K V SAHADEVA KURUP Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioners were appointed as lower division clerks in the Revenue Department, in Trivandrum District, white respondents 3 to 6 in O. P. 2281 were appointed as lower division clerks in the same department in the Malabar area. The appointments of these respondents were earlier in point of time. All the appointments were made after the Kerala State and Subordinate Services Rules, 1958, came into force. As per G. O. MS. 4/pd (Services), dated 2-1-1961, a person transferred from one district to another district would take the lowest rank in his cadre in the district to which he is transferred. By G. O. MS. 29/68/rd, dated 16-1-1968, the lower division clerks appointed in the Revenue Department in the Malabar area up to 19-12 1962 were exempted from the said rule. Accordingly, these lower division clerks, if they are transferred to another district, would take their rank in the new district on the basis of their first appointment. Some persons availed of the above exemption, and got transferred to the Trivandrum District. Respondents 3 to 6 in O. P. No. 2281 of 1969) belong to that class. Long before they came to Trivandruni District, the petitioners had got promotion as upper division clerks. Their promotions were regularised by the District Collector by his order, dated 27-1-1968. which is marked as Ext P-1 in O. P. No. 2530 of 1969. When the petitioners were initially promoted to the upper division cadre, respondents 3 to 6 in O. P. 2281 of 1969 did not have the test qualification, which is necessary for their promotion, but at the time they were given exemption from the operation of the rule regarding seniority consequent on transfer from one district to another as per CO. , dated 16-1-1968, they had passed the test qualification, and were eligible for promotion. They claimed that the petitioners' promotions were only provisional, and that they were, therefore, entitled to seniority over the petitioners in the cadre of upper division clerks. The District Collector, Trivandrum by his order, dated 16-41969, which is marked as Ext. P 6 in O. P. 2530 of 1969, upheld the above claim. Accordingly, he reviewed his earlier order regularising the services of the petitioners and Ors. , promoted respondents 3 to 6 in O. P. No. 2281 of 1969 to the upper division cadre, and reverted the petitioners. The petitioners thereupon filed these writ petitions questioning their reversion, and claiming rank in the cadre of upper division clerks on the basis of their earlier appointments in that cadre. This Court, while admitting these writ petitions, passed interim orders with the result the petitioners are now continuing in the cadre of upper division clerks.

(2.) THERE can be no dispute that the promotion of the petitioners and respondents 3 to 6 in O. P. 2281 of 1969 and Ors. concerned as well as their seniority in the promoted cadre should be governed by the Kerala State and Subordinate Services Rules, 1958. Rules 27 (a) and 28 (bb) are the relevant provisions. Rule 27 (a) reads:

(3.) THE District Collector has reviewed the promotion of the petitioners and ordered their reversion and promoted respondents 3 to 6 in O. P. 2281 of 1969 on the basis of the directions issued by the Government. The Government has filed a counter-affidavit justifying the said directions and the action taken by the District Collector. The Government has put forward a very involved defence, which is not easy for being understood. The substance of it seems to be this : The petitioners' promotions were temporary ; and they were stated to be provisional. The promotions became regular only by the order of regularisation, dated 27-1-1968. But on that date, respondents 3 to 6 in O. P. No. 2281 of 1969 had become seniors to the petitioners in the cadre of lower division clerks by virtue of the exemption granted to them by G. O. , dated 16-1-1968; and they had by that time passed the test qualification also. So at the time of regularisation of the promotions to the upper division cadre, the petitioners should be reverted and respondents 3 to 6 in O. P. No. 2281 of 1969 should be promoted on the basis of their seniority in the lower cadre.