Saju P vs State Of Kerala on 9 November, 2021

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Kerala High Court

Saju P vs State Of Kerala on 9 November, 2021

The sole petitioner herein has filed the instant Ext.P1 original application in O.A.No.727 of 2020 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench with the following prayers [ See page 34 of the paper book of the O.P]:

" (i) Call for the entire records relating to Annexure-

A21 and set aside the same to the extent of fixing the date of 6/1/2009, to be the starting point of seniority.

(ii) Direct the 2nd respondent to implement the directions in annexure-A8, expeditiously.

(iii) Direct the 2nd respondent to consider and pass orders on Annexure-A 16 expeditiously.

(iv) Grant such other relief's that may be deemed fit and proper to this Honourable Tribunal in the interest of justice."

2. Initially, the Tribunal after hearing both sides, has rendered an interim order on 1.6.2020 in the present O.A, staying the operation of all further proceedings pursuance of the impugned Annexure-A21 G.O (Rt).No.380/2020/H.Edn dated 5.3.2020 issued by the competent authority of the State Government in the Higher Education Department. Later, at the instance of the motion made by O.P (KAT) No.303 of 2021 4 the respondent in the O.A, the Tribunal has passed the impugned Ext.P6 interim order dated 26.10.2021, whereby, the earlier interim stay order dated 1.6.2020 granted against Annexure-A21 has been vacated and liberty has been granted to the official respondents to take further steps for preparation and finalization of a seniority list in pursuance of the directions issued by the Government as per the impugned Annexure-A21 order and in the light of the provisions contained in the special Rules, 2016 which came into force on 6.1.2009.

3. Being aggrieved by the impugned Ext.P6 interim order rendered by the Tribunal, whereby the earlier interim stay granted by the Tribunal on 1.6.2020 has been vacated, the sole applicant in the O.A has preferred the instant Original Petition under Articles 226 & 227 of the Constitution of India with the following prayers [ See page 20 of the paper book of the O.P.]:

"[i] Call for the records relating to Exhibit-P7 order and to0 set aside the order dated 26.10.2021 in O.A.No.720 of 2020 of the Kerala Administrative Tribunal [ii] Direct the Kerala Administrative Tribunal to dispose O.A.No.720 of 2020, expeditiously [ii](sic) Issue such other order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

4. Heard Smt.Daisy.A.Philipose, learned counsel appearing O.P (KAT) No.303 of 2021 5 for the sole petitioner in the O.P/sole applicant in the O.A and Shri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondents 1 and 2 and Smt. Rekha Vasudevan, learned counsel appearing for contesting respondents 3 to 5.

5. We have heard both sides in extenso and the various rival pleas have been made by them.

6. Smt.Daisy.A.Philipose, the learned counsel appearing for the petitioner/applicant would urge that the preparation of combined seniority list in accordance with the directions issued by the 1 st respondent in terms of the impugned Annexure-A21 Government Order would lead to total confusion in the Department. That, prior to the issuance of special Rules 2016, the then prevailing the special Rules 1976 as well as the executive orders had governed the field. That, with the establishment of offset printing reformed Government Presses, the same called for creation of new posts and executive orders issued by the State Government to fill up the newly sanctioned post which was created to ensure the operation of the offset printing machines. That this gave rise to a series of litigations, which ultimately culminated in the promulgation of the new special Rules of 2016, which has been given retrospective effect from 6.1.2009. One of the contentions urged by the petitioner, as can be seen from a reading O.P (KAT) No.303 of 2021 6 of Ground B in the OA is that the impugned action of the 1 st respondent as per Annexure-A21 to direct the 2 nd respondent to fix the seniority of the employees w.e.f 6.1.2009, is highly arbitrary and violative of Articles 14 & 16 of the Constitution of India and therefore, Annexure-A21 is liable to be set aside. Smt.Daisy A Philipose, the learned counsel appearing for the petitioner in the present O.P would point out that the interim stay order was granted by the Tribunal on 1.6.2020 only in the present O.A.No.727 of 2020 and the other OAs got tagged on with the present OA in Ext.P6, which are not in relation to the prayer for quashment of the impugned order at Annexure-A21 herein, but in relation to the promotion claims of the applicants therein. Further, that the interim stay order was vacated as per Ext.P6 will have effect only vis-a-vis the present O.A.No.727 of

7. The learned Senior Government Pleader would urge that the sanctity and relevance of the date 6.1.2009 is the deemed date of coming into force of the new Special Rules 2016, and the date 6.1.2009 was chosen as the same is the date of judgment of this Court rendered in OP No.18719 of 2002 (produced as Annexure-A6 in the O.A), etc. The submissions of the petitioner and the main issues to be resolved etc., are referred to in para 4 of the impugned Ext.P6 interim order rendered by the Tribunal, which reads as follows [ see pages 244 & 245 of O.P (KAT) No.303 of 2021 7 the paper book of the O.P]:

"4. Pending issuance of the Rules, promotions were effected in the Machine Section and appointments were also made to the Offset Printing Machine Branch. On issuance of such Special Rules, the need arose for reconciling the above appointments/promotions from both these Sections. The post of Assistant Foreman (Machine) was to be filled up from both the Machine Section as well as from the Offset Printing Section. Printer, Senior Grade in the Machine Section and Offset Printing Machine Operator, Senior Grade, Printer Grade I, Offset Printing Machine Operator Grade I and Grade II were the feeder category for appointment to the above post. This required issuance of a combined seniority list. The combined seniority list of Printer Grade I and Offset Machine Operator Grade II was published as per Annexure A11 order of the second respondent dated 19.9.2018. In the meanwhile, steps were afoot to publish the combined seniority list of Senior Grade Printer and Offset Machine Operator Grade I. The final seniority list was published as per Annexure-A17. As per the above seniority list, the sate of advice to the entry cadre post in the concerned branch is taken for reckoning the seniority. This is the bone of contention."

8. Further, it appears that being aggrieved by Annexure-A17 seniority list, the employees in the Offset Printing Section had preferred a statutory appeal in terms of Rule 27B Part II KS & SSR before the 1st respondent competent authority of the State Government in the Higher Education Department. This resulted in the Government as the appellate authority has issued the impugned Annexure-A21 order dated 5.3.2020, wherein it has been found that the impugned Annexure-A17 seniority list (which is the subject matter of the said statutory appeal), issued by the 2 nd respondent- Director of Printing O.P (KAT) No.303 of 2021 8 was not in accordance with law and the same has thus been set aside. Consequential directions have also been issued by the 1 st respondent- Government in Annexure-A21 for preparation of a fresh seniority list in terms of the parameters in the new special Rules 2016, etc. Various other pleas have been made by the learned counsel for the petitioner, in support of their case that the impugned order passed by the Tribunal at Ext.P6, is quite unreasonable and unjust and would lead to confusion and that, the Tribunal should have decided the main matter in the O.A instead of vacating the interim stay order granted initially on 1.6.2020. Shri.Saigi Jacob Palatty, the learned Senior Government Pleader appearing for the official respondents 1 & 2 and Smt.Rekha Vasudevan, the learned counsel appearing for contesting respondents 3 to 5 have made their submissions and have supported the reasonings and conclusions of the Tribunal in Ext.P6 interim order. We are told that pleadings in this case have been duly completed.

9. After hearing both sides, we are of the view that the Tribunal cannot be seriously faulted in having vacated the stay order and also having permitted respondents 1 & 2 to set in motion the process of preparation of a fresh seniority list by circulating provisional seniority list and inviting objections from interested persons etc.. However, we feel that the finalization of the seniority list, O.P (KAT) No.303 of 2021 9 should have been interdicted, so that the same could be effected in accordance with the final verdict of the Tribunal. In other words, the Tribunal could have disposed of the main matter and the finalization of the seniority list should have been directed to be kept in hold until then. So, we are of the view that the ultimate conclusion made by the Tribunal in Ext.P6 interim order, might require modification to that limited extent. Accordingly, it is ordered that the directions of the Tribunal at Ext.P6 in vacating the interim stay order granted on 1.6.2020 and in permitting the setting in motion of the process for preparation of a fresh seniority list in accordance with the new special Rules, 2016 is not interdicted. Respondents 1 & 2 may go ahead with the further process in that regard including circulation of a provisional seniority list to all the affected persons and giving time to the affected incumbents, including the original applicant to submit their objections thereto. It is made clear that the petitioner may also give his main objections to the matter as raised in the O.A, before the competent authority of respondents 1 & 2 and the same may also be duly considered along with various other objections that may be given by the affected persons in regard to the proposed provisional seniority list that may be circulated by respondents 1 & 2. After consideration of all the objections, respondents 1 & 2 will also be at liberty to prepare a O.P (KAT) No.303 of 2021 10 draft seniority list and the same may be made available to the Tribunal. The finalization of the said draft seniority list may be kept in abeyance until the final disposal of the main matter in the O.A by the Tribunal. The Tribunal may take all reasonable endeavours possible in the circumstances to ensure the early consideration final disposal of the main matter in the present O.A.No.727 of 2020, without much delay preferably within a period of two months, at any rate within an outer time limit of three months from the date of production of a certified copy of this judgment. The Registry will forward a copy of this judgment to the Kerala Administrative Tribunal, Thiruvananthapuram Bench, who is dealing with O.A.No.727 of 2020, for necessary information and further action.

With these observations and directions, the above Original Petition will stand finally disposed of.

Sd/-

ALEXANDER THOMAS, JUDGE Sd/-

VIJU ABRAHAM, JUDGE pm O.P (KAT) No.303 of 2021 11 APPENDIX OF OP(KAT) 303/2021 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ORIGINAL APPLICATION IN O.A.NO.727 OF 2020 ON THE FILES OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.

ANNEXURE A1 A TRUE COPY OF THE ORDER NO.458/87/H.EDN. DATED 21.2.1987, ISSUED BY THE 1ST RESPONDENT.

ANNEXURE A2 A TRUE COPY OF G.O.(MS) NO.202/87/H.EDN.

DATED 16.7.1987, ISSUED BY THE 1ST RESPONDENT.

ANNEXURE A3 A TRUE COPY OF G.O.(RT) 1450/87/H.EDN.

DATED 28.7.1987, ISSUED BY THE 1ST RESPONDENT.

ANNEXURE A4 A TRUE COPY OF G.O.(MS) NO.31/2000/H.EDN. DATED 10.3.2000, ISSUED BY THE 1ST RESPONDENT.

ANNEXURE A5 A TRUE COPY OF THE ORDER NO.CMP-

22799/2000 IN OP.14124/2000 IN THIS HON'BLE COURT OF KERALA DATED 11.7.2000.

ANNEXURE A6                A TRUE COPY OF THE JUDGMENT IN
                           O.P.NO.18719 OF 2002 DATED 6.1.2009.

ANNEXURE A7                A TRUE COPY OF THE ORDER NO.10522/10/E4
                           DATED 22.7.2011, ISSUED BY THE 2ND
                           RESPONDENT.

ANNEXURE A8                A TRUE COPY OF THE ORDER DATED
                           19.11.2015 IN O.A.NO.2006 OF 2013.

ANNEXURE A9                A TRUE COPY OF THE ORDER G.O.(MS)
                           NO.2323/16/H.EDN. DATED 31.8.2016,
                           ISSUED BY THE 1ST RESPONDENT.

ANNEXURE A10               A TRUE COPY OF THE LETTER
 O.P (KAT) No.303 of 2021               12

NO.6334/2015/SPL. CELL DATED 25.3.2015, AND RELEVANT EXTRACT OF THE SENIORITY LIST ISSUED BY THE 2ND RESPONDENT.

ANNEXURE A11 A TRUE COPY OF THE LETTER NO.6334/2015/SPL. CELL DATED 19.9.2018, ISSUED BY THE 2ND RESPONDENT AND THE RELEVANT EXTRACT OF THE SENIORITY LIST.

ANNEXURE A12               A TRUE COPY OF THE LETTER
                           NO.22076/16/E4/DP DATED 28.9.2016,
                           ISSUED BY THE 2ND RESPONDENT.

ANNEXURE A13               A TRUE COPY OF THE ORDER DATED 28.3.2018
                           IN O.A.NO.2393 OF 2017.

ANNEXURE A14               A TRUE COPY OF THE ORDER NO.6759/16/E4
                           DATED 14.10.2016, ISSUED BY THE 2ND
                           RESPONDENT.

ANNEXURE A15               A TRUE COPY OF THE ORDER

NO.125/2018/E4/DP DATED 4.1.2019, ISSUED BY THE 2ND RESPONDENT.

ANNEXURE A16 A TRUE COPY OF REPRESENTATION DATED 7.1.2019, SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT.

ANNEXURE A17 A TRUE COPY OF THE ORDER NO.6334/2015/SPL. CELL DATED 24.10.2019, ISSUED BY THE 2ND RESPONDENT AND THE RELEVANT EXTRACT OF THE SENIORITY LIST.

ANNEXURE A18 A TRUE COPY OF THE ORDER IN O.A.NO.1947 OF 2019 DATED 13.11.2019, ISSUED BY THE 2ND RESPONDENT.

ANNEXURE A19 A TRUE COPY OF THE LETTER NO.6334/2015/SPECIAL CELL DATED 13.12.2019, SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.

ANNEXURE A20 A TRUE COPY OF THE REPRESENTATION DATED 3.1.2020 SUBMITTED BY THE PETITIONER O.P (KAT) No.303 of 2021 13 BEFORE THE 1ST RESPONDENT.

ANNEXURE A21 A TRUE COPY OF THE ORDER NO.380/2020 DATED 5.3.2020, ISSUED BY THE 1ST RESPONDENT.

ANNEXURE A22 A TRUE COPY OF THE PROCEEDINGS NO.28240/03/SPL. CELL DATED 23.8.2003, ISSUED BY THE 2ND RESPONDENT.

Exhibit P2 A TRUE COPY OF THE APPLICATION IN M.A.NO.1464 OF 2021 IN O.A.NO.727 OF 2020 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.

Exhibit P3 A TRUE COPY OF THE APPLICATION IN M.A.NO.1463 OF 2021 IN O.A.NO.727 OF 2020 OF THE KERALA ADMINISTRATIVE TRIBUNAL.

Exhibit P4 A TRUE COPY OF THE REPLY STATEMENT DATED 4.10.2021 IN O.A.NO.727 OF 2020 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.

Exhibit P5 A TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 22.10.2021 IN O.A.NO.727 OF 2020 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.

Exhibit P6                 A TRUE COPY OF THE ORDER DATED
                           26.10.2021 IN O.A.NO.727 OF 2020 OF THE
                           KERALA ADMINISTRATIVE TRIBUNAL,
                           THIRUVANANTHAPURAM.

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