Dr. T.G. Sarachandran v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY ,THE 19TH DAY OF NOVEMBER 2018 / 28TH KARTHIKA, 1940** **OP(KAT).No. 126 of 2016** **ORDER DATED 17.8.2016 IN OA (EKM) 163/2014 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT:** **DR. T.G.SARACHANDRAN S/O.LATE C.GOPALA KURUP, AGED 58, DEPUTY DIRECTOR OF COLLEGIATE EDUCATION (RETIRED) KOTTAYAM-686001, PRESENTLY RESIDING AT SREELAKSHMI, 220 A, SANGEETH NAGAR, THYCAUD P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB** ## **RESPONDENTS/RESPONDENT:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO**| ||**GOVERNMENT, HIGHER EDUCATION DEPARTMENT**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-**| ||**695001.**| |**2**|**DIRECTOR OF COLLEGIATE EDUCATION**| ||**VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033.**| |**3**|**SHRI.P.K.VELAYUDHAN**| ||**ADDITIONAL DIRECTOR OF COLLEGIATE EDUCATION**| ||**(IN CHARGE OF DIRECTOR OF COLLEGIATE**| OP(KAT).No. 126 of 2016 -2- **EDUCATION) DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033, PRESENTLY RESIDING AT MRA-26A, ANGADIPPURAM P.O. MALAPPURAM-679321.** - **4 SMT.B.K.SHOBHANA** **DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, PALACE ROAD, THRISSUR-680020.** - **5 SMT.P.K.GIRIJA DEVI** **DEPUTY DIRECTOR OF COLLEGIATE EDUCATION DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033 PRESENTLY RESIDING AT CHIRAPPULLIYIL DRPNRA98A, CHURCH ROAD, POOJAPPURA P.O., THIRUVANANTHAPURAM.** - **6 SHRI.K.G.RADHAKRISHNAN** **DEPUTY DIRECTOR OF COLLEGIATE EDUCATION MANJIRA P.O., KOZHIKODE-673020, PRESENTLY RESIDING AT KRISHNAGIRI, TC 6/182(18) NRRA, B- 25-2, UTHRADAM GARDENS, PKP ROAD, KADUMAGANNUR P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.S.ANEESH SRI.P.NANDAKUMAR SR.G.P.SRI.T.RAJASEKHARAN NAIR** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 19.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** OP(KAT).No. 126 of 2016 -3- ## **JUDGMENT** ## **C.T.Ravikumar, J.** **The challenge in this original petition is against the order dated 17.8.2016 passed by the Kerala Administrative Tribunal in O.A.(EKM)** **No.163 of 2014. The petitioner is the unsuccessful applicant therein. He filed the said original application mainly seeking the following reliefs:** **“i. To issue an order or direction to call for the records leading to Annexures A1, A2, A9, A10 and A11.** **ii. To issue an order quashing Annexures A1, A2, A9, A10 and A11 as they are arbitrary and illegal.** **iii. To issue an order or direction to the 1[st] respondent to declare that the applicant is senior to Respondents 3 to 6 in the cadres of Lecturer (Selection Grade), Principal, Principal (Special** OP(KAT).No. 126 of 2016 -4- **Grade), Deputy Director of Collegiate Education and to give him notional promotion as Principal, Principal (Special Grade), Deputy Director of Collegiate Education and Additional Director of Collegiate Education with effect from the dates on which the 3[rd] respondent was promoted to the said posts and to give all consequential benefits to him.”** **2. The party respondents as also the** **official respondents filed separate reply statements before the Tribunal, refuting the contentions and allegations. Their core contention was that the claim of the petitioner is highly belated. Virtually, the Tribunal upheld the said contention and held that the party respondents are entitled to sit back and then applying the sit back theory, dismissed the original application. It is in the said circumstances that the captioned original petition has been filed.** OP(KAT).No. 126 of 2016 -5- **3. Heard the learned counsel appearing for the petitioner, the learned counsel appearing for respondents 3 to 5 and the learned Government Pleader appearing for respondents 1 and 2.** **4. Since the Tribunal virtually held the claim as belated and that the party respondents therein/the party respondents herein are entitled to sit back, we will firstly consider the tenability of the challenge against the said findings of the Tribunal in the factual matrix obtained in this case. Needless to say that if it is held as untenable, then, there would be no necessity to consider the further claims and contentions of the petitioner. A scanning of the rival pleadings would reveal that the grievance of the petitioner, who entered in service as Junior Lecturer in Mathematics under the Collegiate Education Department, is with respect** OP(KAT).No. 126 of 2016 -6- **to the seniority granted to respondents 3 to 6. Evidently, while considering the contention of the petitioner that seniority was wrongly granted to respondents 3 to 6 and consequently, promotions were also granted to them, one aspect cannot escape notice. The materials on record would reveal that before the Tribunal the petitioner had not produced and challenged the seniority list/lists wherein they were assigned seniority, wrongly according to the petitioner, based on which the said respondents were considered and granted promotion and further promotions. So also, the select list/lists where they were included for granting further promotions and also their orders of promotion, were also not produced and challenged. As can be seen from the reliefs extracted herein before the petitioner sought only for quashment of Annexures** OP(KAT).No. 126 of 2016 -7- **A1, A2, A9, A10 and A11. Annexure A1 is the copy of the order No.B3/9030/2012/Coll.Edn.dated 20.6.2012 passed in purported compliance with the order dated 9.3.2012 of the Kerala Administrative Tribunal in O.A.No.415/2012. Annexure A2 is the select list of Principals in Government Arts and Science Colleges for the year 2012 approved by the Government where the petitioner and the 6[th] respondent were included. In the said list, the 6[th] respondent's name figures at Serial No.10 and that of the petitioner herein figures at serial No.12. Though the petitioner sought for quashment of Annexure A9, Annexure A9 is not seen marked in the original application. At the same** **time, a copy of the letter bearing No.2367/F1/14/H.Edn. dated 20.2.2014 issued by the first respondent is produced as Annexure A9. Annexure A10 is another letter** OP(KAT).No. 126 of 2016 -8- **No.4235/F1/14/H.Edn. dated 20.2.2014 issued by the first respondent therein. Annexure A11 is the copy of G.O.(RT) No.1033/2014/H/Edn dated 28.5.2014. True that, the petitioner has also sought for a direction to the first respondent to declare that he is senior to respondents 3 to 6 in the cadres of Selection Grade, Principal, Principal (Special Grade), Deputy Director of Collegiate Education and also to give him notional promotion to the post upto the Additional Director of Collegiate Education with effect from the date on which the third respondent was promoted to the said post. The prayers made in the original application and the aforementioned Annexures which were sought to be quashed would reveal that except Annexure A2, no select lists were called in question by him. None of the seniority list based on which the** OP(KAT).No. 126 of 2016 -9- **aforesaid respondents were considered for further promotions and their orders of promotions were not challenged by the petitioner. We will consider the question whether the challenge against Annexure A12 invites any interference a little later. As noticed hereinbefore, besides Annexure A2, no other seniority list, where respondents 3 to 5 were figured was challenged by the petitioner. Thus, the fact is that even while making a prayer for a direction to the first respondent to make a declaration as mentioned above, the petitioner had not chosen to challenge the relevant seniority list/lists, select lists wherein respondents 3 to 5 had figured as also their orders of promotion.** **5. When that be the case, certainly the question to be considered is whether the petitioner is entitled to maintain prayer No.3,** OP(KAT).No. 126 of 2016 -10- **as aforequoted. Before dealing with that question, we will consider another aspect. The petitioner had produced Exts.P1 to P3 in this original application. Ext.P1 is the seniority list which was published on 27.1.2004. Ext.P2 is the seniority list published on 14.11.2011 and Ext.P3 is the copy of the representation submitted by the petitioner on 8.12.2011 on the subject of anomaly in seniority list. Though such documents were produced, no relief is sought for based on those documents. In fact, the petitioner cannot seek any relief based on them. Therefore, it is evident that the attempt on the part of the petitioner is to assail the order passed by the Tribunal by relying on Exts.P1 to P3, viz; the said documents which are sought to be produced, as well. The question is whether such documents could be looked into for the** OP(KAT).No. 126 of 2016 -11- **purpose of considering the correctness or validity of the order passed by the Tribunal, we have no hesitation to answer the said question in the negative in the light of a decision of a Division Bench of this Court in Ramakrishnan v. Union of India [2017(1) KLT SN 96 (C.No.114] in which one among us (Justice C.T.Ravikumar) was a party, rendered after referring to the decisions of the Honourable Apex Court in 2015 (4) SCC 164, (2007) 2 SCC 138, (1998) 7 SCC 66 and AIR 1990 SC 1132. In the said decision, this Court held that once the Tribunal has justifiably rendered an order on the strength of the pleadings before it, with the additional materials supplied subsequently, High Court could not re-visit the impugned order and invalidate it.** **6. As noticed herein before Exts.P1 and P2 are the seniority lists published respectively in** OP(KAT).No. 126 of 2016 -12- **the years 2004 and 2011 and even after producing them in the original petition, the petitioner has not chosen to mount any challenge against them. Whether it is permissible or not is yet another question. In such circumstances, we have no hesitation to hold that the correctness or validity of the order passed by the Tribunal cannot be tested in the light of the said documents, which were withheld by the petitioner and produced only as additional documents subsequent to the disposal of the Original Application, before this Court.** **7. We will, now consider the question whether the finding of the Tribunal based on 'sit back theory' to repel the contentions of the petitioner invites no interference. The pleadings of the party respondents as also the official respondents would reveal that a** OP(KAT).No. 126 of 2016 -13- **seniority list for the purpose of effecting promotions in the Collegiate Education Department in the category of Lecturers was prepared and published in the year 2004. There is no doubt about the correctness of their stand as that itself is the very case of the petitioner himself as is revealed from his pleadings in Paragraph 2 of the original application, wherein he stated thus:** **“In the integrated seniority list published by the second respondent on 27.1.2004, the rank of the applicant is 598.”** **As regards the subsequent seniority list, he stated thus:** **“The integrated seniority list of Lecturer was published again in the order dated 14.11.2011 of the 2[nd] respondent. Applicant had filed objection against the integrated list on 8.12.2011.”** **Thus, it is evident that he filed objection only against the list published as on 14.11.2011 and** OP(KAT).No. 126 of 2016 -14- **he got no case that as against the earlier list, he had filed any objection and then pursued with his grievance. The pleadings of the party respondents as also the official respondents would reveal that based on the seniority of respondents 3 and 4, the third and the fourth** **respondents were promoted to the post of Principal on 26.10.2007 and 17.7.2009 respectively. The fifth respondent was promoted as Principal on 6.1.2011. As noticed hereinbefore, the select list based on which respondents 3 to 5 were promoted as Principals and their further promotions from the post of Principal were also not challenged by the petitioner. The fact is that after obtaining promotion to the post of Principal on the aforementioned dates, respondents 3 to 5 had obtained further promotions. The third respondent** OP(KAT).No. 126 of 2016 -15- **retired from service as Additional Director of Collegiate Education and the fourth respondent retired from service as Deputy Director of Collegiate Education. The fifth respondent retired from service only after getting further promotion. It is a fact that by the time the petitioner filed the original application, all of them had retired from service. It is a fact that the petitioner himself had retired from service on 31.5.2014 and it is hardly a couple of months prior to his retirement that he filed the above mentioned original application, to be precise on 13.3.2014. The afore-extracted prayers would reveal that essentially the petitioner claims seniority over respondents 3 to 6 without challenging the relevant seniority lists in which they were shown senior to him, the relevant select lists prepared for promotion to the higher** OP(KAT).No. 126 of 2016 -16- **posts based on the seniority assigned to them in such lists as also their further promotions effected based on their seniority. As noticed hereinbefore, it is also the case of the petitioner himself that the first among the seniority list was published in the year 2004. The second list was published only in the year 2011, to be precise on 14.11.2011. The fact is that by the time of the second list was prepared and published, respondents 3 to 5 were promoted to the post of Principals. In fact, respondents 3 and 4 had obtained further promotions by that time. It is in the said circumstances that the Tribunal held that the belated challenge against the seniority and the indirect attempt to challenge the promotions granted to the petitioner without making a direct challenge against their promotion cannot be maintained and** OP(KAT).No. 126 of 2016 -17- **consequently, held that respondents 3 to 5 are entitled to sit back. Taking into account the undisputed and indisputable facts that the petitioner herein had not challenged the seniority list even till today wherein those respondents were shown senior to him, the select list for promotion to the higher post wherein they were figured as also their consequential promotion to higher post, we do not find any reason to hold that the Tribunal had committed any legality or perversity warranting an interference in exercise of the power of judicial review. As regards the sixth respondent, there is yet another reason to sustain the said finding. It is a fact that earlier the petitioner had approached this Court by filing O.P.(KAT) No.1329 of 2012 aggrieved by an order passed by the Kerala Administrative Tribunal in** OP(KAT).No. 126 of 2016 -18- **O.A. No.415 of 2012. Annexure A3 is the judgment passed thereon by this Court. In the said original petition, the sixth respondent, viz; Sri.K.G.Radhakrishnan was the only party respondent therein. A perusal of Annexure A3 in Ext.P4 thus would reveal that the 6[th] respondent herein alone was made a party respondent therein. It is also to be noted that he was not impleaded as a party in the original application and then in the original petition in a representative capacity. In such circumstances, one can only presume that the petitioner has chosen only to challenge the seniority granted to the 6[th] respondent herein/third respondent therein. The petitioner after obtaining Ext.A3 judgment, filed Annexure A4 representation. It is the rejection of the representation by the first respondent that was ultimately challenged before the** OP(KAT).No. 126 of 2016 -19- **Tribunal in the original application the final order of which impugned in this proceedings. It is to be noted that it is only in the representation filed subsequent to Annexure A3 that for the first time, the petitioner raised some grievances against respondents 3 to 5. It is a fact that even after its rejection while filing the original application, the petitioner had not chosen to challenge the seniority list, the select list as also the orders of promotion granted to respondents 3 to 5. The aforesaid undisputed fact tend us to hold that the Tribunal was perfectly justified in holding that those persons were entitled to sit back and consequently, in rejecting the claims of the petitioner for seniority over them based on sit back theory. Now, we will consider the question whether the petitioner got any legal grievance** OP(KAT).No. 126 of 2016 -20- **against the sixth respondent and whether the consideration of which would fetch any benefit to him. No volume of argument is required to hold that such consideration would not ultimately fetch any benefit to the petitioner. The petitioner and the 6[th] respondent were figured only in Annexure A2 list. Based on Annexure A2 select list, both of them were promoted to the post of Principal on 18.9.2012 and thereafter, to the post of the Deputy Director of Collegiate Education on 20.6.2013. Thus, it is evident that both of them got promotion to the post of Principal on the same day and from that post both of them obtained further promotion to the post of Deputy Director also on the same day. Thereafter, both of them retired from service while holding the post of Deputy Director. In short, it is evident that the 6[th] respondent had not obtained** OP(KAT).No. 126 of 2016 -21- **any further promotion from the post of Deputy Director. In such circumstances, we have no hesitation to hold that considering the question whether the petitioner could claim seniority over the sixth respondent would be nothing, but a futility.** **Taking into account all such circumstances, we are of the considered view that the Tribunal was perfectly justified in holding that the claim is highly belated and the prayers sought for by the petitioner in the original application could not be granted. Evidently, in view of the salutary principles embodied in sit back theory and taking note of the fact that even now viz, at the fag end of 2018, the petitioner had not challenged the seniority lists, the selects list as also the orders of promotion, we do not find any reason to interfere with the order passed by** OP(KAT).No. 126 of 2016 -22- **the Tribunal. Consequently, this original petition is dismissed.** **Sd/C.T.RAVIKUMAR JUDGE Sd/V.G.ARUN JUDGE** Scl/22.11 OP(KAT).No. 126 of 2016 -23- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **P1 TRUE COPY OF THE RELEVANT PAGES OF THE INTEGRATED SENIORITY LIST OF SELECTION GRADE LECTURER IN GOVT COLLEGE ISSUED BY R2 AS PER ORDER NO.B3-36704/02 DT.27-1-2004.** |**P2**|**TRUE COPY OF THE RELEVANT PAGES OF THE**| |---|---| ||**INTEGRATED SENIORITY CIRCULATED BY R2**| ||**AS PER ORDER NO.B 3-25468/2004/CED**| ||**DT.14-11-2011.**| |**P3**|**TRUE COPY OF THE OBJECTION DT.8-12-**| ||**2011 FILED BY THE PETITIONER.**| |**P4**|**TRUE COPY OF THE OA(EKM)NO.163/2014.**| |**P5**|**TRUE COPY OF THE REJOINDER FILED BY**| ||**PETITIONER IN O.A.NO.163/2014 WITH**| ||**ANNEXURES.**| |**P6**|**TRUE COPY OF THE REPLY STATEMENT FILED**| ||**BY R1.**| |**P7**|**TRUE COPY OF THE FIRST REPLY STATEMENT**| ||**FILED BY R2.**| |**P8**|**TRUE COPY OF THE SECOND REPLY**| ||**STATEMENT FILED BY R2.**| |**P9**|**TRUE COPY OF THE REPLY STATEMENT FILED**| ||**BY R3-6.**| |**P10**|**TRUE COPY OF THE ORDER DT.17-8-2016 IN**| ||**OA (EKM)163/2014 ON THE FILES OF**| ||**KERALA ADMINISTRATIVE TRIBUNAL**| ||**TRIVANDRUM.**|