Bindu K.L. v. Ansamma Joseph, State of Kerala, The Director, Ayurveda Medical Education, and Smitha K.S.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 13TH DAY OF MARCH 2018 / 22ND PHALGUNA, 1939** **OP(KAT).No. 104 of 2018** **AGAINST THE ORDER IN OA 114/2012 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 09-01-2018** ## **PETITIONER(S)/RESPONDENT NO.3** **BINDU K.L. JUNIOR SCIENTIFIC OFFICER, ROGANIDANA DEPARTMENT, GOVERNMENT AYURVEDA COLLEGE, THIRUVANANTHAPURAM - 695 001 (FORMERLY LAB TECHNICIAN GRADE II, GOVERNMENT AYURVEDA HOSPITAL, THIRUVANANTHAPURAM - 695 001)** **BY ADVS.SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA KUM.THULASI K. RAJ SMT.MAITREYI SACHIDANANDA HEGDE** ## **RESPONDENT(S)/APPLICANT & RESPONDENTS 1, 2 AND 4:** **1. ANSAMMA JOSEPH AGED 40 YEARS, W/O.GEORGEKUTTY CHARLES, LAB TECHNICIAN GRADE II, GOVERNMENT AYURVEDA HOSPITAL, TRIPUNITHURA, ERNAKULAM 682 005.** **2. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM, KERALA 695 001.** **3. THE DIRECTOR, AYURVEDA MEDICAL EDUCATION, DIRECTORATE AYURVEDA MEDICAL EDUCATION, THIRUVANANTHAPURAM, KERALA 695 001.** **4. SMT.SMITHA K.S., LAB TECHNICIAN GRADE II, GOVERNMENT AYURVEDA HOSPITAL, THIRUVANANTHAPURAM, KERALA 695 001.** **R BY GOVERNMENT PLEADER SRI A J VARGHESE** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 13-032018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **kkj** **OP(KAT).No. 104 of 2018 (Z)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 9/1/2018 IN O.A 114/2012 EXHIBIT P2 TRUE COPY OF THE OA 114/2012 TOGETHER WITH ANNEXURES ANNEXURE A1: TRUE COPY OF G.O.(MS) NOI. 154/71/PD DATED 27.05.1971 ISSUED BY THE FIRST RESPONDENT ANNEXURE A2: TRUE COPY OF G.O.(MS) NO.1234746/SD5/73/PD DATED 26.05.1976 ISSUED BY THE FIRST RESPONDENT ANNEXURE A3: TRUE COPY OF THE ORDER/CIRCULAR DATED 11.07.1977 ISSUED BY THE 1ST RESPONDENT ANNEXURE A4: TRUE COPY OF THE RELEVANT EXTRACT OF PROVISIONAL SENIORITY LIST OF LAB TECHNICIANS AS ON 30.06.2008 PUBLISHED BY THE FIRST RESPONDENT ANNEXURE A5: TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 25.02.2010 ANNEXURE A6: TRUE COPY OF THE JUDGMENT DATED 10.06.2010 IN W.P.(C) NO.18035/2010 OF THE HONBLE HIGH COURT OF KERALA ANNEXURE A7: TRUE COPY OF THE ORDER DATED 01.02.2011 OF THE 2ND RESPONDENT ANNEXURE A7(A): TRUE COPY OF THE SENIORITY LIST OF LAB TECHNICIANS AS ON 01.07.2008 PUBLISHED BY THE 2ND RESPONDENT ANNEXURE A8: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 07.06.2011 ANNEXURE A9: TRUE COPY OF G.O.(RT)NO.24/12/H& FWD DATED 3.1.2012 ISSUED BY THE IST RESPONDENT ANNEXURE A10: TRUE COPY OF THE JUDGMENT DATED 07.07.2006 IN W.P.(C) NO.29059/04 AND CONNECTED CASES OF THE HONBLE HIGH COURT OF KERALA ANNEXURE A11: TRUE COPY OF THE JUDGMENT DATED 19.09.2006 IN W.A.NO.1505/2006 OF THE HON'BLE HIGH COURT OF KERALA** **EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT THE OA** ## **RESPONDENTS' EXHIBITS** ## **NIL** ## **// TRUE COPY //** **PA TO JUDGE** ## **K.SURENDRA MOHAN & ANNIE JOHN, JJ. --------------------------------------------O.P.(KAT) No.104 of 2018 ---------------------------------------------Dated this the 13[th] day of March, 2018** ## **J U D G M E N T** ## Surendra Mohan, J. The petitioner who is working as Junior Scientific Officer, Government Ayurveda College, Thiruvananthapuram is before us aggrieved by the order dated 09.01.2018 of the Kerala Administrative Tribunal, Thiruvananthapuram (KAT for short) in O.A.No.114 of 2012. The petitioner was the third respondent in O.A.No.114 of 2012. The Original Application was filed by the first respondent herein challenging the assignment of seniority to the petitioner and to one Smt. Smitha K. who was the 4[th] respondent in the Original Application. According to the first respondent, she was entitled to be placed above the said two persons, in exhibit A7-(a) final seniority list. The final seniority list was published as per Annexure A7 order dated 01.02.2011. Though the first respondent had preferred an appeal against the same under Rule 27B, Part II Kerala State & ## -:2:- ## O.P.(KAT) No.104 of 2018 Subordinate Service Rules, 1958 (KS&SSR for short), the same was rejected by Annexure A9. It was aggrieved by the said proceedings that the first respondent had approached the KAT. 2. The petitioner was appointed as a Lab Technician pursuant to an advice dated 18.07.2001. She was appointed to Thrissur District on 14.08.2001. The petitioner after joining services, sought an inter District Transfer to Thiruvananthapuram and was granted the transfer on 04.07.2002. She joined duty at the post to which she was transferred, on 10.07.2002. 3. The first respondent was advised as a Lab Technician Grade -II on 04.11.2003. She was appointed and joined the Government Ayurveda College, Thiruvananthapuram on 01.12.2003. As per Rule 27A, Part II KS& SSR, the seniority of a person who is transferred from one District to another is to be determined with respect to the date on which the person joins duty in the transferred department. Such inter District transfers are to be granted only after completion of five years service in the post to which a ## -:3:- ## O.P.(KAT) No.104 of 2018 person is advised and appointed. In the present case, the petitioner was granted an inter district transfer before completion of the period of five years stipulated by the Rule. Therefore, it was contended that the seniority of the petitioner as well as the other respondents would commence only from the date on which they completed five years in the post to which they were appointed. It was therefore contended that, assignment of seniority positions to the petitioner as well as the 4[th] respondent above the first respondent was unjustified and liable to be set aside, As per the impugned order, the KAT has allowed the Original Application. 4. According to the counsel for the petitioner, the transfer of the petitioner as well as the 4[th] respondent were in the year 2002. There was no challenge against the transfer for a very long time, thereafter. It is pointed out that, a provisional seniority list Annexure A4 had been published in the year 2008 where the petitioner and the 4[th] respondent have been shown above the first respondent. However, there was no challenge against the same. It was ## -:4:- ## O.P.(KAT) No.104 of 2018 thereafter that the final seniority list was published as evidenced by annexures A7 and A7(a). Therefore, it is contended that the delay in challenging the seniority position has given rise to a situation where the petitioner is entitled to claim the benefit of the theory of “sit back” recognized by this Court in **Mohanan v. State of Kerala** [2000 KHC 451][(2000(2) KLT 798]. It is further contended that, the petitioner as well as the 4[th] respondent having been advised and appointed in the year 2001, long before the first respondent was even advised, she had no right to claim seniority over them. Therefore, it is contended that, the KAT erred in allowing the Original Application. We have heard the learned Government Pleader Sri. A.J.Varghese also. 5. There is no dispute regarding the dates on which the petitioner, the first respondent and the 4[th] respondent were advised and appointed to the post of Lab Technician Grade II. In the normal case, the first respondent would not have been in a position to claim seniority over either the petitioner or the 4[th] respondent. However, the first and 4[th] ## -:5:- ## O.P.(KAT) No.104 of 2018 respondents who were appointed to Thrissur District had sought for an inter district transfer that was granted on 04.07.2002. They had joined duty at Thiruvananthapuram on 10.07.2002. Though it is true that the first respondent had not even been advised for appointment on the said date, the fact remains that neither the first respondent nor the 4[th] respondent were entitled to seek such an inter district transfer, until they completed five years of continuous service. In view of the dictum laid down by a Full Bench of this Court in **Ramachandran v. Madhu** [2012(2) KLT 283(F.B.)], a person who obtains an inter district transfer on request without completing five years of continuous service would have to surrender five years of his service for the purpose of claiming seniority in the transferred unit. In other words, the seniority of the persons who have got inter district transfers would have to be reckoned only from the date on which he or she completes five years continuous period of service. When the seniority of the incumbents are calculated on the above basis, there cannot be any doubt that the first respondent would have to be placed above the ## -:6:- ## O.P.(KAT) No.104 of 2018 petitioner as well as the 4[th] respondent. As rightly found by the KAT, their seniority could be reckoned only with effect from 13.08.2006 and 08.07.2006, respectively. Though it was contended that their transfers were made on the grounds of Administrative Exigencies, the same has been found against by the impugned order exhibit P1. We find no infirmity in the said finding. 6. With respect to the contention that, the seniority position had not been challenged for a long time, we find no substance for the reason that annexure A7(a) final seniority list was brought in to force only as per annexure A7 order dated 01.02.2011. Annexure A2 representation is seen to have been preferred by the first respondent on 07.06.2011. Such representations have to be preferred as per Rule 27B Part II KS & SSR within a period of six moths from the date of receipt of the order or the date of publication of the order in the Kerala Gazette. We find that the representation was preferred within the period of six months stipulated above. Therefore, this is not a case in which the petitioner is entitled to the benefit of “sit back” as claimed . -:7:- ## O.P.(KAT) No.104 of 2018 For the foregoing reasons, we find no grounds to admit this Original Petition. The same is accordingly dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **ANNIE JOHN JUDGE** kkj