The Kerala Khadi and Village Industries Board vs C. Subramania Pillai

Ashok Bhushan, Actg. C.J.

Heard learned counsel for the appellant.

This appeal has been filed by the 1st respondent in W.P.C. No. 15689/2005 challenging the judgment dated 10/12/2009, by which the learned Single Judge allowed the writ petition filed by the 1st respondent herein directing for revising the seniority list, Ext. P4.

The brief facts that arise for consideration in this appeal are as follows: The 1st respondent who shall hereinafter be called as the writ petitioner was appointed as Junior Co-operative Inspector on 04/05/1983. While continuing in service, he submitted a resignation letter from the post of Junior Co-operative Inspector and joined in the Co-operative Department. After elapse of three months, he again made a request to rejoin duty as Junior Co-operative Inspector. The Board considered his request and vide its proceedings dated 20/07/1984 permitted the petitioner to join duty in the service of the Board on condition that he will take rank and seniority just below the junior most Junior Cooperative Inspector now in the service of the Board. It is useful to quote the order which was passed on 20/07/1984.

"Sri C. Subramonia Pillai, Junior Co-operative Inspector is permitted to join duty in the service of the board as Junior co-operative Inspector subject to the condition that he will take rank and seniority just below the junior most junior co-operative Inspector now in the service of the Board. The period of his absence from the Board service will be treated as leave on loss of pay for which he should submit leave application. He should join duty within one week from the date of order."

In the meantime, on the advice of the Kerala Public Service Commission dated 11/06/1984, respondents 21 to 25 had joined as Junior Co-operative Inspector. The seniority list was published in the year 1988 showing the writ petitioner junior to respondents 21 to 25. The writ petitioner was shown as junior to respondents 21 to 25 since the writ petitioner rejoined duty in the post on 27/07/1984 whereas respondents 21 to 25 had already joined on 11/06/1984. Challenging the seniority list, an original petition was filed by the writ petitioner which was disposed of by this Court by judgment dated 13/07/2004 in O.P. No. 9435/2003 directing the respondent to consider the representation of the writ petitioner.

Subsequently, after the judgment of this Court dated 13/07/2004, an order was passed by the Board on 13/04/2005 rejecting the prayer of the writ petitioner to fix his seniority in the Board service from the date of his first appointment. Challenging the said order, W.P.C. No. 15689/2005 was filed and the same was allowed by judgment dated 10/12/2009.

In the Counter affidavit, the learned counsel for the respondent contended that the writ petitioner was permitted to rejoin duty vide proceedings dated 28/07/1984 subject to condition that he shall be the junior most among the Junior Co-operative Inspector working at the relevant time. It is also contended that the petitioner could not have claimed seniority since his very rejoining was subject to the said condition. It is further contended that seniority list was published in the year 1988 and the petitioner, for the first time, raised his contention for seniority after 17 years which fact was noticed in the order dated 13/04/2005 while rejecting the claim of the petitioner.

We have considered the submission of the learned counsel for the appellant. There is no representation for the 1st respondent, that is the writ petitioner. There is no dispute that the writ petitioner after joining duty as Junior Co-operative Inspector in the Board had resigned and relieved on 05/04/1984 for taking up employment in the Cooperative Department as Junior Auditor and drawn pay and allowance. After the lapse of three months, he submitted a request for rejoining service in the Board which was allowed subject to condition that he will be treated as the junior most. The said contention was noted in the proceedings as quoted above.

The order dated 13/04/2005 rejecting the claim of seniority of the petitioner specifically noticed the fact that the claim of the writ petitioner to fix his seniority is too belated that is about 17 years from the date of his rejoining. It is relevant to quote the observations in the order dated 13/04/2005 which were to the following effect.

"On perusal of the hearing note submitted by the affected parties, all are averred that the petitioner ad suppressed the material facts before the Hon''ble High Court and the claim of the petitioner is too belated i.e., about 17 years from the date of cause of action. They have produced documentary evidence as to petitioner''s employment during the period of absence since his resignation. On verification of the evidence it is found that during the period absence from Board service he had employed in the Cooperative department as a Junior Auditor and drawn pay and allowance."

It is not in dispute that the writ petitioner had made the claim of seniority after the elapse of about 17 years. It is also not in dispute that he had rejoined duty in the service of the Board on condition that he shall not claim seniority over the persons who had already been appointed. Respondents 21 to 25 had already joined on 11/06/1984 that is much before the rejoining of the writ petitioner. In the facts and circumstances of the case, we are of the view that the writ petitioner''s claim for seniority was not entitled to be accepted and by order dated 13/04/2005 the Board has shown substantial justice to him and no interference of this Court is warranted.

In view of the aforesaid, we need not enter into the issue of relevant rule relegating the determination of seniority of the Junior Co-operative Inspector. Since, for the reasons as indicated, we are of the view that the writ petitioner''s claim was liable to be rejected.

In the result, this writ appeal is allowed. Judgment of the learned Single Judge dated 10/12/2009 in W.P.C. No. 15689/2005 is set aside and the writ petition is dismissed.