IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 WA.No. 1559 of 2004(A) --------------------------------- AGAINST THE JUDGEMENT IN OP.24791/2002 DATED 09/06/2003 .................... PETITIONERS/ 3RD PARTIES: ------------------------------------------- 1. A.K. AJAYAGODSON, S/O. A.G. KRISHNAN, AGED 51, JUNIOR SUPERINTENDENT, COMMISSIONERATE OF RURAL DEVELOPMENT, THIRUVANANTHAPURAM. 2. K.P. AUGUSTINE, S/O. PAULO K. AIPE, AGED 49, HEAD CLERK, BLOCK DEVELOPMENT OFFICE, ALANGAD, ERNAKULAM. 3. JOSEPH REJI, S/O. CHERIYA, AGED 44 YEARS, HEAD CLERK, DISTRICT RURAL DEVELOPMENT, AGENCY, KOTTAYAM. 4. M. SITHARTHAN, S/O. AYYAPPAN, AGED 51, HEAD CLERK, BLOCK DEVELOPMENT OFFICE, PONNANI, MALAPPURAM. BY ADV. SRI.SAIGI JACOB PALATTY, SRI.SABU GEORGE RESPONDENTS: ------------------------ 1. SRI. T.A. USSANKUTTY, HEAD CLERK, BLOCK DEVELOPMENT OFFICE, VAZHAKULAM. 2. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, RURAL DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. W.A. NO.1559/2004-A: 3. THE COMMISSIONER FOR RURAL DEVELOPMENT, L.M.S. COMPOUND, THIRUVANANTHAPURAM. 4. SRI. K.A. CHANDRASEKHARAN, HEAD CLERK, BLOCK DEVELOPMENT OFFICE, VAZHAKULAM, ERNAKULAM DISTRICT, PRESENTLY WORKING AS HEAD CLERK, BLOCK DEVELOPMENT OFFICE, KOOVAPPADY, P.O. KURUPPAMPADY, ERNAKULAM DIST. 5. SRI. S. MANIKUTTY, U.D. CLERK, BLOCK DEVELOPMENT OFFICE, NORTH PARAVUR, ERNAKULAM DISTRICT. NOW WORKING AS HEAD CLERK, BLOCK DEVELOPMENT OFFICE, ANGAMALY. 6. SRI. VARKEY JOSEPH, U.D. CLERK, BLOCK DEVELOPMENT OFFICE, KOOVAPPADY, ERNAKULAM DISTRICT. *ADDL.R7. V. MOHANAKRISHNAN, AGED 42 YEARS, S/O. BALAKRISHNAN EZHUTHACHAN, HEAD CLERK, BLOCK DEVELOPMENT OFFICE, PERUMBADAPPA, MALAPPURAM DISTRICT. *IS IMPLEADED AS ADDL. R7. AS PER ORDER DTD. 14/12/07 IN IN.A. NO. 903/06. **ADDL.R8. C.E. SANTHA KUMARY, AGED 53 YEARS, S/O. P.S. CHANDRAN, WORKING AS JUNIOR SUPERINTENDENT, OFFICE OF THE PRINCIPAL E.T.C. KOTTARAKKARA, RESIDING AT PECHANATT HOUSE, KATTAPURAM, KORATTY.P.O., THRISSUR DISTRICT. **IS IMPLEADED AS ADDL. R8 AS PER ORDER DATED 28/03/08 IN I.A.275/08. R2 & R3 BY SR. GOVT. PLEADER SRI. BENNY GERVACIS, R1 BY ADV. SRI.KRB.KAIMAL (SR.), ADDL. R7. BY ADV. SRI.M.SASINDRAN, ADDL. R8 BY ADV. SRI.K.RAMAKUMAR (SR.) , ADV. SMT.SARITHA DAVID CHUNKATH, ADV. SMT.SMITHA GEORGE. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2008, ALONG WITH W.A NO. 1717/2004 & CONNECTED CASES, THE COURT ON 14/01/2009 DELIVERED THE FOLLOWING: prv. J.B.Koshy, Ag.C.J. & P.N.Ravindran, J. =========================== W.A.Nos.1559, 1717 & 1718 of 2004 W.P(C) Nos.29762 & 36358 of 2005 ============================= Dated this the 14th day of January, 2009. JUDGMENT Ravindran, J. Common questions arise in these Writ Appeals and Writ Petitions. They were therefore heard together and are being disposed of by this common judgment. 2. W.A.No.1559 of 2004 arises from the judgment of the learned Single Judge in O.P.No.24791 of 2002, W.A.No.1717 of 2004 arises from the judgment of the learned Single Judge in O.P.No.20567 of 2003 and W.A.No.1718 of 2004 arises from the judgment of the learned Single Judge in O.P.No.15285 of 2002. The Writ Appeals are filed by third parties with the leave of this Court. The appellants and the party respondents in these Writ Appeals and the petitioners and the party respondents in these Writ Petitions initially entered service as Lower Division Clerks in the Land Revenue Department. Thereafter, the Rural Development Department was formed on 1.5.1994 by bifurcating the Land Revenue Department. After the Rural Development Department was WA 1559/04 etc. -: 2 :- formed, the Government called for options from employees of the Land Revenue Department, who were then working in the Rural Development Department and also from those employees of the Land Revenue Department who were willing to be absorbed in the Rural Development Department. 3. The appellants and the party respondents in these Writ Appeals and the petitioners and the party respondents in these Writ Petitions were absorbed in the newly formed Rural Development Department based on the option exercised by them. When the seniority list of Lower Division Clerks was published by the Commissioner for Rural Development Department, the first respondent in these Writ Appeals was ranked senior to the appellants in these Writ Appeals and the petitioners in W.P.(C) Nos.29762 and 36358 of 2005. They were thereafter promoted as Upper Division Clerks. Some among them were further promoted as Head Clerks. Thereafter, Ext.P5 provisional seniority list of Upper Division clerks in the Rural Development Department as on 30.4.1994 was published by the Commissioner for Rural Development Department. In the said provisional seniority list, the appellants in these Writ Appeals and the petitioners in the connected Writ Petitions were ranked above the first respondent in these Writ Appeals and Writ Petitions. They represented against the seniority assigned to them in the provisional seniority list. Thereafter, a final seniority list was published and based on the final seniority they were reverted. The learned Single Judge held that WA 1559/04 etc. -: 3 :- any change in the seniority list of Upper Division Clerks in the Revenue Department cannot affect personnel of the Revenue Department who had gone over to the Rural Development Department. The said decision is under challenge in the Writ Appeals. Though the judgment of the learned Single Judge in O.P.Nos.24791 of 2002 and 20567 of 2003 was challenged by the State of Kerala in W.A.Nos.255 and 261 of 2004 respectively, the said Writ Appeals were dismissed as withdrawn by judgment delivered on 19.5.2004 for the reason that the petitioners in O.P.Nos.24791 of 2002 and 20567 of 2003 had since been promoted. The Government thereafter implemented the decision of the learned Single Judge and restored the seniority of the party respondents to these Writ Appeals and the Writ Petitions. The said decision is under challenge in the Writ Petitions. 4. In the judgments impugned in the Writ Appeals, the learned Single Judge held relying on the judgment in O.P.No.6878 of 1996 and connected cases that any change in seniority in the Revenue Department by reason of the amendment to the Special Rules after the appellants and party respondents in these Writ Appeals and the petitioners and the party respondents in these Writ Petitions went over to the Rural Development Department cannot affect the settled seniority position in the Rural Development Department as it stood prior to the amendment. The short question that arises in these Writ Appeals and Writ Petitions is whether the change in the seniority in the Revenue Department brought WA 1559/04 etc. -: 4 :- about by the amendment of the Special Rules for the Kerala Revenue Ministerial Subordinate Service can affect the settled seniority of the personnel in the Rural Development Department before such amendment and whether based on the amendment, the seniority of the personnel in the Rural Development Department can be altered. 5. We have considered the submissions made at the Bar by the learned counsel appearing on either side. An issue similar to the one involved in these cases had earlier arisen in the Civil Supplies Department. After the Civil Supplies Department was formed as an independent department in the year 1963, vacancies in the said department were filled up by direct recruitment as well as by transfer of personnel from the Land Revenue Department in the ratio of 1:1. The personnel drawn from the two sources were amalgamated into one common service with effect from 1.8.1975. The seniority of the personnel drawn from the Revenue Department who had opted to go over to the Civil Supplies Department was determined on the basis of their length of continuous service. At that point of time, the seniority of officers in the Revenue Department was in a fluid state till the Special Rules were issued. The Special Rules for the Kerala Revenue Ministerial Subordinate Service were issued as per G.O.(P) No.413/75/RD dated 14.5.1975. The said Special Rules were struck down by a Division Bench of this Court in M.V.Vasudevan Nair v. State of Kerala - ILR 1979 (2) Kerala 743. Thereafter, a new set of Special Rules were framed and issued WA 1559/04 etc. -: 5 :- as per G.O.(P) No.851/80/RD dated 16.6.1980. By judgment delivered in O.P.No.3003 of 1980 and connected cases, T.K.Gopinathan and others v. State of Kerala and others - 1984 K.L.T. 726, a Division Bench of this Court struck down Rule 9 of the said Special Rules as invalid and inoperative. The Division Bench also held that Rules 4 to 6 thereof cannot be given effect to if Rule 9 cannot be sustained. The Government was directed to issue a new set of Special Rules or Government orders governing the field. The Government accordingly issued revised Special Rules as per G.O.(P) No.601/85/RD dated 12.6.1985 and the said Special Rules came into force with retrospective effect from 1.11.1956. Based on the new Special Rules issued in the year 1985, the seniority list of Lower Division Clerks and Upper Division Clerks in the Revenue Department was ordered to be revised. As a result thereof, the seniority of personnel who had gone over to Civil Supplies Department underwent a change. Thereafter, a revised seniority list of personnel in the Civil Supplies Department reflecting the revised seniority in the Revenue Department was prepared. That was challenged in O.P.No.8766 of 1988 and connected cases. By judgment delivered on 20.12.1988, a learned Single Judge of this Court held that any change in the seniority in the Revenue Department will have no impact on the seniority position in the Civil Supplies Department. That decision was affirmed by a Division Bench of this Court in W.A.No.162 of 1991. Thereafter, the Special Rules for the Kerala Revenue Ministerial Subordinate Service were again WA 1559/04 etc. -: 6 :- amended and the State was made the unit of appointment instead of district-wise appointment. As a result thereof, a State-wise seniority list was published. Thereupon, a revised final seniority list of Upper Division Clerks in the Civil Supplies Department was again published. That was also challenged in O.P.No.6878 of 1996 and connected cases. By judgment delivered on 27.11.1996, relying on the principles laid down by the Division Bench of this Court in W.A.No.162 of 1991, a learned Single Judge of this Court held that any amendment to the Special Rules in the Revenue Department after the personnel of the Revenue Department had gone over to the Civil Supplies Department, cannot affect their seniority in the Civil Supplies Department. It was held that the seniority position in the Revenue Department as it stood prior to the amendment, alone would govern the seniority of personnel of the Revenue Department who had gone over to the Civil Supplies Department. It is relying on the judgment in O.P.No.6878 of 1996 and connected cases that the learned Single Judge has in the judgments impugned in these Writ Appeals held that any change in the seniority in the Revenue Department cannot have any impact on the settled seniority position in the Rural Development Department. 6. In our opinion, the issue raised in these Writ Appeals and Writ Petitions is squarely covered against the appellants and the petitioners herein by the decision of this Court in O.P.No.6878 of 1996 and connected cases wherein the learned Single Judge had referred to and WA 1559/04 etc. -: 7 :- relied on the decision of the Division Bench of this Court in W.A.No.162 of 1991 and connected cases. The principle laid down in the aforesaid decisions is that any amendment to the Special Rules for the Kerala Revenue Ministerial Subordinate Service cannot affect personnel who are outside the purview of the said Special Rules. In the instant case, the parties to these Writ Appeals and Writ Petitions came over to the Rural Development Department long before the Special Rules for the Kerala Revenue Ministerial Subordinate Service were amended with retrospective effect. The parties to these Writ Appeals and Writ Petitions were holding posts outside the purview of the Special Rules for the Kerala Revenue Ministerial Subordinate Service when the said Special Rules were amended. Any amendment to the said Special Rules cannot therefore affect them for the reason that they were no longer in the Revenue Department. The decision of the Division Bench in W.A.No.162 of 1991 is binding on us and we are in respectful agreement with the principles laid down therein, which was followed by the learned Single Judge of this Court in O.P.No.6878 of 1996 and connected cases. Applying the principles laid down by the Division Bench of this Court in W.A.No.162 of 1991 we have to necessarily hold that any amendment to the Special Rules for the Kerala Revenue Ministerial Subordinate Service cannot affect the personnel of the Rural Development Department who are not governed by the said Special Rules. In these circumstances, we find no merit in these Writ Appeals and WA 1559/04 etc. -: 8 :- Writ Petitions. They are accordingly dismissed. J.B.Koshy, Acting Chief Justice. P.N.Ravindran, Judge. ess