IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 OP.NO. 27693 OF 2001(S) --------------------------- PETITIONER: ------------ A.K.VARGHESE, S/O A.S.VARGHESE, MOTOR DRIVER, ALL INDIA RADIO, ALAPPUZHA, RESIDING AT B-11, ALL INDIA RADIO QUARTERS, PATHIRAPPALLY P.O., ALAPPUZHA. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENTS: ------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF INFORMATION AND BROADCASTING, NEW DELHI. 2. THE DIRECTOR GENERAL, ALL INDIA RADIO, AKASHVANI BHAVAN, NEW DELHI – 110 001. 3. DEPUTY DIRECTOR OF ADMINISTRATION (E), OFFICE OF THE DIRECTORATE GENERAL, ALL INDIA RADIO, SANSAD MARG, NEW DELHI – 110 001. 4. THE STATION DIRECTOR, ALL INDIA RADIO, THIRUVANANTHAPURAM. BY ADV.SRI.P.PARAMESWARAN NAIR,ASST. SOLICITOR GENERAL THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN O.P.No.27693/01 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE MEMORANDUM DATED 30.11.1993 ISSUED BY THE FIRST RESPONDENT. EXT.P2: TRUE COPY OF THE MEMORANDUM DATED 27.7.95 ISSUED BY THE FIRST RESPONDENT. EXT.P3: TRUE COPY OF THE ELIGIBILITY LIST OF MOTOR VEHICLE DRIVERS OF KERALA ZONE OF ALL INDIA RADIO AS ON 1.10.1993. EXT.P4: TRUE COPY OF ELIGIBILITY LIST OF MOTOR DRIVERS OF KERALA ZONE OF ALL INDIA RADIO AS ON 1.10.97. EXT.P5: TRUE COPY OF THE REPRESENTATION DATED 9.10.98 FROM THE PETITIONER TO THE 4TH RESPONDENT. EXT.P6: TRUE COPY OF ORDER DATED 10.12.98 ISSUED BY THE 3RD RESPONDENT. EXT.P7: TRUE COPY OF ORDER DATED 12.6.01 IN OA.115/99 ISSUED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM. TRUE COPY K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- O.P.No.27693 OF 2001 ----------------------------------------------------- DATED THIS THE 12th DAY OF AUGUST, 2008 J U D G M E N T Balakrishnan Nair, J. The petitioner was the applicant in O.A.No.115/99 on the files of the C.A.T., Ernakulam Bench. The said O.A. was filed challenging Exhibit P6 order. Aggrieved by the dismissal of the said O.A. by Exhibit P7, this Writ Petition is filed challenging Exhibits P6 and P7. 2. The brief facts of the case are the following. The petitioner joined All India Radio, Mumbai as Motor Vehicle Driver on 24.5.1982. On his request, he was transferred to AIR, Alappuzha in Kerala Zone on 22.11.1987. The respondents introduced Exhibit P1 scheme for promotion of drivers of staff cars. As per that scheme, the drivers were divided into three grades- Ordinary Grade, Grade-II and Grade-I. The person who has rendered 9 years of service in the Ordinary Grade is eligible for promotion to Grade II and a driver who has rendered six years of service in Grade II is eligible for promotion to Grade-I. The said scheme contained in Exhibit P1 was modified by Exhibit P2. By that order, it was clarified that the eligibility for promotion to Grade-I will be six years service in Grade-II or 15 years total service in the Ordinary Grade and Grade-II taken together. Exhibit P3 is the seniority list of Motor Vehicle Drivers under the Kerala O.P.No.27693/01 -2- Zone as on 1.10.1993, eligible for promotion to Grade-II. In Exhibit P3, the petitioner is not included. Exhibit P4 is the list of drivers as on 1.10.1997 in the Kerala Zone. In the said list, the petitioner is included as Sl.No.15 with date of appointment as 25.11.1987. It appears, the date he joined Alappuzha is taken as his date of commencement of service. When the petitioner completed 9 years of service in the Ordinary Grade, reckoning his past service from 1982 and 1987 rendered in Mumbai also, he claimed promotion to Grade-II. But, the said claim was rejected by Exhibit P6 order dated 10.12.1992. Challenging that order the Original Application was filed. 3. The respondents resisted the application contending that the petitioner joined AIR, Alappuzha on his own request. So, he will be treated as junior to the junior most on that date in Kerala Zone. Therefore, his past service cannot be counted. But, the petitioner submitted, though the said service cannot be counted for seniority and he can reckon his seniority in the grade of driver Ordinary Grade, only from the date he joined Alappuzha, his past service can be counted as qualifying service for promotion. The scheme only says regular service. It does not say regular service in the zone concerned. Therefore taking into account his past service also, he should have been promoted. But, the CAT rejected the contention of the petitioner and dismissed the O.A. Hence, this Writ Petition. O.P.No.27693/01 -3- 4. The above point canvassed by the petitioner before the CAT was urged before us also. The petitioner also relied on a decision of the Apex Court in Jarnail Singh v. State of Punjab (1996 (1) SCC 527). But, we feel that before referring to the decision, we should refer to the relevant provisions contained in Exhibit P1. Paragraph 2.3 of the said scheme reads as follows: “2.3. The minimum eligibility criteria for appointment to the posts in the above scales will be as under:- Grade Eligibility period Ordinary Grade Basic Grade (Rs.950-1500) Grade II of Staff Car 9 years of regular service Driver (Rs.1200-1800) in the ordinary Grade. Grade I of Staff 6 years of regular service Car Driver(Rs.1320-2040) in Grade II of Staff Car Drivers. The method of appointments to the posts in Grade II and Grade I of Staff Car Driver will be by promotion on Non-selection (Seniority-cum-fitness) basis and will be further subject to passing of Trade Test of appropriate standard, contained in the Annexure I to this OM. The above provision would show that the appointment to Grade-II and Grade-I is in fact a promotion based on seniority-cum-fitness. The concept of seniority-cum-fitness has been explained by this Court as well as the Apex Court in several decisions. It means promotion is to be made based on seniority, subject to weeding out the unfit. So, going by the above quoted provision, even if the petitioner becomes eligible for O.P.No.27693/01 -4- promotion, he can be promoted only when his turn arises according to seniority. When his turn arises as per the seniority and for qualifying service, he requires his past service also and if the same is not counted, then the above mentioned contentions of the petitioner are relevant. In this case, admittedly, his turn for promotion has not arisen as per the seniority. Therefore, we find nothing wrong in the rejection of the claim of the petitioner. In view of the above position, the decision relied on by the petitioner has no application to the facts of this case. 5. Accordingly, the Original Petition fails. But, it is clarified that if his turn arises for promotion according to seniority and for eligibility, he requires his past service also and the said benefit is not extended to him, the petitioner will be free to work out his remedy. Any finding on this point in Exhibit P7 will not stand in the way of the petitioner canvassing this aspect, if occasion arises in future. Subject to this observation, the Original Petition is dismissed. K.BALAKRISHNAN NAIR,JUDGE. M.C.HARI RANI, JUDGE. dsn