Dayanandan v. Public Service Commision — 1985 DIGILAW 160 (KER)

JUDGMENT V. Sivaraman Nair, J. 1. The petitioner and respondents 2 and 3 were selected by the Public Service Commission for appointment as Assistants Grade-II. The petitioner was appointed pursuant thereto in the Kerala Secretariat on 12-3-1962, earlier than respondents 2 and 3. However, his service was terminated on termination of the vacancy. He reregistered afresh for appointment in the Public Service Commission and was appointed as Assistant in the Public Service Commission on 2-11-1963. In the meantime, respondents 2 and 3 were appointed as Assistants in the Public Service Commission by advice letters dated 31-3-1962 and 22-5-1962, and they commenced service on 10-4-1962 and 27-7-1962. By proceedings dated 8-5-1973, the petitioner was assigned rank above respondents 2 and 3. The second respondent filed O. P. No. 1589 of 1973 against he assignment of seniority in favour of the petitioner. This court by judgment dated 13-11-1975 allowed that Original petition, quashed the order dated 3-5-1973, and directed the Public Service Commission to pass orders afresh only after notice to the second and third respondents. The Public Service Commission, thereupon, issued notice to the parties, and after considering representations submitted by the concerned persons, passed Ext. P1 order, holding that the petitioner was bound to be ranked junior to respondents 2 and 3 in view of the second proviso to R.7 (b) of the Kerala State and Subordinate Services Rules. The petitioner seeks the issue of a writ of certiorari to quash Ext. P1 order in this Original Petition. According to him. his seniority had to be fixed under R.27(c) of the Kerala State and Subordinate Services Rules with reference to the date of earliest effective advice for appointment by the Public Service Commission, and by giving effect to the ranks contained in the select list. 2. It is the petitioner's case that he and respondents 2 and 3 were selected for appointment as Assistants without specifying the Department in which they were to be appointed. He got appointment earlier in the Government Secretariat only because of his higher rank in that list, and he had to be thrown out only because of his appointment in the Department not of his choice, but only due to his higher ranking. He got appointment earlier in the Government Secretariat only because of his higher rank in that list, and he had to be thrown out only because of his appointment in the Department not of his choice, but only due to his higher ranking. Respondent 2 and 3, who were lower in rank, and were advised later, could obtain continuous employment without interruption only because they were allotted to the Kerala Public Service Commission, Discontinuance of service in the case of the petitioner and continuance in the case of respondents 2 and 3 were unrelated to any circumstance within their control or any of their voluntary actions. It is submitted that it is unfair that this situation is taken advantage of by the respondents. Counsel also submits that the second proviso to R.7(b) of the Kerala State and Subordinate Services Rules was enacted only in 1977. It is submitted that though that amendment has retrospective effect from 17-12-1958, the petitioner cannot be posted with knowledge of the conditions contained therein, since, at the time when he was discharged from service in the Secretariat and he reregistered himself for fresh appointment, the provision which should have resulted in the denial of the benefit of R.27(c) of the Kerala State and Subordinate Services Rules was not available. 3. The Public Service Commission has filed a counter affidavit, in which the basic facts are not disputed. The only contention of the Commission is that, according to the present rules, the petitioner can have the benefit of earliest effective advice for appointment, only if he was reappointed in the same service after his discharge from service on termination of the vacancy and not if he had reregistered for fresh appointment and was appointed in a different Department. It is submitted that the petitioner had not waited for such reappointment in the same service in the same Department; but he reregistered, as a consequence of which, he was appointed in a different Department in a different service, but later than the date of commencement of service therein by respondents 2 and 3. Counsel for the Commission therefore submits that the petitioner cannot be given the benefit of R.27(c) of the Kerala State and Subordinate Services Rules to claim seniority ever respondents 2 and 3 in the above circumstances. 4. Counsel for the Commission therefore submits that the petitioner cannot be given the benefit of R.27(c) of the Kerala State and Subordinate Services Rules to claim seniority ever respondents 2 and 3 in the above circumstances. 4. It is evident that the petitioner and respondents 2 and 3 were appointed from a common ranked list prepared by the Public Service Commission. It is not disputed that the petitioner had earlier rank in that list; nor was it disputed that it was the common list for appointment as Assistants in any Department in any service under the State. The earlier allotment of the petitioner to the Secretariat Service and the later appointment of respondents 2 and 3 in the Public Service Commission were purely accidental it could possibly have been otherwise as well. Had they been in the same service in the same Department, the petitioner would have been retained in service in preference to respondents 2 and 3. The fact that respondents 2 and 3 escaped discharge, though they were appointed later, is not referable to any voluntary act on the part of the petitioner No can it be said that at the time when the petitioner reregistered afresh for appointment, he was aware of the consequence of such reregistration as depriving him of the benefit of earliest effective advice for purposes of seniority under R.27(c) of the Kerala State and Subordinate Services Rules. 5. Counsel for the petitioner submits that the effect of the second proviso to R.7 (b) of the rules is only to oblige a person who reregisters for appointment afresh to commence probation in the post in which he is appointed afresh forsaking the right of probation to the post in the Department/Institution concerned from which he was discharged for want of vacancy. It is submitted that such loss of the right of probation does not have the effect of depriving the reappointed person of his right to claim seniority to be determined under R.27(c) with reference to the date of first effective advice for appointment. Counsel also submits that the position would have been different it the advice of the Public Service Commission was for appointment of the petitioner in one service and respondents in a different service. Counsel also submits that the position would have been different it the advice of the Public Service Commission was for appointment of the petitioner in one service and respondents in a different service. In such a case, it would perhaps have been possible to contend that the earlier advice of the petitioner for appointment in the Secretariat would not entitle him to claim seniority in the Public Service Commission. The advices were only for appointment as Assistants without specifying the Department It is submitted that R.7(b) and 27(c) operate in totally different fields; and commencement or completion of probation has no effect on seniority which is to be determined under R.27(c) of the rules. The petitioner also submits that the period of probation, its commencement declaration of its completion, suspension or termination of probation, suitability or probationer's right for full membership and other cognate matters are dealt with in R.18 to 25 of the rules. It is further submitted that it was because of that reason that a proviso had to be added to R.28(1) of the Kerala State and Subordinate Services Rules that seniors completing probation later than juniors but within the period of probation would retain seniority in promotion posts also. 6. I am inclined to agree with the petitioner for more reasons than one. According to rules, as they existed at the time of his appointment afresh in the Public Service Commission, the petitioner was entitled to claim rank above respondents 2 and 3, because he had higher rank in the ranked list and was advised for appointment earlier. The discharge of the petitioner from service in the Secretariat could not have been visualised by him at the time of his initial appointment. Nor could he have anticipated the denial of the benefit of earliest effective advice for determination of seniority or even probation if he reregistered afresh for appointment, according to the then existing rules. It is, of course true, that the second proviso to R.7(b) of the Kerala State and Subordinate Services Rules has to be deemed to have been on the statute book as on the date on which the petitioner reregistered, and even earlier on 17-12-19.58. It is, of course true, that the second proviso to R.7(b) of the Kerala State and Subordinate Services Rules has to be deemed to have been on the statute book as on the date on which the petitioner reregistered, and even earlier on 17-12-19.58. The factual position, however, was that he had no means of knowing about the possibility of retrospective amendment of the rules, so as to deprive him of his claim for probation prior to his discharge from the Secretariat, if he re-registered afresh. As already stated, the petitioner had a higher rank in the ranked list prepared by the Public Service Commission, from out of which the appointments were made to various Departments. He was advised for appointment earlier than respondents 2 and 3, and notwithstanding the break in service, he would have retained the benefit of the period of service rendered prior to discharge for purposes of probation as well, in the new post, but for the provisions contained in the second proviso to R.7(b) of the Kerala State and Subordinate Services Rules. In the above circumstances, I feel, that justice requires that the relief sought by the petitioner for seniority above respondents 2 and 3 in the category of Assistants and in all the promotion categories should have been allowed by the Public Service Commission. 7. The submission of the counsel for the petitioner that the second proviso to R.7(b) deals with a topic other than seniority and cannot control the provisions of R.27 of the Kerala State and Subordinate Services Rules also seems to be fully justified. Probation is an incident different from and unrelated to seniority. Apart from R.27(b), the other rules which deal with probation are R.18 to 25. The terms of R.28 also indicate that the earlier commencement of probation has no effect on seniority. As between two persons who were advised for appointment on two different dates, it may perhaps be that the person who was advised later may commence his probation earlier because he joined duty earlier. This may be because he received the communication earlier or he was nearer to Trivandrum in the matter of distance. As between two persons who were advised for appointment on two different dates, it may perhaps be that the person who was advised later may commence his probation earlier because he joined duty earlier. This may be because he received the communication earlier or he was nearer to Trivandrum in the matter of distance. If commencement of probation has any effect on seniority, the accident of a person advised later joining duty earlier shall result in the person who commences probation earlier being treated as senior notwithstanding his liability to give place to the persons advised earlier in accordance with R.27(c) of the rules. The date of first effective advice for appointment is a fixed and unalterable factor, whereas voluntary actions of parties or accidents unrelated to their volitions may result in the earlier joining of duty by persons advised or ranked in the advice later and vice versa. Such accidents shall not be determinative of seniority. It that be the position, the aspect of seniority has to be decided only with reference to R.27(c) as between the petitioner and respondents 2 and 3. The delay in the commencement of probation of the petitioner as enjoined by the second proviso to R.7(b) does not in any manner affect the seniority which was to the determined as provided in R.27(c). 8. The Public Service Commission has proceeded on the assumption that seniority has to be determined with reference to the date of commencement of probation or at least that a person who commences probation later must be treated as junior, notwithstanding his entitlement for seniority in terms of R.27(c) of the Kerala State and Subordinate Service Rules. This assumption is not supported by any provision in the rules In any case, it does not seem to be just in the facts and circumstances of the case. 9. On both grounds therefore, firstly, since Ext. P1 order is not legal and does not have the effect of overriding the provisions of R.27(c) of the rules, and secondly, since it is not just since the petitioner is sought to be deprived of his seniority for an accident in his service which he would not have visualised, I am of the opinion that Ext. P1 order has to be quashed. 10. I therefore allow this Original Petition and quash Ext. P1 order. P1 order has to be quashed. 10. I therefore allow this Original Petition and quash Ext. P1 order. The first respondent Public Service Commission will restore the rank and seniority of the petitioner in the category of Assistant Grade II. Grade I, Senior Grade Assistant etc., and will consider his claim for promotion to other categories on the basis of seniority and in accordance with the rules. Consequently, the petitioner will also be entitled to all benefits which he would have enjoyed had he been promoted in accordance with seniority in due turn. The Public Service Commission will pass consequential orders within a period not exceeding six months from the date of receipt of a copy of this judgment. The parties will bear their respective costs.