IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 OP.No. 38125 of 2002(L) --------------------------------- PETITIONER(S): ---------------------- K.KRISHNA KUMAR, ASSISTANT MANAGER, SALES, AIR INDIA LTD., THIRUVANANTHAPURAM BY ADV. DR.K.P.KYLASANATHA PILLAY MR.ARUN B.VARGHESE SMT.SREEDEVI KYLASANATH RESPONDENT(S): ------------------------ 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF CIVIL AVIATION, CENTRAL SECRETARIAT, NEW DELHI. 2. AIR INDIA LTD., REPRESENTED BY THE MANAGING DIRECTOR (D) AIR INDIA LTD., NARIMAN POINT, MUMBAI-400 021 3. THE DIRECTOR, H.R.D., AIR INDIA LTD., OLD AIRPORT, SANTA CRUZ (E), MUMBAI-400 029 4. THE MANAGER, AIR INDIA LTD., THIRUVANANTHAPURAM 5. SUDHA MAHENDRA, ASSISTANT MANAGER, AIR INDIA LTD., CHENNAI 6. KARNAD.V.K., ASSISTANT MANAGER, AIR INDIA LTD., CHENNAI 7. GAIKWAD.D.Y., ASSISTANT MANAGER, AIR INDIA LTD., MUMBAI. 8. M.VIJAYAKUMAR, ASSISTANT MANAGER, AIR INDIA LTD., CHENNAI. 9. M.S.SULE, EXECUTIVE SECRETARY, AIR INDIA LTD., MUMBAI. OP.No. 38125 of 2002(L) 10. TANDON A.K., EXECUTIVE SECRETARY, AIR INDIA LTD., NEW DELHI 11. PRADIP SINGH, EXECUTIVE SECRETARY, AIR INDIA LTD., NEW DELHI. 12. GEETA MAHAJAN, EXECUTIVE SECRETARY, AIR INDIA LTD., NEW DELHI. 13. J.V.KHADKAR, ASSISTANT MANAGER, AIR INDIA LTD., CHENNAI 14. SETHI.N.K., EXECUTIVE SECRETARY, AIR INDIA LTD., NEW DELHI. 15. P.K.BHANDARI, EXECUTIVE SECRETARY, AIR INDIA LTD., NEW DELHI. 16. O.P. MALHOTRA, EXECUTIVE SECRETARY, AIR INDIA LTD., NEW DELHI 17. R. SUBRAMANIAN, EXECUTIVE SECRETARY, AIR INDIA LTD., NEW DELHI. 18. VANAJA MUTHU, ASSISTANT MANAGER, AIR INDIA LTD., CHENNAI 19. S.C.SHINDE, ASSISTANT MANAGER, AIR INDIA LTD., MUMBAI 20. P.V.THANEKAR, ASSISTANT MANAGER, AIR INDIA LTD., MUMBAI. 21. V.S.VAITKY, ASSISTANT MANAGER, AIR INDIA LTD., MUMBAI. 22. T.D. SHERPA, ASSISTANT MANAGER, AIR INDIA LTD., MUMBAI R4 BY ADV. MR.JOSEPH KODIANTHARA R1 BY ADV. MR.B.RAMACHANDRAN, ADDL.CGSC R2 TO R4 BY MR.JOSEPH MARKOSE, SENIOR ADVOCATE R1 BY ADV. MR.S.R.AJITH, ADDL.CGSC THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 38125 of 2002(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CALL LETTER FOR WRITEN TEST BEARING NO.1751/AD/1537 DATED 08/11/1978. EXT.P2: COPY OF THE CALL LETTER NO.AD/1537 DATED 15/12/1978 FOR INTERVIEW. EXT.P3: COPY OF THE COMMUNICATION NO.MMSI/AD/TA/249/1539 DATED 14/02/1979. EXT.P4: COPY OF THE COMMUNICATION NO.REP TRV/67/KK/2918 DATED 1979. EXT.P5: COPY OF THE LETTER NO.MSI/AB/201/1801 DATED 18/05/1979. EXT.P6: COPIES OF THE LETTERS OF APPOINTMENT SERIES DATED 21/06/1979 AND 25/06/1979. EXT.P7: COPY OF THE LETTER OF APPOINTMENT NO.MSI/AD/201/3935 DATED 10/10/1979. EXT.P8: COPY OF THE LETTER NO.MIS/AD/ST/4073 DATED 17/10/1979. EXT.P9: COPY OF THE RELEVANT PART OF THE SENIORITY LIST OF TRAFFIC ASSISTANTS. EXT.P10: COPY OF THE RELEVANT PART OF THE SENIORITY LIST. EXT.P11: COPY OF THE REPRESENTATION DATED 30/10/1989 SUBMITTED BY PETITIONER. EXT.P12: COPY OF THE LETTER DATED 27/11/1989 SUBMITTED BY THE PETITIONER. EXT.P13: COPY OF THE LETTER NO.AIEG/TRW/02/90 DATED 12/01/1990. EXT.P14: COPY OF THE LETTER NO.AIEG/TRV/26/90 DATED 03/08/1990. EXT.P15: COPY OF THE LETTER NO.IR/233(A)/2545 DATED 22/08/1990. EXT.P16: COPY OF THE LETTER NO.REE NO.A1. EG/TRV/32/90 DATED 05/10/1990. EXT.P17: COPY OF THE LETTER NO.A1 EG/TRM/02/91 DATED 17/01/1991. EXT.P18: COPY OF THE LETTER NO.A1/EG/TRV/05/91 DATED 02/03/1991. EXT.P19: COPY OF THE RELEVANT PART OF THE SENIORITY LIST DATED 10/12/91. EXT.P20: COPY OF THE LETTER NO.EMP1/ 2-3/46585 DATED 26/06/1991. EXT.P21: COPY OF THE LETTER DATED 10/12/1991 SUBMITTED BY THE PETITIONER. EXT.P22: COPY OF THE COMMUNICATION NO.EMP.2: 46585 DATED 20/06/1992. OP.No. 38125 of 2002(L) EXT.P23: COPY OF THE REPRESENTATION DATED 02/06/2000 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P24: COPY OF THE LETTER NO.LMP/2/5/46585 DATED 30/06/2000 ISSUED TO THE PETITIONER IN REPLY TO P15. EXT.P25: COPY OF THE LETTER DATED 23/05/2002 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P26: COPY OF THE RELEVANT PART OF THE SENIORITY LIST AS ON 01/01/2002. EXT.P27: COPY OF THE LETTER NO.EMP-1/2-3/40585 DATED 25/07/2002 ISSUED BY THE 3RD RESPONDENT. EXT.P28: COPY OF THE LETTER DATED 07/08/2002 SUBMITTED BY THE PETITIONER TO 2ND RESPONDENT. EXT.P29: COPY OF THE REMINDER DATED 10/10/2002 SUBMITTED BY THE PETITIONER. EXT.P30: COPY OF THE OFFICE NOT NO.COK/STF-TRV DATED 22/10/2005 ISSUED BY THE 2ND RESPONDENT. EXT.P30: COPY OF THE SUBMISSION DATED 10/11/05 SUBMITTD BY THE PETITIONER AT THE TIME OF HEARING. (I.A. NO.10907/2006) EXT.P31: COPY OF THE COMMUNICATION NO.TRV/67-KK/487 DATED 10/07/1985 RECEIVED FROM THE MANAGER, AIR INDIA, TRIVANDRUM. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ P.R.RAMACHANDRA MENON, J. ====================== O.P. No. 38125 of 2002 ====================== Dated, this the 27th day of February, 2009 J U D G M E N T The case has a history of about three decades and the grievance, still stated as not redressed, is against the action of the Management/Employer in rejecting the claim of the petitioner to re-fix his seniority, over and above the juniors who were given appointment only much after the induction of the petitioner to permanent service; reportedly on the basis of some staff notice issued after the permanent appointment given to the petitioner. The petitioner is also aggrieved of the stand taken by the respondent/Management that the seniority is to be fixed with respect to the 'date of confirmation' and not with respect to the date of joining the service on a permanent basis and against their further version that when the date of confirmation is the same, seniority is to be reckoned on the basis of the relative merits of the candidates concerned. 2. The petitioner, in response to the notification issued by the second respondent, had applied for the post of O.P.No.38125/2002 -:2:- Traffic Assistant on 28-7-1978. The petitioner was called for a written test as per Exhibit P1 and on coming out successful, he was called for an interview vide Exhibit P2 dated 15-12-1978. On proving the mettle, the petitioner was wait-listed for appointment in the vacancies likely to arise, as borne by Exhibit P3. Thereafter, the petitioner was instructed to undergo medical examination vide Exhibit P4 and on completion of the procedural formalities, he was given appointment on temporary basis from 23-5-1979 to 22-6-1979 as per Exhibit P5 order dated 18-5-1979. 3. It is the case of the petitioner that, but for the artificial breaks of two or three days, he was made to work continuously for different spells as borne by Exhibit P6 series and Exhibit P7 and finally, while working on temporary basis, the petitioner was given 'permanent appointment' as per Exhibit P8 dated 17-10-1979, on the basis of the original application submitted by him on 28-7- 1978 and the test and interview that followed. In other O.P.No.38125/2002 -:3:- words, there was no subsequent written test, interview or medical examination before being appointed on permanent basis and hence, the petitioner contends that the vacancy in which he was made to work was a substantive vacancy and hence the date of appointment was liable to be reckoned as the date of officiation in the said post. 4. Subsequently, in the course of time, the petitioner was given different promotions such as Senior Traffic Assistant and Chief Traffic Assistant. But pointing out the fact that several juniors to the petitioner, who came into the service only subsequently (Mr.S.Sreevardhan who joined duty on 5-11-1979, Mrs.Sudha Mahendra who joined the service on 5-11-1979, Mrs.V.Karnad who joined service on 12-11-1979, Mr.D.Depesh (SC) who joined service on 8- 11-1979) were promoted as Senior Traffic Assistant with effect from 1-1-1986 and also as Chief Traffic Assistant with effect from 1-1-1990, the petitioner submitted several representations, seeking to re-store the seniority of the O.P.No.38125/2002 -:4:- petitioner, over and above the juniors, which was declined by the Management. Even after filing the writ petition, pursuant to the interim order passed by this Court, yet another representation preferred by the petitioner was also considered, leading to Exhibit P30, which has also been subjected to challenge by effecting appropriate amendment to the writ petition. 5. The claim of the petitioner is resisted by respondents 2 to 4 by filing a statement dated 16-6-2008, contending that as per Clause 2(1)(b) of Staff notice No.21 dated 7-9-1981, “the inter se seniority of an employee has to be determined by the date of confirmation in the grade.” It is further stated that, as per Clause 2(iii) of the said staff notice, “in the case of the employees selected/appointed after 6-11-1960 and confirmed with effect from an identical date, the inter se seniority would be governed by the order of merit at the time of their selection”. It is also pointed out that the claim putforth by the petitioner as per his O.P.No.38125/2002 -:5:- representation dated 20-10-1984 had already been considered and rejected as per order/letter No.EMP- 2/1/SNRT/46585 dated 8-11-1984, which has not been challenged. The petitioner has reiterated his contentions by filing a reply affidavit as to the eligibility to have his seniority reckoned from May 1979 when he joined the service as a Traffic Assistant on temporary basis or at least from the date of permanent appointment given to him. 6. With regard to the reasoning/justification given by the concerned respondent for denying the benefit to the petitioner, it is submitted by the learned counsel that the seniority has to be counted from the date of original appointment and not from the date of confirmation. The learned counsel placed reliance on the decision rendered by the Constitution Bench of the Hon'ble Supreme Court as reported in The Direct Recruit Class-II Engineering Officers' Association and others v. State of Maharashtra and others [AIR 1990 SC 1607] holding that O.P.No.38125/2002 -:6:- when the appointment is according to Rule, seniority has to be counted from the date of appointment and not from the date of confirmation (paragraph 44). It is further contended by the learned counsel that when the temporary appointment is followed by a regular appointment made in accordance with the Rules, the continuous officiation in the post is also liable to be reckoned for seniority as made clear in paragraph 13 of the very same verdict. 7. The respondents 2 to 4 have not chosen to file any counter affidavit, but for statement already mentioned herein before. Similarly, they have not chosen to produce a copy of the concerned 'Staff Notice' upon which reliance is placed for fixing the seniority with effect from the 'date of confirmation' and as to the reckoning of the merit in the selection, for fixing higher seniority when the date of confirmation is the same. The learned counsel for the respondent/Management expressed regrets for not having produced a copy of the 'Staff Notice' before the O.P.No.38125/2002 -:7:- Court, further stating that it is still to be made available; despite the fact that the case is pending right from the year 2002. It is however conceded that the 'Staff Notice' bearing No.21 dated 7-9-1981 was issued much after the permanent appointment given to the petitioner vide Exhibit P8 dated 7- 10-1979. Referring to the dictum in D.P.Sharma and Others v. Union of India and Another [1989 Supp.(1) SCC 244], the learned counsel for the petitioner submits that even if the said 'Staff Notice' could be held as sustainable with regard to the norm fixed for reckoning the seniority with effect from the date of confirmation, it can only have 'prospective effect' and cannot impair the existing vested rights of the officials who were appointed long prior to coming into force of the said Norms. Reliance is also placed on the judgment rendered by a Division Bench of this Court holding that the accrued rights of the employee cannot be taken away even by retrospective amendment of the Rules. This Court finds that there is considerable force in the submission made by the learned O.P.No.38125/2002 -:8:- counsel for the petitioner, especially in view of the dictum laid down by the Constitution Bench of the Apex Court in Chairman Railway Board & others v. C.R.Rangadhamaiah and others reported in 1997(6) SCC 623 . 8. The stand of the respondents 2 to 4 who have approached the issue in a cursory manner even without filing a proper counter affidavit before this Court and even by keeping the concerned 'Staff Notice' No.21 dated 7-9- 1981 away from the vicinity of this Court, cannot but be deprecated. For the very same reason, the reasoning given by the said respondents to leave the matter as it is, lest it should adversely affect other employees (who according to the petitioner are juniors having got permanent employment only after the petitioner, but treated as seniors by the respondents 2 to 4 on the basis of the date of confirmation) cannot be upheld. The learned counsel for the petitioner submits that all such persons who are liable to be O.P.No.38125/2002 -:9:- treated as juniors have already been brought on the party array as respondents, but they have not chosen to appear before this Court raising any dispute against the claim putforth by the petitioner. It is also relevant to note that the petitioner has been knocking at the doors of the respondents for more than 2½ decades, though the attempt has not turned to be fruitful. 9. Considering the above facts and circumstances as a whole, it is only just and proper that before this Court proceeds to consider the merits and pass any positive order, the respondents 2 to 4 be given another opportunity to consider the matter afresh with due regard to the sequence of the events and also the law declared by the Apex Court as discussed herein before, which is the law of the land by virtue of Article 141 of the Constitution of India. 10. In the above facts and circumstances, the second respondent is hereby directed to re-consider the matter as O.P.No.38125/2002 -:10:- specified above. The impugned orders (Exhibits P15, P24, P27 and P30) are set aside to facilitate such an exercise. The second respondent shall pass final orders as above untrammelled by any of the observations and views already expressed in Exhibits P15, P24, P27 and P30, after giving an opportunity of being heard to the petitioner, as expeditiously as possible and at any rate, within a period of three months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of this judgment along with a copy of the amended original petition before the second respondent for taking further steps. The original petition is disposed of as above. Sd/- P.R.RAMACHANDRA MENON, JUDGE. skr // True copy // P.A. to Judge.