Holding

Seniority for promotion is fixed by the date of appointment and inter‑se seniority must be preserved; promotions by seniority subject to fitness cannot be altered by later joining dates or probation completion.

Summary

P. Suseela Devi, appointed Assistant Grade‑II in the Kerala General Secretariat Service, was senior to respondents 2‑9 in the official seniority list. Promotion to Assistant Grade‑I is by seniority subject to fitness and requires completion of a two‑year probation. When vacancies arose, all were provisionally promoted on 3 July 1973, preserving inter‑se seniority. The regular promotion order dated 29 December 1973 gave respondents earlier promotion dates, making the appellant junior, on the ground that they had joined earlier and completed probation sooner. The High Court upheld this view relying on Verghese v. State of Kerala. The Supreme Court held that seniority for promotion is determined by the date of appointment (advice) and must be preserved; the date of joining or probation completion are fortuitous circumstances and cannot alter seniority. Consequently, the High Court judgment was set aside and the appellant's writ petition was allowed.

Issues considered

Whether seniority for promotion in the General Secretariat Service should be based on the date of appointment/advice or on the date of joining/completion of probation.
Whether the High Court erred in applying the principle from Verghese v. State of Kerala to depart from the established seniority list.

Subjects

Service lawPromotionSeniorityProbationGeneral Secretariat ServiceKerala Public Service CommissionAdministrative law

Judgment

P. SUSEELA DEVI A
_..(
v.
KERALA PUBLIC SERVICE COMMISSION AND ORS.

FEBRUARY 12, 1998

.......__,,_ [MRS. SUJATA V. MANOHARAND D.P. WADHWA, JJ.] B

Service Law-Seniori~State ofKera/a-General Secretariat Service-
Assistant Grade-II-Promotion to Assistant Grade-I-Criteria for promotion-
Purely by seniority subject to fitness-Completion of probation-Period for
two years necessary-Appel/ant and respondents 2 to 9 appointed as Assistantc
Grade II-Appellant appointed prior to but joining subsequent to
respondents-Vacancies occurring in Grade /I-None of them having
completed the requisite probation period provisional promotion given to
them-Appellant given seniority over respondents-Respondents 2 to 9 are
~
given the date of promotion which is prior to the date of promotion given D
~~
to the appellant, thus making the appellant junior to respondents 2 to 9-
This was done because although the appellant was senior to respondents 2
to 9 in the cadre ofAssistants Grade IL her actual date ofjoining that cadre
was later than the actual date ofjoining of respondents 2 to 9-As a result,
earlier than the appellant and hence they became eligible for promotion
E
earlier than the appellant-Held seniority does not depend upon these
fortuitous circumstances-In the provisional promotion list inter-se seniority
ofAssistants Grade II was preserved-Jnter-se seniority on the date ofregular
~~
promotion was also required to be preserved.

Verghese v. State of Kera/a, (1981) KLT 458, referred to. F
J
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4356 of
1984.

From the Judgment and Order dated 15.3.84 of the Kerala High Court
in W.A. No. 39of1984.
G
_..,., t- K. Sukumaran, Ms. Baby Krishnan, Ms. Karthika and R. Jayanathan for
the Appellants .
...
K.M.K. Nair for the Respondents.
The following of the Court was delivered : H
879
880 SUPREME COURT REPORTS [1998) l S.C.R.

A The appellant was appointed as Assistant Grade-II in the General
Secretariat Service with the Public Service Commission by an advice dated
29.6.71. The Public Service Commission thereafter issued two further advice
lists dated 4.7.71 and 14.7.71. Pursuant to these advice lists, respondents 2
to 9 were also appointed as Assistants Grade-IL The dates of actual joining
B of various persons shown in these advice lists varied depending upon
exigencies of the situation. However, in the seniority list of Assistants Grade- ...,.-
II, admittedly, the appellant was senior to respondents 2 to 9.

The next promotional post for Assistant Grade-II is Assistant Grade-I.
The promotion is purely by seniority subject to fitness. To qualify for
C promotion, Assistants Grade-II are required to have completed satisfactorily
their two years' period of probation. On 3.7.73 a number of posts of Assistants
Grade I were vacant. Since none of the Assistants Grade II were qualified on
that date for promotion because they had not then completed their probation
period, they were given provisional promotions by an order of that date. The
D appellant as well as respondents 2 to 9 were thus provisionally promoted as
Assistants Grade I by the order of 3.7.73. In this list also the appellant is
shown senior to respondents 2 to 9. On 29.12.73, the respondent - Kerala
Public Service Commission, issued an order giving regular promotion to 45
Assistants Grade II as Assistants Grade I. In the order of 29.12.73 respondents
2 to 9 are given the date of promotion which is prior to the date of promotion
E given to the appellant, thus making the appellant junior to respondents 2 to
9. The respondents contend that this was done because although the appellant
was senior to respondents 2 to 9 in the cadre of Assistants Grade II, her
actual date of joining that cadre was later than the actual date of joining of
respondents 2 to 9. As a result, respondents 2 to 9 completed their period
F of probation earlier than the appellant and hence they became eligible for
promotion earlier than the appellant. That is why the appellant is shown as
junior to respondents 2 to 9 in the cadre of Assistants Grade I.

This contention of the respondents has been upheld by the High Court
relying upon a full bench decision of that Court in the case of Verghese v.
G State of Kera/a (1981) KL T 458.

The promotion in the pres~nt case was dependant entirely upon the
seniority of the person concerned in the cadre of Assistants Grade II. The
seniority in the cadre of Assistants Grade II was dependant upon the date
H of advice received from the Public Service Commission, since candidates were
P. SUSEELA DEVI v. KERALA PUBLIC SERVICE COMMISSION 881
directly recruited as Assistants Grade II. This seniority did not depend upon A
the date of completion of probation of the direct recruits so appointed. This
-1-
is because the date of completion of probation will depend upon other
.. fortuitous circumstances. The date of joining may also depend upon various
fortuitous circumstances. Seniority does not depend upon these fortuitous
circumstances.
B
~
Therefore, when promotions are made to the next higher post, the
seniormost in the lower cadre will normally be promoted, when promotions are
by seniority subject to fitness. In the present case, however, when the
vacancies were first sought to be filled in the higher post on the 3rd July,
1973, nobody was eligible because nobody had completed the period of c
probation. We do not know when thi:, vacancies actually arose. We only have
the first date when promotions were made to the existing vacancies
provisionally which is 3rd of July, 1973. In the provisional promotion list inter
se seniority of Assistants Grade II was preserved.

_._ The order for regular promotions was issued on 29.12.73. By this date D
...,, all eligible persons holding the substantive post of Assistants Grade II were
qualified for promotion and were actually provisionally promoted on 3rd July,
1973. Therefore, their inter se seniority on the date of regular promotion was
required to be preserved in order to give effect to the principle of seniority
being the criterion for promotion to Assistants Grade I when seniority was E
the only criterion for such promotion.

We are concerned with the case where an order for regular promotion
was issued at a time when appellant as well as respondents 2 to 9 were
qualified for promotion. Therefore, in making such a promotion, the principle
of seniority should not have been departed from when it had been adhered
F
J to up to that date. We may add that the respondents had very fairly waited
till all concerned Assistants Grade II had completed their probation period
before issuing the order of regular appointment. This was correctly done so
as to give effect to the principle of seniority in granting promotion to Assistants
Grade I. Subsequently, by amendment of Rule 28(a) this principle has been G
clarified by providing that a probationer in a grade shall not be superseded

~·
>- for promotion to a higher grade by his junior if the vacancy arises within the
period of completion of probation and if he has passed the test or tests
prescribed for successful completion of probation and is otherwise eligible
and suitable for promotion; but his promotion shall be subject to the condition H
882 SUPREME COURT REPORTS [1998] l S.C.R.

A that he satisfactorily completes the probation in the grade from which he was
promoted within the period as prescribed and for this purpose the period of ..1.......
service put in by him in the higher grade shall be reckoned towards probation
in the grade from which she was promoted.

The appeal is, therefore, allowed and the impugned judgment and order
B of the High Court is set aside. The writ petition filed by the appellant in the
High Court is allowed. There will, however, be no order as to costs. ....-"

T.N.A. Appeal allowed.