IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 WA.No. 2380 of 2009 --------------------- AGAINST THE JUDGEMENT IN WPC.23246/2007 Dated 28/08/2009 .................... APPELLANT(S): RESPONDNETS 5 & 6 IN WRIT PETITION ------------------------------------------------ 1. JOHN BOSCO,SECTION OFFICER,UNIVERSITY OF KERALA,PALAYAM,THIRUVANANTHAPURAM. 2. JACOB PHILIP,SECTION GRADE ASSISTANT, UNIVERSITY OF KERALA,PALAYAM,THIRUVANANTHAPURAM. BY ADV. SRI.D.AJITHKUMAR RESPONDENT(S): RESPONDENTS 1 TO 4&7 AND PETITIONER IN W.P.(C) ------------------------------------------------------------- 1. STATE OF KERALA,REPRESENTED BY ITS SECRETARY,HIGHER EDUCATION(B)DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE SECRETARY,FINANCE (RULES)DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 3. UNIVERSITY OF KERALA,REPRESENTED BY ITS VICE CHANCELLOR,UNIVERSITY BUILDINGS, THIRUVANANTHAPURAM. 4. THE REGISTRAR,UNIVERSITY OF KERALA, UNIVERSITY BUILDINGS,THIRUVANANTHAPURAM. 5. THE KERALA UNIVERSITY,APPELLATE TRIBUNAL, THIRUVANANTHAPURAM. 6. PREMA.S.NAIR,SELECTION GRADE ASSISTANT, UNIVERSITY OF KERALA,THIRUVANANTHAPURAM, RESIDING AT AISWARYA,VHRA 97,VISHNU NAGAR, POWDIKONAM,THIRUVANANTHAPURAM. ADDL. RESPONDENTS: 7. MUKUNDAN K.S., AGED 46 YEARS, S/O.N.KRISHNAN NAIR, SECTION OFFICER HIGHER GRADE, SANTHI BHAVAN, T.C. 17/192, CHADIYARA, POOJAPURA, TRIVANDRUM - 695 012. WA NO.2380/2009 8. MANJUSHA B.G., D/O.V.GOPINATHAN NAIR, SECTIONN OFFICER HIGHER GRADE, MANJIRAM, CHERIVICKAL, SREEKARYAM, TRIVANDRUM. 9. SOBHANA K., D/O.KUNJU PILLAI, SECTION OFFICER, VISOBH, KOTTAMBAM, MALAYINKOL. 10. SINDHU M., D/O.K.MADHAVANKUTTY, SECTION OFFICER, KRISHNAN MANDIRAM, RELLICHERIA P.O., KOLLAM. 11. SHYLAJA S., D/O.V.JAYADEVAN NAIR, SECTION OFFICER, T.C.16/500(1), REVATHY, JAGATHY, THYCADU P.O., TRIVANDRUM-14. 12. LAKSHMI R., D/O.RAMAN NAIR N., SECTION OFFICER HIGHER GRADE, SUPAIYA, POOJAPPURAM, TRIVANDRUM-12. 13. SHEELA GEORGE, D/O.A.L.GEORGE, SECTION OFFICER HIGHER GRADE, 'ANUGRAHA', T.C.14/1472, ARAPPURA ROAD, KANNAMOOLA, MEDICAL COLLEGE P.O., TRIVANDRUM-11. 14. SHAJI KUMAR S.V., S/O.SHANMUGHAN, SECTION OFFICER, SHEESHA NIVAS, T.C.41/1577, SREENAGAR, MANACAUD P.O., THIRUVANANTHAPURAM-9. 15. VIJAYA KUMAR G.P., S/O.GOPALA PILLAI, SECTION OFFICER HIGHER GRADE, T.C.49/738(2), KARTHIKA NAGAR, MANACAUD P.O., THIRUVANANTHAPURAM-9. 16. LEKHA S., D/O.K.MADHAVAN NAIR, SECTION OFFICER HIGHER GRADE, T.C.15/2912, GOKULAM, PETTAH (PO), THIRUVANANTHAPURAM. (ADDL. RESPONDENTS 7 TO 16 IMPLEADED AS PER ORDER IN I.A.NO.1186/2009 DATED 10.12.2009) BY SPL.GOVT. PLEADER SRI.N.MANOJ KUMAR FOR R1 & R2 ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. FOR R3 TO R4 SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R6 SRI.D.KISHORE FOR R6 SRI.S.RAJEEV FOR ADDL.R7 TO R16 SRI.K.K.DHEERENDRA KRISHNAN FOR ADDL.R7 TO R16. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2009, ALONG WITH WA NO. 2496 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ W.A.Nos.2380 & 2496/2009 ------------------------------ Dated this, the 10th day of December, 2009 JUDGMENT Balakrishnan Nair, J. These appeals are directed against the judgment of the learned Single Judge in W.P.(C) No.23246/2007. W.A.No.2380/2009 is filed by respondents 5 and 6 and W.A.No.2496/2009 is filed by respondents 3 and 4 in the Writ Petition. As the very same judgment is under challenge in these appeals, they are heard and disposed of by this common judgment. 2. W.A.No.2380/2009: This Writ Appeal is treated as the main case for the purpose of referring to the parties and exhibits. The brief facts of the case are the following: The 6th respondent/writ petitioner was appointed as Assistant Grade II in the Kerala University on 1.8.1988. She applied for leave for higher studies. The University granted the same by Ext.P1 order dated 30.1.1992 with effect from WA Nos.2380 & 2496/2009 - 2 - 1.2.1992 for a period of two years. The purpose of leave was shown as higher studies and the rule referred to in Ext.P1 for granting the leave was Rule 91 of Part I, Kerala Service Rules (for short “K.S.R.”). While the 6th respondent was on leave, a gradation list of Assistants was published on 1.12.1992 and she was serial number 74 in it. Later, by Ext.P2 order dated 17.8.1993, she was promoted as Assistant Grade I. By Ext.P3 order dated 24.3.1994, the leave granted to the 6th respondent for higher studies was extended for a further period of one year with effect from 1.2.1994. Again, the rule cited for granting the leave under Ext.P3 was Rule 91 of Part I, K.S.R. It is submitted that the leave was again extended and finally she rejoined duty on 1.9.1996, after the leave period. While she was on leave, the University issued Ext.P6 order dated 30.10.1995, modifying the conditions, subject to which the leave was granted. The promotion granted to her as per Ext.P2 dated 17.8.1993 to the post of Assistant Grade I was also cancelled. The relevant portion of Ext.P6 order dated 30.10.1995 reads as follows: “Smt.Prema S. Nair, Assistant Grade II was granted Leave Without Allowances for a total period of WA Nos.2380 & 2496/2009 - 3 - 5 years with effect from 1.2.1992, as per University orders read as papers 2, 3 and 4. As per rules, Smt.Prema S.Nair, will lose all service benefits including commutation of leave, half pay leave etc., and the period of leave will be treated as dies-non for all kinds of service benefits. She will also lose seniority in the grade with reference to those who might get promoted before she rejoins duty. As per item no.2 of the University order cited, as paper one, Smt.Prema S. Nair was promoted to act as Assistant Grade I on Rs.1000-1710 with effect from 30.04.1993. In Partial modification to the University orders cited as papers 2, 3 and 4 sanction has been accorded by the Vice-Chancellor for including the following conditions in the above orders granting Smt.Prema S.Nair, leave without allowances. 1. She will lose all service benefits including commutation of leave, half pay leave etc., and the period of leave will be treated as 'dies-non' for all kinds of service benefits. 2. She will lose seniority in the grade with reference to those who might get promoted before she rejoins duty. Sanction has also been accorded by the Vice- Chancellor for cancelling the promotion granted to Smt.Prema S.Nair, Assistant Gr.II vide item no.2 of the U.O.No.Ad.A1.3.2722(B)/93 dated 17.08.1993. Smt.Prema S.Nair is permitted to continue on leave as Assistant Gr.II. WA Nos.2380 & 2496/2009 - 4 - The University orders read above, stands modified to this extent.” Later, the 6th respondent was promoted as Assistant Grade I, by order dated 25.9.1996. On 31.5.2000, the appellants submit, a gradation list of the employees of the University was published. In that list, the 6th respondent was shown as serial number 104, in the part relating to Assistant Grade I. Later, Annexure-II final seniority list of University employees was published on 22.3.2001, in which the 6th respondent was shown as serial number 92. The 6th respondent was later promoted as Senior Grade Assistant on 14.3.2003 and Selection Grade Assistant on 25.3.2006. The University published Ext.P7 final gradation list of its employees on 7.10.2005. In that list the 6th respondent was shown as serial number 106 among Senior Grade Assistants with date of promotion to that cadre as 14.3.2003. She filed Ext.P8 representation dated 30.10.2005 against Ext.P7 gradation list. The University rejected that representation by Ext.P9 memo dated 22.2.2006, placing reliance on Ext.P6 order. In the meantime, the 6th respondent moved the Government. The Government by Ext.P10 communication, informed the WA Nos.2380 & 2496/2009 - 5 - University that the 6th respondent is entitled to get all service benefits during her leave period. Still later, the Government issued Ext.P11 communication on 12.5.2006, withdrawing Ext.P10 and pointing out that the 6th respondent is eligible for Leave Without Allowances for study purpose under Rule 88 of Part I, K.S.R and therefore, during the said leave period her seniority/promotion will not be affected. When the grievance against the seniority position of the 6th respondent was not redressed, she approached this Court by filing W.P.(C) No.27025/2006. The Court disposed of that writ petition by Ext.P13 judgment dated 6.2.2007, with the following direction: “If the petitioner files an application before the Tribunal under Section 73(3) of the Kerala University Act within two weeks from the date of receipt of a copy of this judgment, the Tribunal will consider the same and take a decision thereon in accordance with law after hearing the parties within a period of three months from the date of filing of the application. Till such time as a decision is taken, the interim order will continue. I leave open the contentions of the petitioner.” Based on the said direction, the 6th respondent preferred Ext.P14 appeal before the University Appellate Tribunal. The Tribunal, after hearing both sides, dismissed the appeal by WA Nos.2380 & 2496/2009 - 6 - Ext.P17 judgment dated 7.6.2007. The Tribunal upheld the stand of the University regarding the effect of the leave granted to the 6th respondent. The Tribunal also noticed that there was inordinate delay from the part of the 6th respondent to challenge the adverse seniority position. So, if her seniority is restored, the same will affect more than 230 employees. The relevant portion of the said judgment reads as follows: “Evidently the appellant never raised any objection either regarding the provisional list or regarding the final list. Ext.P11 according to respondents was submitted to the University by the appellant only on 6.6.2006 and that by the time the University was considering the legal position involved in it, the appellant moved the High Court. Though it is alleged that several objections filed by appellant against the seniority list did not evoke any response, there is no materials on record to substantiate the same. So until 2006 the appellant did not care to challenge the seniority list finalised as on 31.12.2000. Now that about 225 employees have been promoted above the appellant herein and if the seniority is re- casted after such a long lapse it would definitely affect those persons. But such interference cannot be had now in the reason mainly that they are not on record. Further as is evident from the records the seniority has been finally settled and it went unchallenged as the while. After passing the impugned order the appellant was promoted as Assistant Grade I w.e.f. 25.9.1996, as Senior Grade Assistant w.e.f. 14.3.2003 and as Selection Grade Assistant w.e.f. 25.3.2006. She availed and enjoyed those benefits without lifting WA Nos.2380 & 2496/2009 - 7 - even a little finger. After sleeping over her rights if at all there is any for such a long period it is now not open to her to challenge the legality or correctness of the seniority. A court of law will seldom extend its helping hand to the sleepy but only to the wakeful. In this respect the learned counsel for respondent would rely on the decision reported in India Law Reporters at page 31 (Karthikeya & another v. State of Kerala and others) wherein it is held that seniority of persons finally settled for long years cannot be unsettled after long delay causing injustice to persons in service. The ratio of the said decision would squarely apply to the facts of this case. So the gradation list dated 1.9.2005 cannot be unsettled as the same has been prepared basing on the seniority list as on 31.5.2000 with correction as on 31.12.2000, which was not challenged at any point of time. University being the competent authority and as no clarification was sought from its side the clarification contained in Annexure II is not at all binding upon it. So one cannot compel the University to issue orders in conformity with Annexure II. If that be so the appeal has only to fail. Points answered accordingly.” Challenging Exts.P6 and P17, the 6th respondent filed the Writ Petition. The learned Single Judge, after hearing both sides, found that the 6th respondent was entitled to get leave under Rule 88 of Part I, K.S.R., and therefore, the leave granted to her will not affect her seniority or promotion chances. The learned Single Judge did not consider the contention regarding delay in raising the 6th respondent's claim. The affected persons, who WA Nos.2380 & 2496/2009 - 8 - were respondents 5 and 6 in the Writ Petition, have preferred this appeal. 3. We heard Sri.D.Ajith Kumar, learned counsel for the appellants and also the learned standing counsel for the Kerala University, for respondents 3 to 6. We also heard Sri.K.R.B.Kaimal, learned senior counsel for the 6th respondent and learned Government Pleader Sri.N.Manoj Kumar for respondents 1 and 2. 4. The learned counsel for the appellants and the learned standing counsel for the University submitted that though by Ext.P6, the conditions of grant of leave to the 6th respondent were modified on 30.10.1995 and her promotion to the post of Assistant Grade I was cancelled, she has chosen not to challenge it. She has never raised any objection against it. Her objection against her seniority position was raised for the first time only by Ext.P8 representation. A reading of Ext.P8 would show that she has not filed any representation earlier. If there was any such representation, the same would have been referred to in Ext.P8. It is also pointed out that the Tribunal has WA Nos.2380 & 2496/2009 - 9 - found that there was inordinate delay in raising her claim, based on the materials on record. In view of the above position, the learned Single Judge ought not to have entertained the Writ Petition. It should have been dismissed without going into the merits of the case, it is submitted. 5. The learned Government Pleader submitted that the clarifications Exts.P10 and P11 were issued, based on the representation of the 6th respondent and the Government are not concerned with the delay or other contentions raised. The learned senior counsel for the 6th respondent pointed out that in the Writ Petition, the 6th respondent has pleaded as follows: “The petitioner challenged Exhibit P6 before the 4th respondent and she pointed out the anomaly. But no action was taken.” The learned senior counsel submitted that the 4th respondent, who is the Registrar of the University, has not filed any counter affidavit, disputing that submission. Further, it is pointed out that Ext.P6 order was issued without notice to the 6th respondent. So, it is void ab initio. Moreover, the unilateral change in the conditions granting leave to the 6th respondent is WA Nos.2380 & 2496/2009 - 10 - highly arbitrary and discriminatory. The learned senior counsel also pointed out that the finding of the learned Single Judge that the leave granted should be treated as one under Rule 88 of Part I, K.S.R., is unassailable. 6. We considered the rival submissions made at the Bar and also perused the materials on record. In this case, we notice that the promotion granted to the 6th respondent to the post of Assistant Grade I, as per Ext.P2 dated 17.8.1993 was cancelled as early as on 30.10.1995 by Ext.P6. By the said order, a condition was also imposed that she will lose seniority as against the juniors who may get promoted from the cadre, during her absence. In the Writ Petition the petitioner/6th respondent has made a vague statement that she represented against Ext.P6 before the Registrar of the University. But, she has not stated when it was done and how it was done. The said claim made by her was considered by the Tribunal and found that there was no material whatsoever to show that the 6th respondent has complained against Ext.P6 order. The said finding is a finding of fact. The said finding is fully justified , in WA Nos.2380 & 2496/2009 - 11 - view of the contents of Ext.P8, which read as follows: “As per University Order read as papers 1, 2 & 4 quoted above, I was granted leave without allowances for higher studies (Ph.D) according to Rule 91 of Part I, Kerala Service Rules and governed by all rules relating to leave for higher studies w.e.f 1.2.1992 to 2.9.1996. I was promoted to act as Assistant Grade I as per paper 3rd read above and according to Rule 91 of Part I, Kerala Service Rules. The promotion was cancelled as per paper 5, partially modifying papers 1, 2 and 4 read above, incorporating two provisions in the order (ie, she will loss (sic lose) all service benefits including commutation of leave etc. and lose seniority in the grade. With reference to those who might get promoted before she rejoins duty. In this contest (sic context), it is pertinent to note that I was sanctioned leave without allowances for higher studies w.e.f 1.2.92 as per U.O cited above based on Rule 91 of Part I, Kerala Service Rules. At the time of sanctioning the leave without allowances my probation was declared and I am having three years service also. Hence leave without allowances sanctioned as per the Rule 91, Part I, Kerala Service Rules which won't take away any consequential service benefits including seniority. Fully knowing this University have promoted me as Assistant Grade I also vide U.O.No.Ad.A1-3-2712(B)/93 dated 17.8.93. Now vide U.O.No.Ad.1-3-1356/95 dated 30.10.95 University cancelled the promotion as Assistant Grade-I w.e.f 30.4.93 incorporating two provisions in the order (loss of seniority and service benefits) is against the Rule 91 of Part I, Kerala Service Rules. The two conditions incorporated in the order is attracted when leave without allowances is sanctioned as per Appendix 12B of Part I, Kerala WA Nos.2380 & 2496/2009 - 12 - Service Rules. This provision is not applied to Rule 91 of Part I, Kerala Service Rules and leave without allowances is sanctioned to me as per Rule 91 of Part I, Kerala Service Rules. Hence I am eligible for all service benefits including seniority based on Rule 91, Kerala Service Rules. Hence I humbly request that steps may please be taken to cancel/review U.O.No.Ad.A1-3-1356/95 dated 30.10.95 and restore the benefit of seniority and promotion as Assistant Grade-I w.e.f 30.4.93 ordered vide U.O.No.Ad.A1-3-2712(B)/93 dated 17.8.93 urgently.” A reading of the above representation would show that it is her first complaint against Ext.P6. Further, even assuming she has filed a representation, we notice that she never pursued the matter further. She suffered Ext.P6 order and the adverse conditions contained in it. Going by the materials on record, as noticed earlier, her first protest against Ext.P6 comes in the form of Ext.P8 dated 30.10.2005, after the lapse of 10 years. The Tribunal has found that in the meantime 230 persons were promoted and if the claim of the 6th respondent is accepted, all those persons will become junior to the said respondent. We are of the view that the juniors, who were promoted in the meantime, are entitled to sit back. The 6th respondent has lost WA Nos.2380 & 2496/2009 - 13 - her rights by reason of delay and laches. Even if Ext.P6 order is arbitrary or void ab initio, as claimed by the learned senior counsel, the 6th respondent should have challenged it before the appropriate forum within the prescribed time limit, by taking recourse to appropriate proceedings. In this context, we refer to the Full Bench decision of this Court in Pavithran v. State of Kerala [2009(4) KLT 20 (FB)], wherein it was held as follows: “8. Whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final and the person, affected by it, will also be bound by it. It is a well settled principle in Administrative Law that there are no void orders in absolute sense in administrative matters. There are only voidable orders. Unless a person aggrieved takes recourse to the appropriate remedy at the appropriate time, even an illegal order will be treated as valid and binding. See the observations of Wade in Administrative Law, 6th Edn. 'The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing because he does not deserve a discretionary remedy because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be WA Nos.2380 & 2496/2009 - 14 - void for one purpose and valid for another, and that it may be void against one person but valid against another. A common case where an order, however void, becomes valid is where statutory time limit expires after which its validity cannot be questioned. The statute does not say that the void order shall be valid; but by cutting off legal remedies it produces that result.' The above statement of law has been quoted with approval by the Apex Court in several decisions, and one of them is State of Punjab v. Gurudev Singh [1992(1) KLT SN 28 (C.No.37) SC = [(1991)4 SCC 1]. We notice that Exts.P2 and P3 orders were passed by competent statutory authorities. They could have granted the reliefs sought by the sixth respondent, but, they have declined to do that. The sixth respondent has not chosen to challenge those orders before the higher forum or this Court and as mentioned earlier, he allowed them to become final. Therefore, those orders are to be treated as valid. They cannot be ignored or treated as void ab initio and therefore, of no effect now. It is a well settled principle in service jurisprudence that a person who enjoyed a seniority position for quite some time is entitled to sit back. The seniority position shall not, normally, be disturbed lightly. The said position is covered by several decisions of this Court and also the Apex Court, cited by the learned counsel for the appellant. It is not in the interest of administration or public interest to allow a person, who slept over his right, to rake up a stale claim, tinker with the seniority list and demoralise other members of the service.” WA Nos.2380 & 2496/2009 - 15 - In view of the above principle laid down by the Full Bench, the 6th respondent was not entitled to get any relief in the Writ Petition. In this view of the matter, it is unnecessary for us to go into the merits of the contentions of the 6th respondent that her leave should be treated as one under Rule 88 of Part I, K.S.R. In the result, the Writ Appeal is allowed. The judgment under appeal is reversed and the Writ Petition is dismissed. No costs. 7. W.A.No.2496/2009: In view of the judgment in W.A.No.2380/2009, this appeal is also allowed. K. Balakrishnan Nair, Judge. P. Bhavadasan, Judge. nm.