K. Mohanan and others v. Kerala Agricultural University and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932** **WP(C).No. 3659 of 2004(I)** **------------------------------------** **PETITIONERS:** **---------------------** **1. K. MOHANAN, SELECTION GRADE ASSISTANT, AICRP ON M & AP, COLLEGE OF HORTICULTURE, VELLANIKKARA, KERALA AGRICULTURAL UNIVERSITY P.O., THRISSUR-680 656.** **2. K.N. SAROJINI, SELECTION GRADE ASSISTANT, KERALA AGRICULTURAL UNIVERSITY PRESS, MANNUTHY P.O., THRISSUR-680 651.** **3. P. INDIRA DEVI, SELECTION GRADE ASSISTANT, INTERNAL AUDIT CIRCLE (SR) KERALA AGRICULTURAL UNIVERSITY, VELLAYANI P.O, THIRUVANANTHAPURAM-695 522.** **4. K.K. VALSA, SELECTION GRADE ASSISTANT, COLLEGE OF HORTICULTURE, VELLANIKKARA, KERALA AGRICULTURAL UNIVERSITY P.O., THRISSUR-680 656.** **5. C. RAJALAKSHMI, SELECTION GRADE ASSISTANT, COLLEGE OF VETERINARY & ANIMAL SCIENCES, MANNUTHY P.O., THRISSUR-680 651.** **6. M.P. NARMADA, SELECTION GRADE ASSISTANT KERALA AGRICULTURAL UNIVERSITY HEAD QUARTERS, KERALA AGRICULTURAL UNIVERSITY P.O., THRISSUR-680 656.** **7. M. KOMALAM, SELECTION GRADE ASSISTANT, DIRECTORATE OF EXTENSION, MANNUTHY P.O., THRISSUR-680 651.** **8. K. MEERA, SELECTION GRADE ASSISTANT, KERALA AGRICULTURAL UNIVERSITY HEADQUARTERS, KERALA AGRICULTURAL UNIVERSITY P.O., THRISSUR-680 656.** **9. K.V. JAYASANKAR, SELECTION GRADE ASSISTANT, KERALA AGRICULTURAL UNIVERSITY HEADQUARTERS, KERALA AGRICULTURAL UNIVERSITY P.O., THRISSUR-680 656.** **W.P.(C). NO.3659/2004-I:** **10. K.N. RADHAKRISHNAN, SELECTIN GRADE ASSISTANT, KERALA AGRICULTURAL UNIVERSITY HEAD QUARTERS, KERALA AGRICULTURAL UNIVERSITY P.O. THRISSUR - 680 656.** **BY ADVS. SRI.ELVIN PETER P.J, SRI.S. RAMESH, SRI. P.N. SANTHOSH, SRI. S.D. ASOKAN, SRI. T. NAVEEN.** **RESPONDENTS:** **------------------------** **1. KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY ITS REGISTRAR, VELLANIKKARA, THRISSUR.** **2. JACOB JOE, SELECTION GRADE ASSISTANT, KERALA AGRICULTURAL UNIVERSITY HEADQUARTERS, VELLANIKKARA, THRISSUR-680 656.** **3. P.V. MOHANAN, SELECTION GRADE ASSISTANT, DIRECTORATE OF PHYSICAL PLANT, KERALA AGRICULTURAL UNIVERSITY P.O., VELLANIKKARA, THRISSUR-680 656.** **4. K.C. VARGHESE, SELECTION GRADE ASSISTANT, INSTRUCTIONAL FARM, COLLEGE OF DIARY SCIENCE AND TECHNOLOGY, KOLAHALAMEDU, IDUKKI DISTRICT-685 504.** **5. PIUS. V.R., ACCOUNTS CLERK, M/S. AMAM FABRICATION, P.B.NO.10761, DUBAI, U.A.E.** **6. K. GIRINDRA BABU, SELECTION GRADE ASSISTANT, KERALA AGRICULTURAL UNIVERSITY HEADQUARTERS P.O., VELLANIKKARA, THRISSUR-680 656.** **7. K.K. SUNEETHA, SELECTION GRADE ASSISTANT, KERALA AGRICULTURAL UNIVERSITY HEADQUARTERS P.O., VELLANIKKARA, THRISSUR-686 656.** **8. V.N. NARAYANAN, SELECTION GRADE ASSISTANT, KERALA AGRICULTURAL UNIVERSITY HEAD QUARTERS P.O., VELLANIKKARA, THRISSUR-680 656.** **9. M.W. WILSON RAJ, SELECTION GRADE ASSISTANT, DEPARTMENT OF OLERICULTURE (KHDP) KERALA AGRICULTURAL UNIVERSITY P.O., VELLANIKKARA, THRISSUR-680 656.** **W.P.(C). NO.3659/2004-I:** **10. K. INDIRA DEVI, SELECTION GRADE ASSISTANT, COLLEGE OF VETERINARY & ANIMAL SCIENCES, MANNUTHY, THRISSUR-680 651.** **11. ANSAMMA PHILIP, SELECTION GRADE ASSISTANT, ELECTRICAL SUB DIVISION, COLLEGE OF AGRICULTURE, VELLAYANI P.O., THRIUVANANTHAPURAM- 695 522.** **R1 BY SRI.K.P. MUJEEB, S.C, AGRL.UNTY., R4, R6 & R10 BY ADV. DR. K.P. KYLASANADHA PILLAI, R8 BY ADV. SRI. P. GOPALAKRISHNAN NAIR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2010, THE COURT ON 17/06/2010 DELIVERED THE FOLLOWING:** **W.P.(C). NO.3659/2004-I:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE ORDER NO. GA/A2/9262/86 DTD. 06/05/1986 ISSUED BY THE R.1. EXT.P.2: COPY OF THE ORDER NO. GA/A2/2654/86, DTD. 12/05/86 ISSUED BY THE R.1. EXT.P.3: COPY OF THE ORDER NO. GA/A2/2654/86 DTD. 16/05/1986 ISSUED BY THE R.1. EXT.P.4: COPY OF THE ORDER NO. GA/00013/A3/88 DTD. 02/01/1988 ISSUED BY THE R.1. EXT.P.5: COPY OF THE ORDER NO. GA/A2/45507/88 DTD. 15/04/1989 ISSUED BY THE R.1.** **EXT.P.6: COPY OF THE ORDER NO. GA/A2/4507/88 DTD. 6TH JUNE, 1995 ISSUED BY THE R.1.** **EXT.P.7: COPY OF THE REPRESENTATION DTD. 20/06/1995 FILED BY THE ASSOCIATION TO THE R.1.** **EXT.P.8: COPY OF THE ORDER NO. GA/A2/3465/96 DTD. 23/02/1996 ISSUED BY THE R.1.** **EXT.P.9: COPY OF THE ORDER NO. GA/A2/20236/98 DTD. 11/10/2000 ISSUED BY THE R.1.** **EXT.P.10: COPY OF THE JUDGMENT DTD. 13TH NOVEMBER 2002 IN W.A. NO. 672/2001 OF THIS HON'BLE COURT.** **EXT.P.11: COPY OF THE CIRCULAR NO. GA/A2/1939/2003 DTD. 20/10/2003 ALONG WITH THE MODIFIED PROVISIONAL SENIORITY LIST OF ASST. GRADE-I ISSUED BY THE R.1.** **EXT.P.12: COPY OF THE ORDINANCE ISSUED AS PER NOTIFICATION NO. 75309/P5/75/AD DTD. 02/03/1976 BY THE AGRICULTURE (PLANNING II) DEPARTMENT, GOVERNMENT OF KERALA.** ## **RESPONDENTS' EXHIBITS:** **EXT.R6.A: COPY OF THE JUDGMENT DTD. 04/08/1998 IN O.P. NO. 9998/1995.** **EXT.R6.B: COPY OF THE JUDGMENT DTD. 29/08/2000 IN W.A. NO. 1740/1998.** **EXT.R6.C: COPY OF THE JUDGMENT DTD. 20/10/2003 IN R.P. NO. 300/2001.** **EXT.R6.D: COPY OF THE ORDER NO. GA/A3/38611/2003 DTD. 20/02/2004.** **EXT.R8.A: COPY OF THE JUDGMENT IN W.A. NO. 1740/98 OF THIS HON'BLE COURT DTD. 29/08/2000.** **EXT.R8.B: COPY OF THE ORDER IN R.P. NO. 300/01 OF THIS HON'BLE COURT DTD. 20/10/2003.** **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No.3659 of 2004-I** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 17th day of June, 2010.** ## **JUDGMENT** The petitioners and party respondents were appointed as Assistants Grade II in the Agricultural University in the year 1986. Actually, petitioners 6 to 10 were appointed by transfer as Assistant Grade II from the Calicut University. They are aggrieved by the promotion and consequential seniority granted to the party respondents in the category of Assistant Grade I. 2. It is pointed out in the writ petition that as per Ext.P4 order, the cadre strength was refixed and according to which, vacancies arose in the category of Assistant Grade I. The petitioners are claiming their promotion ahead of the party respondents in the light of the fact that by February 1987 all of them were eligible for promotion after passing Account Test (Lower) qualification. Ext.P5 is the order granting promotion to various persons wherein some of the petitioners who were transferred from Calicut University, were also shown as seniors to petitioners 1 to 15. But, this was rectified when Ext.P6 was passed. It is pointed out that Ext.P7 representation was filed claiming promotion to the post of Assistant Grade I wpc 3659/2004 2 ahead of the party respondents which was never considered. 3. Ext.P8 is the order by which further promotions were granted to the post of Senior Grade Assistant and Ext.P9 is an order by which the petitioners and respondents were promoted as Selection Grade Assistants. Ext.P9 is dated 11.10.2000. The petitioners point out that the very same issue was considered in O.P.No.8657/1993. The said original petition was dismissed. Later, by Ext.P10 judgment in W.A. No.672/2001, directions were issued with regard to refixation of seniority based on the test qualification. According to the petitioners, even though the judgment was implemented in respect of persons who were recruited later, in the case of petitioners, no steps have been taken. Accordingly, they are challenging the various orders granting promotion and fixation of seniority to the party respondents including Exts.P5, P6, P8 and P9. 4. The contesting respondents and the University have filed separate counter affidavits. The party respondents contended that the issue decided in Ext.P10 judgment is totally different. Therein, the review has been ordered only in respect of promotions granted to the seniors who have not acquired the test qualification before 11.8.1990. It is submitted that the inter-se seniority between direct recruits and persons who have been transferred from Calicut University, was the subject matter of Ext.R6(a) wpc 3659/2004 3 judgment which was confirmed in W.A. No.1740/1998 as per Ext.R6(b). Later, a Special Leave Petition was filed against the said judgment and based on the observations therein, R.P.No.300/2001 was filed by some of the petitioners herein, which was disposed of by Ext.R6(c) order. The present plea was raised by the parties including the petitioners, before the Division Bench which was not accepted by the Bench also. It is therefore submitted that the contentions raised are barred by the principles of resjudicata. It is further contended that the promotions were made from the year 1995 onwards and the writ petition has been filed only in the year 2004 and it is a stale claim. It is further pointed out that the sit back theory squarely applies to the facts of this case. 5. Learned counsel for the petitioners placed strong reliance on the judgment of the Division Bench Ext.P10, wherein it was held that the qualification at the time of occurrence of vacancy, is the relevant criteria for granting promotion. It is submitted that in the light of the directions therein, even the promotions earlier made, are liable to be reviewed, especially since all the promotions have been granted on a provisional basis, subject to further review, going by the orders of promotions itself. 6. A reading of Ext.P10 judgment will show that the appellants therein were appointed as Assistants Grade II in the year 1989. Even prior wpc 3659/2004 4 to the appointment, there were vacancies in the cadre of Assistant Grade I. The appellants had completed their probation and had acquired the test qualification before 11.8.1990. The promotions were given only on 26.10.1991. Therefore, the question whether as on the date of occurrence of vacancy, the appellants were entitled to be promoted, was considered. Accordingly, the Division Bench directed to consider then following matter, i.e. “if any seniors, without acquiring test qualification before 11.8.1990 is promoted, overlooking the claims of the petitioners, that should be reconsidered and consequential orders should be passed by the University”. 7. Evidently, the petitioners herein were not parties in the said writ petition. Apart from that, the dispute therein between the appellants and party respondents was the subject matter of the said writ petition. As rightly pointed out by the learned counsel for the respondents, there was no direction by the Division Bench to review any of the promotions made prior to the said date. The cut off date, viz. 11.8.1990 was mentioned only to see whether the appellants or the party respondents therein were qualified as on that date. 8. Therefore, it is clear that the directions therein are confined to the appointees of the years 1988 and 1989. There were no directions to review wpc 3659/2004 5 or reconsider the promotions made prior to that date and the petitioners cannot bank upon the said judgment to advance their case. A reference to Exts.R6(a) to R6(c) judgments are therefore necessary. The petitioners and party respondents herein were also parties in those litigations, wherein the writ petition was filed raising a dispute regarding inter-se seniority between direct recruits and transferees from Calicut University. The learned Single Judge in Ext.R6(a) judgment, held that there is no illegality in the steps taken by the University to fix the inter-se seniority between the petitioners and respondents 2 to 15 in accordance with Rule 27 of KS & SSR. This was upheld by the Division Bench by Ext.R6(b) judgment. Ext.R6(c) is the order passed in R.P. No.300/2001 by the Division Bench which rendered Ext.R6(b) judgment. The said review petition was filed in the light of the observations made by the Apex Court in S.L.P.(C) No.2550/2001 which was filed challenging Ext.R6(b) judgment. The very same contentions raised herein are seen dealt with in paragraphs 4 and 5 of Ext.R6(c) order. It was contended that the contesting respondents were not qualified when they were granted promotion as Assistant Grade I, as few of them did not have the obligatory test qualification to be promoted as Assistant Grade I, vis-a-vis the date of occurrence of the vacancy. This contention was dealt with in para 5, in the following manner: wpc 3659/2004 6 “But we see that, no such contention has been taken either in the original petition or in the appeal memorandum. The Supreme Court, as per the said order, allowed the petitioners to approach this court pointing out the grounds which had been urged before this court and had not been considered by this court. Therefore, the second contention also does not come within the permitted limits in terms of the order of the Supreme Court.” 9. Learned counsel for the petitioners submitted that the principles of res judicata cannot apply to the situation herein, as the issue now urged, was not heard and finally decided by this Court. But one thing is relevant. Even in the order passed in the review petition, this Court did not leave the matter open for the persons like the petitioners, to raise it in a writ petition or before any other forum. Evidently, such a contention was not raised before the learned Single Judge and before the Division Bench as evident from the judgments. It is in that view also, while hearing the review petition, the Bench observed that no such contention has been taken either in the writ petition or in the appeal memorandum. Therefore, evidently, the matter is hit by the principles of constructive res judicata. Hence, the petitioners cannot re-agitate the matter in a subsequent writ petition, whereas the seniority was provisionally fixed as per Ext.P6 order dated 6.6.1995. They have left the matter after filing a representation, Ext.P7 without challenging wpc 3659/2004 7 the inter-se seniority. Evidently, subsequent promotions have been effected in the category of Senior Grade Assistants by Ext.P8 order dated 23.2.1996 and as Selection Grade Assistants by Ext.P9 order dated 11.10.2000. Only when the writ appeal was disposed of as per Ext.P10 and a subsequent circular was issued as per Ext.P11 in the year 2003, the petitioners have sought to raise the matter in this writ petition filed in the year 2004. 10. The question is whether in such circumstances, the writ petition challenging the promotions and fixation of seniority made long back, can be a subject matter of consideration. Evidently, there is delay and laches on the part of the petitioners. Therefore, the question is whether the sit back theory will apply in such circumstances. A Full Bench of this Court in **Pavithran v. State of Kerala** (2009 (4) KLT 20), had occasion to consider the effect of the said theory in like circumstances. In para 8, the Full Bench laid down the law thus: “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 wpc 3659/2004 8 as valid and binding....................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.” The above principles are squarely applicable here. 11. This Court has occasion to consider the inter-se seniority of persons appointed in 1988 and 1989, by a common judgment dated 11.6.2010 in W.P.(C) No.24022/2003 and connected cases. As pointed out already, the petitioners' case stands on a different footing, in the sense that their claim is a stale one which cannot, for the first time, be considered in this writ petition, after a long lapse of time and after the parties have obtained successive promotions. For all these reasons, the writ petition is dismissed. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**