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B.SASIDHARAN S/O. BHASKARAN PILLAI v. THE DIRECTOR, GROUND WATER DEPARTMENT - WP(C) No. 4617 of 2005(Y)  RD-KL 4 (1 January 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMWP(C) No. 4617 of 2005(Y)
1. B.SASIDHARAN S/O. BHASKARAN PILLAI
1. THE DIRECTOR, GROUND WATER DEPARTMENT
2. STATE OF KERALA, REPRESENTED BY
3. R.RETNAKARAN, SENIOR DRILLER,
For Petitioner :SRI.M.V.THAMBAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.K.DENESAN
O R D E R
K.K.DENESAN, J.WP(C)No. 4617 OF 2005
Dated this the 1st January, 2007.
The dispute is about the inter se seniority between the petitioner and the third respondent. Presently the petitioner is working as Master Driller. For a member of the service in the lowest cadre to reach the post of Master Driller he will have to get appointment or promotion from the lowest category of Drilling Assistant to that of Driller/Driller Mechanic and from there to that of Senior Driller. The post of Senior Driller is the feeder category for promotion to the post of Master Driller.
2. The petitioner was directly recruited to the post of Driller/Driller Mechanic on the advice of the Public Service Commission with effect from 13.5.1983. He was promoted to the post of Senior Driller with effect from 18.6.1987. It is pertinent to note that this promotion has not been regularised and the petitioner by virtue of his promotion as Senior Driller with effect from 18.6.1987 got promotion to the post of Master Driller. The probation of the petitioner in the post of Driller/Driller Mechanic was declared with effect from 2.6.1985.
3. The third respondent entered service in the lowest post of Drilling Assistant on 20.2.1982. It is contended WPC 4617/2005 2 by the counsel for the petitioner that a minimum period of two years experience/service in the category of Drilling Assistant is absolutely necessary for regular promotion to the post of Driller/Driller Mechanic. The third respondent was temporarily promoted as Driller with effect from 13.4.1983 i.e before he acquired the requisite qualification for promotion to that post. Therefore the third respondent can claim regular promotion in the post of Driller only from 20.2.1984 on which date he would complete two years service as Drilling Assistant. Though the petitioner was promoted as Senior Driller with effect from 18.6.1987 the third respondent was promoted to the above post only with effect from 20.3.1991.
4. Service conditions in relation to the post of Drilling Assistant, Driller/Driller Mechanic, Senior Driller and Master Driller in the Ground Water Department were governed by executive orders issued from time to time until the Kerala Ground Water Department Service Special Rules, 1993 were published as per G.O dated 30.7.1993. From 1993 onwards, appointments, promotions, probation etc are governed by the special rules.
5. As far as this case is concerned, Note 1 and 2
below Rule 3 of the Special Rules
assume relevance. Hence
they are extracted below for easy reference:-
"Note 1: All appointments and promotions which were made in the Department on or after 1.1.1978 and before coming into effect of these rules shall stand regularised from the dates on which such appointments and promotions were made and further promotions or appointments if any, in respect of persons who were appointed or promoted during the said period shall, after coming into effect of these rules, be made only in accordance with the provisions contained in these rules. Note 2: The automatic regularisation as provided under NOTE 1 shall not confer any claim on any person referred to therein for seniority in the respective posts over those persons who already stand promoted in accordance with the executive orders governing those posts which were in force before coming into force of these rules and nothing in these rules shall be deemed to be unsettling the promotions of the persons made in accordance with the said executive orders."
6. The petitioner apprehends that taking advantage of the statutory benefit provided by Note 1 aforesaid, the third respondent will be given regular appointment as Driller with effect from 13.4.1983, thereby giving him seniority over the petitioner whose seniority as Driller starts from 13.5.1983 only. Consequently, his seniority in the post of Senior Driller is also likely to be disturbed to suit the seniority claimed by the third respondent in the post of Driller/Driller Mechanic. It is contended that even assuming that the third respondent is entitled to count seniority in the post of Driller with effect from 13.4.1983 by virtue of Note 1 of the aforesaid special rule, he cannot steal a march over the petitioner in the WPC 4617/2005 4 matter of seniority in the post of Senior Driller as the petitioner is entitled to claim the protection guaranteed under Note 2 of the special rules.
7. The third respondent had approached this Court by filing WP(C) 4144/2004 seeking for directions to grant him the benefit of Note 1 below Rule 3 of the Special Rules. This Court directed the competent among the respondents to consider the representation of the third respondent and pass orders disposing of the representation. The Director of Ground Water Department thereafter passed Ext.P4 order
dated 15.6.2004, the relevant portion of that order reads:-"As per Note 1 of Rule 3 Kerala Ground
Water Department Subordinate Service Rules (Special Rules) all appointments and promotions made in the Department on or after 1/1/1978 and before 30.7.1993 shall stand regularised from the dates on which such appointments and promotions were made. It is only just and proper to treat that the promotees eligible for the automatic regularisation in any post as per the aforesaid Note acquire seniority in that post from the date of promotion. The persons promoted during the period from 1.1.1978 to 30.7.1993 whether qualified or not have to be accommodated in the seniority list accordingly. Hence the seniority based on the provisional promotion of the petitioner in the post of Driller cannot be ignored in fixing seniority in subsequent promotions. There is no dispute regarding the fact that the petitioner was provisionally promoted as Driller as per order dated 13.4.1983. There is also no dispute that the aforesaid nine candidates were appointed as Driller/Driller Mechanic through Public Service Commmission advice on a latter date. The petitioner as well as the above nine candidates are eligible for the benefit of the Note of WPC 4617/2005 5 Rule 3 of the Special Rules. But the petitioner being the first person who got promotion/appointment as Driller he should be deemed to have got the protection of Note 1 of Rule 3, Special Rules before the aforesaid nine candidates got the same. In the above circumstances Shri. R.Retnakaran, Senior Driller, Ground Water Department, is allowed ranking in the seniority list of Seniority Drillers issued as per the proceedings read as sixth paper above, below that of Shri. Abdul Kareem (Sl.No:66) and above that of Shri. K.Viyanandan (Sl.No:67). Hereafter Shri.Retnakaran will have the Sl.No:66(a) in the Senioirity list of Senior Drillers. The proceedings read a sixth paper above stand modified to the above extent." The Director ordered that the seniority based on the provisional promotion of the third respondent in the post of Driller cannot be ignored in fixing seniority in the higher posts to which he would be promoted.
8. The petitioner has sought for an order to quash Ext.P4 to the extent it adversely affects his right for seniority in the category of Senior Driller and that of Master Driller vis-a-vis the third respondent.
9. Separate counter affidavits have been filed by respondents 2 and 3 supporting the stand taken in Ext.P4. Learned Govt. Pleader made submissions based on the contentions taken in the counter affidavit filed by the second respondent. It is argued that if the interpretation sought to be placed by the petitioner on Note 2 below Rule WPC 4617/2005 6 3 of the Special Rules is accepted, the provisions contained in Note 1 will become otiose. The basis for resolving the dispute for seniority between the petitioner and the third respondent shall be the Special Rules, Note 1 and 2 below Rule 3 of the Special Rules in particular. Note 1 of course, contains provisions favourable to the third respondent in as much as it says that promotions made on or after 1.1.1978 and before coming into effect of the Special Rules shall stand regularised from the dates on which such promotions were made. If Note 1 alone is taken into account, the stand taken by the first respondent in Ext.P4 has to be upheld. However, as rightly pointed out by the learned counsel for the petitioner, the first respondent ignored Note 2 of the very same rules wherein it is provided that the automatic regularisation under Note 1 shall not confer any claim on any person referred to therein for seniority in the respective posts nor those persons who stood promoted in accordance with the executive orders governing those posts which were in force before coming into force of the special rules. It further says that nothing in the special rules shall be deemed to be unsettling the promotions of the persons made in accordance with the said executive orders. Therefore, the promotion given to the petitioner from the post of Driller to that of WPC 4617/2005 7 Senior Driller on 18.6.1987 which also took effect prior to the commencement of the special rules gets protection from further interference or modification. The third respondent was promoted as Senior Driller long after the promotion of the petitioner. Both these promotions took effect prior to the commencement of the special rules. Therefore, going by the provisions contained in Note 2 those promotions shall not be unsettled by the coming into force of the special rules. Hence the dispute boils down to a situation where the third respondent though entitled to claim the benefit of an earlier date of appointment in the post of Driller and consequential seniority vis-a-vis the petitioner, the petitioner by virtue of Note 2 is entitled to retain the promotion granted to him in the post of Senior Driller on a date earlier than that of the third respondent. Since the post of Senior Driller is the higher post, the resultant position will be that in the matter of further promotions the petitioner will be entitled to preference over the third respondent, the former being senior, provided, however, that he satisfies the conditions laid down in the special rules.
10. The contention that if Note 2 is interpreted in the above manner, Note 1 will become ineffective, cannot be accepted. In effect, Note 2 is a proviso to Note 1, and it WPC 4617/2005 8 in fact, carves out an exception to the all pervasive benefit contemplated by Note 1. It is, therefore necessary, that for a proper appreciation of the rival contentions of the parties and to meet the ends of justice, the provisions contained in Note 1 and Note 2 shall be read together and reconciled.
11. I am of the opinion that Ext.P4 is liable to be set aside as it has not considered the factual and legal aspects in the proper manner. In the result, Ext.P4 is set aside. There shall be a declaration that the petitioner is senior to the third respondent in the cadre of Senior Driller and that he is entitled to claim promotion to the post of Master Driller in preference to the third respondent. Writ petition is allowed as above. K.K.DENESAN Judge jj
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