K.S. Chandran, Paul P. Mathai, George KuriaKose, Appachan.P.O., P.Kuttappan, P.R.Joshy, Abdul Sathar.K.A., Raju.M.P. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932** **WP(C).No. 26430 of 2009(W)** **--------------------------------------** ## **PETITIONER(S):** - **----------------------** **1. K.S.CHANDRAN, AGED 49 YEARS, S/O.THE LATE SUBRAMANIAN.K.R., FOREST GUARD, FOREST RANGE OFFICE, MACHAD, WADAKKANCHERY, RESIDING AT KATTUKKARAN HOUSE, KUZHUPPILLY, AYYAMPILLY P.O., ERNAKULAM DISTRICT, PIN-682 501.** **2. PAUL P.MATHAI, AGED 47 YEARS,** - **S/O.SRI.V.MATHAI, FOREST GUARD, FOREST RANGE OFFICE, NELLIKULANGARA, KODALY, PADY.P.O., RESIDING AT PADINJAREVETTUVELIL HOUSE, PARIYARAM KARA, MEEMPARA, PUTHENCRUZ, PIN-682 308.** **3. GEORGE KURIAKOSE, AGED 55 YEARS, S/O.THE LATE P.C.KURIAKOSE, FOREST GUARD, FOREST MOBILE PARTY RANGE, CHALAKKUDY, RESIDING AT PLAKIEL HOUSE, PERUMBAYIKKAD P.O., KOTTAYAM-686 028.** **4. APPACHAN.P.O., AGED 48 YEARS, S/O.THE LATE OUSEPH, FOREST GUARD, FOREST RANGE OFFICE, KODANAD, KODANAD P.O., RESIDING AT PUTHENVELIYIL HOUSE, THURAVOOR P.O., ANGAMALY.** **5. P.KUTTAPPAN, AGED 50 YEARS, S/O.SRI.PAPPU, FOREST GUARD, FOREST RANGE OFFICE, PATTIKKAD, P.O.PATTIKKAD, RESIDING AT PONNURUTHIYIL HOUSE, VALAYANCHIRANGARA P.O., PERUMBAVOOR, ERNAKULAM DISTRICT.** **6. P.R.JOSHY, AGED 47 YEARS, S/O.THE LATE RAGHAVAN, ROREST GUARD, FOREST RANGE OFFICE, PATTIKKAD, P.O.PATTIKKAD, RESIDING AT PONGATHARA HOUSE, EDAVANAKKAD P.O., ERNAKULAM DISTRICT.** **7. ABDUL SATHAR.K.A., AGED 47 YEARS,** **S/O.SRI,K.S.ABDUL KHADER, FOREST GUARD, FLYING SQUAD RANGE, THRISSUR, PARAVATTANI P.O., RESIDING AT KURUPPANCHERRIL HOUSE(POTTENTHEZHATH), P.O.NADUVATH NAGAR, CHERTHALA, PIN-688 559.** **8. RAJU.M.P., AGED 47 YEARS, S/O.SRI.PAINKILI, FOREST GUARD, FOREST RANGE OFFICE, PATTIKKAD, PATTIKKAD P.O., THRISSUR, RESIDING AT 'MALAYIL PULINTHANATHU', AARAMKALLU, MANNUTHY P.O., THRISSUR-680 651.** **BY SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE SMT.K.RADHAMANI AMMA SRI.K.RAMACHANDRAN (THYKOODAM) SRI.S.S.ARAVIND** ## **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, FOREST AND WILDLIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. CHIEF CONSERVATOR OF FORESTS (ADMINISTRATION), FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.** **3. CONSERVATOR OF FORESTS(CENTRAL CIRCLE), VANAPRIYA FOREST COMPLEX, PARAVATTANI P.O., EAST FORT, THRISSUR-680 005.** **4. DIVISIONAL FOREST OFFICER, MALAYATTOOR FOREST DIVISION, KODANAD P.O., KOOVAPADI, ERNAKULAM, PIN-683 544.** **5. P.NARAYANAN, FOREST GUARD, OFFICE OF THE FOREST RANGE OFFICER, PATTIKKAD RANGE, PATTIKKAD P.O., THRISSUR DISTRICT, RESIDING AT PATTIYIL HOUSE, ARIMBOOR P.O., THRISSUR DISTRICT-680 620.** **6. P.VIJAYAN, FOREST GUARD, OFFICE OF THE FOREST RANGE OFFICER, PATTIKKAD RANGE, PATTIKKAD P.O., THRISSUR DISTRICT, PANAVALAPPIL HOUSE, MANNUTHY P.O., THRISSUR DISTRICT.** **7. DAMODARAN.K., FORESTER, RESEARCH RANGE, KODANAD, ERNAKULAM DISTRICT.** **8. NAZEER.K.H., FORESTER,** **VAZHACHAL FOREST DIVISION, CHALAKKUDY, CHALAKKUDY P.O., THRISSUR DISTRICT.** **R1 TO R4 BY GOVERNMENT PLEADER SMT. SUDHA DEVI R5 & R6 BY ADV. SRI.AUGUSTINE JOSEPH R7 & R8 BY SRI.O.D.SIVADAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 26430/2009-W** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE ADVICE MEMO NO.E II(2) 493/84 DATED 08/08/1991 OF TE KPSC ADVISING THE 1ST PETITIONER.** - **P2 COPY OF THE ORDER NO. 88/91 DATED 07/08/1991 OF THE 4TH RESPONDENT.** - **P3 COPY OF THE ORDER NO.110/91 DATED 28/10/1991 OF THE DIVISIONAL FOREST OFFICER, MALAYATTOOR.** - **P4 COPY OF THE PROVISIONAL CIRCLE SENIORITY LIST OF FOREST CUARDS AS ON 31/07/1992 OF THE 3RD RESPONDENT.** - **P5 COPY OF THE GO(MS) NO.85/87/F&WLD DATED 14/10/1987 OF THE 1ST RESPONDENT.** - **P6 COPY OF THE ORDER SO NO. 15/98 DATED 21/04/1998 OF THE 3RD RESPONDENT.** - **P7 COPY OF THE REQUEST OF TRANSFER OF THE 1ST PETITIONER DATED 23/01/2001.** - **P8 COPY OF THE RELEVANT PAGES OF SO.NO.32/2001 DATED 14/05/2001 OF THE 3RD RESPONDENT.** - **P9 COPY OF THE APPLICATION FOR TRANSFER MADE BY THE 2ND PETITIONER.** - **P10 COPY OF THE RELEVANT PAGES OF THE SO NO.30/2002 DTED 28/05/2002 OF THE 3RD RESPONDENT.** - **P11 COPY OF THE RELEVANT PAGES OF THE SO NO.16/1999 DATED 16/04/1999 OF THE 3RD RESPONDENT.** - **P12 COPY OF THE REORT OF THE RO MOBILE PARTY CKY.** - **P13 COPY OF THE APPLICATION OF TRANSFER DATED 30/01/2000.** - **P14 COPY OF THE APPLICATION FOR TRANSFER MADE BY THE 5TH PETITIONER INDICATING HIS PREFERENCE FOR TRANSFER.** - **P15 COPY OF THE APPLICATION OF TRANSFER DATED 02-02-2000.** - **P16 COPY OF THE RELEVANT PAGES OF THE SO NO. 17/2000 DATED 05/04/2000 OF THE 3RD RESPONDENT.** - **P17 COPY OF THE LETTER NO.E1-6605-004 DATED 13/08/2009 OF THE 3RD RESPONDENT.** - **P18 COPY OF THE APPLICATION MADE BY THE8T PETITIONER.** - **P19 COPY OF THE RELEVANT PAGES OF THE SO NO.16/1999 DATED 16/04/99 OF THE 3RD RESPONDENT.** - **P20 COPY OF THE RELEVANT PAGES OF THE PROVISIONAL SENIORITY LIST OF FOREST GUARDS AS ON 31/03/2001 ALONGWITH THE PROCEEDING NO.E15031/99 DATED 08/10/2001 OF THE 3RD RESPONDENT.** - **P21 COPY OF THE RELEVANT PAGES OF THE FINAL SENIORITY LIST OF FOREST GUARDS AS ON 01/01/2003 CIRCULATED AS PER ORDER NO.E1-5031/99 DATED 19/03/2005 OF THE 3RD RESPONDENT.** - **P22 COPY OF THE REPRESENTATION DATED 27/11/2006.** - **P23 COPY OF THE JUDGMENT DATED 13/02/2007 IN WP(C) NO.4844/2007 OF THIS HON'BLE COURT.** - **P24 COPY OF THE GOVT LETTER NO.5186/F3/07/F& WLD DATED 01/09/2007.** - **P25 COPY OF THE RELEVANT PAGES OF THE PROVISIONAL SENIORITY LIST OF FOREST FUARDS UNDER THRISSUR DISTRICT AND ERNAKULAM DISTRICT PUBLISHED AS PER PROCEEDINGS NO.E1-4502/06 DATED 09-05-2008 OF THE 3RD RESPONDENT.** - **P26 COPY OF THE REPRESENTATION DATED 05/06/2008 SUBMITTED BY THE 1ST PETITIONER.** - **P27 COPY OF THE RELEVANT PAGES OF THE SENIORITY LIST OF THRISSUR AND ERNAKULAM DISTRICTS CIRCULATED AS PR ORDER NO.E1-4502/06 DATED 04/05/2009 OF THE 3RD RESPONDENT.** - **P28 COPY OF THE ORDER NO.E1-3354/09 DATED 16/09/2009 OF THE 3RD RESPONDENT.** - **P29 COPY OF THE ORDER NO.R1-3354/09 DATED 12/04/2010 OF THE CONSERVATOR OF FORESTS, THRISSUR.** - **P30 COPY OF THE JUDGMENT DATED 06/09/2005 IN WP(C) NO.26436 OF 2005 OF THIS HON'BLE COURT.** - **P31 COPY OF THE JUDGMENT DATED 10/10/2006 IN WP(C) NO.25090 OF 2006 OF THIS HON'BLE COURT.** ## **RESPONDENT'S EXHIBITS:** - **R5(A) COPY OF THE G.O.(P) NO.36/91/P&ARD DATED 2/12/1991 OF PERSONNEL & ADMINISTRATIVE REFORMS (ADVICE-C) DEPARTMENT.** ## **/TRUE COPY/** **sts** **P.A.TO.JUDGE** ## **T.R. RAMACHANDRAN NAIR, J.** **~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.26430/2009-W ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 10[th] day of November, 2010** ## **J U D G M E N T** The petitioners who are working as Forest Guards are mainly aggrieved by Ext.P24 whereby the Government directed the Chief Conservator of Forests (Administration) to prepare a revised seniority list of Forest Guards on district wise basis. The circumstances leading to the filing of the writ petition are the following:- 2. The petitioners 1 to 8 are presently working as Forest Guards in various Forest Divisions under the Central Circle, Thrissur within the administrative control of the third respondent. They were initially recruited and appointed as Forest Guards on 28/08/1991 on the advise of the Kerala Public Service Commission as per their letter dated 08/08/1991 (Ext.P1). Ext.P1 relates to the first petitioner and it is pointed out that identical memos have been issued to petitioners 2 to 8 also. Ext.P2 is the office order by which petitioners 1 to 8 have been appointed as Forest Guards in Malayattur Forest Division along with 28 others. The appointment was followed by training and after completion of training, they were posted to different ranges as per Ext.P3 order dated 28/10/1991. ## W.P.(C). No.26430/2009 -:2:- 3. Under the Special Rules, namely, the Kerala Forest Subordinate Service Rules, in the case of Forest Guards the Unit of appointment provided under Rule 12 is 'Forest Division'. Earlier, the same was 'District' which was amended as per G.O.(MS).No.565/64/Agri. dated 27/08/1964. The word 'Forest Division' was introduced by the said amendment. 4. A provisional seniority list of Forest Guards, namely, on Circle basis in Thrissur Circle was issued on 14/09/1992 and extract of the list is produced as Ext.P4. The next promotion to the post of Forester is made on the basis of Forest Circle Seniority list. Ext.P20 is the provisional seniority list of Forest Guards of Central Circle as on 31/03/2001. After considering various objections, evidently, the said provisional list has been finalised as per Ext.P21 which is dated 19/03/2005. The petitioners 1 to 8 are assigned rank and seniority in terms of Rule 27(c) of the K.S. & S.S.R. in these lists. 5. Now, in the light of the proceedings issued by the Government as per Ext.P24, the final seniority list has been upset and the case of the petitioners is that respondents 5 and 6 in the writ petition filed a writ petition as W.P.(C).No.4844/2007 which was disposed of by Ext.P23 Judgment. The only direction in the said Judgment ## W.P.(C). No.26430/2009 ## -:3:- is to consider Ext.P4 representation therein. Apparently, based on the said direction, Ext.P24 communication has been issued by the Government to the Chief Conservator of Forests (Administration). The learned Senior Counsel for the petitioners Shri O.V.Radhakrishnan submitted that Ext.P24 will evidently show that a wrong principle is adopted by the Government that too against the Special Rules. It is pointed out that Rule 12 of the Special Rules has been ignored and mistakenly it is recorded that the District has to be taken as the Unit of the Forest Guards. It is also mentioned in the said communication that in the case of inter district transfer of Forest Guards within the circle, the seniority shall be determined as per the first proviso to Rule 27(a) of Part II K.S & S.S.R. It appears that thereafter a provisional seniority list was published on district wise basis as per Ext.P25 in Ernakulam and Thrissur Districts whereby the rank assigned to the petitioners in the final seniority list Ext.P21 stands varied. Even though the petitioners filed Ext.P26 representation, when the final seniority list was published as per Ext.P27 in respect of Thrissur and Ernakulam Districts, their seniority has been reckoned from the date of their joining pursuant to their transfer from Malayattur ## W.P.(C). No.26430/2009 ## -:4:- to Thrissur District. It is submitted that the same is illegal and arbitrary. 6. Mainly it is contended that the settled seniority of the petitioners cannot be unsettled that too in an improper manner. My attention was invited to Rule 27B of K.S. & S.S.R to contend that even against the final seniority list, Ext.P21, there was no statutory representation within the period provided under Rule 27B and the representation filed before the Government, long after the final seniority list was adopted as per Ext.P21, could not have been entertained. It is further pointed out by the learned Senior Counsel that by Ext.P23 Judgment, this Court has only directed consideration of the representation without laying down any principle and the direction therein has been relied upon to upset the principles adopted in preparing the seniority list in terms of the Special Rules. 7. The petitioners' seniority has been varied mainly for the reason that they have obtained an inter district transfer on request. With regard to the same, the learned Senior Counsel for the petitioners submitted that it was a mandatory transfer going by the Guidelines prepared by the Government for transfers, a copy of which is produced as Ext.P5, adopted within the Department concerned. Clause 19 ## W.P.(C). No.26430/2009 -:5:- (v) of the Guidelines provide that “Deputy Rangers, Foresters and Forest Guards who have completed three terms continuously within a Division will not be allowed to continue in that Division. Inter-District transfers of Foresters will be allowed only against open quota vacancies and the vacancies in the stations from where such transfers are made shall be reported in the Public Service Commission for advising candidates”. It is, therefore, pointed out that any transfer effected under the mandatory terms of Ext.P5 cannot be said to be a transfer made on request, to attract the proviso to Rule 27(a) of Part II K.S. & S.S.R. Reliance is placed on the general orders of transfer issued by the Conservator of Forest, copies of which are produced as Exts.P6, P8, P10, P11, P16 and P19. It is also pointed out that the petitioners except third petitioner have duly submitted different applications for transfer like Exts.P7, P9 etc., indicating their preference for transfer to other divisions and choices of divisions have also been mentioned in the applications for transfer, in accordance with the guidelines itself. 8. Heard the learned Government Pleader appearing for respondent Nos.1 and 2 and the learned counsel appearing for respondent Nos.5 and 6. ## W.P.(C). No.26430/2009 -:6:- 9. The Special Rules herein, namely, the Kerala Forest Subordinate Service Rules show that category 3 is Foresters and category 4 is Forest Guards. As already mentioned, Rule 12 provides that “for purpose of appointment to the Service, discharge for want of vacancies, reappointment, seniority and appointment as full member and promotion, the Forest Circle shall be the unit in the case of Foresters and the Forest Division in the case of Forest Guards”. Evidently, the words 'Forest Division' was introduced by substituting the word 'District' by G.O.(MS).No.565/64/Agri. dated 27/08/1964 and there is no case for the respondents that the word 'District' has been reintroduced in the Rule at any point of time thereafter, by way of any amendment of the Rules. Then the question is whether the preparation of the seniority list initially suffered from any legal infirmity. The argument raised by the learned counsel for respondent Nos.5 and 6 is that the appointments are now made on district wise basis and, therefore, the same has to be reckoned as the unit for the purpose of Rule 12. In the counter affidavit filed by the second respondent also, reliance is placed on Ext.P5 guidelines for transfer to point out that when transfers are ordered on request on the basis of the preference given by the applicants, such ## W.P.(C). No.26430/2009 ## -:7:- transfers are taken as transfers on request and not on administrative grounds. The details with regard to the transfers of the petitioners have been given in paragraphs 5 to 9 of the counter affidavit. The plea taken in paragraph 11 of the counter affidavit is that the transfer of the petitioners would have been purely on administrative grounds had they not submitted applications for their transfer to their places of their choice. Reliance is placed on Rule 27(a) of Part II K.S. & S.S.R and proviso therein in support of the plea that the seniority of the petitioners in the post of Forest Guards in Malayattur Division has therefore been lost. 10. Evidently, the said contention cannot be accepted. The guidelines for transfer cannot obviously override the principle for fixing seniority. Ext.P5 guidelines show that clause 7 permits an application for transfer to be submitted to the authority competent to transfer the employee, through the Head Office so as to reach him before the first February of every year in a proforma prescribed for it. The clause 8 shows that the application for transfers will be registered in the order in which they are received and an acknowledgement to be issued to the applicant indicating the register number with date. Clause 9 gives the manner in which the applications will have to ## W.P.(C). No.26430/2009 -:8:- be dealt with, if large numbers of applications for a particular station for a particular post are given, indicating the preference. Clauses 10 to 18 also are concerned with other procedures with regard to the transfer. As rightly pointed out by the learned Senior Counsel for the petitioners, there is no clause in Ext.P5 providing for a 'request transfer'. Evidently, clause 19 (v) envisages a case where persons who have completed three terms continuously within a Division will not be allowed to continue in that Division. Therefore, when the applications are made in the proforma prescribed which are contemplated under the guidelines for transfer, the applicants could not be at the disadvantage of the loss of seniority for merely indicating the preference for stations. The same made by the applicants cannot be termed as requests contemplated in the proviso to Rule 27(a) of Part II K.S. & S.S.R. A request for transfer will be one made under one's own volition indicating the Divisions. Herein the petitioners except third petitioner had made the preferences only after their 3 term of 9 years was over at the time of general transfer, which is not disputed. It is stated in para 11 of the counter affidavit that their transfer would have been on administrative grounds, if applications to their choice of places are not submitted. ## W.P.(C). No.26430/2009 ## -:9:- Evidently, the applications for transfer by the petitioners show that they have been furnished in the proforma prescribed. Apart from that, the averments in the counter affidavit also show that all the petitioners have not been given transfers in terms of the first preference of the various applicants. A reading of the prescribed format Ext.P7 shows that the caption given is “Application for Transfer”. Column 10(a) of the application requires the applicant to show the preferences in the order indicating the places to which the transfers are sought. Therefore, evidently, that the petitioners have only confined themselves within the proforma prescribed while indicating the division to which they are requesting for a transfer after nine years. The same cannot be termed as a request made for an inter unit transfer on their own volition which alone will result in consequences provided under the proviso to Rule 27(a) of Part II K.S. & S.S.SR. The said proviso reads as follows:- “Provided that the seniority of persons on mutual or inter-unit or inter-departmental transfer from one Unit to another within the same Department or from one Department to another, as the case may be, on requests from such persons shall be determined with reference to the dates ## W.P.(C). No.26430/2009 -:10:- of their joining duty in the new Unit or Department. In the case of more than one person joining duty in the same grade in the same Unit or Department on the same date, seniority shall be determined -- (a) if the persons who join duty belong to different units or different departments, with reference to their age, the older being considered as senior, and (b) if the persons who join duty belong to the same category of post in the same Department, in accordance with their seniority in the Unit or Department from which they were transferred.” Herein for the application of the Proviso, the respondents 1 and 2 have taken district as the unit for appointment as evident from the counter affidavit, which goes against the Special Rules. 11. In that view of the matter, merely because in terms of the guidelines for transfer, namely, Ext.P5 the petitioners have indicated preference for transfer of their choice station that cannot be taken as a ground to deny the seniority they have acquired in the division concerned by treating them as request transfers. The order Ext.P8 is one for general transfers and postings of Forest Guards. ## W.P.(C). No.26430/2009 ## -:11:- Exts.P9 and P11 etc. are similar orders. Therefore, the very principle under which the seniority of the petitioners have been reassigned, that too by publishing district wise seniority list, cannot be sustained. In the orders Exts.P8, P9, P11 etc. it is not stated that on transfer to the station therein, petitioners will lose seniority. No separate orders have been passed in that regard. The transfers of the petitioners are on the basis of the transfer policy of the Government. 12. The principle under which the Government has directed the Chief Conservator of Forests (Administration) by Ext.P24 to prepare the district wise seniority list is also unsustainable. The same goes against Rule 12 of the Special Rules. The justification for the same as averred in the counter affidavit of the second respondent in para 13 is that “the rule cannot be applied when District Public Service Commission appointment is made”. It is therefore stated that when District is taken as the Unit and _inter se_ seniority of petitioners can be taken on the basis of their date of joining in Thrissur District. The special rules as existing will have to govern the field while fixing the seniority. If so District cannot be the unit. Even though this Court in W.P.(C).No.4844/2007 had only directed the Government to consider Ext.P4 within a specified time, ## W.P.(C). No.26430/2009 ## -:12:- evidently, none of the legal issues have been addressed in Ext.P24 after hearing the parties concerned. As rightly contended by the learned Senior Counsel Shri O.V.Radhakrishnan, importance of Rule 27B of Part II K.S. & S.S.R and the time limit within which statutory representation had to be filed has also been overlooked by the Government by passing Ext.P24. Along with the reply affidavit, the petitioners have produced true copies of the Judgments, Exts.P30 and P31 which have been made mention of in the counter affidavit filed by the second respondent. A reading of Ext.P30 Judgment only shows that therein also this Court has only directed consideration of the representation Ext.P4 therein in accordance with law. Similar directions have been issued in Ext.P31. Therein also this Court did not indicate any principle under which seniority list had to be prepared. Therefore, the reliance placed by the second respondent on those Judgments for upsetting the seniority list and preparation of the revised seniority list on District-wise basis cannot be accepted. 13. The learned Senior Counsel for the petitioners relied upon the principles stated by the Apex Court in ## **Rabindra Nath Bose and Others v. Union of India and Others** **[AIR 1970 SC 470]** to contend for the position that the ## W.P.(C). No.26430/2009 -:13:- settled seniority cannot be upset after a long lapse of a number of years. The said principle has been stated thus in paragraph 35:- “Where the changes were made in the Seniority List of Income-tax Officers Class I Grade II as a result of change in the 1952 Seniority Rules and the petition attacking the changes was filed fifteen years after the 1952 Rules were promulgated and effect given to them in the seniority list prepared on 01/08/1953, it will be unjust to deprive the officers of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.” 14. The learned Senior Counsel further relied upon the dictum laid down by a Full Bench in **T.C.Sreedharan Pillai and Others v. State of Kerala and Others [1973 KLT** **151 (FB)]** wherein in paragraph 47, following the decision of the Apex Court in **Rabindra Nath Bose's case [AIR 1970 SC 470],** it was held thus:- W.P.(C). No.26430/2009 -:14:- **==> picture [326 x 9] intentionally omitted <==** maintenance of the morale, efficiency and contentment in the service to disrupt after such long lapse of time matters pertaining to vital service conditions like seniority and rank which have already become settled. It will be neither just nor equitable to deprive persons who have been promoted many years ago, of the rights that have accrued to them regarding their rank and seniority by purporting to conduct a review of promotions after the lapse of many years.” These principles are therefore, relevant here. 15. The learned Government Pleader tried to sustain the preparation of the seniority list by submitting that the request for transfer has resulted in loss of seniority by the petitioners. As I mentioned already, such applications are only in terms of the proforma prescribed in the guidelines for transfer and in the absence of any orders issued in terms of the principle under Rule 27(a) of Part II K.S & S.S.R also, the same cannot disentitle the petitioners from retaining their seniority. 16. The learned Senior Counsel invited my attention to the principles stated in paragraph 36 of the Judgment in W.P.(C). No.26430/2009 -:15:- ## **A.Janardhana v. Union of India and others [AIR 1983 SC 769]** to contend for the position that since the petitioners are only challenging the principles under which the seniority list has been revised and fresh seniority list has been prepared, and they are not challenging the particular seniority assigned to any individual party concerned, it is not necessary to implead all the persons who are included in the revised seniority list above them. In paragraph 36 of the said Judgment it was held by the Apex Court thus:- “.....In this case, appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing-up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. We may ## W.P.(C). No.26430/2009 ## -:16:- in this connection refer to General Manager, South Central Rly., Secundrabad v. A.V.R. Sidhanti (1974) 3 SCR 207 at p.212: (AIR 1974 SC 1755 at P.1759). Repelling a contention on behalf of the appellant that the writ petitioners did not implead about 120 employees who were likely to be affected by the decision in the case, this Court observed that the respondents (original petitioners) are impeaching the validity of those policy decisions on the ground of their being violative of Arts. 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating to seniority of government servants is assailed. In such proceedings, the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by anyone individual against another W.P.(C). No.26430/2009 -:17:- particular individual and, therefore, even if technically the direct recruits were not before the Court, the petition is not likely to fail on that ground. The contention of the respondents for this additional reason must also be negatived.” 17. Lastly, the learned Senior Counsel relied upon the decision of the Apex Court in **H.S.Vankani and Others v. State of Gujarat and Others [(2010) 4 SCC 301]** especially in paragraph 38 to contend for the position that once the seniority has been settled, the same cannot be unsettled and such unsettlement may result in bitterness among Government employees. 18. The Government has evidently acted illegally in issuing a direction as Ext.P24 ignoring Rule 12 of the Special Rules that too in upsetting the seniority list which has become final. Evidently, there was no challenge against the seniority list under the relevant Rule 27B of Part II K.S. & S.S.R within the time provided. A mere direction issued as Ext.P24 that too against the relevant clauses in the Special Rules cannot be justified. 19. Therefore, writ petition is allowed. Ext.P24 is quashed. The seniority list which is prepared based on ## W.P.(C). No.26430/2009 -:18:- Ext.P24 is only dependent on Ext.P24 itself. Therefore, it cannot survive once it is held that Ext.P24 is illegal. Therefore, Ext.P27 is also quashed. It is declared that the seniority list Ext.P21 is valid and the respondent Nos. 1 to 4 are therefore directed to effect promotions in terms of Ext.P21 seniority list after revising the promotions already made. Consequential orders granting promotion to the post of Foresters after considering the claims of the petitioners will be issued within a period of two months from the date of receipt of the copy of this Judgment. No costs. **(T.R. Ramachandran Nair, Judge.)** ms