IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 OP.No. 1970 of 2002(H) ------------------------------- PETITIONER(S): ------------------------- 1. K.N.RAJAN,S/O.NARAYANN,UPPER DIVISION CLERK (HIGHER GRADE),SUB REGIONAL TRANSPORT OFFICE,TRIPUNITHURA. 2. V.M.JABBAR,S/O.MOHAMMED,UPPER DIVISION CLERK(HIGHER GRADE),SUB REGIONAL TRANSPORT OFFICE, PONNANI 3. K.K.MOHANAN,S/O.K.K.KUNHAPPAN,.UPPER DIVISION CLERK(HIGHER GRADE),REGIONAL TRANSPORT OFFICE,MUVATTUPUZHA. BY ADV. MR.P.V.MOHANAN RESPONDENT(S): ------------------------ 1. THE TRANSPORT COMMISIONER,TRANSPORT COMMISSIONER OFFICE,THIRUVANANTHAPURAM. 2. C.CHANDRAN,UPPER DIVISION CLERK (HIGHER GRADE),OFFICE OF TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM. R1 BY GOVT. PLEADER MR.SANDESH RAJA R2 BY ADV. MR.V.R.GOPU THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.3470/2002 IN OP. NO.1970/2002 DISMISSED 19/01/2010 SD/- S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PROCEEDING NO.A2-35607/TC/87 DTD. 29.10.1987 BY THE JOINT TRANSPORT COMMISIONER , THIRUVANANTHAPURAM. P2:- COPY OF THE OFFICIAL GAZETTE DTD. 30.7.1991 AND THE SENIORITY LIST OF UPPER DIVISION CLERK. P3:- COPY OF THE PROCEEDING NO.A2.14753/TC/88 DTD. 27.10.1994 BY THE ADDL.TRANSPORT COMMISSIONER , THIRUVANANTHAPURAM. P4:- COPY OF THE PROCEEDING NO.A2-13908/TC/2001 DTD. 3.12.2001 BY THE IST RESPONDENT. RESPONDENT'S EXHIBITS R2(a):- COPY OF THE OBJECTION DTD. 24.7.91 SUBMITTED BY 2ND RESPONDENT C. CHANDRAN. R2(b):- COPY OF THE REPRESENTATION NO.A2.13908/TC/99 DTD. 27.7.99 SUBMITTED BY 2ND RESPONDENT C.CHANDRAN TO THE TRANSPORT COMMISSIONER . R2(c):- COPY OF THE REPRESENTATION DTD. 4.5.2001 SUBMITTED BY 2ND RESPONDENT TO THE TRANSPORT COMMISSIONER. R2(d):- COPY OF THE NOTICE NO.A2/13980/TC/99 DTD. 19.9.01 ISSUED BY SENIOR ADMINISTRATIVE OFFICER. TRUE COPY P.A. TO JUDGE tss S.SIRI JAGAN, J. ================== O.P.No. 1970 of 2002 ================== Dated this the 19th day of January, 2010 J U D G M E N T The 1st petitioner commenced service as a Lower Division Clerk in the Transport Department of the Government of Kerala on 20.2.1992. On passing the obligatory departmental tests, he was promoted to the category of Upper Division Clerk, on 29.10.1987. The 2nd petitioner commenced service as Lower Division Clerk on 18.10.1983 and he was promoted as Upper Division Clerk on 29.10.1987. The 3rd petitioner joined as Lower Division Clerk on 1.12.1984 and was promoted as Upper Division Clerk on 29.10.1987. The 2nd respondent entered service as Lower Division Clerk on 19.11.1985, ie., after the petitioners entered service. But he was promoted as Upper Division Clerk on the same day as the petitioners viz., 29.10.1987. In fact the petitioners and the 2nd respondent were promoted after reverting some persons who were earlier promoted as Upper Division Clerk without obtaining test qualifications, by Ext.P1 order. A provisional seniority list of Upper Division Clerk appointed during the period from 1.7.1985 to 30.4.1988 was published as per Ext.P2 order dated 4.2.1991, in which the petitioners were placed above the 2nd respondent. The 2nd respondent did not file any objections against the same. After considering the objections of other o.p.1970/02 2 employees, the seniority list was finalised on 27.10.1994, by Ext.P3 order. After four years, the 2nd respondent filed a representation in 1999 against that seniority list. That representation was considered and ultimately, Ext.P4 order was passed rearranging the seniority giving seniority to the 2nd respondent over the petitioners. The petitioners are challenging Ext.P4 order in this original petition on the ground of sit back theory, as also on merits. 2. According to the petitioners, the seniority position having been settled on 27.10.1994 by Ext.P3, the same could not have been unsettled 7 years thereafter by Ext.P4 order dated 3.12.2001, even if the 2nd respondent has filed a representation in 1999. In support of this contention, the petitioners rely on the Full Bench decision of this Court in Pavithran v. State of Kerala [2009 (4) KLT 20 (F.B.)]. Regarding merits, the petitioners would contend that in the cadre of Lower Division Clerk the petitioners joined service much before the 2nd respondent and for promotion, seniority in the cadre of Upper Division Clerk, the same seniority should follow. They point out that in Ext.P3 seniority list the petitioners were ranked 133, 131 and 134, whereas the 2nd respondent was ranked 153. But in Ext.P4 that seniority position has been changed and the 2nd respondent has been given seniority over the petitioners. The petitioners, therefore, submit that Ext.P4 is liable to be quashed and seniority as per Ext.P3 is liable to be o.p.1970/02 3 restored. 3. Counter affidavits have been filed both the 1st respondent and the 2nd respondent. The 1st respondent would contend that the sit back theory cannot be applied in this case since, by Ext.P1 order, the promotion of the petitioners and the 2nd respondent was made with the condition that ranking of Upper Division Clerks will be ordered according to the seniority of the incumbents on receipt of full details from the controlling officers concerned. It is submitted that full details were received only after Ext.P3 seniority list was published and on receipt of the same, certain anomalies were found, as a result of which, it became necessary to revise the list to rectify the anomaly, which resulted in Ext.P4 order. Therefore, the sit back theory does not apply to this case, is the contention of the 1st respondent. 4. The learned Government Pleader would take a contention that original petition is bad for non-joinder of necessary parties in so far as other persons have also been given seniority in Ext.P4, who have not been impleaded in the original petition. The 2nd respondent also, in his counter affidavit, adopts the same contentions. 5. I have considered the rival contentions in detail. 6. As far as the technical objection of the learned Government Pleader regarding non-joinder of parties is concerned, I do not find any merit in the same. The petitioners are not claiming seniority over o.p.1970/02 4 anybodyelse. They are seeking seniority only over the 2nd respondent. If they are actually entitled to such seniority over the 2nd respondent, it is for the 1st respondent to decide as to how they should be given their due seniority. The petitioners cannot be accused of non-joinder of parties when they do not seek relief against anybodyelse other than the 2nd respondent. 7. I do not find any merit in the contention of the respondents that sit back theory would not apply. It is true that in Ext.P1 it is stated that ranking in Upper Division Clerks will be rearranged according to the seniority of the incumbents on receipt of full details from the controlling officers concerned. That order was passed on 29.10.1987. Ext.P2 provisional seniority list was published on 4.2.1991 and Ext.P3 final seniority list was published only on 27.10.1994. There was ample time for the 1st respondent to collect all details before finally settling the seniority position and it is to be noted that against Ext.P2 provisional seniority list, the 2nd respondent did not raise any objection at all. I am of opinion that clause 7 in Ext.P1 has been invoked only for defeating the contention of the petitioners on the basis of sit back theory and not because the 1st respondent was convinced about that contention. I do not find any merit in that contention. In Pavithran's case (supra) the Full Bench has held that a person who has slept over his rights, cannot rake up a stale claim and o.p.1970/02 5 tinker with settled seniority and that unless he takes recourse to appropriate remedy at appropriate time, even an illegal order will be treated as valid and binding. I am of opinion that the ratio of that decision squarely applies to the case of the 2nd respondent. As I have stated, provisional seniority list was published on 4.2.1991, the 2nd respondent did not file any objection to the same and Ext.P4 order revising seniority list was published be only on 3.12.2001. The 2nd respondent raised his objection only in 1999. As such, notwithstanding clause 7 of Ext.P1, the settled seniority position cannot be unsettled after 7 years and the 2nd respondent cannot claim seniority over the petitioners contrary to Ext.P3 final seniority list. 8. Although in view of my above findings, it is not necessary to consider the contention on merits, I find that neither in Ext.P4 nor in the counter affidavit filed by the 1st respondent or the 2nd respondent, is there any justification as to why the 2nd respondent should be given seniority over the petitioners. As noted in the beginning, the petitioners entered service as Lower Division Clerk more than two years prior to the 2nd respondent joining as Lower Division Clerk. It is only after passing the departmental test, they were promoted as Upper Division Clerks. As such, no specific reason is forthcoming as to why the 2nd respondent should be given seniority over the petitioners in the cadre of Upper Division Clerk. In the above circumstances, I am o.p.1970/02 6 satisfied that the petitioners are entitled to succeed in this original petition. Accordingly, Ext.P4 is quashed to the extent it tinkers in the inter se seniority between the petitioners and the 2nd respondent. It is declared that the petitioners are entitled to seniority as in Ext.P3 final seniority list over the 2nd respondent . As to how that seniority should be worked out is for the 1st respondent to consider appropriately. Orders in this regard restoring the seniority of the petitioners over the 2nd respondent shall be issued by the 1st respondent within one month from the date of receipt of a copy of this judgment. The original petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 1970 of 2002-H ================== J U D G M E N T 19th January, 2010