High Court of KeralaDivision Bench2020-03-05Original Petition dismissed

M. A. Muraleedharan v. State of Kerala and Others

Case / Petition Number:OP(KAT).No.253 OF 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
P. V. Kunhikrishnan
Judgment Date: 2020-03-05
Court Decision / Holding: Original Petition stands dismissed without any order on costs; no interference with the Kerala Administrative Tribunal’s order.
Final Disposition: Original Petition dismissed

Parties to the Case

Appellants / Petitioners

M. A. Muraleedharan S/o. Ayyappan, aged 56 years, Personal Assistant to Superintending Engineer (Retd) (Executive Engineer) Irrigation North Circle, Kozhikode

Respondents

State of Kerala represented by Principal Secretary to Government, Water Resources Department, Secretariat, Thiruvananthapuram - 695001
Principal Secretary to Government, Water Resources Department and Convener, Departmental Promotion Committee (Higher Technical), Secretariat, Thiruvananthapuram-695001
Chief Engineer, Irrigation & Administration, Museum P.O., Thiruvananthapuram-695033
R. Unnikrishnan, Chief Engineer, Irrigation Project II, Museum P.O., Thiruvananthapuram-695033

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Pirappancode V.S. Sudhir
• Sri. Jelson J. Edampadam

Counsels for Respondents

• Government Pleader

Case Synopsis & Summary

This matter arises from OP(KAT) No.253 of 2015 before the Kerala High Court, challenging the order in OA 1628/2013 of the Kerala Administrative Tribunal. The petitioner, M. A. Muraleedharan, a Scheduled Caste member, retired as an Assistant Executive Engineer after service in the Irrigation Department. He was selected under a Special Recruitment Scheme as a diploma holder who later obtained a B.Tech. He was initially placed in the Graduate Engineers’ seniority list and, though within the zone of consideration for promotion to Executive Engineer, promotion was withheld for want of vacancies. In 2007, the 4th respondent challenged his seniority, arguing that diploma holders who acquire graduation could be placed in the seniority list of graduates only from the date of acquisition of qualification, not from the date of advice, leading the Government to shift him to the diploma-holders’ seniority list. The petitioner sought reconsideration of these actions, including Annexures A14, A15, and A17, and relied on a “sit back” theory to persist in Graduate Engineer seniority. The Tribunal held that, on merits, the petitioner could not succeed because the Supreme Court had held in Engineers in the Public Works Department that diploma holders who acquire graduation cannot claim seniority from the date of advice; service must count from graduation. It also noted the delay in challenging prejudicial orders. The Government’s actions were upheld. The High Court declined to interfere and dismissed the Original Petition without costs, thereby maintaining the Tribunal’s order.

Provisions of Law Cited

Kerala Engineering Service Rules (Civil & General Branch)G.O.(MS) No.66/91/PW&T (9/16/1991)G.O.(RT) No.11380/07/WRD (24.8.2007)G.O.(RT) No.652/2013/WRD (6.6.2013)G.O.(RT) No.610/94/IRRGN (18.6.1994)Special Rules for the Kerala Engineering Service

Legal Doctrines & Maxims

Sit back theory
Seniority to be counted from date of graduation (not from date of advice)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that he was a graduate engineer in seniority and should be treated in the Graduate Engineers’ list; he relies on the sit-back theory to retain seniority in the Graduate list despite earlier orders shifting him to the Diploma Engineers’ seniority list. He claims long service in the Graduate Engineers’ list and seeks restoration of that status for promotion purposes; he argues that denial of this status violates the principles laid down in prior judgments that protect the continuity and seniority of officers who acquire higher qualifications. He further argues that the successive orders (Annexures A15 to A17) were issued without timely challenge and that his representation should have been considered in light of those orders.

Contentions of Respondents

The respondents argue that the law is settled that diploma holders who acquire graduation cannot count their service from the date of advise for seniority; instead, seniority must be counted from the graduation date. They rely on the Supreme Court’s ruling in Engineers in the Public Works Department and on Chandravathi P.K. & others v. C.K. Saji & others to justify shifting the petitioner to the diploma-holders’ seniority. They maintain that the Departmental Promotion Committee decisions and Government orders were in accordance with the established rule and that no interference is warranted given the delay in challenging the earlier adverse orders.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Chandravathi P.K & others v. C.K.Saji & others	—	Positive	Used as controlling authority to hold that seniority of diploma holders who acquire graduation cannot be counted from the date of advise; service counts from the date of graduation.
Engineers in the Public Works Department	—	Positive	Supreme Court rule cited to support the proposition that graduation after diploma does not alter seniority dating from graduation.
W.P(C) No.6689/2007	—	Mentioned Only	Annexure reference; judgment of the Kerala High Court cited as supporting material, not directly applied in the main reasoning.
Civil Appeal No.884/2002	—	Mentioned Only	Referenced in annexures to illustrate related judgments; not central to the decision here.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**OP(KAT).No.253 OF 2015 1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941** ## **OP(KAT).No.253 OF 2015** ## **AGAINST THE ORDER IN OA 1628/2013 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS:** ## **M.A.MURALEEDHARAN** **S/O.AYYAPPAN, AGED 56 YEARS, PERSONAL ASSISTANT TO SUPERINTENDING ENGINEER (RETD) (EXECUTIVE ENGINEER)IRRIGATION NORTH CIRCLE, KOZHIKODE, RESIDING AT 'AMMU' MULANKUNNATHUKAVU P.O, THRISSUR - 680 581.** **BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR SRI.JELSON J.EDAMPADAM** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PRINCIPAL SECRETARY TO**| ||**GOVERNMENT,WATER RESOURCES DEPARTMENT,**| ||**SECRETARIAT,THIRUVANANTHAPURAM -695 001.**| |**2**|**THE PRINCIPAL SECRETARY TO GOVERNMENT**| ||**WATER RESOURCES DEPARTMENT AND CONVENER,**| ||**DEPARTMENTAL PROMOTION COMMITTEE (HIGHER**| ||**TECHNICAL), SECRETARIAT, THIRUVANANTHAPURAM-695**| ||**001.**| |**3**|**CHIEF ENGINEER**| ||**IRRIGATION & ADMINISTRATION, MUSEUM**| ||**P.O.,THIRUVANANTHAPURAM - 695 033.**| |**4**|**R. UNNIKRISHNAN**| ||**CHIEF ENGINEER, IRRIGATION PROJECT II, MUSEUM P.O.,**| ||**THIRUVANANTHAPURAM - 695 033.**| ||**R1-3 BY GOVERNMENT PLEADER**| **OP(KAT).No.253 OF 2015 2** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.VINOD CHANDRAN & P.V.KUNHIKRISHNAN, JJ** ------------------------------------------------------------------------ ## O.P.(KAT) No.253 of 2015 -----------------------------------------------------------------------Dated this the 5[th] day of March, 2020 ## **JUDGMENT** ## **K.Vinod Chandran, J** The applicant is the petitioner herein, who retired as an Assistant Executive Engineer. The retirement was after the order in the Original Application was passed and the claim in the Original Application was with respect to the promotion to the cadre of Executive Engineer. 2. The applicant, a member of the Scheduled Caste was selected and advised for appointment under a Special Recruitment Scheme to the post of Assistant Engineer. The applicant at that time was a diploma holder who was sent for training for one year and commenced service on 10.10.1984. He later acquired B.Tech Degree in Civil Engineering in 1988. After that, the Public Works Department was bifurcated carving out a new Irrigation Department. The applicant opted to move to the Irrigation Department wherein he was shown in the **OP(KAT).No.253 OF 2015 4** seniority list of Graduate Engineers. The applicant on the basis of that seniority was also promoted as an Assistant Executive Engineer. While he continued therein, the promotion for the post of Executive Engineer came on. He was within the zone of consideration and the DPC found him eligible but was not promoted by reason of want of vacancies. 3. After that, in the year 2007, the 4th respondent challenged the seniority of the petitioner. The 4th respondent's contention was that the petitioner who was a diploma holder who acquired graduate qualification after he joined the service can be given seniority in the list of Graduate Engineers only with reference to the date of acquisition of qualification and not from the date of advise. The Government found favour with the said ground and shifted the petitioner to the seniority list of diploma holders. The petitioner had approached this court for consideration of a representation, which was directed to be considered. Even before such consideration, Annexure A12 order was issued for shifting him to the diploma holders seniority list. The petitioner filed a representation and approached this court, **OP(KAT).No.253 OF 2015 5** wherein Annexure A14 order was passed directing consideration of the representation. After Annexure A14 judgment, the Government reconsidered the issue and passed Annexure A 15 and A17 orders were passed. 4. Annexure A15 and A17 were not challenged by the petitioner immediately. The petitioner applied for leave without allowance for 5 years and the same was granted. While on leave, he gave a representation Annexure A19 dated 15.10.2011. He rejoined duty in the year 2012 and sought for consideration of the representation, which was declined by the Government. The petitioner claims that he had continued in the list of Graduate Engineer for about 16 years when the 4th respondent took up the ground of revision of seniority. The petitioner claims that he is entitled to claim continuance in the list of graduate engineers, falling back on the sit back theory. 5. The Tribunal found that on merits the petitioner cannot have a case since the Hon'ble Supreme Court had found specifically in the case of Engineers in the Public Works **OP(KAT).No.253 OF 2015 6** Department that the diploma holders on acquisition of Graduation cannot get seniority from the date of their advise. Their service has to be counted only from the date of graduation as held in **Chandravathi P.K & others v. C.K.Saji & others** produced as Annexure A37. The Tribunal also found that though the petitioner falls back on the sit back theory to support his contention, he himself did not challenge the prejudicial order in time. After he was shifted to the list of diploma engineers he went on leave and approached the authorities only after about five years for again agitating the same cause which was decided earlier by two orders Annexure A15 to A17. We do not find any reason to interfere with the orders of the Tribunal. Original Petition stands dismissed without any order on costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **P.V.KUNHIKRISHNAN,JUDGE** cms xxx **OP(KAT).No.253 OF 2015 7** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 P1 - TRUE COPY OF THE O.A.NO.1628/2013 FILED BY THE PETITIONER BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL.** - **ANNEXURE A1 TRUE COPY OF THE ADVICE MEMO NO.SRI(3)1960/82/SW DATED 4.8.1983 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION.** - **ANNEXURE A2 TRUE COPY OF THE RELEVANT EXTRACT OF THE PROVISIONAL COMBINED LIST OF ASSISTANT ENGINEERS APPOINTED/PROMOTED FOR THE PERIOD FROM 1.1.1982 TO 30.6.1988** - **ANNEXURE A3 TRUE COPY OF THE LETTER DATED 10.1.1990 SUBMITTED BY THE APPLICANT BEFORE THE CHIEF ENGINEER (GENERAL),P.W.D.,THIRUVANANTHAPURAM.** - **ANNEXURE A4 TRUE COPY OF THE G.O(MS)NO.66/91/PW&T DATED 16.9.1991.** - **ANNEXURE A5 TRUE COPY OF THE RELEVANT EXTRACT OF THE FINAL SENIORITY LIST OF GRADUATE ENGINEERS IN THE IRRIGATION DEPARTMENT AS ON 1.4.1990.** - **ANNEXURE A6 TRUE COPY OF THE CIRCULAR NO.AD1(i)-1934/93 DATED 23.6.1993 ISSUED BY THE 3RD RESPONDENT.** - **ANNEXURE A7 TRUE COPY OF THE ORDER NO.A2-37767/93 DATED 7.12.1994 OF THE 3RD RESPONDENT** - **ANNEXURE A8 TRUE COPY OF THE ORDER NO.A3/4527/96 DATED 25.9.1996 OF THE 3RD RESPONDENT** - **ANNEXURE A9 TRUE COPY OF THE ORDER NO.A2-10755/03 DATED 15.11.2003 OF THE 3RD RESPONDENT** - **ANNEXURE A10 TRUE COPY OF THE LETTER NO.A1-28950/05 DATED 7.12.2005 OF THE 3RD RESPONDENT** - **ANNEXURE A11 TRUE COPY OF THE LETTER NO.A1-22756/2006 DATED 21.11.2006 OF THE 3RD RESPONDENT.** - **ANNEXURE A12 TRUE COPY OF THE ORDER NO.A231202/2006(1)DATED 12.1.2007 OF THE 3RD RESPONDENT** **OP(KAT).No.253 OF 2015 8** |**ANNEXURE A13**|**TRUE COPY OF THE OBJECITON DATED 6.2.2007**| |---|---| ||**SUBMITTED BY THE APPLCANT TO ANNEXURE A10**| ||**ORDER.**| |**ANNEXURE A14**|**TRUE COPY OF THE JUDGMENT DATED 9.3.2007 OF**| ||**THE HON'BLE HIGH COURT OF KERALA IN**| ||**W.P(C)NO.6689/2007**| |**ANNEXURE A15**|**TRUE COPY OF THE ORDER NO.A2-31202/2006**| ||**DATED 15.3.2007 OF THE 2ND RESPONDENT**| |**ANNEXURE A16**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**27.3.2007 SUBMITTED BY THE APPLICANT BEFORE**| ||**THE 1ST RESPONDENT**| |**ANNEXURE A17**|**TRUE COPY OF THE ORDER NO.A2-31202/2006**| ||**DATED 27.4.2007 OF CHIEF ENGINEER.**| |**ANNEXURE A18**|**TRUE COPY OF THE G.O(RT)NO.1138O7/WRD DATED**| ||**24.8.2007.**| |**ANNEXURE A19**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**15.10.2011 SUBMITTED BY THE APPLICANT**| ||**BEFORE THE 1ST RESPONDENT**| |**ANNEXURE A20**|**TRUE COPY OF THE PETITION DATED 2.4.2012**| ||**SUBMITTED BY THE APPLICANT BEFORE THE**| ||**RESPONDENTS 1 & 2.**| |**ANNEXURE A21**|**TRUE COPY OF THE LETTER NO.9609/A1/2012/WRD**| ||**DATED 24.4.2012 OF THE SECIOTN**| ||**OFFICER,WATER RESOURECES DEPARTMENT**| |**ANNEXURE A22**|**TRUE COPY OF THE APPLICATION DATED 8.5.2012**| ||**SUBMITTED BY THE APPLICANT UNDER THE RIGHT**| ||**TO INFORMATION ACT,BEFORE THE PUBLIC**| ||**INFORMATION OFFICER,OFFICE OF THE CHIEF**| ||**ENGINEER(I & A).**| |**ANNEXURE A23**|**TRUE COPY OF THE LETTER NO.A1-28590/2005**| ||**DATED 16.8.2006 OF THE CHIEF**| ||**ENGINEER,IRRIGATION AND ADMINISTRATION**| ||**ADDRESSED TO THE PRINCIPAL SECRETARY TO**| ||**GOVERNMENT.**| |**ANNEXURE A24**|**TRUE COPY OF THE MINUTES OF THE**| ||**DEPARTMENTAL PROMOTOIN COMMITTEE MEETING**| ||**(HIGHER)HELD ON 7.11.2006 FOR THE**| ||**PREPARATION OF SELECT LIST FOR PROMOTION TO**| ||**THE POST OF EXECUTIVE ENGINEER(CIVIL)UNDER**| ||**DEGREE QUOTA AND DIPLOMA QUOTA.**| |**OP(KAT).No.253 OF 2015 9**|**OP(KAT).No.253 OF 2015 9**| |---|---| |**ANNEXURE A25**|**TRUE COPY OF THE NOTIFICATION**| ||**NO.10442/A1/06/WRD DATED 11.12.2006 OF THE**| ||**1ST RESPONDENT**| |**ANNEXURE A26**|**TRUE COPY OF THE PROFORMA AND THE NOTES FOR**| ||**DISCUSSION IN THE DPC(HIGHER-TECHNICAL)FOR**| ||**PREPARATION OF SELECT LIST OF AEE TO BE**| ||**PROMOTED AS EE (GRADUATE QUOTA).**| |**ANNEXURE A27**|**TRUE COPY OF THE MINUTES OF THE**| ||**DEPARTMENTAL PROMOTION COMMITTEE MEETING**| ||**(HIGHER)HELD ON 17.3.2007 FOR THE**| ||**PREPARATION OF SELECT LIST FOR PROMOTION TO**| ||**THE POST OF EXECUTIVE ENGINEER(CIVIL)UNDER**| ||**DEGREE QUOTA.**| |**ANNEXURE A28**|**TRUE COPY OF THE PROFORMA AND THE NOTES FOR**| ||**DISCUSSION IN THE ADHOC DPC (HIGHER-**| ||**TECHNICAL)FOR PREPARATION OF SELECT LIST OF**| ||**AEE TO BE PROMOTED AS EE(CIVIL),INCLUDING**| ||**THE FIELD OF CHOICE 2007.**| |**ANNEXURE A29**|**TRUE COPY OF THE LETTER NO.A1-257659/07**| ||**DATED 5.10.2007 OF THE 3RD RESPONDENT**| |**ANNEXURE A30**|**TRUE COPY OF THE PROFORMA AND THE NOTES FOR**| ||**DISCUSSION IN THE ADHOC DEPARTMENTAL**| ||**PROMOTION COMMITTEE(HIGHER-TECHNICAL)FOR**| ||**PREPARATION OF SELECT LIST OF ASSISTANT**| ||**EXECUTIVE ENGINEER(CIVIL)TO BE PROMOTED AS**| ||**EXECUTIVE ENGINEER(CIVIL)**| |**ANNEXURE A31**|**TRUE COPY OF THE NOTIFICATION**| ||**NO.13070/A1/07/WRD DATED 27.12.2007**| |**ANNEXURE A32**|**TRUE COPY OF THE ORDER DATED 6.9.2012 OF**| ||**THIS HON'BLE TRIBUNAL IN O.A.NO.1645/2012.**| |**ANNEXURE A33**|**TRUE COPY OF THE G.O(RT)NO.652/2013/WRD**| ||**DATZED 6.6.2013.**| |**EXHIBIT P2**|**P2 - TRUE COPY OF THE REPLY STATEMENT FILED**| ||**ON BEHALF OF THE 1ST RESPONDENT IN O.A**| ||**NO.1628/2013**| |**ANNEXURE R1(A)**|**TRUE COPY OF THE NOTIFICATION NO.G.O.**| ||**(P)143/78/PW*&E DATED 7.11.1978.**| |**ANNEXURE R1(B)**|**TRUE COPY OF THE GOVERNMENT LETTER**| ||**NO.24414/B2/90/PW&T DATED 26.9.1991.**| |**EXHIBIT P3**|**P3 - TRUE COPY OF THE REJOINDER DATED**| ||**5.4.2014 FILED BY THE PETITIONER.**| **OP(KAT).No.253 OF 2015 10** **EXHIBIT P4 P4 - TRUE COPY OF ANNEXURE THE REJOINDER DATED 21.2.2015 FILED BY THE PETITIONER** **ANNEXURE A34 TRUE COPY OF THE SPECIAL RULES FOR THE KERALA ENGINEERING SERVICE. ANNEXURE A35 TRUE COPY OF THE G.O(RT)NO.610/94/IRRGN.DATED 18.6.1994. ANNEXURE A36 TRUE COPY OF THE JUDGMENT DATED 29.11.2001 OF THIS HON'BLE COURT IN O.P.NO.8002/1993. ANNEXURE A37 TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL NO.884/2002 AND CONNECTED CASES. EXHIBIT P5 P5 - TRUE COPY OF THE ORDER DATED 26.3.2015 IN O.A.1628/2013 OF THE KERALA ADMINISTRATIVE TRIBUNAL. EXHIBIT P6 P6 - TRUE COPY OF THE LETTER NO.83707/EC2/80/GAD DATED 2.8.1980 OF THE SPECIAL SECRETARY TO GOVERNMENT ADDRESSED TO ALL HEADS OF DEPARTMENTS.** **RESPONDENT'S/S EXHIBITS:** **ANNEXURE R3(A) PARA 4(A) OF KERALA ENGINEERING SERVICE RULES(CIVIL & GENERAL BRANCH)** **ANNEXURE R3(B) PARA 5(B) OF KERALA ENGINEERING SERVICE RULES(CIVIL) & GENERAL BRANCH ANNEXURE R3(C) ORDER DATED 15.03.2007 OF 3RD RESPONDENT. ANNEXURE R3(D) HON'BLE KERALA ADMINISTRATIVE TRIBUNAL IN OA NO.1645/2012.** Cms /True copy/ P.S.to Judge