High Court Kerala High Court

Nazarudeen.A vs The State Of Kerala on 9 December, 2010

Kerala High Court
Nazarudeen.A vs The State Of Kerala on 9 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 4643 of 2010(E)


1. NAZARUDEEN.A, HEAD ACCOUNTANT,
                      ...  Petitioner
2. JAYACHANDRAN.V. U.D.CLERK,(HIGHER GRADE)
3. SAJEEV.H. U.D.CLERK (HIGHER GRADE)
4. BABU.K., U.D.CLERK (HIGHER GRADE),
5. AJAYAKUMAR.B.,

                        Vs



1. THE STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. THE DIRECTOR OF TECHNICAL EDUCATION,

3. S.AJI, L.D.CLERK,(HIGHER GRADE)

4. S.S.SUJA, U.D.CLERK (HIGHER GRADE),

5. C.R.VIJAYAKUMAR, L.D.CLERK,

                For Petitioner  :SRI.N.SUGATHAN

                For Respondent  :SRI.K.JAJU BABU

The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :09/12/2010

 O R D E R
                      T.R. Ramachandran Nair, J.
                   - - - - - - - - - - - - - - - - - - - - - - - -
             W.P.(C) Nos.4643/2010-E & 10475/2010-H
                   - - - - -- - - - - - - - - - - - - - - - - - - - -
             Dated this the 9th day of December, 2010.

                                 JUDGMENT

In both the writ petitions the inter-se seniority of Lower Division

Clerks in Technical Education Department which was reviewed as per

Ext.P29 produced in W.P.(C) No.4643/2010, is under challenge in these

writ petitions.

2. In W.P.(C) No.4643/2010, the petitioners, five in numbers, claim

that they are having long settled seniority in the post of L.D.C./U.D.C.

which was never challenged by any process known to law by anybody. The

service particulars of the petitioners are detailed in paragraphs 1 to 6, which

are as follows:

First petitioner: He was advised by the Public Service Commission

on 8.8.1990 for appointment as L.D. Clerk, was appointed on 24.8.1990 as

per Ext.P1 and joined service on 6.9.1990. His probation was declared on

6.9.1992. His initial appointment was in Engineering College, Kannur,

from where he was transferred on 6.8.1991 to Women’s Polytechnic,

Kozhikode. Later, by order dated 7.10.1996 he was transferred and posted

to the Directorate of Technical Education as per Ext.P1(a). He was

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of 2010 2

promoted as U.D. Clerk with effect from 3.12.1995 along with certain

others, as per Ext.P1(b). This date was subsequently revised as 28.11.1995.

By Ext.P1(c) order dated 5.12.2007, 15 U.D. Clerks were promoted as

Head Clerks and the first petitioner is serial No.9 therein.

Second petitioner: He was advised by letter dated 1.12.1990 and by

Ext.P2 order dated 15.12.1990 he was posted at Technical High School,

Manjeri. He joined service on 24.12.1990. He was transferred by order

dated 27.12.1995 to the Directorate of Technical Education on his request,

by Ext.P2(a). By Ext.P2(b) dated 20.8.1999 he was promoted as U.D.

Clerk with effect from 18.12.1996 and on completion of 8 years service in

the post of U.D. Clerk, he was granted higher grade with effect from

18.12.2004.

Third petitioner: He was advised by letter dated 1.12.1990 and was

appointed as per Ext.P2 order dated 15.12.1990 and was posted at

Technical High School, Nannamukku. He joined service on 1.1.1991, was

transferred as per Ext.P3 order dated 11.11.1994 to the Directorate of

Technical Education. He was promoted as U.D. Clerk with effect from

18.12.1996 as per order dated 29.12.1998 with effect from 18.12.1996. He

was granted higher grade with effect from 21.12.2004.

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of 2010 3

Fourth petitioner: He was advised by letter dated 18.1.1991 and was

appointed at Technical High School, Krishnapuram by Ext.P4 order dated

26.2.1991. He joined service on 13.3.1991, was transferred by order dated

23.5.1996 and posted at Government Polytechnic, Neyyattinkara and joined

there on 25.5.1996. He was promoted as U.D. Clerk by Ext.P1(b) order

dated 29.12.1998, with effect from 1.4.1997. On completion of 8 years of

service as U.D. Clerk, he was granted higher grade with effect from

2.1.2005.

Fifth petitioner: He was advised by letter dated 27.10.1993; was

appointed at Technical High School, Nannamukku as per Ext.P5 order

dated 19.11.1993. He joined service on 4.12.1993, was transferred as per

order dated 2.1.1999 to the Directorate of Technical Education as per

Ext.P5(a) order. He joined there on 14.1.1999 and was promoted as

U.D.Clerk as per Ext.P5(b) order dated 7.7.2000, with effect from

10.8.1999.

3. The petitioners have produced the seniority lists for different

periods. Ext.P6 dated 10.10.1996 is the circular issued by the second

respondent Director of Technical Education, by which the final seniority list

in respect of L.D.Clerks/U.D. Typists has been published. It is mentioned

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that the list is valid for the arising vacancies of U.D. Clerks from 9.9.1994

to 14.3.1995. Petitioners 1 to 4 are serial Nos.31, 58, 57 and 59 in Ext.P6(a)

final seniority list. By circular dated 18.11.1997 a provisional seniority list

of L.D. Clerks/U.D. Typists who became eligible for promotion as U.D.

Clerks, was published and after considering the objections to the

provisional list, by Ext.P7 circular dated 3.1.1998 a final seniority list was

published. It is stated therein that the list is valid for the arising vacancies

of U.D. Clerks from 27.3.1996 to 29.12.1996. Petitioners 1 to 4 are serial

Nos. 17, 46, 45 and 49 respectively in Ext.P7(a) list. Another provisional

seniority list was published on 20.8.1998 which was finalised as per Ext.P8

circular dated 14.10.1998 after inviting objections. Ext.P8(a) is the

relevant extract of the seniority list which shows that petitioners 2, 3 and 4

are serial Nos.30, 29 and 33 therein. By Ext.P9 letter dated 5.5.2000 a

provisional gradation list of U.D. Clerks for the period from 1.4.1988 to

31.3.1999 was circulated by the second respondent and Ext.P9(a) is the

relevant extract of final seniority list. It shows that petitioners 1 to 4 are

serial Nos. 196, 230, 229 and 233 and the fourth respondent is serial No.263

therein. The third respondent is not included in the said list. It is averred in

the writ petition that members of the staff were directed to file appeal, if

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of 2010 5

any, against the list on or before 7.6.2000. Ext.P10 shows that the second

respondent finalised the provisional list and published the final list.

Ext.P10(a) is the extract of the final seniority list of U.D. Clerks for the

period from 1.4.1988 to 31.3.1999. Petitioners 1 to 4 are serial Nos.195,

227, 226 and 230. The fourth respondent is serial No.262 in the said list. It

is pointed out that these seniority lists were never challenged by any

employees either by filing an appeal/representation before the Government

or by filing original petition before this Court. Thus, nobody challenged

the same as provided under Rule 27B of KS & SSR within the period of six

months provided therein. Promotions have been made as U.D. Clerks and

therefore it is contended that the petitioners have settled seniority in the

cadre of L.D. Clerk from 8.8.1990, 1.12.1990, 18.1.1991 and 27.10.1993

respectively. They have got settled seniority in the category of U.D. Clerk

from 28.11.1995, 18.12.1996, 1.4.1997 and 10.8.1999 respectively. The

first petitioner is having settled seniority as Head Clerk from 5.12.2007.

4. The matters remained thus and the seniority lists became final. On

19.8.2005 a few L.D. Clerks were promoted as U.D. Clerks. The second

respondent passed an order dated 19.9.2006 revising the date of promotion

of some of the employees, finding that the claim of employees belonging to

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of 2010 6

SC/ST for temporary exemption from test qualification, has not been

considered. A representation, Ext.P11 was filed against the same on

4.10.2006 by six U.D. Clerks. Therein, it was pointed out that some of the

L.D. Clerks who were promoted earlier, can be assigned seniority only on

the basis of their seniority position after the inter-district transfers. The

petitioners have also filed objections before the Government in the matter

opposing any such move, pointing out that in the department the original

date of advice was taken as the basis for fixing the seniority. Later, the

department published a circular Ext.P12 along with a seniority list with

respect to certain L.D. Clerks/U.D. Typists who became eligible for

promotion as U.D. Clerks in the departmental test conducted during

December 2003, June 2004 and December, 2004. Four persons who were

given inter-district transfer in 2000 and 2005, were assigned seniority only

with effect from the date of their joining duty in the new district.

5. Exts.P13 and P13(a) respectively are the circular dated 26.4.2008

and the relevant extract of the seniority list published along with the same

styled as review seniority list of ministerial staff in the category of L.D.

Clerks/U.D. Typists eligible for promotion/inter-changeability as U.D.

Clerks on or after 19.9.1980, on the basis of District-wise Recruitment

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of 2010 7

Rules. Therein, the petitioners are assigned seniority at two places, viz.

first petitioner at serial Nos.398 and 512, second petitioner at serial Nos.369

and 478, third petitioner at serial Nos.368 and 453, fourth petitioner at serial

Nos.372 and 491 and the fifth petitioner at serial Nos.444 and 567. The

fourth respondent is at serial No.399 in the said list. The petitioners have

filed objections as per Ext.P14.

6. Subsequent developments arose which ultimately led to the

proceedings, Ext.P29. A writ petition filed as W.P.(C) No.20519/2005

by respondents 3 and 4 was disposed of at the admission stage by Ext.P15

judgment directing the first respondent to finalise the seniority list in the

light of the dictum laid down in Sudhakaran v. State of Kerala (2006 (2)

KLT 817 (SC)). This was challenged in W.A. No.1737/2008 by

petitioners 1 and 2 after obtaining leave and the operation of the judgment

was stayed. Ext.P16 is the interim order passed in the said Writ Appeal,

directing the Government to file a counter affidavit stating whether any

objections were raised within the time limit prescribed regarding Ext.P10

(Annexure I therein). Ext.P17 is the statement filed by the Government in

the said appeal. Thereafter, the Writ Appeal was disposed of by Ext.P18

judgment.

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of 2010 8

7. In Ext.P17, the stand taken by the Government was that the

promotions ordered upto 2004 on the basis of State-wise seniority list will

be considered as the settled seniority and the promotions to be made for

subsequent periods in vacancies after 2004 will have to be ordered on the

basis of district-wise seniority and the appellants will not be affected by it.

The direction issued by the Government to the second respondent in that

regard has been produced along with the statement. In the judgment in the

Writ Appeal, this Court directed the matter to be considered in accordance

with law, after considering objections of all the parties. After the disposal

of the Writ Appeal, there were some developments, which according to the

petitioners, have influenced the second respondent in reviewing the

seniority list. It is pointed out that even though a hearing notice was issued

as per Ext.P20, to the parties in the judgment and a hearing was conducted,

no decision was taken. Later, the representatives of the service

organisations were called for a meeting as per Ext.P21 notice and their

suggestions have been incorporated in the minutes as per Ext.P22. Ext.P23

is the suggestions made by the Kerala Non-Gazetted Officers Union to the

Hon’ble Minister for Education, who issued a Note containing various

decisions as per Ext.P24 for action by the authorities concerned. Ext.P25

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of 2010 9

is the letter issued to the second respondent incorporating the decisions in

Ext.P24 note, by the Principal Secretary to the Government and calling for a

report after taking steps. A direction was issued to prepare a fresh seniority

list. To execute these directions, the second respondent constituted a Cell

as per Ext.P26 and details were called for as per Ext.P27. The bio-data of

L.D. Clerks who entered service during the period from 1.4.1988 to

31.3.2009 was published as per Ext.P28. As noticed already, Ext.P29 is the

circular publishing a review seniority list and Ext.P29(a) is the extract of

the said list. It is the extract of the gradation list of L.D. Clerks who

entered service during the period from 1.4.1988 to 31.3.2009. The

petitioners’ seniority has been reassigned, as shown below:

“Name Original date of seniority Revised date of seniority

Nazarudeen. A. 8.8.1990 17.11.1996
(1st petitioner)

Jayachandran.V. 1.12.1990 1.1.1996
(2nd petitioner)

Sajeev.H. 1.12.1990 16.11.1994
(3rd petitioner)

Babu K. 18.1.1991 25.5.1996
(4th petitioner)

Ajayakumar.B. 27.10.1993 14.1.1999”

(5th petitioner)

This will affect the date of their promotion in the post of U.D. Clerk also,

wpc 4643 & 10475
of 2010 10

according to them.

8. Learned counsel for the petitioners in W.P.(C) No.4643/2010, Shri

N. Sugathan contended that the whole action taken by the Government is

only to favour a group of persons. It is submitted that the settled seniority

cannot be unsettled after a long lapse of time. The reviewed list has been

published on the wrong premise that the Government itself had notified the

seniority list upto 31.3.1988, whereas in fact there is no such seniority list

notified by the Government. The second respondent alone has published the

seniority lists earlier. Ext.P30 is relied upon to point out that it is only

printed in the Government press and it is not at all stated therein that the

Government has approved it and it is not one notified by the Government.

It is published by the Directorate of Technical Education itself.

9. It is also pointed out that the transfer and posting of the petitioners

to the Directorate of Technical Education cannot be treated as inter-district

transfers. The State was taken as a single unit all along in the department

and transfers were made accordingly. Many of the candidates advised by

the District Office of the Public Service Commission, Thiruvananthapuram

for appointment as L.D. Clerks in Thiruvananthapuram district, were

initially appointed in the Directorate and were later transferred and posted to

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of 2010 11

Institutions in Thiruvananthapuram District or continued at Directorate

itself. But in the case of the petitioners it was treated as inter-district

transfers. It is pointed out that in the statement filed in W.A.

No.1737/2008, it is clearly stated that in the department, throughout the

transfer and postings were done considering the whole department as a

single unit and the criteria stipulated for inter district transfers were never

implemented. It was assured that the appellants who obtained promotions

prior to 2004, would not be affected by the present exercise. Attention was

invited to Ext.P17(5) order dated 19.9.2008 ( produced as Annexure R3(a)

in W.A. No.1737/2008) which is a direction by the Principal Secretary to

the Government to the second respondent herein, in that regard. It is

pointed out that the relevant pages of the note file produced as Ext.P19,

show that the Law Department and the P& ARD Department were

consulted before issuing the said order and the said departments agreed with

the suggestion of the Higher Education Department that promotions ordered

upto 2004 on the basis of the State-wise seniority list, will have to be

treated as settled seniority and this was upset only at the instance of the

NGO Union who submitted Ext.P23 representation before the Honourable

Minister for Education. Their demands were readily accepted and Ext.P24

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Note was accordingly issued and finally the Government by Ext.P25

directed to take follow up action by the second respondent in terms of those

directions. It is submitted that the Cell constituted by the second respondent

only consisted of persons who were interested to protect their own seniority

and the entire exercise is done only to upset the settled seniority. It is

pointed out that Ext.P11 representation is dated 4.10.2006 which is long

after the seniority lists were published by various proceedings including

Exts.P6 to P10 during the years 1996 to 2000.

10. Shri N. Sugathan, learned counsel for the petitioners also pointed

out that this Court by interim order dated 15.2.2010 had stayed Ext.P29

order, based on which a circular was issued as per Ext.P31 by the Senior

Administrative Officer, to stop all further proceedings till further

instructions are issued. It is pointed out that in spite of the same, the

second respondent prepared bill for payment of arrears of salary of the 7

employees in the Directorate who were promoted as U.D. Clerks by Ext.R3

(a) order. Their arrears of salary were disbursed as evidenced by

Exts.P32( a) and P32(b). It is pointed out that it is only to benefit them,

these hasty steps were taken. It is also contended that the principles

adopted in Sudhakran’s case (2006 (2) KLT 817 (SC)) by the Apex Court

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cannot apply to the facts of this case. More than Rs.30 lakhs were drawn

and disbursed as arrears, to various persons based on Ext.R3(a) order.

11. By order in I.A. No.9319/2010, the petitioners were allowed to

implead the third respondent in a representative capacity and notice has

been taken by publication. The first respondent as well as respondents 3

and 4 have filed separate counter affidavits and the petitioners have filed

reply affidavits also.

12. The first respondent in their counter affidavit maintains that the

gradation lists of ministerial staff for the period upto 31.3.1988 have been

printed and published by Government of Kerala during 1994. Later, only

seniority lists of qualified LD Clerks were prepared, for giving timely

promotion to the posts of U.D. Clerks. In such lists, details, viz. PSC

advice number & date/dist of option/mode of appointment/details of inter-

district transfers, etc. were not incorporated. The District Recruitment

Board Rules were not applied. Even though these seniority lists were not

challenged upto 2006, thereafter several representations were received for

reviewing it based on the District Recruitment Board Rules and accordingly

the provisional lists were issued. The principles stated by the Apex Court in

Sudhakaran’s case (2006 (2) KLT 817 (SC)), are therefore to be applied.

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of 2010 14

Therefore, the seniority of transferred L.D. Clerks (inter-district

transferees) can be counted only from the date of joining in the transferred

station, excluding the previous service. It is pointed out that the promotions

effected being provisional, there is no embargo in reviewing the seniority

list. Contentions based on Sudhakaran’s case (2006 (2) KLT 817 SC))

have been taken by respondents 3 and 4 in their counter affidavit.

13. Shri K. Jaju Babu, learned counsel appearing for respondents 3

and 4 submitted that the legal position declared by the Apex Court in

Sudhakaran’s case (2006 (2) KLT 817 – SC), has been applied by the

department and therefore the contentions raised by the petitioners do not

deserve any merit. The proviso to rule 27(a) of KS & SSR is applicable in

such cases and in other cases only, seniority shall be determined by the date

of first effective advice as per Rule 27(c).

14. Learned Govt. Pleader Shri Sandesh Raja also submitted that

none of the lists Exts.P6 to P10 can be treated as final for want of certain

details. It is only because of want of details, no challenge was there by

anybody. Promotions are only provisional and therefore they do not confer

any rights on the petitioners.

15. In W.P.(C)No.10475/2010, the petitioner was appointed as L.D.

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of 2010 15

Clerk in Idukki District through the Public Service Commission. He was

transferred to Thiruvananthapuram District as per order dated 10.11.2000

based on the preference available to him as a relative of serving soldiers.

He was initially appointed as Lower Division Clerk at Barton Hill

Engineering College, Thiruvananthapuram and thereafter from 15.1.2002

onwards, at the Directorate of Technical Education, Thiruvananthapuram,

which is evident from Ext.P1. In the final seniority list of L.D. Clerks dated

1.9.2003, he is ranked as serial No.45 by assigning seniority in the L.D.C.

cadre with effect from 1.9.1998. In the final seniority list of L.D.C.

prepared and published along with the proceedings of the second

respondent dated 14.1.2005 also, he was ranked as serial No.22 by

assigning seniority in the LDC cadre with effect from 1.9.1998. But in the

provisional seniority list of LDC prepared and published by the second

respondent along with the proceedings dated 8.5.2007, he is assigned rank

No.57 with effect from 23.12.2000. This was objected by the petitioner by

filing Ext.P3 representation. After the disposal of W.A. No.382/2009, the

petitioner has filed Ext.P6 representation. He has raised similar contentions

as raised by the petitioners in W.P.(C) No.4643/2010.

16. Heard Shri M.R. Anison, learned counsel for the petitioner who

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of 2010 16

supported the arguments raised by Shri N. Sugathan, learned counsel for the

petitioners in W.P.(C) No.4643/2010.

17. The main question therefore to be considered is whether Ext.P29

can be justified and whether the principle, viz. “the sit back theory”, would

apply to the facts of these cases.

18. Learned counsel for the petitioners in W.P.(C) No.4643/2010,

Shri N. Sugathan in this case context, relied upon various decisions of the

Apex Court and this Court wherein the above principles have been

explained. They are: Rabindra Nath Bose and others v. Union of India

and others (AIR 1970 SC 470), T.C. Sreedharan Pillai & others v. State

of Kerala and others (1973 KLT 151 – FB), Mohanan v. State of Kerala

(2000 (2) KLT 798), Karthikeyan and another v. State of Kerala and

others (ILR 2002 (2) Ker. 31), Pavithran v. State of Kerala (2009 (4)

KLT 20 (FB)) and Shiba Shankar Mohapatra and others v. State of

Orissa and others (AIR 2010 SC 706).

19. In Rabindra Nath Bose’s case (AIR 1970 SC 470), in para 35

the principle was explained in the following words:

“We are not anxious to throw out petitions on this ground, but we

must administer justice in accordance with law and principles of

equity, justice and good conscience. It would be unjust to deprive

wpc 4643 & 10475
of 2010 17

the respondents of the rights which have accrued to them. Each

person ought to be entitled to sit back and consider that his

appointment and promotion effected a long time ago would not be

set aside after the lapse of a number of years.”

In para 36 it was also held that “but there is a limit to the time which can be

considered reasonable for making representations.” The same is also

important.

20. The Full Bench in T.C. Sreedharan Pillai’s case (1973 KLT 151

– FB), relying upon the above dictum, considered the finality to be attached

in respect of settled seniority and held thus in para 47:

“The petitioners were duly qualified for inclusion in the 1962 list

and they had been granted promotions to the upper division in the

list for 1962. By virtue of that promotion they had acquired a right

to have their ranks and seniority in that category reckoned on the

basis of the principles laid down in Rule 27(a) of the Kerala State

and Subordinate Services Rules. The position of the officers in

relation to the promotions of 1961 and 1962 had become settled at

least by the orders Exts.P1 and P2 passed in February, 1965. No

statutory appeals or revision petitions are shown to have been

filed against those orders and hence it must be taken that those

lists had become final. It is not in the interests of the maintenance

of the morale, efficiency and contentment in the service to disrupt

after such long lapse of time matters pertaining to vital service

wpc 4643 & 10475
of 2010 18

conditions like seniority and rank which have already become

settled. We may usefully refer in this context to the observations of

the Supreme Court in Rabindra Nath Bose and others v. Union of

India and others (AIR 1970 SC 470 at 478).

“Each person ought to be entitled to sit back and consider that
his appointment and promotion effected a long time ago would
not be set aside after a lapse of a number of years.”

It will be neither just or equitable to deprive persons who have been

promoted many years ago, of the rights that have accrued to them

regarding their rank and seniority by purporting to conduct a review

of promotion after the lapse of many years.”

The principle that is evident is that a review of seniority and promotions

after a lapse of many years affecting the rights of parties regarding their

rank and seniority, will be neither just nor equitable.

21. The above principles were relied upon in Mohanan’s case (2000

(2) KLT 798). Therein also it was held that the power of the appointing

authority to review the appointments, even by finding out a mistake, has to

be exercised within a reasonable time and without affecting the vested

rights of others. The sit back theory was reiterated in the following words

in para 16:

“16. The principle of ‘sit back theory’ has been accepted by

the Supreme Court long back. This Court also has followed the

same in a number of decisions. The earliest decision of the

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of 2010 19

Supreme Court in this respect is the one reported in Rabindra Nath

Bose & Others v. Union of India & others (AIR 1970 SC 470). In

that decision the Supreme Court held as follows:

“Each person ought to be entitled to sit back and
consider that his appointment and promotion effected a long
time ago would not be set aside after a lapse of a number of
years.”

The above decision was followed by this Court in 1973 KLT 151

(FB). This Court observed that no statutory appeals or revision

petitions are shown to have been filed against the orders of

promotion and it must be taken that those lists had become final. It

is not in the interests of the 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 have already become settled. Thus it is quite clear

that it will be unjust to deprive persons who had been promoted

many years ago of the rights that had accrued to them regarding

rank and seniority by purporting to conduct a review of the

promotion after the lapse of many years.”

Therefore, the settled seniority and rank shall not be disrupted, especially in

the interests of the maintenance of morale, efficiency and contentment in

the service.

22. The Division Bench in Karthikeyan’s case (ILR 2002 (2) Ker.

31), considered similar questions. Therein, the petitioners wanted to place

persons who did not complete their probation within the maximum period

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of 2010 20

of four years below them and to give further promotions to the post of

Assistant Conservator of Forests, recasting the seniority list. Therein, the

final seniority list was published in January 1984 after disposing of all the

appeals. In February, 1988 another seniority list of Forest Rangers as on

1.1.19897 was published, against which a representation was filed in 1991

to review the seniority list based on a decision of this Court. Ultimately, the

final seniority list was published by maintaining the seniority list of 1984 in

tact. The said dispute reached this Court when the parties filed writ

petitions in the matter. Therein, the Bench noticed the fact that “the practice

followed by the department all along was not to discharge a probationary

Ranger for want of test qualification.” (para 11). It was held that “the list

was prepared after disposing of all the appeals. The said list has become

final. Petitioner had never challenged the said list at any point of time, but

even in this proceedings.” The principles stated by the Apex Court in

Rabindra Nath Bose’s case (AIR 1970 SC 470) were relied upon in para

13 of the judgment.

22. The above legal position was reiterated by a Full Bench of this

Court in Pavithran’s case (2009 (4) KLT 20 – FB). Therein, the dispute

was with regard to the seniority under Rule 37 of Chapter XIV-A K.E.R.

wpc 4643 & 10475
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The facts of the case show that the seniority list published by the Manager

as on 1.1.1993 was objected to by the sixth respondent by preferring a

representation before the Assistant Educational Officer, which was rejected

by Ext.P2 order dated 13.6.1994. This was challenged by him in an appeal

before the District Educational officer which was dismissed by Ext.P3 order

dated 15.6.1995. These orders were never challenged. After 10 years the

sixth respondent moved the Assistant Educational Officer by filing

Annexure II representation, claiming seniority over the appellant in the

cadre of LPSA. The resultant order was challenged before the Government

by the sixth respondent which was allowed. The same was under challenge

in the writ petition. The writ petition was dismissed, against which writ

appeals were filed. The main question that was argued, was relying upon

the principles stated by the Apex Court in Rabindra Nath Bose’ s case

(AIR 1970 SC 470), T.C. Sreedharan Pillai’s case (1973 KLT 151 – FB),

Mohanan’s case (2000 (2) KLT 798), Cecil.D’Souza v. Union of India

(AIR 1975 SC 1269) and Usha Devi v. State of Kerala (2002 (1) KLT

615). In para 7 it was laid down that the settled seniority cannot be

unsettled after a long period. It was held as follows:

“So, the sixth respondent’s claim for seniority was legally sound and

tenable. But, it is a well settled principle in service jurisprudence

wpc 4643 & 10475
of 2010 22

that, if a person suffers a seniority position for long period without

demur, and allow others to enjoy seniority over him for a long

period, he cannot normally stake his claim, when the question of

promotion to the next higher post is taken up.”

In para 8 the principle that unless an adverse order is challenged within a

prescribed time limit, the said order will become final, has also been

adverted to in the following words, relying upon the observations of Wade

in Administrative Law, 6th Edn. and the decision of the Apex Court in State

of Punjab v. Gurdev Singh (1992 (1) KLT SN 28):

“Whenever an adverse order is passed against a person, unless the

same is challenged before the appropriate forum, within the

prescribed time limit, the said order will become final and the

person, affected by it, will also be bound by it. It is a well settled

principle in Administrative Law that, there are no void orders in

absolute sense in administrative matters. There are only voidable

orders. Unless a person aggrieved takes recourse to the appropriate

remedy at the appropriate time, even an illegal order will be treated

as valid and binding.”

Finally, it was held thus:

“The sixth respondent has not chosen to challenge those orders

before the higher forum of this Court and as mentioned earlier, he

allowed them to become final. Therefore, those orders are to be

treated as valid. They cannot be ignored or treated as void ab initio

wpc 4643 & 10475
of 2010 23

and therefore, of no effect now. It is a well settled principle in

service jurisprudence that a person who enjoyed a seniority position

for quite some time is entitled to sit back. The seniority position

shall not, normally, be disturbed lightly. The said position is

covered by several decisions of this Court and also the Apex Court,

cited by the learned counsel for the appellant. It is not in the

interest of administration or public interest to allow a person, who

slept over his right, to rake up a stale claim, tinker with the

seniority list and demoralise other members of the service. We find

no reason not to apply the above principle applicable to members of

public service, to the persons working in aided schools governed by

the K.E.R. Also.”

Accordingly, the appeal was allowed.

23. The Apex Court in a recent decision in Shiba Shankar

Mohapatra’s case (AIR 2010 SC 706), considered a similar question.

Therein, the question whether a belated challenge against the seniority list

can be entertained, was considered. It was held thus in para 16:

“The question of entertaining the petition disputing the long

standing seniority filed at a belated stage is no more res integra. A

Constitution Bench of this Court, in Ramchandra Shanker Deodhar

& Ors. v. State of Maharashtra & Ors. AIR 1974 SC 259,

considered the effect of delay in challenging the promotion and

seniority list and held that any claim for seniority at a belated stage

should be rejected inasmuch as it seeks to disturb the vested rights

wpc 4643 & 10475
of 2010 24

of other persons regarding seniority, rank and promotion which have

accrued to them during he intervening period. A party should

approach the Court just after accrual of the cause of complaint.”

Reliance was placed on the principles stated in Rabindra Nath Bose’s case

(AIR 1970 SC 470) and finally in para 29 their Lordships held thus:

“Thus, in view of the above, the settled legal proposition that

emerges is that once the seniority had been fixed and it remains in

existence for a reasonable period, any challenge to the same should

not be entertained. In K.R. Mudgal, (AIR 1986 SC 2086) (supra)

this Court has laid down in crystal clear words that a seniority list

which remains in existence for 3 to 4 years unchallenged, should

not be disturbed. Thus, 3-4 years is a reasonable period for

challenging the seniority and in case some-one agitates the issue of

seniority beyond this period, he has to explain the delay and laches

in approaching the adjudicatory forum, by furnishing satisfactory

explanation.”

It was therefore held that 3 – 4 years is a reasonable period for challenging

the seniority list.

24. Even with respect to the rectification of mistake, the Apex Court

in para 19 of the judgment in Shekhar Ghosh v. Union of India and

another {(2007) 1 SCC 331}, held that “if a mistake is to be rectified the

same should be done as expeditiously as possible. (See Board of Secondary

wpc 4643 & 10475
of 2010 25

Education of Assam v. Mohd. Sarifuzaman – {(2003) 12 SCC 408}.”

25. Heavy reliance was placed by learned counsel appearing for

respondents 3 and 4 on the decision of the Apex Court in Sudhakaran’s

case (2006 (2) KLT 817 – SC) and submitted that the situation therein are

clearly identical to the facts of these cases and therefore respondents 1 and 2

are justified in reviewing the seniority list. Therein, it was held that

seniority of transferred L.D. Clerks who have been transferred on their own

request to another district, should be reckoned from the date on which they

were transferred to the new district and not from the date of their initial

appointment.

26. Shri N. Sugathan, learned counsel for the petitioners submitted

that therein the Apex Court clearly held that the sit back theory will not

apply in the said case as there was clear challenge and hence the said

contention cannot be accepted. The facts of the case show the following:

The department concerned is the Registration Department and the

provisional seniority list of L.D. Clerks was drew up by the Government

on 7.11.1984 with reference to their date of first appointment. The list was

finalised by memorandum dated 6.4.1987 finalising the state-wise seniority

list of L.D. Clerks as on 1.11.1983. Based on the same, a provisional

wpc 4643 & 10475
of 2010 26

seniority list of U.D. Clerks as on 22.2.1986 was also prepared vide General

Memorandum dated 9.12.1987. It is evident from para 5 of the judgment

that the said seniority list of LDCs. as also the provisional seniority list of

UDCs were challenged in O.P.No.4204/1990 before this Court and this

Court by judgment dated 8.5.1990 directed the Inspector General of

Registration to consider the representation filed by the petitioner therein for

refixation of seniority. Thereafter, a revised provisional seniority list of

LDCs. as on 13.11.1990 was published by changing the seniority position

of transferred LDCs from the date of their joining the new district. It was

under challenge before this Court in O.P.No.11194/1990 and connected

cases. The argument that the promotions shall not be unsettled after a long

time, was rejected in para 17 by holding that “We find that the matter has

been continuously under litigation ever since 1990 and the delay in disposal

cannot defeat the rights of appellants.” Therefore, it is evident from the

above that the situation herein is not identical. Therein, the original petition

was filed challenging the list published in 1987. Herein, there was no

challenge against Exts.P6 to P10 either under Rule 27B of KS & SSR or by

filing writ petitions before this Court. In that view of the matter, I find that

the contentions raised by the respondents in that regard cannot be accepted.

wpc 4643 & 10475
of 2010 27

27. Therefore, the facts of the case show that Exts.P6 to P10 which

were published between 10.10.1006 to 22.12.2000, became final. These

proceedings also will show that provisional seniority lists were published

and objections and claims were invited and thereafter, only after examining

the appeals also and after effecting necessary changes, the lists were

finalised. Respondents 3 and 4 or anybody else did not challenge the

seniority of petitioners and similarly placed persons. The representation

Ext.P11 is dated 4.10.2006, after a long period of time, that too in

connection with certain promotions made as per an order dated 19.8.2005.

Rule 27B shows that the period prescribed for challenging the final

seniority list before the Government is six months. That course was also

not adopted. Therefore, it cannot be disputed that the seniority lists Exts.P6

to P10 thus published had become final. The situation is identical to that of

the cases relied upon by the learned counsel for the petitioners in various

judgments referred to above.

28. Learned Government Pleader raised a contention that in all of these

lists some of the details were not there and therefore there is no embargo

in reviewing the same. The said contention is raised on the basis of the

pleas raised in the counter affidavit of the first respondent. It cannot be said

wpc 4643 & 10475
of 2010 28

that any person who wanted to file objections to the lists were prevented

from getting the details of the individuals concerned who were included in

the provisional seniority list and final seniority list. In Ext.P11

representation there is no such plea that for want of any details appeals

could not be filed and lists could not be challenged at that time. No

explanation is attempted in Ext.P11 for the delay also. In the counter

affidavit filed by respondents 3 and 4 also there is no plea to that effect. It

is, thus, only a figment of imagination alone. Therefore, the said contention

does not deserve any consideration. The other aspect pointed out in the

counter affidavit is that the seniority list upto 31.3.1988 from the period

1.4.1984 was published by the Government and none of the lists finalised as

per Exts.P6 to P10 have been published by the Government after approval.

Ext.P30 dated 10.10.1994 is the seniority list for the period from 1.9.1984

to 31.8.1988 published by the Directorate of Technical Education. The

order only states as follows:

“A final gradation list of Non-Gazetted Ministerial Staff who

have been appointed or promoted to various cadre during the

period from 1.9.1984 to 31.8.1988 in this department is

appended to this order.

Sd/- S. Krishnan, Administrative Officer.”

wpc 4643 & 10475
of 2010 29

It is not a case where the same has been approved by the Government and

in spite of the specific averments in the writ petition, the respondents have

not produced any order to the effect that the said list was published or

notified after approval of the Government. It only shows that it was printed

in the Government press and not even published in the Gazette also.

Therefore, the non approval by the Government of Exts.P6 to P10 and the

seniority list along with them and the non publication in the Gazette is not

material. It is not shown that such lists had to be approved by the

Government in the light of any specific statutory rules or that unless it is

notified by Government or published in the Gazette, it will not have any

validity. In this context, a reply given under the Right to Information Act

by the Appellate Authority as per Ext.P36 on this question, is important. It

is stated therein that no documents are available to show that LDC/UDC

seniority lists have been published by the Government in the Gazette.

Therefore, the very premise under which the instructions were given in

Exts.P24 and P25 that promotions need not be made from the seniority list

published after the “last seniority list notified by the Government,” cannot

be justified. It has no legal foundation. The direction given in Exts.P24 and

P25 as item 2 is that a fresh seniority list has to be published for persons

wpc 4643 & 10475
of 2010 30

who have entered service after the last seniority list notified by the

Government. No such list is evidently published by the Government and

what was being done is only by the second respondent in the Directorate as

evident from Exts.P6 to P10 and Ext.P30. Therefore, the reason for

upsetting the seniority lists cannot be sustained.

29. Para 1 of the counter affidavit of the first respondent states that

“the seniority lists were not challenged by anybody upto 2006. Several

representations were received afterwards, requesting review of the seniority

applying D.R.B. Rules.” If there was no challenge under Rule 27B of KS &

SSR within the period provided therein, the Government could not have

obviously accepted the representations, that too after a period of six years

from Exts.P10 order. In para 5 of the counter affidavit, while referring to

the applicability of the District Recruitment Board Rules, it is clearly

admitted that “however, this practice was not followed in the Technical

Education Department.” This also is important. In the statement filed in

W.A. No.1737/2008 it is clearly stated in para 3 that “Right from the

commencement of the Department the transfers and postings were done

considering the whole department as a single unit by maintaining the ratio

of LDCs and UDCs. as 1 : 1. The criteria stipulated for inter-district

wpc 4643 & 10475
of 2010 31

transfers were not implemented in the department and such transfers were

given to the candidates, who completed 5 years of service without

disturbing their seniority. The above practice was not subject to any

challenge till the year 2004.” It is apparently in view of this, that the

Government by letter dated 19.9.2008 (Ext.P17(5)) directed the second

respondent that the promotions upto 2004 on the basis of the state-wise

seniority list should be treated as settled seniority. The year 2004 was

adopted as thereafter no promotions were made and vacancies were

existing. It was assured before this Court in the statement filed in W.A.

No.1737/2008 that persons who have obtained promotions prior to 2004

would not be affected by the review of the seniority list. The position thus

adopted is in tune with the settled principles of law. But after the disposal

of the Writ appeal when the service organisations were called for a meeting,

they raised a demand as evident from Ext.P22 which is followed by

Ext.P23 that all the seniority lists issued from 1988 should be reviewed.

The principle that settled seniority cannot be unsettled after a long lapse of

time, was not followed by respondents 1 and 2 while issuing Ext.P29. In

the orders of transfer issued in favour of petitioners like Ext.P1(a) etc., the

only condition is that the said transfers are ordered on their request and

wpc 4643 & 10475
of 2010 32

they will not be eligible for joining time. That they will lose the seniority,

has not been specified therein also. In the decision of the Division Bench in

Karthikeyan’s case (ILR 2002 (2) Ker. 31) also, the Bench observed that

“the practice followed by the department all along was not to discharge a

probationary Ranger for want of test qualification” and the said practice was

accepted while considering a similar question.

30. Therefore, herein the practice followed is that the criteria

stipulated for inter district transfers were not implemented in the department

for preparing the seniority lists. Whole department was taken as a single

unit. Of course, this question is relevant while considering the larger

question whether the right of the petitioners to maintain their rank and

seniority in the cadre of LDC and the promoted post of UDC could be

unsettled after a long lapse of time. Respondents 3 and 4 or anybody else

did not invoke the relevant Government Orders which were in force long

prior to the dates of finalisation of seniority lists and Rule 27(a) of KS &

SSR. while preparing the seniority list and by raising any objection on that

basis and thus allowed the seniority position to be settled and which

remained there without any challenge at least for more than six years

counting from the date of Ext.P10. (Ten years from the date of Ext.P6).

wpc 4643 & 10475
of 2010 33

Therefore, in the light of the principles stated by the Apex Court in the

decisions referred to above, it cannot be disputed that the settled seniority

cannot be unsettled after a long lapse of time. The seniority lists published

as per Exts.P6 to P10 remained unchallenged. In that view of the matter, the

attempt made by the Government to review the seniority lists cannot be

sustained. As held by the Full Bench in Pavithran’s case (2009 (4) KLT

20), a person who enjoyed a seniority position for quite a long time, is

entitled to sit back and a person who slept over his rights, to rake up a

stale claim, and tinker with the seniority list and demoralise other members

of the service.

31. Learned Govt. Pleader had raised a plea that the promotions to

the post of UDC are only provisional and therefore the petitioners cannot

claim any right. In fact, petitioners 1 to 4 have averred that on the promoted

post of UDC they have been granted higher grade on completion of 8 years.

These promotions have been made based on the seniority position available

as per the seniority list. It is pointed out by Shri N. Sugathan, learned

counsel for the petitioners that going by Rule 28(e) of KS & SSR, no

probation is there in the UD cadre and the probation is only in the lower

cadre alone. Promotions were made under Rule 28(b)(ii) according to

wpc 4643 & 10475
of 2010 34

seniority as the petitioners alone could have promoted based on the

seniority. Therefore, the said contention cannot save the exercise now done.

32. Learned counsel for the petitioners further submitted that

immediate implementation of Ext.P29 by Ext.R3(a), by promoting various

persons with retrospective effect, is also un-understandable. Evidently,

none of the promoted UDCs have been reverted to accommodate the said

persons. There is no case that vacancies were remaining unfilled. The

reply given under the Right to Information Act to Ext.P34 application

seeking details of vacancies, is that records are not available, as evident

from Ext.P35. Therefore, the implementation of the order on a retrospective

basis, and the disbursal of the huge amount also, as contended by the

learned counsel for the petitioners, shows undue haste in the matter. This

Court had stayed the operation of Exts.P25, P27 and P29.

33. In the light of the fact that the entire exercise leading to Ext.P29

violates the sit back theory, Exts.P24, P25 and P29 cannot be sustained.

Therefore, the writ petitions are allowed. The proceedings Exts.P24, P25

and P29 in W.P.(C) No.4643/2010 which is Ext.P12 in W.P.(C)

No.10475/2010, are quashed and it is declared that the seniority list thus

published and appended to Ext.P29 as Ext.P29(a), cannot be sustained. It is

wpc 4643 & 10475
of 2010 35

declared that the petitioners in both the writ petitions are entitled to claim

seniority based on Exts.P6 to P10, and their settled seniority, accordingly.

No costs.

(T.R. Ramachandran Nair, Judge.)

kav/