Biju A.T v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE VIJU ABRAHAM WEDNESDAY, THE 8[TH] DAY OF DECEMBER 2021 / 17TH AGRAHAYANA, 1943 ## OP(KAT) NO. 342 OF 2021 AGAINST THE ORDER/JUDGMENT IN OA (EKM) 1910/2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ## PETITIONER/1ST APPLICANT IN O.A.: BIJU A.T,AGED 41 YEARS,S/O THOMAS A J, ALAPPAT HOUSE,ELATHURUTHU, ARNATTUKARA, THRISSUR-680611, PRESENTLY WORKING AS LIVESTOCK INSPECTOR GRADE -1, ANIMAL DISCEASE CONTROL PROJECT (ADCP), PARAVATTANI, THRISSUR-680005. BY ADV ARUN MATHEW VADAKKAN RESPONDENTS/RESPONDENTS 1 TO 4 IN O.A. AND APPLICANTS 2 TO 8 IN O.A.: - 1 STATE OF KERALA REPRESENTED BY SECRETARY DEPARTMENT OF ANIMAL HUSBANDRY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. - 2 THE DIRECTOR DIRECTORATE OF ANIMAL HUSBANDRY, VIKAS BHAVAN, THIRUVANANTHAPURAM-695001. - 3 THE KERALA PUBLIC SERVICE COMMISSION REP. BY SECRETARY, PATTOM, THIRUVANANTHAOPURAM-695004. - 4 THE DISTRICT OFFICER,KERALA PUBLIC SERVICE COMMISSION OFFICE,TOWN HALL ROAD, KSDC FOR SC/ST LTD. BUILDING, IIND FLOOR, THRISSUR-680020. - 5 JIJU THOMAS,AGED 42 YEARS,S/O A J THOMAS, ALAPPATT HOUSE, EITHURUTH P O, THRISSUR DISTRICT-680611, PRESENTLY WORKING AS LIVE STOCK INSPECTOR GR.I, DISTRICT VETERINARY CENTRE, THRISSUR-680611. - 6 MANOJ K K,AGED 41 YEARS,S/O KOCHUVARUNNI, KUTTIMALA, MAPRANATHKARA HOUSE,PERUVAMKULANGARA, MOTHERLAND ROAD, OLLUR P O,THRISSUR DISTRICT-680306, PRESENTLY WORKING AS LIVESTOCK INSPECTOR GR.II, VETERINARY SUB CENTRE, MUTTITHADI, THRISSUR-680561. OP(KAT) NO. 342 OF 2021 2 7 SIJI A Y.,AGED 41 YEARS,W/O JEJI JOSEPH, POTTECKEL HOUSE, PAMPAKUDA P O, MUVATTUPUZHA,ERNAKULAM DISTRICT, PIN686673, PRESENTLY WORKING AS LIVE STOCK INSPECTOR GR.II,ICDP SUB CENTRE, KURUPAM, MELOOR P O, CHALAKUDY, THRISSUR-680311. 8 JOSE JOHN A.,AGED 42 YEARS,S/O A P JOHN, ARAKKAL HOUSE, THAYYUR P O, ERUMAPETTY, THRISSUR DISTRICT-680651, PRESENTLY WORKING AS LIVE STOCK INSPECTOR GR.II, VETERINARY SUB CENTRE, KURUPAM, CHITTANADA,THRISSUR686673. 9 SUMA VARGHESE,D/O VARGHESE,AGED 41 YEARS, ARAKKAL HOUSE, MANNUTHY, THRISSUR DISTRICT-680651, PRESENTLY WORKING AS LIVE STOCK INSPECTOR GR.II, VETERINARY HOSPITAL, VELLANGALLOOR, THRISSUR-680542. 10 PRASANNA V B.,W/O BALAKRISHNAN, AGED 48 YEARS VADAKKOTUKACHERI VALAPPIL HOUSE, PALAKKAL P O, THRISSUR DISTRICT-680027, PRESENTLY WORKING AS LIVE STOCK INSPECTOR GR.II, VETERINARY DISPENSARY, VENGINISSERY, THRISSUR-680306. 11 ANILKUMAR K K.,AGED 46 YEARS,S/O K V KANNAPPAN, KOTTAYVALAPPIL HOUSE,PANAMKULAM, KARUVANNOOR P O, THRISSUR DISTRICT-686711,LIVESTOCK INSPECTOR, VETERINARY SUB CENTRE,ARATTUPUZHA, THRISSUR-680503. SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER, SRI.P.C.SASIDHARAN, SC, KPSC THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 08.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT) NO. 342 OF 2021 3 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ## **..........................................................................** ## **O.P.(KAT) No.342 of 2021** _[Arising out of the impugned order dated 26.02.2020 in O.A.(EKM) No.1910 of 2019 on the file of the KAT, EKM Bench]_ **.................................................................** Dated this the 8[th] day of December, 2021 ## **JUDGMENT** ## **Viju Abraham, J.** The above original petition is filed by the 1[st] applicant in O.A.No.1910 of 2019, aggrieved by the order dated 26.02.2020 passed by the Kerala Administrative Tribunal, Ernakulam Bench, dismissing the same. 2. As averred in the O.A., the applicant is working as a Livestock Inspector Gr.II in the Department of Animal Husbandry. The petitioner was appointed as Livestock Inspector Gr.II in the year 2003 as per the advice of the Kerala Public Service Commission. The petitioner was included in the rank list for the post of Livestock Inspector Gr.II in the Animal Husbandry Department in Thrissur District, which came into force w.e.f. 31.12.2002. The District Animal Husbandry Department has reported 117 vacancies for the post. The petitioner, who was having OP(KAT) NO. 342 OF 2021 4 Vocational Higher Secondary School Certificate was included in the list. By Annexure-A1 proceedings issued by the District Animal Husbandry Officer, Thrissur the petitioner was appointed to the post of Livestock Inspector Gr.II. It is further averred by the petitioner that, it is the practice of the Kerala Public Service Commission to make advice for appointment to the post of Livestock Inspector by preparing two lists. One list containing fully qualified candidates having Vocational Higher Secondary Certificate in Livestock Management and the second list consisting of candidates having only a Secondary School Leaving Certificate qualification. It is submitted that the practice as followed from 1983 onwards was to exhaust list No.1 and then resort to list No.2 only if the candidates still subsist after appointing candidates from list No.1. However, some persons included in list No.2 approached this Court, filing O.P.No.21193 of 2003 contending that in filling up the vacancy of Livestock Inspector Gr.II, the list prepared for each category should be operated independently with reference to qualification, with priority to Vocational Higher Secondary Certificate holders. It is contended that this Court as per judgment in O.P. No.21193 of 2003 has accepted the said proposal and directed the Department to operate the two lists OP(KAT) NO. 342 OF 2021 5 independently with reference to the qualification and giving priority to Vocational Higher Secondary Certificate Candidates. It is contended that while the judgment was delivered, the petitioner was working and discharging the duties of Livestock Assistant Gr.II and that there is no direction in the judgment to cancel the appointment of the petitioner and other persons similarly situated. However, the Public Service Commission in implementation of the judgment took a stand that there is a need for revising the rotation worked out f0r the post of Livestock Inspector Gr.II and it was ordered by the Commission that the two lists of each category should operate separately and the rotation has to be revised accordingly. On the basis of such a decision, even though there was no direction to cancel the appointment of the petitioner, the Public Service Commission issued Annexure-A2 show cause notice dated 29.10.2003 proposing to cancel the advice for appointment of the petitioner holding that there is a mistake in implementing the rotation. Similar notices were issued to other candidates also. On receipt of Annexure-A2, the petitioner along with other similarly situated persons approached the Director of Animal Husbandry Department as well as the Chairman of the Public Service Commission and they assured that the OP(KAT) NO. 342 OF 2021 6 issuance of Annexure-A2 notice is only to correct certain mistakes and it will not have any impact on employment or service condition of the petitioner. But to the contrary, Annexure-A3 letter was issued by the Public Service Commission to similarly situated employees like the petitioner, whereby the advice granted was cancelled. Similar communication was received by the petitioner also. Thereafter, the District Animal Husbandry Officer, Thrissur has issued Annexure-A5 order, whereby the petitioner was again appointed as Livestock Inspector Gr.II. Aggrieved by the said cancellation of appointment and subsequent reappointment as is evident from Annexure-A5 the petitioner filed Annexure- A7 representation along with other aggrieved employees. As no steps were taken to consider and pass orders on the same, the petitioner along with others filed O.A.No.408 of 2016 before the Kerala Administrative Tribunal and as per Annexure-A8 order, the Tribunal directed the 2nd respondent to consider and pass orders on Annexure-A7 representation within a period of two months. In obedience to the directions issued in Annexure-A8 order, the 2nd respondent considered Annexure-A7 representation and found that the petitioner, as well as the other similarly situated persons are not entitled to any reliefs sought and OP(KAT) NO. 342 OF 2021 7 that they were given seniority from the date of effective advice and holding so, the claim was rejected by Annexure-A9 order. It is aggrieved by the issuance of Annexure-A9 order that the petitioner along with the other similarly affected persons approached the Kerala Administrative Tribunal. The Tribunal, after considering the contentions of the petitioner as well as the other similarly situated employees dismissed the original application as per order dated 26.2.2020 mainly holding that the petitioner is challenging the seniority list of Livestock Inspector Gr.II which is published as early as 23.12.2010 and further that the said seniority list is not produced and challenged before the Tribunal and that none of the affected parties were impleaded in the said proceedings and therefore, the seniority which is settled a decade back cannot be unsettled at this length of time. 3. It is aggrieved by the said order dated 26-2-2020, by the Kerala Administrative Tribunal, Ernakulam Bench in O.A(EKM) No.1910 of 2019 that the present original petition is filed. 4. Heard Shri. Arun Mathew Vadakkan, learned counsel appearing for the petitioner and also Shri.B.Unnikrishna Kaimal, the learned Senior Government Pleader appearing for respondents 1 & 2 as OP(KAT) NO. 342 OF 2021 8 well as Shri.P.C.Sasidharan, learned Standing Counsel appearing for respondents 3 & 4. 5. Even though, the petitioner was appointed as a Livestock Inspector Gr.II in the year 2003, consequent to the direction of this Court in O.P.No.21193 of 2003, the advice of the applicant was cancelled after issuing a show-cause notice as mandated under Rule 3(c) Part-III KS & SSR. Subsequent to the cancellation of appointment by AnnexureA5 order dated 28.1.2004, the petitioner was again appointed. On 23.12.2010 the seniority list of Livestock Inspectors was published, and the petitioner moved the Tribunal for the first time, filing O.A.No. 408 of 2016, after a delay of about 6 years. The Tribunal directed consideration of Annexure-A7 representation and the same was rejected by the 2nd respondent as per Annexure-A9 order dated 5.9.2016. The Tribunal on a consideration of the facts and circumstances enumerated in the O.A held that the present challenge is as against the seniority list published as early as on 23.12.2010 and at this distance of time, i.e., about a decade after, the same cannot be unsettled. In support of the said decision, the Tribunal relied on the judgment of the Hon'ble Apex court in _**Shiba Shankar Mohapatra and Others v. State of Orissa and Others**_ OP(KAT) NO. 342 OF 2021 9 ## _reported in_ _**(2010) 12 SCC 471**_ . 6. Another reason pointed out by the Tribunal for not entertaining the O.A is that even though, the seniority has been challenged by the petitioner, a copy of the seniority list was not produced and challenged, and further that none of the seniors or any person affected by the present challenge has been made a party in the proceedings and the O.A is bad for nonjoinder. The Tribunal relied on the judgment of the Apex Court in _**Siraj K.H. v. High Court of Kerala and Others**_ , reported in _**(2006) 2 KLT 923**_ to hold so. 7. It is an admitted fact that the seniority list was published as early as in 2010. The first challenge before the Tribunal as against the same was made by the petitioner only in 2016. A seniority list that is settled as early as on 23.12.2010 cannot be unsettled at this distance of time. In _**Shiba Shankar Mohapatra**_ 's case ( _supra_ ) the Apex Court held that seniority which has been fixed and remains in existence for a reasonable period i.e., for 3 to 4 years unchallenged should not be disturbed. The dictum laid down by the Apex Court will squarely apply in the facts of this case. Even though the petitioner has sought for assigning his seniority in the rank list of Livestock Inspector Gr.II, the said rank list OP(KAT) NO. 342 OF 2021 10 is not produced and challenged. Further, none of the persons affected has been made parties in the original application. The Apex Court in _**Siraj K.H.**_ 's case ( _supra_ ) has clearly held that when a list is challenged and the persons affected form a definite group that is identifiable, they should be necessarily brought on party array. Further, the advice given to the petitioner was cancelled in compliance with the directions in O.P. No. 21193 of 2003 and the said decision was not appealed against by the petitioner and the same has become final. The Kerala Public Service Commission is well within its powers under Rule 3 (c) of Part II KS & SSR 1958 to cancel the advice or appointment of any candidate to any service if it is subsequently found that such advice was made under some mistake and on such cancellation, the appointing authority shall terminate the service of the candidate. The second proviso to the said rule only mandates that such cancellation of the advice shall be made only after giving the candidate concerned a reasonable opportunity of being heard in the matter. Admittedly the mandate of the 2nd proviso to the said rules has also been satisfied by issuing show-cause notices in the nature of Annexure A2 before the advice was cancelled. 8. In view of the above, we feel that the Tribunal was justified in OP(KAT) NO. 342 OF 2021 11 not interfering with the Annexure-A9 order passed by the 2nd respondent dated 5.9.2016. There is delay and laches on the part of the petitioner in approaching the court at a proper point in time. We find no reason to interfere with the decision of the Tribunal in dismissing O.A.No.1910 of 2019 filed by the petitioner. There is no merit in this Original Petition and the same is accordingly dismissed. Sd/- **ALEXANDER THOMAS JUDGE** sd/- **VIJU ABRAHAM JUDGE** pm OP(KAT) NO. 342 OF 2021 12 ## **APPENDIX OF OP(KAT) 342/2021** PETITIONER'S EXHIBITS: |Exhibit P1|TRUE COPY OF THE ORIGINAL APPLICATION IN| |---|---| ||OA (EKM) NO.1910/2019 DATED 06.03.2019 ON| ||THE FILE OF THE KERALA ADMINISTRATIVE| ||TRIBUNAL, ADDITIONAL BENCH AT ERNAKULAM.| |Annexure A1|TRUE COPY OF THE PROCEEDINGS OF THE| ||DISTRICT ANIMAL HUSBANDRY OFFICER,| ||THRISSUR DATED 24.07.2003.| |Annexure A2|TRUE COPY OF THE SHOW CAUSE NOTICE DATED| ||28/10/2003 ISSUED BY THE 4TH RESPONDENT TO| ||THE 5TH APPLICATION (IN THE O A) 8TH| ||RESPONDENT HEREIN.| |Annexure A3|TRUE COPY OF THE LETTER DATED 31.12.2003| ||ISSUED BY THE 4TH RESPONDENT TO THE 5TH| ||APPLICANT (IN THE O A) 8TH RESPONDENT| ||HEREIN I A NO.4/2020 IN O NO.24/2019| ||BEFORE THE MUNSIFF'S COURT, ADIMALY.| |Annexure A4|TRUE COPY OF THE LETTER DATED 17.01.2004| ||OF THE 4TH RESPONDENT TO THE APPLICANT (IN| ||THE O.A) 6TH RESPONDENT HEREIN.| |Annexure A5|TRUE COPY OF THE PROCEEDINGS OF THE| ||DISTRICT ANIMAL HUSBANDRY OFFICER,| ||THRISSUR DATED 28.01.2004.| |Annexure A6|TRUE COPY OF THE REPRESENTATION FILED BY| ||THE 2ND APPLICANT (IN THE OA) 5TH| ||RESPONDENT HEREIN DATED 10.03.2011.| |Annexure A7|TRUE COPY OF THE REPRESENTATION FILED BY| ||THE APPLICANTS (IN THE OA) BEFORE THE 2ND| ||RESPONDENT ON 03.03.2015.| |Annexure A8|TRUE COPY OF THE ORDER OF THE HON'BLE| ||KERALA ADMINISTRATIVE TRIBUNAL IN OA| OP(KAT) NO. 342 OF 2021 13 NO.408/2016 DATED 09.06.2016. Annexure A9 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 05.09.2016 . Exhibit P2 CERTIFIED COPY OF THE ORDER DATED 26.02.2020 IN O A EKM) NO.1910/2019 BY THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM (ADDITIONAL BENCH, ERNAKULAM). RESPONDENTS' EXHIBITS: NIL // TRUE COPY // PA TO JUDGE