KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION LIMITEDversusBASIL T K & ORS

1008            SUPREME COURT
                          [2022]REPORTS
                                 3 S.C.R. 1008              [2022] 3 S.C.R.


 A             KERALA TRANSPORT DEVELOPMENT FINANCE
                             CORPORATION LIMITED
                                          v.
                                 BASIL T K & ORS
                            (Civil Appeal No. 806 of 2022)
 B                               JANUARY 31, 2022
                [DR. DHANANJAYA Y CHANDRACHUD AND
                                SURYA KANT, JJ.]
              Service Law: Regularization in Service – Respondents were
       appointed as Assistant Managers in the service of appellant on
 C     contract for a period of one year in 2000 – They continued till
       2006 – They were initially regularized in service on 23.02.2006 –
       In 2007, however, order of regularization was cancelled - Single
       Judge set aside the order by which the regularization of the
       respondents was cancelled and directed to reinstate respondents in
 D     service with retrospective effect – However, no arrears of salary
       were granted – Upon their regularization, respondents were
       promoted as Deputy Managers in 2014 – In 2016, Committee was
       constituted for the scrutiny of the seniority and promotion of regular
       employees in the managerial service of Appellant – Committee
       finalized the seniority list in 2017 – Respondents filed writ petition
 E     challenging it to the extent that they were held not entitled to count
       the period of service when they stood retrenched towards increments
       and promotion – High Court allowed writ petitions and directed to
       grant promotion to the respondents along with arrears of salary for
       the period when they were out of service and the period during
 F     which they were kept out of service to be treated as notional service
       in the post of Manager and Chief Manager – On appeal, held:
       There was no justification to exclude the period during which the
       respondents were not in service due to the illegal termination of
       employment which was subsequently set aside – The order by which
       regularization of respondents was cancelled was set aside by High
 G     Court with direction to reinstate them in service with retrospective
       effect from 12.09.2007 – This clearly implied that they were entitled
       to benefit of continuity of service – However, respondents shall not
       be entitled to arrears of salary for the period they were out of
       service – Kerala Transport Development Finance Corporation Rules
 H     – r.18.
                                       1008
 KERALA TRANSPORT DEVELOPMENT FINANCE CORP. LTD. v.                     1009
                  BASIL T K & ORS

        Disposing of the appeals, the Court                             A
       HELD: The judgment of the Single Judge dated 9 October
2009, saves the respondents continuity of service. Therefore,
there was no justification to exclude the period during which the
respondents were not in service due to the illegal termination of
employment, which was subsequently set aside, given that the            B
High Court expressly saved the continuity of service. The
contention that the respondents did not satisfy the one year
residency rule in the post for the purpose of promotion is without
merit. The only distinction between the respondents and ‘AB’ is
that unlike the former, the latter was in service throughout. ‘AB’,
though appointed in 2008 in the post of Assistant Manager was           C
regularized retrospectively only in 2014. Inspite of not fulfilling
the one year residency criteria in each post (that is as Deputy
Manager and Manager), he was still promoted taking into account
his service as the Assistant Manager. However, this distinction
between the parties diminishes in view of the direction of the          D
Single Judge to grant continuity of service to the respondents.
Therefore, there is no error in the impugned judgment. However,
it only needs to be clarified that since the respondents as well as
‘AB’ hold the post of Manager from which the next promotion is
to the post of Chief Manager, the promotional post of Chief
Manager shall be filled up in accordance with the applicable            E
Service Rules and regulations. [Para 23][1019-D-G]
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 806 of
2022.
      From the Judgment and Order dated 12.04.2019 of the High Court    F
of Kerala at Ernakulam in W.A. No.1137 of 2019.
        With
        Civil Appeal Nos. 808 and 807 of 2022.
      V. Giri, Sr. Adv., Amith Krishnan, Krishna Dev Jagarlamudi, Sai
                                                                        G
Kaushal, Kuriakose Varghese, Ms. Pooja Dhar, V. Shyamohan, Ms. Astu
Khandelwal, Roy Abraham, Ms. Reena Roy, Akhil Abraham, Aditya
Koshy, Himinder Lal, Nishe Rajen Shonker, Ms. Anu K Joy, Alim Anvar,
Advs. for the appearing parties.

                                                                        H
1010            SUPREME COURT REPORTS                          [2022] 3 S.C.R.


 A           The Judgment of the Court was delivered by
             DR. DHANANJAYA Y CHANDRACHUD, J.
             1. Leave granted.
             2. This batch of three appeals arises from the judgments of the
 B     Division Bench of the High Court of Kerala dated 12 April 2019 and 14
       March 2019 in writ appeals from a judgment of a Single Judge dated 6
       December 2018.
              3. The Kerala Transport Development Finance Corporation
       Limited1 and its Managing Director are the appellants in the first two
 C     appeals. In the third appeal, the appellant, Aneesh Babu R2, seeks to
       challenge one of the directions of the Single Judge by which it was
       directed that the seniority list is to be recast by placing Sherith A and
       Basil T K3, who are Managers, above him in the seniority list.
              4. The facts, insofar as they are material for a decision on the
 D     appeals, need to be noted, at this stage. In 2000, the respondents were
       appointed as Assistant Managers in the services of KTDFCL on contract
       for a period of one year, a position on which they continued until 2006.
       The Service Rules framed by KTDFCL were approved by the State
       Government on 22 February 2006. The Government issued GO (MS)
       No. 15/2006 on 22 February 2006 to regularize the services of one
 E     hundred and six contractual employees of KTDFCL. On 23 February
       2006, the services of the respondents were regularized. However, on
       12 February 2007, the State Government issued GO (MS) 4/2007
       cancelling the order of regularization on the ground that the appointments
       were not made through a standard recruitment procedure and
 F     reservation as mandated by the Constitution for the members of the
       Schedule Castes and Scheduled Tribes was not provided In proceedings
       instituted under Article 226 of the Constitution. The High Court, by its
       judgment dated 9 April 2007, quashed the G.O (MS) 4/2007 cancelling
       the regularization since the order was without issuing notice or hearing
       the petitioners. KTDFCL was granted liberty to proceed in the matter
 G     afresh. In pursuance of the direction of the Court, fresh notice was
       issued to the respondents. The Government terminated the respondents’

       1
         “KTDFCL”
       2
         “Aneesh Babu”
       3
 H       “Respondents”
 KERALA TRANSPORT DEVELOPMENT FINANCE CORP. LTD. v.                            1011
  BASIL T K & ORS [DR. DHANANJAYA Y CHANDRACHUD, J.]

employment on 12 September 2007 on the grounds that:- (a) the posts            A
against which the respondents were appointed were not available at the
time of their appointment;
        (b) the service rules were in force at the rime and therefore, the
initial appointment of the respondents was irregular and the regularization
was consequently illegal. By its judgement dated 11 October 2007, the          B
High Court had observed that the six employees, including the
respondents, stood on a different footing compared to the rest of the
retrenched employees since they were appointed on a contractual basis
through a selection process. Therefore, the High Court set aside the
termination of the employment of the respondents and directed the
Government to pass fresh orders after hearing the respondents.                 C

      5. In pursuance of the direction, a fresh notice was issued to the
respondents. After hearing the respondents, the Government by its order
dated 25 April 2008 issued the following order:
      “Accordingly, they were heard by the Transport Secretary to the          D
      State Government on 16/1/2008. The matter of regularization or
      otherwise of the termination of those six persons’ service in the
      K.T.D.F.C was examined in detail. It was found that no deviation
      from the decision taken earlier in the Government order read as
      the 3rd paper above was necessary, the request for regularization
      in service of K.T.D.F.C, put forth by S/Shri Basil T.K Mohanan,          E
      P.K Sherith A, Radhakrishanan I.S, Smt. Sheeja C.V, and Smt.
      Jasmy S is rejected.”
       Subsequently, the respondents filed another writ petition challenging
the order of the Government and seeking a direction to reinstate them in
service with consequential benefits with effect from 12 September 2007.        F
By a judgment dated 9 October 2009, a Single Judge of the Kerala High
Court set aside the order on following grounds:- (i) the order indicated
no reason; (ii) in the earlier challenge it was submitted before the Court
that the respondents were appointed against sanctioned posts; (iii) though
the posts were not available when the respondents were initially appointed,    G
posts were created before they were regularized; (iv) the service rules
were framed before the respondents were regularized. The High Court
directed the reinstatement of the respondents in service with retrospective
effect from 12 September 2007. The direction of the High Court, which
is contained in paragraph 22 of its judgment, is extracted below:
                                                                               H
1012            SUPREME COURT REPORTS                          [2022] 3 S.C.R.


 A           “22. For these reasons, I cannot sustain Ext. P22 and therefore
             Ext.P22 will stand quashed. Respondents are directed to reinstate
             the petitioners in service immediately with retrospective effect
             from 12/9/2007. In the circumstances of this case, it is ordered
             that the petitioners will not be entitled to any monetary benefits
             for the period till they are reinstated but, will be entitled to
 B
             continuity of service.”
                                                           (emphasis supplied)
              6. Following the above decision of the Single Judge, a writ appeal
       was dismissed on 14 March 2012. On 28 April 2012, the State Government
       issued GO (MS) No 23/2012 directing that the respondents be reinstated
 C
       with retrospective effect from 12 September 2007 without any monetary
       benefits but with continuity of service. Since the order of reinstatement
       did not provide clarity on promotions, the respondents wrote to the State
       Government highlighting their grievance. The Government issued a letter
       dated 3 November 2012 directing that the period spent out of service
 D     may be ‘regularized as non-duty without forfeiture of past service.’ The
       clarification is as follows:
             “The Hon’ble High Court have granted only the benefit of
             continuity of service to the employees reinstated in the service of
             KTDFC and has not allowed them any monetary benefits notionally
 E           or otherwise. In order to provide continuity in service, the period
             spent out of service may be regularized as non-duty without
             forefeiture of past service. Regarding the post of probation, the
             rules as states in KTDFC Service Rules can be insisted.”
              7. On 21 June 2013, the State Government clarified its earlier
 F     communication dated 3 November 2012 to the effect that it would not
       adversely affect the prospects of seniority or promotion. On 9 January
       2014, increments in the salary payable to the respondents were authorized
       without taking into account the period from 12 September 2007 to 2
       May 2012. The respondents instituted writ proceedings contending that
       they were entitled to reckon the above period for the grant of promotion
 G     and increments. During the pendency of the writ proceedings, the
       respondents were promoted as Deputy Managers with effect from 24
       July 2014.
             8. Consequent to a letter of the State Government dated 18 March
       2016, a Committee was constituted for the scrutiny of the seniority and
 H     promotion of regular employees in the managerial service of KTDFCL.
 KERALA TRANSPORT DEVELOPMENT FINANCE CORP. LTD. v.                           1013
  BASIL T K & ORS [DR. DHANANJAYA Y CHANDRACHUD, J.]

The Committee opined that the respondents were eligible to be promoted        A
as Deputy Managers from 24 February 2007; that, since the period spent
out of service was to be treated as ‘non-duty’, the requirement of
residency of one year in the post of Deputy Manager for promotion to
the post of Manager will be completed only on 13 October 2012 and that
they would be eligible for promotion as Managers as on 14 October
                                                                              B
2012. On 7 February 2017, a seniority list of Assistant Managers and
Deputy Managers as on 1 August 2016 was published in which the names
of respondents stood at Serial Nos 1 and 2 respectively with their date
of appointment being 23 February 2006, while the name of Aneesh Babu
stood in Serial Nos 3, whose date of appointment was 13 October 2008.
       9. On 24 March 2017, the Staff Promotion Committee resolved to         C
promote the respondents as Managers, but referred the question as
regards the eligibility dates for promotion to the State Government. The
State Government by its order dated 5 July 2017, accepted the report of
the Committee, without providing any retrospective monetary effect. A
provisional Seniority list of Managers as on 11 July 2017 was published       D
on 15 July 2017, in which Aneesh Babu was placed in S.No 1, while the
respondents were placed in S.Nos 2 and 3. It was also stated that the
respondents are entitled to promotion as Manager with effect from 14
October 2012. On the other hand, Aneesh Babu, who was appointed as
Assistant Manager on contract basis on 27 September 2008 and was
subsequently regularized through an order dated 12 December 2014,             E
with effect from 13 October 2008 was held to be entitled to be promoted
as Manager on 11 December 2010 and as Chief Manager on 26
November 2011. The respondents filed objections on the ground that the
period when they stood retrenched must be counted as service completed
for the purpose of promotion. On 11 December 2017, the Staff Promotion        F
Committee finalized the seniority list.
       10. The respondents instituted a writ petition before the High Court
challenging the seniority list to the extent that the Expert Committee as
well as the Government had come to the conclusion that they were not
entitled to count the period of service from 12 September 2007 to 2 May       G
2012 towards increments and promotion. It was their contention that
they are entitled to be promoted as Managers with effect from 24
February 2008 and as Chief Manager from 22 February 2009. KTDFCL
raised the following contentions supporting the decision to place the
respondents after the Aneesh Babu in the Seniority List:
                                                                              H
1014            SUPREME COURT REPORTS                           [2022] 3 S.C.R.


 A            (i) If the retrenched period of more than four years was considered
       as actual service, then the respondents would have been permitted to
       rejoin on 2 May 2012 at the highest promotional post of Chief Manager
       since the residency period for promotion from Assistant Manager to
       Deputy manager, and Deputy Manager to Manger is one year each;
 B            (ii) The High Court by its judgment dated 9 October 2009 directed
       the reinstatement of the respondents without monetary benefit. They
       were only entitled to continuity of service. The direction that they are
       entitled to continuity of service only means that there will not be any
       forfeiture of their previous service from 23 February 2006 to 12 September
       2007;
 C
              (iii) Under the service rules, non-duty period cannot be counted
       for any service benefits, including probation and promotion;
              (iv) Aneesh Babu was appointed as Assistant Manager on 13
       October 2008 through direct recruitment after undergoing a three-tier
 D     selection process. Though the job notification was for regular appointment,
       he was appointed on contract basis consequent to the decision of the
       Government. Subsequently, the Government rectified its decision and
       regularized his appointment in 2014 with effect from 13 October 2008.
       The Expert Committee had noted that his appointment was erroneously
       classified on ‘contract basis’ at the time of appointment. This error was
 E     rectified later. The service of Aneesh Babu in KTDFCL was considered
       for calculating the residency periods for the purpose of promotion;
             (v) The respondents were originally promoted as Deputy Manager
       with effect from 24 July 2014. The one year residency period would
       only be completed on 24 July 2015. However, by holding that the
 F     respondents would be entitled to be promoted as Manager with effect
       from 14 October 2012, they were promoted without serving in the post
       of Deputy Manager even for a day since they served as Assistant
       Manager till 23 July 2014; and
             (vi) The committee followed a uniform procedure of counting their
 G     service in KTDFCL for calculating residency period for the purpose of
       promotion. The only period that was not calculated with respect to the
       respondents was the period they spent out of service due to the
       retrenchment.
              11. On 6 December 2018, a Single Judge of the High Court allowed
 H     the petition and directed KTDFCL to grant promotion to the respondents,
 KERALA TRANSPORT DEVELOPMENT FINANCE CORP. LTD. v.                            1015
  BASIL T K & ORS [DR. DHANANJAYA Y CHANDRACHUD, J.]

treating the period during which they were kept out of service, as notional    A
service in the post of Manager and Chief Manager. The Single Judge
arrived at this conclusion on the grounds that: (i) the Government on 21
June 2013 had informed the respondents that the period during which
they were kept out of service would not affect their prospect of promotion;
(ii) the respondents were unable to perform their duties since they were
                                                                               B
unjustly terminated from service, which was subsequently rectified by
the High Court; (iii) Aneesh Babu was granted promotion reckoning the
service rendered by him in the post of Assistant Manager for promotion
to Deputy Manager and Manager. However, according to the Service
Rules, actual service in each of the posts is a requirement. If the benefit
of promotion is denied to the respondents on that ground, it must be           C
denied to Aneesh Babu as well on the ground of parity; and (iv) the High
Court, while directing the respondents to be reinstated directed that
continuity of service must be provided. A writ appeal filed against the
judgment of the single Judge has been dismissed by the Division Bench
on 14 March 2019.
                                                                               D
      12. When the Special Leave Petitions came up for hearing before
this Court on 3 July 2019, the Court, while issuing notice, summarized
the submissions which were urged on behalf of KTDFCL. The order
dated 3 July 2019 records thus:
      “Mr. V. Giri, learned Senior Counsel has submitted that in the           E
      order of the learned Single Judge dated 9 October 2009 (Annexure
      P1), it was specifically observed that the employees would be
      entitled to reinstatement with continuity of service without any
      monetary benefits for the period till they are reinstated. However,
      in the order of the learned Single Judge dated 6 December 2018
      (which resulted in the impugned order of the Division Bench),            F
      there was a direction to the effect that the original petitioners will
      be entitled to the fixation of pay reckoning the period during which
      they were kept out of service, but they shall also be granted all
      benefits on the basis of fixation of pay. The Special Leave Petition
      has been instituted in view of this anomaly.                             G
      Issue notice, returnable in eight weeks.”
       13. As stated earlier, the challenge by KTDFCL to the judgment
of the Division Bench lies within a narrow compass. While advancing
his submissions, Mr V Giri, senior counsel appearing on behalf of
KTDFCL, adverted to the following directions issued by the Single Judge:       H
1016             SUPREME COURT REPORTS                           [2022] 3 S.C.R.


 A           “Therefore, there shall be a direction to the respondents to grant
             promotion to the petitioners reckoning the period during which
             they were kept out of service treating the same as notional service,
             to the post of Manager and also Chief Manager. On the basis of
             such promotion, Ext.P20 shall be revised assigning the petitioners
             seniority above the 4th respondent. Petitioners will also be entitled
 B
             to fixation of pay reckoning the period during which they were
             kept out of service and they shall be granted all benefits on the
             basis of such fixation of pay. This shall be done within a period of
             ‘three months’ from the date of receipt of a copy of the judgment.”

 C            14. As a result of the above directions, the respondents have been
       held to be entitled to the fixation of pay, reckoning the period during
       which they were kept out of service. There is no dispute over this part.
       However, besides the above direction, it has been directed that “they
       shall be granted all benefits on the basis of such fixation of pay”. Mr V
       Giri submitted that the latter part of the direction would be inconsistent
 D     with the earlier decision of the Single Judge dated 9 October 2009 in
       terms of which the respondents were held entitled to reinstatement with
       effect from 12 September 2007, but, without monetary benefits for the
       period till they were reinstated.
              15. So far as the above grievance of KTDFCL is concerned, Mr
 E     Roy Abraham, counsel appearing on behalf of the respondents, has fairly
       clarified that the respondents do not claim arrears of salary for the period
       during which they were out of service, namely, from 12 September 2007
       until the date of reinstatement.
              16. Besides the concession which has been made on behalf of the
 F     respondents, it is clearly evident from the earlier order of the Single
       Judge dated 9 October 2009, that the respondents who were directed to
       be reinstated were held not to be entitled to any monetary benefits for
       the period till they were reinstated. According to the order, reinstatement
       from 12 September 2007 entitles them to continuity of service. The
 G     direction in the judgment of the Single Judge dated 6 December 2018 to
       the effect that respondents would be entitled to the fixation of pay by
       reckoning the period of service during which they were kept out of service
       is consistent with the earlier judgment. However, the further direction
       that they shall be granted all benefits on the basis of such fixation of pay
       needs to be clarified to the extent that they shall not be entitled to any
 H
 KERALA TRANSPORT DEVELOPMENT FINANCE CORP. LTD. v.                          1017
  BASIL T K & ORS [DR. DHANANJAYA Y CHANDRACHUD, J.]

payment of arrears of salary for the period during which they were out       A
of service.
       17. The surviving issue in this batch of appeals, however, relates
to the issue of seniority as between the respondents and Aneesh Babu,
who has filed the third appeal. In this context, Mr V Giri appearing for
KTDFCL submitted that he does not take or adopt any specific position        B
as regards the seniority between the contesting parties.
        18. Mr Kuriakose Varghese, counsel appearing on behalf of
Aneesh Babu, submitted that his client was appointed originally as an
Assistant Manager following a due process of selection. The submission
is that despite the fact that he was appointed following a due process of    C
recruitment, he was initially appointed on a contractual basis on 13
October 2008, but the injustice to him was rectified and he was eventually
regularized on 12 December 2014 with effect from the original date of
appointment.
       19. On the other hand, it was submitted by Mr Kuriakose Varghese      D
that the respondents were appointed purely on a contractual basis and it
was as a result of the initial order of regularization dated 23 February
2006 that they came to be recruited as regular employees. Following the
cancellation of that order on 12 February 2007, there was another round
of proceedings which ultimately culminated in the order of the Single        E
Judge dated 9 October 2009. In this context, it was sought to be urged
that the consequence of the direction to grant continuity of service would
mean that the services of the respondents would have to be treated as
unbroken and uninterrupted. Counsel sought to make a distinction
between continuity and continuous service, urging that the respondents
had not fulfilled minimum residency requirements when they were              F
promoted as Deputy Mangers and Managers and since his client did so,
he must rank higher in seniority in the post of Manger.
       20. Hence, it is urged that at the time when Aneesh Babu fulfilled
the residency requirement of one year in each of the subsequent posts
as Deputy Manager and Manager, he was the only eligible candidate for        G
promotion to the post of Chief Maanager. As a consequence, the
subsequent reinstatement in service of the respondents should not allow
them to steal a march in seniority over Aneesh Babu. Reliance has been
placed on the Service Rules governing KTDFCL. That in essence is the
submission of Mr Kuriakose Varghese.                                         H
1018                   SUPREME COURT REPORTS                       [2022] 3 S.C.R.


 A            21. At the outset, while considering the submissions, it needs to be
       noticed that the Kerala Transport Development Finance Corporation
       Rules4 contains a definition of the expression “Approved Probationer”.
       The provisions for promotion are contained in Rule 13. Rule 18 provides
       for the determination of seniority in the following terms:
 B               “18. 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 order of his first
                         appointment to such service, class category or grade.
 C                       Provided that the seniority of persons appointed direct,
                         otherwise than on advice of the Commission shall be in
                         accordance with the ranked list of approved candidates.”
              22. In the present case, the respondents who were initially
       regularized in service on 23 February 2006 were aggrieved by the
 D     cancellation of the order of regularization dated 12 February 2007. The
       judgment of the Single Judge dated 9 October 2009 set aside the order
       by which the regularization of the respondents was cancelled and there
       was a direction to reinstate them in service with retrospective effect
       from 12 September 2007. This clearly implies that they were entitled to
 E     the benefit of continuity of service. The cancellation of their regularization
       stood effaced. However, the Single Judge directed that they shall not be
       entitled to any monetary benefits for the period till they are reinstated. In
       other words, no arrears of salary were granted. The respondents have,
       upon their regularization, been promoted as Deputy Managers and
       Managers. The appointment of the respondents as Deputy Managers
 F     and Managers are not in question. There is no challenge to their
       promotions. The Single Judge of the High Court has come to the
       conclusion that since respondents stand reinstated with effect from 12
       September 2007 and the order by which the regularization was cancelled
       has been quashed, necessary consequences under the law would have
 G     to follow. There can be no manner of doubt that Aneesh Babu who was
       appointed to the service on 13 October 2008 could have any legitimate
       grievance in regard to the position of the respondents following the order
       of reinstatement.

       4
 H         “Service Rules”
 KERALA TRANSPORT DEVELOPMENT FINANCE CORP. LTD. v.                             1019
  BASIL T K & ORS [DR. DHANANJAYA Y CHANDRACHUD, J.]

       23. The Court has been informed that, as a matter of fact, all the       A
three employees (the respondents and Aneesh Babu) are presently holding
the post of Manager. The next promotion which is available is to the post
of Chief Manager. The promotion to the post of Chief Manager would
be governed by the Service Rules and Regulations. The judgment of the
Single Judge granting the benefit of seniority to the respondents is a
                                                                                B
plain consequence of the earlier judgment dated 9 October 2009 and the
provisions for seniority contained in Rule 18 of the Service Rules. Rule
18 of the Service Rules provides for seniority of a person in a service,
class, category or grade on the basis of the date of the order of the first
appointment to such service, class, category or grade. The respondents
were appointed to the post of Assistant Manager in 2000, whereas,               C
Aneesh Babu was appointed in 2008. Both the respondents and Aneesh
Babu’s service were regularized retrospectively from their initial date of
appointment. The judgment of the Single Judge dated 9 October 2009,
saves the respondents continuity of service. Therefore, there was no
justification to exclude the period during which the respondents were
                                                                                D
not in service due to the illegal termination of employment, which was
subsequently set aside, given that the High Court expressly saved the
continuity of service. The contention that the respondents did not satisfy
the one year residency rule in the post for the purpose of promotion is
without merit. The only distinction between the respondents and Aneesh
Babu is that unlike the former, the latter was in service throughout.           E
Aneesh Babu, though appointed in 2008 in the post of Assistant Manager
was regularized retrospectively only in 2014. Inspite of not fulfilling the
one year residency criteria in each post (that is as Deputy Manager and
Manager), he was still promoted taking into account his service as the
Assistant Manager. However, this distinction between the parties
                                                                                F
diminishes in view of the direction of the Single Judge to grant continuity
of service to the respondents. Therefore, we find no error in the impugned
judgment. However, it only needs to be clarified that since the respondents
as well as Aneesh Babu hold the post of Manager from which the next
promotion is to the post of Chief Manager, the promotional post of Chief
Manager shall be filled up in accordance with the applicable Service            G
Rules and regulations.
       24. As regards the appeals by KTDFCL, we clarify that the
judgment of the Single Judge dated 6 December 2018 shall stand modified
to the extent that the respondents shall not be entitled to arrears of salary
for the period between 2007 and 2012 when they were out of service.             H
1020              SUPREME COURT REPORTS                         [2022] 3 S.C.R.


 A     The rest of the directions of the Single Judge, as affirmed by the Division
       Bench, are maintained, subject to the clarification that the promotion to
       the post of Chief Manager shall take place in accordance with the Service
       Rules and Regulations.
              25. The appeals shall stand disposed of in the above terms.
 B            26. Pending application, if any, stands disposed of.

       Devika Gujral                                            Appeals disposed of.
       (Assisted by : Roopanshi Virang, LCRA)

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