IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 OP.No. 211 of 2000(A) --------------------- PETITIONER(S): --------------- E.A. BABU, MOTOR VEHICLE INSPECTOR, OFFICE OF THE JOINT R.T.O., GURUVAYOOR. BY ADV. SRI.RAJESH THOMAS SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENT(S): --------------- 1. STATE OF KERALA,REP. BY ITS SECRETARY TO GOVT. TRANSPORT DEPARTMENT, THIRUVANANTHAPURAM. 2. TRANSPORT COMMISSIONER, MOTOR VEHICLES DEPARTMENT, THIRUVANANTHAPURAM. 3. PRABHAKARAN THAMPI, MOTOR VEHICLE INSPECTOR, OFFICE OF THE R.T.O., KOLLAM. ADV. SRI. SRI.ELVIN PETER P.J. FOR R3 SRI. S. RAMESH GOVERNMENT PLEADER SRI. M.R. SABU. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/10/2008, ALONG WITH OP NO. 3339 OF 2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 211/2000. ------------------------------------------------------------- EXT.P1 COPY OF RELEVANT EXTRACT OF SENIORITY LIST DT. 27-6-1991. EXT.P2 JUDGMENT IN O.P.NO. 11252/1991. EXT.P3 ORDER DT. 3-12-1999. EXT.P4 REPRESENTATION DT. 29-12-1999. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R3(a) ORDER ISSUED BY JOINT TRANSPORT COMMR. EXT.R3(b) ORDER DT. 3-1-2000. EXT.R3(c) SELECT LIST DT. 25TH SEPT. 1999. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. Nos. 211 & 3339 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 21st October, 2008. J U D G M E N T These two original petitions are filed by rival Government employees of the Motor Vehicles Department, seeking seniority over one another. The petitioner in O.P.No. 3339/2000 started service as a L.D. Clerk. Later on, he was appointed by transfer as Assistant Motor Vehicle Inspector on 23-1-1982 provisionally. As per the Special Rules applicable, the post of AMVI has to be filled up from among transferees and direct recruits in the ratio of 1 : 4. The petitioner's provisional appointment on 23-1-1982 was regularised and he was declared to have completed his probation in the cadre of AMVI satisfactorily with effect from 11-2-1984. The 4th respondent in O.P.No. 3339/2000, who is the petitioner in O.P.No. 112/2000, was advised for direct recruitment on 21-3-1983 and he joined service on 30-5-1983. By Ext. P. 2 seniority list of AMVIs, the petitioner was at serial no. 19 and the 4th respondent at serial no. 20. Pursuant to objections raised by the 4th respondent, the 3rd respondent issued Ext.P4 order provisionally holding that since the date of regularisation of the petitioner in O.P.No. 3339/2000 was 11-2-1984 and the petitioner in the other original petition joined duty on 30-5-1983, the petitioner in O.P.No. 211/2000 was senior in the cadre of AMVIs. Although the petitioner in O.P.No. 3339/2000 filed Exts.P5 and P 6 objections in the matter, by Ext.P7 order, the 3rd respondent declared that the petitioner in O.P.No. 211/2000 is senior to the petitioner in O.P.No. 3339/2000. However, in the select lists prepared for the posts of Motor Vehicle Inspector and Joint R.T.O, the petitioner in O.P. No. 3339/2000 was shown ahead of the petitioner in the other original petition. In O.P.No. 211/2000, the 4th respondent in the other original petition seeks to implement the seniority as confirmed in Ext. P7 for the purpose of further promotion. Pursuant to interim orders O.P.No. 211 & 3339/2000 -: 2 :- passed in that original petition, the date of promotion was assigned to the petitioner in O.P.No. 211/2000 ahead of the petitioner in the other original petition subject to the result of these original petitions. 2. The contention of the petitioner in O.P.No. 3339/2000 is that the petitioner's provisional appointment on 23-1-1982 was regularised and his probation was satisfactorily declared with effect from 11-2- 1984. Therefore, his first appointment to the post of AMVI for the purpose of Rule 27(a) of K.S and S.S.R is 23-1-1982 and not 11-2- 1984. When, admittedly, the petitioner in the other original petition entered service only as per advice dated 21-3-1983, he can only be assigned seniority below the petitioner in O.P.No. 3339/2000, is the contention raised. On the other hand, the petitioner in the other original petition would contend that in so far as the petitioner in O.P.No. 3339/2000 was regularised in service only with effect from 11-2-1984, he is liable to be ranked junior to the petitioner in O.P. No. 211/2000 for all purposes of promotion and seniority. 3. I have considered the rival contentions in detail. 4. Ext. P1 in O.P.No. 3339/2000 reads thus: “Shri. S. Prabhakaran Thampi was provisionally appointed as Asst. Motor Vehicle Inspector by transfer from among ministerial staff vide Order No.A3/1027/TC/82 dt. 23.1.82. He joined duty on 25.1.82 F.N. The period of probation in the cadre of AMVI is 2 years on duty within a continuous period of three years. 2) The provisional appointment of Shri. S. Prabhakaran Thampi as Asst. Motor Vehicles Inspector is regularised and he is declared to have completed is probation in the cadre of Asst. Motor Vehicle Inspector satisfactorily with effect from 11.2.1984.” From a reading of the same, what one understands is that the petitioner's provisional appointment dated 23-1-1982 has been regularised and his probation in the cadre of AMVI has been declared with effect from 11-2-1984. Going by the same, the date of order of the first appointment of the petitioner in O.P.No. 3339/2000 for the O.P.No. 211 & 3339/2000 -: 3 :- purpose of Rule 27(a) of K.S and S.S.R is 23-1-1982 and cannot be 11-2-1984. Further, Rule 18(a) deals with date of commencement of first appointment temporarily, which reads thus: “18. (a) Date of commencement of probation of persons first appointed temporarily:- If a person, having been appointed temporarily under sub-rule (a) or sub-rule (c) of rule 9 to a post borne on the cadre of any service, class or category otherwise than in accordance with the rules governed appointment thereto, is subsequently appointed to the service, class or category in accordance with the rules, he shall commence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine, without prejudice to seniority of others.” There is no case for the respondents in O.P.No.3339/2000 that the petitioner has been assigned date of commencement of probation other than 23-1-1982 as contemplated in Rule 18(a). On the other hand, his probation was declared with effect from 11-2-1984. Further, once a provisional appointment is ordered to be regularised without specifying any date, the regularisation would relate back to the date of provisional appointment, which in the case of the petitioner in O.P.No. 3339/2000 is 23-1-1982. That would mean that the petitioner's first appointment for the purpose of seniority is 23-1- 1982. In that view, the petitioner in O.P.No. 3339/2000 is senior to the petitioner in O.P.No. 211/2000. Therefore, the petitioner in O.P.No. 3339/2000 is entitled to be considered as senior to the petitioner in O.P.No. 211/2000 for all subsequent promotions. Accordingly, Exts.P4 and P7 are quashed and it is declared that in the cadre of Assistant Motor Vehicle Inspector, the petitioner in O.P.No. 3339/2000 is senior to the petitioner in O.P.No. 211/2000. The date of subsequent promotions of the petitioners shall be revised accordingly. The petitioner in O.P.No. 3339/2000 has retired in 2004 and the other petitioner has retired in 2007. As such, what requires to be done O.P.No. 211 & 3339/2000 -: 4 :- now is reassignment of date of subsequent promotions and payment of arrears of salary on that basis. Accordingly, I direct respondents 2 and 3 to pass orders in accordance with the above directions as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. Arrears, if any, due to the petitioner in O.P.No. 3339/2000 shall be disbursed within one month from the date of passing orders as above. O.P.No. 3339/2000 is allowed as above and O.P.No. 211/2000 is dismissed. S. Siri Jagan, Judge. Tds/ O.P.No. 211 & 3339/2000 -: 5 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. Nos. 211 & 3339 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T 21st October, 2008.