IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 WP(C).No. 13143 of 2010(P) -------------------------- PETITIONER(S): --------------- 1. SUBRAMANIYAN CHETTIAR R., S/O.LATE RAMASWAMY CHETTIAR, AGED 54 YEARS, 'LAVISH', KODUGANOOR, VATTIYOORKAVU P.O., TRIVANDRUM-695013, NOW WORKING AS LECTURER IN ELECTRICAL, CENTRAL POLYTECHNIC COLLEGE, THIRUVANANTHAPURAM. 2. NAZEEMA N., W/O.ABDUL RAHIM, AGED 47 YEARS, ABAYAM, KURUSADI, THUNDATHIL P.O., KARYAVATTOM VIA, TRIVANDRUM NOW WORKING AS LECTURER IN ELECTRICAL, CENTRAL POLYTECHNIC COLLEGE, THIRUVANANTHAPURAM. BY ADV. SRI.SHAJI P.CHALY RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, DIRECTORATE OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 3. DEPARTMENT PROMOTION COMMITTEE (H), REPRESENTED BY ITS CONVENER, DIRECTORATE OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM-23. 4. SRIMATHI, SHOBHANAKUMARI AMMA, LECTURER, GOVERNMENT POLY TECHNIQUE COLLEGE, VENNIKULAM, PATHANAMTHITTA DISTRICT. ADV. SRI.D.AJITHKUMAR FOR R4 R1 TO R3 BY SHRI T.T. MUHAMOOD GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/03/2011, THE COURT ON 30.3.2011 DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF SELECT LIST DT.24.3.2010 EXT.P2-TRUE COPY OF KERALA TECHNICAL EDUCATION SERVICE (SPECIAL) RULES, 1967 AS AMENDED BY THE AMENDMENT RULES OF 1989 EXT.P3-TRUE COPY OF ORDER DT.22.10.2010 EXT.P4-TRUE COPY OF CERTIFICATE ISSUED BY THE UNIVRSITY OF KERALA DT.10.2.2004 EXT.P5-TRUE COPY OF ORDER OF PROMOTION DT.9.8.2000 EXT.P6-TRUE COPY OF CERTIFICATE DT.30.5.2005 EXT.P7-TRUE COPY OF ORDER OF PROMOTION OF SECOND PETITIONER DT.20.11.2000 EXT.P8-TRUE COPY F PROCEEDINGS OF R2 DATED 6.6.2006 EXT.P9-TRUE COPY OF ORDER OF APPOINTMENT DT. 6.10.2001 EXT.P10-TRUE COPY OF REPRESENTATION SUBMITTED TO R2 DT.24.8.2006 EXT.P11-TRUE COPY OF LETTER DT.21.2.2004 EXT.P12-TRUE COPY OF REQUEST TO R2 DATED 23.11.2009 EXT.P13-TRUE COPY OF REPRESETNATION DT.3.4.2010 EXT.P14-TRUE COPY OF CERTIFICATE ISSUE DBY THE KERALA UNIVERSITY EXT.P15-TRUE COPY OF HAND BOOK ISSUED BY R2 EXT.P16-TRUE COPY OF APPLICATION UNDER RIGHT TO INFORMATION ACT. EXT.P17-TRUE COPY OF REPLY ISSUED BY THE STATE PUBLIC INFORMATION OFFICER EXT.P18-TRUE COPY OF PROVISIONAL DEGREE CERTIFICATE DT.1.8.2000 EXT.P19-=TRUE COPY OF DO. DT.2.8.2000 EXT.P20-TRUE COPY OF B. TECH DEGREE CERTIFICATE DT.10.10.2002 RESPONDENTS' EXTS: EXT.R4(A)-TRUE COPY OF CERTIFICATE DT.4.1.2005 EXT.R4(B)-TRUE COPY OF CIRCULAR DT.20.11.2002 EXT.R4(C)-TRUE COPY OF PROVISIONAL DEGREE CERTIFICATE DT.27.7.2000 OF R4 EXT.R4(D)-TRUE COPYF MARK LIST OF R4 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 13143 of 2010-P - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of March, 2011. JUDGMENT In this writ petition, the challenge is against Ext.P1 select list as well as Ext.P8 final gradation list. The facts of the case are the following: Both the petitioners are now working as Lecturers and are governed by the Kerala Technical Education Service Special Rules 1989. In the select list published as Ext.P1, for the post of Head of Section (Electrical Engineering) in Government Polytechnic Colleges for the year 2009 and Anticipatory vacancies of 2010, the petitioners are respectively shown as serial Nos.10 and 11 and the fourth respondent is shown as serial No.9. The fourth respondent is shown as senior to the petitioners in the gradation list Ext.P8 and accordingly she was arrayed as serial No.8 in Ext.P8 also. 2. According to the case pleaded by the petitioners, both the petitioners are seniors to the fourth respondent by taking into account the date of joining in service. The first petitioner was having Diploma in Electrical at the time of joining the service. He joined service as a Workshop Instructor on 3.2.1984. Later he was appointed as Asst. Lecturer (Electrical) on 22.10.1992. During this period he obtained B.Tech degree wpc 13143/2010 2 (Electrical), according to him, on 20.7.2000 and became qualified for promotion as Lecturer (Electrical). By Ext.P5, he was ordered to be promoted as Lecturer with effect from 1.8.2000. The second petitioner was appointed as Asst. Lecturer (Instrument Technology) on 28.10.1985. The case pleaded by the second petitioner is also similar that she had acquired the B.Tech degree on 20.7.2000 and she is promoted with effect from 2.8.2000. 3. Ext.P8, as noted, is the final gradation list wherein the fourth respondent is shown as serial No.8 and the date of acquisition of B.Tech degree is 20.7.2000. Ext.P9 is the order dated 6.10.2001 by which the fourth respondent was promoted as Lecturer with effect from 20.7.2000 notionally, along with 19 others. 4. According to the petitioners, as the petitioners and the fourth respondent have passed the B.Tech degree examination on 20.7.2000, the promotion granted to the petitioners on different dates than 20.7.2000 is not correct. Ext.P10 is the representation dated 24.8.2006 submitted by the first petitioner seeking to rectify the anomaly in Ext.P8 gradation list. It is stated that the second petitioner had also submitted a similar representation. Ext.P11 is a letter of the Principal of the College wherein the first petitioner is working, forwarding an earlier representation of the first petitioner. The wpc 13143/2010 3 same is dated 21.2.2004. Ext.P12 is dated 23.11.2009 which is a further representation submitted by the first petitioner. After the select list was published, he submitted Ext.P13 before the Government. He is due to retire from service on 31.3.2011. Accordingly, the writ petition is field seeking to quash Exts.P1 and P8 and for a direction to promote the petitioners as Head of Section in preference to the fourth respondent. 5. The respondents have opposed the prayers of the petitioners on various grounds. In the counter affidavit filed by the first respondent, it is explained that Ext.P1 select list was prepared relying on the existing final gradation list published as per Ext.P8 and the fourth respondent was assigned 9th position above that of the petitioners. In the select list Ext.P1, the fourth respondent was given the rightful position. With regard to the acquisition of Degree by the first petitioner and the evidence produced by him before the authorities concerned, it is explained in the counter affidavit as follows: The first petitioner acquired the degree in the year 2000 and produced a provisional certificate on 1.8.2000 for getting promotion. Considering the said certificate, he was promoted as Lecturer with effect from 1.8.2000 provisionally. As per the rules, all promotions from posts in the State Subordinate Services to posts in the State Service should be made only on the basis of a Department Promotion Committee select list. It is wpc 13143/2010 4 pointed out that the second petitioner was given notional promotion with effect from 2.8.2000, the date which she produced the B.Tech degree certificate (provisional). With regard to the plea raised by the petitioners that they had produced Exts.P4 and P6 certificates, it is pointed out that they had not produced the said documents revealing the date of publication of result of B.Tech degree examination at the time of claiming their promotion. It is pointed out that Exts.P4 and P6 are dated 10.2.2004 and 30.5.2005 respectively and they had not produced the documents showing the date of publication of results of their B.Tech Degree at the time of their promotion. It is further pointed out that the first respondent examined Ext.P13 representation and rejected the same by specifying that the gradation list comprising the details of petitioners was published on 6.6.2006. It was published after a provisional seniority list was published by circular dated 20.11.2002. All the objections and appeals received in pursuance to the issuance of the circular were examined and necessary corrections were incorporated in the final list. Ext.P11 representation had not been received in the office of the first respondent. Ext.P10 representation dated 24.8.2006 was submitted by the first petitioner after the finalisation and publication of the final seniority list. It is pointed out that the position assigned to petitioners 1 and 2 and the fourth respondent is a wpc 13143/2010 5 settled one and therefore it is not possible to review the seniority list at this distance of time and the seniority position cannot be changed at the time of convening of the D.P.C. Therefore, what is contended is that the petitioners who slept over their rights and failed to put their grievance before the competent authority in time, cannot now turn round and say that the respondents attempted to promote the fourth respondent overlooking the claim of the petitioners. 6. In the counter affidavit filed by the fourth respondent also, it is pointed out that the petitioners have not approached the Court with clean hands. Ext.R4(b) is the circular by which the provisional gradation list was published. The same is dated 20.11.2002. Therein also, the fourth respondent's rank is 8 and petitioners are respectively shown as 9 and 10. The period for filing appeal against the provisional gradation list was over on 31.1.2003. The petitioners had not produced the B.Tech. degree certificates at any time before. The certificates Exts.P4 and P6 are only obtained subsequently, after the last date for filing appeal was over on 31.1.2003. If they had a legitimate claim they would have filed appeals against Ext.R4(b) provisional gradation list. The same has therefore become final and Ext.P8 final gradation list was thereafter published and the fourth respondent's seniority was settled over the petitioners. It is wpc 13143/2010 6 therefore pointed out that since they have not challenged the provisional gradation list or Ext.P8 final gradation list, they cannot have a grievance at this distance of time. 7. The petitioners have filed a reply affidavit and have produced Exts.P14 to P17 along with I.A. No.3372/2011 and along with I.A. No.4139/2011, they have produced Exts.P18 to P20 also. 8. Learned counsel for the petitioners mainly contended that the petitioners and the fourth respondent had passed the examination on 20.7.2000. The first petitioner was promoted on 1.8.2000 by Ext.P5 order, by taking the date of the provisional certificate. It is pointed out that Exts.P4 to P6 ought to have been accepted by the respondents to correct the date of promotions of the petitioners. Learned counsel further submitted that Ext.P10 representation was submitted to the proper authority, viz. Senior Joint Director PS), Office of the second respondent, who will have to deal with such matters, going by Ext.P15. The Principal had forwarded the representation as per Ext.P11 on 21.2.2004. Ext.P12 is also submitted to the Senior Joint Director. 9. Some of the factual details show the following, which will have a bearing on the question to be decided. The provisional certificate which was produced by the first petitioner for getting promotion as per Ext.P5 order, wpc 13143/2010 7 was not produced initially in the writ petition. It was explained by the learned Govt. Pleader that the date 1.8.2000 was adopted for promoting the first petitioner which is the date of the provisional certificate. After the matter was adjourned, the petitioners filed I.A. No. 4139/2011 producing the true copies of the provisional certificates as Exts.P18 to P20. Ext.P18 is in respect of the first petitioner. The same is dated 1.8.2000 and the date of passing of the examination as 20.7.2000 is not stated therein. The same is the case in Ext.P19 in respect of the second petitioner which is dated 2.8.2000. The degree certificate of the second petitioner is produced as Ext.P20 which only shows that the examination was held in April 2000 and the same is issued in October 2002. Ext.P14, copy of the degree certificate of the first petitioner is also not helpful. Therefore, these four documents are not helpful to show that the petitioners have passed the examination on 20.7.2000, as rightly pointed out by the learned Govt. Pleader. 10. The petitioners are relying upon Exts.P4 and P6 to justify their claim for promotions to be ordered with effect from 20.7.2000. Ext.P4 is dated 10.2.2004 which is a certificate issued by the University and Ext.P6 is dated 30.5.2005 which is also a certificate issued by the University. Herein, it is evident that the first petitioner was promoted long prior to the issuance of Ext.P4, by order Ext.P5 dated 9.8.2000. The second petitioner wpc 13143/2010 8 was promoted by order dated 20.11.2000 (Ext.P7). Evidently, therefore, at the time of their promotion, they have not produced any documents to show the date of acquisition of qualification as 20.7.2000 and it is an admitted case that a provisional certificate alone was produced which does not reflect any date of passing of the examination. Therefore, the first respondent promoted them from the respective dates of the provisional certificates. 11. One of the crucial contentions raised by the learned Govt. Pleader and learned counsel appearing for the fourth respondent is that the petitioners never sought to produce any of the relevant documents even during the time of preparation of the gradation list. In the writ petition, Ext.P8 is described as provisional gradation list in the cadre of Principals, Head of Section and Lecturers in Government Polytechnics. It is dated 6.6.2006. But actually Ext.P8 is the final gradation list and not the provisional one. In the said order itself, it is stated that based on the circular dated 20.11.2002 a provisional gradation list was published inviting objections, if any against finalisation of the list. Appeals received were examined in detail and corrections made wherever necessary, and finalised the list. The said list is appended to Ext.P8 order. Therefore, the description of Ext.P8 as a provisional list only in the writ petition is patently wpc 13143/2010 9 wrong. Ext.R4(b) produced along with the counter affidavit filed by the fourth respondent is the said circular publishing the provisional gradation list, dated 20.11.2002 which is mentioned in Ext.P8. It specifically provides that appeals, if any received against the list should be forwarded to the office of the Director of Technical Education on or before 31.1.2003. Evidently, the petitioners did not utilise this opportunity and they did not challenge the provisional gradation list wherein the respective position of the parties were shown as serial Nos.8, 9 and 10. In fact, there is no explanation as to why no objections/or appeals against the provisional gradation list was filed. 12. It can also be seen that Ext.P9 by which the fourth respondent was promoted, is dated 6.10.2001. Along with several others, she was given notional promotion from 20.7.2000. It is thereafter the provisional gradation list and final gradation list were published. Finally the select list was published by order dated 6.6.2006. There is no challenge against Ext.P9 herein. 13. In this context, the only thing to be examined is whether the case of the first petitioner that the representations were filed properly, is correct or not. Ext.P10 is a representation dated 24.8.2006. Therein, the subject shown is “request for the consideration of Promotion as Lecturer with effect wpc 13143/2010 10 from the date of publication of result of B.Tech Degree examination.” Even though in para 6 of the writ petition it is stated that it was filed to “rectify the anomalies that have crept in the gradation list Ext.P8” and accordingly he sought for “correction of the same”, nothing of that sort is stated in Ext.P10. Therein, what is requested is only to grant promotion from 20.7.2000. Therefore, the plea that Ext.P10 is filed to modify the gradation list cannot be accepted on its face value. Further, it is not submitted to the competent authority, viz. the second respondent. It is addressed to the Senior Joint Director (PS), Office of the Director of Technical Education, who is not a party to the writ petition also. Similarly, he is relying upon Ext.P11, a letter of the principal forwarding the representation to the second respondent herein. The same is dated 21.2.2004. Learned Govt. Pleader submitted that the said letter has not been received in the office of the second respondent. Further, the representation dated 12.2.2004 mentioned therein cannot be treated as an objection to the provisional gradation list and nothing is stated in that regard in Ext.P11. As noted already, the last date for filing objection to the provisional gradation list was over by 31.1.2003 and therefore Ext.P11 also cannot be treated as an objection to the gradation list. The representations, if any, filed by the second petitioner have not been produced also. wpc 13143/2010 11 14. Therefore, with regard to the dates of promotion granted to the petitioners, they have failed to produce the relevant documents in time to claim promotion from 20.7.2000. The seniority position in the gradation list was never objected or disputed. As rightly pointed out by the learned counsel appearing for the fourth respondent and learned Govt. Pleader, the final gradation list Ext.P8 was never challenged before the Government under Rule 27-B of KS & SSR, within the six months period provided therein. Therefore, both the petitioners allowed the final gradation list to remain unchallenged. Now they are attempting only to get a modification of the select list based on the new materials. Evidently, the seniority position reflected in the gradation list will have to be taken into consideration by the DPC and that alone was resorted also. In this context, learned Govt. Pleader referred to the reply given to Ext.P13 representation which is produced along with a memo dated 14.2.2001. Therein, the Government rejected the representation challenging the select list. It is pointed out that the representation dated 21.2.2004 (Ext.P11) has not been received in the Office of the Director of Technical Education and that the representation dated 24.8.2006 (Ext.P10) was received after the finalisation and publication of the final seniority list. The position assigned to the petitioners and the fourth respondent is a settled one and hence it not wpc 13143/2010 12 practical to review and alter the current position in the seniority list. 15. In fact, the petitioners have not amended the writ petition to challenge the same but learned counsel for the petitioners argued that the reasons stated therein cannot be accepted at all. What was produced by the petitioners were only the provisional degree certificates, copies of which are produced as Exts.P18 to P20. These documents do not give the date of passing the examination as 20.7.2000. The certificates Exts.P4 and P6 were not obtained at the right point of time to claim promotion and before they were promoted and they have also not been produced them before the gradation lit was finalised. Therefore, the attempt of the petitioners to get the dates of promotion corrected by filing representations, cannot succeed in the light of the fact that the seniority of the fourth respondent has been settled long time back. 16. Herein, the pleas raised by the paragraphs 3 and 4 of the writ petition also have to be mentioned. They have produced Exts.P4 and P6 to show the date of acquisition of qualification. After marking Ext.P4, it is stated that “thereupon” the first petitioner was promoted by Ext.P5 order. Evidently, the said averment is not correct, since the date of Ext.P4 is 10.2.2004 and the date of Ext.P5 is 9.8.2000. Therefore, obviously, Ext.P4 was not produced before the promotion was granted. In respect of the wpc 13143/2010 13 second petitioner also, after mentioning about the certificate Ext.P6 dated 30.5.2005 it is stated that “thereby” second petitioner was promoted by Ext.P7 order. It can be seen that Ext.P7 which is dated 20.11.2000 precedes Ext.P6 relied upon by the second petitioner. This also belies the contention of the petitioners that they had produced details with regard to the dates of acquisition of the qualification, at the relevant time. 17. Learned counsel for the petitioners then submitted that the sit back theory will not apply herein and that the right to be included in the gradation list is a not vested right. Reliance is placed on the decisions of the Apex Court in K. Narayanan v. State of Karnataka and others {1994 Supp. (1) SCC 44) , S.S. Bola and others v. B.D. Sardana and others {(1997) 8 CC 522} and Shiba Shankar Mohapatra and others v. State of Orissa and others (AIR 2010 SC 706). 18. Learned counsel for the fourth respondent relied upon various decisions of this Court, viz. Pavithran v. State of Kerala (2009 (4) KLT 20 - FB), Usha Devi v. State of Kerala (2002 (1) KLT 615), and the judgment in W.P.(C) No.10475/2010 to contend for the position that the sit back theory applies here and a person who has slept over his right for a long time, cannot rake up a stale claim. wpc 13143/2010 14 19. First I will come to the decisions relied upon by the learned counsel for the petitioners. In K. Narayanan's case (1994 Supp. (1) SCC 44) at page 53 what is mentioned is only that seniority is an incident of service which cannot be eroded or curtailed by a rule which operates indiscriminately. The observations in S.S. Bola's case {1997 (8) SCC 522} in para 200 is relied upon to contend that the position in the gradation list is not a vested right. What is mentioned in para 200 is that “thus to have a particular position in the seniority list within a cadre can neither be said to be accrued or vested right of a government servant and losing some places in the seniority list within the cadre does not amount to reduction in rank even though the future chances of promotion get delayed thereby.” That was a case where the Apex Court was considering the challenge against Haryana Service Engineers, Class I, Public Works Department (Building and Roads Branch) (Public Health Branch) and (Irrigation Branch) Act 1995. Therein, interpretation of the earlier rule by the Apex Court was sought to be unsettled by the retrospective legislation. It was argued that a vested right is taken away by the new Act and it was only in that context the above quoted observation was made and the situation herein has no similarity. wpc 13143/2010 15 20. In the last of the decisions, viz. Shiba Shankar Mohapatra's case (AIR 2010 SC 706) it was held in para 29 that 3 - 4 years is a reasonable period for challenging the seniority. It is therefore contended that the challenge made by the petitioners cannot be rejected on the basis of delay and laches. 21. A reading of the entire text of the judgment shows that the same goes against the contentions of the petitioners herein. Their Lordships examined the question of entertaining the petition disputing the long standing seniority filed at a belated stage and discussions have been made from para 16 onwards of the relevant principles. The sit back theory was also reiterated by referring to various decisions of the Supreme Court. Finally, in para 28 it was held thus: “It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum.” The principle was again reiterated in para 29 thus: “Thus, in view of the above, the settled legal proposition that wpc 13143/2010 16 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 2986 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.” The above observations will not obviously help the petitioners herein for more reasons than one. The provisional seniority list and final seniority list were never under challenge as provided in the