(2012) 254 KLR 869 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN THURSDAY, THE 7TH DAY OF JUNE 2012/17TH JYAISHTA 1934 WP(C).No. 4550 of 2008 (N) -------------------------- PETITIONER(S): ------------- DEEPA.N.G. SELECTION GRADE ASSISTANT (UNDER ORDERS OF REVERSION AS SENIOR GRADE ASSISTANT) LEGISLATURE SECREATARIAT THIRUVANANTHAPURAM. BY ADVS.SRI.K.L.JOSEPH SMT.P.SAREENA GEORGE RESPONDENT(S): -------------- 1. THE SECRETARY, SECRETARIAT OF THE KERALA LEGISLATURE THIRUVANANTHAPURAM -33 2. THE DISTRICT COLLECTOR,COLLECTORATE THIRUVANANTHAPURAM. 3. BINDU.S. SENIOR GRADE ASSISTANT, LEGISLATURE SECRETARIAT THIRUVANANTHAPURAM. 4. CHITHRA K.I. SENIOR GRADE ASSISTANT LEGISLATURE SECRETARIAT THIRUVANANTHAPURAM. ADDL.R5. T.P.ABDUL MAJEED, S/O.T.P.KUNHIMOIDEENKUTTY, THARAMMAL PUTHENPEEDIKAKKAL, KUNNAMBETTA P.O. CHUNDAYIL VIA, WAYANAD 673 123, IMPLEADED AS PER ORDER IN NO.6357/08 DATED 1.7.2008. R1 BY GOVERNMENT PLEADER SRI.T.R.RAJESH R3 BY ADV. SRI.JOSHY THOMAS R4 BY ADV. SRI.MILLU DANDAPANI ADDL.R5 BY ADVS.SRI.K.JAJU BABU SRI.T.S.SHYAM PRASANTH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX -------- PETITIONER'S EXHIBITS ---------------------
RESPONDENT'S EXHBITS ---------------------
/ TRUE COPY / P.A. TO JUDGE VK S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 4550 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 7th day of June, 2012. Head Note:- Kerala State and Subordinate Service Rules, 1958 - Rule 27 - When there are specific Rules regarding seniority, there cannot be a clause in the appointment order contrary to the Rules. Kerala State and Subordinate Service Rules, 1958 - Rule 27B - Alternate remedy is not an absolute bar for maintaining a writ petition. J U D G M E N T The petitioner is an Assistant Grade II in the Kerala Legislature Secretariat. She got appointment as such, under the compassionate employment scheme of the Government, a copy of which is produced as Ext.P1 in this writ petition. She was appointed under the compassionate employment scheme by Ext.P3 order dated 28.3.2001, pursuant to an application dated 5.11.1999. Pursuant to the said appointment, the petitioner joined duty on 5.4.2001. The 3rd respondent was another person who was appointed as Assistant Grade II under the Compassionate employment scheme. She submitted her application on 4.5.1999. She was appointed on 26.9.2001 and she joined duty on 3.10.2001. In between the joining of the petitioner and the 3rd respondent, respondents 6 to 20 were appointed through Public Service Commission as per advice dated 3.8.2001. The petitioner's appointment was regularised with effect from 5.4.2001 and that of the 3rd respondent was regularised with effect from 3.10.2001. Now, a dispute has arisen, as to as between the petitioner and the 3rd respondent, who is senior in service in the cadre of Assistant Grade II. As a necessary consequence, insofar as respondents 6 to 20 come in between the petitioner and the 3rd respondent, they also have a claim for seniority over the petitioner, if the 3rd respondent is given seniority over the petitioner. Taking into account the fact that the 3rd respondent submitted a valid application for compassionate employment on 4.5.1999 earlier than the petitioner who submitted a valid application on 5.11.1999 now in Ext.P14(a) seniority list, respondents 3 and 6 to 20 have been placed above the petitioner. The 5th respondent, who is a confidential assistant, has also got himself impleaded in this writ petition, insofar as if the petitioner is put below the 3rd respondent in seniority, he also would be benefitted in the matter of promotion to a higher post to which both posts are feeder categories. The petitioner seeks the following reliefs: "i. To issue a writ of certiorari or any other writ or order quashing Ext.P13 & P14(a) and declaring that the petitioner's service from the date of appointment or date of actual discharge of duty for 1st time shall be the criteria for fixing her seniority. ii. Issue a writ of mandamus or any other writ or order to the 1st respondent staying the operation of Ext.P14(a) list and P13 order of reversion of the petitioner and maintain status quo as Selection Grade Assistant. iii. To issue a writ of mandamus or any other writ or order to 1st respondent not to order promotion to the 4th respondent and others by following Ext.P14(a) list and follow P11(a) till the disposal of this W.P(C)." 2. The petitioner contends that the service conditions of gazetted and non-gazetted officers of the Legislature Secretariat of the Government of Kerala is governed by the Kerala Legislature Secretariat (Recruitment and Conditions of Service) Rules, 1979, a copy of which is produced as Ext.P15. Rule 8 of the same reads thus: "Conditions of service: Unless the Speaker otherwise directs conditions of service of the gazetted officers and non-gazetted officers of the Legislature Secretariat shall, in regard to matters not provided for in these rules, be such as are applicable to the gazetted officers and non-gazetted officers of corresponding rank of the State Administrative Secretariat, and if there are no officers of corresponding rank in the State Administrative Secretariat, shall be such as may be determined by the Speaker." The petitioner contends that insofar as the gazetted and non-gazetted officers of the State Administrative Secretariat are governed by the Kerala State and Subordinate Service Rules in respect of their conditions of service, automatically by virtue of Rule 8thereof, the Kerala State and Subordinate Service Rules (K.S & S.S.R) would become applicable subject to the other provisions contained in Ext.P15 Rules. That being so, the Speaker of the Legislative Assembly does not have any powers to order seniority of staff of the Legislature Secretariat contrary to K.S & S.S.R. The petitioner points out that Rule 27 of KS and SSR specifically provides the rule for determination of seniority of Government employees, which is applicable to gazetted and non-gazetted officers of Legislature Secretariat as well. Going by the same, the date of application for appointment is irrelevant. What is relevant is only the date of the order of his first appointment to a service, class, category or grade. Of course, for Public Service Commission recruits what is relevant is the date of effective advice as provided in Rule 27 itself. Applying the said Rule, as between the petitioner on the one hand and respondents 3 and 6 to 20 on the other, the relevant date for determining seniority is 5.4.2001 (when the petitioner jointed duty), 3.8.2001 (when respondents 6 to 20 were advised by the Public Service Commission ) and 3.10.2001 (when the 3rd respondent joined duty). The petitioner further points out that as per Ext.P16 Government Order, as far as the appointees under the compassionate employment scheme are concerned, seniority of the candidate has to be reckoned with effect from the date of the order of the appointing authority. Despite the same, by Ext.P13 order, as per the direction of the Speaker, the 3rd respondent was directed to be given seniority over the petitioner, merely on the basis of date of valid application submitted by the petitioner and the 3rd respondent, which is patently illegal and unsustainable insofar as the Rules do not provide for such determination of seniority. 3. The 1st respondent has filed a counter affidavit supporting the impugned orders. Although the 3rd respondent has entered appearance through counsel, she has not chosen to file any counter affidavit. Respondents 6 to 20 also have not filed any counter affidavit, but counsel appearing for respondents 6 to 20 vehementally argues in support of the seniority of the 3rd respondent over the petitioner, since if the 3rd respondent gets seniority over the petitioner, respondents 6 to 20 being senior to the 3rd respondent also will have to be treated as senior to the petitioner. Respondents 6 to 20 points out that in Ext.P3 appointment order of the petitioner, it has been specifically stipulated thus: "The appointment is purely on provisional basis which will be regularised subject to Rule 3(c) of the General Rules of the Kerala State and Subordinate Service Rules 1958, if your character and antecedents are found satisfactory and subject to the right of Smt. S. Bindu, W/o. late Shri K.P. Rajendran Nair, Typist, Legislature Secretariat to appoint her as Assistant Grade II, senior to Smt. N.G. Deepa under the scheme." According to the learned counsel, in view of that provision in the appointment order itself, the petitioner cannot be heard to contend that she should be treated as senior to the 3rd respondent. Counsel also raises two other contentions. First is that the petitioner got appointment under the compassionate employment scheme beyond the limitation period prescribed in the scheme. Second is that against Ext.P14(a) seniority list, the petitioner has an alternate remedy by way of appealing against, under Rule 27B of KS and SSR itself. Without exhausting that remedy, the petitioner's writ petition cannot be entertained, is the contention. 4. I have considered the rival contentions in detail. 5. At no point of time, the 3rd respondent chose to challenge the appointment of the petitioner earlier to the 3rd respondent. When the 3rd respondent entered service, the petitioner was already working there. Therefore, the 3rd respondent knew very well that the petitioner was appointed earlier to the 3rd respondent. But she did not choose to challenge the appointment of the petitioner, which was earlier to the 3rd respondent, on the ground that the 3rd respondent applied for compassionate employment earlier to the petitioner. 6. Compassionate employment is not a right. It is a mere concession. The very concession itself is an anathema to Articles 14 and 16 of the Constitution of India as against other unemployed persons who are also entitled to compete for the said appointment. Since the 3rd respondent has no right of appointment as such, an appointment under the compassionate employment scheme, unless she alleges mala fides in the appointment, the claim that since she applied earlier than the petitioner she should be considered senior to the petitioner, cannot be accepted. Insofar as there is no specific rule which governs inter se seniority between the appointees under the compassionate employment scheme other than Ext.P16 Government Order, which is in favour of the petitioner, the seniority should be governed by Rule 27 of the KS and SSR and no other rule. The applicability of Rule 27 is no more in doubt in view of Rule 8 of Ext.P15 Rules. In fact, there are two judgments which would support the petitioner's case, viz. Althaf v. State of Kerala, 2003(2) KLT 342 and Union of India & Others v. Ansusekhar Guin and others, (1980) 1 SCC 283. In Ansusekhar Guin's case (supra), in paragraph 5, the Supreme Court has held thus: "5. We have heard learned counsel for the parties and are of the view that in the facts and circumstances appearing in the case the guideline indicated by the Tribunal is fully justified. We may now proceed on the footing that there were no rules in force prior to 1972 and we see no justification to accept the stand taken before us to the contrary. Counting continuous length of service for fixation of seniority is a well accepted Rule when the service rule does not prescribe a mode of fixing inter se seniority. The test adopted by the Tribunal appears to be just and we do not propose to interfere." In paragraph 12 of Althaf's case (supra), a learned Judge of this Court has held thus: "12. If we closely examine R. 27, it can be seen that there is no absolute prescription to treat the date of appointment as that for seniority. The expression used is that seniority is to be determined by the date of the order of his first appointment. It is different from laying down that the seniority is to be determined from the date of appointment. The expression "determined by the date of the order" perhaps is used to take note of these and other contingencies and so as to reconcile with the definition of the term "appointed to a service". If the matter is so considered, the petitioner would have been able to claim the date of seniority only from 9.10.1976 and he has not lost any seniority. In any case, the adjudication was proper and not detrimental to his basic right. He was a candidate who got appointment by a special method in a special contingency. He found a place in the cadre of ASTO along with persons who had been waiting for selection for years after being adjudged as qualified, by a process of selection by the Public Service Commission . In all probability, the selection process might have started much earlier, and their applications might have been made years before and the actual selection completed well before 25.8.1976. There is as well poetic justice in holding that such persons will have a prior claim in the matter of seniority. An appointee like the petitioner can claim seniority only from the date he actually discharges duties for the first time, which in the present case, is well after 30.8.1976." Although not directly, I am satisfied that the petitioner can derive support from these judgments for the proposition she canvasses in this writ petition, regarding seniority. 7. Apart from that, equity also favours the petitioner. Admittedly, the petitioner's father died on 9.9.1992, whereas the husband of the 3rd respondent died on 30.1.1998. It is also not disputed before me that the petitioner is older to the 3rd respondent. Of course, when the law itself supports the petitioner's case by virtue of Rule 27 of KS and SSR, an equitable consideration may not be strictly relevant. Taking into account all these circumstances, I am of opinion that the 3rd respondent cannot claim seniority over the petitioner under any circumstances. 8. Of course, in Ext.P3 order of appointment of the petitioner, as pointed out by the learned counsel for respondents 6 to 20, there is a mention that the appointment of the petitioner is provisional subject to the right of the 3rd respondent for seniority. But such a clause has to be in accordance with the rules regarding seniority applicable. When there are specific Rules regarding seniority, there cannot be a clause in the appointment order contrary to the Rules. The seniority has to be governed by Rule 27 of KS and SSR. Despite the stipulation in Ext.P3, the petitioner's appointment was regularised with effect from 5.4.2001, whereas that of the 3rd respondent was regularised only with effect from 3.10.2001. Apart from that, the 3rd respondent has not, at any time, chosen to challenge either the appointment or regularization of the petitioner ahead of the 3rd respondent. 9. As far as the objection regarding the alternate remedy available to the petitioner under Rule 27B is concerned, alternate remedy is not an absolute bar for maintaining a writ petition, which is settled law. In any event, after 4 years of filing this writ petition, I am not inclined to relegate the petitioner to the alternate remedy available under Rule 27B of KS and SSR insofar as the petitioner approached this Court in time after Ext.P14(a). For all the above reasons, I am satisfied that Ext.P14 (a) to the extent it gives seniority to respondents 3 and 6 to 20 over the petitioner, is unsustainable. Consequently, the 5th respondent cannot also claim any benefit over the petitioner in respect of seniority. Accordingly, to that extent, Ext.P14(a) is quashed. The 1st respondent is directed to pass fresh orders regulating seniority of the petitioner and respondents 3 and 6 to 20 in accordance with the above finding, as expeditiously as possible, at any rate, within 3 months from the date of receipt of a copy of this judgment. Needless to say, if any promotions have been made, the same also have to be revised based upon the above direction, which also shall be done along with passing orders as directed above. Consequently, Ext.P13 order of reversion of the petitioner, which is also based on the seniority position of the 3rd respondent is also quashed. The writ petition is allowed as above. S. Siri Jagan, Judge. Tds/ |
