GEORGE v. STATE OF KERALA — 1979 DIGILAW 265 (KER)

Judgment :- O. P. No. 1844 of 1977 1. This Writ Petition was referred by a learned judge of this Court to a Division Bench as the learned judge felt that the question raised involved the correctness of the decision of our learned Brother Eradi J. in a judgment, in OP. No. 2683 of 1975, copy of which has been produced as Ext. P6, and also the judgment of a Division Bench to which one of us (myself) was a party, in W. A. Nos. 35 and 49 of 1979. The learned judge expressed the view that especially after the promulgation of the Common Service Rules, 1977, under the Panchayats Act, the question considered and dealt with in these judgments, required a fresh look and therefore it might be desirable to have the matter examined by a larger Bench. On the facts disclosed, no case for a re-examination has been made out in these cases. We shall therefore state the facts and proceed to dispose of the cases on the merits. The first writ petitioner was appointed on 1-3-1954 as a part-rime clerk in the Mylom Panchayat. He later on matured as a full-time clerk and was designated as a full-time Assistant from 1-1-1956. On 23-2-1962 he was provisionally promoted as Executive Officer, in the Panchayat. On 21-1-1972, he was appointed as Head Clerk. The second petitioner was appointed as Head Clerk on 11- 9-1971 and the third petitioner was so appointed on 13-3-1972. All these appointments were before the Common Service Rules. The staff pattern which regulated the various grades in the Panchayats at that time and before the Common Service Rules, is evidenced by Ext. P1. This has been produced by the petitioners to show that in this staff pattern that existed till the Common Service Rules, there was no post of the Head Clerk. This was created by a G.O. dated 6-11-1968 by which the posts of Head Clerks were sanctioned to the Special Grade Panchayats and the three I Grade Panchayats of Ponnani, Kollengode and Payyannur. This G.O. ordered that the senior-most Assistants in the Panchayats would be designated as Head Clerks by upgrading one existing post of Panchayat Assistant. Ext. P8 is the provisional list of Assistants of the Quilon District and Ext. P9 is the provisional list of Head Clerks in that District. This G.O. ordered that the senior-most Assistants in the Panchayats would be designated as Head Clerks by upgrading one existing post of Panchayat Assistant. Ext. P8 is the provisional list of Assistants of the Quilon District and Ext. P9 is the provisional list of Head Clerks in that District. These proceeded on the footing that the post of Head Clerks is a separate and independent category from that of an Assistant and is a promotion post vis-a-vis the latter. The petitioners are aggrieved by the preparation of these lists and by the recognition of Head Clerks as a separate and independent category, and have accordingly prayed in this writ petition to quash the seniority list of Head Clerks in Panchayats in the Revenue District of Quilon (Ext. P9), and to issue a writ of mandamus directing the respondents to prepare a seniority list of Head Clerks as on 1 4-1977 in the Panchayats in the Quilon District in accordance with the inter se seniority of the personnel as fixed in the combined gradation list of Assistants as on 1-4-1977 (Ext. P8), and to make appointments and promotions is accordance with the said seniority list; and to declare sub-rule 3 of R.3 of the Kerala Panchayats (Common Service) Rules, 1977, ultra vires and unconstitutional. 2. Counsel for the petitioners placed strong reliance on the previous judgment of the Division Bench of this Court in W. A. Nos. 35 and 49 of 1979, which, after considering the background and the circumstances leading to the creation of the posts of Head Clerks in Panchayats, and the promulgation of the Common Service Rules, observed that the posts of Head Clerks were created only by upgrading certain posts of Assistants in some of the Panchayats, and that both in an exposition made by the Government on the executive side, and also in an exposition made by Eradi J. in a judgment on the judicial side, it had been stressed that the upgradation of the posts of Panchayat Assistants into Head Clerks in the higher time-scale would not necessarily be a promotion, nor would it constitute the posts of Head Clerks into distinct and separate posts, independent from the posts of Panchayat Assistants. The correctness of this judgment and of the judgment of Eradi J. referred to therein, was attacked before the learned judge before whom this writ petition came up, and it was pointed out in the reference order that the question raised required examination by a larger Bench. 3. In support of the contention that even previous to the promulgation of the Common Service Rules there was a separate and independent category of Head Clerks in the Panchayats and that the same was a promotion post vis-a-vis the post of Panchayat Assistant, Counsel for respondents 4 to 12 placed reliance on Ext. P2 G.O. itself which sanctioned the posts of Head Clerks for certain Panchayats. In Para.4 of the said G.O. while stating that the posts were to be filled up by Panchayat Assistants with not less than 10 years'. service, it was observed. "The promotion will be provisional subject to revision when the Panchayat Common Service is constituted". The underlined expression was stressed to show that the Government spokesman himself had recognised that the post of Head Clerk is a promotion post vis-a-vis-that of the Panchayat Assistant. Earlier the G.O. had stated that the posts of Head Clerks were to be created in the Special Grade Panchayats and the three designated First grade Panchayats, by upgrading the required posts of Panchayat Assistants. The effect of such upgradation of posts has been, as we will show, judicially considered. Secondly, reliance was placed on R.28A of the Kerala Service Rules, (with respect to which the Examiner of Local Fund Accounts objected to the creation of the post), which again refers to the "promotion" or appointment in a substantive or officiating capacity of a person holding one post to another post carrying a higher time scale of pay. This, it was stressed, amounted to a recognition by the Rule that such appointment will operate as a promotion. Thirdly, the strongest reliance was placed on the Common Service Rules, 1977, for the Panchayats, promulgated on 2-1-1977 under S.39(2) and S.129(1) of the Panchayats Act, 1960. R.3 of the Rules providing for the constitution of the Common Service was referred to. Sub-clause (2) provides for the preparation of a combined gradation list of persons holding each category of posts in the Panchayats of a District. R.3 of the Rules providing for the constitution of the Common Service was referred to. Sub-clause (2) provides for the preparation of a combined gradation list of persons holding each category of posts in the Panchayats of a District. Sub-clause (4) of R.3 reads thus: "(4) The combined gradation list prepared shall be circulated to all the Panchayats in the District and the Panchayats may in turn circulate it among the employees. Objections, if any, filed by the employees within 30 days from the date of circulation of the gradation list shall be forwarded to the District Panchayat Officer by each Panchayat. The District Panchayat Officer shall consider all such objections before the list is finally approved and published." Sub-clause (5) provides for a right of appeal against the decision of the District Panchayat Officer. The annexure to the Rules was referred to. That provides for the various categories of posts in the Panchayats, the method of recruitment and the qualifications for the posts. The first of these categories is shown as Head Clerk, and the mode of recruitment is promotion from among Panchayat Assistants. The second is Panchayat Assistants and the method of recruitment is promotion from qualified Bill Collectors or appointment from among qualified Yogic Instructors. From these, it was argued, that there was clear indication that the category of Head Clerk was different from that of a Panchayat Assistant and that the latter is a feeder category for promotion as Head Clerk. Whatever may be, the feasibility of this argument based on the Common Service Rules, we are not concerned with the same for the purpose of this writ petition, as the promotions of the three petitioners as Head Clerks were all prior to the formulation of the Common Service Rules in 1977. We have already noticed the dates of these promotions. The respondents again were promoted in 1968-69, before the Rules. For the purpose of this case therefore, it is unnecessary to evaluate the contention of counsel for the respondents that after the Common Service Rules the posts of Head Clerks and of Panchayat Assistants constituted two separate categories and that the former was a promotion post with respect to the latter. As for the argument on the language of Ext. For the purpose of this case therefore, it is unnecessary to evaluate the contention of counsel for the respondents that after the Common Service Rules the posts of Head Clerks and of Panchayat Assistants constituted two separate categories and that the former was a promotion post with respect to the latter. As for the argument on the language of Ext. P2 G.O. referring to the appointments of the petitioners with which we are concerned, as promotion, that aspect, as we will notice, was considered by Eradi J. in Ext. P6 judgment and again by the Division Bench in the Writ Appeals referred to. We shall be noticing these. 4. It was strongly argued by counsel for the Respondents that even before the Common Service Rules, the categories were different and the position was the same as what is sought to be proved with respect to the provisions of the Common Services Rules. But the argument has been exploded. The petitioners have produced Ext.p1 dated 25-9-1967 which is the copy of the staff pattern in the Panchayats prior to the issue of the Common Service Rules. In this, the category of Head Clerks is not to be seen at all. Counsel for the Respondents was not able to satisfy us that Ext. P1 staff pattern was either revised or superseded since the date of its promulgation or since the creation of the posts of Head Clerks and before the promulgation of the Common Service Rules. That affords the clearest indication that prior to the Common Service Rules the staff pattern recognised in the Panchayats did not include the category of Head Clerks, nor recognise it as a separate and independent category, namely, a promotion category for the posts of Panchayat Assistants. 5. We may now briefly refer to the two judgments, namely, that of my learned Brother Eradi J. and that of the Division Bench in W.A..Nos. 35 and 49 of 1979. A copy of my learned Brother Eradi J.'s judgment has been filed as Ext. P6. 5. We may now briefly refer to the two judgments, namely, that of my learned Brother Eradi J. and that of the Division Bench in W.A..Nos. 35 and 49 of 1979. A copy of my learned Brother Eradi J.'s judgment has been filed as Ext. P6. That judgment notices the creation of the posts of Head Clerks, the objection raised by the Examiner of Local Fund Accounts to the said creation based on R.28-A of the Kerala Service Rules, and the Government's clarification and reply to the objection, which stated that appointments of Panchayat Assistants to -the posts of Head Clerks shall not be regarded as a promotion and are governed by R.30 of the Kerala Service Rules rather than R.28A. The learned judge, after noticing R.28-A of the Kerala Service Rules, observed that the said Rule was not satisfied, as the writ petitioners before the learned judge had not been promoted from their original posts of Assistants into another post carrying a higher time-scale of pay. All that had happened was that the posts which they were occupying were upgraded as the posts of Head Clerks. The learned judge further observed that the fact that the designation of the existing post was altered into that of a Head Clerk would not help the writ petitioners (Panchayat Assistants) to contend that they had been promoted from their original posts. These principles, stated by the learned judge, was, after an elaborate examination, accepted by the Division Bench in W.A, Nos. 35 and 49 of 1979. The decision of the Full Bench of this Court in N. G. Prabhu v. Chief Justice (1973 (2) SLR. 251) supports the principle of these rulings that the upgradation of a post does not amount to a promotion. 6. Before the Division Bench the present argument that after the Common Service Rules the two categories of Panchayat Assistants and Head Clerks were constituted as separate and independent categories and that the latter has been recognised as a promotion post vis-a-vis the former, was advanced. This Court noticing the reply made to the argument, observed that there was considerable force in the contentions urged, and directed the Government to examine the matters agitated in the writ appeals and pass appropriate orders in accordance with law. This Court noticing the reply made to the argument, observed that there was considerable force in the contentions urged, and directed the Government to examine the matters agitated in the writ appeals and pass appropriate orders in accordance with law. There was no occasion for the Division Bench on the earlier occasion to evaluate the contention, regarding the position of the two posts of Panchayat Assistants and Head Clerks after the Common Service Rules. That has been specifically raised in the instant case. But, as we stated, as the promotion in these cases were all before the Common Service Rules, the said contention does not arise. On the facts disclosed, we see no scope for this contention raised by the Respondents. In the result, we allow the writ petition and direct the Government to revise Ext. P9 seniority list in so far as the same relates to the category of Head Clerks in the Panchayats, in accordance with law and in the light of the observations contained in this judgment. Ext. P10 order is quashed. We further direct the Government to prepare a fresh seniority list in the light of the observations contained in this judgment. There will be no order as to costs. O.P. No. 2294 of 1977 The facts are more or less similar in this writ petition also. Ext. P9 in this writ petition is the staff pattern, a copy of which is filed as Ext. P1 in OP. No. 1844 of 1977. Ext. P11 is the seniority list of Head Clerks in Panchayats in the district of Quilon (same as Ext. P9 in the previous writ petition). The petitioners have challenged the same as having been preferred on the basis that the category of Head Clerk is a separate and independent category and a promotion post with respect to the Panchayat Assistants. The arguments proceeded on the same lines as in the previous writ petition. The petitioners (four of them) in this writ petition were promoted as Panchayat Assistants on 19-10-1949, 3-12-1955.17-1-1956 and 6-1-1959. They were appointed as Head Clerks in 1969 and 1970 etc. (all before the promulgation of the Common Service Rules). The arguments proceeded on the same lines as in the previous writ petition. The petitioners (four of them) in this writ petition were promoted as Panchayat Assistants on 19-10-1949, 3-12-1955.17-1-1956 and 6-1-1959. They were appointed as Head Clerks in 1969 and 1970 etc. (all before the promulgation of the Common Service Rules). The respondents were appointed as Head Clerks in 1968 and 1969; so that, in this case also, the contention raised by counsel for the Respondents that subsequent to the Common Service Rules, at any rate, the categories of Head Clerks and Panchayat Assistants are separate and independent, and that the one is a promotion post with respect to the other, does not arise for consideration. We express no opinion about the same. 7. Following our judgment in the previous writ petition, we allow this writ petition and quash Ext. P11 seniority list in so for as the same relates to the category of Head Clerks in the Quilon District, and also Ext. P13 the promotion of the respondents on the basis of Ext. P11, and direct the 1st respondent to revise the seniority list and to review the promotions in the light of the principles laid down in this judgment. There will be no order as to costs. Allowed. Leave to appeal to the Supreme Court is orally asked for. We see no substantial question of law of general importance, on which, in our opinion, a pronouncement by the Supreme Court is necessary. We decline the prayer. Leave refused.