B PREMANAND Vs. MOHAN KOIKAL

JUDGEMENT

(1.) Rule 27(c) of the Kerala State and Subordinate Services Rules, 1958, hereinafter referred to as "KS & SSR", dealing with seniority reads as follows:

(2.) The appellants, who were respondents in the original lis, would endeavour to give literal meaning to the statute and in as much as the date of first effective advice in the matter of their appointment was prior in point of time from the petitioners in the original lis, now arrayed as respondents in this Writ Appeal, they would want us to declare them seniors. The petitioners, who succeeded in the matter of inter se seniority between them and the appellants in tune with the findings recorded by the learned Single Judge would want us to determine seniority by striking the balance to give effect to the general purpose of legislature not within the literal meaning of the statute. The learned Division Bench while hearing the appeal arising from the judgment recorded by the learned Single Judge determining seniority in consonance with equity, justice and good conscience doubted the correctness of the same and also the correctness of a Division Bench judgment in W.A.No. 156 of 2002(A) in the matter of decided on 27th May, 2002. It is for that precise reason that even though the matter was covered on all fours by a decision of the Division Bench in M. Seethi's case (supra, the matter has been referred for decision by a Full Bench.

(3.) Brief facts culminating into the reference made by the Division Bench dated 26th July, 2005 while doubting the decision of a co-ordinate Bench in M. Seethi 's case (supra) need a necessary mention. The petitioners who filed the Original Petition were holding the post of Block Development Officers,, hereinafter referred to as "BDOs". They came to be appointed by way of direct recruitment. They were advised by the Public Service Commission from the rank list of BDOs which came into force with effect from 25.11.1997. The said rank list was prepared pursuant to the notification published in the Kerala Gazette dated 8.11.1983 inviting applications for appointment to the post of BDO. Even though their names came to be included in the rank list of 1987, they came to be appointed only in 1993. The reason for their appointment at such a belated stage was the letter issued by the Chief Secretary dated 30.11.1988 addressed to the Commissioner of Rural Developments, Thiruvananthapuram. The Chief Secretary, by the letter aforesaid, directed the Commissioner of Rural Developments to start applying the ratio in respect of cadre strength instead of the practice being followed. The Special Rules, namely, the Kerala General Service (posts in the Development Department) Rules, governing the appointments, provided that appointment to the cadre was to be made from three sources, namely, (i) by appointment by transfer from among Junior Lecturers in the Extension Training Centre, etc., (ii) by recruitment by transfer from among Senior Grade and Grade I Assistants in the Government Secretariat; and (iii) by direct recruitment. This was to be in the ratio of 1:1:1. This ratio was being applied with reference to the existing vacancies, but as mentioned above, the Chief Secretary directed that the ratio should apply as per cadre strength. Naturally, this direction resulted in upsetting the chances of direct recruits from being appointed. Apprehending that the rank list would expire thus leaving the petitioners, who were high in rank without any appointment, they filed O.P. 9161 of 1989. During the course of hearing of the aforesaid Original Petition, the petitioners prayed for an interim order and the Court by order dated 16.11.1990 directed to report 48 vacancies of BDOs to the Kerala Public Service Commission before 21.11.1990. This was accordingly done. The petitioners succeeded in setting aside the direction issued by the Chief Secretary so as to form the ratio as per cadre strength. A Division Bench of this Court held that the ratio was to be applied to the existing vacancies and not as per the cadre strength. The direction thus came to be issued to the Public Service Commission to advise 48 persons from the 1987 rank list for vacancies which had been reported as per the interim order. It is conceded position that the Special Leave Petition filed against the order of the Division Bench was dismissed by the Honourable Supreme Court. In the interregnum, i.e. between the filing of the Original Petition and the ultimate directions that were issued by the Division Bench, the Government issued notification dated 5.12.1989 inviting applications from Scheduled Caste/Scheduled Tribe candidates for appointment as BDOs under special recruitment process as per the provisions contained in Rule 17A of KS & SSR dealing with special recruitment from among the Scheduled Castes and Scheduled Tribes. The rank list with regard to the said category of candidates came to be published on 20.6.1992 and the appellants came to be appointed from among the said rank list under special recruitment. The appellants thus, in the manner aforesaid, came to be appointed earlier in point of time than the petitioners. For the first time a tentative seniority list of BDOs came to be published on 4.6.1999. The appellants were shown as seniors to the petitioners, thus constraining them to file objections which were still pending when the petition giving rise to the present Writ Appeal was filed. The immediate cause of filing the Original Petition, even though objections against the tentative seniority list were pending, appears to be that the official respondents were contemplating promotion of the BDOs to the next higher rank without first deciding the objections raised by the petitioners.