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.
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W.P.(C) Nos.4643/2010-E & 10475/2010-H
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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
wpc 4643 & 10475
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.
wpc 4643 & 10475
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
wpc 4643 & 10475
of 2010 4
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
wpc 4643 & 10475
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
wpc 4643 & 10475
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
wpc 4643 & 10475
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.
wpc 4643 & 10475
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
wpc 4643 & 10475
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 10according 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
wpc 4643 & 10475
of 2010 11Institutions 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
wpc 4643 & 10475
of 2010 12Note 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
wpc 4643 & 10475
of 2010 13cannot 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.
wpc 4643 & 10475
of 2010 14Therefore, 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.
wpc 4643 & 10475
of 2010 15Clerk 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
wpc 4643 & 10475
of 2010 16supported 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 17the 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 18conditions 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
wpc 4643 & 10475
of 2010 19Supreme 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
wpc 4643 & 10475
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
of 2010 21
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 23and 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 24of 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/