SUKUMARAN NAYAR Vs. STATE OF KERALA

JUDGEMENT

(1.) A nice question in service law arises in this case. The question relates to supersession of seniors by juniors for want of test qualification. The petitioners and respondents 3 to 44 belong to the Kerala Treasury Subordinate Service and are governed by the Kerala Treasury Subordinate Service Rules. They were originally appointed as Lower Division Clerks in the Land Revenue Department of the erstwhile State of Travancore - Cochin. It was when the Treasury Department was formed that they opted for the Treasury Subordinate Service. All the petitioners acquired the requisite test qualifications including Account Test (Higher) long before respondents 3 to 44 acquired the above qualifications. By virtue of this, they got promotion from the post of Junior Accountant to that of Senior Accountant then from the post of Senior Accountant and to that of Section Head / Head Accountant superseding their seniors, including respondents 3 to 44. When the petitioners were holding the post of Section Head / Head Accountant, they were promoted to the post of Sub Treasury Officer, Grade II / Junior Superintendent by virtue of their seniority in the feeder category. As respondents 3 to 44 were yet to pass Account Test (Higher) and get promotion as Section Head / Head Accountant, there was no supersession when the petitioners got promotion as Sub Treasury Officer, Grade II / Junior Superintendent. Later, several among respondents 3 to 44 passed Account Test (Higher) and got promotion as Section Head / Head Accountant. By this, they also became eligible for restoration of their seniority in the cadre of Section Head / Head Accountant over earlier promoted juniors who continued to be in that cadre then.

(2.) In 1976, the Treasury Department published a provisional seniority list of Junior Superintendents in the Travancore Cochin area as on 1st February 1972 and invited objections. In the above list, the names of many of the petitioners were not there and some of the respondents were shown as seniors to the petitioners who were included. Thereafter, on 28th February 1977 the 2nd respondent Director of Treasuries, Trivandrum published a supplementary provisional seniority list, of Officiating Junior Superintendents of Travancore - Cochin area. In the above list Ext. P1 list, the names of all the respondents, 3 to 44, were included as seniors (to the petitioners. On enquiry, the petitioners came to know that respondents 3 to 44 were given seniority over the petitioners in the cadre of Junior Superintendents by applying the Government Order R. Dis. 8207/50/CS, dated 7th May 1951. The petitioners immediately made written representations to the 2nd respondent pointing out that the petitioners were not promoted as Junior Superintendents by superseding any of their unqualified seniors and hence the rule of restoration of seniority cannot be applied to deny the petitioners the promotion they got by virtue of their seniority in the feeder category. The 2nd petitioner alone got a reply from the 2nd respondent rejecting his representation.

(3.) As the 2nd respondent did not take any steps to review the provisional seniority list, the petitioners made written representations to the 1st respondent State. Ext. P2 is the representation made by the 3rd petitioner and Ext. P3 is the representation made by the 6th petitioner. In spite of the above representations, on the basis of the provisional seniority list of Junior Superintendents provisionally promotions were given to some of the respondents to the next higher cadre of Sub Treasury Officer, Grade I / Senior Superintendent / Stamp Depot Officer, etc. It was under the above circumstances that the petitioners approached this Court with this Original Petition. The petitioners have prayed for a declaration that respondents 3 to 44 are not entitled to the restoration of seniority over the petitioners in the cadre of Junior Superintendent / Sub Treasury Officer, Grade II by the application of the principles laid down in the G.O., dated 7th May 1951. The petitioners also have prayed for a writ in the nature of mandamus or other appropriate writ or order directing respondents 1 and 2 to assign to the petitioners as well as respondents 3 to 44 seniority and ranking in the cadre of Junior Superintendent / Sub Treasury Officer, Grade II on the basis of their respective dates of actual promotion in the said cadre.