K.N. Rajan, V.M. Jabbar and K.K. Mohanan v. Transport Commissioner and C. Chandran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931** **OP.No. 1970 of 2002(H)** **-------------------------------** ## **PETITIONER(S):** **-------------------------** **1. K.N.RAJAN,S/O.NARAYANN,UPPER DIVISION CLERK (HIGHER GRADE),SUB REGIONAL TRANSPORT OFFICE,TRIPUNITHURA.** **2. V.M.JABBAR,S/O.MOHAMMED,UPPER DIVISION CLERK(HIGHER GRADE),SUB REGIONAL TRANSPORT OFFICE, PONNANI** **3. K.K.MOHANAN,S/O.K.K.KUNHAPPAN,.UPPER DIVISION CLERK(HIGHER GRADE),REGIONAL TRANSPORT OFFICE,MUVATTUPUZHA.** **BY ADV. MR.P.V.MOHANAN** ## **RESPONDENT(S):** - **------------------------** **1. THE TRANSPORT COMMISIONER,TRANSPORT COMMISSIONER OFFICE,THIRUVANANTHAPURAM.** **2. C.CHANDRAN,UPPER DIVISION CLERK (HIGHER GRADE),OFFICE OF TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM.** **R1 BY GOVT. PLEADER MR.SANDESH RAJA R2 BY ADV. MR.V.R.GOPU** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ORDER ON CMP. NO.3470/2002 IN OP. NO.1970/2002** ## **DISMISSED** ## **19/01/2010** ## **SD/- S.SIRI JAGAN, JUDGE** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE PROCEEDING NO.A2-35607/TC/87 DTD. 29.10.1987 BY THE JOINT TRANSPORT COMMISIONER , THIRUVANANTHAPURAM.** **P2:- COPY OF THE OFFICIAL GAZETTE DTD. 30.7.1991 AND THE SENIORITY LIST OF UPPER DIVISION CLERK.** **P3:- COPY OF THE PROCEEDING NO.A2.14753/TC/88 DTD. 27.10.1994 BY THE ADDL.TRANSPORT COMMISSIONER , THIRUVANANTHAPURAM.** **P4:- COPY OF THE PROCEEDING NO.A2-13908/TC/2001 DTD. 3.12.2001 BY THE IST RESPONDENT.** ## **RESPONDENT'S EXHIBITS** **R2(a):- COPY OF THE OBJECTION DTD. 24.7.91 SUBMITTED BY 2ND RESPONDENT C. CHANDRAN.** **R2(b):- COPY OF THE REPRESENTATION NO.A2.13908/TC/99 DTD. 27.7.99 SUBMITTED BY 2ND RESPONDENT C.CHANDRAN TO THE TRANSPORT COMMISSIONER .** **R2(c):- COPY OF THE REPRESENTATION DTD. 4.5.2001 SUBMITTED BY 2ND RESPONDENT TO THE TRANSPORT COMMISSIONER.** **R2(d):- COPY OF THE NOTICE NO.A2/13980/TC/99 DTD. 19.9.01 ISSUED BY SENIOR ADMINISTRATIVE OFFICER.** **TRUE COPY** **P.A. TO JUDGE** **tss** S.SIRI JAGAN, J. ================== ## O.P.No. 1970 of 2002 ================== ## Dated this the 19[th] day of January, 2010 J U D G M E N T The 1[st] petitioner commenced service as a Lower Division Clerk in the Transport Department of the Government of Kerala on 20.2.1992. On passing the obligatory departmental tests, he was promoted to the category of Upper Division Clerk, on 29.10.1987. The 2[nd] petitioner commenced service as Lower Division Clerk on 18.10.1983 and he was promoted as Upper Division Clerk on 29.10.1987. The 3[rd] petitioner joined as Lower Division Clerk on 1.12.1984 and was promoted as Upper Division Clerk on 29.10.1987. The 2[nd] respondent entered service as Lower Division Clerk on 19.11.1985, ie., after the petitioners entered service. But he was promoted as Upper Division Clerk on the same day as the petitioners viz., 29.10.1987. In fact the petitioners and the 2[nd] respondent were promoted after reverting some persons who were earlier promoted as Upper Division Clerk without obtaining test qualifications, by Ext.P1 order. A provisional seniority list of Upper Division Clerk appointed during the period from 1.7.1985 to 30.4.1988 was published as per Ext.P2 order dated 4.2.1991, in which the petitioners were placed above the 2[nd] respondent. The 2[nd] respondent did not file any objections against the same. After considering the objections of other 2 o.p.1970/02 employees, the seniority list was finalised on 27.10.1994, by Ext.P3 order. After four years, the 2[nd] respondent filed a representation in 1999 against that seniority list. That representation was considered and ultimately, Ext.P4 order was passed rearranging the seniority giving seniority to the 2[nd] respondent over the petitioners. The petitioners are challenging Ext.P4 order in this original petition on the ground of sit back theory, as also on merits. 2. According to the petitioners, the seniority position having been settled on 27.10.1994 by Ext.P3, the same could not have been unsettled 7 years thereafter by Ext.P4 order dated 3.12.2001, even if the 2[nd] respondent has filed a representation in 1999. In support of this contention, the petitioners rely on the Full Bench decision of this Court in _Pavithran v. State of Kerala_ [2009 (4) KLT 20 (F.B.)]. Regarding merits, the petitioners would contend that in the cadre of Lower Division Clerk the petitioners joined service much before the 2[nd] respondent and for promotion, seniority in the cadre of Upper Division Clerk, the same seniority should follow. They point out that in Ext.P3 seniority list the petitioners were ranked 133, 131 and 134, whereas the 2[nd] respondent was ranked 153. But in Ext.P4 that seniority position has been changed and the 2[nd] respondent has been given seniority over the petitioners. The petitioners, therefore, submit that Ext.P4 is liable to be quashed and seniority as per Ext.P3 is liable to be 3 o.p.1970/02 restored. 3. Counter affidavits have been filed both the 1[st] respondent and the 2[nd] respondent. The 1[st] respondent would contend that the sit back theory cannot be applied in this case since, by Ext.P1 order, the promotion of the petitioners and the 2[nd] respondent was made with the condition that ranking of Upper Division Clerks will be ordered according to the seniority of the incumbents on receipt of full details from the controlling officers concerned. It is submitted that full details were received only after Ext.P3 seniority list was published and on receipt of the same, certain anomalies were found, as a result of which, it became necessary to revise the list to rectify the anomaly, which resulted in Ext.P4 order. Therefore, the sit back theory does not apply to this case, is the contention of the 1[st] respondent. 4. The learned Government Pleader would take a contention that original petition is bad for non-joinder of necessary parties in so far as other persons have also been given seniority in Ext.P4, who have not been impleaded in the original petition. The 2[nd] respondent also, in his counter affidavit, adopts the same contentions. 5. I have considered the rival contentions in detail. 6. As far as the technical objection of the learned Government Pleader regarding non-joinder of parties is concerned, I do not find any merit in the same. The petitioners are not claiming seniority over 4 o.p.1970/02 anybodyelse. They are seeking seniority only over the 2[nd] respondent. If they are actually entitled to such seniority over the 2[nd] respondent, it is for the 1[st] respondent to decide as to how they should be given their due seniority. The petitioners cannot be accused of non-joinder of parties when they do not seek relief against anybodyelse other than the 2[nd] respondent. 7. I do not find any merit in the contention of the respondents that sit back theory would not apply. It is true that in Ext.P1 it is stated that ranking in Upper Division Clerks will be rearranged according to the seniority of the incumbents on receipt of full details from the controlling officers concerned. That order was passed on 29.10.1987. Ext.P2 provisional seniority list was published on 4.2.1991 and Ext.P3 final seniority list was published only on 27.10.1994. There was ample time for the 1[st] respondent to collect all details before finally settling the seniority position and it is to be noted that against Ext.P2 provisional seniority list, the 2[nd] respondent did not raise any objection at all. I am of opinion that clause 7 in Ext.P1 has been invoked only for defeating the contention of the petitioners on the basis of sit back theory and not because the 1[st] respondent was convinced about that contention. I do not find any merit in that contention. In _Pavithran's case_ (supra) the Full Bench has held that a person who has slept over his rights, cannot rake up a stale claim and 5 o.p.1970/02 tinker with settled seniority and that unless he takes recourse to appropriate remedy at appropriate time, even an illegal order will be treated as valid and binding. I am of opinion that the ratio of that decision squarely applies to the case of the 2[nd] respondent. As I have stated, provisional seniority list was published on 4.2.1991, the 2[nd] respondent did not file any objection to the same and Ext.P4 order revising seniority list was published be only on 3.12.2001. The 2[nd] respondent raised his objection only in 1999. As such, notwithstanding clause 7 of Ext.P1, the settled seniority position cannot be unsettled after 7 years and the 2[nd] respondent cannot claim seniority over the petitioners contrary to Ext.P3 final seniority list. 8. Although in view of my above findings, it is not necessary to consider the contention on merits, I find that neither in Ext.P4 nor in the counter affidavit filed by the 1[st] respondent or the 2[nd] respondent, is there any justification as to why the 2[nd] respondent should be given seniority over the petitioners. As noted in the beginning, the petitioners entered service as Lower Division Clerk more than two years prior to the 2[nd] respondent joining as Lower Division Clerk. It is only after passing the departmental test, they were promoted as Upper Division Clerks. As such, no specific reason is forthcoming as to why the 2[nd] respondent should be given seniority over the petitioners in the cadre of Upper Division Clerk. In the above circumstances, I am 6 o.p.1970/02 satisfied that the petitioners are entitled to succeed in this original petition. Accordingly, Ext.P4 is quashed to the extent it tinkers in the inter se seniority between the petitioners and the 2[nd] respondent. It is declared that the petitioners are entitled to seniority as in Ext.P3 final seniority list over the 2[nd] respondent . As to how that seniority should be worked out is for the 1[st] respondent to consider appropriately. Orders in this regard restoring the seniority of the petitioners over the 2[nd] respondent shall be issued by the 1[st] respondent within one month from the date of receipt of a copy of this judgment. The original petition is allowed as above. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 1970 of 2002-H ================== J U D G M E N T 19[th] January, 2010