Kerala High Court
Francina Antony vs State Of Kerala on 23 September, 2013
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
THURSDAY, THE 4TH DAYOF DECEMBER 2014/13TH AGRAHAYANA, 1936
OP(KAT).No. 3467 of 2013 (Z)
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AGAINST THE ORDER IN OA 2124/2013 of KERALA ADMINISTRATIVETRIBUNAL,
THIRUVANANTHAPURAM DATED 23-09-2013
PETITIONERS:
1. FRANCINA ANTONY
W/O. C.T.ANTONY, HEAD NURSE, MEDICAL COLLEGE HOSPITAL
GANDHI NAGAR P.O., KOTTAYAM, PIN-686008
RESIDING AT CHITTILAPPILLYHOUSE, KUMARANALOOR P.O.
KOTTAYAM, PIN-686016.
2. SHILAJA CHERIAN AGED 48 YEARS
W/O. ANTONY HENRY,HEAD NURSE
MEDICAL COLLEGE HOSPITAL, GANDHI NAGAR P.O., KOTTAYAM
PIN-686008, RESIDING ATVALIYAPARAMBIL HOUSE
MUNDIYAPPALLYP.O., THIRUVALLA
PATHANAMTHITTA DISTRICT,PIN-689593.
BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY
SMT.N.SANTHA
SRI.K.A.BALAN
SRI.PETER JOSE CHRISTO
SRI.S.A.ANAND
SMT.L.ANNAPOORNA
RESPONDENTS:
1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT
HEALTH AND FAMILYWELFARE DEPARTMENT,SECRETARIAT
THIRUVANANTHAPURAM-695001.
2. THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION,
THIRUVANANTHAPURAM, PIN-695033.
3. THE DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF HEALTH SERVICES,
THIRUVANANTHAPURAM, PIN-695035.
4. ANNAMMA JOSEPH, HEAD NURSE, MEDICAL COLLEGE HOSPITAL
GANDHI NAGAR P.O., KOTTAYAM DISTRICT,PIN-686008.
R4 BY ADV.SRI.KALEESWARAM RAJ
R2 BY SR. GOVERNMENT PLEADER SRI.VIJU THOMAS
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON
04-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(KAT).No. 3467 of 2013 (Z)
APPENDIX
PETITIONERS' EXHIBITS
EXHIBIT P1- TRUE COPY OF O.A. 2124 OF 2013 OF THE HON'BLE KERALA
ADMINISTRATIVE TRIBUNAL.
EXHIBIT P2- TRUE COPY OF THE ORDER DATED 23-09-2013 IN O.A.NO. 2124 OF
2013 OF THE KERALA ADMINISTRATIVE TRIBUNAL.
RESPONDENTS' EXHIBITS
NIL.
// TRUE COPY //
P.A. TO JUDGE
ANTONY DOMINIC & ANIL K. NARENDRAN, JJ.
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O.P.(KAT)No.3467 OF 2013
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Dated this the 4th day of December, 2014
JUDGMENT
Antony Dominic, J.
This original petition is filed by the applicants in O.A.2124/2013 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram which was rejected by its order dated 23.9.2013.
2. We heard the counsel for the petitioners, learned Government Pleader and the counsel appearing for the fourth respondent.
3. Briefly stated the facts of the case are that, on being advised by the Public Service Commission, the petitioners joined the post of Staff Nurse Grade II in the Health Services Department on 28.7.1993 and 19.7.1993 respectively. On 17.8.1996, the fourth respondent also joined service as Staff Nurse Grade II.
4. During their probationary period, petitioners availed leave without allowance for foreign employment in terms of the provisions O.P.(KAT)No.3467 OF 2013 : 2 : contained in Appendix XII A, Part I, Kerala Service Rule. This was during the period from 27.8.1993 to 15.3.1998 and 23.8.1995 to 22.8.2005 respectively.
5. Subsequent to their rejoining service, by Annexure A2 dated 25.10.2007, the Additional Director of Health Services finalised the seniority list of Staff Nurse Grade II for the period 7.7.1990 to 31.12.2002. Annexure A2(a) is the seniority list thus published. In this seniority list, the petitioners and the fourth respondent are assigned the seniority at Sl.Nos.387, 391 and 1259 respectively. Although as against the first respondent, there is no remark in the seniority list; in so far as the second petitioner is concerned, it is stated "relieved to take up employment abroad".
6. Based on Annexure A2(a) seniority list, on 10.11.2008, Annexure A3 proceedings were issued by the Additional Director, promoting Sl.No.1 to 3459 in the seniority list to the cadre of Staff Nurse Grade I. In pursuance to Annexure A3, Annexure A4 was issued by the District Medical Officer, Kottayam, posting the petitioners as Head Nurses at the Medical College Hospital, Kottayam. In the meanwhile, by Government Order dated 1.6.2007, dual control system O.P.(KAT)No.3467 OF 2013 : 3 : in the health services was abolished and by Government Order dated 25.10.2009, employees like the petitioners and the fourth respondent were given an option to opt for Medical Education Services.
7. Accordingly, petitioners and the fourth respondent opted for Medical Education Service and in pursuance to the option so exercised, Annexure A5 order dated 23.10.2009 was issued and they were also transferred to the Medical Education Service. Accordingly, they were relieved from the Health Services on 26.10.2009 and joined Medical Education Service on 27.10.2009. Subsequently, the petitioners also completed their period of probation as Head Nurse on 17.1.2010. It was still later on 13.3.2011 that the fourth respondent was promoted to the post of Head Nurse.
8. According to the fourth respondent, it was thereafter that she came to know that the seniority of the petitioners was fixed reckoning the period they spent on leave without allowance and coming to know of this she submitted Annexure A6 representation dated 8.7.2011 to the Additional Director of Medical Education seeking review of the seniority as well as promotion of the petitioners. While the representation was thus pending, the final seniority list of Head Nurses in the Medical O.P.(KAT)No.3467 OF 2013 : 4 : Education Services as on 31.3.2011 was published on 25.8.2011 where the petitioners and the fourth respondent were assigned seniority at Sl.Nos.335 and 337 and 415 respectively.
9. While matters stood thus, the fourth respondent filed Writ Petition No.24850/2011 before this Court impugning the seniority of the petitioners in the cadre of Staff Nurse Grade I and Head Nurse. In that Writ Petition, she had also produced Annexure A6 representation dated 8.7.2011. On the constitution of the Kerala Administrative Tribunal, the Writ Petition was transferred and the Tribunal renumbered the case as T.A.6459/12.
10. When the Transfer Application was pending before the Tribunal, the Additional Director of Health Services issued Annexure A7 notice on 22.2.2012, proposing to rectify the seniority list. Annexure A7 shows that the proposal was to reassign the seniority of the first petitioner from Sl.No.387 in Annexure A2(a) to Sl.No.1949(A). In so far as the second petitioner is concerned, the proposal was to remove her from Annexure A2(a). Objections were filed and it also appears that the petitioners filed an appeal to the Government against Annexure A7, which was rejected at a later point of time.
O.P.(KAT)No.3467 OF 2013 : 5 :
11. Considering the objections filed against Annexure A7, the Additional Director of Health Services issued Annexure A12 final order, dated 4.8.2012, and whereby the seniority list was modified as proposed in Annexure A7. Consequently by Annexures A15 and A16 issued on 5.9.2013, the petitioners were reverted to the post of Staff Nurse Grade I and Staff Nurse Grade II respectively. This was the factual background in which the petitioners filed the O.A.2124/13 before the Kerala Administrative Tribunal. In the meanwhile on 26.2.2013, T.A.6459/12 was closed by the Tribunal as infructuous on account of the subsequent developments.
12. By Ext.P2 order dated 23rd September 2013, the Tribunal dismissed the O.A. From the impugned order, we note that the petitioners did not argue before the Tribunal that they were entitled to seniority as originally fixed in Annexure A2 and that their contention was that since revision of seniority was only by order dated 4.8.2012, they were entitled to the benefit of sit back theory. The Tribunal rejected this contention and held that on the facts of the case sit back theory has no application. It is aggrieved by this order, this Original Petition is filed.
O.P.(KAT)No.3467 OF 2013 : 6 :
13. Learned counsel appearing for the petitioners reiterated the contention that having regard to the long lapse of time between A2(a) seniority list published on 25.10.2007 and Annexure A12 order dated 4.8.2012, the petitioners are entitled to the benefit of sit back. He also contended that the Additional Director of Health Services, who issued Annexure A12 order, did not have the jurisdiction to pass any order affecting the seniority of the petitioners for any period subsequent to 1.6.2007 when the dual control system was abolished. It was also contended that since the promotions that were granted to the petitioners were unconditional and not dependent on the seniority, they are entitled to maintain the promotions. Lastly the counsel also brought to our notice that though on the strength of the interim order of stay passed by this Court on 8.10.2013, the petitioners reported for duty on 15.10.2013 and submitted Annexures A5 and A6 representations, they were admitted to duty only on 31.10.2013. According to him, therefore, they were entitled to have the period they were kept out of service regularized by the respondents.
14. On behalf of the respondents these contentions were refuted and according to the learned counsel, this is not a case where sit back O.P.(KAT)No.3467 OF 2013 : 7 : theory has any application or relevance. He also contended that unlike a case where long, inordinate and unexplained delay is involved where sit back theory is applied by the Supreme Court, this is not a case where there was any such delay to disentitle the fourth respondent the legitimate seniority that she was entitled to. He also contended that the petitioners have also contributed to the mistake committed by the respondents and therefore the respondents were entitled to correct the mistake. In so far as the promotions granted to the petitioners are concerned, the counsel contended that the promotion orders being dependent on the seniority list, once seniority is reviewed promotions will also have to be reviewed.
15. We have considered the submissions made. Bereft of all unnecessary factual details, from what we have narrated above, it is evident that the petitioners joined service as Staff Nurse Grade II in the Health Services Department on 28.7.93 and 19.7.1993 respectively. They availed leave without allowance for foreign employment in terms of the provisions contained in Appendix XII A, Part I, Kerala Service Rule, for the period from 27.8.1993 to 15.3.1998 and 23.8.1995 to 22.8.1005 respectively. This admittedly was during their probationary O.P.(KAT)No.3467 OF 2013 : 8 : period and, therefore, the provisions of Appendix XIIA as it stood then disentitled them from any benefit and they were to rejoin as fresh entrants in service. To this legal and factual position even the petitioners have no quarrel.
16. Despite this, after their rejoining duty, when the final seniority list of Staff Nurse Grade II for the period 7.7.1990 to 31.12.2002 was finalised and published by Annexure A2(a), seniority was assigned to them ignoring the leave without allowance and giving credit for that period also. It is on the basis of this seniority that they earned promotions as Staff Nurse Grade I and again as Head Nurse by Annexure A4 order. This seniority was carried again in the final seniority list of Head Nurses in the Medical Education Services as on 31.3.2011 which was published on 25.8.2011.
17. This erroneous and illegal factual position was pointed out by the fourth respondent in Annexure A6 representation submitted by her on 8.7.2011. Though it does not make any direct reference to Annexure A6, apparently on receipt of representations against the seniority assigned to Staff Nurse Grade II in the Health Services Department, Annexure A7 notice was issued by the Additional Director of Health O.P.(KAT)No.3467 OF 2013 : 9 : Services on 22.2.2012. It was this proposal which was finalized by the Additional Director of Health Services by Annexure A12 issued on 4.8.2012. Therefore, this is a case where a mistake committed on 25.10.2011, while publishing the final seniority list of Staff Nurse Grade II, was realized and rectified by Annexure A12 on 22.12.2012. This, therefore, shows that corrective measure either at the instance of the fourth respondent or at the instance of the Additional Director of Health Services himself, was initiated within a period of less than five years of finalization of the seniority in the cadre of Staff Nurse Grade II.
18. It is true that in cases of long and inordinate delay, Courts have applied the theory of sit back which of course is a facet of justice and equity. In this context, we shall make reference to the two judgments that were cited before us. The first is the judgment of the Apex Court in K.R.Mudgal and others v. R.P.Singh and Others [AIR 1986 SC 2086]. That was a case where certain persons who were directly appointed as Assistants in the Intelligence Bureau of Government of India in the year 1957 filed a Writ Petition in the Delhi High Court in the year 1976 questioning the validity of the appointments of certain other Assistants in the Intelligence Bureau, O.P.(KAT)No.3467 OF 2013 : 10 : among whom some were appointed prior to 1.2.1954 and remaining were appointed or absorbed as Assistants prior to the induction of the petitioners, viz., prior to 1957. They also challenged the seniority assigned to them over and above the petitioners. The writ petition was dismissed by the learned Single Judge and the judgment was set aside by the Division Bench. In this factual background the Apex Court held thus:
"At the outset it should be stated that it is distressing to see that cases of this kind where the validity of the appointments of the officials who had been appointed more than 32 years ago is questioned are still being agitated in courts of law. A Government servant who is appointed to any post ordinarily should at least after a period of 3 or 4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity. It is unfortunate that in this case the officials who are appellants before this Court have been put to the necessity of defending their appointments as well as their seniority after nearly three decades. This kind of fruitless and harmful litigation should be discouraged."
Thus evidently, this was a case where those who entered service in 1957 filed a Writ Petition in 1976 impugning the seniority assigned O.P.(KAT)No.3467 OF 2013 : 11 : to persons who were recruited prior to 1954 and prior to 1957.
19. The second is the judgment of the Supreme Court in the case of Shiba Shankar Mohapatra and others v. State of Orissa and Others (2010) 12 SCC 471 where referring to the Mudgal's case, the Supreme Court 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, 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 someone 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."
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.
20. In so far as this case is concerned, having regard to the factual setting that corrective measures were initiated within five years of the O.P.(KAT)No.3467 OF 2013 : 12 : finalization of the seniority list, we are not prepared to think this is a case where there was such inordinate delay for the theory of sit back to be blindly imported.
21. Apart from there is yet another aspect be noticed in this case. Despite the admitted disentitlement of the petitioners for taking credit for the period of leave without allowance, when draft seniority list was published and the seniority list was finalized or any time thereafter,the petitioners did not point out the mistake committed by the department which they should have done. Therefore, they not only contributed to the mistake, but also attempted to capitalize out of the mistake committed by the appointing authority. In such a case, we should not extent to them the benefit of the principle of sit back, a principle of equity and thereby disentitle the fourth respondent and others their rightful entitlement.
22. The second contention raised was that the Additional Director of Health Services did not have the jurisdiction to rectify the seniority list. It is true that with the Government Order dated 1.6.2007 abolishing the dual control system and consequent option that was exercised, the petitioners and the fourth respondent came under the O.P.(KAT)No.3467 OF 2013 : 13 : Directorate of Medical Education. It is also true that even in 2011 when the seniority list of Head Nurses was finalized, that was done in the new department. However, the fundamental mistake committed was in the Directorate of Health Services and that too during the period the petitioners were under that department and in relation to a seniority list which included the Staff Nurses who would have chosen to remain in that department. When such a seniority list was to be revised, it could have been done only by the Director of that department and not by the Director of Medical Education Service under whom the petitioners have opted to work. Therefore, we are not prepared to interfere with Annexure A12, a final order passed by the Director of Health Services on the ground that he lacked jurisdiction to issuing the same.
23. It is true that on the basis of the wrong seniority gained by the petitioners, they were granted promotion as Staff Nurse Grade II and Head Nurse. In our view those promotion orders are dependent orders and once the seniority is revised, necessarily the promotion should also be revised.
O.P.(KAT)No.3467 OF 2013 : 14 :
24. It is true that this Court passed an interim order on 8.10.2013 staying the reversion of the petitioners as ordered in Annexures A15 and A16. It is also seen from Annexure A5 and A6 dated 15.10.2013, the petitioners reported for duty on 15.10.2013. According to the petitioners, despite having report for duty they were admitted to duty only on 31.10.2013. This Court had passed the interim order dated 8.10.2013 and when that order, according to the petitioners, was received by the second respondent on 11.10.2013 and they had reported for duty on 15.10.2013 before the Superintendent of Medical College, Kottayam, they ought to have admitted for duty forthwith. Since it is the specific case they were not admitted to duty on 15.10.2013 and were admitted to duty only on 31.10.2013, necessarily their period of absence subsequent to 15.10.2013 has to be regularized. This shall be done by the second respondent as early as possible, at any rate, within a period of one month from the date of production of a copy of this judgment.
25. We are informed that even in spite of Annexures A12, 15 and 16, the first petitioner has become eligible for promotion to the post of Head Nurse. We clarify that if she is so eligible, that entitlement of the O.P.(KAT)No.3467 OF 2013 : 15 : first petitioner shall not be affected by the findings in this judgment.
Writ Petition is disposed of accordingly.
ANTONY DOMINIC, Judge ANIL K. NARENDRAN, Judge jes