VARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) THE relevant facts pertaining to all these cases being the same and the relief claimed by the petitioners in all these cases being the same viz. , for quashing Exts. P. 1 and P. 2 in O. P. No. 3363/82 and for consequential reliefs these cases were heard together and are being disposed of by this common judgment. For the sake of convenience we shall advert to the ranks and exhibits as in O. P. No. 3363/82.

(2.) THE petitioners in all these cases commenced their career as Lower Division Clerks under the respective Municipalities. In due course the petitioners were promoted to the next higher cadre of Upper Division Clerks, they having earned eligibility by passing the prescribed test. Respondents Nos. 3 and 4, viz. , B. Amminikutty Amma and R. Bhaskaran Nair though seniors to the petitioners in the cadre of Lower Division Clerks were not considered for promotion to the cadre of Upper Division Clerks when the petitioners were promoted, for the reason that they had not earned eligibility by passing the prescribed test. Respondents Nos. 3 and 4 passed the prescribed test after the petitioners came to be promoted to the cadre of Upper Division Clerks on 23rd July 1971 and 1st April 1974 respectively. Petitioners 1 and 2 had earned further promotion to the cadre of Junior Superintendents. On the representation made by respondents 3 and 4 the State Government made an order as per Ext. P 2 dated 18th August 1980 under Rule 39 of the K. S. and S. S. R. to the effect that they shall be entitled to the benefit of restoration of seniority. The principle incorporated in G. O. No. R. Dis. 8207/50/cs dated the 7th of May, 1951 has subsequently been clarified. The said G. O. entitles the seniors to get restoration of their seniority over their juniors who had been promoted earlier, they having passed the requisite qualifying test earlier than the seniors, on the seniors subsequently passing the test and getting promoted, provided in the meanwhile the juniors were not confirmed in the promoted cadre or were not further promoted to a higher cadre. Having regard to the order made by the State Government as per Ext. P 2, an order was made as per Ext. P 1 dated 7th of April, 1982 reverting petitioners 1 and 2 from the cadre of Junior Superintendents and promoting respondents 3 and 4. This was obviously done on the strength of Ext. P 2, giving them the benefit of restoration of seniority. If the benefit of restoration of seniority based on the Government Order dated the 7th of May, 1951 was not available for respondents 3 and 4, the promotion of petitioners 1 and 2 could not have been disturbed and respondents 3 and 4 could not have earned promotion over those who had earned promotion to the cadre of Upper Division Clerks earlier than them. It is in this background that the petitioners have challenged Exts. P 1 and P 2 and have prayed for consequential relief's.

(3.) WE are concerned in these cases with the employees governed by the provisions of the Kerala Municipal Corporation Act, 1961. Section 90 of the said Act provides for constitution of a common municipal service. In exercise of the power conferred by the said provision, a common municipal service was constituted with effect from 1st November 1967 on which date the Kerala Municipal Common Services Rules, 1967 were brought into force. Rule 3 of the said Rules provides that on and with effect from the first of November, 1967 the employees of the municipal councils and Corporations holding the posts specified by the Government, by order in this behalf shall be constituted into a common service for the State. The said provision further empowers the preparation of a combined gradation list of all the employees that come under the common service. Rule 14 of the said rules provides for applying the provisions of the Kerala State and Subordinate Services Rules to the employees of the municipal common service and reads as follows: