Unconditional earlier appointments entitle seniority over later appointments, and preferential appointment of a junior would be an impediment for regaining seniority in the higher cadre.

JUDGMENT :

1. The petitioner and respondents 3 and 4 are now Assistant Directors in the dairy development department. All these three persons and one Philipose Thomas originally belonged to the animal husbandry department. All of them were 011 different dates transferred to the dairy development department, and appointed as Dairy Development Officers. In the animal husbandry department their inter se seniority was that respondent 3 was the senior-most, after him came fourth respondent and after him the petitioner and lastly Philipose Thomas. Philipose Thomas was transferred to the dairy development department on 1-6-1961, while the petitioner and respondents 3 and 4 were transferred on 7-1-1963, 8-5-1963 and 20-12-1963 respectively. One Appukuttan Nair was appointed as the Extension Assistant in the dairy development department by direct recruitment; and subsequently on 5-3-1963 he was promoted as Dairy Development Officer. The petitioner was promoted as Assistant Director on 22-6-1963. Thereafter when two vacancies arose, the third respondent was appointed on 6-7-1965 and the fourth respondent on 26-7-1965 as Assistant Directors. Appukuttan Nair thereupon filed O. P. 2343 of 1965 claiming seniority over respondents 3 and 4 on the basis that he was appointed in the cadre of Dairy Development Officers earlier than the appointment of respondents 3 and 4. That claim was upheld by this court by its judgment, Ex. P1 dated 8-11-1966. Accordingly Appukuttan Nair has been promoted and he has been assigned a rank above respondents 3 and 4 and below that of the petitioner. Philipose Thomas, who had been appointed as Dairy Development Officer earlier than any of above persons, was promoted as Assistant Director even before the promotion of the petitioner, and he is now a Joint Director. On 17-2-1969 the State Government passed an order Ex. P 2 fixing the inter se seniority of the petitioner and respondents 3 and 4 by which the Government directed that the third respondent will be the senior most, then the fourth respondent and lastly the petitioner. The result is that the petitioner becomes not only junior to respondents 3 and 4, but even to Appukuttan Nair. This writ petition has been filed to quash Ex. P 2 on the ground that the said order is discriminatory and is also violative of rule 27 of the Kerala State and Subordinate Services Rules, 1958.

2. Rule 27(a) alone is relevant for the purpose of this case, and it reads as follows:-

“27. Seniority, (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”.

3. According to the above provision, it is clear that the seniority between the petitioner and respondents 3 and 4 has to be determined by the date of commencement of their respective services in the cadre of Dairy Development Officers. The fixing of seniority as per Ex. P. 2 would, therefore, be violative of the above rule.

4. The only reason stated in Ex. P. 2 for fixing the seniority in the manner it has been done is that the initial appointment of the above 3 persons was provisional, and that in so far as they were transferred to the dairy development department, without calling for applications or ascertaining the willingness of all eligible officers, the services of all those who have been so transferred to the new department have to be fixed with reference to their seniority in the parent department.

5. I am unable to follow the above reasoning. Perhaps by provisional appointment the Government may be meaning that the appointments were temporary within the meaning of rule 9(a) of the Kerala State and Subordinate Services Rules, 1958. There is no scope for