KRISHNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is against the dismissal of O. P. No. 5774 of 1970 by a learned judge of this Court. The writ petitioner who is the appellant before us was a Lower Division Clerk in the Forest Department of the Madras State. He commenced service in the category on 9th May 1954. After the Reorganisation of States on 1st November 1956 , he was allotted to the Kerala State and appointed as a Lower division Typist on 15th December 1961. The 4th respondent was appointed to the said post on 1st December 1959 , i. e. , on a date anterior to the petitioner's appointment in this State. A post in the Upper Division cadre fell vacant, and the 4th respondent was promoted to the said post on 17th October 1970 by Ext. P1 order. The appellant - writ - petitioner claimed the said post on the ground of seniority and sought to quash Ext. P1 order, which was rejected by the learned judge.

(2.) THERE is no controversy that the appellant's conditions of service are governed by the Madras Ministerial Service Rules (Rule 9) and the Madras State and Subordinate Services Rules, R. 35 (c ). The two rules indicated are the relevant rules which have application. Under R. 9 of the Madras Ministerial service Rules, it is provided: "9. Transfers between categories of Clerks and typists.-A Clerk of the Lower Division or Telephone Operator shall be eligible for appointment as Typist or Steno-typist and a Typist or Steno-typist shall be eligible for appointment as a Clerk of the Lower Division or Telephone operator, if he is qualified and suitable and if he has satisfactorily completed his period of probation as Clerk or Telephone Operator or as Typist or Steno-typist, as the case may be. " Rule 35 (c) of the Madras State and Subordinate Services rules, provides: "35 (c ). The transfer of a person from one class or category of a service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purposes of seniority; and the seniority of a person so transferred shall be determined with reference to the date of his first appointment to the class or category from which he was transferred. Where any difficulty or doubt arises in applying this sub-rule, seniority shall be determined by the appointing authority. " The Kerala State and Subordinate Services Rules came into force on 17th December 195 8. But R. 35 (a) and (b) of the said rules provides: "35. Savings.- (a) (i) Unless a contrary intention is expressly indicated therein, nothing contained in these rules shall adversely affect any person who was member of any service on the date of the coming into force of the rules. (ii) Unless a contrary intention is expressly indicated therein nothing contained in any Special Rules governing a service, shall adversely affect any person who was a member of such service on the date of the coming into force thereof. (b) Subject to the provisions of sub-rules (c) and (d)where these rules or the special rules would adversely affect in respect of any matter a person who was a member of any service before the date of coming into force thereof, he shall, in respect of such matter, be governed, by the rules and orders, if any, which were applicable to him immediately prior to such date". It will be seen therefore that R. 35 expressly saves and continues the Madras Rules for the purpose referred to and mentioned therein.