Mathew Thomas v. State of Kerala and Others

W. P. (C) No. 41092/2023 ..1.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **THURSDAY, THE 21[ST] DAY OF MARCH 2024 /1[ST] CHAITHRA, 1946 WP(C) NO. 41092 OF 2023** ## **PETITIONER:** **MATHEW THOMAS, AGED 54 YEARS, S/O. THOMAS, EZHUTHUPALLICKAL (H), MEVIDA P.O., PALA, KOTTAYAM, WORKING AS HSST(POLITICAL SCIENCE), SYRIAN CHRISTIAN HIGHER SECONDARY SCHOOL (03025), CHELLACKADU P.O., RANNI, PIN-686 573.** **BY ADV. SRI. RAJU JOSEPH (SENIOR) ALONG WITH ADV. SRI. J. JULIAN XAVIER, ADVS. M/S. FIROZ K.ROBIN, ROY JOSEPH, ANIES MATHEW, NIRMAL KURIEN EAPEN, MARTIN K.J.** ## **RESPONDENTS:** - **1 STATE OF KERALA, REP.BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM, PIN – 695004.** - **2 DIRECTOR OF GENERAL EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM, PIN – 695001.** - **3 REGIONAL DEPUTY DIRECTOR, OFFICE OF REGIONAL DEPUTY DIRECTOR, CHENGANNUR, PATHANAMTHITTA, PIN – 689121.** - **4 THE MANAGER, SYRIAN CHRISTIAN HIGHER SECONDARY SCHOOL (03025), CHELLAKADU P.O., RANNI,AND VICAR PAZHAVANGADIKKARA IMMANUEL MARTHOMA CHURCH, PAZHAVANGADI P.O., PATHANAMTHITTA, PIN-689 677.** W. P. (C) No. 41092/2023 ..2.. - **5 BETTY P. ANTO, THENGUMTHARAYIL (H), PAZHAVANGADY P.O., RANNY, PATHANAMTHITTA, WORKING AS HSST (MATHEMATICS), SYRIAN CHRISTIAN HIGHER SECONDARY SCHOOL (03025), CHELLACKADU P.O., RANNI, PIN-689 677.** **SMT.K.G.SAROJINI, G.P. FOR R-1 TO R-3.** **ADV. SRI. JACOB P. ALEX, FOR R-4** **ADV. SRI. S. SUBHASH CHAND, FOR R-5** **ADVS. M/S.JOSEPH P. ALEX, AMAL AMIR ALI, MANU SANKAR P., S. JAYAKRISHNAN SUKUMARAN NAIR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.3.2024, THIS COURT ON 21.3.2024 DELIVERED THE FOLLOWING:** W. P. (C) No. 41092/2023 ..3.. MOHAMMED NIAS C. P. , J. ========================= W. P. (C) No. 41092 of 2023 ========================= Dated this the 21[st] day of March, 2024 ## J U D G M E N T The petitioner challenges the correction carried out in the seniority list maintained from 1998, by which the seniority of the petitioner was lowered in preference to the 5[th] respondent on a complaint made in the year 2023. 2. The undisputed facts are that the petitioner and the 5[th] respondent entered service on 24.8.1998, while the petitioner entered as HSST (Jr.), and the 5[th] respondent entered as HSST. The petitioner submits that, as per the seniority list in place from 1998, the petitioner was given a position over the 5[th] respondent, which was followed up to the issuance of the seniority list on 1.1.2018 (Ext.P-1) up till 2023. On 31.5.2023, when a vacancy of Principal occurred in the 4[th] respondent's school, pursuant to the retirement of one Leena Anie Abraham on attaining superannuation, the petitioner, being the next candidate in seniority, was expecting an appointment. However, the 4[th] respondent appointed the 5[th] respondent as Principal on an ad-hoc W. P. (C) No. 41092/2023 ..4.. basis and submitted a proposal to the 3[rd] respondent for approval. Based on the complaint given by the 5[th] respondent, the 4[th] respondent had prepared a seniority list on 9.2.2023 varying Ext.P-1 list and giving seniority to the 5[th] respondent over the petitioner, thus unsettling the seniority position that existed for more than two decades back. 3. The petitioner had given a complaint as Ext.P-2 dated 3.4.2023 before the 3[rd] respondent pointing out the above. The 3[rd] respondent conducted a hearing and passed orders, which forced the petitioner to file WP(C). No.19180/2023, which was disposed of by this Court as per Ext.P-3 judgment, directing the 3[rd] respondent to consider and pass orders in the light of the judgment of this Court in _**Pavithran v. State of Kerala** [2009 (4) KLT 20 (FB)]._ The 5[th] respondent had filed a review petition, R.P.No.678/2023, against Ext.P-3 judgment, which was also disposed of on 4.7.2023, directing to rehear the parties and to pass final orders (Ext.P-4). The 3[rd] respondent passed Ext.P-5 order dated 7.7.2023 rejecting his request and without following the directions given by this Court in Exts.P-3 & P-4. Then, the petitioner again filed WP(C). No. 25534/2023. This Court disposed of the same on 13.10.2023, holding that Ext.P-5 order is not in tune with the directions passed by this Court and W. P. (C) No. 41092/2023 ..5.. directing to rehear the petitioner and the 5[th] respondent and to pass final orders in terms of the earlier directions. The judgment dated 13.10.2023 in WP(C). No. 25534/2023 is marked as Ext.P-6. Again, the 3[rd] respondent passed an order, without reference to the earlier directions, by Ext.P-7 dated 21.11.2023. 4. The petitioner submits that Ext.P-7 is _per se_ illegal and that new contentions were taken that there is no seniority list in existence before 1.1.2018 and that the 5[th] respondent had given a complaint, on realising the mistake, to be corrected by the Manager. Yet another contention was raised that, at the time of publication of the seniority list, the 5[th] respondent was undergoing treatment for cancer, and therefore, she could not pay any attention to the said list. The petitioner submits by producing the counter affidavit filed in WP(C). No. 25534/2023 (Ext.P-8), that these are all afterthoughts as none of the contentions figured in the earlier counter affidavit filed. The revised seniority list showing the 5[th] respondent as senior is produced herewith and marked as Ext.P-10. The appointment order of the 5[th] respondent is shown as Ext.P-11. The petitioner, therefore, challenges Exts.P-7, P-10 & P-11 and also seeks a direction to forthwith appoint him as the Principal of the W. P. (C) No. 41092/2023 ..6.. 4[th] respondent's school. 5. A counter affidavit has been filed by the 4[th] respondent-Manager in this case, contending that there was no seniority list in place till Ext.P-1 list in the year 2018. It is also the contention that the petitioner was initially appointed as HSST (Jr.) while the 5[th] respondent was appointed as HSST, and therefore, for promotion as Principal, one who is senior in the category of HSST must be reckoned and since the 5[th] respondent was appointed as HSST, she should be treated as senior. It is also the argument that, the judgment in _**Pavithran's**_ case supra has no application as it was a case of unsettling the seniority after 10 years without there being a challenge to the order determining the seniority. 6. The 5[th] respondent has also filed a counter stating that she was appointed as HSST while the petitioner was appointed only as HSST(Jr.) on 24.8.1998. It was further stated that there was no mandate to maintain a seniority list and that, when she realised that there was a mistake in Ext.P-1 list, the same was sought to be corrected in the year 2023 when there arose a vacancy of Principal. It is also argued that the judgment in _**Pavithran's**_ case supra was one concerning the KER provisions of Chapter XIV(A), which has no application to Chapter XXXII. Reliance is W. P. (C) No. 41092/2023 ..7.. also placed on the judgment of this Court in _**Ramesan and Ors. v. Manoj Kumar K. and Ors.** [2019 (3) KHC 942],_ _**Manager, Nanminda Higher Secondary School, Kozhikode v. Director of Higher Secondary Education, Tvm and Ors.** [2015 KHC 513]_ . It is also the argument that the petitioner was trying to take advantage of the minor mistake that crept into Ext.P-1 seniority list and that, since both of them joined the school on the very same date, the 5[th] respondent was working in a higher category from whom the Principal is to be promoted, there cannot be any doubt on the seniority of the 5[th] respondent. 7. Heard Sri. Raju Joseph learned senior counsel, instructed by Sri. Julian Xavier Joseph, learned counsel, appearing for the petitioner, Sri. Jacob P. Alex, learned counsel, appearing for the 4[th] respondentManager, Sri. Subhash Chand learned counsel appearing for the 5[th] respondent party respondent and Smt. Sarojini K. G., learned Senior Government Pleader, appearing for respondents 1 to 3. 8. The learned senior counsel, Sri. Raju Joseph argues that the seniority of the petitioner was not disputed from 1998 till 2023, and therefore, the decision to revise the same in the year 2023 is clearly hit by the Theory of sit back. He says the judgment in _**Pavithran's**_ case supra W. P. (C) No. 41092/2023 ..8.. states so in unmistakable terms. He also argues that Ext.P-1 is a list circulated among all the teachers and, after obtaining their signatures, was countersigned by the Manager, the Principal, and the educational authorities, and therefore, it cannot be said that there is no requirement to maintain a seniority list in Chapter XXXII and therefore, the same has no effect. It was the same Ext.P-1 list that was followed for the appointment of the previous Principal. The 5[th] respondent did not object to Ext.P-1 even though it was circulated among all the teachers, as she did not have a dispute concerning the seniority of the petitioner assigned in the year 1998. It is also argued that the argument that there is no seniority list to be maintained for the appointment of Principal under Chapter XXXII cannot be accepted at all as the same would enable the Manager to make appointments by fixing seniority in the manner he wants and the same cannot be accepted. 9. He also points out the counter affidavit filed by the 3[rd] respondent educational officer, which says that every year, the seniority list has to be reviewed and maintained. He makes specific reference to Ext.P-9 in the earlier counter affidavit filed, which did not have the case presently put forth by the Manager. It is also his submission W. P. (C) No. 41092/2023 ..9.. that Chapter XXXII did not exclude in its entirety the provisions of Chapter XIV and only those provisions contained in Chapter XXXII can be treated to have displaced the provisions of Chapter XIVA. Since Ext.P-1 is a seniority list acted upon, and it was changed only to oust the petitioner from being appointed as the Principal, the belated revision of the seniority list is clearly against all the principles of law and the judgments in _**Pavithran's**_ case supra as well as in _**Usha Devi v. State of Kerala** [2002 (1) KLT 615]._ 10. Sri. Jacob P. Alex learned counsel appearing for the Manager, submits that there is no provision at all to maintain a seniority list as is required in Chapter XIVA, where the seniority list is to be maintained to effect promotion. It is his further argument that Chapter XXXII is a selfcontained code that speaks of the method of appointment of the Principal, and the appointment has to be effected from among the HSST, namely, Category 2 mentioned in the said Rule. The petitioner was admittedly appointed in the year 1998 as HSST (Jr.) while the 5[th] respondent was appointed as HSST, and the assignment of seniority, which is reflected in Ext.P-1, is obviously a mistake. It is also his argument that the theory of Sit Back on the ratio of _**Pavithran's**_ case supra will apply only to cases W. P. (C) No. 41092/2023 ..10.. where there has to be a determination of seniority by some authority, and if the same is left unchallenged, it applies. Thus, according to him, since there is no provision mandating the maintenance of a seniority list, the judgment in _**Pavithran's**_ case supra, which dealt with a case under Chapter XIVA of the KER, does not have any application. Since the question of ascertainment of seniority arises only at the time of promotion to the post of Principal, Ext.P-1 of the year 2018 does not confer any benefit on the petitioner. He also relies on the judgments of this Court in _**Manager, Nanminda Higher Secondary School, Kozhikode v. Director**_ _**of Higher Secondary Education, Tvm and Ors.** [2015 KHC 513],_ _**Ramesan and Ors. v. Manoj Kumar K. and Ors.** [2019 (3) KHC 942],_ _**Girija Kumar v. Rajitha** [2019 (4) KLT 315]_ _**, Rajeswari Devi v. State of Kerala** [2023 (2) KHC 589]_ to support his arguments in the aforementioned lines. 11. Learned counsel, Sri. S.Subhash Chand, appearing for the 5[th] respondent, apart from reiterating the contentions stated in the counter affidavit, submits that since Chapter XXXII excludes the provisions in Chapter XIVA of the KER, no reliance can be placed on the judgment in _**Pavithran's**_ case supra or the provisions in Chapter XIVA which insists W. P. (C) No. 41092/2023 ..11.. for maintaining a seniority list. It is also argued, based on the judgment in _**Francina Antony and Anr. v. State of Kerala and Ors.** [2015 KHC 305]_ , that the delay of even 5 years was not taken as one that enables a person to get the benefit of the Theory of Sit Back. ## 12. Heard learned counsel on either side 13. As stated above, the undisputed facts are that both the petitioner and the 5[th] respondent were appointed on 24.8.1998 as HSST (Jr.) and HSST, respectively. The counter affidavit filed by the educational authority (R-3) is in tune with the contention of the petitioner that a seniority list was already all along maintained and that the petitioner was shown as senior to the 5[th] respondent, is to be accepted in the absence of anything to the contrary. At any rate, Ext.P-1 was the list that was circulated between the parties, among all the teachers and countersigned by the Principal, the Manager and the educational authorities, and it was also acted upon, and it was from the same list that seniority was determined while making appointment in the previous year to the post of Principal. At any rate, Ext.P-1 was a representation given by the educational agency that the petitioner is senior to the 5[th] respondent and the same was known to all the teachers, including the 5[th] respondent and W. P. (C) No. 41092/2023 ..12.. the 5[th] respondent had raised no objection to the assignment of the seniority or taken any steps to challenge the same during the period 2018. The attempt on the part of the 5[th] respondent to revise the seniority list, which is stated to be in existence from 1998 onwards, was made only in the year 2023. It is also seen that even in Ext.P-10 list, which is revised, the same was circulated among all the teachers, and it bears the countersignature of the Manager and the Principal. It is not clear that it was intimated to the educational authorities. The petitioner had noted his objections against him being placed lower than the 5[th] respondent. There is no reason to think that the seniority list was published only in the years 2018 and 2023, more so in the light of the counter affidavit filed by the 3[rd] respondent Regional Deputy Director (RDD), the authority to approve the appointment of the Principal. The case of the petitioner tallies with that of the RDD, as is clear from the counter statement filed by the RDD, which is extracted hereunder: “ _In the writ petition the petitioner submitted the previously approved seniority list of the school. In the said seniority list by mistake the petitioner was included as senior than the 5[th] respondent. But there is no provision in the law to repeat the mistake once the wrongly allotted seniority list is re-examined. The seniority list should be updated and approved every year. Therefore, the error found during the current examination has been fixed by this office.”_ W. P. (C) No. 41092/2023 ..13.. 14. The argument of the learned counsel for the Manager, as well as the 5[th] respondent (Principal-in-charge), is that since there is no statutory prescription in Chapter XXXII, the provisions of Chapter XIVA that deals with the requirement of maintaining a seniority list and as to why the same has to be maintained, namely for effecting promotion, it cannot be imported to Chapter XXXII which did not have any corresponding provision. Even if the same is true, the fact that a seniority list was maintained in the year 2018, as is clear from Ext.P-1, and that the same was acted upon while appointing the previous principal and Ext.P-10, the revised seniority list of the year 2023, read along with the counter of the educational authority shows that a seniority list has to be maintained, as otherwise disputes will certainly arise in the case of promotion of the HSST to the post of Principal. It is nobody's case that the Management can appoint a Principal of their choice disregarding seniority except, possibly, in the case of a minority institution. That being so, when the 5[th] respondent had accepted the seniority maintained in Ext.P-1 and, it was sought to be corrected after 5 years. Even if Ext.P-1 is taken as the seniority list maintained for the first time, it vitally affects the rights of the petitioner whose seniority was changed from Ext.P-1. The Theory of W. P. (C) No. 41092/2023 ..14.. sit back applies in service jurisprudence with all vigour. It cannot be said that the dictum in _**Pavithran's**_ case supra has to be confined to the cases of KER and not to Chapter XXXII, which did not contain a provision for the maintenance of the seniority list. It must be taken that Chapter XXXII only displaces those provisions incorporated in it and not the entire provisions of the KER. The earlier Division Bench did mention that there is no provision equivalent to Rule 35 of Chapter XIVA of the KER. But, having regard to the fact that seniority is vital for effecting promotion to the post of Principal under Chapter XXXII itself, to hold that there need not be a seniority list nor an assignment of seniority, and it need be considered only at the time of appointment of Principal, will be giving a long handle to the Management to tinker with the seniority of HSSTs and the same cannot be countenanced in law. 15. I hold so more in the facts of the case when Ext.P-1 had been circulated among the Teachers and countersigned by the Principal, the Manager and the educational authority and the same was acted upon while making previous appointments. To discredit Ext.P-1, on the ground that it was not one made in accordance with the rules of Chapter XXXII, will certainly work out injustice. None of the decisions cited on behalf of W. P. (C) No. 41092/2023 ..15.. the Manager or the 5[th] respondent directly deal with any of the above issues. I am not inclined to accept the contention on behalf of the learned counsel, Sri. Jacob P. Alex that, the Theory of Sit Back would apply only in cases where there was a previous determination of seniority and there was an option to challenge the same. 16. As held in all the judgments noted above, the theory of sit-back only means that the settled seniority cannot be unsettled after the lapse of a reasonable period. A person who enjoyed a seniority position for a long time is entitled to sit back, and allowing a person who slept over his right to rake up a stale claim while tinkering with the seniority list is certainly not in the interest of administration as well. Such belated challenges to the settled position of seniority cannot be permitted as the fence-sitters cannot be allowed to raise the dispute or challenge the validity of the seniority position. Each person should be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after a lapse of a number of years. This doctrine has been applied uniformly in the context of a contention of delay and laches on the part of any person who makes an attempt to prosecute a claim, which, if accepted, would result in a situation where _inter se_ positions that have W. P. (C) No. 41092/2023 ..16.. been settled over the years will have to be revised. When Ext.P-1 is admittedly acted upon, any variation to the seniority from Ext.P-1 after at least 5 years, even if the case of respondents 4 and 5 are accepted, cannot be justified. 17. Under the above circumstances, the Writ Petition is allowed. The impugned orders are quashed. There will be a direction to the 4[th] respondent to consider the seniority of the petitioner and the 5[th] respondent in terms of Ext.P-1 seniority list, without reference to Ext.P-10 seniority list, and make appointment to the post of Principal within a period of 3 weeks from today and send it for the approval of the 3[rd] respondent, who will pass orders on the question of approval in the light of the observations in the judgment within 3 weeks thereafter. The Writ Petition is allowed, as above. Sd/- MOHAMMED NIAS C. P., JUDGE MMG W. P. (C) No. 41092/2023 ..17.. ## **APPENDIX OF WP(C).NO.41092/2023** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE UNDISPUTED SENIORITY LIST PUBLISHED ON 01.01.2018 BY THE 4TH RESPONDENT AND SIGNED BY THE PETITIONER AS WELL AS 5TH RESPONDENT. EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 03.04.2023 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 14.06.2023 IN W.P(C) NO.19180/2023. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 04.07.2023 IN RP NO. 678/2023 IN W.P (C) NO. 19180/2023 EXHIBIT P5 TRUE COPY OF THE ORDER NO.1614/C4/2023/RDD/CNGR DATED 07.07.2023 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 13.10.2023 IN W.P(C) NO. 25534/2023 EXHIBIT P7 TRUE COPY OF THE ORDER NO. RDD/HSE/CNGR/2154/2023-C4 DATED 21.11.2023 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P8 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 05.09.2023 FILED BY THE 5TH RESPONDENT IN W.P(C) NO.25534/2023 EXCLUDING EXHIBITS. EXHIBIT P8(A) COPY OF THE PETITION FILED ALONG WITH EXT.P8 EXHIBIT P9 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 4TH RESPONDENT DATED 16.09.2023 IN WP(C) NO.25534/2023** W. P. (C) No. 41092/2023 ..18.. **EXHIBIT P10 COPY OF THE SENIORITY LIST AS ON 01.01.2023 PRODUCED ALONG WITH EXT.P9** **EXHIBIT P11** **COPY OF THE APPOINTMENT ORDER NO.M2/20232024 DATED 01.06.2023 ISSUED BY THE 4TH RESPONDENT.** ## **RESPONDENTS' EXHIBITS:** - **EXHIBIT R5(A) A TRUE COPY OF THE ORDER OF MY APPOINTMENT AS PRINCIPAL OF THE ABOVE SCHOOL WITH EFFECT FROM 01.06.2023 THUS MADE BY RESPONDENT NO.4** - **EXHIBIT R5(B) A TRUE COPY FOR THE LETTER DATED 21.01.2022 THUS SUBMITTED BY ME BEFORE RESPONDENT NO. 4** **EXHIBIT R5(C) A TRUE COPY OF THE APPROVED SENIORITY LIST OF HIGHER SECONDARY SCHOOL TEACHER AND HIGHER SECONDARY SCHOOL TEACHER (JUNIOR) AS ON 01.01.2023 WHICH HAS BEEN APPROVED BY RESPONDENT NO.3** - **EXHIBIT R5 (D) A TRUE COPY OF THE RULING REPORTED AS RAMESAN AND OTHERS V. MANOJ KUMAR K AND OTHERS 2019 3 KHC 942 THUS PASSED BY THIS HONOURABLE COURT** - **EXHIBIT R5(E) A TRUE COPY OF THE SAID RULING IN MANAGER, NANMINDA HIGHER SECONDARY SCHOOL, KOZHIKODE V. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM AND OTHERS 2015 KHC 513** **EXHIBIT R5(F) A TRUE COPY OF THE DISCHARGE SUMMARY DATED 23.08.2018 ISSUED FROM THE CHRISTIAN MEDICAL COLLEGE, VELLORE**