M. Mohammed Abdulla vs State Of Kerala And Ors

The factual matrix involving the dispute is on a narrow compass. There are two services in the State of Kerala; one is governed by the Kerala Service Rules and the other by the Kerala State and Subordinate Service Rules. Within the State service falls Local Fund Audit Service, known as Kerala Local Fund Audit Service.

Appellant was appointed as Grade II Auditor on the recommendation of Public Service Commission on 7.7.1975. He was promoted as Inspector Local Fund Account on 18.11.1995, which post was re-designated as Audit Officer.

In terms of paragraph 4 of Appendix XIIA of the Kerala Service Rules, to which we will advert to a little later, the appellant while holding the post of Audit Officer, applied for and was granted leave without allowance for a period of 5 years from 1.9.1996 vide G.O. dated 18.11.1996 for taking employment abroad. He rejoined his duties as an Audit Officer on 8.11.2001. Respondent No.3 herein, who was junior to the appellant, was promoted as Deputy Director of Local Fund Account on 5.8.2002 and he joined the said post on 24.8.2002. Appellant was declared to have completed his period of probation in the category of Audit Officer in terms of order passed by Respondent No.2 dated 6.11.2003 with effect from 6.3.2003. In the seniority list which was published on 6.11.2003, his seniority was shown at serial No.8A. The original seniority assigned to the appellant in the category of Audit Officer as published on 18.5.1998 was restored in favour of the appellant by an order dated 3.1.2004 stating:

The revision and modification orders issued as per 5th paper read above is hereby replaced by this final order restoring the original seniority of Sri Mohammed Abdulla in the light of Government orders. Questioning the said G.Os. dated 6.11.2003, 19.11.2003 and 3.1.2004, the third respondent filed a writ application before the High Court of Kerala which was marked as Writ Petition No.2075/2004. An interim order of stay was granted therein pursuant whereto the G.O. dated 3.1.2004 was cancelled. A Select List was prepared on 7.5.2004 on the recommendation of the Departmental Promotion Committee. Pursuant thereto, the appellant was promoted to the post of Deputy Director of Local Fund Audit Account by order dated 27.5.2004. However, the said order was reviewed by the Government by its order dated 26.8.2004, inter alia on the premise that while passing the same, the order of stay passed in Writ Petition No.2075/2004 had not been taken into account whereby the promotion of the appellant was cancelled.

Aggrieved thereby the appellant filed another writ application being Writ Petition (Civil) No.26149/2004 before the Kerala High Court for a declaration that the inclusion of his name in the Select List and the order dated 27.5.2004 giving promotion to him was legal and valid and the same should not have been reviewed.

The said writ petition although was dismissed but the review application filed by the appellant was allowed. By reason of the impugned judgment, the High Court upon hearing the parties, while dismissing the writ petition filed by the appellant herein, allowed the writ petition filed by the third respondent herein.

Rule 3 of the Kerala Local Fund Audit Service Special Rules in no unmistakable term says that even for the purpose of appointment by transfer to the post of Audit Officer the names of the employees mentioned in the select list prepared from amongst the eligible officers on the basis of their merit and ability are to be taken into consideration as the seniority is to be considered only when merit and ability are approximately equal. Once, therefore, the appellant was found to be eligible for promotion or for that matter, for recruitment by transfer, to the post of Audit Officer on the basis of his merit and ability, although seniority being the relevant criteria provided merit and ability of the respective candidates were approximately equal, in our opinion, his promotion shall not have been cancelled.

For the reasons aforementioned, we are of the opinion that the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. However, in the facts and circumstances of this case, there shall be no order as to costs.

We make it clear that this order shall not affect the benefits which might have been given to the third respondent herein pursuant to the order impugned in the writ application.