K.A. ABDUL MAJEEDversusTHE STATE OF KERALA AND ORS.

                                K.A. ABDUL MAJEED                                       A
                                            V.

                        THE STATE OF KERALA AND ORS.

                                   AUGUST 7, 2001

'        [SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.]                               B


           Service Law:

           Seniority-Advertisement issuedfor appointment ofLower Division Typist
     by Development Authority under its Byelaws-Appointment of appellant, who           C
     possessed requisite qualifications, as Lower Division Typist and later promoted
     to Upper Division Typist-Disapproval of Byelaws by State Government
     subsequently-Power of appointment now vested with State Public Service
     Commission-Qualifications prescribed· by the Commission subsequently
     obtained by the appellant-Period counted for determination of seniority-           D
     Held, initial appointment of appellant, who possessed requisite qualifications
     as per ,the advertisement, is regular-Initial appointment cannot be re-opened
    for altering his seniority ajier long lapse of the time-Authority to prepare
    fresh seniority list accordingly-Direction issued.

          Kera/a Subordinate Service Rules, 1958-Rule 27-App/ication of the             E
    Rules for determination of seniority-Held, as per the Rules, the seniority of
    an employee is to be determined from date offirst appointment unless he was
    reduced in rank as punishment or any period of service during probation.

           Pursuant to an advertisement issued by respondent-Authority for the
    post of Lower Division Typist, appellant, who fulfilled requisite qualifications,   F
    was appointed for the post in 1981. He completed the period of probation
    satisfactorily. In 1983, the appellant was promoted to the post of Upper
    Division Typist and completed.two years of probation. Subsequently, during
    the period 1984-85, private respondent 4,5 and 6 were appointed as Lower
    Division Typists. In 1987, a provisional seniority list was published in which      G
    the appellant was placed on top of the list. Respondent 4 filed a representation
    before the Authority claiming seniority over the appellant on the ground that
    the appointment of appellant was illegal as on the date of his appointment,
    the appellant was not qualified for the post. In 1988, the Authority revised
    the seniority list wherein the appellant was shown junior to the private
                                                                                        H
                                          351
     352                       SUPREME COURT REPORTS [2001) SUPP. I S.C.R.

A    respo~dents. The appellant filed a Writ Petition before High Court. The High
     Court dismissed the Writ Petition and the writ appeal.

          In appeal to this Court, the appellant contended that he had the requisite
    qualifications as per the advertisement issued by the respondent-Authority
    and on his application, he was duly appointed after selection; that he
B   successfully completed his period of probation both as Lower Division Typist
    and as Upper Division Typist; that after more than 7 years of his appointment,
    the respondent-State Government and the Authority cannot hold that the
    appointment of the appellant was irregular; and that the private respondents,
    who were appointed subsequently, have no legal right to question the initial
C   appointment of the appellant and, being juniors in terms of period of service,
    they cannot claim seniority over the appellant.

           The respondent-Authority contended that the initial appointment of the
    appellant to the post was irregular as the appointment was made under the
     Byelaws framed by the Authority and that the Byelaws were not approved
D   by the respondent-State Government; that the authority was not the
    appointing authority as the power of appointment for the posts was brought
    within the purview of the State Public Service Commission; that the appellant
    did not possess the desired qualifications prescribed by the Commission; that
    the Commission gave concurrence to the appellant's appointment only in 1990
    after the appellant obtained the requisite qualifications prescribed by the
E   Commission; that the seniority of the appellant has been fixed from 1990 and
    that he cannot claim seniority from the date of initial appointment; and since
    there is no Rules of the Authority regarding seniority of the employees, the
    State Subordinate Service Rules would apply and that the seniority has to be
    fixed in terms of Rule 27 of the said Rules.

F         The private respondents contended that the appointment of the
    appellant was through back door whereas they were appointed through State
    Public Service Commissions and, therefores, the appellant cannot get seniority
    over them.

           Allowing the appeal, the Court
G          HELD: I. It is an admitted position that the post was advertised by the
    respondent-authority and the appellant possessed all the qualifications as
    shown in the advertisement. He was duly selected and appointed. He.
    successfully completed his period of pr<>bation. He was given one promotion
    to the next higher grade and his probation was declared in the promoted post
H   of Upper Division Typist. In view of these admitted facts, after long lapse of
            K.A. ABDUL MAJEED v. .STATE OF KERALA [PHUKAN, J.]              353
 time, the question of initial appointment cannot be re-opened at the instance      A
 of private respondents and that too for altering his seniority. As the 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. 1355-F, G, H; 356-Al

        2. The language of Rule 27 of State Subordinate Service Rules is clear B
 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 not being
counted towards probation. Admittedly, the appellant was nev.er reduced to
 lower rank. It was neither pleaded nor any records were placed to show that
 th·e portion of the service of the appellant could not be counted towards C
 probation: Indeed 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 wh~ther initial
appointment was regular or not cannot be considered at the time of fixation
of seniority under Rule 27. As the re-fixation of seniority of the respondent- D
Authority by the seniority list is not in accordance with Rule 27, it is bad in·
law and consequently the seniority list is liable to be quashed. The respondent-
Authority is directed to prepare and publish a fresh seniority list showing the
appellant senior to the private respondents on the basis of provisional seniority
list of 1987. (356-D, E, F, GI
                                                                                    E
        CIVIL APPEL LA TE JURISDICTION : Civil Appeal No. 5122 of
2001.

     From the Judgment and Order dated 6.4.2000 of the K,erala High Court
in W.A. No. 1308 of 1998.

        D.A. Dave, Haris Beeran and A. Raghunath for the Appellant.                 F

      T.L.V. Iyer, K. Sukumaran, T.G. Narayanan Nair, B.V. Deepak, Ms.
Karthika, S. N.R. Shonker and G. Prakash for the Respondents.

      The Judgment of the Court was delivered by
                                                                                    G
      PHUKAN, J. Leave is granted.

        This appeal by special leave is against the judgment of the Division
Bench of the High Cmirt 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 appeal.                                                       H
    354                        SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A          The 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 appoinJed on
    27.03.1981 after proper selection. Subsequently, he completed the period of
B   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
C   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.
    Respondent No.4 filed a representation claiming seniority over respondent
    No. I 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
D   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.

E        The 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 Legisl&ture.
F Though, the appellant was shown to have been appointed under the Greater
  Cochin Development Authority (Establishment) Bye-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
G 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 w~ich 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
H and accordingly his seniority was fixed with effect from that date and the
           K.A. ABDUL MAJEED v. STATE OF KERA LA [PHUKAN, J.]                 355
 draft seniority list was revised.                                                   A
        Mr. Dave, 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 B
that the appointment was irregular. In support of th is 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 C
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.

       Mr. Iyer, learned senior counsel for the GCDA, has contended that as          D
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 necessary qualification.

      Mr. Sukumaran, learned senior counsel appearing for the private                E
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.

       It is an admitted position that the post was advertised by the GCDA and       F
the appellant possessed all the qualifications as shown in the advertisement.
He was duly selected and appointed. He successfully 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       G
long lapse of time the question of initial appointment cannot be re-opened at
the instance of private respondents and that too for altering his seniority.
Therefore, the contention of Mr. Iyer, learned senior counsel, has to be rejected.

     As the appellant was appointed after the post was advertised and he
was duly selected before appointment it cannot be said that the appointment          H
    356                       SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A   of the appellant was through back door and therefore we reject the contention
    of Mr. Sukumaran, learned senior counsel.

           Mr. Iyer, learned senior counsel has very fairly submitted that there is
    no rule regarding seniority of the employees of the GCDA, and the Kerala
    Subordinate Services Rules, 1958 would apply and seniority has to be fixed
B   in terms of Rule 27. The relevant portion of Rule is extracted below:

            "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
c           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."

           The language of above Rule 27 is clear and unambiguous. The seniority
D   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 appeilant could not be counted towards probation. Indeed
E   in the post of Lower o·ivision 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 fi~ation of seniority under this
    Ru.le. As the re-fixation of seniority by GCDA by the impugned seniority list
F   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.

           For 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· we!I as the Division Bench of the High Court. Consequently, the
G   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 io 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.

H   B.S.                                                          Appeal allowed.