High Court of KeralaDivision BenchOriginal petitions dismissed.

O.P.(KAT) No.508 of 2017 and O.P.(KAT) No.478 of 2017

Case / Petition Number:O.P.(KAT) No.508 of 2017; O.P.(KAT) No.478 of 2017

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • A. Muhammed Mustaque
  • Shoba Annamma Eapen
Judgment Date
2024-04-02
Court Decision / Holding
Original petitions dismissed. The High Court held that it would not interfere with the Kerala Administrative Tribunal’s impugned order and upheld the Tribunal’s approach to the seniority list and the appointment process.
Final Disposition
Original petitions dismissed.

Parties to the Case

Appellants / Petitioners

  • Ajithakumar V.R
  • Deepa Krishnan
  • Jaquiline E.W.

Respondents

  • Suresh A
  • T. Jayakumar
  • A. Ashoka Kumar
  • State of Kerala
  • Departmental Promotion Committee Lower
  • Maya Devi
  • Salim Parvis
  • T.P. Rashmy
  • Gireesh Kumar G

Legal Representation & Advocates

Counsels for Petitioners

  • • P. Nandakumar
  • • S. Aneesh
  • • Amrutha Sanjeev

Counsels for Respondents

  • • Arya Unnikrishnan
  • • Harish Gopinath
  • • Santosh Bhaskar Nair
  • • Sabad K.H.

Case Synopsis & Summary

This is a High Court of Kerala (Ernakulam) decision disposing two original petitions filed by officers of the Kerala Law Department challenging a Kerala Administrative Tribunal order dated 25 October 2017 in OA Nos. 1383/2015 and 1694/2015. The core dispute concerns fixation of seniority of Legal Assistants Grade II under the Special Rules for the Kerala Secretariat Subordinate Service. The petitioners contend that Annexures A4–A6 in OA No. 1694/2015 (the seniority list) were quashed by the Tribunal due to misapplication of Rule 4 of the Special Rules; they argue that vacancies 6 and 4 (in the first and second cycles) were to be filled by Secretariat staff and not by the department staff, and that Deepa Krishnan and Maya Devi were improperly accommodated against NJD vacancies. The respondents defend the rotation system, the 3:2 ratio, and the 10-vacancy cycle, arguing that temporary vacancies were rightly filled and that the State’s actions followed GO orders and Special Rules. The court, after hearing, held that it could not interfere with the Tribunal’s order and dismissed the petitions, thereby upholding the seniority modifications and the related arrangements.

Provisions of Law Cited

Rule 4 of Special Rules for Kerala Secretariat Subordinate Service (Kerala Secretariat Subordinate Service)Special Rules GO (P) No.208/1967 dated 05.07.1967G.O.(MS) No.24/2015/LAW dated 30.01.2015G.O.(MS) No.51/2010/LAW dated 23.03.2010G.O.(MS) No.52/2008/LAW dated 03.06.2008G.O.(MS) No.56/08/LAW dated 10.06.2008G.O.(RT) No.966/2015/LAW dated 06.07.2015G.O.(RT) No.1141/2015/LAW dated 07.08.2015G.O.(RT) No.6054/2015/GAD dated 07.08.2015Right to Information Act, 2005

Legal Doctrines & Maxims

  • Sit back theory
  • Permanent passing over of vacancies
  • Rotation cycle 3:2 ratio in appointment methods

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contend that the Tribunal’s order quashing Annexures A4–A6 in OA No.1694/2015 and directing revision of the seniority list is based on a misreading of Rule 4 of the Special Rules for the Kerala Secretariat Subordinate Service. They argue that the 6th and 4th NJD vacancies in the 1st and 2nd cycles were to be filled by Secretariat staff, and that Deepa Krishnan and Maya Devi were improperly accommodated against those vacancies in 2008, contrary to the 3:2 rotation and the 50:50 split. They assert that the NJD vacancies remained unfilled due to lack of eligible candidates and that direct recruitment was mandated in such circumstances. The seniority revision in 2010 and the reliance on the 2015 GO orders are challenged as contrary to the Special Rules. They further argue that belated objections cannot be barred indefinitely (sit-back theory), and that the petitioners’ future promotions could be adversely affected by the altered seniority.

Contentions of Respondents

The respondents defend the Tribunal’s decision by emphasizing the rotation policy under Rule 4, the 3:2 ratio, and the five channels of appointment, including direct recruitment when no eligible candidates exist from either category. They explain that vacancies 6 and 4 in the first two cycles were temporarily passed over to department staff due to the absence of Secretariat staff and, due to NJD vacancies and expired lists, Deepa Krishnan and Maya Devi were appointed in 2008 against these unfilled positions. They argue that the seniority changes were made in accordance with GO/orders and the Special Rules, and that the “permanent passing over” concept applies. They reject the belated objection, invoking sit-back theory, and contend that the decision preserves administrative efficiency and the integrity of the appointment process.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
R.K. Sabarwal v. State of Punjab(1995) 2 SCC 745Mentioned OnlyCited by the Tribunal as part of its reasoning; the High Court notes the Tribunal’s reliance as erroneous and does not apply it as controlling precedent.
Shiba Shankaran Mohapatra and Others v. State of OrissaAIR 2010 SC 706Mentioned OnlyCited by petitioners’ counsel to argue belated challenge; Tribunal did not adopt this reasoning in deciding the case.
Rabindranath Bose and Others v. Union of IndiaAIR 1970 SC 470Mentioned OnlyCited by counsel in the context of belated challenges; not central to the Court’s decision.
Sajeeve N.J. v. Union of India and Ors.ILR 2009 (4) KERALA 469Mentioned OnlyCited by counsel; used to discuss belated challenge; not a controlling authority in the judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**OP(KAT)508/2017 and OP(KAT)478/2017** **-:1:-** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946 ``` ``` OP(KAT) NO. 478OF 2017 ``` ``` AGAINST THE ORDER DATED 25.10.2017 IN OA NO.1694 OF 2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ``` ## **`PETITIONER/S:`** ``` 1DEEPA KRISHNAN, SECTION OFFICER, LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001 (NOW WORKING AS UNDER SECRETARY TO GOVERNMENT, URBAN AFFAIRS DEPARTMENT, THIRUVANANTHAPURAM). 2JAQUILENE E.W., SECTION OFFICER, LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001 (NOW WORKING AS UNDER SECRETARY TO GOVERNMENT, OFFICIAL LANGUAGE (LEGISLATIVE) COMMISSION, THIRUVANANTHAPURAM). 3AJITHAKUMARI V.R, SECTION OFFICER, LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001 (NOW WORKING AS SECTION OFFICER, KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM). BY ADVS. P.NANDAKUMAR S.ANEESH AMRUTHA SANJEEV ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **-:2:-** ## **`RESPONDENT/S:`** - **`1 T.JAYAKUMAR, AGED 42 YEARS AGED 42 YEARS, S/O.N.THEERDHAPADAR, RESIDING AT KEEZHCHERI ILLAM, AMUNTHURUTHI MADAM, THEKKUMKARA, NEDUMANGAD, THIRUVANANTHAPURAM - 695 541,SECTION OFFICER, LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.`** - **`2 A.ASOKA KUMAR, AGED 39 YEARS`** - **`AGED 39 YEARS, S/O.AYYAPPAN NAIR, RESIDING AT SREEDEVI VILASOM, MARUKIL, KOTTIYAKONAM, OORUTTAMBALAM P.O.,THIRUVANANTHAPURAM - 695507, SECTION OFFICER, LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001 ON DEPUTATION IN THE KERALA ADVOCATE CLERKS WELFARE FUND COMMITTEE, THIRUVANANTHAPURAM - 695001.`** - **`3 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT,LAW (ADMINISTRATION) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.`** - **`4 DEPARTMENTAL PROMOTION COMMITTEE LOWER, FOR LAW DEPARTMENT, REPRESENTED BY ITS CONVENER & SECRETARY, GAD, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.`** - **`5 MAYA DEVI, SECTION OFFICER, OFFICIAL LANGUAGE (LEGISLATIVE) COMMISSION, PATTUR, PETTAH, THIRUVANANTHAPURAM -695035 (NOW WORKING AS UNDER SECRETARY, LAW (CONVEYANCE CELL) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.`** - **`6 SALIM PARVIS, SECTION OFFICER, ON DEPUTATION IN ALTERNATIVE DISPUTES REDRESSAL CENTRE, ERNAKULAM - 682031.`** - **`7 T.P.RASHMY, SECTION OFFICER, ON DEPUTATION IN KERALA STATE HUMAN RIGHTS COMMISSION, PMG JUNCTION, THIRUVANANTHAPURAM - 695 003. (NOW WORKING AS SECTION OFFICER, LAW`** - **`DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM).`** - **`8 GIREESH KUMAR, ASSISTANT LEGAL OFFICER, ON DEPUTATION IN KERALA STATE HUMAN RIGHTS COMMISSION, PMG JUNCTION, THIRUVANANTHAPURAM - 695 033. (NOW WORKING AS SECTION`** **OP(KAT)508/2017 and OP(KAT)478/2017** **-:3:-** ``` OFFICER, LAW DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM). BY ADV ARYA UNNIKRISHNAN ``` ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 26.02.2024, ALONG WITH OP(KAT).508/2017, THE COURT ON 2/4/2024 DELIVERED THE FOLLOWING: ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **-:4:-** ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946 ``` ``` OP(KAT) NO.508OF 2017 ``` ``` AGAINST THE ORDER DATED 25.10.2017 IN OA NO.1383 OF 2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ``` ## **`PETITIONER/S:`** ``` AJITHAKUMAR V.R, SECTION OFFICER, LAW DEPARTMENT, GOVERNEMNT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 (NOW WORKING AS SECTION OFFICER,KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM). BY ADVS. ``` ``` P.NANDAKUMAR S.ANEESH AMRUTHA SANJEEV ``` ## **`RESPONDENT/S:`** ``` 1SURESH A, AGED 40 YEARS, S/O. ANANDAN NAIR, ASSISTANT LEGAL OFFICER, LAW DEPARTMENT, GOVERNMENT SECRETARIAT ON DEPUTATION ASDISTRICT EXECUTIVE OFFICER, KERALA TAILORING WORKERS WELFARE FUND BOARD, PALAYAM, KOZHIKODE - 673001, RESIDING ATSUKUMARA SADANAM, ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **-:5:-** ``` PUNUKKANNOOR, PARUMBUZHA P.O.,KOLLAM - 691504 (NOW WORKING AS SECTION OFFICER,DISTRICT LEGAL SERVICES AUTHORITY, KOLLAM - 691001) ``` - **`2 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT,LAW`** ``` (ADMINSITRATION) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,PIN - 695001. ``` - **`3 DEPARTMENTAL PROMOTION COMMITTEE LOWER, FOR LAW DEPARTMENT, REPRESENTED BY ITS CONVENER & SECRETARY, GAD,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.`** - **`4 GIREESH KUMAR G, ASSISTANT LEGAL OFFICER,KERALA STATE HUMAN RIGHTS COMMISSION,PMG, THIRUVANANTHAPURAM - 695033(NOW WORKING AS SECTION OFFICER,LAW DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM). BY ADVS.`** ``` HARISH GOPINATH SANTHOSH BHASKARAN NAIR SABAD K.H. ``` ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 26.02.2024, ALONG WITH OP(KAT).478/2017, THE COURT ON 2/4/2024 DELIVERED THE FOLLOWING: ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **-:6:-** ## **`A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.`** ``` ------------------------------------------------ ``` ``` O.P.(KAT).No.508 of 2017 and O.P (KAT) No. 478/2017 ``` ``` ------------------------------------------------ ``` ``` Dated this the 2[nd] day of April, 2024 ``` **==> picture [108 x 9] intentionally omitted <==** ## **`A.Muhamed Mustaque, J.`** ``` These original petitions are filed by petitioners who are Section Officers and Assistant Legal Officer of the Law Department aggrieved by the order of the Kerala Administrative Tribunal dated ``` ``` 25.10.2017 in O.A. Nos.1383/2015 and 1694/2015. They were respondents before the Tribunal. The parties are referred by their names for easy reference. ``` ``` 2. The original applications were filed by the applicants who are Section Officers and Assistant Legal Officer in the Law Department to quash Annexures A4, A5 and A6 seniority list of Legal Assistants/Assistant Legal Officers which are marked as Annexures ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **-:7:-** ``` 21, 22 and 23 in O.A.No.1694/2015. The dispute is in regard to the fixation of seniority of the Legal Assistants following the method ``` ``` of appointment prescribed in the Special Rules for the Kerala Secretariat Subordinate Service. The Tribunal allowing the original applications to set aside Annexures A4 A5 and A6 in O.A.No.1694/2015, also directed the Law Department, Government of Kerala, to revise the seniority list of the Legal Assistants Grade II. Aggrieved by the order of the Tribunal, the respondents in the original applications are before us in these original petitions. ``` ``` 3. Before perusing the facts of the case, it is pertinent to refer to the method of appointment of Legal Assistant Grade II. Rule 4 of Special Rules for Kerala Secretariat Subordinate Service (hereinafter referred to as the “Special Rules”) is provided below: ``` `4. Appointment -(a) Appointment to the several categories shall` `be made as follows: -` ``` Categories Method of appointment ``` `7. Legal Assistants, Grade-II (i) Direct Recruitment` ``` OR ``` ``` (ii) Appointment from Assistant Tamil Translators and Assistant Kannada Translators OR ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **-:8:-** ``` (iii) Appointment or promotion from any other category in Kerala Secretariat Subordinate Service ``` ``` OR ``` ``` (iv) Transfer from any category in any Departments under the Government or in the service of the High Court of Kerala. ``` ``` Note:1- Fifty per cent of the vacancies shall be filled up by direct recruitment and appointment from Assistant Tamil Translators and Assistant Kannada Translators. The other fifty per cent of the vacancies shall be filled up by the methods specified in Items (III) and (iv) above in the ratio of 3:2 on the advice of the Kerala Public Service Commission under Items (iii) & (iv). ``` ``` Note:2: All the employees of the departments of the Secretariat who are qualified for appointment to this category shall be eligible for appointment under Secretariat quota along with other categories in the Kerala Secretariat Subordinate Service. ``` ``` The following shall be the rotation by which appointments by the different methods shall be made in a cycle of ten vacancies:- ``` ``` 1st vacancy: By the method specified in item (i) or (II) of the method of appointment. ``` ``` 2nd Vacancy: By the method specified in item (ill) of the method of appointment ``` ``` 3rd Vacancy: By the method specified in item (i) or (ii) of the method of appointment. ``` ``` 4th vacancy: By the method specified in item (iii) of the method of appointment. ``` ``` 5th vacancy: By the method specified in item (i) or (ii) of the method of appointment ``` ``` 6th vacancy: By the method specified in item (iii) of the method of appointment ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **-:9:-** ``` 7th vacancy: By the method specified in item (1) or (ii) of the method of appointment ``` ``` 8th vacancy: By the method specified in item (iv of the method of appointment ``` ``` 9th vacancy: By the method specified in item (i) or (ii) of the method of appointment ``` ``` 10th vacancy: By the method specified in Item (iv) of the method of appointment. ``` ``` 4. Appointment to the post of Legal Assistant Grade II is from 4 different channels, namely, 1) Direct recruitment, 2) Appointment from Assistant Translators, 3) Appointment or transfer from Secretariat Subordinate Service, and 4) Transfer from other departments and High Court. The rotation for appointment from these methods is applied in a cycle of 10 vacancies. Vacancy Nos. 1, 3, ``` ``` 5, 7 and 9 are filled following the direct recruitment and appointment from the Assistant Translators. Vacancy Nos. 2, 4 and 6 are to be filled from appointment or transfer from Secretariat Subordinate Service (for short, the “secretariat staff”). Vacancy Nos. 8 and 10 are to be filled by transfer from other departments and the High Court (for short, the “department staff”). Fifty percent of the vacancies shall be filled up by direct recruitment and appointment from the Assistant Tamil and Kannada Translators and the other fifty percent of vacancies shall be filled up by ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **-:10:-** ``` Secretariat staff and department staff in the ratio 3:2. In the absence of qualified persons from the Secretariat staff, such vacancies can be filled from department staff and vice versa. If qualified persons are not available from both categories, such vacancies shall be filled by direct recruitment. ``` ``` 5. The applicants in the original applications Shri Suresh A., Shri T.Jayakumar and Shri A.Ashoka Kumar were appointed to the post of Legal Assistant Grade II as per Annexure A2 rank list dated 3/4/2008 (produced in O.A.No.1694/2015), by transfer from any department in the Government or High Court of Kerala. The party respondents in the original applications are appointed to the above post as per Annexure A2(a) rank list dated 3/4/2008 from the Kerala Subordinate Secretariat Service. ``` ``` 6. As per Annexure A1 government order dated 3/06/2008 Smt. Deepa Krishnan and Smt. Maya Devi K., 3rd and 4th respondents in O.A.No.1694/2015 were appointed to the 6th vacancy in the first cycle and 4th vacancy in the second cycle respectively. It was submitted that vacancy Nos. 6 and 4 should have been filled by the Secretariat staff. But due to the absence of eligible hands, vacancies were to be filled by the department staff. Though ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **-:11:-** ``` appointments were made in the 6th and 4th vacancies, candidates did not join, creating “2 NJD vacancies.” In these NJD vacancies, Deepa Krishnan and Maya Devi, candidates from the subordinate secretariat quota were appointed. ``` ``` 7. The applicants in the original applications contended that as per the Special Rules, in the absence of qualified persons from both categories, such vacancies shall be filled by direct recruitment. Therefore, Deepa Krishnan and Maya Devi could not be appointed against the 6[th] and 4[th] vacancies and such appointments are against the rules. In the seniority list published on 22/3/2010, the applicants-Jayakumar and Ashoka Kumar were placed against ranks 63 and 64, whereas the ranks of Deepa Krishnan and Maya Devi were 61 and 62. According to them,it is only because Deepa Krishnan and Maya Devi were accommodated in the NJD vacancies, they happened to be above the rank of Jayakumar and Ashoka Kumar. They further argued that they are entitled to be placed in 8th and 10th vacancies in the second cycle of rotation and respondents 3 to 9 in O.A.No.1694/2015 can be accommodated only in subsequent vacancies. ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **==> picture [23 x 9] intentionally omitted <==** ``` 8. It was also argued that Smt.Jayasree was appointed against the 6[th] vacancy in the 2[nd] cycle on compassionate grounds. This was challenged by Smt. Jacqueline (5[th] respondent in O.A.No.1625/2015) on the ground that dying in harness appointees can be adjusted only against vacancies for direct recruitment. Accordingly, accommodation was given to Jacqueline against the 6[th] vacancy -2[nd] cycle by shifting Smt.Jayasree to the 7[th] vacancy. ``` ``` 9. The Tribunal relied on the reply statement filed by the State wherein it is submitted thataccommodation provided to Deepa Krishnan and Maya Devi against the 6[th] and 4[th] vacancies is on the presumption that vacancies were only temporarily passed over to the department staff and they are to be restored to the Secretariat staff and accommodation of Jayasree in 6[th] vacancy-2[nd] cycle on compassionate ground was by mistake. The Tribunal, holding that the submission of the respondents regarding presumption as above is erroneous but also against the express terms of the Special Rules, ordered to quash Annexures A4, A5 and A6 seniority list in O.A.No.1694/2015.The Tribunal further opined that the Special Rules provided for passing over of a vacancy in the absence of eligible hands which is a permanent passing over. The Tribunal also ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **-:13:-** ``` noted thatshifting of Jaysree from the 6[th] vacancy to the 7[th] vacancy to get the 6[th] vacancy open to Jacqueline is clearly illegal. ``` `10. As per Annexure A4 government order (produced in O.A.No.1383/2015) dated 6/7/2015, final seniority list dated 1/1/2010 was modified. It is noteworthy that Sri Salim Parvis, who was initially placed in the 4th vacancy of the 3rd cycle, was reassigned to the 8th vacancy in the 2nd cycle, adhering to the 3:2 ratio rule. Consequently, T.Jayakumar, who was initially assigned to the 8th vacancy, was subsequently moved to the 10th vacancy. The Tribunal observed this alteration in the seniority list is unsupportable and concluded that such reassignment was carried out without due consideration` , `blindly following the judgment in` **`R.K.Sabarwal v. State of Punjab`** `[(1995) 2 SCC 745].` ``` 11. The issue is centered around the implication of the rule which defines the cycle of rotation. Deepa Krishnan and Maya Devi belong to the category of Secretariat staff. The applicants before the Tribunal belong to the department staff. Violation of rotation and undue advantage taken by the Secretariat staff was considered by the Tribunal. It is to be noted that 2 NJD vacancies in cycle Nos. 1 and 2 arose in the year 2006. Legal assistants to these 2 ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **==> picture [23 x 9] intentionally omitted <==** ``` cycles were appointed as per G.O.(Ms).No.505/06/Law, dated 06/12/2006. Appointments were made to 6th and 4th vacancies following the method of appointment as per the Special Rules. These 2 vacancies have become vacant since 2006. Even though these 2 vacancies were passed over to the department staff, NJD vacancy could not have been filled as the rank list of department staff expired. These NJD vacancies remained unfilled for 2 years. Deepa Krishnan and Maya Devi were admittedly appointed against these unfilled 6[th] and 4[th] vacancies in the 1[st] and 2[nd] cycle in the year 2008 as per government order dated 03/06/2008. According to the Special Rules in the absence of eligible hands from both the categories, such vacancies should go to direct recruitment. Deepa Krishnan and Maya Devi could have been appointed only against subsequent vacancies. The factual events as above is not much in dispute. We perused the rules. It is appropriate to refer to the relevant rules in the Special Rules. ``` ``` In the absence of qualified persons for appointment by the method specified in item (III) of the method of appointment, such vacancies shall be filled up by the method specified in item (iv) of the method of appointment and vice versa. If qualified persons are not available for appointment by the method specified in Items (ill) and (iv) of the methods of appointment, such vacancies shall be filled up by direct recruitment. ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **-:15:-** ``` 12. As we already noted, Deepa Krishnan and Maya Devi could not have been appointed in 6[th] vacancy in 1[st] cycle and 4[th] vacancy in 2[nd] cycle as NJD vacancies in the earlier rank list required to be passed over to direct recruitment. It is vehemently contended by the learned counsel Shri P.Nandakumar for the petitioners, placing reliance on Shiba Shankaran Mohapatra and Others v. State of Orissa [AIR 2010 SC 706], Rabindranath Bose and Others v. Union of India [AIR 1970 SC 470], and Sajeeve N.J. v. Union of India and Ors. [ILR 2009 (4) KERALA 469] that, the challenge is belated as the applicants before the Tribunal had chosen to challenge seniority after 5 years of publishing seniority list. The Tribunal negated this argument. The learned counsel also placed reliance on the earlier direction in this matter in O.A.No.184/2015 wherein the Tribunal after hearing both sides directed the Government to consider the matter in the light of the objection raised by Jayakumar and Asoka Kumar, the applicants in O.A.No.184/2015. The Tribunal in the impugned judgment found that since the petitioners herein had not raised any objection in the earlier stage, based on sit back theory, opined that they are precluded from reopening this issue in the subsequent stage. It is to be noted that overturning seniority may not have much importance as of now, except for further ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **==> picture [23 x 9] intentionally omitted <==** ``` promotion, as it is submitted at the bar that it will not affect the promotion already effected, but the seniority matters only for future promotions. In such a scenario according to us, sit back theory would not apply. Further, one cannot take advantage of the wrong committed in assigning seniority to them, adverse to the interest of others. We, therefore, find no reason to interfere with the impugned order. Accordingly, the original petitions are dismissed. ``` ``` Sd/- ``` ``` A.MUHAMED MUSTAQUE, JUDGE ``` ``` Sd/- ``` ``` SHOBA ANNAMMA EAPEN, JUDGE ``` ``` ms ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **-:17:-** ## **`APPENDIX OF OP(KAT) 508/2017`** |**`PETITIONER EXHIBITS`**|| |---|---| |**`EXHIBIT P1`**|**`TRUE COPY OF THE ORDER IN OA NO. 1383 OF`**| ||**`2015 DATED 25.10.2017.`**| |**`EXHIBIT P2`**|**`TRUE COPY OF OA 1383 OF 2015.`**| |**`ANNEXURE A7`**|**`TRUE COPY OF THE RELEVANT PORTIONS OF THE`**| ||**`SPECIAL RULES DATED 05.07.1967.`**| |**`ANNEXURE A6`**|**`TRUE COPY OF GO(RT) NO.994/2015/LAW DATED`**| ||**`10.07.2015.`**| |**`ANNEXURE A5`**|**`TRUE COPY OF GO (MS) NO.108/2015/LAW DATED`**| ||**`06.07.2015.`**| |**`ANNEXURE A4`**|**`TRUE COPY OF THE GO (RT) NO.966/2015/LAW`**| ||**`DATED 06.07.2015.`**| |**`ANNEXURE A3`**|**`TRUE COPY OF G.O.(MS) NO.24/2015/LAW DATED`**| ||**`30.01.2015.`**| |**`ANNEXURE A2`**|**`TRUE COPY OF ORDER NO.GO (MS) NO.51/2010/LAW`**| ||**`DATED 23.03.2010.`**| |**`ANNEXURE A1`**|**`TRUE COPY OR ORDER NO.B1-5964/14 DATED`**| ||**`10.11.2014.`**| |**`EXHIBIT P3`**|**`TRUE COPY OF THE REPLY STATEMENT FILED ON`**| ||**`BEHALF OF THE 1ST RESPONDENT.`**| |**`ANNEXURE R1(c)`**|**`TRUE COPY OF G.O.(RT) NO.1141/2015/LAW DATED`**| ||**`07.08.2015.`**| |**`ANNEXURE R1(b)`**|**`TRUE COPY OF MEMO NO.28562/ADMN.II`**| ||**`(2)/2014/LAW DATED 14.05.2015.`**| |**`ANNEXURE R1(a)`**|**`TRUE COPY OF MEMORANDUM NO,28562/ADM.II`**| ||**`(2)/2014/LAW DATED 01.01.2015.`**| **OP(KAT)508/2017 and OP(KAT)478/2017** **-:18:-** ## **`APPENDIX OF OP(KAT) 478/2017`** ``` PETITIONER EXHIBITS EXHIBIT-P1:TRUE COPY OF THE ORDER IN O.A.NO.1694 OF 2015 DATED 25.10.2017. ANNEXURE A27TRUE COPY OF GO (RT) NO.6054/2015/GAD DATED 07.08.2015. ANNEXURE A26TRUE COPY OF GO (RT) NO.1141/2015/LAW DATED 07.08.2015. ANNEXURE A25TRUE COPY OF THE REVIEW PETITION DATED 25.07.2015 SUBMITTED BY THE 2ND APPLICANT. ANNEXURE A24TRUE COPY OF THE REVIEW PETITION DATED 08.07.2015 SUBMITTED BY THE 1ST APPLICANT. ANNEXURE A23TRUE COPY OF GO (RT) NO.994/2015/LAW DATED 10.07.2015. ANNEXURE A22TRUE COPY OF GO (MS) NO.108/2015/LAW DATED 06.07.2015. ANNEXURE A21TRUE COPY OF THE GO(RT) NO.966/2015/LAW DATED 06.07.2015. ANNEXURE A20TRUE COPY OF THE JUDGMENT IN OA NO.184/2015 DATED13.05.2015. ANNEXURE A19TRUE COPY OF THE FINAL SENIORITY LIST PUBLISHED BY THE 1ST RESPONDENT DATED 30.01.2015. ANNEXURE A18TRUE COPY OF ORDER NO.GO (RT) NO.56/2015/LAW DATED 12.01.2015. ANNEXURE A17TRUE COPY OF THE ORDER NO.GO (RT) NO.9153/2013/GAD DATED 13.11.2013. ANNEXURE A16TRUE COPY OF THE REPRESENTATION DATED 19.12.2014. ANNEXURE A15TRUE COPY OF OBJECTION SUBMITTED BY THE 2ND APPLICANT DATED 13.01.2015. ANNEXURE A14TRUE COPY OF OBJECTION SUBMITTED BY THE 1ST APPLICANT DATED 09.01.2015. ANNEXURE A13TRUE COPY OF THE MEMORANDUM NO.28562/ADM.II (2)/14/LAW DATED 01.01.2015. ANNEXURE A12TRUE COPY OF THE HEARING NOTE. ANNEXURE A11TRUE COPY OF NOTICE NO.28562/ADMIN II (2)/13/LAW DATED 30.04.2014. ANNEXURE A10TRUE COPY OF THE REPRESENTATION DATED 08.07.2014. ANNEXURE A9TRUE COPY OF THE REPRESENTATION DATED 25.06.2014. ANNEXURE A8TRUE COPY OF THE REPRESENTATION DATED 13.02.2014. ``` **OP(KAT)508/2017 and OP(KAT)478/2017** **-:19:-** ``` ANNEXURE A7TRUE COPY OF THE REPRESENTATION DATED 13.10.2010. ANNEXURE A6TRUE COPY OF ORDER NO.GO (MS) NO.51/2010/LAW DATED 23.03.2010. ANNEXURE A5TRUE COPY OF INFORMATION DATED 12.03.2014 UNDER THE RIGHT TO INFORMATION ACT. ANNEXURE A4TRUE COPY OF ORDER NO.GO (MS) NO.505/06/LAW DATED 06.12.2006. ANNEXURE A3TRUE COPY OF SPECIAL RULES GO (P) NO.208 DATED 05.07.1967. ANNEUXRE A2 (a)TRUE COPY OF NOTIFICATION NO.16910/ADM. II (2)/06/LAW DATED 03.04.2008. ANNEXURE A2TRUE COPY OF NOTIFICATION NO.24448/ADMN.II (2)/06/LAW DATED 03.04.2008. ANNEXURE A1 (a)TRUE COPY OF ORDER NO.GO (MS) NO.56/08/LAW DATED 10.06.2008. ANNEXURE A1TRUE COPY OF ORDER NO.GO (MS) NO.52/2008/LAW DATED 03.06.2008. EXHIBIT-P2:TRUE COPY OF O.A.NO.1694 OF 2015. EXHIBIT-P3:TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 1ST RESPONDENT. EXHIBIT-P4:TRUE COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS 3AND 4 IN THE O.A. ANNEXURE R3 (a)TRUE COPY OF THE RELEVANT PAGES OF GAZETTE NOTIFICATION DATED 03.04.2017. ```