OP(KAT) No.255 of 2015 (Jose Melvin P.L. and Ambily T.S. v. State of Kerala and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY ,THE 12TH DAY OF NOVEMBER 2018 / 21ST KARTHIKA, 1940** ## **OP(KAT).No. 255 of 2015** **ORDER IN TA 4166/2012 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 10-12-2014** ## **PETITIONERS/APPLICANTS 1 & 5 IN T.A:** - **1 JOSE MELVIN P.L., AGED 47 YEARS** - **JUNIOR SCIENTIFIC OFFICER, REGIONAL CHEMICAL EXAMINER'S LABORATORY, KAKKANAD, ERNAKULAM DISTRICT, KERALA.** - **2 AMBILY T.S., JUNIOR SCIENTIFIC OFFICER, REGIONAL CHEMICAL EXAMINER'S LABORATORY, KOZHIKODE DISTRICT, KERALA.** **BY ADVS. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY** ## **RESPONDENTS/RESPONDENTS 1 TO 3 & 5 TO 14 IN T.A** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM- 695001, KERALA.** - **2 CHIEF CHEMICAL EXAMINER TO GOVERNMENT, CHEMICAL EXAMINERS LABORATORY, THIRUVANANTHAPURAM- 695035, KERALA.** O.P.(KAT) No.255 of 2015 -2- - **3 M.V.SIVANKUTTY, ASSISTANT CHEMICAL EXAMINER, REGIONAL CHEMICAL EXAMINER'S LABORATORY, KAKKANAD, ERNAKULAM DISTRICT-682030, KERALA.** - **4 SALI K. CHERIAN,** **JUNIOR SCIENTIFIC OFFICER, REGIONAL CHEMICAL EXAMINER'S LABORATORY, KAKKANAD, ERNAKULAM DISTRICT- 682030, KERALA.** - **5 K.T.SASI,** **JUNIOR SCIENTIFIC OFFICER, REGIONAL CHEMICAL EXAMINER'S LABORATORY, KAKKANAD, ERNAKULAM DISTRICT- 682030, KERALA.(CORRECTED) K.T.SASI, JUNIOR SCIENTIFIC OFFICER, REGIONAL CHEMICAL EXAMINER'S LABORATORY, KOZHIKODE, KOZHIKODE DISTRICT- 673001, KERALA. (CORRECTED)** **----------------------------------------------** - **-------------------** **(THE ADDRESS OF RESPONDENT 5 IN THE CAUSE TITTLE OF ORIGINAL PETITION IS CORRECTED, AS PER ORDER DATED 02.09.2015 IN I.A.NO.12009/2015 IN OP (KAT)255/2015).** **6 N.ABDUL VAHID, (RETIRED FROM SERVICE), JUNIOR SCIENTIFIC OFFICER, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM- 695035, KERALA (DELETED)** **----------------------------------------------** **-----------------** **(RESPONDENT 6 IS DELETED FROM THE PARTY ARRAY OF THE PETITION AT THE RISK OF THE PETITIONERS AS PER ORDER DATED 02.09.2015 IN I.A.NO.12010/2015 IN OP (KAT)-255/15.).** - **7 C.RAJAN PILLAI,** **JUNIOR SCIENTIFIC OFFICER, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM- 695035, KERALA.** **8 A.RAJASREE, JUNIOR SCIENTIFIC OFFICER, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM- 695035, KERALA** O.P.(KAT) No.255 of 2015 -3- **(NOW WORKING AS ASST.CHEMICAL EXAMINER, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM).** - **9 M.CHITHRA,** **JUNIOR SCIENTIFIC OFFICER, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM- 695035, KERALA. (NOW WORKING AS ASST.CHEMICAL EXAMINER, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM).** - **10 M.LILA,** **JUNIOR SCIENTIFIC OFFICER, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM- 695035, KERALA, (RETIRED FROM SERVICE) (DELETED)** **----------------------------------------------** ## **------------------** **(RESPONDENT 10 IS DELETED FROM THE PARTY ARRAY OF THE PETITION AT THE RISK OF THE PETITIONERS AS PER ORDER DATED 02.09.2015 IN I.A.NO.12010/2015 IN OP(KAT)-255/15).** ## **11 P.G.ASOKUMAR,** **JUNIOR SCIENTIFIC OFFICER, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM- 695035, KERALA (NOW WORKING AS ASST.CHEMICAL EXAMINER, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM).** - **12 RAJALAKSHMI.R.,** **JUNIOR SCIENTIFIC OFFICER, REGIONAL CHEMICAL EXAMINER'S LABORATORY, KAKKANAD, ERNAKULAM DISTRICT- 682030, KERALA (NOW WORKING AS ASST.CHEMICAL EXAMINER, CHEMICAL EXAMINER'S LABORATORY, THIRUVANANTHAPURAM).(CORRECTED)** **----------------------------------------------** **------------------** **(THE ADDRESS OF RESPONDENT 12 IN THE CAUSE TITTLE OF ORIGINAL PETITION IS CORRECTED AS PER ORDER DATED 02.09.2015 IN I.A.NO.12009/2015 IN OP (KAT)255/2015).** O.P.(KAT) No.255 of 2015 -4- **13 JOSEPH JUNIOR SCIENTIFIC OFFICER, REGIONAL CHEMICAL EXAMINER'S LABORATORY, KAKKANAD, ERNAKULAM DISTRICT.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.L.ANNAPOORNA SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SRI.V.VARGHESE** ## **OTHER PRESENT:** **SR GP SRI T. RAJASEKHARAN NAIR.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 12.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(KAT) No.255 of 2015 -5- ## **JUDGMENT** ## **C.T.Ravikumar, J.** This original petition is directed against the order dated 10.12.2014 passed by the Kerala Administrative Tribunal in T.A.No.4166 of 2012. In fact, the applicants therein including the petitioners herein filed W.P.(C) No.19960 of 2008 before this Court and it was transferred and re-numbered as T.A.No.4166 of 2012, subsequent to the constitution of the Kerala Administrative Tribunal. The applicants 1 and 5 in the transfer application are the petitioners herein and the respondents therein are the respondents herein. The Tribunal as per Annexure A6 order dismissed the transferred application, mainly holding that the applicants therein including the petitioners herein had no _locus standi_ to challenge the seniority assigned to the contesting party respondents. O.P.(KAT) No.255 of 2015 -6- 2. The perennial problem of fixation of _inter se_ seniority between direct recruits and promotees crops up for consideration, this time, at the instance of the direct recruits and it arises for consideration in the following factual matrix:- The applicants including the petitioners herein as also the party respondents are members of the service of the Chemical Examiner's Laboratory Department. At the time of filing of the writ petition, all of them were working as Junior Scientific Officers (for brevity “JSO”). Admittedly, pending the Transfer Application, all of them were promoted to the post of Assistant Chemical Examiner and obtained further promotion as well. Some of them had obtained still further promotion. In the context of the challenge against the seniority list in the Cadre of Junior Scientific Officer and also the allied questions to be resolved in this original petition, it is only apposite to refer to the prayers made in the transfer O.P.(KAT) No.255 of 2015 -7- ## application. They read thus:- “(i) to issue a writ of certiorari quashing Exts.P5 and P7 as unjust, illegal and unconstitutional and (ii) to issue a writ of mandamus directing the respondents to rearrange the seniority list of Junior Scientific Officers or to publish a new seniority list keeping in view the ratio of 1:1 as contemplated in proviso to Rule 27 (a) of Part-II, KS&SSR as incorporated by way of G.O.(P) 41/90 dated 17.9.1990 from among the promotees and direct recruits.” 3. The petitioners herein were directly recruited to the service of the department as JSO, on 21.6.2003 and 13.6.2003 respectively. Admittedly, the party respondents had entered the service of the department as Technical Assistants, much prior to the entry of the petitioners in its service. The post of JSO belongs to category 4 in its State Service and the method of appointment to the said post is regulated by the Kerala Chemical Examiner's Laboratory Service Special Rules, 1997 (for brevity 'the Special Rules'). Going by Rule 3 (1)(i) therein, by transfer and direct O.P.(KAT) No.255 of 2015 -8- ## recruitment are the methods of appointment to the post of JSO. The relevant rule reads thus:- “3 (4) Junior Scientific Officer: (i) By transfer from the category of Technical Assistant under the Kerala Chemical Examiner's Laboratory Subordinate Service. (ii) By direct recruitment (the ratio between promotion and direct recruitment shall be 1:1).” 4. Thus, the Special Rules would reveal that the quota is not interlocked with rota in the Special Rules. Direct recruitment was not affected for a considerably long period since 1997. After 1997, direct recruitment to the post of JSO was effected only in the year 2003. Prior to 1997, to be precise, in the year 1993, temporary promotions were effected to the post of JSO and the party respondents were temporarily promoted. The situation that constrained their temporary promotion is revealed from Ext.P9 in Annexure A1. It is stated thus:- “In connection with the Abkari Policy 93-94 for testing samples of arrack and rectified spirit a unit each was set up at O.P.(KAT) No.255 of 2015 -9- district level in the Excise department consisting of One Junior Scientific officer and One Laboratory Assistant vide G.O(MS) No.28/93/TD dated 4/3/93. Personnel for both the posts were made available from the department of the Chief Chemical Examiner on deputation. Then vide G.O.(MS)No.70/93/TD dated 22/4/93 sanction was accorded for the creation of the post of One Junior Scientific Officer and One Laboratory Assistant in each unit in the District Level in the Excise department temporarily till 31/3/94. Thus 14 posts of Junior Scientific Officer and 14 posts of Laboratory Assistant were created for Excise department.” 5. Needless to say, that, after the creation of those temporary posts, viz; 14 posts of JSO and 14 posts of Laboratory Assistant in the Excise Department. The said temporarily created posts in the Excise Department were being filled up by personnel from the department of Chemical Examiner's Laboratory by temporary promotion and on deputation. The period of such temporary promotion and deputation was extended from time to time and ultimately, those 28 posts and another eight temporary posts were converted as permanent as per Ext.P11 order O.P.(KAT) No.255 of 2015 -10- G.O.(M.S.) No.20/2009/Home dated 21.2.2009. As already noticed, in the meanwhile, the party respondents who were already in the service of the department prior to the petitioners' entry in service, were temporarily promoted and deputed to the temporarily created posts in the Excise Department as per Ext.P9. In fact, all of them were temporarily promoted to the post of JSO. Needless to say, that based on the extension of the period of the posts created under Ext.P9, from time to time, they also continued temporarily in that post. While so, the party respondents who were given temporary promotion vide order No. E 575/93/CE dated 13.5.1993 were regularised and their probation was also declared as per order No. E1.1493/94/CE dated 19.1.1996. A perusal of Ext.P9 would reveal that their temporary promotion was regularised on different dates in May 1993 and their probation was declared in May, 1994, except in the case of one Rajasree, O.P.(KAT) No.255 of 2015 -11- whose probation was declared only on 2.6.1994. As noticed herein-before, it is long later that those posts against which they were temporarily promoted along with certain other posts were converted as permanent post in the Chemical Examiner's Laboratory Department. Evidently, prior to the issuance of Ext.P11 order in the year 2003, to be precise on 21.6.2003 and 13.6.2003, the petitioners were directly recruited as JSO. The petitioners along with three others directly recruited as JSOs approached this Court by filing W.P.(C) No.19960 of 2008, carrying the aforementioned prayers and it was the same that was later transferred to the Tribunal and was re-numbered as T.A.No.4166 of 2012 . It is consideration of the transferred application that culminated in the order impugned in the captioned original petition. 6. The first petitioner herein along with two others had earlier approached this Court by filing W.P.(C) No.13501 of 2006, essentially seeking for issuance of writ of O.P.(KAT) No.255 of 2015 -12- mandamus commanding the respondents therein to declare their probation as completed satisfactorily. They also sought for issuance of a writ of mandamus to the respondents to rearrange the seniority list of Junior Scientific Officers keeping in view of the ratio of 1:1 as contemplated in proviso to Rule 27 (a) as incorporated by way of G.O.(P) 41/90 dated 17.9.1990, from among the promotees and direct recruits. That writ petition was disposed of on 29.6.2006 as per Ext.P1 in Annexure A1. It is evident from Ext.P1 that on the ground of alleged misconduct of filing representations for redressal of grievances, their probation was not declared. The said representations, viz; Ext.P5 to Ext.P7 referred as such in W.P.(C) No.13501 of 2006, were directed to be disposed of as per Ext.P1. Ext.P1 is produced by the petitioners to canvass the position that as per the same, they were given the liberty upon passing orders on Exts.P5 to P7 by the second respondent, to take up their O.P.(KAT) No.255 of 2015 -13- claim for seniority in accordance with law. Later, the petitioners and the others filed representations to redress their grievances against the fixation of seniority in the cadres of JSO. Aggrieved by the delay in the matter of disposal of such representations, the first petitioner along with another approached this Court by filing W.P.(C) No.27586 of 2006, which was disposed of as per Ext.P4 judgment dated 19.10.2006 (Ext.P4 in Annexure A1). Taking note of the fact that the grievances of the petitioners therein was relating to the fixation of _inter se_ seniority, while disposing of the matter with a direction to consider and pass orders on the pending representations filed by the petitioners therein, this Court directed the second respondent therein to issue notice to respondents 4 to 6 therein and also to afford opportunity of being heard to both the petitioners and the respondents, therein. Pursuant to Ext.P4 judgment, Ext.P5 order dated 10.1.2007 was passed O.P.(KAT) No.255 of 2015 -14- by the second respondent. A perusal of the same would reveal that the second respondent had arrived at a conclusion that there is no requirement to rearrange and refix the seniority list of JSO of the Department, published on 1.7.1998. Based on such conclusion, the representations submitted by the first petitioner and one Peter were disposed of. The first petitioner herein challenged Ext.P5 order in W.P.(C) No.6363 of 2007, which was disposed of by this Court as per Ext.P6 judgment dated 1.3.2007. This Court was of the view that since the Government got the power to look into the entire gamut of the matter, it would only be appropriate for the first respondent/Government to consider and pass appropriate orders on the dispute. Consequently, as per Ext.P6, the first respondent/ Government was directed to issue notice to the petitioner therein/the first respondent herein and also to respondents 3 to 14 therein, viz; the party respondents herein and to O.P.(KAT) No.255 of 2015 -15- pass a speaking order to settle the dispute. Ext.P7 order came to be passed in purported compliance with the directions in Ext.P6. The operative portion of Ext.P7 would reveal that the claim of the first petitioner herein for seniority in the Cadre of JSO over the party respondents herein was rejected. It was found that his eligibility for seniority is w.e.f. 10.6.2003, i.e; the date of effective advice by the KPSC. It is also stated therein that the effective date of advice of the first petitioner fell after the vacancy to permanent cadres were filled by the Chemical Examiner's Laboratory Department and therefore, his claim for seniority over respondents 3 to 14 in W.P.(C) No.6363 of 2007, viz; the party respondents herein is against the existing rules. Essentially, consequent to the said finding, his application was rejected. It is in the said circumstances that, the petitioners herein along with three others filed W.P.(C) No.19960 of 2008, which was transferred and re-numbered O.P.(KAT) No.255 of 2015 -16- as T.A.No.4166 of 2012, which culminated in the impugned order. As noticed herein before, after considering the rival contentions, the Tribunal had arrived at a conclusion that the petitioners and the other applicants had no _locus standi_ to challenge the promotions granted to the party respondents and based on such conclusion and finding, the transfer application was dismissed. 7. The facts narrated above would reveal certain relevant aspects for the disposal of this original petition. Much prior to the entry of the petitioner in the service of the department, the party respondents had entered into the service. The party respondents had entered the service as Technical Assistant much prior to 2003 and while they were working so, temporary posts in the category of Junior Scientific Officer and Laboratory Assistants (14 each) were created in the year 1993 in the Excise Department. We have already adverted to Ext.P9 order wherein the creation of the O.P.(KAT) No.255 of 2015 -17- temporary posts was dealt with. They would go to show that those posts were created in the Excise Department temporarily. Going by the same, those posts were to be filled from the of Chemical up by deputation department Examiner's Laboratory. At the relevant point of time, the cadres of JSO in the department was only 13. In such circumstances, evidently, persons in the feeder category, viz; Technical Assistants including the party respondents were temporarily promoted to the post of JSO and then deputed to the newly created temporary posts of JSO. The said posts were continued based on orders issued from time to time and on the strength of such orders, the party respondents who were promoted temporarily as JSO also continued to hold the said post. While so their temporary promotion was regularised and their probation in the post of JSO was declared. The said facts would reveal that pursuant to the temporary promotion as JSO, the temporary promotion of O.P.(KAT) No.255 of 2015 -18- the party respondents were regularised on different dates in the month of May, 1993 and their probation was declared in the year 1994. It is after 9 years since the declaration of probation of the party respondents pursuant to the regularisation of their promotion as JSO that the petitioners herein entered into the service of the department as JSO. As noticed herein-before, they entered into the service on 21.6.2003 and 13.6.2003 respectively. True that, in W.P.(C) No.13501 of 2006, the first petitioner and two others had sought for issuance of a writ of mandamus to the respondents to rearrange the seniority list of Junior Scientific Officers keeping in view of the ratio of 1:1 as contemplated in the proviso to Rule 27 (a) of Part-II, KS& SSR as incorporated by way of G.O.(P) 41/90 dated 17.9.1990. This Court while disposing of the said writ petition, mainly carrying the grievance of non-declaration of their probation, left open the grievance relating to seniority O.P.(KAT) No.255 of 2015 -19- in the cadre of JSO to be taken up, in accordance with law. The first petitioner along with one Peter, the 7[th] applicant in the transfer application, after filing representations approached this Court by filing W.P.(C) No.27586 of 2006 to redress their grievance regarding the delay in the matter of disposal of their representations submitted to rectify the alleged error crept in the matter of fixation of seniority in the category of JSO. 8. Though the directions in Ext.P4 judgment in W.P. (C) No.27586 of 2006 led to the issuance of Ext.P5, the first petitioner alone took up the matter further by filing W.P.(C) No.6363 of 2007. That writ petition was disposed of as per Ext.P6 with a direction to the first respondent Government to pass appropriate speaking orders to settle the dispute regarding the fixation of the seniority in the category of JSO. The directions in Ext.P6 judgment in W.P.(C) No.6363 of 2007 led to the issuance of Ext.P7 on 18.2.2008. It is to be O.P.(KAT) No.255 of 2015 -20- noted that it is only thereafter that the other applicants joined the first petitioner herein in the challenge against the seniority list in the category of JSO. The facts thus obtained would reveal that the petitioners who entered into the service in the year 2003, long later to the regularisation of the temporary promotion of the party respondent as JSO as also the declaration of their probation in the year 1994, challenged the seniority list after more than three years since their entry in service. In this context, it is also relevant to note that the seniority list in the category of JSO figuring the party respondents herein were published much prior to the entry of the petitioners in service. The said seniority list as on 1.7.1998 was published on 3.2.1999. These undisputed and indisputable facts have to be borne in mind while considering the tenability of the contentions raised by the petitioners as also the sustainability of the order passed by the Tribunal. O.P.(KAT) No.255 of 2015 -21- 9. As noticed herein-before, the learned counsel for the petitioners submitted that the Tribunal was not justified in dismissing the TA holding that the petitioners/applicants got no _locus standi_ to challenge the seniority assigned to the party respondent in the TA. Their contention is that merely because they entered into the service of the department much later to the promotions granted to the party respondents, that cannot be a reason to reject their challenge against seniority list. The learned counsel submitted that the petitioners could not have challenged the seniority before their birth in service. As they had entered in service only in the year 2003, they could not have challenged the temporary promotion, regularisation of promotion, declaration of probation and consequential assignment of place in the seniority list of the party respondents. The pleadings of the petitioners would reveal that even while filing the writ petition in the year 2008, they have virtually reiterated the O.P.(KAT) No.255 of 2015 -22- prayer which they had made in W.P.(C) No.13501 of 2006. In other words, even while filing the writ petition, which was ultimately re-numbered as T.A.4166 of 2012 that culminated in the impugned order, they had not chosen to challenge the temporary promotion, regularisation of promotion, declaration of probation, the inclusion of the petitioners in the year 1998 seniority list as also the promotions granted to them based on the seniority fixed in the said list published in the year 1998-99. Without mounting challenge against them, the petitioners sought only for issuance of writ of mandamus to the respondents to rearrange the seniority list of the Junior Scientific Officer keeping in view of the ratio of 1:1 as contemplated in proviso to Rule 27 (a) of Part II, KS&SSR as incorporated by way of G.O.(P) 41/90 dated 17.9.1990 from among the promotees and direct recruits. In such circumstances, we are of the view that before adverting to the grievances raised by the petitioners regarding the O.P.(KAT) No.255 of 2015 -23- alleged illegality in the matter of fixation of _inter se_ seniority in between the direct recruits and promotees, the question whether, without mounting challenge against the regularisation of promotion and the consequential promotions granted based on the seniority assigned to the party respondents in the list published in 1999, the petitioners herein could sustain such a prayer, is to be considered. 10. The learned counsel appearing for the petitioners submitted that since the petitioners are seeking only for rearrangement of the seniority list in the cadre of JSO with reference to the proviso under Rule 27 (a) of Part II of the KS&SSR, there is no need to challenge the seniority list in which the party respondents figure and also the promotions granted to them in the cadre of JSO and to the further higher categories. The foundation for such consideration is that according to the petitioners, the continuance of the party O.P.(KAT) No.255 of 2015 -24- respondents in the cadre of JSO till the issuance of Ext.P11 was purely on temporary basis and therefore, it could not and should not confer any right to them to claim seniority based on such temporary promotion. Ext.P11 itself would reveal the hollowness of the said contention. Ext.P11 was passed on 21.2.2009 and the writ petition was filed in the year 2008. When the petitioners filed W.P.(C) No.19960 of 2008 (which was transferred to the Tribunal and renumbered as T.A.No.4166 of 2012), their sole contention was that the non-availability of PSC hands could not and should not be a reason to set apart the quota available for direct recruitment to promotees for ever. The core contention is revealed from ground (D) in the transfer application, which reads as follows: “If the PSC hands is not available, it does not mean that the same can be set apart to the promotees for ever. Temporary promotion is only an adhoc arrangement and it should not curtail the rights of the PSC hands. This is the O.P.(KAT) No.255 of 2015 -25- object of proviso to Rule 27 (a). In Kuruvila v. State of Kerala ILR 1981 (I) Kerala 742, it was held that a temporary promotee cannot claim seniority w.e.f. the date of such posting. Candidates belonging to two channels can claim seniority only w.e.f. the dates on which the vacancies arose in their respective group. 11. In ground (D), they had taken up a contention that from the beginning, the department was filling up the posts in random manner overlooking the ratio of 1:1 which resulted in an erroneous seniority list for the next promotion. True that, they had also taken up ground (F) to challenge the declaration of probation of the party respondents. But, it is a fact that even after taking up such a contention, they did not seek any appropriate consequential relief. It is bearing mind the aforesaid aspects that the contention now taken up by the petitioners, that the party respondents had continued as temporary promotees till the issuance of Ext.P11, has to be appreciated. The argument would reveal that the contention of the petitioners is that till O.P.(KAT) No.255 of 2015 -26- the conversion of 36 temporary posts as permanent, no substantive vacancy was available for effecting temporary promotion, granting regularisation of promotion and also for declaration of probation of the party respondents. We are afraid the said contention is annihilative to the very existence of the petitioners in service. 12. We will firstly deal with the contentions of the petitioners that till the conversion of 36 temporary posts as permanent, there were no substantive vacancies available for effecting temporary promotion, for granting regularisation of promotion and also for declaration of probation of the party respondents. We have already taken note of the fact that official respondents would contend that there were only 13 vacancies in the permanent cadre. Out of those 13 vacancies, six vacancies were held by direct recruits. At the same time, the position, as emerged from Ext.P9, would reveal that in connection with Abkari Policy 93-94, for testing samples of O.P.(KAT) No.255 of 2015 -27- arrack and rectified spirit, a unit each was set up at district level in the Excise Department consisting of one Junior Scientific Officer and one Laboratory Assistant as per G.O. (MS) No.28/93/TD dated 4.3.1993. Ext.P9 itself would reveal that though such temporary vacancies were created in the Excise Department, personnel for both posts were to be made available from the Department of the Chief Chemical Examiner, on deputation. In such circumstances, 14 posts of Junior Scientific Officers and 14 posts of Laboratory Assistants were created in the Excise Department for the aforesaid purpose. It is consequent to creation of those temporary posts, initially for a period of one year, that the party respondents were given temporary promotion. It is a fact that after the initial period of one year, the period of such temporary posts was extended from time to time and ultimately those posts and certain others were converted as permanent. We have already taken note of the fact that O.P.(KAT) No.255 of 2015 -28- Ext.P9 itself would reveal that in the meanwhile, temporary promotion of the party respondents were regularised with effect from May, 1993 and their probation was declared as per order No.E1/1493/94/CE dated 19.1.1996 with effect from various dates in May 1994 except in the case of A. Rajasree. In her case, her probation was declared only with effect from 2.6.1994. The fact is that the said regularisation of temporary promotion and subsequent declaration of promotion of the party respondents were effected much prior to the petitioners' entry in service. The petitioners, as already noticed, entered in service of the department only in June, 2003. Thus, it can be seen that a decade ago to the entry of the petitioners in service, temporary promotion of the party respondents was regularised and their probation was declared. It is a fact that even while filing the O.A seeking seniority over the party respondents, the petitioners herein and the others who were directly recruited to the O.P.(KAT) No.255 of 2015 -29- category of JSO, had not chosen to challenge the regularisation of the temporary promotion of the party respondents as also declaration of their probation. Obviously, no prayers have been sought for, in respect of such aspects. The other fact is that based on regularisation of such temporary promotion and subsequent declaration of probation, the party respondents were given promotion to the next cadre and some of them had obtained still further promotion. Such promotions were affected evidently after the entry of the petitioners in service. A close scrutiny of the pleadings and also the reliefs sought for in the O.A as also in the original petition would reveal that even in such circumstances, the petitioners, for reasons best known to them, did not choose to challenge the regularisation of the party respondents, declaration of probation as also promotions granted to them based on the aforesaid regularisation and declaration of probation. In such O.P.(KAT) No.255 of 2015 -30- circumstances, it is submitted by the learned counsel for the party respondents that the mere fact that the petitioners are seeking for a mere re-arrangement of inter se seniority cannot be a reason to interfere with the promotions granted to the party respondents based on the aforesaid aspects. The learned counsel would further contend that in such circumstances, the Tribunal was justified in holding that the petitioners/applicants got no locus standi to challenge the regularisation of temporary promotion of the party respondents, declaration of their probation. When there is no direct challenge against regularisation of temporary promotion, declaration of probation and the subsequent promotions that too based on a seniority in a list which was published much prior to the entry of the petitioners in service, the petitioners cannot be heard to seek for such a rearrangement. The learned counsel would further submit that no challenge has been made by the petitioners against O.P.(KAT) No.255 of 2015 -31- the seniority list which was published in 1999 as on 1.7.1998. In elaboration of the said contention, it is further submitted that a senior direct recruit to the petitioners namely Ranjith had earlier attempted to challenge the seniority granted to the party respondents and others. In fact, he has directly challenged the seniority granted to the last promotee viz., the 12th respondent. The challenge was repelled by this Court in W.P.(C).No.6211/2007. In such circumstances, it is also submitted that the petitioners cannot claim any better right than the said senior direct recruit. Raising such contentions, it is submitted that the order impugned does not invite any interference. 13. It is a fact that the petitioners herein did not challenge the seniority list drawn in the year 1999. All the party respondents had figured in the said seniority list. It is also a fact that the aforementioned Ranjith who was a direct recruit had also figured in the said list. It is to be noted that O.P.(KAT) No.255 of 2015 -32- the aforementioned Ranjith is not at all a party in this proceeding. The fact that he unsuccessfully challenged the seniority granted to the party respondents cannot be disputed. In such circumstances, the question is whether even without challenging the said seniority list, regularisation of the temporary promotion, declaration of probation effected as early as on 19.1.1996 and the promotion granted based on such seniority after the entry of the petitioners in service, the petitioners are not justified in making indirect challenge against such promotions by merely seeking for rearrangement of the seniority in the ratio 1:1 based on the proviso under Rule 27(a) Part II KS & SSR. In the contextual situation, it is relevant to refer to a Full Bench decision of this Court in **Raghavan Nair M.P v. State Insurance Officer and others [1971 KLT 583]** . Paragraphs 11 and 15 read thus:- “11.It is said that, once the petitioner’s seniority over O.P.(KAT) No.255 of 2015 -33- respondents 3 and 4 in the upper division is declared, that would automatically involve the setting aside of the earlier promotion of respondents 3 and 4 to the category of superintendents and in an earlier promotion for the petitioner with the resulting seniority that that would carry, the rule for promotion being seniority and no imponderable element like relative merit or even fitness coming into play. We cannot agree. Seniority in the lower category is by no means the same as promotion to the higher category the moment a vacancy occurs in the latter, even if it be that promotion is governed solely by the predetermined fact of seniority. Seniority, no doubt, furnishes a title to promotion, not, it is true in this case, a merely contingent title as would be the case, if the rule for promotion were merit, seniority counting only in cases where the merit of the competing claimants is roughly equal. Nevertheless, it is no more than a title. There would still have to be the conferment of the promotion by the appointing authority, and the promotion would no more follow automatically from a declaration of seniority than would possession from the hands of a trespasser follow automatically from a decree merely declaring title. 15. It is argued on behalf of the petitioner that the prayer in the petition, namely, that an appropriate O.P.(KAT) No.255 of 2015 -34- direction be issued to treat the petitioner as senior to respondents 3 and 4 in the superintendents’ category, read along with sub-rule (a) of rule 27 by which seniority is determined by the date of first appointment, necessarily implies a prayer to set aside the earlier appointment of respondents 3 and 4 to the superintendents’ category. This is a very farfetched agrument and we are not prepared to countenance it. But, assuming that the petition did contain a prayer-which definitely does not-- for setting aside the earlier promotion of respondents 3 and 4 to the superintendents’ category and conferring an earlier promotion on the petitioner, we would be disinclined to grant the petitioner that relief. For, as we have seen, the 3rd respondent was promoted to the category of superintendents as long ago as the 13th March 1962 and the 4th respondent as along ago as the 25th April 1962. This would be the first time the petitioner questioned these promotions-- his earlier petition, O.P. No. 778 of 1963, as we have seen, was confined to seniority in the upper division and had nothing to do with either appointment to, or seniority in, the superintendents’ category. His present writ petition, brought on the 22nd May 1966, must certainly be regarded as very much out of time. That he was fighting the battle of his seniority in the lower categories and that it was necessary for him to O.P.(KAT) No.255 of 2015 -35- establish his seniority in the upper division in order to establish his title to earlier promotion to the superintendents’ category is no more an excuse for the delay than that a person was awaiting the outcome of a suit for a declaration of his title would be an excuse for bringing a suit for possession against his adversary more than twelve years after the latter has dispossessed him. If, on the earlier promotion of respondents 3 and 4 to the superintendents’ category, the petitioner had come to Court assailing that, the Court would, no doubt, have had to be satisfied as to the petitioner’s title to earlier promotion, and, therefore, of his seniority in the upper division. It would have had to find title in his favour before giving him the relief he sought. But, surely, the Court would not deny him relief merely because he had not already established his seniority in the upper division and would not have rejected his petition as premature. It would not have asked him to establish first his seniority in the upper division by appropriate proceedings before coming to Court to assail the earlier promotion of respondents 3 and 4. if a man brings a suit for possession based on title, the Court does not ask him to first establish his title by separate proceedings although it has to find title in his favour before decreeing his suit.” O.P.(KAT) No.255 of 2015 -36- 14. As noticed hereinbefore, without mounting direct challenge against the regularisation of promotion, declaration of probation the seniority list published in the year 1999 and the consequential promotion granted based on such seniority to the respondents, the petitioners sought for only the following relief:- "to issue a writ of mandamus directing the respondents to rearrange the seniority list of Junior Scientific Officers or to publish a new seniority list keeping in view of the ratio of 1:1 as contemplated in proviso to Rule 27(a) as incorporated by way of G.O.(P) 41/90 dated 17.9.1990 from among the promotees and direct recruits" 15. Even if it is taken that the contention of the official respondents with respect to the substantive vacancy in the permanent cadre is the correct position, the fact that subsequently substantive vacancies were created by conversion of temporary posts for the specific purpose mentioned in Ext.P9 and the continuance of the party O.P.(KAT) No.255 of 2015 -37- respondents in such posts cannot be disputed. In that context, it is relevant to refer to note 1 and 2 under Rule 5(c) of Part II KS & SSR. They read thus:- “(1) All permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies. (2) The vacancies on account of leave and deputation with a duration of less than six months shall be treated as vacancies of short duration, provided, such vacancies of short duration, if the vacancies are likely to last long or new vacancies are likely to arise.” 16. There can be no doubt with respect to the position that direct recruitment is permissible only against substantive vacancies in the permanent cadre. But at the same time, if temporary vacancies are created owing to exigency of service, irrespective of the period, they could be filled up by effecting temporary promotion. In such circumstances, the party respondents who were in the service of the department in its lower rank viz., in the category of Technical Assistant which is a feeder category for O.P.(KAT) No.255 of 2015 -38- promotion to the post of JSO, were given promotion pursuant to the creation of temporary vacancies made for filling up by deputation of personnel from the department of Chemical Examiner's laboratory. Those posts could not have been filled up by direct recruitment. The indisputable fact is that as against those vacancies, the party respondents were granted temporary promotion and they continued for years together in such promoted posts. It is reckoning their continuance, their temporary promotions were regularised in the category of JSO. In the said category, their probation was also declared in May 1993. True that in the case of Rajasree, it was declared only subsequently i.e., in 1994. When such incidents which would decide the eligibility for further promotion occurred much prior to the entry of the petitioners in service and based on such promotion they obtained further promotion, after the entry of the petitioners in service the petitioners who silently viewed such O.P.(KAT) No.255 of 2015 -39- promotions cannot be permitted to indirectly challenge such promotions. As noticed hereinbefore, owing to the regularisation of the temporary promotion of party respondents and declaration of probation, they were given place in the seniority list of JSO. The petitioners were not then borne in the service of the department and in fact obtained berth in service only about a decade since then. Whether it is realising the said position or not, the petitioners have not chosen to mount challenge against the regularisation of the temporary promotion of the party respondents, declaration of probation and their inclusion in the 1999 seniority list and also the promotions granted to them based on their position in the said list. In such circumstances, in the light of the decision of the Full Bench in **Raghavan Nair** 's case (supra), the petitioners cannot be permitted to achieve what they could not achieve directly, merely by seeking a prayer for recasting of the inter se O.P.(KAT) No.255 of 2015 -40- seniority in the ratio 1:1. In the contextual situation, it is also apposite to refer to a judgment of the learned Single Judge in **Sreejitha v. Principal and Controlling Officer [2008 (4) KLT 146]** . It was held therein that persons included in a rank list could not challenge any appointment made prior to their inclusion in the rank list. It was further held therein that in such circumstances, such persons would not have any locus standi to challenge the appointments made in the department before their entry in service. We are of the view that said principle can be imported to the case of promotion, as well. As noticed hereinbefore, more than a decade prior to petitioners' entry in service, temporary promotion of the party respondents were regularised with effect from various dates in May 1993 and their probation was declared in the year 1994. As noticed hereinbefore, subsequently, they were included in the seniority list of JSO published in the year 1999. A senior direct recruit of the O.P.(KAT) No.255 of 2015 -41- petitioners viz., Ranjith has unsuccessfully challenged their seniority, to be precise, last among the promoted party respondent viz., R12. In such circumstances, the petitioners who entered in service after a decade since the regularisation of the temporary promotion of the party respondents and their subsequent regular promotion could not successfully challenge the seniority of the party respondents that too, without challenging their regularisation of temporary promotion, declaration of probation, inclusion in seniority list and the subsequent years of promotion. In the decision in **Raghavan Nair** 's case, this Court held that appropriate direction to treat the petitioners as senior to party respondents in any particular category read along with rule 27(a) of Part II, KS & SSR could not be taken as one carrying the prayer to set aside the earlier appointments. In the light of the said decision, we are of the view that O.P.(KAT) No.255 of 2015 -42- prayer as extracted above could not be treated as a prayer to set aside the earlier promotion, regularisation of temporary promotion, declaration of probation and inclusion in seniority list which was published as early as in the year 1999. In the factual matrix obtained in this case, we do not find any error or illegality in the order passed by the Tribunal in T.A.No.4166/2012. In the result, this original petition is dismissed. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **V.G.ARUN JUDGE** scl/spc O.P.(KAT) No.255 of 2015 -43- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **ANNEXURE A1 TRUE COPY OF THE TRANSFER APPLICATION NO.4166/2012 OF W.P.(C) NO.19960/2008** - **ANNEXURE A2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT.** - **ANNEXURE A3 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS 3, 5 TO 10 AND 12 TO 14** - **ANNEXURE A4 TRUE PHOTOCOPY OF THE PETITION FOR DIRECTION ALONG WITH EXT.P11** - **ANNEXURE A5 TRUE COPY OF REJOINDER FILED BY THE PETITIONERS DATED 26/5/2014** - **ANNEXURE A6 TRUE COPY OF THE JUDGMENT IN T.A.NO.4166/2012 DATED 10.12.2014** - **ANNEXURE A7 TRUE COPY OF THE ORDER E1/1927/2014/CEALD(1)DATED 30.04.2015** - **ANNEXURE A8 TRUE COPY OF THE ORDER E1/1927/2014/CEALD(2) DATED 30.4.2015** - RESPONDENT'S EXHIBITS: - **EXHIBIT R12(A) TRUE COPY OF THE NOTIFICATION IN G.O. (P) NO.251/2015/HOME DATED 9.12.2015** - **EXHIBIT R12(B) TRUE COPY OF THE G.O.(RT) NO.143/2016/HOME DATED 13.1.2016** - **EXHIBIT R12(C) TRUE COPY OF THE G.O.(RT) NO.80/2017/HOME DATED 12.1.2017.** O.P.(KAT) No.255 of 2015 -44- **EXHIBIT R12(D) TRUE COPY OF THE ORDER NO.E11960/98/CE DATED 3.2.1999 OF THE CHIEF CHEMICAL EXAMINER ALONG WITH THE APPENDED FINAL SENIORITY LIST JUNIOR SCIENTIFIC OFFICERS AS ON 1.7.1998.** **EXHIBIT R12(E) TRUE COPY OF THE ORDER DATED 24.09.2018 IN T.A.NO.5517/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL**