ABDUL MAJEED Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS writ Petition presents an acute and acrimonious controversy about the rank and seniority as between the Petitioner and the 2nd Respondent and was argued with a tenacity and vehemence on the side of the party -Respondent,shared also by the Government Pleader,which,even in the midst of our appreciation of the thirst for the hard earned rewards of loyal service,we could not help feeling,were worthy of a better cause.

(2.) THE Petitioner and the 2nd Respondent are allotted personnel from the State of Madras,serving in the Kerala State from and after the reorganisation of States on 1st November 1956.The Petitioner was a Lower Division Clerk in Category IV of the Madras Ministerial Wing in Madras on 20th July 1956.He was promoted as an Upper Division Clerk in Kerala State on 1st January 1958 and as Section Officer or Senior Grade Assistant on 1st July 1968.The promotions were provisional.The minimum qualification for recruitment to Category IV of Lower Division Clerks in the Madras Service was graduation or the possession of a degree qualification,which the Petitioner had.The 2nd Respondent did not have a degree qualification but had only passed the S.S.L.C.He was recruited in Category V of Lower Division Clerks on 29th April 1951;promoted as Upper Division Clerks in the Kerala State on 1st January 1957;and further promoted as Section Officer on 23rd October 1967.In Madras,there was no common seniority as between category IV and category V of the Lower Division.On 2nd January 1958 and 1st April 1958 the Ministerial Wings of the Election and Stores Purchase Department were absorbed into the Administrative Secretariat,and were assigned separate units for the purpose of restoration of rank of those who were superseded for failure to acquire test qualification.A provisional integrated gradation list of the Travancore -Cochin and the allotted personnel from Madras was published on 19th May 1959 inviting objections,and a final list after considering objections was published on 9th November 1965.In both these,the 2nd Respondent was shown as senior to the Petitioner.This was copied or repeated in the seniority list as on 1st January 1968 of Assistants Grade I of the Administrative Secretariat,published after the absorption of the Election and Stores Purchase Departments on 12th March 1968.The Petitioner filed Ext.P -2 representation dated 11th April 1968 questioning the ranks assigned to some of the personnel of the Stores Purchase and Election Departments,and also the rank assigned to the 2nd Respondent over him.The said representation was rejected on 18th September 1968.On 31st October 1968 the Petitioner submitted Ext.P -3 representation for review of the said order.The Petitioner's case was based on two principal grounds,namely(1)that there was no inter -se seniority in the Madras Service as between Category IV and Category V of the Lower Division;and(2)that in Madras,Category IV of the Lower Division had superior claims for promotion over Category V even as against the longer length of continuous service of personnel in the latter category.This was set out succinctly in Ext.P -2 as follows: "Again according to the provisions contained in the Madras Service Manual,Vol.III Lower Division Clerks in the Secretariat are classified into two,viz .,Group II Services and Group III Services.I was appointed in the Madras Secretariat as L.D.C.in the Group II Service which is superior to the Group III Services and the persons appointed under the latter category were appointed only in Central Despatch and Records.In the Gradation list mentioned above I find that Smt.K.Malathi(SI.No.117)who was allotted to Kerala as an officiating L.D.Clerk is given seniority over me.I understand,is against the rules and therefore an injustice done to me.Therefore,I request that the above aspects may kindly be considered the rightful rank due to me may be assigned." The position was restated again in Ext.P -3 as follows: "In this case also the principle of integration of services of Tra -vancore -Cochin and Madras personnel is not questioned.On the other hand it is only a question of fixing the inter -se seniority of L.D.Clerks allotted from the Madras Secretariat.In this connection I may point out that in Madras Secretariat L.D.Clerks of Group III are not posted to regular sections and they are confined to Central Records,Despatch etc .,sections and therefore the principle of functional parity cannot be adduced in support of the assignment of rank above me to Smt.Malathi." While the above representation was pending consideration,a reference made by the Kerala Government,elicited Ext.P -4 reply from the Government of Madras,stating that there were two categories of L.D.Clerks(Categories IV and V)in the Madras Secretariat Service,that for appointment to the former the minimum qualification was possession of a degree,and to the latter,a pass in the S.S.L.C.Examination;and that there was no inter -se seniority as between the two categories of Clerks,as they belonged to different Categories.It was confirmed that the Petitioner belonged to Category IV,and the 2nd Respondent to Category V.There was a further clarification(Ext.P -5 dated 5th October 1970)that the probable dates of promotion of the Petitioner and the 2nd Respondent as temporary U.D.Clerks,had they continued in Madras,would be 7th May 1957 and 10th May 1957.While the wind appeared apparently to be blowing in favour of the Petitioner on these references made to the Madras Government,the 2nd Respondent,anticipating an unfavourable decision from the Government on Ext.P -3 representation,moved O.P.No.2071 of 1971 in this Court to restrain the State from refixing the rank and seniority of the Petitioner or from disturbing the inter -se seniority as between the Petitioner and the 2nd Respondent as settled by the integrated gradation list.We cannot help deploring this type of anticipatory O.P.claiming reliefs against a decision not yet taken or finalised but only imminent.Rather than succumb to the temptation or provocation offered,and disclose its cards,the Government might well have been content to take the stand that no decision had been taken or finalised on Ext.P -3 representation,and that there was no case for any relief or interference at that stage.Instead,we are rather distressed to find that the Government filed a long and argumentative counter -affidavit(running to 14 typed pages)a copy of which has been produced as Ext.P -6,completely supporting the case of the present Petitioner.In paragraph 9 of the same,it was stated that no formal orders had been issued,refixing the rank of the present Petitioner,though,considering the merits of the representation,the Government came to a tentative conclusion that the rank of the present second Respondent had.to be fixed next below to the rank of the present Petitioner.Mark that this was only a 'tentative 'decision.Paragraph 9 of Ext.P -6 proceeded to list in detail the two factors that weighed with the Government in coming to the tentative decision,which were(1)that Category IV was superior to Category(v );and(2)that the proviso to Section 115(7)of the States 'Reorganisation Act would be violated in not according seniority to the present Petitioner.Paragraph 11 noted that the integrated gradation list was published on 26th October 1965 but pointed out that according to the circulars of the Government of India(specifically referred to)the State Government was not barred from considering the representations which contained new points,which in the opinion of the Government were of such a nature that it would be inequitable not to consider it on the ground of limitation of time.The counter affidavit proceeded to state: "The representation from the 2nd Respondent is of such a nature deserving consideration in view of the position stated above.It is submitted that the Government which issued the final integrated list are also competent to correct any genuine omissions brought to their notice regarding ranking and to set right such omissions." It wound up by stating that before passing final orders,the present 2nd Respondent would be given suffieient opportunity to state her case.The Writ Petition was disposed of by a judgment dated 29th May 1973.The learned Judge noted that it was alleged that the present Petitioner's representation was allowed by the State Government and stated as follows: "One of the complaints of the Petitioner against the aforesaid order is that it was passed without giving an opportunity to the Petitioner for being heard.The order is also attacked on the merits on several grounds.The counter -affidavit filed on behalf of the State Government has stated,among other things,that it is prepared to give a reasonable opportunity to the Petitioner for being heard before its order is implemented.In the light of that statement,it is not necessary for me to consider the Petitioner's claim en the merits.I leave it to the Government to consider and dispose of the second Respondent's claim for seniority over the Petitioner and dispose of the same after giving a reasonable opportunity to the Petitioner for being heard.An interim order of injunction restraining the Government from reverting the Petitioner till the disposal of this writ Petition has been passed by this Court on 15th July 1971.The learned Government Pleader appearing on behalf of the Government has conceded that the status -quo may be maintained till the question has been decided by the Government.I order accordingly.This Original Petition is disposed of in the manner stated above.There will be no order as to costs." The 2nd Respondent had played her cards well indeed,and succeeded in getting the Government to drop just the cards that she wanted.

(3.) ONE is left in no doubt that the impugned order and the Government's stand at this stage of the proceedings mark a complete volte -face from the stage of the previous writ Petitions and their previous counter -affidavit(Ext.P -6 ).All the parties now before us,viz .,the Petitioner,the 2nd Respondent and the Government,are bound by the judgment in the prior writ Petition,O.P.No.2071 of 1971.That directed a consideration and disposal of the representation after giving an opportunity to the 2nd Respondent.If there were objections of a preliminary nature such as delay and laches on the part of the present Petitioner,or the concluded finality of an integrated gradation list(which is now pleaded ),or the doctrine of 'sitting back 'for a long spell of time,to be jolted thereafter by the unsetting of the settled decisions,considerations of fairness and rules of pleading required that those should have been urged before the court in that writ Petition to prevent a consideration on the merits of the representation,and its rejection at the threshold.Far from urging any such plea the Government in Ext.P -6 counter -affidavit strongly pleaded that the Petitioner was entitled to file his representation and to have the same considered on the merits despite the integration list having been finalised in 1965.The 2nd Respondent on her part raised no objection on the ground of delay and laches on the part of the Petitioner.In these circumstances,we have no hesitation to hold that neither the 2nd Respondent nor the Government can be heard to plead delay and laches of the Petitioner or the finality and conclusiveness of the integrated gradation list against the consideration on the merits of the Petitioner's representation.We are not impressed by the argument of the Government Pleader that in the objection filed by the 2nd Respondent to the Petitioner's representation,after the disposal of O.P.No.2071 of 1971,she had taken the point of delay and laches and relied on the doctrine of "sitting back " ;,and therefore the Government were obliged to consider these.