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2023 DIGILAW 821 (KER)

D. Ieda Bhai v. K. Asokhan S/o. K. Krishnan Nadar

2023-10-20

A.MUHAMED MUSTAQUE, SHOBA ANNAMMA EAPEN

body2023
JUDGMENT : A. MUHAMED MUSTAQUE, J. 1. The point that arises for consideration is whether long after integration of service could an employee claim promotion in his former service for the purpose of reckoning seniority in the integrated service. 2. The petitioners in these original petitions entered into the service of the Kerala Municipal Common Service (Engineering and Town Planning Service) as Third Grade Overseers through direct recruitment. They entered into service during 2001 and 2003. 3. The party respondents also entered the service as third grade overseer in Public Department during 1991-93 except the 5th respondent who got a compassionate appointment in the year 2000. 4. While the petitioners and the party respondents were continuing in their respective Department, the Government formed a new Department called the Local Self Government Department in the year 2003. Accordingly, a new service formed called Kerala Local Self Government Engineering Subordinate Services. Special Rules were framed in the year 2007 for the new service. Special Rules provide for integration of members working in the category of Overseer Grade and similar categories in the Kerala Municipal Common Service (Engineering and Town Planning Service) into the Kerala Local Self Government Engineering Subordinate Services. It is specifically stipulated in the Special Rules that seniority of persons absorbed into the Kerala Local Self Government Engineering Subordinate Service shall be determined on the basis of date of the appointment and seniority in the respective category in the former service; and if he is a direct recruit, based on the advice of the Public Service Commission for appointment to that category. 5. The seniority list was prepared pursuant to the Special Rules on 31/12/2009. This was modified on 17/3/2011. Admittedly, the petitioners herein were juniors in the seniority list published as above. 6. Some of the employees in the Municipal Common Service on 19/1/2011 raised a claim for promotion as Second Grade Overseer on the basis of their seniority in their parent department. Pursuant to the direction of this Court in W.P. (C) No. 527/2011, dated 25/1/2011, their claim was considered by the Director of Urban Affairs and an order was passed on 20/11/2013, notionally promoting Third Grade Overseer as Second Grade Overseer with effect from 31/12/2007 in the Municipal Common Service. There are intervening events which we are not referring to here to avoid repetition. There are intervening events which we are not referring to here to avoid repetition. The point that arises here is whether the promotion effected in the former service after integration is legally valid or not. Two grounds were raised to challenge the promotion. One based on the seniority list prepared pursuant to the Special Rules contending that after publishing the seniority list based on the integration process, the parties therein cannot claim promotion in their former service. Second essentially is on the factual ground of non-availability of the post in former service to be promoted as Second Grade Overseer. The Tribunal sustained the challenge against such promotion. This is how the petitioners who were originally recruited in the Municipal Common Service approached this Court in these original petitions. 7. Integration is the policy of the Government. Inter se seniority of persons in different services is a complicated issue. Any right or claim of a person in a different service will have to be settled at the time of integration. The Apex Court in State of Sikkim vs. Adup Tshering Bhutia, 2014 (3) KLT Supp. 124 (SC) succinctly referred to the process of integration as follows: (i) Decide the principles on the basis of which integration of services has to be effected. (ii) Examine the facts relating to each category and class of post with reference to the principle of equivalence. (iii) Fix the equitable basis for the preparation of common seniority list of personnel holding posts which are merged into one category. The State is bound to ensure a fair and equitable treatment to officers in various categories/cadres of services while preparing the common seniority list. Being a complicated process, integration is likely to result in individual bruises which are required to be minimised and if not possible, to be ignored. These first principles on integration are to be borne in mind whenever a dispute on integration is addressed. 8. The Seniority list prepared in integrated service will have to be followed for determining inter se seniority. Without questioning the seniority list prepared in integrated service, an employee cannot indirectly overturn the seniority list by claiming promotion in the former service. The claim for any promotion in the former service ought to have been raised at the time of integration. The Seniority list prepared in integrated service will have to be followed for determining inter se seniority. Without questioning the seniority list prepared in integrated service, an employee cannot indirectly overturn the seniority list by claiming promotion in the former service. The claim for any promotion in the former service ought to have been raised at the time of integration. If the process of integration did not provide any room for raising such a claim, the employee cannot sleep over the right to claim and thereafter wake up from the sleep to raise such claim indirectly through another door of his former service. Whatever the claim the employee had at the time of integration ought to have been raised when he entered into the new integrated service. Baggage left in the former service cannot be retrieved through a backdoor entry to open a new door in integrated service. If the claim is not made at the time of integration in relation to any right available in the former service, that right is forgone and foreclosed. It is to be noted that the petitioners never raised any question on the seniority lists 2009 and 2011 of Third Grade Overseer. Once the petitioners entered into integrated service and if no claim is made at the time of integration, they cannot raise any claim in the former service to have an impact in the integrated service. 9. Coming to the factual claim for promotion in the former service or Municipal Common Service, the Tribunal found that there were no vacancies of Second Grade Overseer in the Municipal Common Service. It is true that the Tribunal entered into such a finding after adverting to the communications of the Chief Engineer of the Local Self Government Department which points out that no vacancies were available. This factual enquiry is actually unwarranted, as the applicants before the Tribunal have no right to question the availability and the non-availability of vacancies in another service for promotion. Anyway, on the legal ground we found that the petitioners are not entitled to claim for promotion in the former service after integration and preparation of the seniority list in the integrated service. Thus, the original petitions fail, and are accordingly dismissed.