B. Shajimon v. Travancore Devaswom Board

W.P.(C).No.16943 of 2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945** ## **WP(C) NO. 16943 OF 2020** ## **PETITIONER:** B.SHAJIMON AGED 51 YEARS S/O LATE BALAKRISHNA PANIKKAR , SUB GROUP OFFICER (UNDER DEMOTION AS WATCHER), TRAVANCORE DEVASWOM BOARD, VETTAKORUMAKANKAVU DEVASWOM, OLASSA P.O.KOTTAYAM GROUP, PARIPPU SUB GROUP, KOTTAYAM DISTRICT, PIN-686 014 AND RESIDING AT ASHTAPATHI KUDAMALOOR-P.O.KOTTAYAM DISTRICT-686 017. BY ADV N.UNNIKRISHNAN ## **RESPONDENTS:** - 1 TRAVANCORE DEVASWOM BOARD NANTHANCODE, THIRUVANANTHAPURAM-695 933 REPRESENTED BY THE SECRETARY - 2 THE SECRETARY, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM-695 033. - 3 THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM-695 033. - 4 THE ASSISTANT DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, MUNDAKKAYAM GROUP,MUNDAKKAYAM P.O.686 513. - 5 SHRI R.HARI, SUB GROUP OFFICER, KARUVATTUKULANGARA DEVASWOM, HARIPPAD GROUP, HARIPPAD-690 514. W.P.(C).No.16943 of 2020 2 BY ADVS. SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SRINATH SRI.RAJAN G. GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.01.2023, THE COURT ON 12.04.2023 DELIVERED THE FOLLOWING:- W.P.(C).No.16943 of 2020 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(C).No.16943 of 2020** **= = = = = = = = = = = = = = = = Dated this the 12[th] day of April, 2023** ## **JUDGMENT** ## 1.The prayers in this writ petition are as follows:- “i.Call for the records leading to issuiing of Exhibit P20,27 and P28. ii) Declare that Exhibit P20 is unsustainable. In so far as the petitioner is concerned Exhibit P24 and P28 are bad in law. iii)Issue a writ of certiorari or appropriate writ or order quashing the Exhibits P20 so far as the petitioner is concerned P27 and P28. iv)Issue a writ of mandamus or appropriate writ or order or direction to the respondent No.1 to 3 to restore the seniority as well as promotion as II Grade Sub Group Officer with all consequential benefits within a reasonable time. v)Issue a writ of mandamus or appropriate writ or order or direction to furnish a copy of the complaint said to have been received by the 3[rd] respondent from the 5[th] respondent to the petitioner. ” ## 2.Heard the learned counsel appearing for the petitioner, the learned standing counsel appearing for the Travancore Devaswom Board and the learned counsel appearing for the ## 5[th] respondent. W.P.(C).No.16943 of 2020 4 3. It is submitted by the learned counsel for the petitioner that the petitioner entered service as Sambandi in the year 1991 pursuant to Exhibit P1 order. His initial posting was by Exhibit P2 and he joined duty on 28.5.1991. He had made request for regular appointment under the Dying-in-Harness Scheme and had approached this Court by filing O.P.No.8403 of 1992 seeking consideration of his claim for such regular appointment. Exhibits P6 and P7 judgments came to be passed and ultimately by Exhibit P9 dated 29.10.2002, the petitioner was appointed as Watcher under the Dying-inHarness Scheme on a regular basis. He joined service immediately thereafter. Exhibit P13 draft Seniority list of Last Grade and Low-Paid employees was prepared and published where the petitioner's name appears at Sl.No.95 and that of the 5[th] respondent as Sl.No.148. Thereafter, several seniority lists were published which were not objected to and the petitioner was promoted as L.D.Clerk and thereafter as SubGroup Officer Grade II. However, it appears that the 5[th] respondent had raised a complaint with regard to the initial date of appointment of the petitioner based on which Exhibit W.P.(C).No.16943 of 2020 5 P20 order was passed reverting the petitioner and promoting the 5[th] respondent in his stead. The petitioner submitted Exhibit P21 appeal before the 1[st] respondent, which was directed to be considered by Exhibit P22 judgment, but Exhibit P27 order was passed by the Board rejecting his appeal. The learned counsel for the petitioner submits that the petitioner having been treated as a regular employee of the Board since 1991 and since the seniority of the petitioner was accepted by all concerned including the 5[th] respondent, the acceptance of the representation submitted by the 5[th] respondent after a long interval and the reversion of the petitioner on the basis of the same is completely unjustified. It is stated that the findings to the contrary in Exhibit P27 are against the settled position of law and that the orders are, therefore, illegal and unsustainable. 4. A statement has been filed by the learned standing counsel appearing for the the Travancore Devaswom Board contending that the petitioner was appointed on a temporary basis in the year 1991 as Sambandhi and the Assistant W.P.(C).No.16943 of 2020 6 Devaswom Commissioner is not empowered to make any permanent appointments in the Devaswom Board. The temporary appointment was terminated on 1.4.1996 and thereafter after by the decisions of this Court, he was appointed as Watcher only by Exhibit P8 order in the year 2002. The petitioner cleared the departmental tests in August 2006, the results of which was published on 16.8.2007. However, in the Draft Seniority List of Low-paid employees for promotion to the post of LDC/Sub Group Officer Grade-II as on 1.7.2012, the name of the petitioner was included as Sl.No.95 and the name of the 5[th] respondent as Sl.No.148. Exhibit P13 was revised in 2014 as the petitioner's name was at Sl.No.98 and the 5[th] respondent was at Sl.No.104. The list was again revised in 2015 and 2016 and thereafter, in Exhibit P17 that the petitioner was shown as senior to the 5[th] respondent. He was provisionally promoted as Lower Division Clerk on 29.1.2019 by Exhibit P19 order. It is submitted that it was thereafter that the 5[th] respondent had submitted a complaint to the 1[st] respondent and sought modifications/ correction of the seniority position. It is stated that on W.P.(C).No.16943 of 2020 7 examination of the complaint, it was found that the seniority lists were prepared reckoning the petitioner's seniority from 1991 and since the date of the petitioner's first permanent appointment was only in 2007 Exhibit P20 order was submitted. It is contended that the petitioner submitted Exhibit P21 appeal raising the 'sit back theory'. But it is contended that 'sit back theory' is applicable only if promotion is effected long back and was challenged after a long time. In this case, the provisional promotion given to the petitioner by mistake by Exhibit P19 was only on 29.01.2019 and it was immediately rectified by Exhibit P20 order dated 25.11.2019. It is, therefore, contended that there was no error in correcting the seniority list. - 5.A reply affidavit has been placed on record by the petitioner stating that the counter affidavit itself is vague and that no answer is provided for the lack of objections having been raised to the seniority of the petitioner being fixed by the various seniority lists which remain unchallenged. W.P.(C).No.16943 of 2020 8 6. A counter affidavit has been placed on record by the 5[th] respondent stating that the 5[th] respondent joined permanent service under the 1[st] respondent on 4.7.1991 as Kazhakam and had all requisite qualifications for promotion to the post of L.D.Clerk/Sub Group Officer. It is submitted that the petitioner had challenged Exhibit P20 before this Court in W.P.(C).No. 33224/2019 and that the judgment which directs only consideration of the appeal acts as constructive res judicata. It is further contended that the petitioner's first appointment in a regular vacancy being by virtue of Exhibit P9 order dated 29.10.2002 and since he joined duty only on 2.12.2002, the provisional service from 1991 to 1996 cannot be reckoned for any purpose and that Exhibits P20,P27 and P28 orders are therefore perfectly legal and valid. It is further contended that the principle of 'sit back' will apply only where promotions are granted and remain unchallenged for long periods of time and that the said principle would have no application in the instant case. The learned counsel places reliance on a decision of a Full Bench of this Court in **T.C.Sreedharan Pillai and others v. State of Kerala and others** [1973 KHC 38]. W.P.(C).No.16943 of 2020 9 7. A reply affidavit is on record by the petitioner. The petitioner has also produced the copies of the earlier writ petitions to contend that there is no res judicata or constructive res judicata involved in this case. The learned counsel for the petitioner also places reliance on the decisions of the Apex Court in **Dharampal Satyapal Ltd.(M/s.) v. Deputy Commissioner of Central Excise Gauhati and others** [2015 KHC 4381]. 8. I have considered the contentions advanced. It is the specific case of the petitioner that he was initially appointed in 1991. He also states that pursuant to the request made by him, he was granted a regular appointment as Watcher under the Dying-in-Harness Scheme by Exhibit P9 order dated 29.10.2002. It is clear from Exhibit P13 seniority list that the petitioner's date of appointment is shown as 28.5.1991. Exhibit P13 is a provisional seniority list published as on 1.7.2012. It appears that no objections were raised by the 5[th] respondent to the same. Later, Exhibits P14, P15 and P16 seniority lists were also published where the petitioner is W.P.(C).No.16943 of 2020 10 shown above the 5[th] respondent and his date of appointment is clearly mentioned as 28.5.1991 and the date of appointment of the 5[th] respondent is shown as 24.7.1991. None of the lists appear to have been objected to. It is only after the provisional promotion to the LD Clerk/Sub Group Officer was effected that a complaint appears to have been raised by the 5[th] respondent. When Exhibit P20 order was passed, the petitioner submitted Exhibit P21 appeal raising contentions of 'sit back' which was also specifically considered and Exhibit P27 order was issued in the matter. 9. Having considered the contentions advanced on all sides, I notice that the factual aspects of the matter, including the fact that the petitioner was initially appointed in 1991 and was sent out of service in 1996 and that his regular appointment was only in the year 2002 are not effectively denied by the petitioner. It is also clear from a perusal of the seniority list produced that the petitioner has been included in the seniority list showing his initial date of appointment as 29.5.1991. It is on account of the wrong inclusion of the W.P.(C).No.16943 of 2020 11 petitioner's seniority that he had been appointed as LDC/Sub Group Officer by Exhibit P19 order. It is pertinent to note that the initial appointment of the petitioner as LDC/Sub Group Officer by Exhibit P19 was only a provisional promotion. On a complaint being submitted by the 5[th] respondent, the said provisional promotion has been recalled. A provisional promotion granted to an employee can confer no substatntive rights. Exhibit P19 order of provisional promotion cannot, therefore, confer any right on the petitioner. Soon after the provisional promotion was granted, complaints were raised by the 5[th] respondent and the provisional promotion stands cancelled. 10.In the above factual circumstances, I am of the opinion that the contention of the petitioner that the seniority of the petitioner in the post of low-paid employee remained uncontroverted cannot have any consequence, since the petitioner does not have a case that he was appointed regularly in the Devaswom Board on any date before 2002. W.P.(C).No.16943 of 2020 12 In the factual situation, I am of the opinion that the prayers, as sought for in the writ petition, are not liable to be granted. The writ petition fails and the same is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.16943 of 2020 13 ## **APPENDIX OF WP(C) 16943/2020** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|A TRUE COPY OF ORDER NO 1205 DATED| ||13.5.1991 ISSUED BY ASSISTANT| ||COMMISSIONER TRAVANCORE DEVASWOM| ||BOARD, KOTTAYAM TO SUB-GROUP| ||OFFICER, PARIPPU.| |EXHIBIT P2|A TRUE COPY OF ORDER NO 15 DATED| ||14.5.1991 ISSUED BY THE SUB-GROUP| ||OFFICER, DEVASWOM OFFICE, PARIPPU.| |EXHIBIT P3|A TRUE COPY OF RULES FOR| ||APPOINTMENT OF| ||RELATIVES/DEPENDENTS OF DEVASWOM| ||EMPLOYEES DYING IN HARNESS| |EXHIBIT P4|A TRUE COPY OF JUDGMENT DATED| ||5.3.1999 IN OP NO 8403/1992| |EXHIBIT P5|A TRUE COPY OF ORDER DATED| ||11.8.1995 IN T.D.B NO 79/1994| |EXHIBIT P6|A TRUE COPY OF JUDGMENT DATED| ||19.12.1996 IN OP NO 18207/1996| |EXHIBIT P7|A TRUE COPY OF JUDGMENT DATED| ||9.4.1999 IN WA NO 1018/1999| |EXHIBIT P8|A TRUE COPY OF REPRESENTATION| ||DATED 15.5.1999 FILED BEFORE THE| ||FIRST RESPONDENT| |EXHIBIT P9|A TRUE COPY OF ORDER ROC NO| ||7817/85/ESTT.4 DATED 29.10.2002| |EXHIBIT P10|A TRUE COPY OF ORDER R.OC NO| ||4206/94/MICS.A DATED 22.11.2002| 14 W.P.(C).No.16943 of 2020 - EXHIBIT P11 A TRUE COPY OF RESULT OF DEPARTMENTAL TEST JULY 1993-DOT (NEW SCHEME) PUBLISHED BY THE FIRST RESPONDENT - EXHIBIT P12 A TRUE COPY OF LETTER R.O.C NO 4800/6/ESTT.11 DATED 165.8.2007 ALONG WITH RELEVANT PAGE OF RESULT OF DEPARTMENTAL TEST - EXHIBIT P13 A TRUE COPY OF PAGE NOS 1 TO 6 OF DRAFT SENIORITY LIST OF LAST GRADE, LOW-PAID EMPLOYEES FOR PROMOTION TO THE POST OF L.D.CLERK/SUB-GROUP OFFICER GRADE 11 AS ON 1.7.2012 - EXHIBIT P14 A TRUE COPY OF PAGE NOS 1 TO 6 OF DRAFT SENIORITY LIST OF LAST GRADE, LOW-PAID EMPLOYEES FOR PROMOTION TO THE POST OF L.D.CLERK/SUB-GROUP OFFICER GRADE 11 AS ON APRIL 2014 - EXHIBIT P15 A TRUE COPY OF CIRCULAR R.O.C NO 1045/87/ESTT DATED 15.9.2015 ALOG WITH SENIORITY LIST OF LAST GRADE, LOW PAID EMPLOYEES FOR PROMOTION TO THE POST OF L.D CLERK/SUB GROUP OFFICER GRADE 11 AS ON SEPTEMBER, 2015 (PAGE NOS 1 TO 5) - EXHIBIT P16 A TRUE COPY OF LETTER NO 3298/15 EASTT-2 DATED 2.3.2017 ALONG WITH SENIORITY LIST OF LAST GRADE, LOW PAID EMPLOYEES FOR PROMOTION TO THE POST OF L.D CLERK/SUB GROUP OFFICER GRADE 11 AS ON DECEMBER, 2016 (PAGE NOS 1 TO 4) EXHIBIT P17 A TRUE COPY OF ORDER R.O.C NO 1761/13/ESTT(A) 2 DATED 1.10.2016 W.P.(C).No.16943 of 2020 15 - EXHIBIT P18 A TRUE COPY OF DUTY CERTIFICATE DATED 31.10.2016 ISSUED BY THE ASSISTANT DEVASWOM ACCOUNTS OFFICER, VAIKOM - EXHIBIT P19 A TRUE COPY OF R.O.C NO 1045/87/ESTT A DATED 29.1.2019 - EXHIBIT P20 A TRUE COPY OF ROC NO 1045/8/ESTTA DATED 25.11.2019 - EXHIBIT P21 A TRUE COPY OF APPEAL DATED 27.11.2019 FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT - EXHIBIT P22 A TRUE COPY OF JUDGMENT DATED 6.12.2019 IN WPC NO 33224/2019 - EXHIBIT P23 A TRUE COPY OF HEARING NOTE DATED 26.2.2020 SUBMITTED BEFORE THE 1ST RESPONDENT - EXHIBIT P24 A TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE PRESIDENT OF THE DEVASWOM BOARD - EXHIBIT P25 A TRUE COPY OF LETTER NO ROC 6668/91/ESTT DATED 31.10.1991 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT - EXHIBIT P26 A TRUE COPY APPLICATION DATED 11.8.93 MADE BY THE PETITIONER TO THE 4TH RESPONDENT - EXHIBIT P27 A TRUE COPY OF ORDER NO ROC 6503/18/EST-2 DATED 18.3.2020, RECEIVED ON 4.6.2020 16 W.P.(C).No.16943 of 2020 EXHIBIT P28 A TRUE COPY OF LETTER NO ROC 1045/08/ESST A DATED 18.5.2020 ISSUED BY THE 3RD RESPONDENT RESPONDENT EXHIBITS Exhibit R5(b) CERTIFIED COPY OF THE WRIT PETITION W.P.(C).NO. 33224/2019 FILED BY THE PETITIONER BEFORE THE HONOURABLE HIGH COURT OF KERALA True copy PS to Judge