N.L. Sajith S/o V Narayana Pillai v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN &** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 20TH DAY OF MARCH 2018 / 29TH PHALGUNA, 1939 OP(KAT).No. 109 of 2018** **AGAINST THE ORDER IN TA 54/2013 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **PETITIONER/ APPLICANT : -----------------------** **N.L.SAJITH S/O.V.NARAYANA PILLAI, AGED 42 YEARS, HIGHER SECONDARY SCHOOL TEACHER(ENGLISH), GOVERNMENT HIGHER SECONDARY SCHOOL, PALLICKAL, THIRUVANANTHAPURAM – 695 604.** **BY ADVS.SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.V.BHARGAVI (PANANGAD) SMT.P.A.RINUSA** ## **RESPONDENTS/ RESPONDENTS :** **--------------------------** **1. THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001.** **2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM – 695 011.** **3. THE PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, PALLICKAL, THIRUVANANTHAPURAM – 695 604.** **BY SENIOR GOVERNMENT PLEADER SRI.A.J. VARGHESE** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 20-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** **RKM** **OP(KAT).No. 109 of 2018 (Z) ----------------------------** **-2-** ## **APPENDIX** ## **PETITIONER'S EXHIBITS : -----------------------** **EXHIBIT P1 COPY OF THE ADVICE OF THE PETITIONER DATED 16/11/2004. EXHIBIT P2 COPY OF THE ORDER NO.AD.B4/41932/HSE/O4 DATED 10/01/2005 OF THE 2ND RESPONDENT. EXHIBIT P3 COPY OF THE ORDER NO.RID(1)21704/04/GW DATED 19/07/2005 OF THE PUBLIC SERVICE COMMISSION. EXHIBIT P4 COPY OF THE ORDER NO.RID(I)/21704/04/GW DATED 12/07/2005 OF THE PUBLIC SERVICE COMMISSION. EXHIBIT P5 COPY OF THE ORDER NO.AD.B4/100354/HSE/05 DATED 23/11/2005 OF THE 2ND RESPONDENT. EXHIBIT P6 COPY OF THE ORDER NO.AD.B4/28375/HSE/05 DATED 15/11/2005 OF THE 2ND RESPONDENT. EXHIBIT P7 COPY OF THE LETTER DATED 07/12/2005 OF THE PRINCIPAL OF GOVT. HIGHER SECONDARY SCHOOL. EXHIBIT P8 COPY OF THE ARGUMENT NOTES SUBMITTED BEFORE THE GOVERNMENT DATED 06/02/2006. EXHIBIT P9 COPY OF THE G.O(RT) NO.1807/06/G.EDN. DATED 04/05/2006 OF THE GOVERNMENT.** ## **PETITIONER'S ANNEXURES :** **------------------------** **A1 : COPY OF THE W.P.(C).NO.14472/2006 (WHICH IS CONVERTED AS T.A.NO.54/2013). A2 : COPY OF THE ORDER DATED 08.11.2017 IN T.A.NO.54/2013 IN W.P.(C).NO.14472/2006.** ## **RESPONDENTS' ANNEXURES : NIL** **------------------------** **TRUE COPY** **PA TO JUDGE** **RKM** ## **K. SURENDRA MOHAN & ANNIE JOHN, JJ.** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= ## **O.P. (KAT) No. 109 of 2018** =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 20[th] day of March, 2018** ## **JUDGMENT** ## _**Surendra Mohan, J.**_ The petitioner, who was the applicant before the Kerala Administrative Tribunal, Trivandrum (the 'KAT', for short) in T.A.No.54 of 2013 is before us challenging the order dated 08.11.2017 passed thereon. As per the impugned order, his application has been dismissed. 2. The application was filed by the petitioner initially as W.P.(C).No.14472 of 2006 before this Court and the same was later on transferred to the KAT and renumbered as T.A.No.54 of 2013. The grievance of the petitioner was against Ext.P9 order passed by the Government on a representation submitted by him. He is a person, who was recruited by the Kerala Public Service Commission ('PSC', for short) as a Higher Secondary School Teacher ('HSST', for short). He was initially advised for appointment as per Ext.P1 dated 16.11.2004. On the basis of the said advice, he was appointed on 10.01.2004. He joined service on 28.01.2005. While so working, the advice issued to him was cancelled by the PSC as per Ext.P3 dated 19.07.2005. The O.P. (KAT) No. 109 of 2018 2 reason for cancellation was that pursuant to the direction of this Court in a batch of writ petitions, 16 more candidates had to be additionally included in the rank list. As a result of such inclusion, the rank list had to be drawn up afresh including the said persons. Consequently, the advice of the petitioner was cancelled and he was re-advised to the post by Ext.P4 dated 12.07.2005. On the basis of Ext.P4, he was reappointed and joined the post on 08.12.2005. The case of the petitioner is that he had been relieved on 02.05.2005 and he had joined duty on 03.12.2005. However, the Principal had not permitted him to sign the attendance register for the reason that the original order had not been received. 3. According to the petitioner, his advice was cancelled only with effect from 11.05.2005. Therefore, he was entitled to have his service regularised with effect from 11.07.2005. For the said purpose, he submitted a representation to the Government. The same was considered by the Government and was rejected by Ext.P9. It was challenging Ext.P9 that the petitioner had approached this Court initially by filing the writ petition that was later on transferred to the KAT. 4. The claim of the petitioner was contested by the respondents. The KAT considered the respective contentions, found that since the advice initially granted to the petitioner had been O.P. (KAT) No. 109 of 2018 3 cancelled by subsequent proceedings, he was not entitled to claim any benefit on the basis of the service rendered by him prior to the date of such re-advice. Since the Government had granted him salary for the period that he had actually worked it was found that he was not entitled to any further relief in the matter. Accordingly, the application has been dismissed. The aggrieved petitioner is before us. According to Adv.M.R. Anison, who appears for the petitioner, the petitioner had been initially advised for appointment by Ext.P1 and he was actually appointed on 10.01.2005. He had joined service on 28.01.2005 and had been working continuously there. Though it is true that his advice had been cancelled by Ext.P3, such cancellation was only with effect from 11.07.2005. Since he was re-advised on 12.07.2005, it is contended that his continuity in service was not affected. He had been relieved on 02.12.2005 and rejoined duty on 03.12.2005. However, the Principal had not permitted him to sign the attendance register up to 08.12.2005. Placing reliance on Rule 27(c) of the Kerala State and Subordinate Service Rules, 1958 ('KS&SSR', for short), it is contended that the seniority of an appointee has to be determined from the date of first effective advice of the person. In the present case, according to the learned counsel, the date of first effective advice of the petitioner is 16.11.2004. Though the same was O.P. (KAT) No. 109 of 2018 4 cancelled, the cancellation was only with effect from 11.07.2005. Immediately on the next day, he was re-advised with effect from 12.07.2005. Therefore, it is contended that there is no justification for denying the period of his service at least from the date of the second re-advice. The counsel also places reliance on the decision of a Division Bench of this Court in _**Labour Commission v. Joshua [2006 (1) KLT 241 (DB)]**_ in support of his contentions. We have heard the Senior Government Pleader Sri. A.J. Varghese who appears for the respondents also. 5. The facts in this case are not disputed. Admittedly, the petitioner was initially advised for appointment by the PSC as per Ext.P1. He was also appointed on the basis of the said advice and he had joined service on 28.01.2005. However, his earlier advice was cancelled, since this Court had held that the exclusion of 16 persons from the list that was prepared was wrong and on implementing the consequential direction to accommodate the said persons, the rank list had to be drawn up afresh. Since the earlier advice was cancelled as defective, no claim on the basis thereof could be put forward by the petitioner, for any purpose whatsoever. This is for the reason that the advice of the petitioner was wrong and had been held to be wrong by this Court and the said judgment has also become final. The Cancellation of the advice originally O.P. (KAT) No. 109 of 2018 5 granted to the petitioner was therefore to correct a mistake. The service put in by the petitioner on the strength of the wrong advice cannot have any effect. Therefore, it cannot be taken into account. However, since the petitioner had worked on the strength of the earlier advice, the Government has in Ext.P9 found the petitioner entitled to the salary for the said period. We are not satisfied that the petitioner is entitled to any other benefits, on the said count. 6. According to the counsel for the petitioner, the petitioner was entitled to claim the benefit of the service from 12.07.2005 to 08.12.2005. According to the learned counsel, going by Rule 27(c) of the KS&SSR **,** when there are more than one advice in the case of a candidate, his seniority would have to be reckoned on the basis of the advice that is earliest at any point of time. In support of the above contention, the learned counsel placed reliance on the decision reported in _**[2006 (1) KLT 241 (DB)] (supra)**_ particularly, paragraphs 20 to 24 thereof. We have been taken through the said judgment. We notice that what was involved in the said case was a situation where candidates had been appointed initially by the PSC, but had been terminated for want of vacancies. They had therefore been reappointed again. Therefore, there was nothing wrong with the earlier advice on the basis of which they had been appointed. Their services had to be discharged only for the O.P. (KAT) No. 109 of 2018 6 reason that there were no vacancies. In sharp contrast, in the present case, initially the appointment was erroneous. The error was directed to be corrected by this Court. Consequently, 16 candidates had to be included in the rank list by re-working the ranking position. It was the said exercise that has resulted in the termination of the petitioner. Therefore, in the present case, the appointment of the petitioner was on the basis of an advice made wrongly by the PSC. The said wrong advice was directed to be corrected by this Court and has also been corrected by the PSC. Once the mistake is corrected, the parties have to be treated as not having secured any advantage on the basis of the exercise that was done earlier on the basis of the mistake. In the above view of the matter, we are not satisfied that the petitioner is entitled to claim any benefit on the basis of the service that he had rendered on the strength of the initial wrong advice made by the PSC. Taking into account the fact that he had actually worked, the Government have ordered that his salary be paid for the said period. Therefore, we are not satisfied that any prejudice has been caused to the petitioner by virtue of cancellation of his earlier advice. The KAT has held that he was not entitled to the benefit of his earlier service. We do not find any reason to take a different view of the matter. O.P. (KAT) No. 109 of 2018 7 For the foregoing reasons, this OP(KAT) fails and is dismissed. Sd/- **K. SURENDRA MOHAN JUDGE** Sd/- **ANNIE JOHN JUDGE** True Copy PA to Judge RKM