IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 WA.No. 1389 of 2011() --------------------- AGAINST THE JUDGEMENT IN WPC.2081/2007 APPELLANT: 5TH RESPONDENT A. ALICE, ASSISTANT (PRODUCTION), MEAT PRODUCTS OF INDIA LTD., EDAYAR, KOOTHATTUKULAM. BY ADV. SRI.P.NANDAKUMAR RESPONDENTS/ PETITIONER & RESPONDENTS 1 TO 4. 1. V.T. RAJAN, ASSISTANT (PRODUCTION), MEAT PRODUCTS OF INDIA LTD., EDAYAR, KOOTHATTUKULAM, ERNAKULAM DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, ANIMAL HUSBANDRY DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. MEAT PRODUCTS OF INDIA LTD., EDAYAR, KOOTHATTUKULAM, REPRESENTED BY ITS MANAGING DIRECTOR. 4. B. KANAKAMMA, ASSISTANT (PRODUCTION), MEAT PRODUCTS OF INDIA LTD., EDAYAR, KOOTHATTUKULAM, ERNAKULAM DISTRICT. 5. P.G. RAJAN, ASSISTANT (PRODUCTION), MEAT PRODUCTS OF INDIA LTD., EDAYAR, KOOTHATTUKULAM, ERNAKULAM DISTRICT. R1 BY ADVS. M/S. VAKKOM N.VIJAYAN , V.RENJU, M.A.RAMITHA, & SRI.B.UNNIKRISHNA KAIMAL R3 BY SRI. KRB.KAIMAL, SENIOR ADVOCATE GOVERNMENT PLEADER SMT. MEERA. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON13/ 10/2011, THE COURT ON 10.11.2011, DELIVERED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = = W.A. NO. 1389 of 2011 = = = = = = = = = = = = = = = = = = DATED THIS, THE 10th DAY OF NOVEMBER, 2011. J U D G M E N T P.S. Gopinathan, J. The appellant is the 5th respondent in W.P.(C) 2081/2007. The first respondent herein is the writ petitioner. The first respondent herein entered the service of the third respondent on 1.1.1978 as a casual labourer. In 1983, he was selected as a trainee. The appellant and respondents 4 and 5 also entered the service of the third respondent as casual labourers subsequent to the first respondent. While so, there was demand for regularization of the casual labourers. Pursuing that demand, a discussion with the management and casual labourers' unions was held for which Ext.P7 minutes was prepared. During the discussion in the meeting, the third respondent agreed to absorb all the casual labourers and to post them in the then existing 21 vacancies. As per Clause 5 in Ext.P7, all the 21 vacancies then existing would be filled up based on seniority and seniority would be reckoned based on the date from their engagement as daily paid labourers. In pursuance to Ext.P7, the first respondent, appellant and the 5th W.A. 1389/2011 2 respondent were appointed on 15.5.1984. Though the 4th respondent was also engaged as a casual labourer subsequent to the appointment of the first respondent, she was appointed on regular basis on 6.2.1984. As per Ext.P4 seniority list, the first respondent is Sl No.1, 5th respondent is Sl. No.2 and the appellant is Sl. No.6. Thereafter, the first respondent, appellant and respondents 4 and 5 were promoted as Assistants. Later, Ext.P11 seniority list was published. In Ext.P11, the appellant is Sl. No. 16, first respondent is Sl. No. 17, Respondents 4 and 5 are Sl. Nos. 14 and 15 respectively. Assailing Ext.P11 seniority list, the writ petition was filed. The third respondent took a defence that Ext.P11 seniority list was prepared on the basis of the date of birth. 2. The learned Single Judge, after hearing either side and perusing the documents, arrived at a finding that since the 4th respondent was appointed on 6.2.1984 on regular basis, irrespective of her entitlement of seniority against the first respondent, who was appointed as casual labourer on 1.1.1978, first respondent was found not entitled to assail the appointment of 4th respondent after the lapse of 23 years. As regards the appellant and 5th respondent, it was found that they joined the service of the third respondent as casual labourers subsequent to the first respondent and were regularized only in pursuance to Ext.P7. Therefore, the first W.A. 1389/2011 3 respondent is entitled to have seniority as against the appellant and the 5th respondent. Before the learned Single Judge, a contention was urged that the first respondent was subsequently posted in sale section as pr Ext.R2(a) and therefore, he lost his seniority in the production section in which appellant and respondents 4 and 5 are continuing. The learned Single Judge, going by Ext.P12, found that despite the transfer to sales section, the lien of the first respondent in the production section was not lost. The preparation of Ext.P11 seniority list on the basis of date of birth was found erroneous in the light of Ext.P4 seniority list and Ext.P7 minutes. Consequently, the writ petition was partly allowed declaring that the first respondent is entitled to get his seniority against the appellant and the 5th respondent. It was further observed that in the event the appellant and the 5th respondent were already promoted as supervisor (production) in preference to the first respondent, he is declared entitled to be promoted with effect from the date when the 5th respondent was so promoted. The claim for seniority against the 4th respondent was declined. Assailing he above judgment, this writ appeal was filed. 3. We have heard Sri. P. Nandakumar, learned counsel appearing for the appellant and perused the documents. 4. The fact that the first respondent entered the service of the third W.A. 1389/2011 4 respondent as casual labourer on 1.1.1978 is admitted. It is also not disputed that the appellant and the 5th respondent joined the service as casual labourers subsequent to the first respondent joining duty and that Ext.P4 seniority list was prepared on the basis of their date of joining duty and that the seniority was determined with reference of Ext.P7 minutes. In the above circumstances, the contention of the third respondent that Ext.P4 seniority list was revised and Ext.P11 was issued with reference to the date of birth can no way be accepted. In Ext.P7 minutes, it is specifically mentioned that seniority would be reckoned based on the date of their engagement as daily paid labourers. Ext.P7 was prepared on the basis of understanding between the Workers' Union and the Management. Such understanding in the settlement can no way be taken away by substituting seniority on the basis of the date of birth. Appellant can claim seniority as against the first respondent only in terms of Ext.P7, on the basis of which the appellant got regular appointment. Therefore, we concur with the learned Single Judge and find that the seniority list prepared based on the date of birth ignoring the date of entry in service is unsustainable. 5. The contention of the appellant that the first respondent was subsequently transfered to sale section as per Ext.R2(a) and therefore he is not entitled to have his seniority retained in production section is also W.A. 1389/2011 5 devoid of merits. Ext.P12, whereby the first respondent was transferred from production section to sales section would show that it was purely on a work arrangement and his lien in production section would be retained. Ext.P13 dated 30.7.2009 would show that from the sale section, the first respondent was again transferred to commerce section. There also, it is mentioned that the transfer was on work arrangement basis and that the lien in the parent department would be protected. Such being the manner in which the first respondent was transferred to sales section and then to commercial section, we find that the argument of the appellant that the first respondent lost his seniority in the production section is devoid of merit. We find no good reason to interfere with the judgment impugned. In the result, the writ appeal fails. It is dismissed. C.N. RAMACHANDRAN NAIR, ( JUDGE) P.S. GOPINATHAN, (JUDGE) KNC/-