis of the counter affidavit that had been filed opposing the applications that had been made.
3. Ext.P11 dated 19-1-2000 is under challenge in O.P.No. 6841/2000. One R. Vijayamma, who was appointed as a Lower Division Compiler in Government Service had filed O.P.No. 30374/99 and this Court had directed the Government to pass orders on the representations that had been submitted by her in the mater of adjudging seniority and promotion in higher grades. In fact Ext.P11 had been passed disposing of the pending representations made by Smt. Vijayamma. This stand of the Government was of far reaching consequences. O.P.No. 6841 of 2000 had been filed by Sri. B. Chandran, who claimed himself as General Secretary of a Staff Organisation and Sri. S. Ramachandran Nair who was working as Statistical Inspector, evidently apprehending the adverse impact of the order.
4. Sri. Nandakumara Menon appearing for the additional third respondent made a preliminary submission that the Original Petition is not maintainable. According to him, the first petitioner had no locus standi and it was unknown in service jurisprudence of filing writ petitions in a representative capacity. According to him, Sri. B. Chandran could not have represented any other person than himself. He had styled himself as General Secretary, E & S Technical Staff Organisation. If as a matter of fact the association was a petitioner, its name ought to have been shown appropriately in the cause title itself. This was only a case where Sri. Chandran had shown his address as General Secretary of the Organisation, but the Organisation was not a petitioner here. The other objection that had been (SIC) was that in the nature of the reliefs that had been prayed for, persons who might have been affected by the outcome of the Original Petition ought to have been impleaded as respondents and since this had not been attempted the Original Petition was liable to be rejected for non-joinder of necessary parties.
5. There is substance in the objections that have been raised by Sri. Menon. E & S Technical Staff Organisation cannot be considered as a petitioner here in these proceedings. The first petitioner has not shown whether it was a registered organisation or a recognised body even. Apart from stating that he is representing "nearly one hundred and twenty five members, similarly situated like Sri. S. Ramachandran Nair, who is the second petitioner herein" no sufficient details have been given as to their names, status or their interests. It is also not disclosed as to whether Sri. Chandran himself is aggrieved because of the order.
6. The second submission is also to be seriously taken notice of, since it was a prime requirement to implead the persons who might have been affected because of the outcome of the Original Petition. The averments do indicate that others are likely to be affected. In so far as (SIC) persons have not been made respondents, the Original petition is defective. It would have been justified to reject the Original Petition at the threshold. However, as it is pending for a quite number of years, and since I am not impressed about the merits of the contentions that have been urged, I am not disposing it on the preliminary objections raised.
7. The Government had held by Ext.P11 order that the request of the employee Smt. Vijayamma to restore her rank and seniority in the cadre of L.D.Compiler/Investigators with effect from the date of effective advice of the Public Service Commission could not have been admissible, since she had opted for an inter-district transfer and her seniority could have been governed only on the basis of the orders passed by the Government on the subject. There was also a direction to the Director of Economics and Statistics to review the whole position in respect of L.D.Compilers/Investigators and U.D.Compilers/Investigators strictly observing the rules regarding inter-district transfer. The instructions were to finalise and publish the seniority list in respect of the above two categories within a prescribed time. It had also been observed that since a valid seniority list was not in existence, further promotions were to be made only after finalisation and publication of the list.
8. Perhaps the petitioners are aggrieved about the observations, referred to earlier, which has been extracted from Ext.P11. The submission is that irrespective of transfers the seniority of L.D. and U.D.Compilers/Investigators are to be reckoned from the date of effective advice of the Public Service Commission. Mr. Dharmadan attacked the observation that there was no valid seniority list. According to him, it was incorrect, since as a matter of fact Ext.P3 proceedings indicated that there were seniority lists. They were not be to be disturbed at this point of time, on newly discovered principles.
9. The submission on behalf of the petitioners is that in respect of officers, situated like the second petitioner, their date of seniority has to be reckoned from the date of first effective advice. For example, in case of the second petitioner, he had joined service as a Lower Division Clerk as advised by the Public Service Commission on 21.7.1977. It was in the Cannanore District. According to him, he was transferred in exigencies of service to the Directorate of Economics and Statistics at Trivandrum as per order date 5.4.1978. The trend of the submission made by the senior counsel is that all the others similar to him were appointed to different districts and they had obtained transfers shortly thereafter to Trivandrum district, and on exigencies of service. It may also be noticed that Smt. Vijayamma, referred to in Ext.11 was also similarly situated having been appointed at Palakkad District and had secured transfer to Trivandrum. A transfer, according to the counsel, could not have adversely affected their seniority, and heavy reliance is placed on the Government Order [Ext.P3(a)] for this purpose.
10. For some reason or other, Ext.P3(a) had been passed by the Government on 24.9.1983, whereby it has been observed that there is no justification in insisting forfeiture of seniority in respect inter-district transfers in the case of L.D.Compilers. Since the petitioners heavily relied on this, the text thereof is extracted herein below:
"I am directed to invite your attention to the letter cited wherein it has been reported that the posts of U.D.Compilers are filled up from the state-wise list of L.D.Compilers prepared on the basis of date of advice of Public Service Commission, although recruitment of L.D.Compilers is done on district-wise basis. Therefore, claims of no person are affected on account of inter-district transfer of L.D.Compilers. However, item (iv) if G.O.MS.154/71/PD dated 27.5.1971 specifically stated that the restrictions imposed in the above G.O. would not apply where state-wise promotions are involved. There is no justification in insisting forfeiture of seniority in respect of inter-district transfer in the case of L.D.Compilers. In the above circumstances the question of review of the promotion already ordered also does not arise. However, it is informed that the transfer on request before completing 5 years cannot be allowed without following the procedure as per rules."
The contention of Sri. Dharmadan is that this accepted position has been upset by Ext.P1 (SIC) when it is stated that the transferred officers will have to be contended with their seniority with effect from the date of their joining duty in the new district and they were to forfeit their seniority on obtaining an inter district transfer in accordance with the general orders viz., Exts.P5 and P6. Ext.P3(a) was not, according to him, even challenged, and it has to govern the situation. The question is therefore whether the positions as stipulated by Ext.P3(a) were legally admissible.
11. The counsel submits that there is only one State-wise seniority list in respect of L.D.Clerk, U.D.Clerk/Compilers even though such persons who had filed the O.P. were recruited for appointment in the Directorate and district offices separately. It is submitted that on the basis of Ext.P3(a) their seniority was adjudged and promotions were ordered from time to time. Apparently the position had undergone unnoticed, but Smt. Vijayamma might not have got the benefit of the above. Consequently she had taken up the matter with the Government and therefore the interventions of this Court and later Ext.P11 had resulted. Evidently the Government had seriously looked into the matter only at this point of time. The request was promptly declined, as Exts.P5 and P6 had stood the test of time, which (SIC) otherwise. The yardstick that had been adopted in the case of Smt. Vijayamma naturally was to be followed in all other cases of similar nature. Understanding the unsatisfactory manner in which the list had been drawn p, a review of the entire position and requiring recasting of the seniority position had been ordered. Only after finally fixing such seniority, further promotions were to be ordered.
12. When the matter was being finally heard, the senior counsel had also referred to my attention to Ext.R12 G.O. dated 5.2.2003, produced along with C.M.P.No. 12255 of 2003, whereunder a few persons, including the second petitioner, had been given promotion as Research Assistants under Rule 9(a)(i) of the General Rules. It is suggested that this could be considered as a circumstances whereunder the contentions of the petitioners have been accepted by the Government. It is also pointed out that this has not been subjected to challenge by any person and therefore the reliefs are to be so formulated taking notice of Ext.P12 and also annulling the offending observations in Ext.P11.
13. I find it difficult to accept the submissions as above. Considering the road block created by the pendency of the Original Petition and W.A.No. 1620 of 2000, the Government was constrained to pass orders on exigencies of service, purely on a provisional basis. The order expressly states that postings are subject to the final decision in O.P.No. 6841 of 2000. As such, apart from understanding as Ext.P12 as a stop gap arrangement it need not be considered as a document of any particular significance.
14. As against Ext.P11, I do not think that the petitioners have succeeded in pointing out that it is vitiated by any irregularity. Perhaps it may be true that the second petitioner and a few others have been misled by Ext.P3(a). The circumstance remains that a final seniority list with notice to the officers of the department had not been circulated or finalised. Preparation of a seniority list is a prime duty and for some reason or other the Government has not been able to give any finality. As at present the attempt is to discharge its (sic). When such finalisation is attempted to, seniority of officers are to be adjudged in accordance with the rules, orders and standing instructions. Even though Ext.P3 has not been subjected to specific challenge, I do not think that this can confer any lasting advantage to persons similarly situated like the petitioners. This is because their order has been issued without reference to the general orders or adverting to Exts. P5 and P6 dated 2.1.1961 and 27.5.1971 respectively. It is stated in Ext.P6 that a person transferred to a new unit will take rank below the juniormost in the category in the new unit or department. He is not permitted to count his previous service towards seniority. Ext.P7 made reference to G.O.(MS) No. 4/PD dated 2.1.1961 and had indicated that the procedure will not affect the existing procedure where state-wise promotions are involved. But in the matter of reckoning seniority, the yardstick prescribed was specific. The petitioners of course had attempted to wriggle out the situation by claiming that they are entitled to protection conferred by Clause (4) of Ext.P5, which is to the following effect:
"(4) Persons transferred from one department to another or from one unit to another in the same department due to proved administrative reasons will retain all their rights in the old unit or department, as the case may be."
But Ext.P1 produced by the petitioners indicates that he was transferred on his own request, for it states: "Since all the above transfers are ordered on their requests, they are not eligible for T.A. or joining time." Therefore, the averment in paragraph 3 of the O.P., which is to the following effect:
"But he was transferred in the exigency of service to the Directorate of E & S at Trivandrum as per order dated 5-4-1978"
is not sustainable or factually correct.
15. Realising the difficulty Shri Dharmadan submits that in view of Ext.P3(a), Exts.P6 and P7 may not be applicable at all. It may be necessary to notice that Smt. Vijayamma, referred to in Ext.P11, had no case as such, and she was aggrieved about the alleged discriminatory treatment while her case was being examined by the Government. The petitioners cannot improve their case from this position.
16. Ext.P3(a) has been issued without due application of mind. It is difficult to appreciate the reasoning behind the order and in all probability this has also not been circulated as it is neither a G.O.(MS) nor a G.O.(P). The more important circumstances to be noticed is that Ext.P3(a) runs contrary to the statutory rule. Rule 27 of the Kerala State and Subordinate Services Rules, 1958 governs seniority. The first proviso to the explanation in Rule 27(a), which had come to the statute book by SRO 149/76, provides that though seniority of a person is to be determined by the date of the order of his first appointment to such service, seniority of persons on mutual or inter-unit or inter-departmental transfer from one unit to another within the same department or one department to another on requests from such persons shall be determined with reference to dates of their joining duty in the new unit. Even if Exts.P5 and P6 cannot be applied, so long as Ext.P3(a) runs counter to the above rule, the Government will be justified in issuing directions as has been contained in Ext.P11 that a fresh consideration bearing in mind the basic aspects have become necessary in the department. It will be absolutely irregular, if certain officers of the Statistical Department are exempted from the general law governing the seniority. Thus the petitioners have not been able to make out a case for interference.
17. In the circumstances, O.P.No. 6841 of 2000 is liable to be dismissed. I do not find any error in Ext.P11 as the directions are issued for bringing about an equitable determination of the seniority position of the officers. Any provisional arrangement or provisional promotions cannot bind the hands of the Government for adjudging and prescribing seniority, as has been proposed therein because of the pendency of the Original Petition, promotions and postings have been unnecessarily delayed. The Government should see to it that a provisional seniority is drawn up expeditiously and after circulation it is given a finality, in the interest of administration.
18. O.P.No. 6841 of 2000 is dismissed. The petitioners are liable to pay costs which I adjudge at Rs. 2,500/- in favour of the first respondent.
19. In view of the above declaration, no separate orders are necessary to be passed in O.P.Nos. 27322 and 31437 of 2002. It will be free for the Government to declare their probation and finalise the seniority of officers of the department. Till such time proceedings are so drawn up recourse to Rule 9(a)(i) or 31(a) the Kerala State and Subordinate Services Rules could be made so as to tide over any difficult situation. O.P.Nos. 27322 and 31437 of 2002 are closed.