JUDGMENT

1. Reluctance to follow the principle once clearly settled by a Bench decision of this Court gave rise to this original petition. The impugned orders are Exts. P2 and P3 relating to the Kerala Government Presses Subordinate Service. Exhibit P2 is a letter wherein it is stated that if promotions are effected to Grade-I/Upper Division from different categories, seniority of the promoted personnel should be decided on the basis of date of birth. That is exactly the method condemned by this Court in Exhibit P4 judgment wherein it was specifically held, and that too with reference to the very same department, that “persons from the same cadre when get promotion to the higher posts, must carry-along with them their seniority in the lower cadre. This legal position is beyond controversy”.

2. That was a case where the Division Bench considered the seniority of a person promoted from Category IV and another person promoted from Category VI. There also, the contention was that once promoted from Category IV and Category VI, seniority in the promoted Grade-1 should be decided on the oasis of their respective dates of birth, the older being the senior. Turning down the said contention, this Court held that seniority which they maintained in Grade II should be maintained in Grade I also. In spite of such a legal position settled with respect to the very same department by the judgment, dated 14 February, 1995, one wonders how the Department can make a somersault and again come up with a letter in the nature of Exhibit P2. And that takes us to the facts of the case.

3. The first petitioner entered service as Monotype Caster Operator Grade II on 7 April, 1971, the second petitioner as Linotype Operator Grade H on 26 April, 1973. The third petitioner in the same category on 26 July, 1973, the third respondent as Mono Super Caster Operator Grade on 7 September, 1973 and the fourth respondent as Foundry Worker Grade II on 30 August, 1974. The case of the fourth petitioner need not be considered in this case since he is admittedly a late entrant in service.

4. Thus, admittedly petitioners 1 to 3 are earlier entrants in Grade II than respondents 3 and 4. All of them were promoted to Grade I on 26 May, 1982. It is true that respondents 3 and 4 were placed under Senior Grade earlier than petitioners 1 to 3 since such placement was available to them in their respective category. However, that is immaterial as far as further promotion to the post of Assistant Foreman is concerned, since the feeder category to the said promotion post is only Grade I. Admittedly, all of them come under the feeder category to the post of Assistant Foreman (Machine Composing). But when promotions were effected as per Exhibit P3, the second respondent promoted respondents 3 and 4 in preference to the first petitioner and petitioners 2 and 3 were left out and that took the petitioners to this Court in the original petition.

5. In the counter-affidavit Exhibit P3 promotion is justified based on Exhibit P2 letter issued by the first respondent and addressed to the second respondent. It is stated therein that there is no special ratio fixed for the purpose of promotion from different Grade-I/Upper Division posts to the post of Assistant Foreman (Machine Composing) since the Senior Grade is not included in the feeder category. However, in the said letter, dated 9 March, 1998, it is stated that when promotion is effected to Grade I, seniority among the promotees should be determined on the basis of their date of birth.

6. With reference to the very same Department of Printing, the issue came up for consideration before this Court and the principle has been settled ultimately in Exhibit P4 Bench decision of this Court in W.A No. 1233 of 1994. As already observed, that was a case, relating to determination of seniority of two persons promoted from Category IV and Category VI. There also the contention was that the seniority of personnel when coming to Grade I should be decided on the basis of the date of birth and that their entry to Grade II was irrelevant. Repelling that contention, this Court, as stated above, settled the principle that when promotion to die higher posts is effected, the promotees should carry along with them their seniority in the lower cadre. Referring to the facts in that case, the Court at Para. 6 of the judgment held as follows:

“6. Petitioner came into the category of Linotype Operator Grade II on 3 January, 1972. The third respondent became Mono Key Board Operator Grade II on 15 March, 1972. So in the above cadres petitioner got longer service because his service started on 3 January, 1972. The third respondent entered that cadre only on 15 March, 1972. In this view of the matter, petitioner must be senior to the third respondent in the above posts. When they came to the higher post of Mono Key Board Operator Grade I and Linotype Operator Grade I they must carry with them the respective seniority positions. That seniority position cannot be inter-changed”.

7. On the teeth of such a well-settled principle, according to me, respondents 1 and 2 should not have dared to issue either Exhibit P2 letter or make Exhibit P3 promotion. To use the minimum expression, it is contempt of Court per se, particularly since the principle was settled in respect of the very same department.

8. The attempt of the learned Government Pleader is to justify Exhibit P2 on the basis of the provision contained in Cl. (a) of the proviso to S. 21(a) of the Kerala State and Subordinate Services Rules, 1958. The relevant portion of rule 21(a) reads as follows:

“27. 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 sub-rule, ‘appointment’ shall not include appointment under rule 9 or appointment by promotion under rule 3.

This amendment shall be deemed to have come into force with effect on and from the 17 December, 1958, but shall not affect the seniority of any member of a service settled prior to the date of publication of this amendment in the Gazette.

Provided that the seniority of persons on mutual or inter-unit or inter-departmental transfer from one unit to another within the same department or from one department to another, as the case may be, on requests from such persons shall be determined with reference to the dates of their joining duty in the new unit or department. In the case of more than one person joining duty in the same grade in the same unit or department on the same date, seniority shall be determined

(a) If the persons who join duty belong to different units or different departments, with reference to their age, the older being considered as senior; and

(b) if the persons who join duty belong to the same category of post in the same department, in accordance with their seniority in the unit or department from which they were transferred.”

For one thing, H has to be ascertained whether the promotion effected to Grade I on 26 May, 1982 was under rule 31 of the Rules in which case such appointments we excluded. That apart, there is no case for the respondents in the counter-affidavit that petitioners 1 to 3 and respondents 3 and 4 belong to different units or different departments. There is only one service and that is Kerala Government Presses Subordinate Service. True, there are 12 branchey but that classification into branches is based on the nature of the duty. As far as employees belonging to the said Service are concerned, it is Cub) of the proviso that should be applied. The first respondent has understood the service with respect to the category. This is evident from the stand taken in the counter-affidavit at Para. 10 wherein it is stated thus:

“The Grade I categories are therefore, treated as feeder categories for promotion to the post of Assistant Foreman (Mechanical Composing).”

So the category as far this particular service is concerned, as rightly understood by the first respondent, is the category of Grade I and the Category of Grade II. Admittedly, petitioners 1 to 3 and respondents 3 and 4 belonged to Category II. It would be highly inequitable if on promotion to category I they are not able to carry the inter se seniority with them.

9. As held by the Supreme Court in Nirmal Kumar Choudhary v. State of Bihar [1988 (2) L.L.N 349], m the absence of rules the more enquitabe way of preparing the combined gradation list would be to take the total length of service in the common grade as the basis for determining inter se seniority. The dictum laid down in Union of India v. Ansusekhar Guin [1989 (1) L.L.N 277], is also apposite for the resolution of the issue in question wherein it is held that counting continuous length of service for fixation of seniority is a well accepted rule when the service rule does not prescribe a mode of fixing inter se seniority.

10. Justifying Exhibit P2, letter, reliance is placed at Para. 12 of the counter-affidavit, on a Government, letter, dated 18 February, 2000. It does not stand to reason how a letter issued on 9 March, 1998 is sought to be defended by a letter issued on 18 February, 2000. At any rate, the said letter is not produced for perusal before this Court. Hence it is not possible to understand the logic behind that letter and how the first respondent circumvented the dictum laid down by this Court in Exhibit P4 judgment.

11. In the above circumstances, I have no hesitation to quash Exts. P2 and P3 and I do so, it is declared that petitioners 1 to 3 are entitled for promotion to the post of Assistant Foreman (Machine Composing) in preference to respondents 3 and 4, since admittedly they were earlier entrants in Grade II in their respective categories. Promotions as declared above as far as petitioners 1 to 3 are concerned, should be effected within two weeks from the date of production of a copy of the judgment by the petitioners. It is also made clear that petitioners 2 and 3 will also be entitled to all the consequential benefits of their promotion with retrospective effect, from the date of Exhibit P3. Such additional burden should be realised from the officers responsible for violating Exhibit P4 judgment of this Court.

12. This is a fit case where respondents 1 and 2 should be mulcted with costs since in spite of the principle having been laid down by this Court, the first respondent had the audacity to state in Para. 20 of the counter-affidavit thus:

“20. It is respectfully submitted that on 14 January, 1995 this Hon'ble Court in Writ Appeal No. 1233 of 1994 directed to review the seniority of Sri Francis Joseph vis-a-vis F. Albert. The Court direction was complied with as far as that particular case is concerned. However, this benefit has not been extended to any other cases. The Government have thereafter clarified that in such cases the seniority be determined with reference to the date of birth as per the existing statutory provisions contained in the Kerala State and Subordinate Services Rules, 1958.”

As held by this Court in Somukuttan Nair v. State Of Kerala [1997 (1) K.L.T 601]:

“when the Courts declared the law, the Government is bound to implement the same uniformly to all the officers concerned. To say that only persons who approached the Court would be given the benefits of the declaration of law is really discriminatory and arbitrary. It is also not conducive to the administrative efficiency to drive all the officers to Courts for redressal of their grievances when the law was already declared by the Courts.”

13. I direct respondents 1 and 2 to pay costs at the rate of Rs. 1000 each to petitioners 1 to 3. I further direct the Chief Secretary to conduct an enquiry as to who was responsible for issuing Exhibit P2 letter when the law is declared by this Court in Exhibit P4 judgment, which position has become final also. The costs and also the amounts mentioned at Para. 11 above should be realised from the persons found responsible for ignoring the judgment of this Court.

The original petition is allowed as above.