Kerala High Court
Nazarudeen.A vs The State Of Kerala on 9 December, 2010
Author: T.R.Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4643 of 2010(E)
1. NAZARUDEEN.A, HEAD ACCOUNTANT,
... Petitioner
2. JAYACHANDRAN.V. U.D.CLERK,(HIGHER GRADE)
3. SAJEEV.H. U.D.CLERK (HIGHER GRADE)
4. BABU.K., U.D.CLERK (HIGHER GRADE),
5. AJAYAKUMAR.B.,
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR OF TECHNICAL EDUCATION,
3. S.AJI, L.D.CLERK,(HIGHER GRADE)
4. S.S.SUJA, U.D.CLERK (HIGHER GRADE),
5. C.R.VIJAYAKUMAR, L.D.CLERK,
For Petitioner :SRI.N.SUGATHAN
For Respondent :SRI.K.JAJU BABU
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :09/12/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) Nos.4643/2010-E & 10475/2010-H
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Dated this the 9th day of December, 2010.
JUDGMENT
In both the writ petitions the inter-se seniority of Lower Division Clerks in Technical Education Department which was reviewed as per Ext.P29 produced in W.P.(C) No.4643/2010, is under challenge in these writ petitions.
2. In W.P.(C) No.4643/2010, the petitioners, five in numbers, claim that they are having long settled seniority in the post of L.D.C./U.D.C. which was never challenged by any process known to law by anybody. The service particulars of the petitioners are detailed in paragraphs 1 to 6, which are as follows:
First petitioner: He was advised by the Public Service Commission on 8.8.1990 for appointment as L.D. Clerk, was appointed on 24.8.1990 as per Ext.P1 and joined service on 6.9.1990. His probation was declared on 6.9.1992. His initial appointment was in Engineering College, Kannur, from where he was transferred on 6.8.1991 to Women's Polytechnic, Kozhikode. Later, by order dated 7.10.1996 he was transferred and posted to the Directorate of Technical Education as per Ext.P1(a). He was wpc 4643 & 10475 of 2010 2 promoted as U.D. Clerk with effect from 3.12.1995 along with certain others, as per Ext.P1(b). This date was subsequently revised as 28.11.1995.
By Ext.P1(c) order dated 5.12.2007, 15 U.D. Clerks were promoted as Head Clerks and the first petitioner is serial No.9 therein.
Second petitioner: He was advised by letter dated 1.12.1990 and by Ext.P2 order dated 15.12.1990 he was posted at Technical High School, Manjeri. He joined service on 24.12.1990. He was transferred by order dated 27.12.1995 to the Directorate of Technical Education on his request, by Ext.P2(a). By Ext.P2(b) dated 20.8.1999 he was promoted as U.D. Clerk with effect from 18.12.1996 and on completion of 8 years service in the post of U.D. Clerk, he was granted higher grade with effect from 18.12.2004.
Third petitioner: He was advised by letter dated 1.12.1990 and was appointed as per Ext.P2 order dated 15.12.1990 and was posted at Technical High School, Nannamukku. He joined service on 1.1.1991, was transferred as per Ext.P3 order dated 11.11.1994 to the Directorate of Technical Education. He was promoted as U.D. Clerk with effect from 18.12.1996 as per order dated 29.12.1998 with effect from 18.12.1996. He was granted higher grade with effect from 21.12.2004. wpc 4643 & 10475 of 2010 3 Fourth petitioner: He was advised by letter dated 18.1.1991 and was appointed at Technical High School, Krishnapuram by Ext.P4 order dated 26.2.1991. He joined service on 13.3.1991, was transferred by order dated 23.5.1996 and posted at Government Polytechnic, Neyyattinkara and joined there on 25.5.1996. He was promoted as U.D. Clerk by Ext.P1(b) order dated 29.12.1998, with effect from 1.4.1997. On completion of 8 years of service as U.D. Clerk, he was granted higher grade with effect from 2.1.2005.
Fifth petitioner: He was advised by letter dated 27.10.1993; was appointed at Technical High School, Nannamukku as per Ext.P5 order dated 19.11.1993. He joined service on 4.12.1993, was transferred as per order dated 2.1.1999 to the Directorate of Technical Education as per Ext.P5(a) order. He joined there on 14.1.1999 and was promoted as U.D.Clerk as per Ext.P5(b) order dated 7.7.2000, with effect from 10.8.1999.
3. The petitioners have produced the seniority lists for different periods. Ext.P6 dated 10.10.1996 is the circular issued by the second respondent Director of Technical Education, by which the final seniority list in respect of L.D.Clerks/U.D. Typists has been published. It is mentioned wpc 4643 & 10475 of 2010 4 that the list is valid for the arising vacancies of U.D. Clerks from 9.9.1994 to 14.3.1995. Petitioners 1 to 4 are serial Nos.31, 58, 57 and 59 in Ext.P6(a) final seniority list. By circular dated 18.11.1997 a provisional seniority list of L.D. Clerks/U.D. Typists who became eligible for promotion as U.D. Clerks, was published and after considering the objections to the provisional list, by Ext.P7 circular dated 3.1.1998 a final seniority list was published. It is stated therein that the list is valid for the arising vacancies of U.D. Clerks from 27.3.1996 to 29.12.1996. Petitioners 1 to 4 are serial Nos. 17, 46, 45 and 49 respectively in Ext.P7(a) list. Another provisional seniority list was published on 20.8.1998 which was finalised as per Ext.P8 circular dated 14.10.1998 after inviting objections. Ext.P8(a) is the relevant extract of the seniority list which shows that petitioners 2, 3 and 4 are serial Nos.30, 29 and 33 therein. By Ext.P9 letter dated 5.5.2000 a provisional gradation list of U.D. Clerks for the period from 1.4.1988 to 31.3.1999 was circulated by the second respondent and Ext.P9(a) is the relevant extract of final seniority list. It shows that petitioners 1 to 4 are serial Nos. 196, 230, 229 and 233 and the fourth respondent is serial No.263 therein. The third respondent is not included in the said list. It is averred in the writ petition that members of the staff were directed to file appeal, if wpc 4643 & 10475 of 2010 5 any, against the list on or before 7.6.2000. Ext.P10 shows that the second respondent finalised the provisional list and published the final list. Ext.P10(a) is the extract of the final seniority list of U.D. Clerks for the period from 1.4.1988 to 31.3.1999. Petitioners 1 to 4 are serial Nos.195, 227, 226 and 230. The fourth respondent is serial No.262 in the said list. It is pointed out that these seniority lists were never challenged by any employees either by filing an appeal/representation before the Government or by filing original petition before this Court. Thus, nobody challenged the same as provided under Rule 27B of KS & SSR within the period of six months provided therein. Promotions have been made as U.D. Clerks and therefore it is contended that the petitioners have settled seniority in the cadre of L.D. Clerk from 8.8.1990, 1.12.1990, 18.1.1991 and 27.10.1993 respectively. They have got settled seniority in the category of U.D. Clerk from 28.11.1995, 18.12.1996, 1.4.1997 and 10.8.1999 respectively. The first petitioner is having settled seniority as Head Clerk from 5.12.2007.
4. The matters remained thus and the seniority lists became final. On 19.8.2005 a few L.D. Clerks were promoted as U.D. Clerks. The second respondent passed an order dated 19.9.2006 revising the date of promotion of some of the employees, finding that the claim of employees belonging to wpc 4643 & 10475 of 2010 6 SC/ST for temporary exemption from test qualification, has not been considered. A representation, Ext.P11 was filed against the same on 4.10.2006 by six U.D. Clerks. Therein, it was pointed out that some of the L.D. Clerks who were promoted earlier, can be assigned seniority only on the basis of their seniority position after the inter-district transfers. The petitioners have also filed objections before the Government in the matter opposing any such move, pointing out that in the department the original date of advice was taken as the basis for fixing the seniority. Later, the department published a circular Ext.P12 along with a seniority list with respect to certain L.D. Clerks/U.D. Typists who became eligible for promotion as U.D. Clerks in the departmental test conducted during December 2003, June 2004 and December, 2004. Four persons who were given inter-district transfer in 2000 and 2005, were assigned seniority only with effect from the date of their joining duty in the new district.
5. Exts.P13 and P13(a) respectively are the circular dated 26.4.2008 and the relevant extract of the seniority list published along with the same styled as review seniority list of ministerial staff in the category of L.D. Clerks/U.D. Typists eligible for promotion/inter-changeability as U.D. Clerks on or after 19.9.1980, on the basis of District-wise Recruitment wpc 4643 & 10475 of 2010 7 Rules. Therein, the petitioners are assigned seniority at two places, viz. first petitioner at serial Nos.398 and 512, second petitioner at serial Nos.369 and 478, third petitioner at serial Nos.368 and 453, fourth petitioner at serial Nos.372 and 491 and the fifth petitioner at serial Nos.444 and 567. The fourth respondent is at serial No.399 in the said list. The petitioners have filed objections as per Ext.P14.
6. Subsequent developments arose which ultimately led to the proceedings, Ext.P29. A writ petition filed as W.P.(C) No.20519/2005 by respondents 3 and 4 was disposed of at the admission stage by Ext.P15 judgment directing the first respondent to finalise the seniority list in the light of the dictum laid down in Sudhakaran v. State of Kerala (2006 (2) KLT 817 (SC)). This was challenged in W.A. No.1737/2008 by petitioners 1 and 2 after obtaining leave and the operation of the judgment was stayed. Ext.P16 is the interim order passed in the said Writ Appeal, directing the Government to file a counter affidavit stating whether any objections were raised within the time limit prescribed regarding Ext.P10 (Annexure I therein). Ext.P17 is the statement filed by the Government in the said appeal. Thereafter, the Writ Appeal was disposed of by Ext.P18 judgment.
wpc 4643 & 10475 of 2010 8
7. In Ext.P17, the stand taken by the Government was that the promotions ordered upto 2004 on the basis of State-wise seniority list will be considered as the settled seniority and the promotions to be made for subsequent periods in vacancies after 2004 will have to be ordered on the basis of district-wise seniority and the appellants will not be affected by it. The direction issued by the Government to the second respondent in that regard has been produced along with the statement. In the judgment in the Writ Appeal, this Court directed the matter to be considered in accordance with law, after considering objections of all the parties. After the disposal of the Writ Appeal, there were some developments, which according to the petitioners, have influenced the second respondent in reviewing the seniority list. It is pointed out that even though a hearing notice was issued as per Ext.P20, to the parties in the judgment and a hearing was conducted, no decision was taken. Later, the representatives of the service organisations were called for a meeting as per Ext.P21 notice and their suggestions have been incorporated in the minutes as per Ext.P22. Ext.P23 is the suggestions made by the Kerala Non-Gazetted Officers Union to the Hon'ble Minister for Education, who issued a Note containing various decisions as per Ext.P24 for action by the authorities concerned. Ext.P25 wpc 4643 & 10475 of 2010 9 is the letter issued to the second respondent incorporating the decisions in Ext.P24 note, by the Principal Secretary to the Government and calling for a report after taking steps. A direction was issued to prepare a fresh seniority list. To execute these directions, the second respondent constituted a Cell as per Ext.P26 and details were called for as per Ext.P27. The bio-data of L.D. Clerks who entered service during the period from 1.4.1988 to 31.3.2009 was published as per Ext.P28. As noticed already, Ext.P29 is the circular publishing a review seniority list and Ext.P29(a) is the extract of the said list. It is the extract of the gradation list of L.D. Clerks who entered service during the period from 1.4.1988 to 31.3.2009. The petitioners' seniority has been reassigned, as shown below:
"Name Original date of seniority Revised date of seniority Nazarudeen. A. 8.8.1990 17.11.1996 (1st petitioner) Jayachandran.V. 1.12.1990 1.1.1996 (2nd petitioner) Sajeev.H. 1.12.1990 16.11.1994 (3rd petitioner) Babu K. 18.1.1991 25.5.1996 (4th petitioner) Ajayakumar.B. 27.10.1993 14.1.1999"
(5th petitioner) This will affect the date of their promotion in the post of U.D. Clerk also, wpc 4643 & 10475 of 2010 10 according to them.
8. Learned counsel for the petitioners in W.P.(C) No.4643/2010, Shri N. Sugathan contended that the whole action taken by the Government is only to favour a group of persons. It is submitted that the settled seniority cannot be unsettled after a long lapse of time. The reviewed list has been published on the wrong premise that the Government itself had notified the seniority list upto 31.3.1988, whereas in fact there is no such seniority list notified by the Government. The second respondent alone has published the seniority lists earlier. Ext.P30 is relied upon to point out that it is only printed in the Government press and it is not at all stated therein that the Government has approved it and it is not one notified by the Government. It is published by the Directorate of Technical Education itself.
9. It is also pointed out that the transfer and posting of the petitioners to the Directorate of Technical Education cannot be treated as inter-district transfers. The State was taken as a single unit all along in the department and transfers were made accordingly. Many of the candidates advised by the District Office of the Public Service Commission, Thiruvananthapuram for appointment as L.D. Clerks in Thiruvananthapuram district, were initially appointed in the Directorate and were later transferred and posted to wpc 4643 & 10475 of 2010 11 Institutions in Thiruvananthapuram District or continued at Directorate itself. But in the case of the petitioners it was treated as inter-district transfers. It is pointed out that in the statement filed in W.A. No.1737/2008, it is clearly stated that in the department, throughout the transfer and postings were done considering the whole department as a single unit and the criteria stipulated for inter district transfers were never implemented. It was assured that the appellants who obtained promotions prior to 2004, would not be affected by the present exercise. Attention was invited to Ext.P17(5) order dated 19.9.2008 ( produced as Annexure R3(a) in W.A. No.1737/2008) which is a direction by the Principal Secretary to the Government to the second respondent herein, in that regard. It is pointed out that the relevant pages of the note file produced as Ext.P19, show that the Law Department and the P& ARD Department were consulted before issuing the said order and the said departments agreed with the suggestion of the Higher Education Department that promotions ordered upto 2004 on the basis of the State-wise seniority list, will have to be treated as settled seniority and this was upset only at the instance of the NGO Union who submitted Ext.P23 representation before the Honourable Minister for Education. Their demands were readily accepted and Ext.P24 wpc 4643 & 10475 of 2010 12 Note was accordingly issued and finally the Government by Ext.P25 directed to take follow up action by the second respondent in terms of those directions. It is submitted that the Cell constituted by the second respondent only consisted of persons who were interested to protect their own seniority and the entire exercise is done only to upset the settled seniority. It is pointed out that Ext.P11 representation is dated 4.10.2006 which is long after the seniority lists were published by various proceedings including Exts.P6 to P10 during the years 1996 to 2000.
10. Shri N. Sugathan, learned counsel for the petitioners also pointed out that this Court by interim order dated 15.2.2010 had stayed Ext.P29 order, based on which a circular was issued as per Ext.P31 by the Senior Administrative Officer, to stop all further proceedings till further instructions are issued. It is pointed out that in spite of the same, the second respondent prepared bill for payment of arrears of salary of the 7 employees in the Directorate who were promoted as U.D. Clerks by Ext.R3
(a) order. Their arrears of salary were disbursed as evidenced by Exts.P32( a) and P32(b). It is pointed out that it is only to benefit them, these hasty steps were taken. It is also contended that the principles adopted in Sudhakran's case (2006 (2) KLT 817 (SC)) by the Apex Court wpc 4643 & 10475 of 2010 13 cannot apply to the facts of this case. More than Rs.30 lakhs were drawn and disbursed as arrears, to various persons based on Ext.R3(a) order.
11. By order in I.A. No.9319/2010, the petitioners were allowed to implead the third respondent in a representative capacity and notice has been taken by publication. The first respondent as well as respondents 3 and 4 have filed separate counter affidavits and the petitioners have filed reply affidavits also.
12. The first respondent in their counter affidavit maintains that the gradation lists of ministerial staff for the period upto 31.3.1988 have been printed and published by Government of Kerala during 1994. Later, only seniority lists of qualified LD Clerks were prepared, for giving timely promotion to the posts of U.D. Clerks. In such lists, details, viz. PSC advice number & date/dist of option/mode of appointment/details of inter- district transfers, etc. were not incorporated. The District Recruitment Board Rules were not applied. Even though these seniority lists were not challenged upto 2006, thereafter several representations were received for reviewing it based on the District Recruitment Board Rules and accordingly the provisional lists were issued. The principles stated by the Apex Court in Sudhakaran's case (2006 (2) KLT 817 (SC)), are therefore to be applied. wpc 4643 & 10475 of 2010 14 Therefore, the seniority of transferred L.D. Clerks (inter-district transferees) can be counted only from the date of joining in the transferred station, excluding the previous service. It is pointed out that the promotions effected being provisional, there is no embargo in reviewing the seniority list. Contentions based on Sudhakaran's case (2006 (2) KLT 817 SC)) have been taken by respondents 3 and 4 in their counter affidavit.
13. Shri K. Jaju Babu, learned counsel appearing for respondents 3 and 4 submitted that the legal position declared by the Apex Court in Sudhakaran's case (2006 (2) KLT 817 - SC), has been applied by the department and therefore the contentions raised by the petitioners do not deserve any merit. The proviso to rule 27(a) of KS & SSR is applicable in such cases and in other cases only, seniority shall be determined by the date of first effective advice as per Rule 27(c).
14. Learned Govt. Pleader Shri Sandesh Raja also submitted that none of the lists Exts.P6 to P10 can be treated as final for want of certain details. It is only because of want of details, no challenge was there by anybody. Promotions are only provisional and therefore they do not confer any rights on the petitioners.
15. In W.P.(C)No.10475/2010, the petitioner was appointed as L.D. wpc 4643 & 10475 of 2010 15 Clerk in Idukki District through the Public Service Commission. He was transferred to Thiruvananthapuram District as per order dated 10.11.2000 based on the preference available to him as a relative of serving soldiers. He was initially appointed as Lower Division Clerk at Barton Hill Engineering College, Thiruvananthapuram and thereafter from 15.1.2002 onwards, at the Directorate of Technical Education, Thiruvananthapuram, which is evident from Ext.P1. In the final seniority list of L.D. Clerks dated 1.9.2003, he is ranked as serial No.45 by assigning seniority in the L.D.C. cadre with effect from 1.9.1998. In the final seniority list of L.D.C. prepared and published along with the proceedings of the second respondent dated 14.1.2005 also, he was ranked as serial No.22 by assigning seniority in the LDC cadre with effect from 1.9.1998. But in the provisional seniority list of LDC prepared and published by the second respondent along with the proceedings dated 8.5.2007, he is assigned rank No.57 with effect from 23.12.2000. This was objected by the petitioner by filing Ext.P3 representation. After the disposal of W.A. No.382/2009, the petitioner has filed Ext.P6 representation. He has raised similar contentions as raised by the petitioners in W.P.(C) No.4643/2010.
16. Heard Shri M.R. Anison, learned counsel for the petitioner who wpc 4643 & 10475 of 2010 16 supported the arguments raised by Shri N. Sugathan, learned counsel for the petitioners in W.P.(C) No.4643/2010.
17. The main question therefore to be considered is whether Ext.P29 can be justified and whether the principle, viz. "the sit back theory", would apply to the facts of these cases.
18. Learned counsel for the petitioners in W.P.(C) No.4643/2010, Shri N. Sugathan in this case context, relied upon various decisions of the Apex Court and this Court wherein the above principles have been explained. They are: Rabindra Nath Bose and others v. Union of India and others (AIR 1970 SC 470), T.C. Sreedharan Pillai & others v. State of Kerala and others (1973 KLT 151 - FB), Mohanan v. State of Kerala (2000 (2) KLT 798), Karthikeyan and another v. State of Kerala and others (ILR 2002 (2) Ker. 31), Pavithran v. State of Kerala (2009 (4) KLT 20 (FB)) and Shiba Shankar Mohapatra and others v. State of Orissa and others (AIR 2010 SC 706).
19. In Rabindra Nath Bose's case (AIR 1970 SC 470), in para 35 the principle was explained in the following words:
"We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience. It would be unjust to deprive wpc 4643 & 10475 of 2010 17 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."
In para 36 it was also held that "but there is a limit to the time which can be considered reasonable for making representations." The same is also important.
20. The Full Bench in T.C. Sreedharan Pillai's case (1973 KLT 151
- FB), relying upon the above dictum, considered the finality to be attached in respect of settled seniority and held thus in para 47:
"The petitioners were duly qualified for inclusion in the 1962 list and they had been granted promotions to the upper division in the list for 1962. By virtue of that promotion they had acquired a right to have their ranks and seniority in that category reckoned on the basis of the principles laid down in Rule 27(a) of the Kerala State and Subordinate Services Rules. The position of the officers in relation to the promotions of 1961 and 1962 had become settled at least by the orders Exts.P1 and P2 passed in February, 1965. No statutory appeals or revision petitions are shown to have been filed against those orders and hence it must be taken that those lists had become final. It is not in the interests of the maintenance of the morale, efficiency and contentment in the service to disrupt after such long lapse of time matters pertaining to vital service wpc 4643 & 10475 of 2010 18 conditions like seniority and rank which have already become settled. We may usefully refer in this context to the observations of the Supreme Court in Rabindra Nath Bose and others v. Union of India and others (AIR 1970 SC 470 at 478).
"Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after a lapse of a number of years."
It will be neither just or equitable to deprive persons who have been promoted many years ago, of the rights that have accrued to them regarding their rank and seniority by purporting to conduct a review of promotion after the lapse of many years."
The principle that is evident is that a review of seniority and promotions after a lapse of many years affecting the rights of parties regarding their rank and seniority, will be neither just nor equitable.
21. The above principles were relied upon in Mohanan's case (2000 (2) KLT 798). Therein also it was held that the power of the appointing authority to review the appointments, even by finding out a mistake, has to be exercised within a reasonable time and without affecting the vested rights of others. The sit back theory was reiterated in the following words in para 16:
"16. The principle of 'sit back theory' has been accepted by the Supreme Court long back. This Court also has followed the same in a number of decisions. The earliest decision of the wpc 4643 & 10475 of 2010 19 Supreme Court in this respect is the one reported in Rabindra Nath Bose & Others v. Union of India & others (AIR 1970 SC 470). In that decision the Supreme Court held as follows:
"Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after a lapse of a number of years."
The above decision was followed by this Court in 1973 KLT 151 (FB). This Court observed that no statutory appeals or revision petitions are shown to have been filed against the orders of promotion and it must be taken that those lists had become final. It is not in the interests of the maintenance of the morale, efficiency and contentment in the service to disrupt after such long lapse of time matters pertaining to vital service conditions like seniority and rank which have already become settled. Thus it is quite clear that it will be unjust to deprive persons who had been promoted many years ago of the rights that had accrued to them regarding rank and seniority by purporting to conduct a review of the promotion after the lapse of many years."
Therefore, the settled seniority and rank shall not be disrupted, especially in the interests of the maintenance of morale, efficiency and contentment in the service.
22. The Division Bench in Karthikeyan's case (ILR 2002 (2) Ker.
31), considered similar questions. Therein, the petitioners wanted to place persons who did not complete their probation within the maximum period wpc 4643 & 10475 of 2010 20 of four years below them and to give further promotions to the post of Assistant Conservator of Forests, recasting the seniority list. Therein, the final seniority list was published in January 1984 after disposing of all the appeals. In February, 1988 another seniority list of Forest Rangers as on 1.1.19897 was published, against which a representation was filed in 1991 to review the seniority list based on a decision of this Court. Ultimately, the final seniority list was published by maintaining the seniority list of 1984 in tact. The said dispute reached this Court when the parties filed writ petitions in the matter. Therein, the Bench noticed the fact that "the practice followed by the department all along was not to discharge a probationary Ranger for want of test qualification." (para 11). It was held that "the list was prepared after disposing of all the appeals. The said list has become final. Petitioner had never challenged the said list at any point of time, but even in this proceedings." The principles stated by the Apex Court in Rabindra Nath Bose's case (AIR 1970 SC 470) were relied upon in para 13 of the judgment.
22. The above legal position was reiterated by a Full Bench of this Court in Pavithran's case (2009 (4) KLT 20 - FB). Therein, the dispute was with regard to the seniority under Rule 37 of Chapter XIV-A K.E.R. wpc 4643 & 10475 of 2010 21 The facts of the case show that the seniority list published by the Manager as on 1.1.1993 was objected to by the sixth respondent by preferring a representation before the Assistant Educational Officer, which was rejected by Ext.P2 order dated 13.6.1994. This was challenged by him in an appeal before the District Educational officer which was dismissed by Ext.P3 order dated 15.6.1995. These orders were never challenged. After 10 years the sixth respondent moved the Assistant Educational Officer by filing Annexure II representation, claiming seniority over the appellant in the cadre of LPSA. The resultant order was challenged before the Government by the sixth respondent which was allowed. The same was under challenge in the writ petition. The writ petition was dismissed, against which writ appeals were filed. The main question that was argued, was relying upon the principles stated by the Apex Court in Rabindra Nath Bose' s case (AIR 1970 SC 470), T.C. Sreedharan Pillai's case (1973 KLT 151 - FB), Mohanan's case (2000 (2) KLT 798), Cecil.D'Souza v. Union of India (AIR 1975 SC 1269) and Usha Devi v. State of Kerala (2002 (1) KLT
615). In para 7 it was laid down that the settled seniority cannot be unsettled after a long period. It was held as follows:
"So, the sixth respondent's claim for seniority was legally sound and tenable. But, it is a well settled principle in service jurisprudence wpc 4643 & 10475 of 2010 22 that, if a person suffers a seniority position for long period without demur, and allow others to enjoy seniority over him for a long period, he cannot normally stake his claim, when the question of promotion to the next higher post is taken up."
In para 8 the principle that unless an adverse order is challenged within a prescribed time limit, the said order will become final, has also been adverted to in the following words, relying upon the observations of Wade in Administrative Law, 6th Edn. and the decision of the Apex Court in State of Punjab v. Gurdev Singh (1992 (1) KLT SN 28):
"Whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final and the person, affected by it, will also be bound by it. It is a well settled principle in Administrative Law that, there are no void orders in absolute sense in administrative matters. There are only voidable orders. Unless a person aggrieved takes recourse to the appropriate remedy at the appropriate time, even an illegal order will be treated as valid and binding."
Finally, it was held thus:
"The sixth respondent has not chosen to challenge those orders before the higher forum of this Court and as mentioned earlier, he allowed them to become final. Therefore, those orders are to be treated as valid. They cannot be ignored or treated as void ab initio wpc 4643 & 10475 of 2010 23 and therefore, of no effect now. It is a well settled principle in service jurisprudence that a person who enjoyed a seniority position for quite some time is entitled to sit back. The seniority position shall not, normally, be disturbed lightly. The said position is covered by several decisions of this Court and also the Apex Court, cited by the learned counsel for the appellant. It is not in the interest of administration or public interest to allow a person, who slept over his right, to rake up a stale claim, tinker with the seniority list and demoralise other members of the service. We find no reason not to apply the above principle applicable to members of public service, to the persons working in aided schools governed by the K.E.R. Also."
Accordingly, the appeal was allowed.
23. The Apex Court in a recent decision in Shiba Shankar Mohapatra's case (AIR 2010 SC 706), considered a similar question. Therein, the question whether a belated challenge against the seniority list can be entertained, was considered. It was held thus in para 16:
"The question of entertaining the petition disputing the long standing seniority filed at a belated stage is no more res integra. A Constitution Bench of this Court, in Ramchandra Shanker Deodhar & Ors. v. State of Maharashtra & Ors. AIR 1974 SC 259, considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights wpc 4643 & 10475 of 2010 24 of other persons regarding seniority, rank and promotion which have accrued to them during he intervening period. A party should approach the Court just after accrual of the cause of complaint."
Reliance was placed on the principles stated in Rabindra Nath Bose's case (AIR 1970 SC 470) and finally in para 29 their Lordships held thus:
"Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal, (AIR 1986 SC 2086) (supra) this Court has laid down in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case some-one agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation."
It was therefore held that 3 - 4 years is a reasonable period for challenging the seniority list.
24. Even with respect to the rectification of mistake, the Apex Court in para 19 of the judgment in Shekhar Ghosh v. Union of India and another {(2007) 1 SCC 331}, held that "if a mistake is to be rectified the same should be done as expeditiously as possible. (See Board of Secondary wpc 4643 & 10475 of 2010 25 Education of Assam v. Mohd. Sarifuzaman - {(2003) 12 SCC 408}."
25. Heavy reliance was placed by learned counsel appearing for respondents 3 and 4 on the decision of the Apex Court in Sudhakaran's case (2006 (2) KLT 817 - SC) and submitted that the situation therein are clearly identical to the facts of these cases and therefore respondents 1 and 2 are justified in reviewing the seniority list. Therein, it was held that seniority of transferred L.D. Clerks who have been transferred on their own request to another district, should be reckoned from the date on which they were transferred to the new district and not from the date of their initial appointment.
26. Shri N. Sugathan, learned counsel for the petitioners submitted that therein the Apex Court clearly held that the sit back theory will not apply in the said case as there was clear challenge and hence the said contention cannot be accepted. The facts of the case show the following:
The department concerned is the Registration Department and the provisional seniority list of L.D. Clerks was drew up by the Government on 7.11.1984 with reference to their date of first appointment. The list was finalised by memorandum dated 6.4.1987 finalising the state-wise seniority list of L.D. Clerks as on 1.11.1983. Based on the same, a provisional wpc 4643 & 10475 of 2010 26 seniority list of U.D. Clerks as on 22.2.1986 was also prepared vide General Memorandum dated 9.12.1987. It is evident from para 5 of the judgment that the said seniority list of LDCs. as also the provisional seniority list of UDCs were challenged in O.P.No.4204/1990 before this Court and this Court by judgment dated 8.5.1990 directed the Inspector General of Registration to consider the representation filed by the petitioner therein for refixation of seniority. Thereafter, a revised provisional seniority list of LDCs. as on 13.11.1990 was published by changing the seniority position of transferred LDCs from the date of their joining the new district. It was under challenge before this Court in O.P.No.11194/1990 and connected cases. The argument that the promotions shall not be unsettled after a long time, was rejected in para 17 by holding that "We find that the matter has been continuously under litigation ever since 1990 and the delay in disposal cannot defeat the rights of appellants." Therefore, it is evident from the above that the situation herein is not identical. Therein, the original petition was filed challenging the list published in 1987. Herein, there was no challenge against Exts.P6 to P10 either under Rule 27B of KS & SSR or by filing writ petitions before this Court. In that view of the matter, I find that the contentions raised by the respondents in that regard cannot be accepted. wpc 4643 & 10475 of 2010 27
27. Therefore, the facts of the case show that Exts.P6 to P10 which were published between 10.10.1006 to 22.12.2000, became final. These proceedings also will show that provisional seniority lists were published and objections and claims were invited and thereafter, only after examining the appeals also and after effecting necessary changes, the lists were finalised. Respondents 3 and 4 or anybody else did not challenge the seniority of petitioners and similarly placed persons. The representation Ext.P11 is dated 4.10.2006, after a long period of time, that too in connection with certain promotions made as per an order dated 19.8.2005. Rule 27B shows that the period prescribed for challenging the final seniority list before the Government is six months. That course was also not adopted. Therefore, it cannot be disputed that the seniority lists Exts.P6 to P10 thus published had become final. The situation is identical to that of the cases relied upon by the learned counsel for the petitioners in various judgments referred to above.
28. Learned Government Pleader raised a contention that in all of these lists some of the details were not there and therefore there is no embargo in reviewing the same. The said contention is raised on the basis of the pleas raised in the counter affidavit of the first respondent. It cannot be said wpc 4643 & 10475 of 2010 28 that any person who wanted to file objections to the lists were prevented from getting the details of the individuals concerned who were included in the provisional seniority list and final seniority list. In Ext.P11 representation there is no such plea that for want of any details appeals could not be filed and lists could not be challenged at that time. No explanation is attempted in Ext.P11 for the delay also. In the counter affidavit filed by respondents 3 and 4 also there is no plea to that effect. It is, thus, only a figment of imagination alone. Therefore, the said contention does not deserve any consideration. The other aspect pointed out in the counter affidavit is that the seniority list upto 31.3.1988 from the period 1.4.1984 was published by the Government and none of the lists finalised as per Exts.P6 to P10 have been published by the Government after approval. Ext.P30 dated 10.10.1994 is the seniority list for the period from 1.9.1984 to 31.8.1988 published by the Directorate of Technical Education. The order only states as follows:
"A final gradation list of Non-Gazetted Ministerial Staff who have been appointed or promoted to various cadre during the period from 1.9.1984 to 31.8.1988 in this department is appended to this order.
Sd/- S. Krishnan, Administrative Officer."
wpc 4643 & 10475 of 2010 29 It is not a case where the same has been approved by the Government and in spite of the specific averments in the writ petition, the respondents have not produced any order to the effect that the said list was published or notified after approval of the Government. It only shows that it was printed in the Government press and not even published in the Gazette also. Therefore, the non approval by the Government of Exts.P6 to P10 and the seniority list along with them and the non publication in the Gazette is not material. It is not shown that such lists had to be approved by the Government in the light of any specific statutory rules or that unless it is notified by Government or published in the Gazette, it will not have any validity. In this context, a reply given under the Right to Information Act by the Appellate Authority as per Ext.P36 on this question, is important. It is stated therein that no documents are available to show that LDC/UDC seniority lists have been published by the Government in the Gazette. Therefore, the very premise under which the instructions were given in Exts.P24 and P25 that promotions need not be made from the seniority list published after the "last seniority list notified by the Government," cannot be justified. It has no legal foundation. The direction given in Exts.P24 and P25 as item 2 is that a fresh seniority list has to be published for persons wpc 4643 & 10475 of 2010 30 who have entered service after the last seniority list notified by the Government. No such list is evidently published by the Government and what was being done is only by the second respondent in the Directorate as evident from Exts.P6 to P10 and Ext.P30. Therefore, the reason for upsetting the seniority lists cannot be sustained.
29. Para 1 of the counter affidavit of the first respondent states that "the seniority lists were not challenged by anybody upto 2006. Several representations were received afterwards, requesting review of the seniority applying D.R.B. Rules." If there was no challenge under Rule 27B of KS & SSR within the period provided therein, the Government could not have obviously accepted the representations, that too after a period of six years from Exts.P10 order. In para 5 of the counter affidavit, while referring to the applicability of the District Recruitment Board Rules, it is clearly admitted that "however, this practice was not followed in the Technical Education Department." This also is important. In the statement filed in W.A. No.1737/2008 it is clearly stated in para 3 that "Right from the commencement of the Department the transfers and postings were done considering the whole department as a single unit by maintaining the ratio of LDCs and UDCs. as 1 : 1. The criteria stipulated for inter-district wpc 4643 & 10475 of 2010 31 transfers were not implemented in the department and such transfers were given to the candidates, who completed 5 years of service without disturbing their seniority. The above practice was not subject to any challenge till the year 2004." It is apparently in view of this, that the Government by letter dated 19.9.2008 (Ext.P17(5)) directed the second respondent that the promotions upto 2004 on the basis of the state-wise seniority list should be treated as settled seniority. The year 2004 was adopted as thereafter no promotions were made and vacancies were existing. It was assured before this Court in the statement filed in W.A. No.1737/2008 that persons who have obtained promotions prior to 2004 would not be affected by the review of the seniority list. The position thus adopted is in tune with the settled principles of law. But after the disposal of the Writ appeal when the service organisations were called for a meeting, they raised a demand as evident from Ext.P22 which is followed by Ext.P23 that all the seniority lists issued from 1988 should be reviewed. The principle that settled seniority cannot be unsettled after a long lapse of time, was not followed by respondents 1 and 2 while issuing Ext.P29. In the orders of transfer issued in favour of petitioners like Ext.P1(a) etc., the only condition is that the said transfers are ordered on their request and wpc 4643 & 10475 of 2010 32 they will not be eligible for joining time. That they will lose the seniority, has not been specified therein also. In the decision of the Division Bench in Karthikeyan's case (ILR 2002 (2) Ker. 31) also, the Bench observed that "the practice followed by the department all along was not to discharge a probationary Ranger for want of test qualification" and the said practice was accepted while considering a similar question.
30. Therefore, herein the practice followed is that the criteria stipulated for inter district transfers were not implemented in the department for preparing the seniority lists. Whole department was taken as a single unit. Of course, this question is relevant while considering the larger question whether the right of the petitioners to maintain their rank and seniority in the cadre of LDC and the promoted post of UDC could be unsettled after a long lapse of time. Respondents 3 and 4 or anybody else did not invoke the relevant Government Orders which were in force long prior to the dates of finalisation of seniority lists and Rule 27(a) of KS & SSR. while preparing the seniority list and by raising any objection on that basis and thus allowed the seniority position to be settled and which remained there without any challenge at least for more than six years counting from the date of Ext.P10. (Ten years from the date of Ext.P6). wpc 4643 & 10475 of 2010 33 Therefore, in the light of the principles stated by the Apex Court in the decisions referred to above, it cannot be disputed that the settled seniority cannot be unsettled after a long lapse of time. The seniority lists published as per Exts.P6 to P10 remained unchallenged. In that view of the matter, the attempt made by the Government to review the seniority lists cannot be sustained. As held by the Full Bench in Pavithran's case (2009 (4) KLT
20), a person who enjoyed a seniority position for quite a long time, is entitled to sit back and a person who slept over his rights, to rake up a stale claim, and tinker with the seniority list and demoralise other members of the service.
31. Learned Govt. Pleader had raised a plea that the promotions to the post of UDC are only provisional and therefore the petitioners cannot claim any right. In fact, petitioners 1 to 4 have averred that on the promoted post of UDC they have been granted higher grade on completion of 8 years. These promotions have been made based on the seniority position available as per the seniority list. It is pointed out by Shri N. Sugathan, learned counsel for the petitioners that going by Rule 28(e) of KS & SSR, no probation is there in the UD cadre and the probation is only in the lower cadre alone. Promotions were made under Rule 28(b)(ii) according to wpc 4643 & 10475 of 2010 34 seniority as the petitioners alone could have promoted based on the seniority. Therefore, the said contention cannot save the exercise now done.
32. Learned counsel for the petitioners further submitted that immediate implementation of Ext.P29 by Ext.R3(a), by promoting various persons with retrospective effect, is also un-understandable. Evidently, none of the promoted UDCs have been reverted to accommodate the said persons. There is no case that vacancies were remaining unfilled. The reply given under the Right to Information Act to Ext.P34 application seeking details of vacancies, is that records are not available, as evident from Ext.P35. Therefore, the implementation of the order on a retrospective basis, and the disbursal of the huge amount also, as contended by the learned counsel for the petitioners, shows undue haste in the matter. This Court had stayed the operation of Exts.P25, P27 and P29.
33. In the light of the fact that the entire exercise leading to Ext.P29 violates the sit back theory, Exts.P24, P25 and P29 cannot be sustained. Therefore, the writ petitions are allowed. The proceedings Exts.P24, P25 and P29 in W.P.(C) No.4643/2010 which is Ext.P12 in W.P.(C) No.10475/2010, are quashed and it is declared that the seniority list thus published and appended to Ext.P29 as Ext.P29(a), cannot be sustained. It is wpc 4643 & 10475 of 2010 35 declared that the petitioners in both the writ petitions are entitled to claim seniority based on Exts.P6 to P10, and their settled seniority, accordingly. No costs.
(T.R. Ramachandran Nair, Judge.) kav/