IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2380 of 2009()
1. JOHN BOSCO,SECTION OFFICER,UNIVERSITY
... Petitioner
2. JACOB PHILIP,SECTION GRADE ASSISTANT,
Vs
1. STATE OF KERALA,REPRESENTED BY ITS
... Respondent
2. THE SECRETARY,FINANCE (RULES)DEPARTMENT,
3. UNIVERSITY OF KERALA,REPRESENTED BY ITS
4. THE REGISTRAR,UNIVERSITY OF KERALA,
5. THE KERALA UNIVERSITY,APPELLATE TRIBUNAL
6. PREMA.S.NAIR,SELECTION GRADE ASSISTANT,
For Petitioner :SRI.D.AJITHKUMAR
For Respondent :SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY.
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :10/12/2009
O R D E R
K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.
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W.A.Nos.2380 & 2496/2009
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Dated this, the 10th day of December, 2009
JUDGMENT
Balakrishnan Nair, J.
These appeals are directed against the judgment of
the learned Single Judge in W.P.(C) No.23246/2007.
W.A.No.2380/2009 is filed by respondents 5 and 6 and
W.A.No.2496/2009 is filed by respondents 3 and 4 in the Writ
Petition. As the very same judgment is under challenge in these
appeals, they are heard and disposed of by this common
judgment.
2. W.A.No.2380/2009: This Writ Appeal is treated as
the main case for the purpose of referring to the parties and
exhibits. The brief facts of the case are the following:
The 6th respondent/writ petitioner was appointed as
Assistant Grade II in the Kerala University on 1.8.1988. She
applied for leave for higher studies. The University granted the
same by Ext.P1 order dated 30.1.1992 with effect from
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1.2.1992 for a period of two years. The purpose of leave was
shown as higher studies and the rule referred to in Ext.P1 for
granting the leave was Rule 91 of Part I, Kerala Service Rules
(for short “K.S.R.”). While the 6th respondent was on leave, a
gradation list of Assistants was published on 1.12.1992 and she
was serial number 74 in it. Later, by Ext.P2 order dated
17.8.1993, she was promoted as Assistant Grade I. By Ext.P3
order dated 24.3.1994, the leave granted to the 6th respondent
for higher studies was extended for a further period of one year
with effect from 1.2.1994. Again, the rule cited for granting the
leave under Ext.P3 was Rule 91 of Part I, K.S.R. It is submitted
that the leave was again extended and finally she rejoined duty
on 1.9.1996, after the leave period. While she was on leave,
the University issued Ext.P6 order dated 30.10.1995, modifying
the conditions, subject to which the leave was granted. The
promotion granted to her as per Ext.P2 dated 17.8.1993 to the
post of Assistant Grade I was also cancelled. The relevant
portion of Ext.P6 order dated 30.10.1995 reads as follows:
“Smt.Prema S. Nair, Assistant Grade II was
granted Leave Without Allowances for a total period of
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5 years with effect from 1.2.1992, as per University
orders read as papers 2, 3 and 4.
As per rules, Smt.Prema S.Nair, will lose all
service benefits including commutation of leave, half
pay leave etc., and the period of leave will be treated
as dies-non for all kinds of service benefits. She will
also lose seniority in the grade with reference to those
who might get promoted before she rejoins duty.
As per item no.2 of the University order cited, as
paper one, Smt.Prema S. Nair was promoted to act as
Assistant Grade I on Rs.1000-1710 with effect from
30.04.1993.
In Partial modification to the University orders
cited as papers 2, 3 and 4 sanction has been accorded
by the Vice-Chancellor for including the following
conditions in the above orders granting Smt.Prema
S.Nair, leave without allowances.
1. She will lose all service benefits including
commutation of leave, half pay leave etc., and the
period of leave will be treated as ‘dies-non’ for all
kinds of service benefits.
2. She will lose seniority in the grade with reference
to those who might get promoted before she rejoins
duty.
Sanction has also been accorded by the Vice-
Chancellor for cancelling the promotion granted to
Smt.Prema S.Nair, Assistant Gr.II vide item no.2 of
the U.O.No.Ad.A1.3.2722(B)/93 dated 17.08.1993.
Smt.Prema S.Nair is permitted to continue on
leave as Assistant Gr.II.
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The University orders read above, stands
modified to this extent.”
Later, the 6th respondent was promoted as Assistant Grade I, by
order dated 25.9.1996. On 31.5.2000, the appellants submit, a
gradation list of the employees of the University was published.
In that list, the 6th respondent was shown as serial number 104,
in the part relating to Assistant Grade I. Later, Annexure-II
final seniority list of University employees was published on
22.3.2001, in which the 6th respondent was shown as serial
number 92. The 6th respondent was later promoted as Senior
Grade Assistant on 14.3.2003 and Selection Grade Assistant on
25.3.2006. The University published Ext.P7 final gradation list
of its employees on 7.10.2005. In that list the 6th respondent
was shown as serial number 106 among Senior Grade Assistants
with date of promotion to that cadre as 14.3.2003. She filed
Ext.P8 representation dated 30.10.2005 against Ext.P7
gradation list. The University rejected that representation by
Ext.P9 memo dated 22.2.2006, placing reliance on Ext.P6 order.
In the meantime, the 6th respondent moved the Government.
The Government by Ext.P10 communication, informed the
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University that the 6th respondent is entitled to get all service
benefits during her leave period. Still later, the Government
issued Ext.P11 communication on 12.5.2006, withdrawing
Ext.P10 and pointing out that the 6th respondent is eligible for
Leave Without Allowances for study purpose under Rule 88 of
Part I, K.S.R and therefore, during the said leave period her
seniority/promotion will not be affected. When the grievance
against the seniority position of the 6th respondent was not
redressed, she approached this Court by filing W.P.(C)
No.27025/2006. The Court disposed of that writ petition by
Ext.P13 judgment dated 6.2.2007, with the following direction:
“If the petitioner files an application before the
Tribunal under Section 73(3) of the Kerala University
Act within two weeks from the date of receipt of a
copy of this judgment, the Tribunal will consider the
same and take a decision thereon in accordance with
law after hearing the parties within a period of three
months from the date of filing of the application. Till
such time as a decision is taken, the interim order will
continue. I leave open the contentions of the
petitioner.”
Based on the said direction, the 6th respondent preferred
Ext.P14 appeal before the University Appellate Tribunal. The
Tribunal, after hearing both sides, dismissed the appeal by
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Ext.P17 judgment dated 7.6.2007. The Tribunal upheld the
stand of the University regarding the effect of the leave granted
to the 6th respondent. The Tribunal also noticed that there was
inordinate delay from the part of the 6th respondent to challenge
the adverse seniority position. So, if her seniority is restored,
the same will affect more than 230 employees. The relevant
portion of the said judgment reads as follows:
“Evidently the appellant never raised any
objection either regarding the provisional list or
regarding the final list. Ext.P11 according to
respondents was submitted to the University by the
appellant only on 6.6.2006 and that by the time the
University was considering the legal position involved
in it, the appellant moved the High Court. Though it is
alleged that several objections filed by appellant
against the seniority list did not evoke any response,
there is no materials on record to substantiate the
same. So until 2006 the appellant did not care to
challenge the seniority list finalised as on 31.12.2000.
Now that about 225 employees have been promoted
above the appellant herein and if the seniority is re-
casted after such a long lapse it would definitely affect
those persons. But such interference cannot be had
now in the reason mainly that they are not on record.
Further as is evident from the records the seniority
has been finally settled and it went unchallenged as
the while. After passing the impugned order the
appellant was promoted as Assistant Grade I w.e.f.
25.9.1996, as Senior Grade Assistant w.e.f. 14.3.2003
and as Selection Grade Assistant w.e.f. 25.3.2006.
She availed and enjoyed those benefits without lifting
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even a little finger. After sleeping over her rights if at
all there is any for such a long period it is now not
open to her to challenge the legality or correctness of
the seniority. A court of law will seldom extend its
helping hand to the sleepy but only to the wakeful. In
this respect the learned counsel for respondent would
rely on the decision reported in India Law Reporters at
page 31 (Karthikeya & another v. State of Kerala and
others) wherein it is held that seniority of persons
finally settled for long years cannot be unsettled after
long delay causing injustice to persons in service. The
ratio of the said decision would squarely apply to the
facts of this case. So the gradation list dated
1.9.2005 cannot be unsettled as the same has been
prepared basing on the seniority list as on 31.5.2000
with correction as on 31.12.2000, which was not
challenged at any point of time. University being the
competent authority and as no clarification was sought
from its side the clarification contained in Annexure II
is not at all binding upon it. So one cannot compel the
University to issue orders in conformity with Annexure
II. If that be so the appeal has only to fail. Points
answered accordingly.”
Challenging Exts.P6 and P17, the 6th respondent filed the Writ
Petition. The learned Single Judge, after hearing both sides,
found that the 6th respondent was entitled to get leave under
Rule 88 of Part I, K.S.R., and therefore, the leave granted to her
will not affect her seniority or promotion chances. The learned
Single Judge did not consider the contention regarding delay in
raising the 6th respondent’s claim. The affected persons, who
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were respondents 5 and 6 in the Writ Petition, have preferred
this appeal.
3. We heard Sri.D.Ajith Kumar, learned counsel for the
appellants and also the learned standing counsel for the Kerala
University, for respondents 3 to 6. We also heard
Sri.K.R.B.Kaimal, learned senior counsel for the 6th respondent
and learned Government Pleader Sri.N.Manoj Kumar for
respondents 1 and 2.
4. The learned counsel for the appellants and the learned
standing counsel for the University submitted that though by
Ext.P6, the conditions of grant of leave to the 6th respondent
were modified on 30.10.1995 and her promotion to the post of
Assistant Grade I was cancelled, she has chosen not to
challenge it. She has never raised any objection against it.
Her objection against her seniority position was raised for the
first time only by Ext.P8 representation. A reading of Ext.P8
would show that she has not filed any representation earlier. If
there was any such representation, the same would have been
referred to in Ext.P8. It is also pointed out that the Tribunal has
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found that there was inordinate delay in raising her claim, based
on the materials on record. In view of the above position, the
learned Single Judge ought not to have entertained the Writ
Petition. It should have been dismissed without going into the
merits of the case, it is submitted.
5. The learned Government Pleader submitted that the
clarifications Exts.P10 and P11 were issued, based on the
representation of the 6th respondent and the Government are
not concerned with the delay or other contentions raised. The
learned senior counsel for the 6th respondent pointed out that in
the Writ Petition, the 6th respondent has pleaded as follows:
“The petitioner challenged Exhibit P6 before the 4th
respondent and she pointed out the anomaly. But no
action was taken.”
The learned senior counsel submitted that the 4th respondent,
who is the Registrar of the University, has not filed any counter
affidavit, disputing that submission. Further, it is pointed out
that Ext.P6 order was issued without notice to the 6th
respondent. So, it is void ab initio. Moreover, the unilateral
change in the conditions granting leave to the 6th respondent is
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highly arbitrary and discriminatory. The learned senior counsel
also pointed out that the finding of the learned Single Judge
that the leave granted should be treated as one under Rule 88
of Part I, K.S.R., is unassailable.
6. We considered the rival submissions made at the Bar
and also perused the materials on record. In this case, we
notice that the promotion granted to the 6th respondent to the
post of Assistant Grade I, as per Ext.P2 dated 17.8.1993 was
cancelled as early as on 30.10.1995 by Ext.P6. By the said
order, a condition was also imposed that she will lose seniority
as against the juniors who may get promoted from the cadre,
during her absence. In the Writ Petition the petitioner/6th
respondent has made a vague statement that she represented
against Ext.P6 before the Registrar of the University. But, she
has not stated when it was done and how it was done. The said
claim made by her was considered by the Tribunal and found
that there was no material whatsoever to show that the 6th
respondent has complained against Ext.P6 order. The said
finding is a finding of fact. The said finding is fully justified , in
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view of the contents of Ext.P8, which read as follows:
“As per University Order read as papers 1, 2 & 4
quoted above, I was granted leave without allowances
for higher studies (Ph.D) according to Rule 91 of Part
I, Kerala Service Rules and governed by all rules
relating to leave for higher studies w.e.f 1.2.1992 to
2.9.1996. I was promoted to act as Assistant Grade I
as per paper 3rd read above and according to Rule 91
of Part I, Kerala Service Rules. The promotion was
cancelled as per paper 5, partially modifying papers 1,
2 and 4 read above, incorporating two provisions in
the order (ie, she will loss (sic lose) all service benefits
including commutation of leave etc. and lose seniority
in the grade. With reference to those who might get
promoted before she rejoins duty.
In this contest (sic context), it is pertinent to
note that I was sanctioned leave without allowances
for higher studies w.e.f 1.2.92 as per U.O cited above
based on Rule 91 of Part I, Kerala Service Rules. At
the time of sanctioning the leave without allowances
my probation was declared and I am having three
years service also. Hence leave without allowances
sanctioned as per the Rule 91, Part I, Kerala Service
Rules which won’t take away any consequential
service benefits including seniority. Fully knowing this
University have promoted me as Assistant Grade I
also vide U.O.No.Ad.A1-3-2712(B)/93 dated 17.8.93.
Now vide U.O.No.Ad.1-3-1356/95 dated
30.10.95 University cancelled the promotion as
Assistant Grade-I w.e.f 30.4.93 incorporating two
provisions in the order (loss of seniority and service
benefits) is against the Rule 91 of Part I, Kerala
Service Rules. The two conditions incorporated in the
order is attracted when leave without allowances is
sanctioned as per Appendix 12B of Part I, KeralaWA Nos.2380 & 2496/2009
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Service Rules. This provision is not applied to Rule 91
of Part I, Kerala Service Rules and leave without
allowances is sanctioned to me as per Rule 91 of Part
I, Kerala Service Rules. Hence I am eligible for all
service benefits including seniority based on Rule 91,
Kerala Service Rules.
Hence I humbly request that steps may please
be taken to cancel/review U.O.No.Ad.A1-3-1356/95
dated 30.10.95 and restore the benefit of seniority
and promotion as Assistant Grade-I w.e.f 30.4.93
ordered vide U.O.No.Ad.A1-3-2712(B)/93 dated
17.8.93 urgently.”
A reading of the above representation would show that it is her
first complaint against Ext.P6. Further, even assuming she has
filed a representation, we notice that she never pursued the
matter further. She suffered Ext.P6 order and the adverse
conditions contained in it. Going by the materials on record, as
noticed earlier, her first protest against Ext.P6 comes in the
form of Ext.P8 dated 30.10.2005, after the lapse of 10 years.
The Tribunal has found that in the meantime 230 persons were
promoted and if the claim of the 6th respondent is accepted, all
those persons will become junior to the said respondent. We
are of the view that the juniors, who were promoted in the
meantime, are entitled to sit back. The 6th respondent has lost
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her rights by reason of delay and laches. Even if Ext.P6 order is
arbitrary or void ab initio, as claimed by the learned senior
counsel, the 6th respondent should have challenged it before the
appropriate forum within the prescribed time limit, by taking
recourse to appropriate proceedings. In this context, we refer
to the Full Bench decision of this Court in Pavithran v. State of
Kerala [2009(4) KLT 20 (FB)], wherein it was held as follows:
“8. 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. See the
observations of Wade in Administrative Law, 6th Edn.
‘The truth of the matter is that the court will
invalidate an order only if the right remedy is sought
by the right person in the right proceedings and
circumstances. The order may be hypothetically a
nullity, but the court may refuse to quash it because
of the plaintiff’s lack of standing because he does not
deserve a discretionary remedy because he has
waived his rights, or for some other legal reason. In
any such case the ‘void’ order remains effective and
is, in reality, valid. It follows that an order may be
WA Nos.2380 & 2496/2009
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void for one purpose and valid for another, and that
it may be void against one person but valid against
another. A common case where an order, however
void, becomes valid is where statutory time limit
expires after which its validity cannot be questioned.
The statute does not say that the void order shall be
valid; but by cutting off legal remedies it produces
that result.’
The above statement of law has been quoted with
approval by the Apex Court in several decisions, and
one of them is State of Punjab v. Gurudev Singh
[1992(1) KLT SN 28 (C.No.37) SC = [(1991)4 SCC 1].
We notice that Exts.P2 and P3 orders were passed by
competent statutory authorities. They could have
granted the reliefs sought by the sixth respondent,
but, they have declined to do that. The sixth
respondent has not chosen to challenge those orders
before the higher forum or 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
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.”
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In view of the above principle laid down by the Full Bench, the
6th respondent was not entitled to get any relief in the Writ
Petition. In this view of the matter, it is unnecessary for us to
go into the merits of the contentions of the 6th respondent that
her leave should be treated as one under Rule 88 of Part I,
K.S.R. In the result, the Writ Appeal is allowed. The judgment
under appeal is reversed and the Writ Petition is dismissed. No
costs.
7. W.A.No.2496/2009: In view of the judgment in
W.A.No.2380/2009, this appeal is also allowed.
K. Balakrishnan Nair,
Judge.
P. Bhavadasan,
Judge.
nm.