IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 211 of 2000(A)
1. E.A.BABU
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.RAJESH THOMAS
For Respondent :SRI.C.P.SUDHAKARA PRASAD (SR.)
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :21/10/2008
O R D E R
S. Siri Jagan, J.
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O.P. Nos. 211 & 3339 of 2000
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Dated this, the 21st October, 2008.
J U D G M E N T
These two original petitions are filed by rival Government
employees of the Motor Vehicles Department, seeking seniority over
one another. The petitioner in O.P.No. 3339/2000 started service as a
L.D. Clerk. Later on, he was appointed by transfer as Assistant Motor
Vehicle Inspector on 23-1-1982 provisionally. As per the Special
Rules applicable, the post of AMVI has to be filled up from among
transferees and direct recruits in the ratio of 1 : 4. The petitioner’s
provisional appointment on 23-1-1982 was regularised and he was
declared to have completed his probation in the cadre of AMVI
satisfactorily with effect from 11-2-1984. The 4th respondent in
O.P.No. 3339/2000, who is the petitioner in O.P.No. 112/2000, was
advised for direct recruitment on 21-3-1983 and he joined service on
30-5-1983. By Ext. P. 2 seniority list of AMVIs, the petitioner was at
serial no. 19 and the 4th respondent at serial no. 20. Pursuant to
objections raised by the 4th respondent, the 3rd respondent issued
Ext.P4 order provisionally holding that since the date of regularisation
of the petitioner in O.P.No. 3339/2000 was 11-2-1984 and the
petitioner in the other original petition joined duty on 30-5-1983, the
petitioner in O.P.No. 211/2000 was senior in the cadre of AMVIs.
Although the petitioner in O.P.No. 3339/2000 filed Exts.P5 and P 6
objections in the matter, by Ext.P7 order, the 3rd respondent declared
that the petitioner in O.P.No. 211/2000 is senior to the petitioner in
O.P.No. 3339/2000. However, in the select lists prepared for the
posts of Motor Vehicle Inspector and Joint R.T.O, the petitioner in
O.P. No. 3339/2000 was shown ahead of the petitioner in the other
original petition. In O.P.No. 211/2000, the 4th respondent in the other
original petition seeks to implement the seniority as confirmed in Ext.
P7 for the purpose of further promotion. Pursuant to interim orders
O.P.No. 211 & 3339/2000 -: 2 :-
passed in that original petition, the date of promotion was assigned to
the petitioner in O.P.No. 211/2000 ahead of the petitioner in the other
original petition subject to the result of these original petitions.
2. The contention of the petitioner in O.P.No. 3339/2000 is that
the petitioner’s provisional appointment on 23-1-1982 was regularised
and his probation was satisfactorily declared with effect from 11-2-
1984. Therefore, his first appointment to the post of AMVI for the
purpose of Rule 27(a) of K.S and S.S.R is 23-1-1982 and not 11-2-
1984. When, admittedly, the petitioner in the other original petition
entered service only as per advice dated 21-3-1983, he can only be
assigned seniority below the petitioner in O.P.No. 3339/2000, is the
contention raised. On the other hand, the petitioner in the other
original petition would contend that in so far as the petitioner in
O.P.No. 3339/2000 was regularised in service only with effect from
11-2-1984, he is liable to be ranked junior to the petitioner in O.P. No.
211/2000 for all purposes of promotion and seniority.
3. I have considered the rival contentions in detail.
4. Ext. P1 in O.P.No. 3339/2000 reads thus:
“Shri. S. Prabhakaran Thampi was provisionally appointed
as Asst. Motor Vehicle Inspector by transfer from among
ministerial staff vide Order No.A3/1027/TC/82 dt. 23.1.82. He
joined duty on 25.1.82 F.N. The period of probation in the cadre of
AMVI is 2 years on duty within a continuous period of three years.
2) The provisional appointment of Shri. S. Prabhakaran
Thampi as Asst. Motor Vehicles Inspector is regularised and he is
declared to have completed is probation in the cadre of Asst. Motor
Vehicle Inspector satisfactorily with effect from 11.2.1984.”
From a reading of the same, what one understands is that the
petitioner’s provisional appointment dated 23-1-1982 has been
regularised and his probation in the cadre of AMVI has been declared
with effect from 11-2-1984. Going by the same, the date of order of
the first appointment of the petitioner in O.P.No. 3339/2000 for the
O.P.No. 211 & 3339/2000 -: 3 :-
purpose of Rule 27(a) of K.S and S.S.R is 23-1-1982 and cannot be
11-2-1984. Further, Rule 18(a) deals with date of commencement of
first appointment temporarily, which reads thus:
“18. (a) Date of commencement of probation of
persons first appointed temporarily:- If a person, having been
appointed temporarily under sub-rule (a) or sub-rule (c) of rule 9 to
a post borne on the cadre of any service, class or category
otherwise than in accordance with the rules governed appointment
thereto, is subsequently appointed to the service, class or category
in accordance with the rules, he shall commence his probation
from the date of such subsequent appointment or from such earlier
date as the appointing authority may determine, without prejudice
to seniority of others.”
There is no case for the respondents in O.P.No.3339/2000 that the
petitioner has been assigned date of commencement of probation
other than 23-1-1982 as contemplated in Rule 18(a). On the other
hand, his probation was declared with effect from 11-2-1984.
Further, once a provisional appointment is ordered to be regularised
without specifying any date, the regularisation would relate back to
the date of provisional appointment, which in the case of the
petitioner in O.P.No. 3339/2000 is 23-1-1982. That would mean that
the petitioner’s first appointment for the purpose of seniority is 23-1-
1982. In that view, the petitioner in O.P.No. 3339/2000 is senior to
the petitioner in O.P.No. 211/2000. Therefore, the petitioner in
O.P.No. 3339/2000 is entitled to be considered as senior to the
petitioner in O.P.No. 211/2000 for all subsequent promotions.
Accordingly, Exts.P4 and P7 are quashed and it is declared that
in the cadre of Assistant Motor Vehicle Inspector, the petitioner in
O.P.No. 3339/2000 is senior to the petitioner in O.P.No. 211/2000.
The date of subsequent promotions of the petitioners shall be revised
accordingly.
The petitioner in O.P.No. 3339/2000 has retired in 2004 and the
other petitioner has retired in 2007. As such, what requires to be done
O.P.No. 211 & 3339/2000 -: 4 :-
now is reassignment of date of subsequent promotions and payment of
arrears of salary on that basis. Accordingly, I direct respondents 2
and 3 to pass orders in accordance with the above directions as
expeditiously as possible, at any rate, within three months from the
date of receipt of a copy of this judgment. Arrears, if any, due to the
petitioner in O.P.No. 3339/2000 shall be disbursed within one month
from the date of passing orders as above. O.P.No. 3339/2000 is
allowed as above and O.P.No. 211/2000 is dismissed.
S. Siri Jagan, Judge.
Tds/
O.P.No. 211 & 3339/2000 -: 5 :-
S. Siri Jagan, J.
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O.P. Nos. 211 & 3339 of 2000
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J U D G M E N T
21st October, 2008.