G. O. JOSEPH Vs. STATE OF KERALA AND OTHERS

JUDGEMENT

(1.) The writ petitioner in O. P. No. 1532 of 1974, which has been dismissed by a learned single Judge of this Court, is the appellant in this appeal In that writ petition the appellant herein had challenged the legality and validity of the order dated 31-1-1974 passed by the State Government and communicated by it as per the letter. Ext. PI I, addressed by the Government Secretary Labour 'C' Department to the Labour Commissioner rejecting the appeal filed by the petitioner against the ranking fixed in the provisional seniority list of Upper Division Clerks of the Labour Department as on 1-4-1970 published as per Ext. P-8 and assigning to respondents Nos. 3 to 5 ranks above the petitioner The petitioner has also sought to quash the consequential action taken by the Labour Commissioner as per Ext. P-12 relaxing the ranks of the petitioner and respondents Nos. 3 to 6 in the seniority list of Upper Division Clerks of the Labour Department.

(2.) The petitioner as well as respondents Nos. 3 to 6 were Lower Division Clerks in the Labour Department. It is not in dispute that in the said category of Lower Division Clerks respondents Nos. 3 to 6 were all juniors in relation to the petitioner For the purpose of eligibility for promotion to the cadre of Upper Division Clerks personnel in the Lower Division have to acquire the Account Test (lower) Qualification. The petitioner had passed the said test in the year 1956 itself and had thereby become eligible for promotion. Actually the petitioner was promoted as Upper Division Clerk on 9-4-1957 with effect from 5-4-1957. The post assigned to the petitioner in the Upper Division was then in the Labour Court. Ernakulam. Respondents Nos. 3 to 6 were promoted to the Upper Division cadre only long subsequently The 3rd respondent acquitted the test qualification only on 27-9-1957 and the 6th respondent on 27-3-1957. Respondents Nos. 3 and 6 are both graduates, while the petitioner is a non-graduate. On 13-7-1968 the State Government passed an order Ext. P 2 giving a retrospective notional promotion to the 6th respondent as Upper Division Clerk from 27-3-1957 solely on the ground that he had acquired the requisite test qualification on the said date. The consequence of this order was that the 6th respondent was shown as senior to the petitioner in the gradation list of Upper Division Clerks published as per Ext. P-8 Going by the date of acquisition of the test qualification as well as on the basis the dates of the irrespective actual promotions to the Upper Division the petition was clearly entitled to seniority over 6th respondent. Naturally, the petitioner felt aggrieved by the action taken by the Government as per Ext. P 2, which got itself reflected in the seniority list published as per Ext. P 8. The petitioner, therefore, filed a representation before the Government on 9-12-1968. Ext. P 4 is the copy of the said representation. In reply thereto the petitioner was informed by the Government (bat all promotions effected to the Upper Division cadre in the Labour Department subsequent to 1- 1-1956 were proposed to be reviewed and hence the contentions advanced by the petitioner in his representation would receive due consideration at the time of the said review. A draft gradation list of Upper Division Clerks of the Labour Department as on 1-4 1970 was published on 13th of Oct., 1970 In that list the petitioner was shown as senior to respondents Nos. 3 to 6. This gave the impression to the petitioner that his contentions had been upheld by the State Government and that his grievance had been duly rectified by assigning to him his due rank and position in the seniority list of Upper Division Clerks. But on 27-11-1972 a fresh provisional seniority list of Upper Division Clerks in the Department as on 1-4-1970 was published as per Ext. P 8. In that list the petitioner was assigned a rank below respondents Nos. 3 to 6 The rank assigned to the petitioner was No. 12, while the 3rd respondent was assigned rank No. 8 and the 6th respondent was assigned rank No 11. The petitioner thereupon filed a detailed representation to the State Government as per Ext. P-9 dated 17-4 1973. It is that representation that has been finally disposed of by the Government under the impugned order Ext. P-11, which was sought to be quashed in that original petition In the impugned order the Government have recognised that a mistake bad been committed by the Department in giving a notional promotion to the 3rd respondent with effect from 27-3-1957 and thereby causing a rank to be assigned to him above the writ petitioner. After having mentioned this the Government however, proceeded to state in Ext P 11 that even though vacancies in the Upper Division cadre were available in the Labour Department from 15-1-1957 and the petitioner was duly qualified for promotion on that date, the entitlement of the petitioner to those vacancies could not be examined properly and decided "since some of the posts which were created on 15-1-1957 were in Labour Court and the personnel of the Labour Department cannot claim promotion to those posts as a matter of right". A further reason stated is that order merging the ministerial staff of the Industrial Tribunals and Labour Court with the Ministerial Staff of the Labour Department were issued only on 15-3-1960 On the aforesaid reasoning the Government have held as per Ext. P II that even though the petitioner was entitled to a promotion earlier than the 6th respondent the request for re-fixation of seniority cannot be allowed since the 3rd respondent, who is a graduate, is entitled to be restored to the position that has been assigned to the 6th respondent in the seniority list by virtue of the principle commonly known as the A. B. C. formula laid down in G. O M. S. 378 dated 27th April, 1961. In the opinion of the Government the 3rd respondent being senior in service in relation to the 6th respondent she is entitled to be restored to the position assigned to the 6th respondent in the seniority list and the petitioner is liable to surrender bis rank for the purpose of giving protection to respondents Nos 4 and 5, who are allottees from Madras. Though this reasoning contained in Ext. P 11 was challenged by the petitioner as manifestly erroneous and illegal, the said challenge did not find favour with the learned single Judge and the original petition was, therefore, dismissed. Hence this appeal by the writ petitioner.

(3.) After hearing the counsel for the petitioner and respondent No. 3 as well as the learned Advocate General, who appeared for the State, we have unhesitatingly come to the conclusion that this writ appeal has to be allowed. It is clear from the order Ext P-11 itself that there were vacancies in the Upper Division cadre in the Labour Department from 15-1-1957. In the counter-affidavit filed on behalf of the State Government in the writ petition it was averred that the promotion given to the 6th respondent was in a vacancy that arose consequent on the promotion of one Sarah Varghese. Since the date of occurrence of that vacancy of Upper Division Clerk in the Labour Department was not clearly mentioned in the counter-affidavit, we requested the learned Advocate General to obtain the said information from the Department. The learned Advocate General has informed us in Court today that the vacancy in question arose on 22-3-1957. There was, therefore, a vacancy of Upper Division Clerk available in the Labour Department itself (leaving out of account vacancies in the Labour Courts) on 22-3-1957. On that date the petitioner was the senior most qualified hand amongst the Lower Division Clerks working in the Department The 6th respondent acquired the test qualification only on 27-3-1957. The legitimate claimant for promotion in the vacancy that arose on 22-3-1957 was, therefore, the petitioner and the petitioner is entitled to have the said vacancy assigned to him for purpose of fixation of his rank and seniority. Once the petitioner is given that vacancy, there is no question of his having to surrender his seniority or rank in favour of respondents Nos. 3 or 6, because neither of them, though graduates was test qualified on the date of occurrence of the said vacancy The Government Order dated 27th April 1961, whereby the principles to be followed for the application of test rules and graduate non-graduate ratio (A B C. formula GO) have been laid down, clearly states that if a particular vacancy is that of a graduate and the turn for promotion of a graduate is in accordance with the ratio for promotion is passed over for want of test qualification on his part and if a senior (that is in the Lower Division) non-graduate is promoted in his place the turn so lost will not be restored to that graduate when he subsequently passes the test and gets promoted to the Upper Division cadre. The petitioner who ought to have been promoted on 22-3-1957 is entitled to retain his rank and seniority fixed with reference to that date without having to surrender his position in favour of respondents 3 and 6, for the reason that he was senior to both of them in the Lower Division and neither respondent No. 3 nor respondent No. 6, though graduates, possessed the requisite test qualification on the date of occurrence of the vacancy. Rule 28 (bb) of the general rules contained in the Kerala State and Subordinate Services Rules clearly lays down that where promotion in a service or class depends upon the passing of any examination such promotion shall be made with reference to the conditions existing at the time of occurrence of the vacancies and not with reference to those at the time when the question of promotion is taken up. The petitioner is therefore well founded in his contention that he is entitled to be assigned seniority and rank over both respondents 3 and 6 in the gradation list of Upper Division Clerks published as on 1-4-1970 as per Ext. P 8. The orders Exts P 11 and P 12 in so far as they declare the petitioner to be junior in rank in relation to respondents No. 3 to 5 in the cadre of Upper Division Clerks cannot, therefore, be sustained Respondents Nos. 4 and 5 are personnel allotted from the erstwhile Madras State But they are admittedly juniors in relation to the writ petitioner in the category of Lower Division Clerks Thus the position that emerges from the above discussion is that in the seniority list published as per the proceedings of the Labour Commissioner, Trivandrum, No. B 6 - 24223/70 dated 27th Nov., 1972 the petitioner will have to be assigned rank No. 8 amongst Upper Division Clerks by substituting him in the place assigned to the 3rd respondent (Smt Chidambara Vadivu). Respondents Nos. 4 and 5 will be retained in their existing position, namely as holding ranks Nos. 9 and 10 The 3rd respondent will be assigned rank No 11 in the place of Sri R Janardanan (6th respondent), who will take rank immediately below her as holding rank No 12 There will be a direction to respondents Nos. 1 and 2 the original petition to refix the ranks of the petitioner and respondents Nos. 3 to 6 in the manner indicated above. The judgment of the learned single Judge dismissing O. P. No. 1532 of 1974 is accordingly set aside and the writ appeal is allowed to the extent indicated above. The parties will bear their respective costs. A carbon copy of this judgment will be furnished forthwith to the Learned Advocate General free of charges. Appeal allowed.