IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 WA.No. 2388 of 2005() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.32627/2004 Dated 18/08/2005 .................... APPELLANT(S): -------------- 1. DEVAKI C., AGED 43 YEARS, W/O. C. PAZHANIMALA, JUNIOR SUPERINTENDENT, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REGIONAL OFFICE, KANNUR. 2. K. VILASINI, JUNIOR SUPERINTENDENT, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REGIONAL OFFICE, KASARAGOD. 3. K.K. BHANUMATHY, JUNIOR SUPERINTENDENT, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REGIONAL OFFICE, MALAPPURAM BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA SRI.T.V.VIJAYARAJAN SRI.M.SAJJAD RESPONDENT(S): RESPONDENTS: --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, SCHEDULED CASTE DEVELOPMENT DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REPRESENTED BY ITS MANAGING DIRECTOR, P.B.NO.523, TOWN HALL ROAD, THRISSUR-680 020. 3. THE BOARD OF DIRECTORS, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REPRESENTED BY ITS CHAIRMAN, P.B.NO.523, TOWN HALL ROAD, THRISSUR-680 020. 4. SMT. P.G. SATHEEDEVI, JUNIOR SUPERINTENDENT, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REGIONAL OFFICE, KOTTAYAM. 5. SMT. N. MAYA DEVI, JUNIOR SUPERINTENDENT, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REGIONAL OFFICE,TRIVANDRUM. 6. SMT. M.D. GIRIJA, JUNIOR SUPERINTENDENT, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., HEAD OFFICE, THRISSUR. 7. SMT. P.SUNITHA, JUNIOR SUPERINTENDENT, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REGIONAL OFFICE,PANDALAM. 8. SRI. M.S.RENGAN, JUNIOR SUPERINTENDENT, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., HEAD OFFICE, THRISSUR. 9. SRI. P.C. RETNAKARAN, JUNIOR SUPERINTENDENT, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REGIONAL OFFICE, IDUKKI. 10. SRI.N. ASOKAN, JUNIOR SUPERINTENDENT, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REGIONAL OFFICE, WAYANAD. 11. SRI. K.S. ANIL KUMAR, JUNIOR SUPERINTENDENT, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., HEAD OFFICE, THRISSUR. 12. SRI. V.ANILKUMAR, ASSISTANT, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REGIONAL OFFICE, TRIVANDRUM. 13. SRI. V.M.MOHAMMED KOYA, ASSISTANT, KERALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD., REGIONAL OFFICE, MALAPPURAM. ADV.SRI.M.K.CHANDRAMOHANDAS, S.C., R2,R3. GOVT.PLEADER SMT.R.BINDU SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE FOR R4 & R5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 5.3.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.2388 of 2005 ---------------------------------------------- Dated 5th March, 2010. J U D G M E N T Balakrishnan Nair, J. The writ petitioners are the appellants. They are the employees of the second respondent Corporation. They joined the service of the said Corporation as provisional hands, through Employment Exchange. The appellants 1 and 2 were appointed as Assistants Grade II, on 2.5.1984 and 5.6.1984 respectively, and the third appellant was appointed as Confidential Assistant Grade II, on 24.5.1983. The Government issued orders, providing for regularization of provisional hands, belonging to Scheduled Caste/Scheduled Tribe communities, as per Ext.P1 dated 7.3.1986. On the strength of that, the appellants 1 and 2 were regularized, by Ext.P2 order dated 23.5.1988, with effect from 7.3.1986. Since the third appellant was not having the requisite qualification for appointment as Confidential Assistant Grade II, she was granted regularization as Assistant Grade II, by Ext.P4 order dated 15.7.1988, with effect from 7.3.1986. The probation of the appellants, in the cadre of Assistant Grade II, was declared on 14.3.1988, 7.3.1988 and WA NO.2388/05 2 6.9.1990 respectively. Thereafter, the appellants were promoted as Assistants Grade I, without clearing the obligatory test of Book Keeping. The second respondent Corporation, proceeded on the footing that the appellants, being members of the Scheduled Castes, were entitled to get exemption from clearing the said obligatory test. Thereafter, the appellants were further promoted as Junior Superintendents. While so, the Corporation realised that since the appellants were regularized in service only after 31.12.1985, they were not entitled to get exemption from passing the obligatory test, under Rule 13AA of the Kerala State and Subordinate Services Rules, 1958, which were adopted by the Corporation. The said realization led to the passing of Exts.P7 to P9 orders and the appellants were ordered to be reverted to the post of Assistant Grade II. The matter was raised before the Government, and the Government affirmed the decision of the Corporation, by Ext.P17 order dated 28.10.2004. Challenging Exts.P7 to P9 and P17, the Writ Petition was filed. 2. The learned Single Judge took the view that the appellants were beneficiaries of a conscious decision of the WA NO.2388/05 3 second respondent and they got the benefits thereunder. Therefore, they were entitled to sit back and after a long period of time, the benefits granted to them cannot be recalled, as was done under the impugned orders. In that view of the matter, the promotions and seniority of the appellants in the respective cadres were restored, but without affecting the seniority of respondents 4 and 5. In other words, it was ordered to place the appellants, below the respondents 4 and 5, in the matter of seniority. The appellants/writ petitioners, dissatisfied with the above direction of the learned Single Judge, have preferred this Writ Appeal. 3. We are of the view that the appellants could not have got the benefit of exemption from passing the obligatory test, for the reason that they got regularization in service, only after 31.12.1985. So, the said mistake could have been corrected by the Corporation at any time. But, the learned Single Judge relied on a technical ground to sustain the benefits granted to the appellants. The theory of sit back is normally pressed into service to defend challenges by rivals, before courts of law. But, WA NO.2388/05 4 it is open to doubt whether the principle of sit back can be pressed into service, when the appointing authority itself tries to correct a mistake in good faith. Any way, we are not expressing any final opinion on that point, in the absence of an appeal filed by the respondents, against the judgment of the learned Single Judge. But, we have no doubt in our mind that the appellants have got more than what is due to them, from the learned Judge. Therefore, they cannot demur. In the result, we find no merit in the Writ Appeal. It is, accordingly, dismissed. I.A.No.818/08 : Dismissed. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. tgs K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.2388 of 2005 ---------------------------------------------- J U D G M E N T Dated 5th March, 2010.