T.R. Sheela v. The Secretary, Health and Family Welfare Department

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 15TH DAY OF JULY 2014/24TH ASHADHA, 1936** ## **WA.No. 5 of 2011 ( )** **--------------------------------(AGAINST THE JUDGMENT IN WP(C).NO. 35510/2010 DATED 29-11-2010)** **---------------------** ## **APPELLANT/PETITIONER:** **------------------------------------------** **T.R.SHEELA, JUNIOR PUBLIC HEALTH NURSE GRADE -I, PRIMARY HEALTH CENTRE, VENKITANGU, PADOOR P.O., THRISSUR DISTRICT.** **BY ADV. SRI.A.K.ALEX** ## **RESPONDENT/RESPONDENT :** **---------------------------------------------** **THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.PIN-695 001** **BY GOVERNMENT PLEADER SRI. VIJU THOMAS** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** Ashok Bhushan & A.M. Shaffique, JJ. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-= W.A. No. 5 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= Dated this, the 11[th] day of July, 2014. ## J U D G M E N T ## Ashok Bhushan, J. Heard learned counsel for the appellant. 2. This writ appeal has been filed against the judgment of the learned Single dated 29[th] November, 2010, dismissing the writ petition filed by the petitioner. Necessary facts which lead to filing of the writ petition are as follows: The petitioner has entered as Junior Public Health Nurse Grade I on 18[th] July, 1986. She filed the writ petition seeking regularization of her provisional service and service benefits. A direction was issued to consider her representation. The petitioner was regularized in service by order dated 22[nd] July, 2008. In the said order, the date for commencement of regular service mentioned was 28[th] April, 1993 and the period for provisional service was also mentioned beginning from 18[th] July, 1986. In paragraph 5 of the order, it was also mentioned that the provisional service shall not be reckoned except for the period from 8[th] March, 1988 to 19[th] April, 1988 and the period from 1[st] March, 1992 will be reckoned for sanctioning increment and consequential service benefits. Ext. P3 seniority list was published in which the petitioner's date of appointment W.A. No. 5 of 2011 -: 2 :- was mentioned as 28[th] April, 1993. The petitioner filed the writ petition challenging the seniority list and contended that petitioner's appointment should be with effect from 18[th] July, 1986 and not 28[th] April, 1993. 3. The learned Single Judge dismissed the writ petition on two grounds. Firstly, it was observed that the petitioner is guilty of unexplained delay and laches since the seniority list was published on 15[th] May, 2007 and she filed the writ petition only on 26[th] November, 2010, without there being no cogent explanation. It was further observed that seniority has to be counted from the date of regular appointment and not from the date of provisional appointment. With the above said observations, the writ petition was dismissed. 4. Counsel for the appellant challenged the judgment of the learned Single Judge contending that when the order dated 22[nd] July, 2008 regularising her service itself mentioned that the petitioner was entitled to reckon the period from 8[th] March, 1988 and the period from 1[st] March, 1992 for sanctioning increment and consequential service benefits, she was clearly entitled to seniority at least with effect from the said period. He submits that seniority is also a service benefit and hence, the appellant should not have been denied the benefit of seniority. He has placed reliance on the judgment of this Court in **Sreekala v. State of** -: 3 :- W.A. No. 5 of 2011 **Kerala,** 2007(1) KLT 903, especially paragraph 9. 5. We have considered the submissions of the learned counsel for the appellant and perused the records. 6. We have heard the appeal on merits. We confine our consideration to the merits of the case ignoring the observation of the learned Single Judge that the writ petition was barred by laches. 7. For determining the seniority, statutory rules have been framed in exercise of power under the proviso to Section 309 of the Constitution of India, namely, Kerala State and Subordinate Service Rules, 1958. Rule 27 refers to determination of seniority. Rule 27(a) with explanation, which is relevant for the present case, is extracted below: “ **Seniority:** - (a) Seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such service, class, category or grade. **Explanation:** - For the purposes of this subrule, “appointment” shall not include appointment under rule 9 or appointment by promotion under rule 31.” The explanation to Rule 27 clearly contemplated that for the purpose of sub-rule (a), appointment shall not include appointment under Rule 9 or appointment by W.A. No. 5 of 2011 -: 4 :- promotion under Rule 31. Rule 9 refers to temporary appointment. Sub-rule (a)(i) of Rule 9 provides as follows: “ **9. Temporary appointments** :- (a)(i) Where it is necessary in the public interest, owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may appoint a person, otherwise than in accordance with the said rules, temporarily: **==> picture [162 x 10] intentionally omitted <==** The statutory scheme as contained in 1958 Rules clearly delineate that seniority is to be reckoned from the date of the first appointment and the word “appointment” does not include temporary appointment, which is referred to under Rule 9. The order dated 22[nd] July, 2008 clearly indicated that the earlier service of the petitioner was only as provisional service and commencement of regular service is clearly mentioned in column 4 as with effect from 28[th] April, 1993. The provisional service of the petitioner cannot be put to any higher status than temporary service as contemplated under Rule 9. Much emphasis has been placed by the learned counsel for the appellant on paragraph 5 of the order. It is useful to extract W.A. No. 5 of 2011 -: 5 :- paragraph 5 of the order, which is to the following effect: “In the circumstances, Government Order that the provisional service of Smt. T.R. Sheela as detailed in the Table under para 2 of this Order except for the period from 8/3/1988 to 19/4/1998 and the period from 1/3/1992 will be reckoned for sanctioning increment and consequential service benefits, which has not already considered for increment.” The submission of counsel for the appellant is that when services are reckoned for increment and consequential service benefits for the period from 8[th] March, 1988 to 19[th] April, 1988 and from 1[st] March, 1992, why the said service be not reckoned for seniority. He submits that seniority is also a service benefit which ought not to have been denied to him. There cannot be any denial to the proposition that seniority is also a service benefit. But, when there are statutory rules for reckoning the seniority of an incumbent, determination of seniority has to be in accordance with the statutory scheme. Reckoning of the seniority has to be from the first date of appointment which clearly excluded the temporary appointment. The question is whether the appointment as contemplated under Rule 27 is regular appointment. Certain period which has been found W.A. No. 5 of 2011 -: 6 :- eligible for increments and consequential service benefits are for the purpose of increment and other service benefits to which the petitioner may be entitled. For example, the said period may be eligible for reckoning pensionary benefits. But the mere fact that the said period has been reckoned for increment and some consequential service benefit, that does not ipso facto lead to conclude that the said service is also eligible for reckoning seniority. When the statutory Rules are clear and regulates the field for reckoning the service, any executive order issued by the Government has to be subservient to the statutory rules. The order issued by the Government dated 22[nd] July, 2008 cannot be put on any higher pedestal than the statutory rules. However, it cannot be read giving a go-by to the statutory rule as disclosed in Rule 27 of 1958 Rules. We do not find any error in reckoning the seniority of the appellant with effect from 28[th] April, 1993. The judgment of the learned Single Judge does not need any interference in exercise of our appellate power. 8. Judgment of the learned Single Judge in **Sreekala's case** (supra) relied on by learned counsel for the appellant also needs to be considered. Learned counsel for the appellant has placed reliance on paragraph 9 of the judgment, where it was laid down as -: 7 :- W.A. No. 5 of 2011 ## follows: “9. I am unable to agree with the above contention. Seniority is an incidence of service as also a condition of service. Seniority as understood in service jurisprudence draws its life from an appointment to a service and grows along with the service. It has no existence de hors service. Ordinarily, the right to earn seniority commences with the commencement of the service of the incumbent and that right runs along with the service. True, there are exceptions to the above general principle. ........” 9. In the above case, the petitioner, who was appointed as Staff Nurse, took leave without allowance for five years before completion of her probation. Her request for extension of leave was allowed for another five years. She sought permission to rejoin after cancelling the unavailed portion of the leave. Permission was granted. The petitioner could not complete the period of probation prior to her proceeding on leave. After rejoining, she was again on probation for two years. Thereafter, she became approved probationer. In the seniority list, her name was not shown with effect from the date when she first joined. She requested to include her name in the seniority list taking into consideration the date of her first effective advice by the Commission. Request was rejected, which was challenged. The Writ Petition was dismissed by the learned Single Judge. The contention W.A. No. 5 of 2011 -: 8 :- of the petitioner that her seniority was kept intact was rejected. It was held by the learned Single Judge that service rendered with all the benefits accrued prior to the enjoyment of leave without allowance will stand severed. We find that the above judgment, in no manner, will help the appellant in the facts of the present case and it is clearly distinguishable. Accordingly, the writ appeal is dismissed. Sd/- Ashok Bhushan, Judge. Sd/- A.M. Shaffique, Judge. Tds/ (True copy) P.S to Judge.