ABOOBACKER Vs. STATE

JUDGEMENT

(1.) THE petitioner and respondents 3 and 4 are now assistant Directors in the Dairy Development Department. All these three persons and one Philipose Thomas originally belonged to the Animal Husbandary department. All of them were on different dates transferred to the Dairy development Department, and appointed as Dairy Development Officers. In the animal Husbandary Department their inter se seniority was that respondent 3 was the senior-most, after him came fourth respondent and after him the petitioner and lastly Philipose Thomas. Philipose Thomas was transferred to the Dairy development on 1-6-1961, while the petitioner and respondent 3 and 4 were transferred on 7-1-1963, 8-5-1963 and 20-12-1963 respectively. One Appukuttan Nair was appointed as the Extension Assistant in the Dairy Development Department by direct recruitment; and subsequently on 5-3-1963 he was promoted as Dairy development Officer. THE petitioner was promoted as Asst. Director on 22-6-1963. THEreafter when two vacancies arose, the third respondent was appointed on 6-7-1965 and the fourth respondent on 26-7-1965 as Assistant directors. Appukuttan Nair thereupon filed O. P. 2343 of 1965 claiming seniority over respondents 3 and 4 on the basis that he was appointed in the cadre of Dairy Development Officers earlier than the appointment of respondents 3 and 4. That claim was upheld by this court by its judgment, Ex. P1 dated 8-11-1966. Accordingly Appukuttan Nair has been promoted and he has been assigned a rank above respondent 3 and 4 and below that of the petitioner. Philipose Thomas, who had been appointed as Dairy Development Officer earlier than any of above persons, was promoted as Assistant Director even before the promotion of the petitioner; and he is now a Joint-Director. On 17-2-1969 the state Government passed an order Ex. P2 fixing the inter se seniority of the petitioner and respondents 3 and 4 by which the Government directed that the third respondent will be the seniormost, then the fourth respondent and lastly the petitioner. THE result is that the petitioner becomes not only junior to respondents 3 and 4, but even to Appukuttan Nair. This writ petition has been filed to quash Ex. P2 on the ground that the said order is discriminatory and is also violative of R. 27 of the Kerala State and Subordinate Services Rule, 1958.

(2.) R. 27 (a) alone is relevant for the purpose of this case; and it reads as follows :-

(3.) IN a recent Full Bench decision of this court in raghavan Nair versus State INsurance Officer (1971 KLJ 281) this court held that when the earlier appointment of a person to a higher cadre is unconditional, it entitles him to seniority over persons who were later appointed in that cadre though they were seniors in the lower cadre and were entitled to earlier promotion; and the preferential appointment of the junior would be an impediment for regaining their seniority in the higher cadre. That decision also held that, if such promotions have been allowed to stand without being questioned for sufficiently long time, the High Court would not interfere with them under Art. 226 of the Constitution. IN this case, the petitioner was promoted as Assistant Director on the basis of an earlier appointment in the dairy Development Department as the Dairy Development Officer as early as 22-6-1963. Applying the same principle as involved in the above decision, the government cannot also be allowed to upset that state of things after a lapse of six years as has been done in this case as per Ex. P2.