Claim For Promotion In Former Service To Be Raised At The Time Of Integration; Cannot Be Sought Later: Kerala High Court

The Kerala High Court has laid down that an employee cannot claim promotion in his/her former service, long after the integration of service and preparation of seniority list, for the purpose of reckoning seniority in the integrated service.

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen reasoned that any claim for promotion in the former service ought to be raised at the time of integration. 

"If the process of integration did not provide any room for raising such a claim, the employee cannot sleep over the right to claim and thereafter wake up from the sleep to raise such claim indirectly through another door of his former service. Whatever the claim the employee had at the time of integration ought to have been raised when he entered into the new integrated service. Baggage left in the former service cannot be retrieved through a backdoor entry to open a new door in integrated service. If the claim is not made at the time of integration in relation to any right available in the former service, that right is forgone and foreclosed," the Bench observed. 

The petitioners herein had entered into the service of the Kerala Municipal Common Service (Engineering and Town Planning Service) as Third Grade Overseers through direct recruitment during 2001-2003. The respondents also entered the service as third grade overseer in Public Department during 1991-93 except one of them, who got a compassionate appointment in the year 2000.

While the parties were continuing in their respective departments, the Government formed a new Department called the Local Self Government Department in 2003, and a new service called Kerala Local Self Government Engineering Subordinate Services. Special Rules were framed in the year 2007 for the new service, providing for integration of members working in the category of Overseer Grade and similar categories in the Kerala Municipal Common Service (Engineering and Town Planning Service) into the aforementioned Services. 

It was stipulated in the Special Rules that the seniority of persons absorbed into the Kerala Local Self Government Engineering Subordinate Service shall be determined on the basis of date of the appointment and seniority in the respective category in the former service; and if he is a direct recruit, based on the advice of the Public Service Commission for appointment to that category.

The petitioners herein were juniors in the Seniority list. 

When some of the employees in the Municipal Common Service raised a claim for promotion as Second Grade Overseer on the basis of their seniority in their parent department, their claim was considered and they were notionally promoting Third Grade Overseer as Second Grade Overseer.

When the above action was challenged before the Tribunal on the twin grounds of the parties being barred from claiming promotion in their former service after publication of the seniority list based on the integration process, and the non-availability of the post in former service to be promoted as Second Grade Overseer, the Tribunal sustained the same. It is on being aggrieved by the same that the petitioners approached the Court with the present plea. 

The Court at the outset determined that integration is a policy of the Government, and that any right or claim of a person in a different service would have to be settled at the time of integration. 

The Court noted that since the petitioners had not raised any question on the seniority lists 2009 and 2011 of Third Grade Overseer at the time of integration, they could not raise any claim in the former service to have an impact in the integrated service. 

The plea was thus dismissed. 

Counsel for the Petitioners in OP(KAT) NO. 56 OF 2017: Senior Advocate K.P. Satheeshan, and Advocates P. Mohandas, K. Sudhinkumar and S. Vibheeshanan

Counsel for the Respondents in OP(KAT) NO. 56 OF 2017: Government Pleader Saigy Jacob Palatty, and Advocates Arun Samuel, N. Krishna Prasad, Deepu Lal Mohan, P. Satheeshan, Kaleeswaram Raj, Dona Augustine, Shibu B.S., Biju P. Paul, Thulasi K. Raj, Babu Cherukara, and Imam Grigorios Karat

Counsel for the Petitioners in OP(KAT) NO. 71 OF 2017: Advocates Deepu Thankan, Nimmy Johnson, and C.P. Priyamol

Counsel for the Respondents in OP(KAT) NO. 71 OF 2017: Government Pleader Saigy Jacob Palatty, Senior Advocate S. Ramesh Babu, and Advocates Deepu Lal Mohan, R.V. Sreejith, Kaleeswaram Raj, N. Krishna Prasad, Thulasi K. Raj, and S. Sujin

Citation: 2023 LiveLaw (Ker) 601

Case Title: D. Ieda Bhai & Ors. v. K. Ashokan & Ors. and connected matter

Case Number: OP(KAT) NO. 56 OF 2017 and OP(KAT) NO. 71 OF 2017

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