Kerala High Court
V.K.M. Pavithran vs State Of Kerala And Ors. on 15 December, 2006
Equivalent citations: 2008(1)KLJ756
Author: K.M. Joseph
Bench: K.M. Joseph
JUDGMENT K.M. Joseph, J.
1. Questions raised in both the Writ Petitions being connected, they are disposed of by a common Judgment.
2. Petitioner in W.P.(C) No. 24490/06 is the Manager of Peringathur MLP School, while W.P.(C) No. 20627/06 is filed by one Shri V.K.M. Pavithran (hereinafter referred to as the Manager and Shri Pavithran respectively). The 6th respondent in both cases is one Shri K.P. Sasidharan. The brief facts necessary to decide these cases, which are not in dispute, are as follows:
Shri Pavithran and Shri Sasidharan have continuous service from 1-6-1982. Prior to continuous approved service, Shri Pavithran had service unqualified approved from 10-6-1981 to 5-12-1981. On the other hand, Shri Sasidharan had unqualified approved service from 22-9-1980 to 30-4-1981 and he had yet another spell of such service from 1-6-1981 to 17-10-1981. Ext. P1 in W.P. (C) No. 20627/06 is the seniority list published on 1-1-1993. Therein, Pavithran is shown as serial No.5 while Sasidharan is shown as Serial No.6. According to petitioners, Sasidharan preferred an objection against the provisional seniority list before the AEO. By Ext.P2 order dated 13-6-1994, the AEO rejected the objection of Shri Sasidharan on the basis of Shri Pavithran being older than Shri Sasidharan. The matter was carried in appeal by Shri Sasidharan before the DEO. By Ext.P3 order in the very same Writ Petition dated 15-6-1995, the DEO rejected the appeal on the ground that it is time barred. It is the further case of the Manager and Shri Pavithran that on 1-6-1994, the then HM was suspended and thereafter he also took commuted leave and Shri Pavithran came to be appointed under Rule 45C of Chapter XIV A KER, and that this was not challenged by Shri Sasidharan. Thereafter, a retirement vacancy of HM arose on 1-10-2005 and Shri Pavithran came to be appointed against the same. It would appear that before Shri Pavithran was appointed on 1-10-2005, Shri Sasidharan preferred Ext.R6(f) before the AEO. However, that came to be rejected stating that a petition will not lie after the matter was already decided. Thereupon, Shri Sasidharan preferred Ext.R6(g) purporting to be a revision under Rule 92 of Chapter XIV A KER before the Government. He also approached this Court by filing W.P.(C) No.26604/05. This Court directed the Government to consider the matter. It is pursuant to the said Judgment that the orders which are impugned in both the Writ Petitions have been passed by the Government, accepting the case of Shri Sasidharan that he is entitled to rank as senior to Shri Pavithran.
3. Learned Counsel appearing for the petitioners in both cases would contend that the impugned order is unsustainable. He would submit that having regard to the admitted facts, this is a case where question of seniority stood settled as early as on 13-6-1994 vide Ext.P2 order passed by the competent authority, namely the AEO. The DEO by rejecting the appeal filed by Shri Sasidharan vide Ext.P3 order dated 15-6-1995 confirmed the order of the AEO. Ext.P3 order has become final. Shri Pavithran came to be appointed as teacher-in-charge as stated earlier in the year 1994. Even that was not challenged by Shri Sasidharan. In such circumstances, he would submit on the strength of two decisions of the Apex Court that the principle of sit back is applicable. The decisions relied on are Rabindra Nath Bose and Ors. v. Union of India and Ors. and Malcom Lawrence Cecil D'Souza v. Union of India and Ors. . Paragraph 35 of is extracted below:
35. 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 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. It was on this ground that this Court in Jaisinghani's case 1967-2 SCR 703 : AIR 1967 SC 1427 observed that the order in that case would not affect Class II Officers who have been appointed permanently as Assistant Commissioners. In that case, the Court was only considering the challenge to appointments and promotions made after 1950. In this case, we are asked to consider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II Officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the Officers who are now permanent Assistant Commissioners of Income-tax and who were appointed and promoted to their original posts during 1945 to 1950, should be left alone.
4. In the decision (sic) Malcom Lawrence Cecil D' Souza v. Union of India and Ors. , the Apex Court has held as follows:
It is essential that any one who feels aggrieved with an administrative decision affecting one's seniority should act with due diligence and promptitude and not sleep over the matter. Baking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time.
5. Counsel for petitioners would thereafter rely on a recent decision of the Apex Court in A.P. SRTC and Ors. v. G. Srinivas Reddy and Ors. . Therein, the Apex Court has, inter alia, held as follows:
17. Where the High Court finds the decision-making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to "consider" the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the court. But where the High Court without recording any findings, or without expressing any view, merely directs the authority to "consider" the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations of findings of the Court.
19. Tnere are also several instances, where unscrupulous petitioners with the connivance of "pliable" authorities have misused the direction "to consider" issued by court. We may illustrate by an example. A claim, which is stale, time-barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High Court with an innocuous prayer to direct the authority to "consider" and dispose of the representation. When the court disposes of the petition with a direction to "consider", the authority grants the relief, taking shelter under the order of the court directing him to "consider" the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice relating to writ proceedings and the nuances of judicial review, have interpreted or understood the order "to consider" as directing grant of relief sought in the representation and consequently granting reliefs which otherwise could not have been granted. Thus, action of the authorities granting undeserving relief, in pursuance of orders to "consider", may been account of ignorance, or on account of bona fide belief that they should grant relief in view of the court's direction to "consider" the claim, or on account of collusion/connivance between the person making the representation and authority deciding it. Representations of daily-wagers seeking regularisation/absorption into regular service is a species of cases, where there has been a large-scale misuse of the orders "to consider".
6. On the strength of thee said dictum, learned Counsel for petitioners would contend that this Court when it directed consideration of Ext.R6(g) had only directed the Government to consider the matter without entering any finding as such, and therefore, in view of the inordinate delay, there was no justification for the Government; to interfere with the settled seniority of the parties. The further contention of counsel for petitioners is that the Institution is entitled to protection under Article 30 of the Constitution of India and, therefore, even assuming that Shri Sasidharan is senior to Shri Pavithran, it is entitled to appoint Shri Pavithran as he is a qualified hand.
7. Case of the petitioners is met by Shri K.E. Hamsa, learned Counsel appearing on behalf of Shri Sasidharan as follows:
He would submit that this is a clear case where position as to seniority enunciated in Ext.P2 determination with reference to the age of Shri Pavithran is palpably unsustainable. He would submit that the matter is concluded by Exts. R6(a), R6(b), R6(c), R6(d) and R6(e) in W.P. (C) No. 24490/06. He also pointed out that this position is confirmed by the Apex Court. He would further submit that Shri Sasidharan has preferred Ext.R6 (f) even prior to the occurrence of the vacancy of HM which was on 30-9-2005. He would submit that on the strength of Ext.R6 (a) Judgment that the Government has ample power under Rule 92 to correct a palpable mistake as was committed in the facts of these cases. As regards the claim based on minority right is concerned, it is contended that there is no such case built up before the Government and there was no material produced in support thereof. It is further contended that as per the decision of this Court, it is the Government which is to consider the question whether the Institution is a minority Institution in the light of the Division Bench ruling of this Court. Learned Government has done is to correct a mistake in the exercise of its acknowledged power of revision. As far is minority rights are concerned, it is pointed out that there is no documentary evidence produced and there was no such case before the Government. It is also contended by Shri K.E. Hamsa that the list; was not published in terms of Note 2 to Rule 3 of Chapter XIV A KER. A mistake can bee corrected at any time. In that regard, he relied on Exts.R6(c), R6(d) and R6(e) judgment in OP No. 24490/06. Even though Ext.P2 order was passed, the list was not finalised, it is contended.
8. Learned Counsel for the petitioners would submit in reply that the case based on Note 2 to Rule 35 is untenable. This is for the reason that this a case where the management has only one School. According to counsel, this case falls to be considered under Rule 35A of Chapter XIV A KER. He would point out that Note 2 to Rule 35 is, therefore, inapplicable to a case under Rule 35A.
9. The foremost contention of learned Counsel for petitioners is the inordinate delay in the matter of setting aside the alleged illegality in according seniority to Shri Pavithran over Shri Sasidharan. There cannot be any dispute having regard to the Judgments of this Court referred to by Shri Hamsa that Shri Sasidharan is entitled to rank above Shri Pavithran, in view of the fact that having regard to the fact that both of them having continuous service from the same date, under Sub-rule (2) of Rule 37 of Chapter XIVA of KER, the matter would be governed by the date of the first appointment. The date of the first appointment; of Shri Sasidharan, though it is unqualified but approved, is admittedly earlier than that of Shri Pavithran. If that be so, there cannot be any doubt that Ext.P2 does not reflect the correct position as to seniority. There cannot be any doubt also that the regular vacancy of HM arose only with the voluntary retirement taken by the incumbent with effect from 30-9-2005 and consequently the regular vacancy arose only on 1-10-2005. Therefore, as held in Ext.R6(a) Judgment, this is a case where it was open to Shri Sasidharan to canvass the correctness of the seniority as declared by the Manager before the revisional authority in the context of the claim for appointment as HM with reference to the occurrence of the regular vacancy of HM. No doubt, learned Counsel for petitioners would point out that there is one point of difference. This is a case where Shri Sasidharan was not only aware of the publication of the seniority list, but he took up the matter before the educational authority as evidenced by Ext.P2 in W.P.(C) No.20627/06 and the matter was confirmed by the rejection of the appeal by the DEO, it is submitted. But, I would think that in point of principle, with reference to the power of the Government to set right a palpable wrong, the fact that Shri Sasidharan has not taken up the matter and left Exts. P2 and P3 unchallenged and in a case where (sic) person does not challenge the seniority list at all cannot stand on a different footing when the matter is viewed with reference to the power of the Government to correct the mistake. The mistake is one which is palpable and it is not open to any form of doubt having regard to the decisions of this Court. It is this error which the Government decided to correct. No doubt, there is a delay, if one views it with reference to the appointment of Shri Pavithran on 1-6-1994. But, with reference to the date of occurrence of the regular vacancy, there cannot be any doubt that Shri Sasidharan had moved Ext.R6(f) even before the date of occurrence of the vacancy. Now, it may have been a different matter, if the Government decided to reject the case of Shri Sasidharan on the ground that he has not challenged Exts.P2 and P3. Power of Government under Rule 92 includes the power to revise any order suo motu. I must now deal with the argument of counsel for petitioners based on the doctrine of sit back. I have already extracted the relevant paragraphs of the decisions relied on by the counsel. They would show that the doctrine of sit back is not applicable in this case for two reasons. In the first place, as contended by Shri K.E. Hamsa, it is not a case where Shri Pavithran had been actually promoted as HM and was holding the post of HM for a long time, and that position was sought to be interfered with. Admittedly, Ext.R6(f) was moved even prior to the occurrence of the regular vacancy. The impugned order cannot, therefore, be said to be an invasion of a vested right being enjoyed by Shri Pavithran for a long period of time. Secondly, the doctrine of sit back has been evolved by Courts as a tool to decline relief to a person who was slept over his rights leading to the creation of rights in third parties and rendering it inequitable for the Writ Court or the Apex Court to interfere in a matter where interference would produce more injustice than promote justice. Had his been a case where the Government had accepted the case of Shri Pavithran and decided not to exercise its power under Rule 92 in favour of Shri Sasidharan on the ground of delay having regard to Exts.P2 and P3, it may have been a different matter and this Court may not have exercised its discretion in favour of Shri Sasidharan. But, this is a case where the Government had decided to exercise its powers of revision in favour of Shri Sasidharan, taking; note of the patent illegality involved in deciding the question of seniority with reference to age. In such circumstances, I would think that the Manager and Shri Pavithran may not be entitled to invoke the doctrine of sit back to impugn the orders.
10. As far as the contention based on minority right is concerned, I find that the order is silent regarding any such contention raised by the Manager of Shri Pavithran. Whatever that be, I would think that the petitioners have not made out a case of establishment of right under Article 30 of the Constitution. The burden is on the petitioners who lay store by Article 30 of the Constitution of India to establish the right. Admittedly, no document has been produced to establish minority right. No doubt, counsel for petitioners would contend that in the absence of a dispute as such, it is not necessary for the petitioners to establish any minority right. Counsel relied on the following statement in the Counter Affidavit:
2. It is submitted that the school is run by Muslim Education & Charitable Society. There is no documentary evidence available to prove that the school is enjoying protection under Article 30 of the Constitution of India. The Manager is liable to produce necessary documents to prove his claim that the school belongs to a Minority Institution. But, at the time of hearing or at any instant till date, he had not produced any such documents to stake his claim. Hence this contention cannot be agreed to.
11. I would think that having regard to the fact that the order does not reflect the contention based on minority right, it may not be open to me to countenance such a plea. Petitioner Manager, has not produced any evidence to show that they have been exercising minority rights. Such evidence would include departure from the principle of seniority in the matter of appointment of HM. There is no such case built up. On an overall view of the matter, I would think that the Manager should not be permitted to rely on Article 30 of the Constitution to the facts of this case. In such circumstances, the Writ Petitions are found to be without any merit and they are accordingly dismissed.