O.P.(KAT) No.4145/2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 4TH DAY OF DECEMBER 2012/13TH AGRAHAYANA 1934** ## **OP(KAT).No. 4145 of 2012 (Z)** **---------------------------O.A.NO.1373/2012 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** **.........** ## **PETITIONER(S):RESPONDENTS 4,5 & 8 IN THE O.A.:** **-----------------------------------------------------------------------------** **1. OOMMEN THOMAS, TECHNICAL ASSISTANT, PRINCIPAL AGRICULTUREAL OFFICE, CIVIL STATION, KOTTAYAM-686 002.** **2. GEORGE SEBASTIAN, TECHNICAL ASSISTANT, PRINCIPAL AGRICULTUREAL OFFICE, KOTTAYAM (PRESENTLY WORKING AS AGRICULTURAL OFFICER, KRISHI BHAVAN, BHARANAGANAM, KOTTAYAM).** **3. GEORGE ALEXANDER, AGRICULTURAL OFFICER, MOBILE SOIL TESTING LABORATORY, PAROTTUKONAM, NALANCHIRA P.O., THIRUVANANTHAPURAM-695 015.** - **BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH** ## **RESPONDENT(S):APPLICANTS & RESPONDENTS 1 TO 3 IN THE O.A.** - **------------------------------------------------------------------------------------------------------** **1. ANITHA A.R., AGRICULURAL OFFICER, KRISHI BHAVAN, VALLIKUNNAM, ALAPPUZHA-688 001.** **..2/-** **Kss** **..2....** **OP(KAT) NO.4145/2012 Z** **2. MAGIE MEREENA, AGRICULURAL OFFICER, KRISHI BHAVAN, NATTAKOM, KOTTAYAM-686 002.** **3. SALY JOSEPH, AGRICULURAL OFFICER, KRISHI BHAVAN, AKALAKUNNAM, KOTTAYAM-686 606.** **4. CICY P. MATHEW, AGRICULURAL OFFICER, KRISHI BHAVAN,KOOTICKAL, KOTTAYAM-686 004.** ## **5. SUDHARMANI S.,** **TECHNICAL ASSISTANT, DIRECTORATE OF AGRICULTURE, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 001.** ## **6. PRAMOD.B.,** **AGRICULURAL OFFICER, KRISHI BHAVAN, PANACHIKKADU, CHANNANIKKAD P.O., KOTTAYAM - 686 012.** **7. ANILA MATHEW, TECHNICAL ASSISTANT, PRINCIPAL AGRICULTURAL OFFICE, PATHANAMTHITTA-689 001.** **8. SATHYARAJAN.V., AGRICULURAL OFFICER, KRISHI BHAVAN, THACHANATTUKARA, PALAKKAD DISTRICT-678 583.** **9. K.J.SKANDHA KUMAR, AGRICULTURAL OFFICER, BIOTECHNOLOGY AND MODEL FLORI CENTRE, KAZHAKUTTOM, THIRUVANANTHAPURAM-695 001.** **..3/-** **Kss** ## **`..3....** ## **OP(KAT) NO.4145/2012 Z** **10. SAM MATHEW, AGRICULURAL OFFICER, KRISHI BHAVAN, PANDALAM - 689 501.** **11. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, AGRICULTURAL DEPARTMENT, GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM-695 001.** - **` 12. THE DIRCTOR OF AGRICULTURE, VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 001.** **13. DEPARTMENTAL PROMOTION COMMITTEE (LOWER), DEPARTMENT OF AGRICULTURE, REPRESENTED BY ITS CONVENOR, THIRUVANANTHAPURAM-695 001.** **BY ADV. SRI. JAIJU BABU R11,12,13 BY SR.GOVERNMENT PLEADER SRI.P.I.DAVIS** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 04-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **OP(KAT) NO.4145/2012 Z** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1. TRUE COPY OF THE OA NO.1373/2012 FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL,THIRUVANANTHAPURAM.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN OA NO.1373/2012 WITH ALL ANNEXEURES.** **EXHIBIT P3. TRUE COPY OF THE ORDER DATED 10/8/2012 IN OA NO.1373/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL,THIRUVANANTHAPURAM.** **RESPONDENTS' EXHIBITS:** **N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **MANJULA CHELLUR, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** O.P.(KAT) No.4145 of 2012 ---------------------------------------- Dated this the 4[th] day of December 2012 ## **J U D G M E N T** ## **SHAFFIQUE,J** Respondents 4 to 6 in O.A.No.1373 of 2012 are the petitioners. The Original Application was filed by respondents 1 to 10 herein before the Kerala Administrative Tribunal (KAT) challenging Annexure A3 and A5 orders. 2. The facts involved in the case would disclose that the petitioners and respondents 1 to 10 were appointed as Agricultural Officers on different dates. The petitioners were advised as Agricultural Officers on 21/11/1988 and they joined duty on 17/01/1989, 23/01/1989 and 18/01/1989 respectively. Since they were undergoing Post Graduate Course in Agriculture, immediately after joining duty, they availed leave without allowance for study purpose. They completed their course and rejoined duty on 28/08/1989, 16/10/1989 and 14/08/1989 respectively which was after the date of joining service by respondents 1 to 10. In the provisional seniority list O.P.(KAT) No.4145/2012 2 of the Agricultural Officers published as on 01/01/1991 the applicants in Original Application/respondents 1 to 10 herein were treated as senior to petitioners. Annexure A2 is the final seniority list published on 22/07/2003. It is the case of respondents 1 to 10 that in the seniority list of Agricultural Officers Annexures A2 and A3 the petitioners were assigned seniority only from the date of their rejoining duty and not with reference to their date of advice. 3. It seems that subsequently by Annexure A3 proceedings dated 05/05/2012 Government re- fixed the seniority list by which seniority of the petitioners were taken into consideration as their original date of advice that is with effect from 21/11/1988. Annexure A5 is consequential to Annexure A3. This, according to respondents 1 to 10, was against the rules. It is also contended by virtue of judgment in W.P.C.No.2182/2011, the seniority claim from the date of advice of a similarly placed person like the petitioners was dismissed by the learned Single Judge as per Annexure A8 judgment and in the light of provisions contained in Appendix XIIA Part I of KSR, petitioners are not entitled to seniority from the date of advice; O.P.(KAT) No.4145/2012 3 but only from the date of rejoining. 4. Petitioners herein, however contended before KAT that in the seniority list published in the year 1993, the date of entry was taken as the date of advice. There was no reason to challenge to the same. Only when the subsequent seniority list was published as Annexure A2 the date of rejoining service is considered as date of entry. One aggrieved person challenged the said seniority list and it was allowed by the High Court and the matter reached finality, by which the date of advice was taken as the date of entry in service. On this basis, it is submitted that the petitioners had submitted representation to the Government which resulted in Annexure A3 order. 5. The Tribunal, after an elaborate consideration of the relevant rules in this regard came to the conclusion that the judgments relied upon by the petitioners was without reference to Rule (ii) of Appendix XII-B of Part I KSR and therefore not a binding precedent. Still further the matter was considered in the light of interpretation of Rule 5 of Appendix XII A and Rule 5 of Appendix XII C of Part I KSR and also the judgments of this Court in **Unnikrishna Panicker v. Bhasi** [2001(1)KLT 449] **,** O.P.(KAT) No.4145/2012 4 **Bindu v. State of Kerala** [2008(1)KLT 78] **, Sreekala v. State of Kerala** [2007(1)KLT 903] **and Geroge v. Law Secretary** [2009(1)KLT 655] and had come to the conclusion that in view of the said settled position Annexure A3 order is ultra vires and void and there is delay and laches on the part of the petitioners in challenging the orders by which they were granted leave specifically indicating that it is subject to the terms and conditions in G.O(P) 524/84/Fin dated 18/09/1994. Annexure A2 seniority list. Accordingly the original application came to be allowed quashing Annexures A3 and A5.. 6. Learned counsel for petitioners, however, contends that similar benefit had been given to another person Smt.S.Sushama who was much junior to the petitioners, she claimed seniority under Rule 27(c) notwithstanding the leave without allowance, and had filed a writ petition before this Court which was allowed and confirmed by the Apex Court. In that situation, petitioners claim that they are also entitled to the benefit of seniority with effect from the date of advice by KPSC. 7. This we do not think is the correct proposition. A reference to Rule (ii) of Appendix XII B of Part I KSR indicates O.P.(KAT) No.4145/2012 5 that if a person has not completed probation in the entry cadre and goes on leave without allowance, he shall loose all service benefits during currency of the period of leave. The Tribunal had referred to the judgments which dealt with identical provisions with reference to the date on which seniority position has to be considered and it is found that the date of rejoining service after long leave without allowance taken for the purpose of studies cannot be taken into consideration for the purpose of considering seniority position. We fully concur with the view expressed by the Tribunal. In that view of the matter, we do not think that there is any justification for the petitioners to challenge the order of the Tribunal. This Original Petition is hence dismissed. (sd/-) **(MANJULA CHELLUR, CHIEF JUSTICE)** (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr 07/12/2012 # O.P.(KAT) No.4145/2012 6 # O.P.(KAT) No.4145/2012 7 # O.P.(KAT) No.4145/2012 8