IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 38125 of 2002(L)
1. K.KRISHNA KUMAR, ASSISTANT MANAGER,
... Petitioner
Vs
1. UNION OF INDIA, REPRESENTED BY
... Respondent
2. AIR INDIA LTD., REPRESENTED BY THE
3. THE DIRECTOR, H.R.D., AIR INDIA LTD.,
4. THE MANAGER, AIR INDIA LTD.,
5. SUDHA MAHENDRA, ASSISTANT MANGER,
6. KARNAD.V.K., ASSISTANT MANAGER,
7. GAIKWAD.D.Y., ASSISTANT MANAGER,
8. M.VIJAYAKUMAR, ASSISTANT MANAGER,
9. M.S.SULE, EXECUTIVE SECRETARY,
10. TANDON A.K., EXECUTIVE SECRETARY,
11. PRADIP SINGH, EXECUTIVE SECRETARY,
12. GEETA MAHAJAN, EXECUTIVE SECRETARY,
13. J.V.KHEDKAR, ASSISTANT MANAGER,
14. SETHI.N.K., EXECUTIVE SECRETARY,
15. R.K.BHANDARI, EXECUTIVE SECRETARY,
16. O.P. MALHOTRA, EXECUTIVE SECRETARY,
17. R. SUBRAMANIAN, EXECUTIVE SECRETARY,
18. VANAJA MUTHU, ASSISTANT MANAGER,
19. S.C.SHINDE, ASSISTANT MANAGER,
20. P.V.THANEKAR, ASSISTANT MANAGER,
21. V.S.VAITY, ASSISTANT MANAGER,
22. T.D. SHERPA, ASSISTANT MANAGER,
For Petitioner :DR.K.P.KYLASANATHA PILLAY
For Respondent :SRI.JOSEPH KODIANTHARA
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :27/02/2009
O R D E R
P.R.RAMACHANDRA MENON, J.
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O.P. No. 38125 of 2002
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Dated, this the 27th day of February, 2009
J U D G M E N T
The case has a history of about three decades and
the grievance, still stated as not redressed, is against the
action of the Management/Employer in rejecting the claim
of the petitioner to re-fix his seniority, over and above the
juniors who were given appointment only much after the
induction of the petitioner to permanent service; reportedly
on the basis of some staff notice issued after the permanent
appointment given to the petitioner. The petitioner is also
aggrieved of the stand taken by the
respondent/Management that the seniority is to be fixed
with respect to the ‘date of confirmation’ and not with
respect to the date of joining the service on a permanent
basis and against their further version that when the date of
confirmation is the same, seniority is to be reckoned on the
basis of the relative merits of the candidates concerned.
2. The petitioner, in response to the notification
issued by the second respondent, had applied for the post of
O.P.No.38125/2002 -:2:-
Traffic Assistant on 28-7-1978. The petitioner was called for
a written test as per Exhibit P1 and on coming out
successful, he was called for an interview vide Exhibit P2
dated 15-12-1978. On proving the mettle, the petitioner was
wait-listed for appointment in the vacancies likely to arise,
as borne by Exhibit P3. Thereafter, the petitioner was
instructed to undergo medical examination vide Exhibit P4
and on completion of the procedural formalities, he was
given appointment on temporary basis from 23-5-1979 to
22-6-1979 as per Exhibit P5 order dated 18-5-1979.
3. It is the case of the petitioner that, but for the
artificial breaks of two or three days, he was made to work
continuously for different spells as borne by Exhibit P6
series and Exhibit P7 and finally, while working on
temporary basis, the petitioner was given ‘permanent
appointment’ as per Exhibit P8 dated 17-10-1979, on the
basis of the original application submitted by him on 28-7-
1978 and the test and interview that followed. In other
O.P.No.38125/2002 -:3:-
words, there was no subsequent written test, interview or
medical examination before being appointed on permanent
basis and hence, the petitioner contends that the vacancy in
which he was made to work was a substantive vacancy and
hence the date of appointment was liable to be reckoned as
the date of officiation in the said post.
4. Subsequently, in the course of time, the
petitioner was given different promotions such as Senior
Traffic Assistant and Chief Traffic Assistant. But pointing
out the fact that several juniors to the petitioner, who came
into the service only subsequently (Mr.S.Sreevardhan who
joined duty on 5-11-1979, Mrs.Sudha Mahendra who joined
the service on 5-11-1979, Mrs.V.Karnad who joined service
on 12-11-1979, Mr.D.Depesh (SC) who joined service on 8-
11-1979) were promoted as Senior Traffic Assistant with
effect from 1-1-1986 and also as Chief Traffic Assistant with
effect from 1-1-1990, the petitioner submitted several
representations, seeking to re-store the seniority of the
O.P.No.38125/2002 -:4:-
petitioner, over and above the juniors, which was declined
by the Management. Even after filing the writ petition,
pursuant to the interim order passed by this Court, yet
another representation preferred by the petitioner was also
considered, leading to Exhibit P30, which has also been
subjected to challenge by effecting appropriate amendment
to the writ petition.
5. The claim of the petitioner is resisted by
respondents 2 to 4 by filing a statement dated 16-6-2008,
contending that as per Clause 2(1)(b) of Staff notice No.21
dated 7-9-1981, “the inter se seniority of an employee has to
be determined by the date of confirmation in the grade.” It
is further stated that, as per Clause 2(iii) of the said staff
notice, “in the case of the employees selected/appointed
after 6-11-1960 and confirmed with effect from an identical
date, the inter se seniority would be governed by the order
of merit at the time of their selection”. It is also pointed out
that the claim putforth by the petitioner as per his
O.P.No.38125/2002 -:5:-
representation dated 20-10-1984 had already been
considered and rejected as per order/letter No.EMP-
2/1/SNRT/46585 dated 8-11-1984, which has not been
challenged. The petitioner has reiterated his contentions by
filing a reply affidavit as to the eligibility to have his
seniority reckoned from May 1979 when he joined the
service as a Traffic Assistant on temporary basis or at least
from the date of permanent appointment given to him.
6. With regard to the reasoning/justification given by
the concerned respondent for denying the benefit to the
petitioner, it is submitted by the learned counsel that the
seniority has to be counted from the date of original
appointment and not from the date of confirmation. The
learned counsel placed reliance on the decision rendered by
the Constitution Bench of the Hon’ble Supreme Court as
reported in The Direct Recruit Class-II Engineering
Officers’ Association and others v. State of
Maharashtra and others [AIR 1990 SC 1607] holding that
O.P.No.38125/2002 -:6:-
when the appointment is according to Rule, seniority has to
be counted from the date of appointment and not from the
date of confirmation (paragraph 44). It is further contended
by the learned counsel that when the temporary
appointment is followed by a regular appointment made in
accordance with the Rules, the continuous officiation in the
post is also liable to be reckoned for seniority as made clear
in paragraph 13 of the very same verdict.
7. The respondents 2 to 4 have not chosen to
file any counter affidavit, but for statement already
mentioned herein before. Similarly, they have not chosen to
produce a copy of the concerned ‘Staff Notice’ upon which
reliance is placed for fixing the seniority with effect from
the ‘date of confirmation’ and as to the reckoning of the
merit in the selection, for fixing higher seniority when the
date of confirmation is the same. The learned counsel for
the respondent/Management expressed regrets for not
having produced a copy of the ‘Staff Notice’ before the
O.P.No.38125/2002 -:7:-
Court, further stating that it is still to be made available;
despite the fact that the case is pending right from the year
2002. It is however conceded that the ‘Staff Notice’ bearing
No.21 dated 7-9-1981 was issued much after the permanent
appointment given to the petitioner vide Exhibit P8 dated 7-
10-1979. Referring to the dictum in D.P.Sharma and
Others v. Union of India and Another [1989 Supp.(1)
SCC 244], the learned counsel for the petitioner submits
that even if the said ‘Staff Notice’ could be held as
sustainable with regard to the norm fixed for reckoning the
seniority with effect from the date of confirmation, it can
only have ‘prospective effect’ and cannot impair the
existing vested rights of the officials who were appointed
long prior to coming into force of the said Norms. Reliance
is also placed on the judgment rendered by a Division Bench
of this Court holding that the accrued rights of the
employee cannot be taken away even by retrospective
amendment of the Rules. This Court finds that there is
considerable force in the submission made by the learned
O.P.No.38125/2002 -:8:-
counsel for the petitioner, especially in view of the dictum
laid down by the Constitution Bench of the Apex Court in
Chairman Railway Board & others v.
C.R.Rangadhamaiah and others reported in 1997(6) SCC
623 .
8. The stand of the respondents 2 to 4 who have
approached the issue in a cursory manner even without
filing a proper counter affidavit before this Court and even
by keeping the concerned ‘Staff Notice’ No.21 dated 7-9-
1981 away from the vicinity of this Court, cannot but be
deprecated. For the very same reason, the reasoning given
by the said respondents to leave the matter as it is, lest it
should adversely affect other employees (who according to
the petitioner are juniors having got permanent
employment only after the petitioner, but treated as seniors
by the respondents 2 to 4 on the basis of the date of
confirmation) cannot be upheld. The learned counsel for the
petitioner submits that all such persons who are liable to be
O.P.No.38125/2002 -:9:-
treated as juniors have already been brought on the party
array as respondents, but they have not chosen to appear
before this Court raising any dispute against the claim
putforth by the petitioner. It is also relevant to note that the
petitioner has been knocking at the doors of the
respondents for more than 2= decades, though the attempt
has not turned to be fruitful.
9. Considering the above facts and circumstances as
a whole, it is only just and proper that before this Court
proceeds to consider the merits and pass any positive order,
the respondents 2 to 4 be given another opportunity to
consider the matter afresh with due regard to the sequence
of the events and also the law declared by the Apex Court
as discussed herein before, which is the law of the land by
virtue of Article 141 of the Constitution of India.
10. In the above facts and circumstances, the second
respondent is hereby directed to re-consider the matter as
O.P.No.38125/2002 -:10:-
specified above. The impugned orders (Exhibits P15, P24,
P27 and P30) are set aside to facilitate such an exercise.
The second respondent shall pass final orders as above
untrammelled by any of the observations and views already
expressed in Exhibits P15, P24, P27 and P30, after giving an
opportunity of being heard to the petitioner, as
expeditiously as possible and at any rate, within a period of
three months from the date of receipt of a copy of this
judgment. The petitioner shall produce a copy of this
judgment along with a copy of the amended original petition
before the second respondent for taking further steps.
The original petition is disposed of as above.
Sd/-
P.R.RAMACHANDRA MENON,
JUDGE.
skr
// True copy //
P.A. to Judge.