Thomas Mathew and Another Vs. State of Kerala represented by Secretary to Government Industries (E) Department and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1181467
CourtKerala High Court
Decided OnJan-18-2016
Case NumberW.P(C). Nos. 28256 of 2015-F, 31493 of 2015-J, 31504 of 2015-K & 1191 of 2016-Y
JudgeK. Vinod Chandran
AppellantThomas Mathew and Another
RespondentState of Kerala represented by Secretary to Government Industries (E) Department and Another
Excerpt:
1. w.p(c). nos.31493 of 2015, 31504 of 2015 and 1191 of 2016 all relate to the same issue and the resolution of the same would effectively dispose of wp(c) no.28256 of 2015. hence, the three writ petitions are first considered and from among them, the documents are referred to from wp(c) no.31504 of 2015 and if otherwise, the writ petitions are specifically mentioned. 2. the entire controversy revolves around the issue of deciding the seniority of those persons, regularized on 18.03.1996 as per ext.p1; whether the same has to be on the basis of the date of birth or the date of entry into service as a daily waged employee. all the petitioners herein, were regularized on 16.03.1996 as per ext.p1 along with others, totaling 30 in different designations. the issue is confined to the 22 out of the 24 regularized as assistants, by ext.p1 and inter se seniority between them. 3. on the regularization in 1996, the 24 assistants were shown serially in a list appended to ext:p-1 showing their educational qualifications, date of birth etc: without assigning any seniority. after regularization, ext:r-1(c) provisional seniority list was published, wherein 22 persons, remaining of the 24 persons, were assigned seniority on the basis of date of birth. no objections having been received the list was finalized as per ext:r-1(d). the said seniority list was objected to and the government considering the same, purportedly to make the assignation of seniority compliant with kerala state and subordinate services rules, 1958 (for brevity 'ksandssr'), attempted to modify the list finalized, by publishing another provisional seniority list as per ext:r-1(e) assigning seniority in accordance with the date of entry into service as a daily waged employee. the person, who entered service as a daily waged employee, was given seniority above a person engaged later; though the regularization of all the 25 persons occurred on one date, ie. 16.03.1996. this was on the undisputed premise of those daily waged employees having continued uninterruptedly after their respective initial appointments. 4. the board however realizing that the provisional list as per ext:r-1(e) was in violation of the earlier final list published; kept ext:r-1(e)in abeyance by ext:r-1(f) and (g). clarification was also sought from government, by letter dated 27.11.2002 as is seen from ext:r-1(g). the government replied by ext:p-2, directing preparation of seniority list in accordance with the provisions in rule 27(c) of ksandssr. in obedience with the direction issued by the government, the seniority on regularization was finalized as per ext.p3 dated 09.06.2006 ie: on the basis of date of entry into daily waged employment. none challenged the same. 5. further noticing the fact that the controversy having been kept alive for all these years and none who were regularized could be considered for promotion, the board issued ext:p-4 and 17 senior ld clerks were promoted as ud clerks. further promotions also were made of 12 ud clerks, to various higher posts by ext:p-5 dated 11.09.2006. this was on the basis of the seniority assigned as per ext.p3. again none challenged these promotions. the persons so assigned seniority and promoted, continued as such for long years. 6. the entire issue was re-opened by ext.p6, after six years. by ext.p6 dated 17.10.2012. the chief executive officer of the board, based on a government direction referred to as item no.4 in the said order, directed that the entire seniority be revised with respect to the 22 regularized workers, on the basis of their date of birth. it is not clear as to what prompted the government to issue such directions, since none had challenged the seniority finalized or the promotions made. 7. the persons, who were aggrieved with that order and who had been considered seniors and also promoted, based on their settled seniority approached this court by writ petitions challenging ext.p6 order of the chief executive officer. this court, by ext.p7, found that the decision of 09.06.2006 (ext:p-3) cannot be sustained, since it was the exclusive premise of the government to have prescribed the seniority and the government having not invoked the powers under article 166(2) of the constitution of india, the earlier orders fixing the seniority on the basis of the initial entry into service cannot be sustained. the further order dated 2012 also suffered the same infirmity since that too was issued by the chief executive officer of the board and not the government. hence, ext.p7 directed a fresh consideration by the government. the fresh consideration made at ext.p8 is challenged herein, since the same re-assigned the seniority as on 16.03.1996, on the basis of the date of birth of the 22 persons regularized on that date. the elder getting seniority over the younger; which according to the petitioners would upset the settled seniority and the promotions made on that premise. 8. the petitioners have, for resolution of the dispute, relied on g.p. doval and others v. chief secretary, government of u.p. and others [(1984) 4 scc 329], nirmal kumar choudhary and others v. state of bihar and others [1988 khc 783], shiba shankar mohapatra and others v. state of orissa and others [2010 (1) klt sn 1] decisions of the hon'ble supreme court and this courts decisions in dr.a.k. chirappanath v. dr.m.a. ittyachan [1992 (1) klt 406], raveendran nair v. state of kerala [2001 (2) klt 809], vijayan nair v. state of kerala [2007 (4) klt 782], pavithran v. state of kerala [2009 (4) klt 20 (fb)], chief general manager, bsnl, trivandrum and another v. rajesh s. [2015 (2) khc 117 (fb)]. 9. the learned senior counsel appearing for the board relies on k. madalaimuthu and another v. state of tamilnadu and others [(2006) 6 scc 558] to contend that when regularization is made of provisional/temporary employees, the employee appointee cannot be given seniority from the date of his provisional/temporary appointment and the same has to be conceded to be only from the date on which such regularization has been made. the government relies on ram ganesh tripathi and others v. state of u.p. and others [(1997) 1 scc 621], registrar general of india and another v. v. thippa setty and others [(1998) 8 scc 690], state of haryana v. haryana veterinary and ahts association and another [(2000) 8 scc 4], state of punjab and others v. ishar singh and others [(2002) 10 scc 674], punjab state electricity board and others v. jagjiwan ram and others [(2009) 3 scc 661]. 10. it would be ideal that the decisions be examined first to put the law in the proper perspective. g.p.doval (supra) framed the following issue for consideration: 4. ....the question is: where on account of exigencies of service, recruitment to a post within the purview of the public service commission is made by the appointing authority, but at a later date the public service commission puts its seal of approval on such an appointee, whether the continuous and uninterrupted service rendered by such appointee prior to the approval by the public service commission can and should be taken into computation while determining seniority based on the principle of length of continuous officiation? 11. the hon'ble supreme court first examined whether there was any statutory rule or administrative instructions governing the matter and found the government order of 1940, relied on by the government to be only a model. the government order itself was found to be one permitting officiating service to be reckoned for seniority, if it is followed by confirmation . it was stated so in paragraph 15: 15. ... in fact a fair rule of seniority should ordinarily take into account the past service if the stopgap arrangement is followed by confirmation. this view which we are taking is borne out by the decision of this court in baleshwar dass v. state of u.p., wherein this court observed that the principle which has received the sanction of this court's pronouncement is that officiating service in a post for all practical purposes of seniority is as good as service on a regular basis. it may be permissible, within limits for government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categorical and do not admit of any ambiguity and cruelly arbitrary cut-off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types of posts . it was said that service rules will have to be reasonable, fair and not grossly unjust if they are to survive the test of articles 14 and 16. it is thus well-settled that where officiating appointment is followed by confirmation unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list. (emphasis supplied) 12. nirmal kumar choudhary (supra) too followed the said rule, where the question raised was the seniority on amalgamation of the cadre of engineers in three departments. it was held so: in the absence of rules, the more equitable way of preparing the combined gradation list would be to take the total length of service in the common grade as the basis for determining inter se seniority. 13. the decisions of this court, relied on by the petitioners, are now discussed. dr.a.k. chirappanath (supra) does not apply here, since the controversy resolved was whether the professors appointed under the university should be assigned seniority on the basis of date of joining or the date of their appointment. rule 29(c) of the ksandssr was relied on to urge the application of the latter mode, which was found to be applicable only to the advise made by the public service commission and not to the appointments made by the university directly. 14. promotions effected from the feeder category, preferring those born earlier, ignoring the service in that category was struck down in raveendran nair (supra) on the principle that persons from the same cadre when get promotion to the higher posts, must carry along with them their seniority in the lower cadre. this legal position is beyond controversy (sic),{a division bench of this court in wa no.1233 of 1994}. the facts disclose that there, promotions were effected from grade-i, to which posts the petitioners and respondents were promoted on the same day. but the petitioners had seniority in grade-ii; which it was held, has to be preserved in the higher post. vijayan nair (supra) also struck down a seniority list proposed on the basis of reservation and date of birth, citing the reason of absence of a rule to follow either of the said procedures. 15. ram ganesh tripathi (supra) by the hon,ble supreme court, cited by the respondents, was a case in which back-door appointments made on an adhoc basis, was regularized and those persons given seniority over the regularly selected candidates. adhoc appointments were made by the government, even when there were regulations framed for recruitment. confirmation of such employees from a date prior to the date of regularization was found to be ultra vires the statutory rules and hence malafide. v. thippa setty (supra) was also on the same lines, in a case where the regularization from the date of adhoc appointment was found to be bad for reason of the disturbance caused to the seniority of the regularly appointed employees. the tribunals were cautioned in so far as granting retrospective regularization without the affected persons in the party array. 16. haryana veterinary and ahts association (supra) was a case in which an employee claimed higher grade under a circular, reckoning the period spent on adhoc service, prior to regular appointment. the recruitment rules were found to be clear in not permitting any service rendered on adhoc or stopgap basis to be counted for any benefit of revised pay scales or higher grades. ishar singh (supra) and jagjiwan ram (supra) followed the fore-cited decision. k. madalaimuthu (supra) was also a case in which initial appointment was made to a post without recourse to the rules of recruitment. the retrospective effect given to the regularization, on the strength of government orders, was found to be contrary to established principle of law relating to determination of seniority and hence declared erroneous. 17. what emerges from the discussion above is that when there is a rule of recruitment and by-passing that, an adhoc or temporary appointment is made, then that period of service cannot be reckoned for seniority or for any other benefits/incidence of service. however, in the absence of such a rule, then the exact nature of such appointments are to be looked at. it cannot also be lost sight of that all the above decisions dealt with an adhoc appointee subsequently regularized seeking either seniority over the regular recruits in the cadre or claiming additional benefits of higher grade/promotion/revision of pay scale etc; reckoning the adhoc service. no such claim can be found here, since the dispute is not one of inter se seniority of all persons in the cadre; but is one of the seniority as amongst the persons regularized, not affecting another in the cadre. also the prior service is sought to be reckoned for no other purpose other than the seniority amongst them. 18. the challenge is against ext.p8 order, which proceeds on the following reasoning: 8) it is apt to observe that regularisation order will have effect only from the date of the order. their service as daily wagers cannot be counted for any purpose. hence the date of entry into regular service shall be considered for inter se seniority. if the date of entry into regular service is the same, then the date of birth shall be considered for inter se seniority. 19. admittedly, the 22 persons, now continuing in the employment of the board, were regularized in the service on 16.03.1996. all of them had prior employment in the board itself as daily wage workers. in fact, it is the continuance of these persons continuously for long periods as temporary hands, that motivated the government to order regularization of their services. it is also the undisputed position that there was in existence no rule for recruitment, promotion or the like when the initial engagement on daily wages were made. it cannot be disputed that the seniority of such persons and any incidence of service flowing to such persons, can originate only from the date of the regularization, ie. 16.03.1996. 20. the inter se seniority with respect to these employees regularized on that date and other employees in the same cadre in the respondent board, if any, who have been appointed regularly, has also to be determined on the basis of the date of appointment/regularization. the mere fact that a person, regularized on 16.03.1996 had long years of service prior to that, would not definitely enure to his/her benefit, so as to get a march over another person, who was appointed before the regularization; regularly and pursuant to a proper selection made. at the risk of repetition it has to be emphasized that the controversy in the present case is not with respect to the inter se seniority of the persons, who are regularized and others continuing in the cadre of the board. 21. here, the issue has to be confined to determination of seniority as among the 22 persons, who were regularized on 16.03.1996. the regularization itself was on account of their continued service as daily wage workers. when they were regularized, there is no change in the work and they were regularized in the post in which they had been continued as daily wage workers. in such circumstance, definitely there should be some significance given to the experience each person has in the particular post, in which each had continued with others,temporarily for long and then regularized on a date. 22. it is to be reiterated that such a consideration would be mandatory only with respect to the seniority being fixed among the 22 persons and not with respect to any other persons in the service of the board. the mere fact that a person, who had been appointed later was elder to another person, who had more experience in such employment, would not and could not enure to his benefit, so as to get a march over the senior person in service. though, rule 27 of the ksandssr is referred to, that deals with initial appointment and it would only result in a finding that the seniority has to be decided as on 16.03.1996, which is the effective date of appointment, being the date of regularization of these 22 persons. rule 27 would have no application in so far as the seniority amongst the daily wage employees are considered. 23. the binding precedents discussed above also would indicate that, when a person has larger service in a particular employment, he should be assigned seniority over and above a person having lesser service. true, this may not apply in the case of determining the seniority of a person, who was continued as a temporary employee and one appointed regularly. when the issue is with respect to the seniority of those persons appointed temporarily on various dates and regularized on one single date, definitely the reasonable view would be to adopt seniority among those persons in such a manner as he who was senior in the temporary employment is placed above the junior in a like employment. 24. the learned senior counsel appearing for the board in fact would rely on ext.p7 to contend that the seniority fixed as on 2006 by ext.p5 has been set aside by another learned single judge of this court and it would not be proper for this court to revive that order. if at all ext.p8 is found to be not reasonable, then the proper measure would be to direct reconsideration, is the argument. it is to be noticed that ext.p4 order has been set aside by this court in ext.p7, only on the ground that the same is not in consonance with article 166 (2) of the constitution of india and the government having not invoked such powers in deciding the issue and hence directed consideration of the same again. hence, the issue was not considered on merits by the learned single judge and the issue was relegated for consideration of the government. 25. it is not in controversy that there could be seniority assigned amongst the 22 persons only by two methods; one by adoption of date of birth as the regulating factor or by adoption of the date of entry into service being the significant aspect to be looked at. hence, when ext.p8 is set aside for it being unreasonable and arbitrary, definitely the other view can only be that the seniority has to be assigned as from the date of their temporary appointment, which from the various documents produced in the writ petitions, would indicate that board themselves had conceded to be continuous. on the aforesaid reasoning, it cannot be said that if ext.p8 is set aside, without a direction to re-determine the issue, it would amount to revival of ext.p3 order. only two views being possible, and the one view adopted by the government, having been found to be bad, the foregone conclusion is that the other view alone can be sustained. 26. further a remand is unnecessary since there is the further question of preservation of the vested rights of the petitioners, who had continued in the employment of the board after regularisation, for long, on the basis of the seniority determined as above. it is also to be noted that all the 22 persons have been promoted, subsequently from the post in which they were regularised. the same has been done on the basis of the fixation of seniority of the year 2006. it was after six years that the board had thought it fit to come out with a revision of seniority, as is indicated at ext.p6, based on the criteria of date of birth. in the intervening period, no person had challenged the seniority prepared and the promotions granted for reason of the prescription of first date of temporary appointment being wrong. none had also asserted that the date of birth should be the determining factor for deciding seniority; till ext.p6 was passed in the year 2012. hence, for a period of six years, the petitioners had been continued in the promoted post on the basis of their seniority assigned as per ext.p4. 27. apposite would be reference to the decision of the hon'ble supreme court in shiba shankar mohapatra and others v. state of orissa and others [2010 (12) scc 471], in which paragraphs 18 and 30 are extracted hereunder: 18. the question of entertaining the petition disputing the long standing seniority filed at a belated stage is no more res integra. a constitution bench of this court, in ramchandra shanker deodhar and others v. state of maharashtra and others, air 1974 sc 259, considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. a party should approach the court just after accrual of the cause of complaint. while deciding the said case, this court placed reliance upon its earlier judgments, particularly in tilokchand motichand v. h.b. munshi, air 1970 sc 898, wherein it has been observed that the principle, on which the court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. the court further observed as under:- the party claiming fundamental rights must move the court before other rights come into existence. the action of the courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court. 30. thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. in k.r. mudgal v. r.p. singh [(1986) 4 scc 531], this court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation. 28. it has to be held that the promotion of the petitioners cannot be unsettled at this distance of time. the decision in pavithran and rajesh s.[both supra] are also to the same effect. the writ petitions are allowed, setting aside ext.p8 order and the consequential list produced at ext.p9, directing the board to determine the seniority as on the date of initial appointment, but however such a benefit being confined only to determine the seniority among the 22 persons regularised as on 16.03.1996. it is made clear that, no service benefits would enure to such persons on the basis of their initial temporary appointment, nor could they claim any seniority in the cadre, as against the other persons, who are continuing in the board, in the initially appointed post or the promoted posts. wp(c) no.28256 of 2015 was filed since the entire promotions having been stalled. the petitioners therein are not affected by the seniority issue in the other cases. the persons, who are admitted juniors to the persons, who were regularised in the year 1996, were before this court, seeking consideration of their claims. in the light of the determination of the seniority of the other persons and the disposal of the aforesaid cases, the petitioners could agitate their cause before the appropriate forum. all contentions are left open. w.p(c). nos.31493 and 31504 of 2015 and 1191 of 2016 are allowed. w.p(c). no.28256 of 2015 is closed with the above reservation. parties are directed to suffer their respective costs.
Judgment:

1. W.P(C). Nos.31493 of 2015, 31504 of 2015 and 1191 of 2016 all relate to the same issue and the resolution of the same would effectively dispose of WP(C) No.28256 of 2015. Hence, the three writ petitions are first considered and from among them, the documents are referred to from WP(C) No.31504 of 2015 and if otherwise, the writ petitions are specifically mentioned.

2. The entire controversy revolves around the issue of deciding the seniority of those persons, regularized on 18.03.1996 as per Ext.P1; whether the same has to be on the basis of the date of birth or the date of entry into service as a daily waged employee. All the petitioners herein, were regularized on 16.03.1996 as per Ext.P1 along with others, totaling 30 in different designations. The issue is confined to the 22 out of the 24 regularized as Assistants, by Ext.P1 and inter se seniority between them.

3. On the regularization in 1996, the 24 Assistants were shown serially in a list appended to Ext:P-1 showing their educational qualifications, date of birth etc: without assigning any seniority. After regularization, Ext:R-1(c) provisional seniority list was published, wherein 22 persons, remaining of the 24 persons, were assigned seniority on the basis of date of birth. No objections having been received the list was finalized as per Ext:R-1(d). The said seniority list was objected to and the Government considering the same, purportedly to make the assignation of seniority compliant with Kerala State and Subordinate Services Rules, 1958 (for brevity 'KSandSSR'), attempted to modify the list finalized, by publishing another provisional seniority list as per Ext:R-1(e) assigning seniority in accordance with the date of entry into service as a daily waged employee. The person, who entered service as a daily waged employee, was given seniority above a person engaged later; though the regularization of all the 25 persons occurred on one date, ie. 16.03.1996. This was on the undisputed premise of those daily waged employees having continued uninterruptedly after their respective initial appointments.

4. The Board however realizing that the provisional list as per Ext:R-1(e) was in violation of the earlier final list published; kept Ext:R-1(e)in abeyance by Ext:R-1(f) and (g). Clarification was also sought from Government, by letter dated 27.11.2002 as is seen from Ext:R-1(g). The government replied by Ext:P-2, directing preparation of seniority list in accordance with the provisions in Rule 27(c) of KSandSSR. In obedience with the direction issued by the Government, the seniority on regularization was finalized as per Ext.P3 dated 09.06.2006 ie: on the basis of date of entry into daily waged employment. None challenged the same.

5. Further noticing the fact that the controversy having been kept alive for all these years and none who were regularized could be considered for promotion, the Board issued Ext:P-4 and 17 senior LD Clerks were promoted as UD Clerks. Further promotions also were made of 12 UD Clerks, to various higher posts by Ext:P-5 dated 11.09.2006. This was on the basis of the seniority assigned as per Ext.P3. Again none challenged these promotions. The persons so assigned seniority and promoted, continued as such for long years.

6. The entire issue was re-opened by Ext.P6, after six years. By Ext.P6 dated 17.10.2012. The Chief Executive Officer of the Board, based on a Government direction referred to as item No.4 in the said order, directed that the entire seniority be revised with respect to the 22 regularized workers, on the basis of their date of birth. It is not clear as to what prompted the Government to issue such directions, since none had challenged the seniority finalized or the promotions made.

7. The persons, who were aggrieved with that order and who had been considered seniors and also promoted, based on their settled seniority approached this Court by writ petitions challenging Ext.P6 order of the Chief Executive Officer. This Court, by Ext.P7, found that the decision of 09.06.2006 (Ext:P-3) cannot be sustained, since it was the exclusive premise of the Government to have prescribed the seniority and the Government having not invoked the powers under Article 166(2) of the Constitution of India, the earlier orders fixing the seniority on the basis of the initial entry into service cannot be sustained. The further order dated 2012 also suffered the same infirmity since that too was issued by the Chief Executive Officer of the Board and not the Government. Hence, Ext.P7 directed a fresh consideration by the Government. The fresh consideration made at Ext.P8 is challenged herein, since the same re-assigned the seniority as on 16.03.1996, on the basis of the date of birth of the 22 persons regularized on that date. The elder getting seniority over the younger; which according to the petitioners would upset the settled seniority and the promotions made on that premise.

8. The petitioners have, for resolution of the dispute, relied on G.P. Doval and others v. Chief Secretary, Government of U.P. and others [(1984) 4 SCC 329], Nirmal Kumar Choudhary and Others v. State of Bihar and Others [1988 KHC 783], Shiba Shankar Mohapatra and Others v. State of Orissa and Others [2010 (1) KLT SN 1] decisions of the Hon'ble Supreme Court and this Courts decisions in Dr.A.K. Chirappanath v. Dr.M.A. Ittyachan [1992 (1) KLT 406], Raveendran Nair v. State of Kerala [2001 (2) KLT 809], Vijayan Nair v. State of Kerala [2007 (4) KLT 782], Pavithran v. State of Kerala [2009 (4) KLT 20 (FB)], Chief General Manager, BSNL, Trivandrum and Another v. Rajesh S. [2015 (2) KHC 117 (FB)].

9. The learned Senior Counsel appearing for the Board relies on K. Madalaimuthu and Another v. State of Tamilnadu and Others [(2006) 6 SCC 558] to contend that when regularization is made of provisional/temporary employees, the employee appointee cannot be given seniority from the date of his provisional/temporary appointment and the same has to be conceded to be only from the date on which such regularization has been made. The Government relies on Ram Ganesh Tripathi and Others v. State of U.P. and Others [(1997) 1 SCC 621], Registrar General of India and Another v. V. Thippa Setty and Others [(1998) 8 SCC 690], State of Haryana v. Haryana Veterinary and AHTS Association and Another [(2000) 8 SCC 4], State of Punjab and Others v. Ishar Singh and Others [(2002) 10 SCC 674], Punjab State Electricity Board and Others v. Jagjiwan Ram and Others [(2009) 3 SCC 661].

10. It would be ideal that the decisions be examined first to put the law in the proper perspective. G.P.Doval (supra) framed the following issue for consideration:

4. ....The question is: where on account of exigencies of service, recruitment to a post within the purview of the Public Service Commission is made by the appointing authority, but at a later date the Public Service Commission puts its seal of approval on such an appointee, whether the continuous and uninterrupted service rendered by such appointee prior to the approval by the Public Service Commission can and should be taken into computation while determining seniority based on the principle of length of continuous officiation?

11. The Hon'ble Supreme Court first examined whether there was any statutory rule or administrative instructions governing the matter and found the Government Order of 1940, relied on by the Government to be only a model. The Government Order itself was found to be one permitting officiating service to be reckoned for seniority, if it is followed by confirmation . It was stated so in paragraph 15:

15. ... In fact a fair rule of seniority should ordinarily take into account the past service if the stopgap arrangement is followed by confirmation. This view which we are taking is borne out by the decision of this Court in Baleshwar Dass v. State of U.P., wherein this Court observed that the principle which has received the sanction of this Court's pronouncement is that officiating service in a post for all practical purposes of seniority is as good as service on a regular basis. It may be permissible, within limits for Government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categorical and do not admit of any ambiguity and cruelly arbitrary cut-off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types of posts . It was said that service rules will have to be reasonable, fair and not grossly unjust if they are to survive the test of Articles 14 and 16. It is thus well-settled that where officiating appointment is followed by confirmation unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list. (emphasis supplied)

12. Nirmal Kumar Choudhary (supra) too followed the said rule, where the question raised was the seniority on amalgamation of the cadre of Engineers in three departments. It was held so:

In the absence of rules, the more equitable way of preparing the combined gradation list would be to take the total length of service in the common grade as the basis for determining inter se seniority.

13. The decisions of this Court, relied on by the petitioners, are now discussed. Dr.A.K. Chirappanath (supra) does not apply here, since the controversy resolved was whether the Professors appointed under the University should be assigned seniority on the basis of date of joining or the date of their appointment. Rule 29(c) of the KSandSSR was relied on to urge the application of the latter mode, which was found to be applicable only to the advise made by the Public Service Commission and not to the appointments made by the University directly.

14. Promotions effected from the feeder category, preferring those born earlier, ignoring the service in that category was struck down in Raveendran Nair (supra) on the principle that persons from the same cadre when get promotion to the higher posts, must carry along with them their seniority in the lower cadre. This legal position is beyond controversy (sic),{a Division Bench of this Court in WA No.1233 of 1994}. The facts disclose that there, promotions were effected from Grade-I, to which posts the petitioners and respondents were promoted on the same day. But the petitioners had seniority in Grade-II; which it was held, has to be preserved in the higher post. Vijayan Nair (supra) also struck down a seniority list proposed on the basis of reservation and date of birth, citing the reason of absence of a rule to follow either of the said procedures.

15. Ram Ganesh Tripathi (supra) by the Hon,ble Supreme Court, cited by the respondents, was a case in which back-door appointments made on an adhoc basis, was regularized and those persons given seniority over the regularly selected candidates. Adhoc appointments were made by the Government, even when there were regulations framed for recruitment. Confirmation of such employees from a date prior to the date of regularization was found to be ultra vires the statutory rules and hence malafide. V. Thippa Setty (supra) was also on the same lines, in a case where the regularization from the date of adhoc appointment was found to be bad for reason of the disturbance caused to the seniority of the regularly appointed employees. The Tribunals were cautioned in so far as granting retrospective regularization without the affected persons in the party array.

16. Haryana Veterinary and AHTS Association (supra) was a case in which an employee claimed higher grade under a Circular, reckoning the period spent on adhoc service, prior to regular appointment. The Recruitment Rules were found to be clear in not permitting any service rendered on adhoc or stopgap basis to be counted for any benefit of revised pay scales or higher grades. Ishar Singh (supra) and Jagjiwan Ram (supra) followed the fore-cited decision. K. Madalaimuthu (supra) was also a case in which initial appointment was made to a post without recourse to the rules of recruitment. The retrospective effect given to the regularization, on the strength of Government Orders, was found to be contrary to established principle of law relating to determination of seniority and hence declared erroneous.

17. What emerges from the discussion above is that when there is a rule of recruitment and by-passing that, an adhoc or temporary appointment is made, then that period of service cannot be reckoned for seniority or for any other benefits/incidence of service. However, in the absence of such a rule, then the exact nature of such appointments are to be looked at. It cannot also be lost sight of that all the above decisions dealt with an adhoc appointee subsequently regularized seeking either seniority over the regular recruits in the cadre or claiming additional benefits of higher grade/promotion/revision of pay scale etc; reckoning the adhoc service. No such claim can be found here, since the dispute is not one of inter se seniority of all persons in the cadre; but is one of the seniority as amongst the persons regularized, not affecting another in the cadre. Also the prior service is sought to be reckoned for no other purpose other than the seniority amongst them.

18. The challenge is against Ext.P8 order, which proceeds on the following reasoning:

8) It is apt to observe that regularisation order will have effect only from the date of the order. Their service as daily wagers cannot be counted for any purpose. Hence the date of entry into regular service shall be considered for inter se seniority. If the date of entry into regular service is the same, then the date of birth shall be considered for inter se seniority.

19. Admittedly, the 22 persons, now continuing in the employment of the Board, were regularized in the service on 16.03.1996. All of them had prior employment in the Board itself as daily wage workers. In fact, it is the continuance of these persons continuously for long periods as temporary hands, that motivated the Government to order regularization of their services. It is also the undisputed position that there was in existence no rule for recruitment, promotion or the like when the initial engagement on daily wages were made. It cannot be disputed that the seniority of such persons and any incidence of service flowing to such persons, can originate only from the date of the regularization, ie. 16.03.1996.

20. The inter se seniority with respect to these employees regularized on that date and other employees in the same cadre in the respondent Board, if any, who have been appointed regularly, has also to be determined on the basis of the date of appointment/regularization. The mere fact that a person, regularized on 16.03.1996 had long years of service prior to that, would not definitely enure to his/her benefit, so as to get a march over another person, who was appointed before the regularization; regularly and pursuant to a proper selection made. At the risk of repetition it has to be emphasized that the controversy in the present case is not with respect to the inter se seniority of the persons, who are regularized and others continuing in the cadre of the Board.

21. Here, the issue has to be confined to determination of seniority as among the 22 persons, who were regularized on 16.03.1996. The regularization itself was on account of their continued service as daily wage workers. When they were regularized, there is no change in the work and they were regularized in the post in which they had been continued as daily wage workers. In such circumstance, definitely there should be some significance given to the experience each person has in the particular post, in which each had continued with others,temporarily for long and then regularized on a date.

22. It is to be reiterated that such a consideration would be mandatory only with respect to the seniority being fixed among the 22 persons and not with respect to any other persons in the service of the Board. The mere fact that a person, who had been appointed later was elder to another person, who had more experience in such employment, would not and could not enure to his benefit, so as to get a march over the senior person in service. Though, Rule 27 of the KSandSSR is referred to, that deals with initial appointment and it would only result in a finding that the seniority has to be decided as on 16.03.1996, which is the effective date of appointment, being the date of regularization of these 22 persons. Rule 27 would have no application in so far as the seniority amongst the daily wage employees are considered.

23. The binding precedents discussed above also would indicate that, when a person has larger service in a particular employment, he should be assigned seniority over and above a person having lesser service. True, this may not apply in the case of determining the seniority of a person, who was continued as a temporary employee and one appointed regularly. When the issue is with respect to the seniority of those persons appointed temporarily on various dates and regularized on one single date, definitely the reasonable view would be to adopt seniority among those persons in such a manner as he who was senior in the temporary employment is placed above the junior in a like employment.

24. The learned Senior Counsel appearing for the Board in fact would rely on Ext.P7 to contend that the seniority fixed as on 2006 by Ext.P5 has been set aside by another learned Single Judge of this Court and it would not be proper for this Court to revive that order. If at all Ext.P8 is found to be not reasonable, then the proper measure would be to direct reconsideration, is the argument. It is to be noticed that Ext.P4 order has been set aside by this Court in Ext.P7, only on the ground that the same is not in consonance with Article 166 (2) of the Constitution of India and the Government having not invoked such powers in deciding the issue and hence directed consideration of the same again. Hence, the issue was not considered on merits by the learned Single Judge and the issue was relegated for consideration of the Government.

25. It is not in controversy that there could be seniority assigned amongst the 22 persons only by two methods; one by adoption of date of birth as the regulating factor or by adoption of the date of entry into service being the significant aspect to be looked at. Hence, when Ext.P8 is set aside for it being unreasonable and arbitrary, definitely the other view can only be that the seniority has to be assigned as from the date of their temporary appointment, which from the various documents produced in the writ petitions, would indicate that Board themselves had conceded to be continuous. On the aforesaid reasoning, it cannot be said that if Ext.P8 is set aside, without a direction to re-determine the issue, it would amount to revival of Ext.P3 order. Only two views being possible, and the one view adopted by the Government, having been found to be bad, the foregone conclusion is that the other view alone can be sustained.

26. Further a remand is unnecessary since there is the further question of preservation of the vested rights of the petitioners, who had continued in the employment of the Board after regularisation, for long, on the basis of the seniority determined as above. It is also to be noted that all the 22 persons have been promoted, subsequently from the post in which they were regularised. The same has been done on the basis of the fixation of seniority of the year 2006. It was after six years that the Board had thought it fit to come out with a revision of seniority, as is indicated at Ext.P6, based on the criteria of date of birth. In the intervening period, no person had challenged the seniority prepared and the promotions granted for reason of the prescription of first date of temporary appointment being wrong. None had also asserted that the date of birth should be the determining factor for deciding seniority; till Ext.P6 was passed in the year 2012. Hence, for a period of six years, the petitioners had been continued in the promoted post on the basis of their seniority assigned as per Ext.P4.

27. Apposite would be reference to the decision of the Hon'ble Supreme Court in Shiba Shankar Mohapatra and Others v. State of Orissa and Others [2010 (12) SCC 471], in which paragraphs 18 and 30 are extracted hereunder:

18. The question of entertaining the petition disputing the long standing seniority filed at a belated stage is no more res integra. A Constitution Bench of this Court, in Ramchandra Shanker Deodhar and Others v. State of Maharashtra and Others, AIR 1974 SC 259, considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. A party should approach the Court just after accrual of the cause of complaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898, wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under:- The party claiming fundamental rights must move the Court before other rights come into existence. The action of the Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the Court.

30. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal v. R.P. Singh [(1986) 4 SCC 531], this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation.

28. It has to be held that the promotion of the petitioners cannot be unsettled at this distance of time. The decision in Pavithran and Rajesh S.[both supra] are also to the same effect.

The writ petitions are allowed, setting aside Ext.P8 order and the consequential list produced at Ext.P9, directing the Board to determine the seniority as on the date of initial appointment, but however such a benefit being confined only to determine the seniority among the 22 persons regularised as on 16.03.1996. It is made clear that, no service benefits would enure to such persons on the basis of their initial temporary appointment, nor could they claim any seniority in the cadre, as against the other persons, who are continuing in the Board, in the initially appointed post or the promoted posts.

WP(C) No.28256 of 2015 was filed since the entire promotions having been stalled. The petitioners therein are not affected by the seniority issue in the other cases. The persons, who are admitted juniors to the persons, who were regularised in the year 1996, were before this Court, seeking consideration of their claims. In the light of the determination of the seniority of the other persons and the disposal of the aforesaid cases, the petitioners could agitate their cause before the appropriate forum. All contentions are left open.

W.P(C). Nos.31493 and 31504 of 2015 and 1191 of 2016 are allowed.

W.P(C). No.28256 of 2015 is closed with the above reservation. Parties are directed to suffer their respective costs.