Latheefa Beevi vs State of Kerala and Others

M.P. Menon, J.—The Petitioner was advised for appointment as Typist Grade II in the Administrative Secretariat of the State Government, as per Memorandum, dated 18th November 1974 of the Public Service Commission. And in pursuance of the advice, the competent authority appointed her to the post by order, dated 25th November 1974 and she joined duty on 2nd December 1974.

Respondent No. 2 was advised for appointment as Typist Grade II in the Law Department of the Secretariat, by memo, dated 3rd October 1974. But no order appointing him to the post was issued as no vacancy was then available. The P.S.C. therefore advised him again for appointment, to the Administrative Secretariat, on 26th November 1974. The advice was followed with an appointment order this time, and he joined duty in the Administrative Secretariat.

Respondents 3 to 5 were advised for appointment as Typist Grade II in the Finance Department of the Secretariat, on 14th October 1974. They too however could not join duty as there were no vacancies. The Commission then re-advised them for vacancies in the Administrative Secretariat, on 26th November 1974; and consequent to this advice, appointment orders were issued, and the candidates duly joined duty.

It is said that for purposes of appointment, promotion etc. the Law Department and Finance Department of the Secretariat are separate units, and the Administrative Secretariat is different from the two, under the Special Rules.

The Petitioner was appointed, as has been seen, in pursuance of the first advice, dated 18th November 1974. In the case of Respondents (2) to (5) the first advice made in October, 1974 did not take effect; they were appointed and could join duty only in pursuance of the second advice made on 26th November 1974. Treating the above date as "the date of first effective advice" for them, within the meaning of Rule 27(c) of the K.S. and S.S.R. the Petitioner was considered as senior to the Respondents in Grade II; and consequently, she was promoted to Grade I in July, 1978 while the Respondents were promoted only later. As per Ext. P-3 seniority list as on 1st January 1981 the Petitioner was senior to Respondents (2) to (5) among Typists Grade I also.

It appears that the 2nd Respondent represented to Government on 18th October 1978 that by reason of his first advice, dated 3rd October 1974 to the Law Department, he was entitled to have that date taken as the date of "first effective advice", under Rule 27(c). The Government was prima facie in favour of this request, and Ext. P-1 notice was therefore issued to the Petitioner. She objected as per Ext. P-2, and it is stated that the objection was overruled, in consultation with the P.S.C., on 8th February 1982, though the Petitioner has a case that the Government decision was not communicated to her and she was throughout not aware of the concerned order. Naturally, Respondents (3) to (5) also claimed similar treatment, by representation, dated 16th February 1982, and the Government obliged them also, as per Ext. P-7, dated 7th September 1983. The result was that the Petitioner who was all the while being considered as senior suddenly found herself being treated as junior, to Respondents (2) to (5).

In this writ petition which is directed against the orders, dated 8th February 1982 and 7th September 1983, Mr. Sugathan for the Petitioner raises three grounds:

(i) it is erroneous to equate the first advice given in favour of Respondents (2) to (5) in October, 1974 with the "effective advice" which was made in their case only on 26th November 1974;

(ii) even assuming that a "first advice" which does not become effective can be considered as effective for the purposes of Rule 27(c), the ranking which had become settled from 1974 onwards could not have been disturbed in 1982 and 1983; and

(iii) the first advice (in October 1974) of Respondents (2) to (5) was into the Law and Finance Departments of the Secretariat, unit, different from the Administrative Secretariat. If Respondents (2) to (5) were desirous of claiming seniority from October, they should have waited for further vacancies to arise in those Departments, instead of accepting appointments in another unit or department.

This last contention, it is claimed, is supported by Haridas v. State of Kerala 1980 KLT 920 and Sukumaran Nair v. State 1987 (1) KLT 445.

In my opinion, it is necessary to examine the first contention alone for the purposes of this case. Rule 27(c) which governs fixation of inter se seniority in respect of those appointed on the advice of the P.S.C. is in the following terms, in so far as its provisions are relevant for the present:

(c) 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 and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list.

Evidently, "advice" used in the first part of the sub-rule cannot be the same thing as "first effective advice" in the latter part; and "first advice" cannot also always be the same as "first effective advice". The difference in language suggests, without anything more, that seniority is to be reckoned not from the date of first advice, but from the date of the advice which becomes "effective". What Rule 27(c) provides for is a standard for fixing seniority in a class, category or grade in a service, and a person does not become part of any such class, category or grade in a service merely because he is advised; he can become a part of the service or establishment only when he is appointed by the competent authority and he joins duty. Again, the sub-rule speaks of the seniority of a person appointed to a service; and as per the definition in Rule 2(1), appointment can commence only from the time the person starts discharging duties of the concerned post. The P.S.C. may advice a candidate, but by the time the advice is received, the candidate might have lost interest in the particular employment, and might decline to enter the service. In some cases, the vacancy might have come to an end by the time the advice is received; and in such a case no appointment order would be issued. Even in a case where such an order is issued, the candidate may fail to join duty for personal reasons. In all such cases, the legal position will be that he is not appointed to a class, category or grade in a service, and therefore his case will not be governed by Rule 27(c). In other words, the term "effective advice" in the sub-rule has to be construed as an advice which results in the person commencing discharge of the duties attached to the post: there is no effective advice unless the candidate joins duty and becomes a "member of the service" as defined in Rule 2(9).

Even otherwise, the P.S.C. is only a body to be consulted before a person is appointed to the public services, under Article 320 of the Constitution. The appointment itself is not the function of the Commission. That has to be done by the Government or its nominee. And till that is done, no one can be treated as a Government servant with claims concerning seniority in Government service.

It seems to me that the Note to Rule 27 clinches the issue; it reads:

The date of effective advice in this rule means the date of the letter of the Commission on the basis of which the candidate was appointed.

An advice of the Commission, which is not followed by an appointment on its basis, is thus not effective advice for the purposes of Rule 27(c).

An attempt was made by counsel for the Respondents to suggest that in view of the closing part of Rule 27(c) which deals with cases of two or more persons advised under the same list, their clients can claim seniority over the Petitioner. It is said that the Petitioner and the Respondents were included in the same list drawn up by the Commission. This is to confuse the ranked list of the P.S.C. with its advice lists. The expression "same list of candidates advised" in the context in which it appears can only refer to instances where two or more persons are advised for appointment simultaneously by a single advice memo, as in the case of Respondents 2 to 5 governed by the P.S.C. letter No. RIA (2) 12344/73/GW, dated 26th November 1974, referred to in Ext. R-1 (a) and Ext. P-7.

The counter-affidavit of the State Government proceeds on the basis that the first advice, even if no appointment is made on its basis, can be treated as effective advice. It also equates the ranked list drawn up by the P.S.C. to the advice lists emanating from it from time to time, depending upon requisitions received by it. I am unable to agree with such an approach, for reasons explained earlier.

I therefore allow the O.P., and set aside Ext. R-1 (a) and Ext. P-7. There will however be no order as to costs.