STATE OF KERALA Vs. P. K. SATHEESH

JUDGEMENT

(1.) The above Writ Appeals and Writ Petitions concern the eternal question of the ranking and seniority of direct recruits vis a vis promotes, the department concerned being the Agricultural Income Tax and Sales Tax Department of the Kerala State, We shall deal first with the group of cases relating to Assistant Sales Tax Officers (ASTOS. for short), for which we have culled out the facts from the three writ petitions O P. Nos. 891, 8935 and 11957 of 1990, the judgment in which has given rise to the seven writ appeals Nos. 494, 550, 551, 552, 763, 774 and 823 of 1991, and O. P. No, 11081 of 1990 which stands referred to us for decision. We shall deal with the case of the Sale Tax Officers separately.

(2.) The chequered career of the disputes, and the fluctuating fortunes of the parties may be stated thus. (The Exhibits referred to in this paragraph and the next are those annexed to O. P. No. 11081 of 1990). The Kerala Agricultural Income Tax and Sales Tax Subordinate Service (Subordinate Service, for short) consists of Assistant Sales Tax Officers (which includes officers of various designations) governed by the special rules, namely the Kerala Agricultural Income Tax and Sales Tax Subordinate Service Rules (hereinafter called the Subordinate Service Rules), which came into force on 11-10-1962. These rules prescribed two methods of appointment to the service, by transfer of members of the Ministerial Subordinate Service employed it the department, and the other, by direct recruitment (Vide R.2(a)). R.2(b) prescribed the quota for such appointment which, to begin with, was one, by direct recruitment, and three, by transfer in respect of every four substantive vacancies. Five persons were directly recruited in 1965 and another five in 1968 in accordance with these rules. Twenty persons were recruited in 1976 and 21 in the year 1977, when a writ petition O. P. No. 1346 of 1977 was filed by one Madhu, a Head Clerk transferee praying for allotment to him of rank and seniority above the direct recruits in the category of ASTOs. This writ petition was disposed of on 22-2-1979 with direction to fix the seniority in accordance with the quota rule contained in R.2(b). The Government accordingly directed the Board of Revenue by the order dated 20-7-1981 to prepare the seniority list assigning notional seniority to every three transferees below one direct recruit. The two petitioners in O. P. No. 11081 of 1990 as well as four others, who were direct recruits, appointed in 1976 on 1977, thereupon filed writ petition O. P. No. 5967 of 1981 challenging this direction as contrary to R.2(b). The writ petition was disposed of by the judgment Ext. P1 dated 29-6-1982, which was affirmed in the appeals filed by the State, and certain affected transferees, by the judgment Ext. P2 dated 31-10-1983. Suffice it to say that the result of these proceedings was to hold that persons of either class, transferee or direct recruits, appointed in excess of the quota respectively assigned to them should yield place to the other, rightly appointed within the quota. A direction was given accordingly to fix the seniority. It was also stated in the appellate judgment that Government shall not take into account any orders which were inconsistent with the principles indicated" in the Judgment.

(3.) The matter was taken up in appeal to the Supreme Court by the transferees, and it is stated that the appeals were slated for hearing on 30-10-1984 (though it was actually disposed of only on 21-8-1990). In the meanwhile, Government passed an order Ext. P3 on 4-9-1984 by which the operation of R.2(b) was diluted by introducing a new sub rule, R.2(c) providing that R.2(b) shall apply only from 1-4-1974 and not from 11-10-1962 as under the original schema: At the same time, the proviso to R.2(c) provided that the amendment shall not apply to those appointed prior to 1-4-1974. In other words, the ten direct recruits appointed prior to 1-4-1974 were not affected by the amendment, but those appointed after 1-4-1974 in 1976, 1977, etc were affected by it.