Latha v Kerala State Backward Classes Development Corporation Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.GIRI** ## **THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929** ## **WP(C).No. 33842 of 2006(D)** **--------------------------------------** ## **PETITIONER:** - **------------------** **LATHA V., PROJECT ASSISTANT, DISTRICT OFFICE, KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD., PALAKKAD.** **BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO** ## **RESPONDENTS:** **-----------------------** **1. KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD., REPRESENTED BY ITS MANAGING DIRECTOR, REGISTERED OFFICE, TC.15/25, PANKAJ, VELLAYAMBALAM,THIRUVANANTHAPURAM-695 010.** **2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, SCHEDULED CASTES DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **3. DIRECTOR, SCHEDULED CASTES DEVELOPMENT DEPARTMENT, THIRUVANANTHAPURAM.** **ADDL. R4 TO R25 ARE IMPLEADED.** **4. SREEKALA K.S., PROJECT ASSISTANT, REGIONAL OFFICE, KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD., S.N.D.P. UNION, YOGAM BUILDING, OPP. S.N. WOMENS COLLEGE, KOLLAM P.O.** ## **W.P.(C) NO.33842/2006** **5. FARIDA C.M., PROJECT ASSISTANT, REGIONAL OFFICE, KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD., WEST HILL P.O., KOZHIKODE 5.** **6. LATHA GOPAL R., PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD., T.C. NO.16/358, COTTON HILL, THIRUVANANTHAPURAM 14.** **7. AJITHA G., PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD., CENTINAL BUILDING, 2ND FLOOR, T.C. NO.27/588 (7), PATTOOR, VANCHIYOOR P.O., THIRUVANANTHAPURA 695 -035.** **8. LATHA K.J., PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD., ALUMMOOTTIL PLAZA, NEAR COLLECTORATE, PATHANAMTHITTA.** **9. CHITHRA K.S., PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD., T.C. NO.16/358, COTTON HILL, THIRUVANANTHAPURAM 14.** **10. ANIL P.O., PROJECT ASSISTANT, T.C. NO. 16/358, COTTON HILL, THIRUVANANTHAPURAM 14.** **11. BINDU C.R., PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT, CORPORATION LTD., PARAMARA SHOPPING COMPLEX, ERNAKULAM NORTH 18.** **12. SANTHOSH KUMAR S.S., PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT, CORPORATION LTD., KURUMBELIL BUILDING C.C. N.B. ROAD, ALAPPUZHA 11.** **13. LEKHA S.P., PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT, CORPORATION LTD., CENTINAL BUILDING 2ND FLOOR, TC. NO.27/588(7), PATTOOR, VANCHIYOOR P.O., THIRUVANANTHAPURAM 695 035.** ## **W.P.(C) NO.33842/2006** **14. ANIT JOSE, PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT, CORPORATION LTD., NINAN COMPLEX, METTUPALAYAM STREET, PALAKKAD P.O., PIN 678 101.** **15. RAJESH M.G., PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT, CORPORATION LTD., BUILDING NO.XI/696. IRAYIL KADAVU, KOTTAYAM 1.** **16. SASIKALA G., PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT, CORPORATION LTD., PARAMARA SHOPPING COMPLEX. ERNAKULAM NORTH 18.** **17. MOHAMMED HANEEFA M.T., PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT, CORPORATION LTD., 23/277, J & K BUILDING MUNDUPARAMB, MALAPPURAM 9.** **18. MANOJ KUMAR K.N., PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD., KURUMBELIL BUILDING C.C.N.B., ROAD, ALAPPUZHA 11. KOTTAYAM -1.** **19. VINOD C.S., PROJECT ASSISTANT,** **KERALA STATE BACKWARD CLASSES DEVELOPMENT, CORPORATION LTD./, 9/426, T.B.ROAD, MISSION QUARTERS, THRISSUR 1.** **20. SREEKUMAR P., PROJECT ASSISTANT,** **KERALA STATE BACKWARD CLASSES DEVELOPMENT, CORPORATION LTD., HIGH LINE PLAZA BUILDING, 11/346, A 17, ANABIGARU, M.G.ROAD, KASARGODE.** **21. SINIMOL B. PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT, CORPORATION LTD., BUILDING NO.XI/696, IRAYINKADAVU, KOTTAYAM 1.** **22. SINI G.KRISHNAN, PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD., S.N.D.P., YOGAM, UNION BUILDING OPP. S.N. WOMEN'S COLLEGE KOLLAM.** **W.P.(C) NO.33842/2006** **23. SUDHAKARAN C., PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD., T.K. 378/J., PADANNAPALAM ROAD, KANNUR 1.** **24. ALOYSIUS V.P., PROJECT ASSISTANT, KERALA STATE BACKWARD CLASSES DEVELOPMENT CORPORATION LTD., 9/426, T.B.ROAD, MISSION QUARTERS, THRISSUR 1.** **25. SHIRLY ANTONY, PROJECT ASSISTANT, KERALA STATE BACK CLASSES DEVELOPMENT CORPORATION LTD., S.N.D.P UNION YOGAM BUILDING OPPO. S.N. WOMENS COLLEGE, KOLLAM P.O.** ## **R4 TO R25 IMPLEADED AS PER ORDER DT. 3.8.07 IN IA. 10466/07 BY AD (J)** **BY ADV. SRI.C.S.MANILAL - R1 SRI.C.A.CHACKO - R2 SRI.K.M.SATHYANATHA MENON - R17 SRI.A.V.RAMAKRISHNA PANICKER - R11 SMT.R.SEEMA SRI.RAJESH NAIR - R15,R16, R4, R5, R6, R7, R8,R9, R13, R14, R20, R21 AND R23 SRI.G.P.SHINOD - R10 SRI.RAM MOHAN.G. SRI.MANU V. BY GOVERNMENT PLEADER SMT.RAMANI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/02/2008, ALONG WITH WPC NO. 1618 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.33842/2006** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXT.P1:- COPY OF THE ORDER NO.704/ADMN/2000 DT. 31.3.2000 OF THE MANAGING DIRECTOR OF THE CORPORATION.** **EXT.P2:- COPY OF THE ORDER NO.E1/3229/02/KSBCDC DT./ 20.9.02 OF THE MANAGING DIRECTOR OF THE CORPORATION.** **EXT.P3:- COPY OF THE CIRCULAR NO.60/E1/2003/KSBCDC DT. 17.8.06 OF THE MANAGING DIRECTOR OF THE CORPORATION.** ## **EXT.P4:- COPY OF THE REPRESENTATION DT. 25.8.06.** **EXT.P5:- COPY OF THE LETTER NO.60/E1/2002/KSBCDC DT. 7.11.06 OF THE MANAGING DIRECTOR , KSBCDC LTD.** **EXT.P6:- COPY OF THE REFERENCE NO.E1/60/2002/KSBCDC DT. 1.6.05 OF THE MANAGING DIRECTOR OF THE CORPORATION.** **EXT.P7:- COPY OF THE REPRESENTATION DT. 22.11.06 TO GOVERNMENT.** _**/**_ **TRUE COPY/** ## **P.S. TO JUDGE** **tss** ## **V.GIRI, J.** ## **-----------------------------** ## **W.P.(C).No.33842 & 1618 of 2007** ## **----------------------------Dated this the 7[th ] day of February, 2008.** ## **JUDGMENT** Common issues arise for consideration in these writ petitions and therefore they have been heard together and are being disposed of by this common judgment. W.P.(C)No.(C) No.33842/06 is referred to as the leading case. 2. Appointments to various posts in the 1[st] respondent Corporation is regulated by the Provisions of the Kerala State Backward Classes Development Service Rules 1996 (hereinafter referred as “ **the Special Rules** ”), Rule 7 of the Special Rules reads as follows: ## **“7. RESERVATION OF APPOINTMENT:** **The rules relating to reservation of appointment in Government Service i.e. Rules 14 to 17 of General Rules in Kerala State Subordinate Service Rules 1958 shall apply to appointments by direct recruitment.”** 3. In effect, therefore, in making appointments in the 1[st] respondent, the appointing authority is bound to do so in accordance with Rules 14 to 17 of the General Rules of the KSSR {for short “the General Rules”}. 4. The petitioner herein was appointed as the Project Assistant in the 1[st] respondent. She is a member of the Scheduled **W.P.(C).NO.33842/06 & Con.case. :: 2 ::** Caste. The petitioner and the contesting respondents were the first direct recruits to the post of Project Assistants in the service of the 1[st] respondent. 26 persons were appointed in the first instance. As per the roster provided under Section 14, the 4[th] vacancy is to be filled up by a candidate belonging to Scheduled Caste. Among the 26 persons appointed as Project Assistants, on 31.3.2000, the petitioner was the only candidate belonging to the Scheduled Caste. Therefore, she was entitled to be appointed to the 4[th] vacancy and assigned the 4[th] rank, it is contended. 5. According to the petitioner, she was not aware of the fact that she had been denied the benefit of communal reservation and the rules regarding reservation was not followed in appointing the 1[st] batch of recruits in the 1[st] respondent. 6. Apparently, in the meanwhile, a provisional seniority list of Project Assistants was published in the year 2006. It seems that none of the persons included in the list filed any objection to the provisional seniority list and accordingly it was finalised on 1.6.2005 as per Ext.P6. According to the petitioner, in 2006 she came across a revised draft seniority list of Junior Assistants published as per Ext.P3 circular dated 17.8.06 based on a complaint submitted by one Sri.Babu, a Junior Assistant, who was denied the benefit of communal reservation. She submits that the appointment in the first respondent ought to have been made adhering to the principles of communal **W.P.(C).NO.33842/06 & Con.case. :: 3 ::** reservation as per Rules 14 to 17 of the General Rules. But it was not so done in the case of Project Assistants appointed in the year 2000. She, therefore, filed Ext.P4 representation before the 1[st] respondent for a similar treatment, which was extended to the Junior Assistants. It was rejected under Ext.P5 on the premise that the claim is belated; inasmuch as that, the final seniority list was published in the Kerala Gazette on 26.7.2005 and objections, if any, should have been raised when objections were called for. Exts.P5 and P6 are under challenge in the writ petition. 7. A statement has been filed by the 1[st] respondent and counter affidavits have been field by the contesting respondent. I heard learned counsel on both sides. 8. There is no serious dispute to the assertion that the 1[st] respondent committed a mistake in not applying the principles of communal reservation as per Rules 14 to 17 of the General Rules in effecting appointments of the first batch of Project Assistants in the first respondent in the year 2000. The first respondent has also not denied the assertion made by the petitioner that she is a member of the Scheduled Caste and if the principles of communal reservation were followed, she would have been appointed in the 4[th] vacancy. Nor is there any assertion by the 1[st] respondent that the principles of communal reservation, as such, need not be followed in the matter of appointments in the 1[st] respondent corporation. **W.P.(C).NO.33842/06 & Con.case. :: 4 ::** 9. What is contended by the 1[st] respondent and all the other contesting respondents is that there is undue delay on the part of the petitioner in raising an objection. A provisional seniority list was published on 31.1.2003 and the final seniority list was also published on 26.7.2005. Ext.P4 was submitted almost an year after Ext.P6. Since objections were not filed to the provisional seniority list within the time limit, the petitioner cannot be treated as having any objection to the said list. In the circumstances, the contesting respondents are entitled to be retained in their position which has been in force till the date of Ext.P4 and it should not be upset for the purpose of accommodating such a belated claim. Learned counsel for the respondents brought to my notice the judgment of the Supreme Court in **Rabindra Nath v. Union of India {AIR 1970 SC 470}** and **A.B.Dogra v. State of Himachal Pradesh {1992(4) SCC 455}** . In both the judgments it was found that there was inordinate delay in raising the claim. Though it could not be treated as a reason for denying a reservation to any person, it has been held that the claimant could have filed objection to the provisional seniority list and since such objections were not filed within time, belated objections can be thrown out by the department. It has also been held that if pursuant to a rank list assigning seniority, the parties have settled their position in the list and further promotions have also been effected, then the **W.P.(C).NO.33842/06 & Con.case. :: 5 ::** court would be reluctant to entertain a belated claim and issue directions to the department to revise a settled seniority list to accommodate such a candidate. 10. The question is whether these principles can support the decision taken by the 1[st] respondent evidenced by Ext.P4. 11. I take note of the fact that indisputably there was a default on the part of the 1[st] respondent in not applying the principles of communal reservation in effecting appointments to the post of Project Assistants in the first respondent corporation. I also take note of the fact that both the petitioner and the contesting respondents were continuing as Project Assistants when Ext.P4 was submitted for the first time by the petitioner before the appointing authority. Moreover, at the point of time when Ext.P4 objection was submitted, the inter se seniority as such amongst the petitioner and the contesting respondents was not of any crucial significance in the sense that the seniority by itself did not bring about any benefit to the contesting respondents or cause any deprivation to the petitioner. 12. Had the principles of communal reservation, adumbrated in Rules 14 to 17 of Part II of the General Rules, been applied to the stage of appointment of the petitioners and the contesting respondents, inter se seniority of such persons in the cadre of entry would admittedly have been different. But **W.P.(C).NO.33842/06 & Con.case. :: 6 ::** indisputably the said inter se seniority by itself was not a matter of any significance either on the date of Ext.P6 or on the date of Ext.P4 or on the date of institution of the writ petition, in the sense that the petitioners and the contesting respondents were all continuing as Project Assistants on the aforementioned crucial dates. None of them had been promoted to the next higher post on any of the above dates. In other words, a revision in the seniority amongst the Project Assistants, would not have resulted in the review of any promotions already effected or a change in the position of anyone of the Project Assistants, in any other category. The Doctrine of 'sit back' is normally invoked to see that settled positions are not unsettled and persons who have entrenched themselves in any promoted post are not required to face a reversion or any such detriment by reason of the acceptance of a belated claim. Respondents 4 and 5 were promoted only subsequent to the institution of the writ petition. In my view, even without any detailed enquiry, one is led to the conclusion that a patent mistake was committed by the 1[st] respondent in not applying the principles of communal reservation in the course of appointment of the first batch of Project Assistants. There is, therefore, reason and justification for compelling the first respondent to correct its own mistake. The only factor which would have normally dissuaded this court from exercising its jurisdiction would, probably, be a case where **W.P.(C).NO.33842/06 & Con.case. :: 7 ::** interference would have resulted in settled positions being unsettled and promotions or such other actions, which have taken place over the years, being reviewed and benefits already drawn being forfeited. No such consequence would have befallen the contesting respondents either on the date of Ext.P6 or on the date of Ext.P4 or on the date of institution of the writ petition. 13. Learned counsel for the petitioner also brought to my notice the judgment of a learned single Judge [K.Balakrishnan Nair, J.] in W.P.(C)No.(C)No.11804/07. This court was concerned with a claim by members of the Scheduled Caste that they should be exempted from passing the obligatory test for promotion to the post of Assistant Grade I and should also be promoted to the said post with retrospective effect consequent upon such exemption. The contesting respondents took up the contention that the claim of the petitioners was belated and therefore the party respondents are entitled to succeed. They further contended that if the prayers of the petitioners are allowed, their seniority would be affected. The said contention was considered and rejected in the following words: **The interim order in Writ Petitioner(c) No.2269/06 is to the effect that promotions if any made will be subject to the result of the writ petition. The same does not standing in the way of the** **W.P.(C).NO.33842/06 & Con.case. :: 8 ::** ## **Government, considering the claim of the** **petitioners, who are members of the Scheduled Caste. Assuming the submission of the learned counsel for the party respondents that the Government has taken a conscious decision not to dispose of Exts.P1 to P4 representations, is correct, I feel that such a stand from the part of the Government is unjustified. The Rules governing exemption from text qualification have been introduced for the benefit of the candidates, belonging to the Scheduled Caste, who were sidelined and marginalised from the main stream for centuries. So, even if there is some delay to assert their rights, the same cannot be pressed into service as a ground to reject their claim, if they are otherwise eligible. The claim made by the petitioners is based on a statutory Rule. That means, it is a statutory right. Therefore, the official respondents have a corresponding duty to respect their rights in this regard. They cannot take any conscious decision and sleep over the rights of the petitioners, which are secured by statutory provisions. The concept of conscious decision, not to make promotions/appointments, cannot be pressed into service here.”** 14. Though the Special Rules involved in the instant case cannot be considered as statutory in character, nevertheless **W.P.(C).NO.33842/06 & Con.case. :: 9 ::** the principles of communal reservation as adumbrated in Rules 14 and 17 are statutory. Therefore, there is an enforceable right available o the petitioners to compel the first respondent to effect appointments in the 1[st] respondent by adhering to the said principles. In the circumstances, I am of the view that the principles laid down in W.P.(C)No.(C)No.11804/07 applies on all fours to the present case. After all, the question is whether a prejudice, as such, has been caused to the contesting respondents on account of the delay in the petitioner raising a claim, which otherwise, is found to be tenable. As I found earlier, there was no change in the status between the petitioner on one hand and the contesting respondents on the other, on the date of Ext.P4 or, as a matter of fact on the date of filing the writ petitions. Therefore, there is no question of re-assignment of inter se seniority between the petitioner and the contesting respondents. The promotion of respondents 4 and 5 during the pendency of this writ petition will be subject to the decision to be taken in the writ petition as all pendente lite actions, normally are resulting in the reversal or modification of any orders of promotion that might have been issued during the interregnum. 15. In the result, the writ petition is allowed. Ext.P5 is set aside. The first respondent shall pass fresh orders revising the seniority list of Project Assistants in accordance with Rules 14 to 17 of the General Rules of the KSSR read with Rule 7 of the **W.P.(C).NO.33842/06 & Con.case. :: 10 ::** Special Rules applicable to the 1[st] respondent. An endeavour shall be made in this regard within two months from the date of receipt of a copy of this judgment. ## **W.P.(C)No.(C)No.1618 of 2007:** 16. The direction issued in the above writ petition will be applicable to the petitioner in this case also. It is so declared. Writ petitions are disposed of as above. - Sd/ **(V.GIRI) JUDGE** sk/ //true copy//