OP (CAT) NO. 21 OF 2020

``` 2025:KER:21130 ``` ``` 1 ``` **==> picture [58 x 57] intentionally omitted <==** ``` OP (CAT) NO. 21 OF 2020 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR ``` ``` THURSDAY, THE 6[TH] DAY OF MARCH 2025 / 15TH PHALGUNA, 1946 ``` ## _`OP (CAT) NO. 21 OF 2020`_ ``` AGAINST THE ORDER/JUDGMENT DATED 1.11.2019 IN OA NO.20 OF 2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ``` ## _`PETITIONER:`_ ``` ZAKEER HUSSAIN M.K AGED 49 YEARS S/O.ATTAKOYA P(LATE), FIREMAN DRIVER OPERATOR, POLICE STATION, KAVARATTI-682555, UNION TERRITORY OF LAKSHADWEEP, PERMANENT ADDRESS MATHIL KADANALLAN, KALPENI ISLAND, UNION TERRITORY OF LAKSHDWEEP, PIN-682557 ``` ``` BY ADVS. T.C.GOVINDA SWAMY SMT.KALA T.GOPI SUDHIR KUMAR B. ``` ## _`RESPONDENTS:`_ ``` 1THE ADMINISTRATOR LAKSHADWEEP ADMINISTRATION, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI-682555 ``` ``` 2THE SUPERINTENDENT OF POLICE UNION TERRITORY OF LAKSHADWEEP, KAVARATTI-682555 ``` ``` 2025:KER:21130 ``` ``` 2 ``` **==> picture [58 x 57] intentionally omitted <==** ## _`OP (CAT) NO. 21 OF 2020`_ - _`3 SHRI.A.P.MULLAKOYA FIREMAN DRIVER OPERATOR POLICE STATION, KADAMAT-682556 UNION TERRITORY OF LAKSHADWEEP`_ - _`4 SHRI.T.HASSAN FIREMAN DRIVER OPERATOR FIRE STATION, ANDROTH-682551, UNION TERRITORY OF LAKSHADWEEP`_ - _`5 SHRI.P.BASHEER, FIREMAN DRIVER OPERATOR POLICE STATION, KILTAN-682558, UNION TERRITORY OF LAKSHADWEEP`_ - _`6 SHRI.M.P.MUTHUKOYA FIREMAN DRIVER OPERATOR POLICE STATION, KADAMAT-682556 UNION TERRITORY OF LAKSHADWEEP`_ - _`7 SHRI.P.P.MOHAMMED ABDUL NAZAR, FIREMAN DRIVER OPERATOR POLICE STATION, KAVARATTI-682555 UNION TERRITORY OF LAKSHADWEEP`_ - _`8 SHRI.M.ABDUL MUTHALIF, FIREMAN DRIVER OPERATOR POLICE STATION, KAVARATTI-682555 UNION TERRITORY OF LAKSHADWEEP`_ - _`9 SHRI.C.B ABDULLA, FIREMAN DRIVER OPERATOR POLICE STATION, CHETLAT-682554 UNION TERRITORY OF LAKSHADWEEP`_ - _`10 SHRI.K.K.KOYA FIREMAN DRIVER OPERATOR POLICE STATION, KALPENI-682557 UNION TERRITORY OF LAKSHADWEEP`_ - _`11 SHRI.A.K.SIRAJ FIREMAN DIRVER OPERATOR POLICE STATION AMINI-682252, UNION TERRITORY OF LAKSHADWEEP`_ - _`12 SHRI M.V.ALIYUL AKBAR, FIREMAN DRIVER OPERATOR FIRE STATION, ANDROTH-682551 UNION TERRITORY OF LAKSHADWEEP`_ ``` 2025:KER:21130 ``` ``` 3 ``` **==> picture [58 x 57] intentionally omitted <==** ## _`OP (CAT) NO. 21 OF 2020`_ - _`13 SHRI.K.ABDUL KADER, FIREMAN DRIVER OPERATOR FIRE STATION, MINICOY-682559 UNION TERRITORY OF LAKSHADWEEP`_ - _`14 SHRI.P.PSAYED SHAIKOYA FIREMAN DRIVER OPERATOR POLICE STATION, AMINI-682252, UNION TERRITORY OF LAKSHADWEEP`_ - _`15 SHRI.M.ABDUL KADIRI FIREMAN DRIVER OPERATOR POLICE STATION, AMINI-682252, UNION TERRITORY OF LAKSHADWEEP`_ - _`16 SHRI.E.C.ANDUKOYA, FIREMAN DRIVER OPERATOR FIRE STATION, MINICOY-682559, UNION TERRITORY OF LAKSHADWEEP`_ - _`17 SHRI.C.G.HAMZAKOYA FIREMAN DRIVER OPERATOR POLICE STATION, KALPENI-682557, UNION TERRITORY OF LAKSHADWEEP`_ ``` BY ADV K.S.PRENJITH KUMAR ``` ``` SRI K B GANGESH ``` ``` THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 06.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:21130 ``` ``` 4 ``` **==> picture [58 x 57] intentionally omitted <==** ``` OP (CAT) NO. 21 OF 2020 ``` ## **JUDGMENT** ## **Amit Rawal, J.** 1. Petitioner is aggrieved of the dismissal of the O.A., filed by him before the Central Administrative Tribunal, challenging the seniority list Annexure – A1 promulgated in 2018 on account of merger of the cadre of Fireman with Driver Operator and also on account of promulgation of new recruitment Rules in 2012. 2. The feeder cadre to the promotion post of Leading Fireman, prior to restructuring, was only from Firemen. However on account of merger, the posts of Fireman and Driver Operator got merged and both of them became eligible for promotion. The Rules prevailing before restructuring, given the chance of promotion to the Fireman only. The Recruitment Rules came into force on 13.09.2012 and as per paragraph No.2(II), the post having different pay scale prior to 6[th] CPC recommendation and after merger if ``` 2025:KER:21130 ``` ``` OP (CAT) NO. 21 OF 2020 ``` ``` 5 ``` **==> picture [58 x 57] intentionally omitted <==** come to lie in the same Pay Band with the same Grade Pay, the inter se seniority of all the employees will be fully maintained with the employees in a higher pre-revised pay scale, being placed higher vis-a-vis an employee in a lower pay scale. Concededly, the pay scale of the Driver Operators prior to the merger was Rs.950-1500 whereas that of the Fireman was Rs.775-1025. On the basis of restructuring, the pay scale of Fireman and Driver Operator was Rs.520020200 with grade pay of Rs.1900/-. For promotion to the post of leading Fireman, having a Grade Pay of Rs.2000/with the same pay scale, i.e., Rs.5200-20200, persons eligible for promotion are Fireman Driver Operator with three(3) years of regular service who have passed departmental test conducted by the department from time to time. Concededly, the applicant was eligible as he had three(3) years of regular service and passed the departmental test. Respondents No.3 to 17 were working as ``` 2025:KER:21130 ``` ``` OP (CAT) NO. 21 OF 2020 ``` ``` 6 ``` **==> picture [58 x 57] intentionally omitted <==** Firemen and have been promoted as Leading Firemen on the basis of vacancies occurred prior to the amendment caused in the Recruitment Rules as per the prevailing judicial pronouncement. However, in 2018, vide Annexure – A1, department came out with a seniority list placing the applicant below the party respondents. This gave him cause of action to invoke the jurisdiction of Central Administrative Tribunal, as the said seniority was not fixed in terms of Rule 2(II) of 2012. Learned Tribunal disposed off the O.A. by keeping the zone of consideration of the party respondents from Fireman to Leading Fireman according to the vacancies existing in the erstwhile Rules, with a further clarification that the remaining promotions will be as per the new Recruitment Rules. 2. Adv.Kala.T.Gopi, learned counsel appearing on behalf of the petitioner submitted that there has been a change in the law with regard to the applicability of the ``` 2025:KER:21130 ``` ``` 7 ``` **==> picture [58 x 57] intentionally omitted <==** ``` OP (CAT) NO. 21 OF 2020 ``` Recruitment Rules on the date when the promotions are considered. It is the conceded position on record that party respondents were promoted during the pendency of O.A. i.e., when the 2012 Rules were already in force. Though we have not been informed whether his promotion was in respect of the vacancy which occurred in 2012 but it must have been on that account alone. 3. In **Union of India and Others** v. **Krishnakumar and Another** [(2019) 4 SCC 319] considering the promotional avenue of Havildars to the post of Naib Subedars, the structure of Assam Rifles underwent a change by creation of intermediate post of Warrant Officer and the persons who were holding the post of Havildars were to be considered for promotion to the post of Warrant Officers. The High Court directed that the vacancies which arose prior to the amendment are to be filled up by the Rules prior to the amendment. However, the ``` 2025:KER:21130 ``` ``` OP (CAT) NO. 21 OF 2020 ``` ``` 8 ``` **==> picture [58 x 57] intentionally omitted <==** aforementioned direction was not accepted by the Supreme Court and the judgment of the High Court was set aside by observing as under in paragraph No.14: **14** . In view of this statement of the law, it is evident that once the structure of Assam Rifles underwent a change following the creation of the intermediate post of Warrant Officer, persons holding the post of Havildar would be considered for promotion to the post of Warrant Officer. The intermediate post of Warrant Officer was created as a result of the restructuring exercise. The High Court was, in our view, in error in postulating that vacancies which arose prior to the amendment of the Recruitment Rules would necessarily be governed by the Rules which existed at the time of the occurrence of the vacancies. As the decided cases noted earlier indicate, there is no such rule of absolute or universal application. The entire basis of the decision of the High Court was that those who were recruited prior to the restructuring exercise and were holding the post of Havildars had acquired a vested right of promotion to the post of Naib Subedar. This does not reflect the correct position in law. The right is to be considered for promotion in accordance with the Rules as they exist when the exercise is carried out for promotion. ## 4. Similar is the view of Supreme Court in **State of Tripura and Ors.** v. **Nikhil Ranjan Chakraborty** ``` 2025:KER:21130 ``` ``` OP (CAT) NO. 21 OF 2020 ``` ``` 9 ``` **==> picture [58 x 57] intentionally omitted <==** ## **and Ors.** [(2017) 3 SCC 646] in paragraph No.10, the same reads as under: **10** . The law is thus clear that a candidate has the right to be considered in the light of the existing rules, namely, “rules in force on the date” the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose. As against the case of total exclusion and absolute deprivation of a chance to be considered as in the case of Deepak Agarwal (supra), in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as if the writ petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24.11.2011. 5. Rule 2(II) of the Recruitment Rules, 2012, reads as under: ``` 2025:KER:21130 ``` ``` OP (CAT) NO. 21 OF 2020 ``` ``` 10 ``` **==> picture [58 x 57] intentionally omitted <==** Where posts having different pay scales prior to Sixth CPC recommendation and now after merger have come to lie in the same Pay Band with same Grade Pay, the inter se seniority of all the employees will be fully maintained with employee in a higher pre-revised pay scale being placed higher vis-a-vis an employee in a lower pay scale. Within the same pre-revised pay scale, seniority which existed prior to revision would continue. 6. The seniority list was published in 2018. Obviously, the applicant who was drawing higher pay scale than other Firemen was required to be placed senior to the party respondents. But, since the party respondents have already been promoted and retired, we are of the view that while considering the case of the applicant – petitioner for placing him higher in the seniority list, no recovery would be effected regarding the pay and pension received by them by holding the promotional post of Leading Fireman. Therefore, the petitioner shall be considered for promotion to the post of Leading fireman. 7. The department will consider the promotion of ``` OP (CAT) NO. 21 OF 2020 ``` ``` 11 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:21130 ``` the petitioner to the post of Leading Fireman, strictly as per the Recruitment Rules 2012 if he fulfill the conditions of three years and clearance of departmental examination. It is made clear that he will be entitled to arrears/monetary benefits also. Petition stands disposed off. ## **Sd/-** **AMIT RAWAL JUDGE** **Sd/-** **K. V. JAYAKUMAR JUDGE** nak ``` 2025:KER:21130 ``` ``` 12 ``` **==> picture [58 x 57] intentionally omitted <==** ## _`OP (CAT) NO. 21 OF 2020`_ ## _`APPENDIX OF OP (CAT) 21/2020`_ ``` PETITIONER EXHIBITS ``` - _`EXHIBIT P1 TRUE COPY OF THE ORDER IN OA NO.181/20/2019 DATED 1.11.2019 RENDEREBY HON'BLE CAT, ERNAKULAM BENCH`_ - _`EXHIBIT P2 A TRUE COPY OF THE OA NO.181/20/2019 EXHIBIT P2(A1) TRUE COPY OF OFFICE ORDERBEARING F.NO.10/33/2015-AC(F)DATED 22.08.2018 ISSUED BY THE 2ND RESPONDENT`_ - _`EXHIBIT P2(A2) A TRUE COPY OF NOTIFICATION RECRUITMENT RULES BEARING F NO.1/13/91-EST(POL) DATED 27.01.1992 PUBLISHED BY THE FIRST RESPONDENT`_ - _`EXHIBIT P2(A3) A TRUE COPY OF CERTIFICATE ISSUED BY THE COCHIN PORT FIRE SERVICE UNDER NO.FS/115/44/94 DATED 18.05.1994`_ - _`EXHIBIT P2(A4) A TRUE COPY OF RECRUITMENT RULES AMENDED AS PER A NOTIFICATION OBEARING F.NO.10/40/2012-AC(F) DATED 26.09.2012`_ - _`EXHIBIT P2(A5) TRUE COPY OF REPLY STATEMENT DATED 26.05.2015 FILED BY THE RESPONDENTS 1 AND 2 IN OA NO.181/0071/2014`_ - _`EXHIBIT P2(A6) TRUE COPY OF DOP&T OM BEARING NO.20020/4/2010-ESTT(D) DATED 13.09.2012`_ - _`EXHIBIT P2(A7) TRUE COPY OF THE PROVISIONAL SENIORITY LIST PUBLISHED BY THE RESPONDENTS AS PER OFFICE MEMORANDUM BEARING F.NO.10/33/2015-AC(F)2847 DATED 04.08.2016`_ ``` 2025:KER:21130 ``` ``` 13 ``` **==> picture [58 x 57] intentionally omitted <==** ## _`OP (CAT) NO. 21 OF 2020`_ ``` EXHIBIT P2(A8)TRUE COPY OF ORDER DATED 02.12.2016 IN OA NO.181/00071/2014 RENDERED BY THE HON'BLE CAT, ERNAKULAM BENCH SENIORITY LIST BEARING F.NO.10/33/2015-AC(F)DATED 01.08.2018 EXHIBIT P2(A10)TRUE COPY OF REPRESENTATION DATED 08.08.2018 SUBMITTED BY THE PETITIONER IN OA EXHIBIT P3A TRUE COPY OF REPLY STATEMENT FILED BY TH SENIOR CENTRAL GOVERNMENT STANDING COUNSEL FOR 1ST AND THE 2ND RESPONDENT IN OA EXHIBIT P2 EXHIBIT P4TRUE COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS 3 TO 10, 12 AND 13 AND 15 TO 17 EXHIBIT P4(R3(A)A TRUE COPY OF REPRESENTATION PREFERRED BY THE APPLICANT BEFORE THE 2ND RESPONDENT EXHIBIT P5A TRUE COPY OF THE REJOINDER DATED 19.08.2019 FILED BY THE PETITIONER IN OA EXHIBIT P2 EXHIBIT P5(A11)A TRUE COPY OF OFFICE ORDER BEARING F.NO.10/29/2015-AC(F) DATED 22.02.2019 ```