Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Ker) 675

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, A. BADHARUDEEN, JJ.
BINU.B S/O. K.S.BHASKARAN - Appellant
Vs.
STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - Respondent
OP(KAT) NO. 115 OF 2021
Decided On : 02-09-2021

Advocates Appeared:
For The Appellant : S.SREEKUMAR (SR.), SRI.MANOJ RAMASWAMY
For The Respondent: SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER

Point of law: Though the Government has disallowed the larger plea of the petitioner for extension of time, the Government in its said discretion has given to the petitioner, ten days’ time to join duty.

Headnote:
Constitution of India 1950 - Articles 226 , 227 - Kerala State & Subordinate Service Rules 1958 - Part II of Rule 27 (c) , 27(b) , - Petitioner had joined duty after expiry of three months time limit from date of the appointment order, and that too after securing 10 days extension of joining time, his seniority can be reckoned in post to which he has been advised and appointed only from date joining of duty as envisaged in Proviso to Rule 27 (c) of KS & SSR Par II, and contention of petitioner that seniority should be reckoned from date of the effective advice given by PSC in terms of Rule 27 (c) has been overruled by Tribunal. It is this verdict at Ext.P6 that is under challenge in this original petition filed by original applicant therein before this Court by invoking provisions contained in Articles 226 and 227 of Constitution of India.
Finding of the Court:
A reading of Proviso to Rule 27 (c) would make it clear that said Proviso is an exception carved out from the main operative portion of said rule. Therefore, in a case where candidate does not join duty within statutory outer limit of three months as envisaged in Proviso and Government also accedes to extension of further time, then case would be certainly covered by said Proviso - Government has not totally rejected plea for extension of time, but has given 10 days’ time - such a scenario will also be covered by the provision to Rule 27 (c) – Court is of the view that Tribunal cannot be faulted for taking considered view that seniority of petitioner is to be regulated in terms of Proviso to Rule 27 (c) of Part II of KS & SSR in facts and circumstances of case. Court has arrived at the same conclusion as arrived at by Tribunal, but by adopting slighter different reasonings. For these reasons, we are of view that verdict of Tribunal at Ext.P6 does not warrant any interference at hands of this Court under Articles 226 and 227 of the Constitution of India.
Result: Appeal dismissed

JUDGMENT :

Alexander Thomas, J.

The question raised in this original petition and original application is as to whether the seniority of the petitioner is to be counted w.e.f. date of joining of duty as mandated in Proviso to Rule 27 (c) of Part II of KS & SSR or whether his seniority is to be reckoned from the date of initial advice memo issued by the PSC etc. The Tribunal has held as per the impugned Ext.P6 final order rendered on 16.3.2021, that since the petitioner had joined duty after the expiry of three months time limit from the date of the appointment order, and that too after securing 10 days extension of joining time, his seniority can be reckoned in the post to which he has been advised and appointed only from the date joining of duty as envisaged in Proviso to Rule 27 (c) of KS & SSR Par II, and the contention of the petitioner that the seniority should be reckoned from the date of the effective advice given by the PSC in terms of Rule 27 (c) has been overruled by the Tribunal. It is this verdict at Ext.P6 that is under challenge in this original petition filed by the original applicant therein before this Court by invoking the provisions contained in Articles 226 and 227 of the Constitution of India.

2. Heard Sri.S.Sreekumar, learned Senior Counsel instructed by Sri. Manoj Ramaswamy, learned Counsel appearing for the petitioner in the OP/applicant in the OA and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents in the OP/respondents in the OA.

3. A brief recital to the factual aspects would be really pertinent to this case. In this case the PSC had issud Annexure A1 memo dated 31.12.2001 advising that the petitioner be appointed to the post of Assistant Engineer in the Public Works Department, consequent to the selection process initiated by the Public Service Commission. Thereafter, the appointing authority had issued Annexure A2 order dated 28.6.2002 appointing the petitioner as Asst. Engineer in the PWD. It appears that at that time the petitioner was employed in the Kerala State Electricity Board (KSEB) as Assistant Executive Engineer. The petitioner would say that though he wanted immediately to get relieved from the KSEB to join duty in the post under the PWD, the KSEB did not relieve him immediately as his continued service was essential to the ongoing works in KSEB. The applicant had requested for extension of joining time, and that request was ultimately rejected by the Government as per Annexure R1 (a) proceedings dated 23.12.2002, but with a direction that the petitioner is given 10 days time to join duty in the post. It also appears that consequent thereto, the petitioner had joined duty on 16.1.2003 and later his probation was satisfactorily declared by the appointing authority w.e.f.18.9.2012. Later, the provisional seniority list of Assistant Engineers was published by the PWD on 15-12-2007 and later revised seniority list was published as per Annexure A5 on 22.4.2014. It appears that the seniority position therein was on the basis of date of joining duty as envisaged in Proviso to Rule 27 (c) of KS & SSR Par II. Subsequently the petitioner was promoted to the next higher post of Assistant Executive Engineer w.e.f.9.9.2016. After the petitioner was promoted as Assistant Executive Engineer, a provisional list of Assistant Executive 6 Engineer was published as per A6 dated 5.2.2018. At that time petitioner has submitted Annexure A7 objection dated 18.2.2018, which according to him was not considered and Annexure A8 notification dated 5.5.2018 was published in the category of Assistant Executive Engineer. When the list of Assistant Executive Engineers to be promoted as Executive Engineers was circulated on 31.8.2018, the original applicant has submitted Annexure A11 representation dated 22.5.2019, objecting to the seniority assigned in the category of Assistant Executive Engineer. The Government had issued Annexure A13 proceedings dated 14.10.2019 rejecting the reques

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