M P RAGHAVAN NAIR Vs. STATE INSURANCE OFFICER

JUDGEMENT

(1.) The order referring this case to a full bench reads thus:

(2.) In December 1955, the Travancore - Cochin Public Service Commission "advised" the petitioner, the 4th respondent and the 3rd respondent, in that order, for appointment as lower division clerks in the State Insurance Department of the Travancore - Cochin Government. (The reference is to the parties as they stand arrayed in the writ petition, O. P. No. 2131 of 1966, out of which this appeal arises the 1st respondent to the petition is the State Insurance Officer; and the second, the State of Kerala). They were accordingly appointed in that order in 1956, the petitioner first, the 4th respondent next and the 3rd respondent third. The 3rd respondent passed the account test first, in May 1958; the 4th respondent next, in March 1959; and the petitioner last, in December 1959. This test, it is the common case, is obligatory for promotion from the lower division to the upper division; but, as to whether it is an obligatory test for confirmation in the lower division is a matter in controversy, the case of the petitioner being that it is not and of the respondent that it is. However, as we shall see, that is really of no consequence.

(3.) The department, apparently acting in the belief that the test was an obligatory test for confirmation, confirmed the 3rd respondent first with effect from 6 5 1958, the 4th respondent next with effect from 31 3 1959 and the petitioner last with effect from 3-5-1960. (The dates given are the dates stated at the bar at the bearing of the appeal. In some cases they do not conform exactly with the dates as disclosed by the pleadings and the exhibits; but the discrepancies are not material). The department also seems to have thought that seniority in the lower division was determined by the date of confirmation therein, for, in the gazette of the 10th October 1961, it published a gradation list of lower division clerks showing the 3rd respondent as senior to the 4th respondent and the 4th respondent as senior to the petitioner. The principle for promotion from the lower division to the upper division and from the upper division to the next higher category, namely, the category of Junior Superintendents Claims Inspectors (which we shall hereafter call the superintendents' category) was, as the rules then stood, seniority unless promotion had been withheld as a penalty, and, apparently in accordance with the seniority as shown in the gradation list, the 3rd respondent was promoted first to the upper division on the 13th August 1958, the 4th respondent next on the 15th July 1959, and the petitioner last on the 6th July 1960. It does not appear from the pleadings, but it was stated at the bar after verification, that none of them has yet been confirmed in the upper division. However, acting on the basis of their apparent relative seniority in the upper division, they were promoted to the category of superintendents, the 3rd respondent first on the 13th March 1962, the 4th respondent next on the 25th April 1952 and the petitioner last on the 2nd July 1963. They are all now aspiring for promotion (perhaps, strictly speaking, recruitment by transfer) to a higher post for which their relative seniority in the category of superintendents would count, although it might not be the determining factor, since it would appear that the higher post is what is commonly called a selection post. The real dispute between these parties is as to their relative seniority in the superintendents' category, the petitioner's case being that he should be first, and, although he is not really concerned with that, the 4tn respondent second and the 3rd respondent last.