IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 OP.No. 24229 of 2001(H) ----------------------- PETITIONER(S): --------------- R. SULEKHA DEVI, JUNIOR SUPERINTENDENT, OFFICE OF THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, KOLLAM BY ADVS. SHRI.H.B.SHENOY SHRI.B.ASHOK SHENOY RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR & REHABILIATION DEPARTMENT, GOVT, SECRETARIAT THIRUVANANTHAPURAM 2. KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD REPRESENTED BY CHIEF EXECUTIVE OFFICER, BEACH ROAD, KOLLAM. 3. V.K.RAJENDRAN, DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, KOTTAYAM. 4. S. RADHAKRISHNAN, DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, KOZHIKODE ADDL.R5 - G. SIVA PRASAD, DISTRICT EXECUTIVE OFFICER,KERALA MOTOR TRANSPORT WORKERS SELFARE FUND BOARD, EXMPLOYEES CO-OPERATIVE BANK BUILDING, KOTTAYAM. ADDL.R6 - V.B.RAJEEV, ADDITIONAL DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, DWARAKA BUILDING, THEVALLY P.O., ANANDAVALLESWARAM, KOLLAM. ADDL.R7 - M.ABDUL SALIM, U.D.CLERK-HIGHER GRADE, OFFICER OF THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, HARIPAD, ALAPPUZHA. ADDL. R8 - G.P.SEETHALAKSHMI AMMA, DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, T.C. NO. 29.2759, KUTHIRAVATTOM ROAD, KUNNAMPURAM, THIRUVANANTHAPURAM. ADDL. R9 - P. SUDHARMA DEVI, DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS, WELFARE FUND BOARD, PUTHURKARA ROAD, NEAR GROUND, AYYANTHOL P.O., THRISSUR - 3. OP.No. 24229 of 2001(H) -2- ADDL.R10 - KUMARI JALAJA V, ADDITIONAL EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, PALARIVATTOM, KOCHI. ADDL. R11 - OBERLIN JOSEPH P.J., ADDITIONAL DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, PUTHENKARA ROAD, NEAR GROUND, AYYANTHOL, THRISSUR. ADDL.R12 - K.G.SYAMALAKUMARY, ADDITIONAL DISTRICT, EXECUTIVE OFFICER, MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, NADAKKAVU, KOZHIKODE. ADDL.R13 - M.SHAMSUDEEN, DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, ROBINSON ROAD, NEAR RAILWAY GATE, PALAKKAD. ADDL. R14 - R.RAJENDRAN NAIR, DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BAORD, BUILDING NO. 10557, THODUPUZHA P.O. ADDL. R15 - C.AHAMMED, U.D.CLERK, OFFICE OF THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, NEAR MALAYALA MANORAMA, MANERI ROAD, MOONNAMPADI, MALAPPURAM. ADDL. R16 - BABY JOSEPH, DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANPORT WORKERS WELFARE FUND BOARD, ASOKA BUILDING, THALICAVU, TEMPLE ROAD,KANNUR ADDL. R5 TO R16 ARE IMPLEADED AS PER ORDER DT. 4.3.2008 IN I.A. NO. 8936/05. BY GOVERNMENT PLEADER MR.MOHAMMED HASHIM ADV. SRI.C.P.SUDHAKARA PRASAD, SENIOR ADVOCATE FOR R3 SRI.S.RAMESH FOR R3 SRI.P.N.SANTHOSH FOR R3 SRI.S.D.ASOKAN FOR R3 SRI.N.MANOJ KUMAR FOR R15 SRI.M.RISHIKESH SHENOY FOR R15 SMT.K.AMMINIKUTTY FOR ADDL.R14 SRI.G.JOSEPH FOR R13 SRI.M.MOHANLAL FOR R6,9,13,16 SRI.B.MOHANLAL FOR R11 SRI.ELVIN PETER P.J. FOR ADDL.R10 SRI.P.B.SURESH KUMAR FOR R8 SRI.P.RAMAKRISHNAN FOR R2 SMT.PREETHI RAMAKRISHNAN FOR R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/12/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 24229 of 2001(H) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - COPY OF THE GRADATION LIST OF LD CLERKS AS ON 1.11.1991 PUBLISHED BY THE 2ND RESPONDENT ON 21.12.1991. EXT.P2 - COPY OF ORDER NO. E1-2001/92 DATED 6.8.1992 ISSUED BY THE 2ND RESPONDENT. EXT.P3 - COPY OF ORDER NO. G.O.(Rt) NO. 1246/95/LBR DATED 3.6.1995 ISSUED BY 1ST RESPONDENT. EXT.P4 - COPY OF ORDER NO. E/3367/98 DATED 13.7.2000 ISSUED BY 2ND RESPONDENT. EXT.P5(a) - COPY OF DRAFT GRADATION LIST OF LD CLERKS AS ON 1.12.2000 PUBLISHED BY 2ND RESPONDENT. EXT.P5(b) - COPY OF DRAFT GRADATION LIST OF UD CLERKS AS ON 1.12.2000 PUBLISHED BY 2ND RESPONDENT. EXT.P5(c) - COPY OF DRAFT GRADATION LIST OF HEAD CLERKS AS ON 1.12.2000 PUBLISHED BY 2ND RESPONDENT. EXT.P5(d) - TRUE COPY OF DRAFT GRADATION LIST OF JUNIOR SUPERINTENDENTS AS ON 1.12.2000 PUBLISHED BY 2ND RESPONDENT. EXT.P6 - COPY OF ORDER NO.E/6355/2000 DATED 23.1.2001 ISSUED BY 2ND RESPONDENT. EXT.P7 - COPY OF REPRESENTATION DATED 3.2.2001 SUBMITTED BY PETITIONER TO 2ND RESPONDENT. EXT.P8 - TRUE COPY OF ORDER NO. E-6355/2000 DATED 19.2.2001 ISSUED BY 2ND RESPONDENT. EXT,P9 - COPY OF GRADATION LIST OF LD CLERKS AS ON 1.12.2000 PUBLISHED 2ND RESPONDENT. EXT.P10 - COPY OF ORDER NO. E/1306/2001 DATED 26.2.2001 ISSUED BY 2ND RESPONDENT. EXT.P11 - COPY OF REPRESENTATION DATED 28.4.2001 SUBMITTED BY PETITINER TO 1ST RESPONDENT. EXT.P12 - COPY OF LETTER NO. E1/6335/2000(I) DATED 21.7.2001 ISSUED BY 2ND RESPONDENT TO PETITIONER. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ................................................ O.P. No. 24229 of 2001 ................................................. Dated this the 2nd day of December, 2009 J U D G M E N T In this original petition, the petitioner challenges seniority position as between the petitioner and respondents 3 to 16. The petitioner entered service along with respondents 3 to 16. They were selected as Lower Division Clerks in the Motor Transport Workers Welfare Fund Board by a common rank list. According to the petitioner, the petitioner was assigned rank No.11 therein and respondents 3 to 16 were below the petitioner in rank. The petitioner and respondents 3 to 16 were appointed pursuant to that rank list. Subsequently on 21.12.1991, the 2nd respondent published Ext.P1 gradation list of LD clerks as on 1.11.1991, wherein also the petitioner was shown as senior to respondents 3 to 16. The petitioner was promoted by Ext.P2 order dated 6.8.1992 as UD clerk in accordance with the seniority position in Ext.P1. The petitioner was again promoted as Head Clerk by Ext.P3 order dated 3.8.1995, again on the basis of the same seniority. By Ext.P4 order dated 13.7.2000, the petitioner was promoted as Junior Superintendent giving due seniority as in O.P. No. 24229 of 2001 -2- Ext.P1 gradation list. No body objected to the seniority position or the promotions. While so, in December 2000, the 2nd respondent published Exts.P5(a), P5(b), P5(c) and P5(d) gradation lists of L.D. Clerks, UD Clerks, Head Clerks and Junior Superintendents as on 1.12.2000. In Ext.P5(d) seniority list of Junior Superintends, the petitioner and respondents 3 to 16 were shown correctly in the order of seniority. But in Exts.P5(a) to P5 (c) gradation lists, as on 1.12.2000 relating to LD Clerks, UD Clerks and Head Clerks, although the petitioner's name was not required to be shown since as on 1.12.2000, the petitioner was not holding any of those posts. According to the petitioner, this was deliberately done in order to give an opportunity to the respondents 3 to 16 to object to the seniority of the petitioner. Petitioner's apprehension came true, when the 2nd respondent published Ext.P6 revised advice list dated 23.1.2001 as per which the petitioner was given rank below respondents 3 to 16. The petitioner filed Ext.P7 objections dated 3.2.2001 to the same. Petitioner's objections were overruled by Ext.P8 dated 19.2.2001. Thereafter the 2nd respondent approved Ext.P9 Gradation list of L.D. Clerks as on 1.12.2000 in terms of Exts.P6 O.P. No. 24229 of 2001 -3- and P8 orders, wherein the petitioner was shown as junior to respondents 3 to 16. By Ext.P10 order dated 26.2.2001, promotions were given to respondents 3 and 4 as District Executive Officers overlooking the original seniority of the petitioner in Ext.P1. The petitioner filed Ext.P11 objection which was replied by Ext.P12 letter dated 21.7.2001 along with which a provisional Gradation list of U.D. Clerks as on 1.12.2001, Ext.P12, was enclosed. The petitioner is challenging Exts.P6, P8, P10 and P12 in this writ petition. According to the petitioner, the petitioner was rightly shown in Ext.P1 Gradation list of LD clerks as on 1.11.1991 above respondents 3 to 16. She would submit that as is clear from Ext.P2 dated 6.8.1992, Ext.P1 gradation list was approved by the 2nd respondent on 1.8.1992 and no body objected to the said gradation list for a period of 8 years. It is after 8 years that the respondents came up with a case that in the original rank list for appointment as L.D.Clerks, the petitioner was below the respondents 3 to 16 and therefore seniority should be altered accordingly by correcting the mistake committed by the 2nd respondent. According to the petitioner this is clearly unsustainable. She would submit that even assuming O.P. No. 24229 of 2001 -4- that there was a mistake, after having allowed the petitioner to have the seniority position for 8 long years and giving the petitioner three further promotions in accordance with that seniority, it is too late in the day for the respondents to now come up with a contention that they are correcting a mistake committed earlier. The petitioner therefore seeks the following reliefs: “(a) Call for the records and files leading to Exts.P6, P8 to P10 and P12 issued by 2nd respondent, and quash Exts.P6, P8 to P10 and P12 thereof to the extent it supersedes petitioner's seniority as assigned in Ext.P1 gradation list, by issuance of a writ in the nature of certiorari or any other appropriate writ, order or direction; (b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to retain the petitioner's seniority in the cadre of L.D.Clerks and all consequentially promoted cadres, as was assigned to her in terms of Ext.P1 gradation list, and to effect further promotions to higher posts accordingly; (c) Stay further promotions in terms of Exts.P6, P8 to P9 and P12 to the post of “District Executive Officer” in the 2nd respondent - Board, pending disposal of the Original Petition;” 2. The 1st and 2nd respondents have filed a counter affidavit taking the contention that they were only correcting a mistake committed earlier. According to them in the rank list prepared for selection to the post of LD Clerk, the petitioner was at rank O.P. No. 24229 of 2001 -5- No.24, whereas respondents 3 to 16 were placed above her. But in view of an incorrect understanding of the law of communal rotation, in the advise list published, the petitioner was shown ahead of respondents 3 to 16. Consequently, appointment of the petitioner was ahead of the respondents 3 to 16 and she was included in Ext.P1 seniority list ahead of respondents 3 to 16. They would also take a contention that Ext.P1 seniority list was only provisional and was not finalised. While finalising the gradation list the correct seniority position as between the petitioner and respondents 3 to 16 was restored. Respondents 3 and 4 have filed a counter affidavit taking the very same stand. According to them, they were totally unaware of the fact that in the rank list prepared for the post of L.D. Clerk they were ahead of the petitioner. They bonafide believed that the advice list was in accordance with the rank list and assumed that the petitioner was senior to them. They came to understand that they were actually ahead of the petitioner in the rank list only when Ext.P5 was issued. On realising the actual seniority position, they immediately filed objections which objections have been accepted and the seniority position has been revised, which is O.P. No. 24229 of 2001 -6- perfectly in order is the contention raised. 3. I have considered the rival contentions in detail. 4. A learned judge of this court who had earlier heard this case had directed the 2nd respondent to produce the original rank list. File relating to the subject has been produced. The same contains a rank list which is not signed by anybody but in the same, the petitioner is shown below respondents 3 to 16 in rank. 5. In view of the said rank list, it cannot now be disputed that the petitioner was below respondents 3 to 6 in rank at the time of selection. Respondents 1 and 2 have no case that the petitioner was responsible for the mistake. In Ext.P8, the stand taken by the 2nd respondent is that Ext.P1 rank list was not approved in the meeting dated 1.8.1992 as stated in Ext.P2. But strangely they have not chosen to produce the minutes of the date 1.8.1992 to substantiate the same. But in Ext.P2, which was issued on 6.8.1992, years before the dispute regarding seniority between the petitioner and the respondents 3 to 16 arose, it is stated that in the meeting held on 1.8.1992, the gradation list of L.D. clerks and L.D. Typists of the Board had O.P. No. 24229 of 2001 -7- been approved and a decision to promote qualified L.D. clerks to the existing vacancies of the U.D. Clerks, provisionally, subject to the ratification of the action of the board by the Government of Kerala and subject to final decision in O.P. No.4975/1992-P before this court, has been taken. Ext.P8 order was passed after the dispute between the petitioner and the respondents 3 to 16 arose. Therefore I am inclined to believe Ext.P2 rather than Ext.P8 especially in view of the fact that respondents 1 and 2 has not chosen to produce the minutes of the meeting of the Board on 1.8.1992. I find that the stand of the 2nd respondent is opportunistic. The 2nd respondent cannot take the stand that they had not finalised the rank list because they were legally bound to do so. But strangely the following sentence appears in Ext.P8. “Moreover the board have not published the rank list of L.D. Clerks for the information of all concerned”. Added to this in Exts.P5(a) to P5(c) seniority list as on 1.12.2000, the names of the petitioner and respondents 3 to 16 were included although none of them were L.D.Clerks, U.D. clerks or Head clerks as on 1.2.2000, since by that time all of them had already been promoted as Junior Superintendents. This would lend credence O.P. No. 24229 of 2001 -8- to the contention of the petitioner that those seniority lists were deliberately published to give an opportunity to respondents 3 to 16 to file objections against the seniority list on the ground that the seniority list was not finalised. Further at the time of publication of those seniority lists, the 2nd respondent was very much aware of the fact that there was a mistake in making the original advise. If that be so, they could have very well published the correct seniority list. But instead they chose to publish seniority list giving the petitioner, the seniority as in Ext.P1 seniority list itself. I find lack of bonafides on the part of the 2nd respondent in such action. 6. From Ext.P2, it is abundantly clear that the 2nd respondent themselves accepted Ext.P1 as approved seniority list. Admittedly, in Ext.P1 seniority list, the petitioner was shown senior to respondents 3 to 16. Although, the respondents 3 to 16 would now raise a contention that they were not aware of their position in the rank list at the time of publication in Ext.P1 rank list, I am of opinion that when Ext.P1 was published they had a duty to ascertain their correct seniority position by insisting on seeing the rank list, if necessary. They had not O.P. No. 24229 of 2001 -9- bothered to do so. They in fact condescended to the seniority position of the petitioner ahead of them. They cannot after eight years take a contention that at the time when Ext.P1 was published, they were not aware of their rank in the rank list. They were expected to know their rank in the rank list and should have objected to Ext.P1 accordingly, if they had a case that they were senior of the petitioner. They did not chose to do so. It was not as if the rank list was not duly published at the time of selection. On a pointed question in that regard, the counsel for the 2nd respondent candidly admitted that the rank list was duly published at the time of selection. Therefore, if the respondents 3 to 16 were not aware of their rank it was their own fault. They cannot now resurrect a stale claim on the ground that they were not aware of their superior rank in the rank list. Therefore they slept over their rights for eight long years. Hence, even assuming that the petitioner was given appointment and seniority ahead respondents 3 to 16 contrary to the original rank list, I do not think that the petitioner should be deprived of the seniority as given in Ext.P1, which has been approved on 1.8.1992 going by Ext.P2, which is a O.P. No. 24229 of 2001 -10- contemporaneous documents issued prior to the dispute regarding seniority of the petitioner arose. They ought to have been aware of their seniority position. Immediately on publishing Ext.P1, they are not cared to verify the same and take up only when Ext.P5 dated 13.12.2000 was published. The respondents 3 to 16 are not entitled to claim revision of seniority, on account of long and unexplained delay and laches. Therefore impugned orders are quashed. The petitioner is declared as senior to respondents 3 to 16 in all posts. All promotions made in posts above that of Junior Superintendent, contrary to the said seniority position shall be reviewed giving the petitioner her due promotion accordingly to such seniority on the due dates. Orders in this regard shall be passed and monetary benefits due to the petitioner consequent thereto shall be disbursed, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The Original petition is allowed as above. S. SIRI JAGAN, JUDGE rhs