K.T. Krishnan vs State of Kerala and Others

Bhaskaran, J.—The Petitioner in O.P. No. 1710 of 1979-C, who was till then Assistant Grade I in the Public Works (Transport A) Department of the Government Secretariat, Trivandrum, was appointed as per Ext. P-1 G.O. (Ms.) No. 6760/LA. 12/72, dated 2nd May 1974 to the post of Section Officer, Secretariat of Kerala Legislature, created by G.O. (Ms:) No. 6760/LA. 12/72, dated 2nd December 1972, the effective date of advice by the Kerala Public Service Commission in respect of him being 1st April 1974. He joined duty in the Kerala Legislative Secretariat on 6th May 1974, and on his having completed satisfactorily the period of training in the post oh 5th November 1974, he was posted to be Section Officer on probation with effect from 6th November 1974. Consequent to this posting, the additional 6th Respondent, who was acting in the post of Section Officer created as per G.O. (Ms.) No. 6760/LA. 12/72, dated 2nd December 1972, was shifted to another post, and the 4th Respondent, an acting Section Officer, was reverted to be acting Senior Grade Assistant. Ext. P-2 is the Government Order, dated 6th November 1974 posting the Petitioner to be Section Officer on probation.

The 4th Respondent who was promoted to be acting Section Officer on 11th March 1974 was regularly appointed to the post of Section Officer on 25th November 1974; the 5th Respondent was promoted as acting Section Officer on 27th March 1974, and was regularly appointed as Section Officer on 11th August 1975; under Ext. P-5 the additional 6th Respondent was promoted as acting Section Officer on 31st March 1973, and he was regularly appointed as a Section Officer on 25th November 1974; and the additional 7th Respondent was appointed under Ext. P-7 on 24th November 1974 as an acting Section Officer, and he was regularly appointed as a Section Officer on 11th August 1975. The Petitioner, having come to know that in the civil list as on 1st January 1976 Respondents 4 and 5 respectively were shown as serial Nos. 19 and 20 in the category of Section Officer, and the Petitioner''s name was shown as Serial No. 21, the dates of appointment given being 25th November 1974, 11th August 1974 and 6th May 1974 respectively; and having noticed that not only on the very basis of the dates of appointment given in the civil list itself the Petitioner was entitled to be assigned rank and seniority over Respondents 4 and 5, but also that by virtue of the provisions contained in Rule 27(c) of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as the General Rules) his date of appointment ought to have been treated as 1st April 1974, that being the effective date of advice by the Public Service Commission in respect of him, filed this writ petition with a prayer for the issue of a writ of mandamus commanding Respondents 1 to 3 to prepare a seniority and rank list of Section Officers of the Kerala Legislature Secretariat and to fix seniority and rank of the Petitioner over Respondents 4 and 5. Later, additional Respondents 6 and 7 were impleaded, and the writ petition was amended incorporating an additional prayer for quashing the entries in the civil list so far as the Petitioner and Respondents 4 to 7 are concerned and arranging them in such a way that the Petitioner is listed as senior to Respondents 4 to 7, for issuing a writ of mandamus commanding Respondents 1 to 3 to prepare a list of seniority of Section Officers of the Kerala Legislature Secretariat and fix the seniority and rank of the Petitioner above Respondents 4 to 7, for giving the Petitioner retrospective promotion to the position of Under Secretary and for granting also other consequential reliefs arising therefrom. The learned Single Judge by the Judgment, dated 26th June 1981 dismissed the writ petition holding that the Petitioner did not succeed in establishing that the Respondents were promoted temporarily only, and that their promotions were not on a regular basis. It is aggrieved by this decision of the learned Single Judge that this writ appeal has been preferred by the Petitioner in the writ petition.

There is no dispute that among Respondents 4 to 7 the 6th Respondent was the first to be promoted to be acting Section Officer, his date of promotion to the acting post in Ext. P-5 being 31st March 1973. whereas the date of promotion to be acting Section Officer in respect of Respondents 4, 5 and 7 respectively being 11th March 1974, 27th March 1974 and 24th January 1974. There could, therefore, be no doubt that if the 6th Respondent is not entitled to seniority or rank above the Petitioner, Respondents 4, 5 and 7 would not be entitled to claim to be seniors to the Petitioner in the post of Section Officer.

Let us now examine the nature of the claim of the 6th Respondent for being treated as senior to the Petitioner. Ext. P-5 gives an idea as to the circumstances which led to his promotion to be Section Officer with effect from 31st March 1973. For the sake of precision and easy reference, the material portion of that order is extracted below:

Read. - G.O. (Ms.) No. 6760/L.A. 12/72, dated 2nd December 1972.

ORDER

In the G.O. read above certain posts including one post of Section Officer on Rs. 310-600 were created in the Secretariat of the Kerala Legislature to organise a Section for the Committee of the Welfare of the Scheduled Castes and Scheduled Tribes. It was decided to fill the post of Section Officer by recruiting a Scheduled Castes Scheduled Tribe candidate through the Public Service Commission in pursuance of G.O. (P) 263/70/PD, dated 6th August 1970. The vacancy was therefore reported to the Public Service Commission.

The Committee on the Welfare of Scheduled Castes and Scheduled Tribes has started functioning. Hence the post of Section Officer mentioned above is to be filled up at once in order to organise the Section. The Publice Service Commission has not advised the candidate for appointment in the post. Hence Sri K. Sadanandan, acting Senior Grade Assistant who is now officiating as Section Officer in the leave vacancy of Smt. Josephine George ]vide G.O. (Ms.) No. 1312/LA. 12/73, dated 14th March, 1973[ is allowed to continue in the post of Section Officer with effect from 31st March 1973 A.N. till a Scheduled Caste/Scheduled Tribe candidate nominated by the Public Service Commission joins duty.

It is clear from what is stated in Ext. P-5 that at the time when the 6th Respondent was promoted or appointed as officiating Section Officer in the leave vacancy of Smt. Josephine George, as on 14th March 1973, he was only an acting Senior Grade Assistant and that he was allowed to continue in the post of Section Officer with effect from 31st March 1973 till a Scheduled Caste/Scheduled Tribe candidate nominated by the Public Service Commission joined duty, the post of Section Officer, which he was allowed to hold being one which was to be filled by recruiting a Scheduled Caste/Scheduled Tribe candidate through the Public Service Commission in pursuance of G.O. (P) No. 263/70/PD, dated 6th August 1970; and the vacancy had already been reported to the Public Service Commission. The question is whether these appointments or promotions for officiating or acting as Section Officer would confer any title on the 6th Respondent for appointment regularly. As held by the Supreme Court in The Director of Panchayat Raj and Another Vs. Babu Singh Gaur, followed in State of U.P. v. Nand Kishore AIR 1977 S.C. 1267.

A temporary Government servant does not become a permanent Government servant unless he gets that capacity either under some rule or he is declared or appointed by the Government as a permanent Government servant. Our attention has not been invited to any rule under which Respondents in these appeals can be considered as having been appointed either permanently or in a substantive capacity to permanent posts. All along they continued to be temporary Government servants whether the pots held by them were temporary posts or permanent posts.

The post held by the Petitioner being one reserved to be filled up by recruitment of a Scheduled Caste/Scheduled Tribe candidate selected by the Public Service Commission, the appointment or promotion of the 6th Respondent to act as a Section Officer could have been made only either under the provisions of Rule 9(a)(i) or Rule 31(a)(i) of the General Rules. Whether it was under Rule 9(a)(i) of Rule 31(a)(i) of the General Rules that the 6th Respondent was promoted or appointed to be acting Section Officer, it was only a temporary appointment or promotion which did not confer any title in terms of the provisos of those rules.

Clause (iv) of Rule 9(a) provides:

A person appointed under clause (i) or (ii) shall not be regarded as a probationer in such service, class or category or be entitled by reason only of such appointment to any preferential claim to future appointment to such service, class or category.

Sub-rule (d) of Rule 31 also contains a similar provision; it reads:

A person promoted under Sub-rule (a) or (b) shall not be regarded as a probationer in the higher category or be entitled by reason only of such promotion to any preferential claim to future promotion to such higher category.

Rule 27(c) of the General Rules provides:

Notwithstanding anything contained in Clauses (a) and (b) above, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade....

Respondents 4 to 7 not having been able to establish that they were substantially appointed to a substantive post of Section Officer ever before 1st April 1974, the effective date of advice by the Public Service Commission in respect of the Petitioner in regard to his appointment to the post of Section Officer, in the light of the provisions of the General Rules referred to above, their contention which found favour with the learned Single Judge that they were entitled to seniority and rank over the Petitioner in the category of Section Officer cannot be up held.

We are of the opinion that in the light of these factual and legal positions, the learned Single Judge was not justified in dismissing the writ petition holding in paragraphs 10 and 14 of the judgment under appeal that Respondents 6 and 7 were acting as Section Officers when the Petitioner was advised for appointment, and, therefore, their seniority is to be reckoned from the date of the order of their appointment, and that the Petitioner had not succeeded in establishing that the Respondents were promoted temporarily only.

This view expressed by is strengthened by the decision of the Supreme Court in N. Nagarajan v. State of Karnataka AIR 1979 S.C. 1476. In paragraph 5 of the Judgment at page 1680 the Supreme Court has observed as follows:

The first order appointing promotees as Assistant Engineers is dated the 15th of November 1958 (Ext. A). That order made it clear that all the promotees covered by it were appointed officiating Assistant Engineers and were to hold office until further orders. The promotion was also made subject to review after the finalisation of the interstate seniority list of Supervisors and the Recruitment Rules. The notification went on to state that in the case of 94 of the officers promoted Under it, their appoinment as Assistant Engineers was being made on purely temporary basis inasmuch as they would have to vacate the posts against which they were being fitted as soon as candidates were available through a process of direct recruitment. The language employed leaves no doubt that the promotion of the 167 officers was not substantively made, the tenure being specifically stated to be either ''officiating'' or �purely temporary'' which expression clearly militate against a substantive appointment.

The counsel for Respondents 4 to 7 relied on the decision of the Full Bench of this Court in Raghavan Nair v. State Insurance Officer 1971 KLT 583 F.B. in support of his contention that Respondents 4 to 7 having been temporarily appointed prior to the Petitioner was advised by the Public Service Commission on 1st April 1974, they are entitled to have seniority and rank above the Petitioner. We are afraid no such proposition has been laid down in that decision. The question referred to the Full Bench in that case was " whether a person whose seniority in a lower grade has been wrongly fixed with the result that another who is really his junior is promoted over him to a higher grade (the promotion being on the basis of seniority only) and who has not questioned the promotion can, on the seniority in the lower grade being corrected, claim the promotion which has already gone to his junior". From paragraph 10 of the Judgment it could be seen that the writ petition was dismissed for the reason that the seniority among the contesting parties was fixed in terms of Rule 27(a) of the general Rules and that was not also questioned by the Petitioner in the writ petition at any earlier stage. That decision, in our opinion, has nothing in common with the facts of the present case.

In regard to the appointment to the post of Under Secretary, it being a selection post, we do not want to pronounce anything on the claim put forward by the Petitioner in the writ petition. We only declare that the Petitioner is senior to Respondents 4 to 7 in the cadre of Section Officer.

In the result, the writ appeal is allowed setting aside the judgment under appeal, and declaring that the Appellant-Petitioner is senior to Respondents 4 to 7 in the cadre of Section Officer in the Kerala Legislature Secretariat. There will be no order as to costs in the circumstances of the case.