HARIDAS Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE two writ appeals are by the aggrieved writ petitioners whose writ petitions were dismissed by a learned Judge of this court. The issue raised in the writ petitions was one of inter se seniority as between the appellants in these writ appeals. The appellant in W. A. No. 89 of 1978 was the 1st petitioner in O. P. 5571 of 1976-L and the appellants in the other writ appeal were petitioners 2 to 5 in the said writ petition. The order sought to be quashed are Exts. P-2, P-5, P6. P-8, and P-9. By the last of these orders, their request for seniority over the 2nd Respondent was denied. The writ petitioners 1 to 4 were first advised for appointment by the Kerala Public service Commission on 23rd January 1958 and the 5th petitioner on 24th January 1958. Their services in the Office of the Public Service Commission were terminated and they were later advised to the Secretariat on 28th April 1958. It is admitted that there was an interregnum or break of service between the termination of service in the. Office of the Public Service Commission and the fresh appointment in the Secretariat. The 2nd Respondent was one who was appointed as Stenographer in the Secretariat during this interregnum. The writ petitioners were promoted as Assistants, grade I. When the question of further promotion as Section Officer arose, it was recognised by Ext. P-3 order that stenographers could also be in the field of choice subject to the conditions laid down in the said Government Order. Accordingly the 2nd Respondent was appointed as Section Officer. He had service from 11th February 1958. In view of this greater length of service the 2nd Respondent was given a higher rank over the petitioners who were also selected as Section Officers. The grievance agitated is one of seniority over the 2nd Respondent on the ground that if the same were to count from the date of first effective advice by the Public service Commission, the petitioners were seniors to the 2nd Respondent. Ext. P-8 order found against this contention on the ground that length of service outside the Secretariat cannot avail for purpose of counting seniority in the secretariat Service. This view was sustained by the learned Judge.

(2.) WE think the view taken in Ext. P-8 order and by the learned Judge in the Judgment under appeal is correct. The expression 'member of a service' is defined in S. 2 clause (9) of the Kerala State and Subordinate service Rules. That expression means a person who had been appointed to that service and had not retired, resigned or been removed or dismissed or been substantively transferred or reduced to another service or been discharged otherwise for want of vacancy. The rule of seniority on which the appellant relies is sanctioned by R. 27 (a) That Rule reads: "27. (a) Seniority of a person in a service, class, category or grade shall unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such service, class, category or grade. Explanation. For the purposes of this sub-rule, 'appointment' shall not include appointment under R. 9 or appointment by promotion under R. 31. This amendment shall be deemed to have come into force with effect on and from the 17th December 1958, but shall not affect the seniority of any member of a service settled prior to the date of publication of this amendment in the gazette: Provided that the seniority of persons on mutual or inter-unit or inter-departmental transfer from one unit to another within the same department or from one department to another, as the case may be, on requests from such persons shall be determined with reference to the dates of their joining duty in the new unit or department. In the case of more than one person joining duty in the same grade in the same unit or department on the same date, Seniority shall be determined (a) If the persons who join duty belong to different units or different departments, with reference to their age, the older being considered as senior, and (b) If the persons who join duty belong to the same category of post in the same department, in accordance with their seniority in the unit or department from which they were transferred. Note (i ). This amendment shall be deemed to have come into force with effect from 28th December 1960. (ii) Cases already settled or disposed of prior to the issue of this amendment shall not be reopened. "