Abdul Majeed Vs. The State of Kerala & Ors  Insc 372 (7 August 2001)
Shah Mohammed Quadri & S.N. Phukan Phukan, J.
appeal by special leave is against the judgment of the Division Bench of the
High Court of Kerala in Writ Appeal No.1308 of 1998. The writ petition filed by
the appellant was dismissed by the learned Single Judge, which was affirmed in
following facts are not disputed. On 16.02.1981, an advertisement was issued by
the Greater Cochin Development Authority (for short the GCDA), respondent No.3
calling for applications from the last Grade Servants of the GCDA for the post
of Lower Division Typist. The appellant, who fulfilled the qualifications
specified in the advertisement, was appointed on 27.03.1981 after proper
selection. Subsequently, he completed the period of probation satisfactorily in
the said post. On 02.07.1983, the appellant was promoted to the post of Upper
Division Typist and was placed on probation for two years. He completed satisfactorily
the said period of probation also. Respondent Nos.4, 5 and 6 were appointed as
Lower Division Typist on 20.09.1984, 23.02.1985 and 15.07.1985 respectively. On
1.1.1987 a provisional seniority list was published in which the appellant was
placed on the top of the list whereas respondent No.4 was placed at position
No.2 in the said list.
No.4 filed a representation claiming seniority over respondent No.1 on the
ground that appointment of appellant as Lower Division Typist was illegal, as on
the date of his appointment he was not qualified for the post. On 7.1.1988
impugned final seniority list was published by the respondent No.3, wherein
appellant was shown junior to respondent Nos. 4, 5 & 6. This list was
challenged by the appellant by filing a Writ Petition which was dismissed and
so also the writ appeal. That is how the parties are before us in this appeal.
writ petition was resisted by respondents on the ground that when the appellant
was appointed to the post of Lower Division Typist on 27.3.1981, he did not
possess requisite qualifications for the post and the GCDA was not the
appointing authority, as the power of appointment for the posts under the GCDA
was brought within the purview of the Kerala Public Service Commission (for short
the Commission) by an Act of the State Legislature. Though, the appellant was
shown to have been appointed under the Greater Cochin Development Authority
(Establishment) By-laws, 1977, those were only draft Bye-laws framed under
Section 53(2) of the Town Planning Act (IV of 1108) and Section 54(2) of the
Madras Town Planning Act, 1920 and were not approved by the State Government as
required under the above two Acts. As the Commission was the appointing
authority, the GCDA requested concurrence of the Commission for the appointment
of the appellant but it was refused. Subsequently, appellant was given time to
obtain the requisite qualification which he did and again the matter was taken
up with the Commission. The Commission gave concurrence for the appointment of
appellant from the date of acquiring the requisite qualification i.e. 21.4.1990
and accordingly his seniority was fixed with effect from that date and the
draft seniority list was revised.
learned senior counsel for the appellant has urged that the appellant had the
requisite qualifications as per the advertisement and accordingly applied,
thereafter he was duly appointed after selection. On these facts, the learned
senior counsel has submitted that after more than 7 years of his appointment,
respondents cannot turn around and take the plea that the appointment was
irregular. In support of this contention, the learned senior counsel has drawn
our attention to the facts that the appellant not only successfully completed
his period of probation as Lower Division Typist but subsequently he was also
promoted to the higher post in which also he completed the period of probation.
In any event according to the learned senior counsel the private respondents 4
to 6 who were appointed subsequently have no legal right to question the
initial appointment of the appellant and being junior in terms of period of
service they cannot claim seniority over the appellant.
learned senior counsel for the GCDA, has contended that as initial appointment
of the appellant to the post was irregular, he cannot claim seniority from the
said date of appointment and that his seniority was correctly fixed by the GCDA
in consultation with the Commission from the date the appellant acquired the
learned senior counsel appearing for the private respondents 4 to 6 has urged
that the appointment of the appellant was through back door whereas the private
respondents were appointed through Public Service Commission and, therefore,
the appellant cannot get seniority over the private respondents.
an admitted position that the post was advertised by the GCDA and the appellant
possessed all the qualifications as shown in the advertisement. He was duly
selected and appointed.
completed his period of probation. He was given one promotion to the next
higher grade and his probation was declared in promoted post of Upper Division
Typist. In view of these admitted facts we find force in the submission of Mr.
Dave that after long lapse of time the question of initial appointment cannot
be re-opened at the instance of private respondents and that too for altering
the contention of Mr. Iyer, learned senior counsel, has to be rejected.
appellant was appointed after the post was advertised and he was duly selected
before appointment it cannot be said that the appointment of the appellant was
through back door and therefore we reject the contention of Mr. Sukumaran,
learned senior counsel.
learned senior counsel has very fairly submitted that there is no rule
regarding seniority of the employees of the GCDA, the Kerala and Subordinate
Services Rules, 1958 would apply and seniority has to be fixed in terms of Rule
27. The relevant portion of Rule is extracted below:
(a) Seniority of a person in a service, class, category or grade shall, unless
he has been reduced to a lower rank as punishment, be determined by the date of
the order of his first appointment, to such service, class, category or grade.
If any portion of the service of such person does not count towards probation
under the Rules, his seniority shall be determined by the date of commencement
of his service which counts towards probation.
language of above Rule 27 is clear and unambiguous. The seniority of an
employee has to be determined by the date of the order of the first appointment
in the service unless he has been reduced to lower rank as punishment or any
portion of his service would not be counted towards probation. Admittedly, the
appellant was never reduced to the lower rank. It was neither pleaded nor any
records were placed to show that any portion of the service of the appellant
could not be counted towards probation.
in the post of Lower Division Typist as well as Upper Division Typist, his
probation was declared based on his initial appointment and subsequent
promotions respectively. The question whether initial appointment was regular
or not cannot be considered at the time of fixation of seniority under this
Rule. As the re-fixation of seniority by GCDA by the impugned seniority list is
not in accordance with Rule 27, referred to above, it is, therefore, bad in law
and consequently the impugned seniority list is liable to be quashed.
the reasons stated above we find merit in the present appeal and accordingly it
is allowed by setting aside the judgment of the learned Single Judge as well as
the Division Bench of the High Court. Consequently, the impugned seniority list
is quashed and respondent No.3 is directed to prepare and publish a fresh
seniority list showing appellant senior to private respondents 4 to 6 on the
basis of provisional seniority list of 1.1.1987. In view of the facts and
circumstances of the case we direct the parties to bear their own cost.
SHAH MOHAMMED QUADRI] .....J.
PHUKAN] August 07, 2001.