Issue involved in both these cases are identical. Hence they are disposed of through this common judgment. Reference to exhibits contained hereunder are in the order in which they are produced in W.P (c) No.7332/2010.
2. Challenge is against the changes brought into the seniority list of Drivers working in the 1st respondent corporation. The petitioners were recruited to the post of Drivers based on selection conducted by the Kerala Public Service Commission (PSC) by including their name in the Rank List prepared on 11-05-2000. PSC made advice of the candidates on the basis of their ranking position in the list and the respondent corporation had appointed them based on such advices received. Now the seniority position of petitioners were altered, after the lapse of about 8 years, against which the petitioners and other similarly situated persons have represented before the corporation. In various judgments rendered by this court directions were issued to the corporation to consider those representations and to take an appropriate decision. Exhibits P7 & P8 in W.P (c) No.7332/2010 and Ext.P4 in W.P (c) No.25248/2013 are decisions taken by the respondent corporation based on the directions issued by this court. Respondent corporation took the stand that, PSC had advised 6637 candidates for appointment, considering the acute shortage of Drivers in the KSRTC, during the year 2000. Those advices were made on a provisional basis from the unfinalised list of Drivers by making it clear that appointment if any made based on such advise would be provisional and the seniority will be subjected to changes as per the reservation norms. Subsequently PSC had forwarded the final list of seniority based on the norms of reservation and rotation; and forwarded the final advise list in the year 2006. The seniority position of the petitioners were revised based on the final advise, taking the same as the effective advise. Hence it is found that there is no merit in the objections raised against revision of the seniority. It is challenging the revision of seniority effected after a long lapse of time and challenging rejection of the request for reconsideration of such decision, these writ petitions are filed.
3. The petitioners mainly rely on Rule 27 (c) of Part II KS & SSR which prescribes that the seniority of a person appointed to a particular class, category or grade in a service based on the advise of PSC shall be determined by the date of the first effective advise made for his appointment to such class, category or grade. They also relies on definition of the term, “appointed to a service” contained in Rule 2 of Part I KS & SSR. It provides that, a person is said to be appointed to a service when he discharges for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof. Since the petitioners were permitted to join duty as Drivers based on the advise made by PSC during the year 2000, they should be deemed to have appointed to the service as on the date of such advise and the seniority has to be reckoned with effect from such date, is the contention. The petitioners are also challenging the change in seniority effected after a long lapse of time, on the basis that they were allowed to continue in service and to enjoy all benefits including seniority based on their initial advise and the reversion in seniority now sought to be effected by altering the position which was enjoyed by them for quite a long period is absolutely illegal, unreasonable and arbitrary.
4. In this regard it is to be noticed that, in Ext.P3 advise dated 04-07-2000 the PSC had specifically clarified that the serial numbers alloted in the advise list is provisional and it will be finalised later by the PSC. It further indicate that the appointment will be subject to rules and regulations now in force under the KSRTC relating to service conditions. Evidently, PSC had issued the advise only on a provisional basis and thereafter it had finalised the seniority after following Rule 14 to 17 of KS & SSR. Therefore question arises as to which is the date of effective advise as contemplated under Rule 27 (c) of Part II KS & SSR. A provisional advise cannot be treated as an effective advise. But Sri.Kaleeswaram Raj, learned counsel appearing for the petitioners contended that the word, “effective advise” is not defined anywhere in the service Rules and the advise become effective when appointment is made based on such advise. When the candidate is permitted to join duty based on such advise it becomes appointment made on the basis of the advise, is the contention. Reliance was placed on the definition of, “appointed to a service” which is the first time when a person discharges duties borne on a post or cadre. Per contra, counsel appearing for the contesting respondents argued that, both the petitioners as well as the respondents were advised on the same day and therefore seniority under Rule 27 (c) should depend upon ranking position in the matter of advise. The ranking position was not finalised at the time when the provisional advise was made and it was finalised only when the final list of seniority was forwarded by the PSC after following principles of reservation and norms of rotation enumerated under Rule 14 to 17.
5. The petitioners relied on various decisions of the hon'ble Supreme Court as well as this court in order to content that the seniority position continued for a considerable long time cannot be unsettled or altered. In T.C. Sreedharan Pillai and others V. State of Kerala and others (1973 KLT 151) (FB) this court found that, it is not in the interest of 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 had already become settled. In the decision of the hon'ble Supreme Court in B.S. Bajwa and another V. State of Punjab and others (AIR 1999 SC 1510) the position was reiterated stating that, it is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period, because that results in disturbing the settled position which is not justifiable. In a latest decision in Shiba Shankar Mohapatra and others V. State of Orissa and others (2010 KHC 6112), reference was made to various earlier judgments to the effect that the seniority assigned to any employee could not be changed after a lapse of seven years on the ground that his initial appointment had been irregular, though even on merit it was found that seniority of the petitioner therein had been fixed correctly. Many other decisions were also cited to canvass the said position, such as H.S. Vankani and others V. State of Gujarat and others (2010) 4 SCC 301). It is observed therein that, if settled seniority at the instance of one's junior in service in unsettled, it may generate bitterness, resentment, hostility among Government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume a lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and Government, driving the parties to acute penury. It is well known that the salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money making, including corruption.
6. Learned counsel also contended that, if it is assumed (without admitting) that the original advise made during the year 2000 was only provisional subject to finalisation of seniority, it cannot be taken as an estoppal against the contention that by virtue of the appointment based on such advise and by virtue of duty performed by the petitioners which are attached to the post in question, they have legally acquired seniority by operation of the relevant statutes. It is contended that no estoppal can be pleaded against statutory provisions. He had placed reliance on two Division Bench decisions in Aliakutty Paul V. State of Kerala and others (1995 KHC 505) and Malabar Mar Thoma Syrian Christian Evangelistic Association V. Lally Mathew and another (2009 (2) KLT 221).
7. There cannot be any dispute with respect to application of Rule 27 (c) of Part II KS & SSR. It prescribes that seniority of a person appointed to a class, category or grade shall be decided based on the date of first effective advise made for his appointment. In the case at hand the petitioners as well as party respondents were advised on the same date. Normally their seniority has to be fixed in accordance with the order in which their names are advised. Here is a case where PSC had forwarded the advise list making it clear that the order in which the candidates names are arranged is only provisional, subject to finalisation of seniority. Therefore question arises as to whether the date of such advise can be reckoned as effective advise. It is true that the term “effective advise” is not defined anywhere. In this regard reliance is placed on the definition of the term “appointed to a service” contained in Rule 2 of Part I KS & SSR. Under normal circumstances a person can be said to be appointed to a service when he discharges duties for the first time, borne on the post or cadre. But it is to be noted that, the definition qualifies that, a person is said to be appointed to a service in accordance with the Rules or in accordance with the Rules applicable at that time when he discharges the duties. The Rules of appointment contained in the KS & SSR also includes the Rules of reservation and the norms of rotation as envisaged under Rule 14 to 17. Even assuming that the petitioners herein were appointed to service on the date on which they performed duty on the basis of the provisional advise, that will not entitle them to claim seniority based on their ranking in such provisional advise. Therefore the date of provisional advise cannot be treated as effective advise contemplated under Rule 27 (c).
8. The 'sit back theory' contended by the petitioner relying on various decisions also cannot be of no use, because the seniority in this case cannot be treated as remained settled, unless it is finalised based on the final list of seniority forwarded by the PSC. When the PSC itself made clear that the initial advise were issued prescribing the ranking only on a provisional basis, subject to finalisation, any seniority followed by the KSRTC can only be treated as provisional subject to finalisation of the seniority following statutory Rules of reservation and rotation. Hence it cannot be found that there is any unsettlement of seniority settled on the basis of effective advise and alteration of ranking position of the candidates.
9. Under the above mentioned circumstances, this court do not find any illegality or irregularity with respect to the revision of seniority effected based on the finalisation of seniority by the PSC. The impugned decision taken by the KSRTC rejecting the claim of the petitioners for restoration of seniority do not suffers from any illegality, irregularity or impropriety. Consequently the writ petitions deserve no merit and the same are accordingly dismissed.
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C.K. ABDUL REHIM JUDGE Pn/AMG True copy P.A. to Judge