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2006 DIGILAW 533 (KER)

K. J. Upendranath v. S. Mabel Franco

2006-08-15

K.A.ABDUL GAFOOR, K.P.BALACHANDRAN

body2006
Judgment :- Abdul Gafoor, J. The issue raised in these writ appeals is inter se seniority between the appellants herein and the contesting respondents namely the writ petitioners, in the category of U.D. Clerk in the Department of Directorate of Medical Education. All the incumbents who were contesting for seniority had been promoted to the cadre of U.D. Clerk with effect from 16.09.1985. This is an admitted fact before us. When Ext.R3(b) provisional seniority list of U.D. Clerk as on 16.09.1985 was published, the respondents/writ petitioners were placed as juniors and the appellants herein, the respondent Nos.4, 5 and 6 in the writ petition were shown as seniors. Even at that time, the promotion to the post of U.D. Clerk of the respective incumbents had not been regularised. The regularisation came far later in Ext.P1 dated 30.01.1992. Naturally, the provisional promotees ought not to have been included in Ext.R3(b) seniority list published on 27.02.1990. Whatever that be, collecting details as to the acquisition of the test qualification of the respective incumbents, the writ petitioners represented before the government that the appellants ought not to have been regularised as U.D. Clerk in preference to them, as on 16.09.1985 as they had successfully completed the test qualification on that date; whereas the appellants had only appeared for the test and were awaiting the results. Therefore, they ought not have given the benefit of Rule 28(bbb) Part II KS & SSR. This contention raised by them was not accepted by Government and as per Ext.P7 their representations for seniority over the appellants were rejected. Consequential order has been communicated in Ext.P8. It was in the above Circumstances, writ petition has been filed. 2. The appellants resisted the writ petition on the ground of delay and laches on the part of the writ petitioners and that the vacancies in question had arisen only by reason of Ext.R3(a) order dated 05.03.1986 by which time all of them had passed the test. Therefore, there was no reason for application of rule 28 (bbb) Part II KS & SSR. They being admittedly seniors to the writ petitioners, in the category of L.D. Clerks were thus entitled to earlier promotion as U.D. Clerks and to consequent seniority. 3. It was further submitted that they have been further promoted as Junior Superintendents and considered for further promotion, based on a select list, as Senior Superintendents. They being admittedly seniors to the writ petitioners, in the category of L.D. Clerks were thus entitled to earlier promotion as U.D. Clerks and to consequent seniority. 3. It was further submitted that they have been further promoted as Junior Superintendents and considered for further promotion, based on a select list, as Senior Superintendents. There was thus delay and laches on the part of the writ petitioners to object to their seniority. Therefore, the seniority ought not have been interfered with by the learned Single Judge. 4. The learned Single Judge did not accept these contentions and allowed the original petition quashing Ext.P7 and directing to pass consequential orders granting seniority to the writ petitioners. It is in the above circumstances, these writ appeals have been filed at the instance of respondents 3 to 6 in the said original petition No.32565/2000. 5. The learned Single Judge had in paragraph 11 of the impugned judgment considered the aspects of delay. Time limit has been prescribed to object the seniority list as per Rule 27B of KS & SSR. As six months from the date of publication of the seniority list or receipt of copy of the order concerned fixing the seniority. The retrospective regularisation by which the writ petitioners were aggrieved was passed as per Ext.P1. But neither Ext.P1 nor Ext.R3(b) seniority list did contain the actual date of examination which is relevant for the purpose of application of Rule 28(bbb) with reference to the date of occurrence of vacancies namely 16.09.1985, when admittedly the appellants had only appeared for the examination. So the writ petitioners could not have been found to be guilty of laches. It was also found by the learned Single Judge that the appellants who were only awaiting the test result could aspire only the vacancies remaining unfilled on 16.09.1985 after providing the writ petitioners, who had been fully qualified as on that date. 6. The appellants had admitted that they did not pass the obligatory test, which is essential for promotion as U.D. Clerk when the vacancies occurred on 16.09.1985. Without test qualification nobody could have been promoted. Therefore, as on 16.09.1985, they were not qualified. Admittedly, the writ petitioners had passed the test on 16.09.1985. 7. 6. The appellants had admitted that they did not pass the obligatory test, which is essential for promotion as U.D. Clerk when the vacancies occurred on 16.09.1985. Without test qualification nobody could have been promoted. Therefore, as on 16.09.1985, they were not qualified. Admittedly, the writ petitioners had passed the test on 16.09.1985. 7. They can, at the best aspire promotions only to the vacancies that were remaining unfilled on 16.09.1985 after providing the test qualified hands; that too only after passing the obligatory test qualification. Therefore, they can get the benefit of promotion with effect from 16.09.1985 only applying Rule 28 (bbb) Part II of KS & SSR. 8. Rule 28 (bbb) Part II KS & SSR reads as follows:- Where a pass in any examination or test confers on a person the title to any right, benefit or concession, such title to the right, benefit concession shall be deemed to have accrued. (a) in the case of a person who has passed such examination or test before the 14th August 1971, on the day following the last day of such examination or test in the subject or subjects; and (b) in the case of a person who has passed such examination or test on or after 14th August, 1971, on the day following the last day of the whole examination or test in which he has successfully completed the examination or test by passing one or more subjects. Explanation - (1) The principles in this sub-rule shall apply for the drawal increment and for promotion not involving change of duties against vacancies remaining unfilled for want of test qualified persons; (2) Where a person can choose between two examinations or tests or corresponding subjects or papers of two examinations or tests and where the two examinations or tests conducted during the same period end on two different dates, the title to the right, benefit or concession conferred by the passing of the examination or test shall be deemed to have accrued on the day following the last date of the whole of the examination or test which ends on the latter date; (3) The expression “the last day of such examination or test in the subject or subjects” occurring in clause (a) of this sub-rule shall mean the last day on which according to the schedule of the examination or test first published by the Kerala Public Service Commission, such examination or test in the subject or subjects would have been conducted if the examination or test in any of the subjects had not been postponed to a later date; (4) The expression “the last day of the whole examination or test” occurring in clause (b) of this sub-rule shall mean the day on which, according to the schedule of the examination or test first published by the Kerala Public Service Commission, the examination or test in the last of the subjects comprising the whole examination or test would have been conducted, if the examination or test in any of such subjects had not been postponed to a later date. (5) The expression ‘any examination or test’ occurring in this sub rule shall mean any examination or test conducted by the Kerala Public Service Commission, Government or Department which has a direct nexus with the service matters like probation, promotion, increment etc., of an employee, and not an academic examination/University examination. Note:- Cases already settled or disposed of prior to the issue of this amendment shall not be reopened. (emphasis supplied) 9. Going by the said rule, it can be applied only subject to three conditions:- 1) The post to which promotion is effected shall not have functional difference with that of the lower category. 2) The vacancy should have remained unfilled and 3) Such un-filling shall be for want of test qualified hands. 10. (emphasis supplied) 9. Going by the said rule, it can be applied only subject to three conditions:- 1) The post to which promotion is effected shall not have functional difference with that of the lower category. 2) The vacancy should have remained unfilled and 3) Such un-filling shall be for want of test qualified hands. 10. This Court in decision reported in Gopinathan Unnithan v. State of Kerala (1991 (2) KLT 112) with respect to almost similar situation held as follows:- As per Rule 28 (bbb), a person will be deemed to have passed the test on the day following the last day of the examination only in case he passes the test when the results are announced. This means that one can be considered to have passed the test on the day following the last day of the examination only after knowing the result of the examination. Before the results are announced, no one can claim the benefit of Rule 28(bbb) of the General Rules. Three conditions are also to be satisfied by one, who relies on the said rule. They are: (1) that the promotion should be to the post not invoking a change of duty (ii) that the vacancies must remain unfilled and (iii) that they must remain so unfilled for want of test qualified hands. The vacancies arose on 27.11.1969. A few juniors to the petitioners were fully qualified on that day for promotion to the cadre. They must be accommodated to the vacancies first. When they are so accommodated, those vacancies will be filled up. Thereafter, few vacancies remained unfilled for want of test qualified hands. To those vacancies, petitioners can be accommodated by invoking Rule 28 (bbb) because they succeeded in the test taken by them in October 1969. So, they can be accommodated only to such of those vacancies which remained unfilled for want of test qualified hands. In other words they can take the place below the test qualified hands, who were promoted to the earlier vacancies. In this view of the matter, petitioners can be ranked only below the test qualified juniors, who took the vacancies earlier. 11. There cannot have any doubt as regards the said position of law. In other words they can take the place below the test qualified hands, who were promoted to the earlier vacancies. In this view of the matter, petitioners can be ranked only below the test qualified juniors, who took the vacancies earlier. 11. There cannot have any doubt as regards the said position of law. Therefore, as the appellants were promoted to the vacancies occurred on 16.09.1985, when they had admittedly not passed the obligatory test qualification, there arises no question of their promotion unless they have been given the benefit of Rule 28 (bbb). As the writ petitioners had acquired the obligatory test qualification as on 16.09.1985, they were entitled to be promoted first to the vacancies occurred on that date and the appellants who had not passed the test could have aspired, applying the said rule. Only the vacancies remaining unfilled after providing the test qualified hands like the writ petitioners. 12. Writ petitioners could ascertain whether the appellants have been regularised giving this benefit, only if the date of appearance for the examination for the test by them have been disclosed. Neither Ext.R3 (b) nor Ext.P1 reveals such relevant dates. Necessarily, one can object to Ext.P1 regularisation only after collecting the aforesaid details. That is what the writ petitioners have done while objecting to the regularisation of the appellants in preference to them as per Ext.P1 which finally resulted in Ext.P7 order of the Government rejecting their claim. Therefore, the contention of the appellants that there was delay and laches on the part of the writ petitioners could not have been accepted. 13. The next aspect is as to when the vacancy had arisen. Admittedly, the writ petitioners have been regularised as U.D. Clerks as per Ext.P1 with effect from 16.09.1985. They have been given the salary and pay with effect from that date in the category of U.D. Clerk. Now they cannot turn round and contend that the vacancies had arisen only as a result of Ext.R3(a) dt.05.03.1986. 14. The vacancies of U.D. Clerk in question occurred on account of acceptance of the report of the Fourth Pay Commission by issuing G.O.(P).No.515/85/Fin. Dated 16.09.1985. It is from that date, the ratio between L.D. Clerk and U.D. Clerk has been changed from 2:1 to 1:1 Therefore, it is the date of occurrence of vacancies. 14. The vacancies of U.D. Clerk in question occurred on account of acceptance of the report of the Fourth Pay Commission by issuing G.O.(P).No.515/85/Fin. Dated 16.09.1985. It is from that date, the ratio between L.D. Clerk and U.D. Clerk has been changed from 2:1 to 1:1 Therefore, it is the date of occurrence of vacancies. Ext.R3(a) reveals that it is only a consequential order upgrading the post with effect from 16.09.1985. Therefore, the vacancy in question had arisen on 16.09.1985. The eligibility and the qualification of the respective incumbents have to be reckoned with effect from that date. This position is settled by reason of the Full Bench decision of this Court in Varghese v. State of Kerala (1981 KLT 458). 15. Admittedly as on 16.09.1985 the date of occurrence of vacancies, the writ petitioners have passed the test and the writ appellants had only appeared for the test and awaiting results. Applying rule 28(bbb) and the decision in Unnithan’s case (cited supra), the appellants can aspire for only those vacancies remaining unfilled for want of test qualified hands as on 16.09.1985, after accommodating the test qualified hands like the writ petitioners. 16. If the vacancies were actually filled on the date of occurrence of vacancy, only the writ petitioners would have been promoted as admittedly the appellants though seniors in the lower category had not become qualified. They could be promoted only when they passed the test after the publication of the results. This was after 16.09.1985. When they are so promoted after acquisition of the qualification, they can take the date with effect from 16.09.1985 applying rule 28(bbb), but only below the candidates who were promoted already or were eligible to be promoted as on that date being fully qualified hands, like the writ petitioners. The same principle has to be applied when promotion are ordered retrospectively also. 17. When the writ petitioners were qualified as on the date of occurrence of vacancies they have to be first accommodated to the then existing U.D. vacancies and those who are awaiting results can aspire for only available vacancies after accommodating all the qualified hands. Therefore, the appellants can in the category of U.D Clerk take rank only below the writ petitioners. That is what the learned Single Judge had directed. 18. Therefore, the appellants can in the category of U.D Clerk take rank only below the writ petitioners. That is what the learned Single Judge had directed. 18. Therefore, there is no reason to interfere with impugned judgment which directs restoration of the seniority of the writ petitioners over the appellants. That the appellants have been subsequently promoted as Junior superintendents or included in a select list for further promotion as Senior superintendents later, are not matters for consideration in these writ appeals. Therefore, the writ petitioners are entitled to seniority over the appellants in the category of U.D. Clerks. 19. Writ appeals, therefore, fail and are dismissed accordingly.