JOSEPH K JOHN Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant/writ petitioner, the 4th respondent and one Anilkumar joined duty in the service of the 3rd respondent Co-operative Society as Lower Division Clerks on the same day. The 4th respondent was senior among the three. The 4th respondent proceeded on leave without allowance in terms of the conditions enjoined in Appendix XII-A to Part I of the Kerala Service Rules which are made applicable, admittedly, to the employees of the Co-operative societies, during the period between 15.4.1993 and 1.3.1997. During the said period, the 3rd respondent society adopted a resolution promoting the 4th respondent. The society considered that, as the 4th respondent was on leave at the time of promotion, he will be treated as junior to the appellant/petitioner.

(2.) On rejoining duty, when the 4th respondent came to know of this, he filed an application to set aside the said resolution. That was allowed by the Joint Registrar as per Ext.P3 and the 4th respondent was thus declared as senior to the appellant. An appeal, as provided under Section 87(1)(j) of the Co-operative Societies Act, was preferred by the appellant before the Government. That was also dismissed by the Government as per Ext.P9. He impugned the same in W.P.(C)NO. 3895/04. That also did have the same fate. Therefore, this writ appeal.

(3.) It is submitted that a promotion post was available while the 4th respondent proceed on leave for employment abroad. Clause 4 contained in Appendix XII-A provides that, when a promotion is effected during the period in which one was on leave for employment abroad, he will lose al benefits including the seniority over the person who had been promoted during such period of leave. The Co-operative Society had adopted a resolution to the effect that the petitioner would be regarded as senior to the 4th respondent in the promoted category of Senior Clerk. In such circumstances, Exts.P3 and P9 are illegal, being violative of Clause 4 of Appendix 12-A Part I K.S.R.