Any Claim For Promotion In Former Service To Be Raised At The Time Of Integration Of Service: Kerala High Court

The Kerala High Court has laid down that employees cannot claim promotion in his former service for the purpose of reckoning seniority long after the integration of service. 

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen were of the considered view that any claim regarding promotion in the former service ought to be raised at the time of integration of service, and cannot be done after the same.

"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 had entered into the service of the Kerala Municipal Common Service (Engineering and Town Planning Service) as Third Grade Overseers through direct recruitment between 2001-2003. The respondents also entered into service as third grade overseer in Public Department during 1991-93 except the 5th respondent who got a compassionate appointment in 2000. 

Subsequently, the Government formed a new Department called the Local Self Government Department in the year 2003, alongwith a new service namely, Kerala Local Self Government Engineering Subordinate Services, with Special Rules being framed thereunder.

The Special Rules provide 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 Kerala Local Self Government Engineering Subordinate Services. It is also specifically stipulated therein that 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 in case of direct recruit, based on the advice of the Public Service Commission for appointment to that category. The petitioners were thus juniors in the seniority list prepared as stipulated above. 

Pursuant to a claim being raised by some of the employees of the Municipal Common Service for promotion as Second Grade Overseer on the basis of their seniority in their parent department, the Director of Urban Affairs passed an order notionally promoting Third Grade Overseer as Second Grade Overseer in the Municipal Common Service.

When the said action was challenged on the twin grounds of firstly, that no claim for promotion could be raised in the former service by the parties pursuant to the publication of the Seniority list based on the integration process, and secondly, that no post in former service was available for the petitioners to be promoted as Second Grade Overseers, the Tribunal sustained the challenge. 

It is against the same that the present pleas have been filed. 

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

Holding that any claim for promotion in former service would have to be raised at the time of integration, the Court observed, 

"The Seniority list prepared in integrated service will have to be followed for determining inter se seniority. Without questioning the seniority list prepared in integrated service, an employee cannot indirectly overturn the seniority list by claiming promotion in the former service". 

In the present case, the Court took note that the petitioners had never raised any question on the seniority lists 2009 and 2011 of Third Grade Overseer. 

"Once the petitioners entered into integrated service and if no claim is made at the time of integration, they cannot raise any claim in the former service to have an impact in the integrated service," it added.

The petitions were accordingly dismissed. 

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

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

Counsel for the Petitioners in O.P. (KAT) No. 71 of 2017: Advocates Deepu Thankan, Nimmy Johnson, and C.P. Priyamol

Counsel for the Respondents in O.P. (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 Numbers: O.P.(KAT) Nos.56 and 71 of 2017

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