N. SUKUMARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) A very short and interesting question arises for consideration in this Original Petition, in spite of the bulk of the pleadings. The question is whether the petitioner, who was provisionally appointed as Village Assistant on 20th January 1971 and whose service was regularised with effect from 23rd December 1973, is entitled to count the period between those two dates for purposes of seniority and consequently for promotion to the higher category. Another question, which incidentally arises, is as to whether a rank wrongly assigned to a Government employee is liable to be altered with notice to him when the error is realised by the competent authorities. The answer to both the questions must be against the petitioner in accordance with law as it stands at present.

(2.) Petitioner was appointed as Village Assistant by Ext. P1 order dated 20th January 1971. The order itself stated that the appointment was purely provisional and would not confer on the appointee any preferential claim for regular appointment in Government service. He was also cautioned that the appointment would be terminated without notice when the vacancy ceased to exist or at the end of three months when candidates of the KPSC join duty, whichever was earlier. However, his service was not terminated. He continued in service like many other provisional appointees; but, his service was not regularised. Regularisation came only under Ext. P3 order dated 7th February 1974. That was consequent upon GO (Ms.) No. 121/74/RD, dated 16th January 1974 to the effect that Village Assistants who had two years of service or more on the date of GO (P) No. 321/73/PD (Service-D), dated 22nd December 1973 and who were fully qualified would be absorbed into regular service. Since the petitioner had such service on 22nd December 1973, he was absorbed into regular service with immediate effect. He was required to be on probation for a period of two years on duty within a continuous period of three years from the date of the order. However, in Ext. P2 order of the District Collector, Quilon, publishing a tentative seniority list of Village Assistants as on 1st October 1977, petitioner was assigned rank No. 331, with the date of commencement of service as Village Assistant as 21st July 1971. That was preceded by Ext. P3 proceedings of the District Collector dated 7th February 1974. That list was not finalised immediately. In the meantime, Pathanamthitta District was formed with effect from 1st November 1982. Tentative seniority list of Village Assistants of Pathanamthitta District as on 1st July 1983 was published along with Ext. P4 inviting objections. In Ext. P4(a), extract of the seniority list, petitioner was ranked as No. 21 with date of commencement of services as 21st January 1971, whereas the additional fifth respondent was ranked as No. 22 with date of commencement of service as 5th February 1971. He was a promotee from last grade service. His service in the feeder category commenced on 7th March 1963. The name of the fourth respondent, who was a Village Assistant formerly and was enlisted in the Army thereafter, was not included in Ext. P4(a) list. The fourth respondent was, however, promoted by Ext. P5 order dated 14th October 1985. Cancellation of the promotion of the fourth respondent was sought in Exts. P6 and P7 representations. It was at that stage that this Original Petition was filed seeking the issue of a writ of certiorari to quash Ext. P5 order dated 14th October 1985 promoting the fourth respondent as Village Officer. The Original Petition was amended subsequently to incorporate additional documents and additional reliefs. Ext. P8 notice dated 21st October 1985 was issued by the District Collector, Quilon informing him that the date of his regularisation in service as Village Assistant was proposed to be altered from 21st January 1971 to 22nd December 1973. He was required to submit his objections within 15 days thereafter. Petitioner submitted his objections on 14th November 1985. In CMP No. 31939 of 1985, this court passed an order on 20th November 1985 to the effect that further promotions to the rank of Village Officers would be made only in accordance with Ext. P4(a) list. Objections to the tentative list of Village Assistants of Pathanamthitta District published in Ext. P4 and P4(a) were disposed of in Ext. P12 order dated 11th October 1985 of the District Collector, Pathanamthitta. It was specifically stated in that order that-

(3.) In Ext. R1(a) order GO (P) 462/Public (SS) Department, dated 25th October, 1963 Government stated that the candidates who were selected on the result of competitive examinations and who had taken up military service during the then existing emergency before joining their appointment would be appointed to the civil posts to which they would have been appointed had they not proceeded on military service. It was also provided that their seniority would be determined in the order of their original selection appointment to the posts/services concerned. The fourth respondent, Gopinayakam, had already been selected for appointment under Ext. R1(c) as Village Assistant by the Public Service Commission and was advised for appointment on 17th April 1964. He did not join the service pursuant thereto, since he was called to Army Service in the emergency. He rejoined the post of Village Assistant in Pathanamthitta District pursuant to Government letter No. 77859/D2/83/RD, dated 21st May 1984 and proceedings of the District Collector, Pathanamthitta, No. E2-5327/83, dated 12th June 1984. His name was not naturally included in Ext. P4(a) list because he was not in service on 1st July 1983. But, in Ext. P12(a) list, his name had to be included as No. 1 since all the Village Assistants in Pathanamthitta District were juniors to him with reference to the date of first effective advice for appointment. Persons who were included as item Nos. 1 to 20 in Ext. P4 (a) list had been promoted as Village Officers by 10th October 1985. Soon after the publication of Ext. P12(a) list on 11th October 1985, the fourth respondent was promoted as Village Officer, since he had acquired all the necessary qualifications for such promotion, in the meantime. Some of the Village Assistants had objected to the date 21st January 1971 assigned to the petitioner in the seniority list of both Quilon District and Pathanamthitta District. The District Collector, Pathanamthitta in his letter, dated 10th October 1985, took up the matter with the District Collector, Quilon. In his reply A7-73666/85, dated 21st October 1985, the District Collector, Quilon intimated the District Collector, Pathanamthitta that seniority of the petitioner could be assigned only with effect from the date of regularisation as per GO(P) 324/73/ RD, dated 22nd December 1973 and GO(Ms.) 121/74/RD, dated 16th January 1974. The position was later clarified in Ext. R1(b), GO (Ms) No. 321/74/RD, dated 15th March 1974. It was in pursuance of this that Ext. P8 notice was issued to the petitioner on 21st October 1985 on behalf of the District Collector, Quilon. It was also in pursuance thereof that the District Collector finalised the provisional gradation list of Village Assistants of Quilon District in his proceedings, dated 10th July 1986 after due consideration of Ext. P-14 reply given by the petitioner in answer to Ext. P8 notice. The first respondent submits that the date 21st January 1971 was erroneously mentioned in the District gradation lists Exts. P2(a), P4(a) and P12(a) and correction thereof which was effected after due notice to the petitioner by the District Collector, Quilon is not liable to be challenged by the petitioner. As far as the fifth respondent is concerned, the first respondent maintains that he was promoted on 13th November 1985, a week prior to the order of this court in CMP No. 31939 of 1985, and on the basis of the intimation of the District Collector, Quilon, dated 21st October 1985, the date of commencement of regular service and the consequent rank assigned to the petitioner were erroneous.