Betty P Anto vs Mathew Thomas on 12 June, 2024

[Cites 20, Cited by 0]

Kerala High Court

Betty P Anto vs Mathew Thomas on 12 June, 2024

These appeals arise from the judgment of the learned Single Judge in W.P.(C)No.41092 of 2023. The appellant in W.A.No.505 of 2024 is the 5 th respondent in the writ petition. W.A.No.507 of 2024 is filed by the 4th respondent, Manager. The 1st respondent in both these appeals is the writ petitioner. We refer to the parties as they are arrayed in W.A.No.505 of 2024.

2. We will start with the relevant facts. The appellant was appointed as Higher Secondary School Teacher on 24.8.1998 in Syrian Christian Higher Secondary School, Chellackadu, Ranni. The 1st respondent also joined service on the same day as a Higher Secondary School Teacher (Junior). He was later appointed as HSST on 15.7.1999.

3. In Ext.P1 seniority list as on 01.01.2018 the 1st respondent was shown as senior to the appellant. The said seniority list was circulated among the teachers and the W.A.Nos.505 & 507 of 2024 6 appellant as well as the 1st respondent had signed the same. Thus, the said seniority list was well within the knowledge of both parties. It is pleaded by the appellant that she pointed out the anomaly to the then Manager and sought correction. Later, she submitted a representation to the 4 th respondent on 21.1.2022 pointing out that she was appointed as HSST earlier to the appointment of the 1st respondent to the said post and therefore her name should have been shown at Serial No.3 in Ext.P1 seniority list. The management admits that the said representation is available in their files. Later, the management published another seniority list as on 01.01.2023 which has been produced as Ext.P10. In Ext.P10, the appellant has been included as Rank No.2 in seniority while the 1st respondent has been put in the fifth position in the order of seniority. The 1 st respondent did not sign the said seniority list. When it was circulated it was noted that he has not signed as he has objection in the matter. He submitted Ext.P2 representation to the 4th respondent against re-determination of seniority. He thereafter approached this Court when the Manager gave charge of Principal to the appellant. He sought declaration that he is senior than the appellant in the light of Ext.P1 seniority list and W.A.Nos.505 & 507 of 2024 7 direction to appoint him as the Principal in the light of the decision in Pavithran v. State of Kerala [2009 (4) KLT 20 (F.B.)]. Some other reliefs were also sought. The learned Single Judge disposed of the said writ petition (W.P.(C)No.19180/2023) on 14.6.2023. The learned Single Judge issued a direction to the Regional Deputy Director to consider and pass orders on the representation of the 1st respondent, taking into account the judgment of this Court in Pavithran's case (supra). The appellant herein filed R.P.No.678 of 2023, aggrieved by the judgment in W.P.(C)No.19180 of 2023 on the ground that the judgment was delivered without hearing her and the Manager of the school. The learned Single Judge clarified in the review petition that the matter was not decided on merits and disposed the review petition on 4.7.2023 directing the 3 rd respondent to give one more opportunity of hearing to the review petition, Manager and the writ petitioner before passing final order. In compliance with the directions issued by the learned Single Judge in W.P.(C)No.19180/2023 and R.P.No.678 of 2023, the third respondent considered the issue and passed Ext.P5 order on 07.07.2023. The 3rd respondent rejected the request of the 1st respondent. The 3rd respondent stated in Ext.P5 that the W.A.Nos.505 & 507 of 2024 8 appellant was appointed as HSST on 24.8.1998; whereas the 1 st respondent was appointed on the same date as HSST (Junior). It was also noted that the 1st respondent became HSST only on 15.7.1999. The provisions of KER regarding fixation of seniority were noted and it was concluded by the 3 rd respondent that the appellant is senior than the 1st respondent. The seniority list prepared by the Manager was approved by the 3rd respondent.

4. Challenging the order dated 7.7.2023, the 1st respondent approached this Court in W.P.(C)No.25534 of 2023. By judgment dated 13.10.2023 a learned Single Judge of this Court disposed the writ petition. The learned Single Judge found that the order passed by the 3rd respondent does not reflect consideration of the dictum laid down in the judgment in Pavithran's case (supra). The learned Single Judge held that the order was not issued by the 3 rd respondent in tune with the directions issued by the court and therefore the order was set aside. The 3rd respondent was directed to hear the parties again and decide the issue.

5. In compliance with the directions contained in the judgment in W.P.(C)No.25534 of 2023, the Regional Deputy Director conducted hearing again and passed Ext.P7 order on W.A.Nos.505 & 507 of 2024 9 21.11.2023. The Regional Deputy Director considered the issues in detail and again concluded that the appellant is senior in the post of HSST and the request of the 1 st respondent herein to place him above the appellant cannot be countenanced.

6. With relentless spirits, the 1st respondent continued the legal combat by filing W.P.(C)No.41092 of 2023, challenging Exts.P7, P10 and P11 orders issued against his interests. He sought a direction to the respondents 3 and 4 to appoint him as Principal on the basis of Ext.P1 seniority list and the principles laid down in Pavithran's case (supra). He further prayed for a declaration to the effect that he is senior to the 5 th respondent/appellant herein (W.A.No.505/2024). The appellant, Manager and the Regional Deputy Director filed separate counter affidavits. On completion of pleadings the learned Single Judge took up the writ petition for hearing and disposed it by judgment dated 21.3.2024. The writ petition was allowed and the impugned orders were quashed. A direction was issued to the 4th respondent to consider seniority of the 1 st respondent herein and the appellant in terms of Ext.P1 seniority list, without reference to Ext.P10 seniority list and to make appointment to the post of Principal. The appellant as well as the management, W.A.Nos.505 & 507 of 2024 10 being aggrieved by the judgment of the learned Single Judge have filed these appeals.

7. We heard respective counsel for the parties and the learned Government Pleader elaborately.

8. Sri.S.Subhash Chand appearing for the appellant argued that the appellant entered service as HSST on 24.8.1998 and undeniably, entry of the 1st respondent to service on the same day was in the post of HSST (Junior). He pointed out that the 1st respondent was appointed as HSST later on 15.7.1999. He further submitted that Ext.P1 seniority list as on 01.01.2018 was issued at a time when the appellant was undergoing treatment for cancer and therefore, she could not immediately resist erroneous fixation of seniority. She had raised the issue with the then Manager and later she submitted Ext.R5(b) representation on 21.1.2022. He also submitted that the mistake was realised by the management and therefore the same was rectified by issuing Ext.P10 seniority list as on 01.01.2023. He further contended that there is no statutory stipulation in Chapter XXXII of the KER making it mandatory to publish seniority list. Learned counsel maintained that the 1 st respondent herein is making an attempt to take undue advantage of the W.A.Nos.505 & 507 of 2024 11 mistake committed by the management which was later rectified. He vehemently submitted that the learned Single Judge committed serious error in applying sit back theory to the facts of the present case and allowing the writ petition. He mainly placed reliance on the judgment in Francina Antony and another v. State of Kerala and others [2015 KHC 305] and contended that a Division Bench of this Court upheld corrective measures in seniority initiated within five years of the finalisation of the seniority list and held that the same is permissible. He pointed out that "sit back theory" was not applied by the court in the said judgment finding that the delay was not excessive. He raised a specific contention referring to paragraph 21 of the said judgment that those who contributed to the mistakes and made attempt to capitalize the mistakes committed by the appointing authority cannot claim the benefit of sit back and dis-entitle rightful entitlement of others. He, therefore, prayed that the judgment of the learned Single Judge be set aside and appointment of the appellant may be upheld.

9. Sri.Jacob P.Alex, learned counsel appearing for the Manager submitted that provisions of Chapter XIV A of the KER regarding maintenance of seniority list are not applicable to the W.A.Nos.505 & 507 of 2024 12 Higher Secondary School sector and there is no statutory stipulation in Chapter XXXII of the KER regarding seniority list, similar to the provisions in Chapter XIV A. He therefore contended that seniority list prepared/maintained by the managements of higher secondary schools cannot be considered as prepared on the strength of statutory stipulations. His further contention is that a survey of precedents wherein the "sit back theory" has been applied would show that those were all cases wherein seniority lists were maintained in compliance with statutory provisions. He referred to Rule 2 of Chapter XXXII of KER and pointed out that the said provision dealing with method of appointment and qualification of teachers and non-teaching staff opens with non-obstante clause and therefore no provisions other than that of Chapter XXXII would apply in matters of qualification of teachers and non-teaching staff of Higher Secondary Schools. He, therefore, submitted that the 1 st respondent is dis-entitled to claim any benefit on the basis of Ext.P1 seniority list and also that "sit back theory" cannot be applied. He also argued that Pavithran's case (supra) has no application to the Higher Secondary sector as it was a case involving application of the provisions of Chapter XIV A of the W.A.Nos.505 & 507 of 2024 13 KER and the seniority list concerned in the said case was maintained as per Rules 34 and 38 of Chapter XIV A. He reiterated the contention that Exts.P1 and P10 seniority lists not being prepared and maintained on the basis of any statutory provisions, the principles laid down in Pavithran's case (supra) cannot be imported to the facts of the present case. He confirmed that the appellant had requested for correction of the seniority list as claimed by her in the counter affidavit and the representation produced as Ext.R5(b) is available in the records of the Manager. He placed various judgments of the Hon'ble Supreme Court as well as this Court for consideration. Learned counsel has referred to the following judgments to buttress his contentions:-

1. Manager Nanminda Higher Secondary School, Kozhikode v. Director of Higher Secondary Education, Tvm and others [2015 (3) KLT 307],

2. Ramesan and others v. Manoj Kumar K. and others [ILR 2019 (3) Ker.312],

3. Girija Kumar v. Rajitha [2019 (4) KLT 315], W.A.Nos.505 & 507 of 2024 14

4. Rajeswari Devi S. v. State of Kerala [ILR 2023(2) Ker.60],

5. Rabindranath Bose and others v. The Union of India & others [(1970) 1 SCC 84],

6. Union of India v. H.R.Patankar and others [(1984) Suppl.SCC 359],

7. Ramchandra Shankar Deodhar & others v.

State of Maharashtra & others [(1974) 1 SCC 317],

8. A.P.Co-operative Oil Seeds Growers Federation Ltd, Hyderabad, Andhra Pradesh v. D.Achyuta Rao and others [(2007) 13 SCC 320],

9. Manager, Corporate Educational Agency v.

James Mathew & others [(2017) 15 SCC 595].

10. The learned Senior Counsel Sri.Raju Joseph appearing for the 1st respondent, instructed by learned counsel Sri.Julian Xavier submitted that the appellant is not justified in challenging the seniority as per Ext.P1 as Ext.P1 seniority list was circulated among teachers and the same was signed by the appellant also. W.A.Nos.505 & 507 of 2024 15 He submitted that if the appellant had any genuine grievance, it was for her to seek correction of the seniority list immediately thereafter. He argued that the appellant has no reliable case that she raised dispute any time before 22.1.2022. He also submitted that promotions were effected on the basis of Ext.P1 seniority list earlier and the said list ought not have been revised by the management after a considerable lapse of time. He also submitted that though the 1st respondent made attempt to obtain copies of seniority list published prior to 2018, reply received from the Manager was to the effect that such seniority lists are not available in their records. His further contention is that at the time of every promotion the management certainly would have prepared seniority lists and at no point of time the appellant had raised any grievance prior to 21.2.2022. He asserted that the learned Single Judge is perfectly right in applying "sit back theory" in the facts and circumstances of the case and the direction to consider the 1 st respondent for appointment as Principal is absolutely justified.

11. Smt.B.Vinitha, learned Senior Government Pleader appearing for the official respondents contended that the appellant is admittedly senior in the cadre of HSST and the W.A.Nos.505 & 507 of 2024 16 decisions taken by the Regional Deputy Director are perfectly in order. She further submitted that the 1 st respondent is making attempt to take advantage of a mistake committed by the management. She relied upon the judgments reported in Manager, Corporate Educational Agency v. James Mathew & others [(2017) 15 SCC 595] and also the judgment of a Division Bench of this Court in Manager, St.Paul's Higher Secondary School v. State of Kerala and others [(2020) 2 KLT 443] to argue that the Higher Secondary School is administered by a minority management and hence choice regarding appointment of Principal is left to the discretion of the Manager and only requirement is that the teacher chosen must have necessary qualifications for the post of Principal. Hence, she submitted that though the management has not obtained any declaration to that effect, the inherent right of the management under Article 30 of the Constitution empowers the Manager to choose any qualified teacher as Principal. Crux of the submission of the learned Senior Government Pleader is that in any view of the matter the choice of the management to appoint the appellant as Principal is not liable to be interfered with.

W.A.Nos.505 & 507 of 2024 17

12. We find that there is no dispute regarding the fact that the appellant was appointed on 24.8.1998 as HSST; whereas the 1st respondent was appointed on the same day as HSST (Junior). He was promoted as HSST only on 15.7.1999. In the light of interpretation placed by a Division Bench of this Court on the provisions of Rule 6 of Chapter XXXII of the KER in Nanminda HSS's case (supra), service as HSST (Junior) cannot be counted for promotion to the post of Principal. Therefore, it cannot be disputed that the appellant who was appointed on 24.8.1998 as HSST is actually senior in the said post than the 1 st respondent who got appointed as HSST only with effect from 15.6.1999 and service of the 1 st respondent in the post of HSST (Junior) cannot be reckoned to his advantage for promotion to the post of Principal. In this regard, it is relevant to note that even in Ext.P1 heavily relied on by the 1 st respondent, the respective dates have been clearly stated. Hence, the appellant is right in contending that she is in reality senior to the 1 st respondent in the post of HSST. Consequently, only aspect to be considered in this case, according to us, is the pertinency of the "sit back theory".

W.A.Nos.505 & 507 of 2024 18

13. A Constitution Bench of the Hon'ble Supreme Court in Rabindranath Bose and others v. The Union of India & others [(1970) 1 SCC 84] considered a case of officers of the Income Tax Department aspiring for promotion as Commissioners. The dispute was regarding seniority. Hon'ble Supreme Court considered the delay involved in raising the challenge and held that the original jurisdiction provided to it, to entertain petitions under Article 32 of the Constitution, is a guaranteed right and it could not have been the intention that the Hon'ble Supreme Court would venture to examine stale demands after a lapse of years. Hon'ble Supreme Court further added that it does not follow that it was the intention of the Constitution makers that the Supreme Court should discard all principles and grant relief in petitions filed after inordinate delay. Next to the said observation, in paragraph 33 of the report, Hon'ble Apex Court held as follows:-

"33. 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 W.A.Nos.505 & 507 of 2024 19 long time ago would not be set aside after the lapse of a number of years."

Formulation of the "theory of sit back" by the Hon'ble Apex Court, now very familiar in service jurisprudence, perhaps happened in this case.

14. Soon thereafter, another Constitution Bench of the Hon'ble Supreme Court, in Ramchandra Shankar Deodhar & others v. The State of Maharashtra and others [(1974) 1 SCC 317] considered a case of promotion to the post of Deputy Collector from the cadre of Mamlatdars/Tahsildars. Rabindranath Bose's case was also referred to. A preliminary objection raised on behalf of the respondents was that the petitioners were guilty of gross laches and delay in filing the petition. The said contention was rejected by the Hon'ble Apex Court with the following observations:-

"10. ............................................................... ...................We do not think this contention should prevail with us. In the first place, it must be remembered that the rule which says that the Court may not inquire into related and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there W.A.Nos.505 & 507 of 2024 20 is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by Hidayatullah, C.J., in Tilockchand Motichand v. H.B.Munishi "is one of discretion or this Court to follow from ,case to case. There is no lower limit and there is no upper limit-. It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose." .............................................................. .......It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches or delay is that the rights which have accrued to others by reasons of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. This principle was stated in the following terms by Hidayatullah, C.J. in Tilockchand Motichand v. H.B.Munishi (supra):

"The party claiming Fundamental Rights must move the Court before other rights come into existence. The action of courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court."

Sikri, J., (as he then was), also re-stated the same principle in equally felicitous language when he said in' R. N. Bose v. Union of India(2) : "It would be unjust to deprive the respondents of the rights which have, W.A.Nos.505 & 507 of 2024 21 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." Here as admitted by the State Government in paragraph 55 of the affidavit in reply, all promotions that have been made by the State Government are provisional and the position has not been crystallised to the prejudice of the petitioners. No rights have, therefore, accrued in favour of others by reason of the delay in filing the petition. The promotions being provisional, they have not conferred any rights on those promoted and they are by their very nature liable to be set at naught, if the correct legal position, as finally determined, so requires. We were also told by the learned counsel for the petitioners, and that was not controverted by the learned counsel appearing on behalf of the State Government, that even if the petition were allowed and the reliefs claimed by the petitioners granted to them, that would not result in the reversion of any Deputy Collector or officiating Deputy Collector to the post of Mamlatdar/Tehsildar; the only effect would be merely to disturb their inter se seniority as officiating Deputy Collectors or as Deputy Collectors. Moreover, it may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Article 16 is itself a fundamental right guaranteed under Article 32 and W.A.Nos.505 & 507 of 2024 22 this Court which has been assigned the role of a sentinel on the qui vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like."

[Emphasis added] The above extracted observations and conclusions of Constitution Benches of the Hon'ble Supreme Court makes the following aspects profusely clear about "theory of sit back" -

1) Principle which says that the court may not enquire into belated and stale claims is not a rule of law,

2) It is a rule of practise based on sound and proper exercise of discretion,

3) There is no inviolable rule that whenever there is delay the court must necessarily refuse to interfere,

4) Applicability of the principle of delay and laches depends upon the nature of the breach of the fundamental right involved and the remedy claimed, W.A.Nos.505 & 507 of 2024 23

5) How the delay arose is a relevant consideration,

6) Another relevant consideration is whether any rights have been accrued to others by reason of delay,

7) The right of equal opportunity under Article 16 being a fundamental right, violation of the same cannot be easily ignored on the ground of laches and delay.

15. On an analysis of the principles laid down by the Hon'ble Apex Court as noted above, we are of the view that the "theory of sit back" is a manifestation/application of doctrines of delay, laches, acquiescence etc. in service jurisprudence. It is not a rule strictly of law. Doctrines of delay, laches, etc. are principles developed on the basis of equity and natural justice. Such principles are not to be understood and applied in a rigid manner. Application of such principles and doctrines to the facts of the case arising for determination is a duty to be judiciously undertaken by the courts. Whether there is delay or laches or acquiescence, etc. would depend upon the facts and W.A.Nos.505 & 507 of 2024 24 circumstances of the case. Principles of delay and laches cannot be easily invoked to negate valid claims arising out of violation of fundamental rights. Similarly, beneficiaries/collaborators of erroneous actions of the administrative authorities cannot be simply permitted to enjoy the benefits arising out of such mistakes to the detriment of others, solely on grounds of delay and laches on the part of those who suffered on account of such mistakes. Otherwise, the result would be travesty of justice. As we observed, the "theory of sit back" being a manifestation basically of principles of delay, laches, acquiescence etc; which are all doctrines based in equity, we have to consider the "theory of sit back" also as a principle founded on equity.

16. Purpose of devising the "theory of sit back", as explained by the Hon'ble Apex Court, is to ensure quietus regarding seniority acted upon and remaining unchallenged for elongated periods, so that there will be sense of security among the employees. It is essentially a theory developed in the interest of public policy and founded on good conscience. Seniority is a significant aspect in official careers. Every employee is entitled to get due benefits on account of length of W.A.Nos.505 & 507 of 2024 25 service in the respective posts/cadres. Promotion prospects in most cases normally depend upon seniority. Cases involving instances of deliberately altering seniority to provide undeserving benefits to favorites and denying due benefits to disfavored are not uncommon in-service law. Bonafide mistakes also happen in many cases. Non correction of errors in the order of seniority results many a time in denial of benefits like promotions to those who genuinely deserve it on the basis of seniority. Unmerited candidates sometime steal a march over really deserving ones. Injustice will be perpetuated in such circumstances. Sit back theory, founded on doctrines of delay, laches and such other equitable principles cannot be used as a shield to defend every error in fixation of seniority not challenged and set right instantly. The theory shall be applied only in cases involving unreasonable delay in complaining, accrual of valuable rights in between, manifest acquiescence by the concerned etc. Applying the theory, heedless of facts and circumstances of the case concerned, may lead to denial of valuable rights and injustice. A theory founded on salutary principles of equity shall not be applied in a manner resulting in inequity as the word "equity" denotes "the body of principles W.A.Nos.505 & 507 of 2024 26 constituting what is fair and right" (See Black's Law Dictionary). Consequently, court has the duty to apply the theory carefully and not mechanically. It shall be born in mind that the principle of equity, to begin with will favour those who have been treated unfairly and will continue to lean in their favour, till they, due to indolence, lack of diligence or by acquiescence let others accrue rights in their favour and get things settled with passage of time. So, tilting of the pointer may happen at some point in the timeline. Actual task of the court would be to judiciously find out whether the matter has reached such a point in the timeline.

17. Coming back to the facts of the case, as we noted above, the appellant is obviously senior in the post of HSST to the 1st respondent. The said fact is indisputable for the reason that her entry to service was as HSST and the 1 st respondent who joined on the same date as HSST (Junior) was appointed as HSST only later. The seniority list, apparently erroneous, was first published on 01.01.2018. It appears that the appellant did not raise any dispute in writing immediately. Her case in the counter affidavit, supported by treatment record produced as Ext.R5(f), is that she was undergoing treatment for cancer when W.A.Nos.505 & 507 of 2024 27 the said list was issued. She also states that when the list was circulated, she brought the error to the notice of the then Manager and got an assurance that the same can be rectified when the list is published next time. She submitted Ext.R5(b) on 21.1.2022, certainly after a lapse of more than four years. The management, taking note of the grievance and admitting their mistakes, issued a seniority list (Ext.P10) on 01.01.2023 placing the appellant above the 1st respondent on the basis of her entry to the post of HSST earlier than the 1 st respondent. The question is therefore whether there is unpardonable delay on the part of the appellant in raising dispute regarding the erroneous seniority list dated 01.01.2018 and also that whether alteration of the order of seniority by the management, by issuing Ext.P10 seniority list, is liable to be held improper, applying " theory of sit back".

18. It is evident from Ext.P1 seniority list itself that the appellant is senior to the 1 st respondent. In fact, the entries in Ext.P1 regarding the date of entry in service etc., are correct. Against the name of the appellant at Serial No.4, the date of entry in service as HSST is correctly shown as 24.8.1998. W.A.Nos.505 & 507 of 2024 28 Against the name of the 1 st respondent at Serial No.3 date of entry in service as HSST (Junior) is shown as 24.8.1998 and with respect to the post of HSST, the date has been noted as 15.7.1999. Therefore, it is clearly revealed in Ext.P1 itself that the date of entry in service of both the appellant and the 1 st respondent is 24.8.1998 respectively in the posts of HSST and HSST (Junior) and also that the 1 st respondent was appointed as HSST only with effect from 15.7.1999. Therefore, it is crystal clear that in the post of HSST the appellant is actually senior to the 1st respondent. However, apparently by way of mistake, his name was shown as Serial No.3 in the order of seniority and the appellant was positioned next to him. The same can be considered only as a mistake committed by the management. The management thereafter took note of the mistake and issued Ext.P10 seniority list on 01.01.2023. In the said seniority list employees have been properly placed taking note of the date of joining in respective posts. Hence, the fact remains that the appellant is actually senior to the 1 st respondent. We do not see that the said fact has been disputed by the 1st respondent also specifically. He only claims the benefit of the "theory of sit back"

pointing out that the seniority list issued in 2018 was not altered W.A.Nos.505 & 507 of 2024 29 or modified any time till 2023. He emphasizes that the appellant was not diligent in raising dispute if she had any genuine grievance and she merely acquiesced to the position in Ext.P1 seniority list and therefore she cannot be permitted to dispute it at this distance of time.

19. As we discussed already, "theory of sit back" is essentially a theory developed on the basis of principles of equity, good conscience, public policy, etc, It is certainly germane in matters related to inter se seniority and promotions.

Hon'ble Supreme Court has applied the theory in large number of cases. However, no inflexible time limit for applying the theory has been laid down in any case. Fixing certain time limits as in the Limitation Act for application of such doctrines is not rational and practical. It is true that the Hon'ble Supreme Court has considered the period varying from 3 to 4 years as a reasonable period for seeking correction in the matter of seniority in K.R.Mudgal and others v. R.P.Singh and others [(1986) 4 SCC 531]. The said judgment has been followed in many cases including Shiba Shankar Mohapatra and others v. State of Orissa and others [(2010) 12 SCC 471]. W.A.Nos.505 & 507 of 2024 30 Reference to the factual background in the above two cases would show that the reasonable period of 3 to 4 years indicated by the Hon'ble Supreme Court in the above cases cannot be considered as fixing of an inflexible time limit irrespective of the facts and circumstances of cases. It is well settled regarding application of the foundational doctrines of delay, laches, acquiescence, etc that no inflexible time limits can be fixed.

Hence fixing of any specific time limit for application of the "theory of sit back", in service jurisprudence will also be not rational and realistic. In a given case, delay of a particular period of time like one year may be fatal. But if there is sufficient reason to justify the same, the very same period may be liable to be forgiven in another case. Hence, application of such principles always depends upon the facts and circumstances.

20. In Prabhakar v. Joint Director, Sericulture Department & another [(2015) 15 SCC 1] the Hon'ble Supreme Court held as follows:-

"38) It is now a well recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no W.A.Nos.505 & 507 of 2024 31 limitation period prescribed by any statute relating to certain proceedings, in such cases Courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity "delay defeats equities".

39) This principle is applied in those cases where discretionary orders of the Court are claimed, such as specific performance, permanent or temporary injunction, appointment of receiver etc. These principles are also applied in the writ petitions filed under Articles 32 and 226 of Constitution of India. In such cases, Courts can still refuse relief where the delay on the petitioner's part has prejudiced the respondent even though the petitioner might have come to Court within the period prescribed by the Limitation Act.

40) Likewise, if a party having a right stands by and sees another acting in a manner inconsistent with that right and makes no objection while the act is in progress he cannot afterwards complain.

This principle is based on the doctrine of acquiescence implying that in such a case party who did not make any objection acquiesced into W.A.Nos.505 & 507 of 2024 32 the alleged wrongful act of the other party and, therefore, has no right to complain against that alleged wrong.

41) Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the Court, if the action is not brought within that prescribed period the aggrieved party looses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other cases even where no limitation is prescribed, but for a long period the aggrieved party does not approach the machinery provided under the law for redressal of his grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the presumption that such person has waived his right or acquiesced into the act of other. As mentioned above, these principles as part of equity are based on principles relatable to sound public policy that if a person does not exercise his right for a long time then such a right is non-

existent."

21. In the present case, the appellant offers an explanation that at the time of issuance of Ext.P1 seniority list she was undergoing treatment for cancer and still she raised the issue with the then Manager, who assured her to rectify the W.A.Nos.505 & 507 of 2024 33 same next time. Later, the representation marked as Ext.R5(b) was also submitted. Management also admits that she submitted Ext.R5(b) representation and the same is available in the relevant file. A person in fragile health condition may be naturally not in a position to quickly respond or object in such matters effectively. We find the explanation of the appellant in this regard to be reasonable and acceptable. The decision to correct the order of seniority was taken by the management apparently within five years and the same was published/brought to the notice of the concerned by issuing Ext.P10. It is also to be noted that after Ext.P1 was issued, management did not admittedly publish any seniority lists till issuance of Ext.P10. As rightly pointed out by the learned counsel for the appellant Sri.Subhash Chand, a Division Bench of this Court in Francina Antony and another v. State of Kerala and others [2015 KHC 305], after reference to the judgments of the Hon'ble Supreme Court including the cases of Shiba Shankar Mohapatra (supra) and K.R.Mudgal (supra) refused to apply the "theory of sit back" in a case in which corrective measures were initiated within five years of finalisation of the seniority list holding that it was not a case where there was W.A.Nos.505 & 507 of 2024 34 inordinate delay for the theory of sit back to be blindly imported. Regarding the time limit indicated by the Hon'ble Supreme Court in Mudgal's case (supra), the Hon'ble Division observed as follows-

"This case was also decided in the facts of the case and the period of 3-4 years indicated therein cannot be taken to lay down any principle of universal application , irrespective of the facts of the case."

In the case on hand also, corrective measures were taken within 5 years. The Division Bench also held that the petitioners therein contributed to the mistake by the department and attempted to capitalise out of the mistake and hence refused to extend the benefit of the principle of sit back to them, the same being a principle of equity.

22. In this regard, we feel it apposite to note the observation of the Constitution Bench of the Hon'ble Apex Court in Ramchandra Shankar Deodhar's case (supra) regarding the enforcement of the fundamental right of equal opportunity under Article 16. The Hon'ble Supreme Court held that the Apex Court, which has been assigned the role of a sentinel on the W.A.Nos.505 & 507 of 2024 35 qui vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like. In the said judgment the Hon'ble Supreme Court refused to apply the "theory of sit back"

specifically noticing that no rights were accrued in favour of those who were resisting granting of relief, relying on the theory.

It was also observed by the Hon'ble Constitution Bench that the principle on which the Court proceeds in refusing relief on grounds of laches or delay is that the rights which have accrued to others by reason of delay should not be allowed to be disturbed unless there is reasonable explanation for the delay.

In view of the above extracted salutary principles laid down by the Hon'ble Apex Court also, we are of the view that the "theory of sit back" is not liable to be invoked in the facts and circumstances of this case. If we apply the same in the present case, to the detriment of the appellant, the result would be inequity.

23. We take note of the judgment in Francina Antony's case (supra) also to conclude that the delay in the present case in the matter of correcting seniority cannot be considered as W.A.Nos.505 & 507 of 2024 36 fatal, calling for application of the "theory of sit back". As in the said case, in this case also, corrective action was taken before completion of 5 years and the revised list was published thereafter. The action of the management in issuing Ext.P10 corrected seniority list is liable to be upheld as a corrective measure. The management has acted in a bonafide manner by correcting the mistakes. Hence, we do not find anything improper in appointing the appellant as Principal based on Ext.P10. The decision in this regard, taken by the management is found proper and legal.

24. Factual narration in Pavithran's case (supra) decided by Honourable Full Bench reveals that the delay involved in pursuing the dispute regarding seniority in the said case, after the initial unsuccessful efforts, was a long period of ten years. Application of the theory of sit back by the Full Bench in Pavithran's case (supra) has to be understood in the said background.

25. Another aspect to be noted is that no advantage/disadvantage has been resulted to the appellant or the 1st respondent on the basis of their inter se seniority as per W.A.Nos.505 & 507 of 2024 37 Ext.P1. Promotional prospect arose only in the year 2023, as far as both of them are concerned, when the post of the Principal became vacant. For the said appointment, Ext.P10 corrected list was relied on, triggering the series of litigation. During the interregnum, ranking in the seniority list of the year 2018 had in fact no relevance or impact in the careers of either the appellant or the 1st respondent. Hence, no rights crystallised in favour of the 1st respondent during the period between the issuance of Exts.P1 and P10. For this reason also, we find this case unfit for invocation of the "theory of sit back".

26. The learned Government pleader, relying on the judgment of the Hon'ble Supreme Court in Manager, Corporate Educational Agency's case (supra) and also the judgment in Manager, St.Paul's Higher Secondary School's case (supra) submitted that the management of the school being a "minority management" entitled for claiming the rights under Article 30 of the Constitution is free to choose any teacher having the qualification to hold the post of Principal to the said post and therefore regardless of the row regarding inter se seniority, the decision of the management to appoint the appellant is liable to W.A.Nos.505 & 507 of 2024 38 be upheld. We note that the learned counsel for the Manager, Sri.Jacob P.Alex in response to the said contention fairly submitted that the management has not claimed the rights under Article 30 in this case before the learned Single Judge and also before us in these appeals. He submitted that the management has acted fairly and chosen the Principal in accordance with seniority, without circumventing the same by claiming the privilege under Article 30. Therefore, we need not discuss much about the said contention raised by the learned Government Pleader. However, we observe that for the said reason as well, the decision of the management is liable to be upheld.

Therefore, we set aside the judgment of the learned Single Judge and allow these appeals. The Writ Petition filed by the 1 st respondent shall stand dismissed.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE Sd/-

S.MANU, JUDGE skj W.A.Nos.505 & 507 of 2024 39 APPENDIX OF WA 505/2024 APPELLANT'S ANNEXURES Annexure 1 A TRUE COPY OF THE RULING OF THIS COURT IN FRANCINA ANTONY AND ANOTHER V. STATE OF KERALA AND OTHERS (2015 KHC 305)

Unlock Advanced Research with PRISMAI

Kerala High Court