C I VARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) The judgment of the court was delivered by the Acting Chief Justice. - The question arising in both these Writ Appeals is the same. It is an interesting question the decision on which may be of some consequence not only to the parties to these cases but to others similarly placed in the Civil Service of the State. The question concerns the right of juniors to promotion to existing vacancies before the promotion of their seniors when the juniors satisfactorily complete their period of probation a few days earlier and that only on account of the fact that the juniors were able to join service earlier than the seniors. The seniority of persons appointed on the advice of the Public Service Commission is determined not by the respective dates of joining duty but by the date of first advice. It may happen that under the same order of advice many may be advised and in such a case the seniority will depend upon the ranking in the order of advice. Some of those advised may be nearer the place of duty so much so they could join duty earlier than the others in the same advice list occupying higher ranks therein. When such juniors complete their probation a few days earlier than their seniors because of the circumstance indicated, could they claim that in the vacancies available in the category to which they are to be promoted they should be promoted in preference to the seniors The learned Single Judge in both the judgments from which these Writ Appeals are filed has upheld the case of the petitioners that, they being seniors in the post of Assistants, Grade II in the Finance Department of the Kerala Government, respondents 2 to 4 in both the cases who were admittedly juniors in the post of Assistant, Grade II should not have been promoted in existing vacancies earlier than the petitioners merely because respondents 2 to 4 happened to complete probation earlier taking advantage of the circumstance that they could join duty earlier in the post of Assistant, Grade II and at the time they completed the probation vacancies to which they could be regularly appointed were available. The settlement of seniority in the promoted post has been reopened by the judgment of our learned brother Justice Vadakkel in both the cases and the Government has been directed to consider the matter afresh. That is challenged in these appeals.

(2.) To understand the contention in more detail it may be useful to refer to the facts of one of the two cases in some detail. We will refer to the facts in O.P. 5638 of 1976 from which W.A. No. 291 of 1979 has arisen. The petitioner therein was advised alone with respondents 2 to 4 by order dated 20th October 1970 of the Kerala Public Service Commission to the post of Assistant, Grade II in the Finance Department of the State of Kerala. The petitioner's rank in the advice list was higher than that of respondents 2 to 4. Under R.27(c) of the Kerala State and Subordinate Service Rules (in short 'the Rules') 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. That respondents 2 to 4 are juniors to the petitioner as Assistant Grade II is not in controversy.

(3.) Though advised in the same list the order of appointment of the petitioner was issued later than that of respondents 2 to 4. The consequence was that while respondents 2 to 4 had joined duty in December 1970 the petitioner joined duty only on 9th February 1971 pursuant to the communication dated 28th January 1971 relating to his appointment. It is therefore evident that it was not due to any fault of the petitioner that he could join only later. The period of probation is a period of two years within a period of 3 years. The petitioner as well as respondents 2 to 4 took only the minimum period of two years for completing their probation. The petitioner was declared to have satisfactorily completed his probation with effect from 8th February 1973 while respondents 2 to 4 were so declared to have satisfactorily completed probation with effect from 7th December 1971, 14th December 1972 and 19th December 1972 respectively. All of them were provisionally promoted under R.31 of the Rules by an order dated 10th May 1973 and the petitioner was shown as higher in rank in that order of provisional promotion. But when this was regularised by a later order, Ext. P3 dated 22th January 1975, respondents 2 to 4 were given dates of regularisation in the post of Assistant, Grade I as 7th December 1972, 14th December 1972, and 19th December 1972 respectively while the petitioner was given only the date 9th February 1973. Thereafter the matter was being agitated at the instance of the petitioner and ultimately resort was made to this Court. Similar is the case with the petitioner in O.P. No. 5542 of 1976 from which W.A. No. 292 of 1979 has arisen. The difference in that case is that the petitioner therein was advised by the Public Service Commission in an earlier list. Though respondents 2 to 4 had been advised only in a subsequent list appointment orders were issued to all of them together. Respondents 2 to 4 joined earlier than the petitioner since the petitioner was in Palghat and he seems to have taken more time than respondents 2 to 4 to join his office though only the permissible time.