M.V. Ramachandran vs State of Kerala

M. Jagannadha Rao, C.J.—The Appellant is the writ Petitioner. He was appointed on a provisional basis as a Junior Engineer under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules in the Public Works Department by an order dated 27th July 1971. When he was working in the post of Junior Engineer, he was advised by the Public Service Commission for the same post and in pursuance to the said advice, the Chief Engineer issued an appointment order dated 12th March 1973 and pursuant to that order the Appellant joined service on 14th June 1973. His ranking is covered by his entry into the service on 14th June 1973. However, the pay and allowances were fixed on the basis that he was having continuous service from 7th August 1971. The Appellant-writ Petitioner now claims that he is entitled to count his regular service from 27th July 1971, the date on which he was provisionally appointed under Rule 9(a)(i) rather than from the date of his regular appointment, i.e., 14th June 1973. It is stated that some representations had been given earlier but they were not in the records. The earliest representation on record is one dated 15th November 1988 (Ext. P-8) seeking seniority from 27th July 1971. That would mean that the Appellant has raised the issue nearly 15 years after he was regularly appointed. Reliance is placed by learned Counsel for the Appellant on Rule 9(e). It is also stated that under Ext. P-11 certain other officers had been given relaxation under Rule 39 of the Rules.

The learned Single Judge dismissed the writ petition on the ground that seniority is governed by Rule 27(a) of the rules and that that Rule does not permit any service rendered under Rule 9(a)(i) to be computed. It is against this judgment that the writ Petitioner has come up in appeal.

Rule 27(a) reads as follows:

Seniority.-(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 inctode appointment under Rule 9 or appointment by promotion under Rule 31.

It is clear from the Explanation that appointment under Rule 9(a)(i) will not confer any right for the purpose of seniority. This is so far as Rule 27 is concerned.

The next contention is based on Rule 9(e) of the rules. The said rule reads as follows:

9(e)-Notwithstanding anything contained in these rules the Government may by order regularise the services of any person appointed directly under Clause (i) of Sub-rule (a), if such person-

(i) has two years continuous service on 22nd December 1973 in one category of post in the same department, or

(ii) is physically handicapped and was in service on any day during the period commencing on and from the 22nd December 1973 and ending with the 1st January 1974, or

(iii) is physically handicapped and has put in a total service of one year or more (including broken periods) during the period commencing on and from the 1st January 1968 and ending with the 31st December 1979, or

(iv) is physically handicapped and was in service on any day during the year 1981.

Reliance is now placed on the above said Rule 9(e) to say that the Appellant-writ Petitioner''s seniority should be counted from 27th July 1971 inasmuch as he was in continuous service for more than two years. In our view, Rule 9(e) is not intended to cover such a situation.

The above said rule came up for consideration before Sivaraman Nair, J. in Sukumaran v. State of Kerala ILR 1987 Ker 263. The learned Judge held:

Ordinarily, a person appointed under Rule 9(a)(i) of the rules would have had no claim for any right for continuance in service or for regularisation in view of the specific provision contained in Clause (iv) of Rule 9(a) of the Kerala State and Subordinate Services Rules. But for Sub-rule (e) so added to Rule 9 of the Kerala State and Subordinate Services Rules, Petitioner would have had no right at all, either to continue in service or to obtain regularisation, notwithstanding the fact that he had overstayed the initial period of appointment. It is obvious that such a person, who obtained the benefit of regularisation by virtue of Sub-rule (e), which was introduced by an amendment with effect from 16th January 1974, cannot obtain seniority over persons who were either regularly appointed through the Public Service Commission prior to that date like the fourth Respondent or persons who were promoted from the last grade service prior there to like the fifth Respondent. Rule 27 of the Kerala State and Subordinate Services Rules provides that 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. The explanation thereto is to the effect, that ''for the purposes of this sub-rule, appointment shall not include appointment under Rule 9 or appointment by promotion under Rule 31''. The amendment incorporating the explanation has retrospective effect from 17th December 1958. Obviously, therefore, Petitioner cannot claim seniority on the basis of his provisional appointment under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules. His service which counts for seniority shall commence only from the date of regular appointment and that is undoubtedly with effect from 22nd December 1973, at the earliest.

The abovesaid decision of Sivaraman Nair, J. was affirmed by a Division Bench of this Court in W.A. 548 of 1986. We are in entire agreement with the view of the learned Judge. For the said reason, we over-rule the judgment of the learned Single Judge in another case, namely, O.P. 509 of 1984 wherein it has been held that seniority under Rule 27 should be counted from the date of appointment under Rule 9(a)(i) because of the provisions under Rule 9(e).

It is then submitted that the Government had issued relaxation as per Ext. P-11 to other officers in the department on the basis of the judgment in O.P. 509 of 1984 and O.P. 6576 of 1984. We may point out that W.A. 80 of 1989 preferred against the judgment in O.P. 509 of 1984 is pending in this Court as the matter has been stayed by the Supreme Court. We may also state that the judgment in O.P. 6576 of 1984 is a judgment following O.P. 509 of 1984 and, in fact, W.A. 629 of 1991 is pending in this Court against the judgment in O.P. 6576 of 1984. Be that as it may, the Government has thought it fit to issue relaxation under Rule 39 of the rules as per Ext. P-11 order dated 4th January 1990 in favour of certain officers which is a special power of relaxation. So far as the representation, Ext. P-8, made by the Writ Petitioner on 15th November 1988 is concerned, it is not an application invoking the powers under Rule 39. We are not, here, concerned with the question whether Rule 39 applies to the case of the writ Petitioner or whether he is entitled to any relief under Rule 39. We are here only concerned with the legal propositions laid down in O.Ps. 509 of 1984 and 6576 of 1984 against which writ appeals are still pending. We have already held that the judgment in O.P. 509 of 1984 is not correct and inasmuch as the judgment in O.P. 6576 of 1984 follows the judgment in O.P. 509 of 1984, the said judgment is also not correct. We approve the decision of Sivaraman Nair, J. in Sukumaran v. State of Kerala ILR 1987 Ker 263, which was, in fact, confirmed in W.A. 548 of 1986.

For the aforesaid reasons, the appeal fails and it is accordingly dismissed.