IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 OP.No. 516 of 2003(J) ---------------------------- PETITIONER(S): ----------------------- 1. P.N.OMANA, U.D.TYPIST, DISTRICT POLICE OFFICE, KOTTAYAM. 2. C.V.SUDHEESH, U.D.TYPIST, DISTRICT POLICE OFFICE, KANNUR 3. K.JAYARANI, U.D.TYPIST, OFFICE OF THE ASST.COMMISSIONER OF POLICE, CANTONMENT, THIRUVANANTHAPURAM 4. G.RADHAKRISHNA PILLAI, U.D.TYPIST, POLICE HEADQUARTERS, THIRUVANANTHAPURAM BY ADV. SRI.C.P.SUDHAKARA PRASAD (SR.) SRI.ELVIN PETER P.J. SRI.S.RAMESH SRI.P.N.SANTHOSH SRI.S.D.ASOKAN SRI.T.NAVEEN RESPONDENT(S): ------------------------ 1. THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM 3. THE SUPERINTENDENT OF POLICE, IDUKKI 4. M.V.ROSAMMA, U.D.TYPIST, DISTRICT POLICFE OFFICE, IDUKKI. BY GOVERNMENT PLEADER SMT. K.R.DEEPA ADV. SRI.P.R.VENKETESH FOR R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 516 of 2003(J) C.M.P.NO. 816 OF 2003 IN O.P. NO. 516 OF 2003 STAY PETITION DISMISSED. SD/- 14.10.2008 S.SIRI JAGAN, JUDGE APPENDIX PETITIONERS' EXHIBITS: EXT.P1 - TRUE COPY OF THE ORDER (MEMO) NO. A2 - 4050/91-ID. DT. 30-3-1991 ISSUED BY THE 3RD RESPONDENT. EXT.P2 - TRUE COPY OF ORDER, DGO NO. 33/2000. DATED 12-1-2000 ISSUED BY THE 2ND RESPONDENT. EXT.P3 - TRUE COPY OF ORDER, D.O.NO.151/90-G. DT. 8-6-1990 ISSUED BY THE SUPDT. OF POLICE, KASARAGODE. EXT.P4 - TRUE COPY OF ORDER, DGO NO. 161/91. DATED 11TH MARCH, 1991 ISSUED BY THE 2ND RESPONDENT. EXT.P5 - TRUE COPY OF RELIEVING ORDER, D.O.NO. 73/91-G, DATED 18-3-1991 ISSUED BY THE SUPDT. OF POLICE, KASARAGODE. EXT.P6 - TRUE COPY OF ORDER, B.O. NO.81/91KAP4. DATED 20-3-1991 ISSUED BY THE COMMANDANT, KAP 4TH BN. MANGATTUPARAMBA. EXT.P7 - TRUE COPY OF ORDER, D.O.NO.238/99-C. DT. 4/99 ISSUED BY THE SUPDT. OF POLICE, KANNUR. EXT.P8 - TRUE COPY OF ORDER, D.O. NO. 673/2000-C DT. 22-11-2000 ISSUED BY THE SUPDT. OF POLICE, KANNUR. EXT.P9 - TRUE COPY OF ORDER, C.O. NO. 352/91-TC. DATED 5/91 ISSUED BY THE COMMR. OF POLICE, TVM CITY. EXT.P10 - TRUE COPY OF ORDER, C.O. NO.367/91-TC. DATED 5/91 ISSUED BY THE COMMR. OF POLICE, TVM CITY. EXT.P11 - TRUE COPY OF ADVICE LETTER DT. 18-2-1986 ISSUED TO THE 4TH PETITIONER. EXT.P12 - TRUE COPY OF ORDER, B.O.NO.91/91/KAP 3. DATED 22.3.1991 ISSUED BY THE COMMANDANT, KAP 3 BN. EXT.P13 - TRUE COPY OF ORDER, DGO NO. 726/2000. DATED 18.9.2000 ISSUED BY THE 2ND RESPONDENT. EXT.P14 - TRUE COPY OF ORDER (MEMO) NO. A2-4050/91-ID. DT. 8-3-1991 ISSUED BY THE 3RD RESPONDENT. EXT.P15 - TRUE COPY OF ORDER, DGO NO. 37/94. DATED 2/94 ISSUED BY THE 2ND RESPONDENT. EXT.P15(a) - RELEVANT EXTRACT OF THE SENIORITY LIST OF L.D. TYPISTS AS ON 1-3- 1992 PUBLISHED AS PER EXT.P15. EXT.P16 - TRUE COPY OF REPRESENTATION DT. 5-11-1997 FILED BY THE 3RD PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P17 - TRUE COPY OF REPRESENTATION DT. 17-1-2000 FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P18 - TRUE COPY OF REPRESENTATION DT. 8-1-2001 FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P19 - TRUE COPY OF REPRESENTATION DT. 8-11-2001 FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P20 - TRUE COPY OF COMMUNICATION NO. M4 - 86081/98. DT. 3-8-2000 FROM THE 2ND RESPONDENT TO THE 3RD RESPONDENT. EXT.P21 - TRUE COPY OF COMMUNICATION NO. M4-86081/98 DATED 30.9.2000 FROM THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXT.P22 - TRUE COPY OF ORDER, G.O.(Rt)NO. 2346/2002/HOME. DATED 26.11.2002 ISSUED BY THE GOVERNMENT. EXT.P23 - TRUE COPY OF CIRCULAR NO. 57209/SD4/86/GAD. DATTED 25TH AUGUST, 1986 ISSUED BY THE GOVERNMENT. /TRUE COPY/ PA TO JUDGE rhs S.SIRI JAGAN, J ================== O.P.No.516 of 2003 ================== Dated this the 14th day of October, 2008. J U D G M E N T By this original petition the petitioners raises a dispute with the 4th respondent regarding seniority. Petitioners joined service as L.D.Typist and were promoted as U.D. Typist. Admittedly their seniority in the cadre of L.D. Typist has to be reckoned with effect from 25.3.1991, 20.3.1991, 9.5.1991 and 19.3.1991, petitioners 1 and 3 having been advised by the PSC to that post on 5.4.1991 and 9.5.1991 respectively and petitioners 2 and 4 having joined duty after obtaining inter departmental transfer on request on the above said dates. The 4th respondent, although was advised on 28.2.1991 to the post of L.D.Typist, she joined duty only on 6.6.1991, that is after more than 90 days. In Ext.P15 seniority list of L.D.Typists published in February 1994, the 4th respondent was shown as junior to the petitioners. However, when another seniority list dated 17.10.1997 was published the 4th respondent was shown as senior to the petitioners in the same. Challenging the same, petitioners filed Exts.P16 to P19 representations before the 2nd respondent. In the meanwhile, by Ext.P20, the 2nd respondent O.P.No.516 of 2003 - 2 - directed the 3rd respondent to explain as to how the 4th respondent was allowed to join duty beyond 90 days without obtaining sanction from the Government. By Ext.P20 the 3rd respondent was directed to forward a proposal for granting extension of time by Government to the 4th respondent to join duty beyond 45 days. Ultimately it resulted in Ext.P22 order whereby the 1st respondent Government granted ex-post facto sanction to the 4th respondent allowing the 4th respondent joining time till 6.6.1991. It was also ordered that the 4th respondent would be eligible for seniority in the cadre of L.D.Typist with effect from 28.2.1991, which is the date of advise of the 4th respondent by the Kerala Public Service Commission, in terms of the 1st proviso of the Rule 27(c) on part II of the Kerala State Subordinate Services Rules. The petitioners are challenging Ext.P22 order to the extent the same gives seniority to the 4th respondent above the petitioners. 2. The contention of the petitioners is that the 4th respondent never filed an application before the Government for extension of time beyond 45 days. Therefore according to them without an application from the 4th respondent, 4th O.P.No.516 of 2003 - 3 - respondent could not have been bestowed with such benevolence, that too at the expense of the petitioners. They would further contend that in so far as the 1st proviso to Rule 27(c) of KS&SSR provides that seniority of candidates who have granted extension of time to join duty beyond three months from the date of the appointment order shall be determined by the date of their joining duty, clearly even if the ex-post facto sanction accorded to the 4th respondent for joining duty beyond 45 days is valid, she is not entitled to seniority over the petitioners since she had joined duty beyond the period prescribed in the proviso. 3. Counter affidavits have been filed both by the 1st respondent and the 4th respondent justifying Ext.P22 order. 4. I have considered the rival contentions in detail. 5. At the outset, I must state that I am at a loss to understand why such benevolence should be shown to the 4th respondent who has been at fault in the matter of applying for extension of time. Although in the counter affidavit the 1st respondent had stated that the 4th respondent had submitted an application for extension of joining time on medical grounds with medical certificate, there is no case that the 4th O.P.No.516 of 2003 - 4 - respondent submitted an application before the Government for extension of time. The only statement in the counter affidavit is that since the extension sought was for a period beyond 45 days, the 3rd respondent ought to have taken up the matter with a Government. I do not think that there was such a duty cast upon the 3rd respondent to take up the matter with the Government without an application from the petitioner. It was for the 4th respondent to file a suitable application before the Government for sanction to join duty beyond 45 days for any valid reason. Admittedly the 4th respondent has not done so. As such I am of opinion that it would be a travesty of justice to deprive the petitioners of seniority over the 4th respondent, which was originally assigned to the petitioners which is now sought to be reversed on the basis of the ex-post facto sanction granted on 26.11.2002. Especially since the 4th respondent did not get permission from Government for extension of joining time, the Government cannot grant a retrospective sanction especially for the purpose of seniority to the detriment of the petitioners. Such sanction can at best be valid only for regularisation of appointment. 6. In any event even otherwise I do not think that the 4th O.P.No.516 of 2003 - 5 - respondent is entitled to seniority over the petitioners in view of the 1st proviso to Rule 27(c) reads thus: “(c) Notwithstanding anything contained in clauses (a) and (b) above, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list. Provided that the seniority of candidates who have been granted extension of time to join duty beyond three months from the date of the appointment order, except those who are undergoing courses of study or training which are prescribed as essential qualification for the post to which they are advised for appointment, shall be determined by the date of their joining duty. “ (Emphasis supplied). Although in the proviso the period mentioned is “three months”, it would not be unreasonable to count the three months mentioned in the proviso as 90 days so as to have uniformity in application. Otherwise depending upon the month of appointment, the situation may change which will lead to discrimination. Admittedly, the 4th respondent joined duty on the 91st day that is beyond 90 days. That being so, even going by the said proviso the 4th respondent is not entitled to seniority with effect from her date of advise but she is entitled to seniority only with effect from her date of joining since she O.P.No.516 of 2003 - 6 - joined duty beyond the period prescribed in the said proviso. That being so, clearly that part of Ext.P22, whereby the Government has conferred seniority to the 4th respondent with effect from 28.2.1991, ie. the date of advise by the PSC is clearly unsustainable. Therefore that part of Ext.P22 whereby the 4th respondent has been given seniority with effect from 28.2.1991 is quashed. It is declared that for all purposes petitioners are senior to the 4th respondent in the cadre of L.D. Typist, with consequential service benefits. The Original Petition is allowed as above. S.SIRI JAGAN, JUDGE rhs