1. Provisional appointment under Rule 9 of Kerala State and Subordinate Services Rules — Claim for counting provisional service for seniority purposes. (Para 1 , 2 )
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1998 Supreme(SC) 823
SUPREME COURT OF INDIA
G.B.Pattanaik : Sujata V.Manohar
Valsa Kumari
Versus
State Of Kerala
Case No. : 3833 of 1996
Date of Decision : 8/18/98
Seniority is determined by the date of first appointment as per service rules. If the rules explicitly exclude provisional appointments from the definition of "appointment" for seniority purposes, such provisional service cannot be counted toward seniority.
Headnote:(A) State and Subordinate Services Rules - Rule 27 and Rule 9(a)(i) - Seniority of a person in service - Determination of seniority by date of first appointment - Explanation to Rule 27 explicitly excludes appointments under Rule 9 from the definition of "appointment" for the purpose of determining seniority - Provisional service under Rule 9 cannot be counted for seniority. (Para 3)
(B) Discrimination - Claim that benefit of provisional service was granted to others based on court judgments - Absence of evidence to show that the case of the appellant is similar to those who received such benefits - No discrimination practiced when the statutory rules explicitly exclude such service. (Para 4)
Facts of the case:
The appellant was given a provisional appointment as an Assistant Engineer and later continued under a specific rule for provisional employment. Subsequently, the appellant was selected by the commission and given a regular appointment. The appellant sought that the period of provisional service be counted for the purpose of seniority, which was rejected by the lower courts.
Findings of Court:
The seniority is governed by the relevant service rules, where the explanation to the rule on seniority specifically excludes provisional appointments made under the specified rule. Therefore, the period of provisional service cannot be counted.
Issues: Whether the period of provisional employment under Rule 9(a)(i) can be counted for the purpose of determining seniority under Rule 27 of the State and Subordinate Services Rules.
Ratio Decidendi: The court held that since the explanation to Rule 27 explicitly states that "appointment" does not include appointment under Rule 9, the provisional service during that period cannot be counted for seniority. Furthermore, benefits granted to others via court orders do not constitute discrimination unless the facts of the cases are identical.
Result: Appeal dismissed.
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2. Whether provisional service under Rule 9 should count for seniority and whether denial of such benefit constitutes discrimination. (Para 2 , 4 )
3. Rule 27 excludes Rule 9 appointments from the definition of appointment for seniority; no evidence of similarity to cases where benefits were granted. (Para 3 , 4 , 5 )
4. Seniority under Rule 27 of Kerala State and Subordinate Services Rules excludes provisional appointments made under Rule 9. (Para 3 )
5. Appeal dismissed. (Para 6 )
6. Does provisional appointment under Rule 9 of the Kerala State and Subordinate Services Rules count toward seniority?
No. Under Rule 27(a) of the Kerala State and Subordinate Services Rules, seniority is determined by the date of first appointment, and the explanation to this rule explicitly excludes appointments made under Rule 9. (Para 3 )
7. Can a claim of discrimination be sustained if other employees received seniority benefits based on specific court judgments?
Not unless the claimant can demonstrate that their case is similar to the circumstances of the persons who were granted the benefit by the court. (Para 4 )
(1) THE appellant was given a provisional appointment as an Assistant Engineer on 12/10/81. She was recruited through the employment exchange. She continued with some breaks up to 5/10/83. On 5/10/83, she was given provisional employment under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules. This was provisional appointment. The appellant was thereafter selected by the Public Service Commission and given regular appointment as Assistant Engineer w.e.f. 21/3/1991.
(2) THE appellant filed a petition before the Kerala High Court claiming that service for the period from 5/10/83 to 21/3/91 should count for the purpose of seniority. Her petition has been rejected by the single Judge as well as by the Division Bench of the High Court.
(3) SENIORITY of the appellant is governed by Rule 27 of the Kerala State and Subordinate Services Rules. Under Rule 27(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. Explanation to this Rule states that for the purposes of this sub-rule "appointment" will not include appointment under Rule 9 or appointment by promotion under Rule 31. Therefore, the appointment of the appellant under Rule 9 from 5/10/83 to 21/3/91 cannot count for the purposes of seniority under Rule 27.
(4) THE appellant has, however, contended that the benefit of provisional service for seniority has been granted to some Assistant Engineers. She has, therefore, been discriminated against. She has drawn our attention to a Circular dated 7/1/91. This Circular, in turn, refers to the implementation of the judgment of the High Court. The persons who have been given the benefit of provisional service have been given such benefit on the basis of certain judgments of the High Court in writ petitions filed by these persons. We do not know, nor are we informed about the circumstance in which such benefit was given by the High Court to these three persons. Nor is there anything before us which would indicate that the case of the appellant is similar to the case of the persons concerned therein. We are, therefore, not in a position to hold that any discrimination has been practiced against the appellant. In these circumstances, the High Court has rightly come to the conclusion that the provisional service from 5/10/83 to 21/3/91 cannot count for the purpose of seniority.
(5) THE appellant has relied upon a decision of this Court in the case of Direct Recruit, Class II Engineering Officers Asscn. v. State of maharashtra reported in (1990) 2 SCC 715 : (AIR 1990 SC 1607 : 1990 Lab IC 1304). In view of Rule 27, however, the benefit of earlier service cannot be given to the appellant.
(6) THE appeal is, therefore, dismissed. There will, however, be no order as to costs.
