IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 WP(C).No. 36943 of 2007(S) -------------------------- OA.253/2003 of CAT,ERNAKULAM BENCH .................... PETITIONER(S): --------------- N.RADHAKRISHNAN, AGED 40 YEARS, S/O.SHRI O.P.NANUKUTTAN NAIR, JUNIOR ACCOUNTANT, OFFICE OF THE DIRECTOR OF ACCOUNTS (POSTAL), THIRUVANANTHAPURAM, RESIDING AT KEEZHEVEEDU, THIRUVALLAM P.O. THIRUVANANTHAPURAM - 695 027. BY ADV. SRI.M.A.SHAFIK RESPONDENT(S): --------------- 1. S.JAYAKUMAR, LOWER DIVISION CLERK, OFFICE OF THE DIRECTOR OF ACCOUNTS (POSTAL), THIRUVANANTHAPURAM. 2. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF POST, NEW DELHI. 3. THE CHIEF POST MASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM. 4. THE DIRECTOR, OFFICE OF THE DIRECTOR OF ACCOUNTS (POSTAL), KERALA CIRCLE, THIRUVANANTHAPURAM. 5. THE DEPUTY DIRECTOR, OFFICE OF THE DIRECTOR OF ACCOUNTS (POSTAL), KERALA CIRCLE, THIRUVANANTHAPURAM. R1 BY ADV.SRI.JOHNSON GOMEZ R2 TO R5 BY ADV. SMT.A.SREEKALA, ADDL.CGSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.36943/07 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE O.A.NO.253/03 FILED ON 26.3.03 BY THE 1ST RESPONDENT BEFORE CAT, ERNAKULAM. EXT.P2: TRUE COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS 1 TO 4 IN O.A.NO.253/03 BEFORE CAT, ERNAKULAM BENCH. EXT.P3: TRUE COPY OF THE REPLY STATEMENT DATED 15.6.03 FILED BY THE PETITIONER IN O.A.NO.253/03. EXT.P4: TRUE COPY OF THE REJOINDER FILED BY 1ST RESPONDENT HEREIN IN O.A.NO.253/03. EXT.P5: TRUE COPY OF THE ORDER DATED 11.11.2003 OF THE CAT, ERNAKULAM BENCH IN O.A.253/03. EXT.P6: TRUE COPY OF THE JUDGMENT DATED 3.4.2007 OF THS HON'BLE COURT IN WPC.3393/04. EXT.P7: TRUE COPY OF THE ORDER DATED 13.11.2007 OF THE CAT IN O.A.NO.253/03. RESPONDENT'S EXHIBITS: EXT.R1(a): TRUE COPY OF KERALA KAUMUDI DAILY DATED 28TH OCTOBER, 2007 WHEREIN THE PHOTOGRAPH OF THE 1ST RESPONDENT. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN & P.S.GOPINATHAN, JJ. ------------------------------------------- W.P(C).No.36943 OF 2007 ------------------------------------------- Dated this the 23rd day of February, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.Heard learned counsel for the petitioner and the contesting first respondent. 2.The first respondent and the petitioner, sports persons, were appointed on 31.8.2004 in relaxation of normal recruitment rules against sports quota earmarked for outstanding sports persons. They were appointed as temporary Lower Division Clerks with effect from dates noted against their names in the appointment order. They were put on probation for a period of two years. It was specifically stated in that office order dated 31.8.1984 that their seniority in the cadre of LDC will be in the order given therein. The first respondent is at Sl.No.1 and the petitioner is at Sl.No.2 in that office order. That status was WPC.36943/07 2 carried when they were considered for promotion as Junior Accountants on 25.11.1992. Office order was issued granting sanction for payment of qualification pay to the LDCs enlisted therein, who had come out successful in departmental examination for promotion to Junior Accountants. In that list also, the first respondent is placed above the petitioner. The gradation list as on 1.7.2001 shows that the first respondent continued to be placed above the petitioner, though both of them had the same date of commencement of service, i.e., 31.8.1984 and date of substantive appointment, i.e., 1.4.1988. The petitioner passed the prescribed typing test on 25.2.1986, i.e., before the first respondent passed that test on 18.5.1987. Thereafter, the petitioner and first respondent were among those LDCs who became qualified by passing the departmental examinations for the Junior Accountants. Annexure A4 in Ext.P1 show that the first respondent was placed in that list also above the petitioner. The aforesaid materials would show that from the date of their initial appointment, i.e. 31.8.1984, the first respondent was maintained as senior to the petitioner WPC.36943/07 3 in the cadre of LDC and thereafter in the cadre of Junior Account, i.e., till 2003. 3.But on 21.11.2002, the first respondent was issued a memo (Annexure A6 in Ext.P1) by the Senior Accounts Officer that consequent on re-fixing the seniority in terms of the clarification received from the circle office on 22.10.2002, the first respondent's position in LDC cadre is being placed at Sl.No.28, i.e., below Smt.Parvathy Bai Thankachi in the gradation list as on 1.7.2001. Objections were called for thereby. The first respondent submitted his objections. That led to an order, communicated on 22.10.2002 by the Assistant Director (Staff) of the Department of Posts to the DDPA, Trivandrum stating that the petitioner herein will continue to be senior to the first respondent since the petitioner had passed the typing test within two years while the first respondent had lost his eligibility to seniority, he having not passed the typing test within a period of two years. This was immediately followed by a memo, stating the same reasons in WPC.36943/07 4 answer to a representation made by the first respondent. Accordingly, the first respondent filed O.A.No.253/03 before the Central Administrative Tribunal, Ernakulam Bench. The Tribunal allowed that O.A. This Court issued Ext.P6 judgment remitting the matter for re-consideration in the light of certain other materials that were sought to be relied on by the petitioner. Thereafter, the Tribunal again heard the matter and has allowed original application in favour of the first respondent. This is under challenge. 4.There is not much of a dispute regarding the facts noticed above. The entire exercise appears to be dependent on the departmental decision in the wake of the pronouncement of the Apex Court in Direct Recruit Class II Engineering Officers Association v. State of Maharashtra [1990 (2) SCC 715], clearly laying down, among other things, that confirmation in service is not a criterion to determine the seniority for the purpose of promotion. But the fact of the matter remains that even in their reply statement before the WPC.36943/07 5 Tribunal, the Department had categorically stated that while the change in the seniority status was made in accordance with the instructions issued by the Directorate and such seniority re-fixation was done with effect from 25.2.1986, necessary correction was not incorporated in the gradation list of LDCs published at that time and afterwards. However, the Department attributes that to an administrative lapse. We may look at the more relevant admission of the Department, to the effect that no formal order fixing the seniority of the first respondent herein over the writ petitioner was issued consequent on the result of the typing test. The Department takes refuge for this action on the fact that there is no express provision to do so in any of the existing rules and that what is being followed in such a situation is to make correction in the gradation list. 5.The Tribunal called for the relevant records and adverted to and considered the entire pleadings and materials on record. The position with reference to the three gradation lists was WPC.36943/07 6 specifically considered after the earlier order of remit made by this Court. The Tribunal categorically states that the position in those records is that in the gradation list as on 1.7.1992, the first respondent herein is at Sl.No.24 and the writ petitioner at Sl.No.25. The date of substantial appointment of both the individuals is 1.4.1988 and the date of commencement of Government service is shown as 31.8.1984. Those entries were taken as conclusive proof of the fact that the rivals were confirmed on substantial posts on the same day and the Tribunal found support for such finding in the notes of the file F6. The Tribunal had gone into the relevant file and have reached at conclusions which ultimately led it to say that the unchallenged position right from the date of entry into service in 1984 was that the first respondent herein continued to be maintained as senior to the writ petitioner and that there was no challenge to the seniority of the first respondent herein for a period of almost 18 years. WPC.36943/07 7 6.With the aforesaid, we notice, going by what is recorded above, that the controversies arose only when the first respondent herein was issued with a memo some time in 2002 and the Department had quite candidly admitted before the Tribunal that the so called exercise carried out by it to restore seniority to the writ petitioner herein was without notice to the first respondent herein. This is in spite of the fact that even in the appointment order, the first respondent herein is placed senior to the petitioner. The absence of any clear directions and administrative instructions is no excuse of an employer to change the seniority list without hearing those persons who would be affected by such change. Obviously therefore, we do not find any legal infirmity or jurisdictional error in the decision of the Tribunal. 7.We may also notice that the departmental instructions on the basis of which the impugned exercise was carried out, was one which was issued under the executive power and could not, in any manner, disturb the existing situation of seniority. The WPC.36943/07 8 benefit of law laid by the Apex Court in Class II Engineering Officers Association (supra) can be applied by executive action in other departments only by following the due procedure of law and without disturbing the rights which have crystallised, including by the application of the sit back theory. Under such circumstances, we are of the considered opinion that there was nothing for the writ petitioner to succeed before the Tribunal. The decision of the Tribunal therefore, stands. In the result, this writ petition fails. The same is accordingly dismissed. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.S.GOPINATHAN, Judge. kkb.23/02.