O.P.(KAT) No. 1821 of 2013 (Z)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936 ## O.P.(KAT).No. 1821 of 2013 (Z) AGAINST THE ORDER IN TA 1258/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM, DATED 11-01-2013 ## PETITIONERS/RESPONDENTS 4 AND 5: 1. R.BELSY GLORY STATIONERY INSPECTOR, REGIONAL STATIONERY OFFICE THIRUVANANTHAPURAM. 2. R.SASIKALA NOW ON DEPUTATION TO AGRICULTURE WORKERS WELFARE BOARD THIRUVANANTHAPURAM. BY ADVS.SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR SMT.HENA BAHULEYAN ## RESPONDENTS/APPLICANT AND RESPONDENTS 1 TO 2: 1. K.G.LALITHAMBIKA STATIONERY INSPECTOR, REGIONAL STATIONERY OFFICE SHORNNUR, 679 121. 2. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001. 3. CONTROLLER OF STATIONERY P.M.G.JUNCTION, THIRUVANANTHAPURAM-695 033. R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R1 BY ADV. SMT.N.SANTHA R1 BY ADV. SRI.K.A.BALAN R1 BY ADV. SRI.PETER JOSE CHRISTO R1 BY ADV. SRI.S.A.ANAND R1 BY ADV. SMT.L.AMMU PILLAI R2-R3 BY SR. GOVERNMENT PLEADER SRI.VIJU THOMAS THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 02-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(KAT).No. 1821 of 2013 (Z) APPENDIX ## PETITIONERS' EXHIBITS ANNEXURE-A: THE PHOTOSTAT COPY OF THE T.A.NO.1258/2012 BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT-P1: TRUE COPY OF THE ORDER NO.A2-26156/83 DATED 21.11.1984 ISSUED BY THE 2ND RESPONDENT. EXHIBIT-P2: TRUE COPY OF THE ORDER NO.GL.532/88 DATED 10.2.1989 ISSUED BY THE 2ND RESPONDENT. EXHIBIT-P3: TRUE COPY OF THE RELEVANT PORTION OF THE GRADATION LIST OF U.D.CLERKS (INCLUDING U.D.STORE KEEPER AND U.D.ASSISTANT STORE KEEPER) AND L.D.CLERKS (INCLUDING L.D.STORE KEEPER, CLERK/STORE KEEPER, ASSISTANT STORE KEEPER AND STORE CLERKS). EXHIBIT-P4: TRUE COPY OF THE ORDER NO.E2-4179/87 DATES 2.4.1987 OF THE 2ND RESPONDENT. EXHIBIT-P5: TRUE COPY OF THE LETTER NO.25771/H2/97 DATED 24.11.1997 TO THE 2ND RESPONDENT BY 1ST RESPONDENT. EXHIBIT-P6: TRUE COPY OF THE JUDGMENT DATED 22.8.2005 IN O.P.NO.22542/97. EXHIBIT-P7: TRUE COPY OF THE OBJECTION FILED BY PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT-P8: TRUE COPY OF THE ORDER DATED 22.7.2006 OF THE 1ST RESPONDENT. ANNEXURE-B: THE PHOTOSTATE COPY OF THE COUNTER AFFIDAVIT DATED 24.10.2008 IN W.P.(C) NO.23438/2006 FILED BY THE 5TH RESPONDENT. ANNEXURE-C: THE PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT DATED 7.4.2008 IN W.P.(C) NO.23438/2006 FILED BY THE 1ST RESPONDENT. ANNEXURE-D: THE PHOTOSTAT COPY OF THE ORDER DATED 11.1.2013 IN T.A.NO.1258/2012 PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM. EXT.P9: THE PHOTOSTAT COPY OF THE EXTRACT OF THE GRADATION LIST OF U.D.CLERKS IN THE STATIONARY DEPARTMENT AS ON 1.4.1987. EXT.P10: THE PHOTOSTAT COPY OF THE SELECT LIST OF OFFICERS FOR PROMOTION TO THE CATEGORY OF ASSISTANT CONTROLLER OF STATIONARIES IN THE STATIONARY DEPARTMENT G.O.(P)NO.180/09/H.EDN. DATED 28.10.2009 INCLUDING THE NAME OF THE FIRST RESPONDENT. ## RESPONDENTS' EXHIBITS: NIL. // TRUE COPY // P.A. TO JUDGE ## **ANTONY DOMINIC & ANIL K. NARENDRAN, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **O.P.(KAT)No.1821 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of December, 2014 ## **JUDGMENT** ## _**Antony Dominic, J.**_ This original petition is filed by respondents 4 and 5 in TA 1258/12 on the file of the Kerala Administrative Tribunal which was allowed quashing Ext.P8 order passed by the Government. The facts of the case are that the petitioners herein were appointed in the Kerala Stationary Subordinate Service as Lower Division Clerks in Trivandrum district with effect from 11.1.1984 and 5.11.1984, which are the effective dates of advice by the Public Service Commission. The first respondent was similarly appointed in Ernakulam district with effect from 16.1.1984. By Ext.P1 order, dated 21.11.1984, on a request made by the first respondent she was allowed inter district transfer to Kottayam district where she joined as L.D.Clerk on 22.11.1984. 2. Although the first proviso to Rule 27(a) of Part III KS and SSR was introduced by Government Order dated 13.1.1976 resulting O.P.(KAT)No.1821 OF 2013 : 2 : in forfeiture of seniority in the case of inter district transfers on request, when the draft seniority list of L.D.Clerks as on 1.4.1987 was published, the first respondent was assigned Serial No.68 and the petitioners were assigned seniority at Serial Nos.73 and 75. The seniority list was finalised by Ext.P2, dated 10.2.1989 where the seniority position as stated in the draft was maintained. Similarly, after inviting objections, seniority in the cadre of U.D.Clerks, to which cadre all were promoted in the meanwhile, was also finalised by Ext.P3, dated 10.2.1989, where the first respondent and the petitioners were assigned seniority at Serial Nos.73, 76 and 77 respectively. Though in Ext.P3 the first respondent's name was included on a provisional basis, from Ext.P4 we find that her services in the cadre of U.D.Clerk was regularised with effect from 31.12.1986 by order dated 2.4.1987 and therefore her inclusion on a provisional basis in Ext.P3 order was of no consequence. 3. Subsequently, by Ext.P5 dated 24.11.1997, Government clarified that in view of G.O.4/61/PD, the first respondent, being an inter district transferee on request, will get seniority only from date of her joining at Kottayam. This order shows that the same was issued at the instance of the Controller of the Department and not at the instance O.P.(KAT)No.1821 OF 2013 : 3 : of the petitioners. First respondent challenged Ext.P5 order before this Court in Writ Petition No.22542/97. The petitioners got themselves impleaded in that writ petition as additional respondents by order dated 4.7.2002. The writ petition was disposed of by Ext.P6 judgment dated 22.8.2005 directing that Ext.P5 shall be treated as a notice and permitting the first respondent to file objections to Ext.P5. Accordingly, she filed Ext.P7 objections. Finally, after hearing her, Government issued Ext.P8 order dated 22.7.2006 stating that she is entitled to seniority only from the date of joining in Kottayam district. 4. First respondent challenged Ext.P8 in Writ Petition No.23438/06. On the constitution of this Kerala Administrative Tribunal, the case was transferred to the Tribunal and was renumbered as T.A.1258/12. The Tribunal, by its order, dated 11.1.2013, allowed the T.A. and set aside Ext.P8. In its order, two reasons are stated by the Tribunal. One is that the first respondent is entitled to the benefit of sit back and that therefore at this distance of time, petitioners cannot impugn the seniority assigned to the first respondent. Second reason assigned by the Tribunal is that since State is the unit of appointment for the U.D.Cs, even if inter district transfer is allowed at the request of O.P.(KAT)No.1821 OF 2013 : 4 : the employee, that cannot result in forfeiture of seniority. It is this order which is impugned in this Original Petition. 5. We heard the learned Senior Counsel for the petitioners, the learned counsel for the first respondent and the learned Government Pleader appearing for the official respondents. 6. As we have already stated, the first reason stated by the Tribunal is that sit back theory applies to the case in question. To support this conclusion, the Tribunal has followed the principles laid down in Supreme Court judgment in _**K.R.Mudgal v. R.P.Singh (AIR 1986 SC 2086)**_ and the Full Bench judgment of this Court in . _**Sanjeev.N.J. v. Union of India and others (2009 (4) KHC 627)**_ 7. According to the learned Senior Counsel for the petitioners, this finding of the Tribunal is incorrect. It was contended that there has not been any inordinate delay on their part to deprive them the legitimately entitled seniority over the first respondent. However, from the facts noticed above, it is evident that the inter district transfer requested by the first respondent was allowed in November 1984 when she was working as an L.D.Clerk in the department in Ernakulam District. In 1989, when the seniority of L.D.Clerks in the department as O.P.(KAT)No.1821 OF 2013 : 5 : on 1.4.1986 was finalised after circulating the draft seniority list and inviting objections, first respondent was given seniority at Serial No.68 whereas the petitioners were assigned seniority at Serial Nos.73 and 75. Neither at the stage of draft seniority list, nor thereafter, did the petitioners object to the seniority assigned. In the meanwhile, the petitioners and the first respondent were promoted as U.D.Clerks. In the seniority list of U.D.Clerks also, which was finalised by Ext.P3 dated 10.2.1989, the first respondent was given seniority above the petitioners. That also was not objected by the petitioner at any stage. 8. It was only by Ext.P5 issued on 24.11.1997, which also was not at the instance of the petitioners or anyone else but at the instance of the Controller of the department, it was clarified for the first time that the first respondent will get seniority only from the date of joining at Kottayam district. By then more than 13 years had passed. This order was challenged by the first respondent in Writ Petition No.22542/1997 before this Court. Even thereafter, it was only by order dated 4.7.2012, that the petitioners even chose to get themselves impleaded in that Writ Petition. Therefore, for the first time, the petitioners raised a challenge against the seniority assigned to the first respondent only in 2002. In O.P.(KAT)No.1821 OF 2013 : 6 : the meanwhile, the first respondent got promotion to U.D. Cadre, got a higher grade on 1.1.1997, and was promoted to the post of Head Clerk and again to the post of Stationary Inspector, which were all on the basis of the seniority originally assigned to her. 9. In such circumstances, the judgments mentioned above explaining the theory of sit back clearly applies to this case and the petitioners cannot agitate the issue at this distance of time. Therefore, we accept the first reason stated by the Tribunal. 10. In so far as the second reason stated by the Tribunal that since State is the unit, even if inter district transfer was allowed on request that cannot result in forfeiture of seniority is concerned the same cannot be accepted in the light of the principles laid down by the Apex Court in _**K.P.Sudhakaran and another v. State of Kerala and others (2006) 5 SCC 386**_ . In that judgment, the Apex Court has held thus: “17. The transferred LDCs next submitted that the intention of making a provision that a person on an “own-request transfer will be ranked as the juniormost in the new district or new unit, is to ensure that the seniority of the existing employees in the category in the new unit or district is not affected by a senior O.P.(KAT)No.1821 OF 2013 : 7 : person coming from outside by transfer. It is contended that where the promotion post is Statewise, the seniority of the existing employees in the district to which the outside employee is transferred, will not be affected and, therefore, where the promotion is to a Statewise post, proviso to Rule 27(a) which requires those who are transferred on “own request”, to give up their seniority, will not apply. We cannot agree. The alleged intention behind a provision, cannot be used to defeat the express words of the provision. Once a statutory rule is made, without providing any exceptions, it is not possible to carve out exceptions to such rule, by judicial interpretation. Nor can an exemption from application of a clear and specific rule be claimed on the ground of hardship or similar reasons. The proviso to Rule 27(a) of the Rules is categorical and applies to all employees transferred on own request. It does not make distinction between employees whose promotion post is a Statewise post and those where the promotion posts are districtwise posts. 18. The learned counsel for the contesting private respondents lastly submitted that by now the appellants and the contesting private respondents have all been promoted from the posts of LDC to UDC and several of them have also been promoted as SubRegistrars and the matter should not be unsettled after such a long time. We find that the matter has been continuously under litigation ever since 1990 and the delay in disposal cannot defeat the rights of the appellants.” O.P.(KAT)No.1821 OF 2013 : 8 : Irrespective of the finding on the second issue, having regard to our agreement with the Tribunal on the first point of sit back, we uphold the order passed by the Tribunal and dismiss the petition for that reason. _Sd/-_ **ANTONY DOMINIC, Judge** _Sd/-_ **ANIL K. NARENDRAN, Judge** _jes_