O.P.(KAT) Nos.156 & 171 of 2016

O.P.(KAT)Nos.156 & 171 of 2016 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY ,THE 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940** ## **OP(KAT).No. 156 of 2016** **AGAINST THE ORDER DATED 1.9.2016 IN O.A.No.1728/2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS:** - **1 S.LIYAKATH ALIKHAN JUNIOR SUPERINTENDENT, GOVERNMENT POLYTECHNIC COLLEGE, KOTHAMANGALAM, CHELAD PO, ERNAKULAM 686681.** - **2 LEELA M HEAD ACCOUNTANT/HEAD CLERK, RAJEEV GANDHI INSTITUTE OF TECHNOLOGY, PAMPADI, KOTTAYAM 686521.** **BY ADVS.** **SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.ARJUN SANTHOSH** ## **RESPONDENTS:** - **1 BINDU R.PANICKER AGED 45 YEARS, W/O.ANIL KUMAR V, HEAD ACCOUNTANT, GOVERNMENT POLYTECHNIC COLLEGE, KALAMASSERY, ERNAKULAM 683104.** - **2 SRI.TOMY KURIAN AGED 52 YEARS, S/O.KURIAN, JUNIOR SUPERINTENDENT, GOVERNMENT POLYTECHNIC COLLEGE, MEENANGADY, WAYANAD 673 591.** - **3 SRI.V.B.RAMACHANDRAN AGED 56 YEARS, S/O.BALAKRISHNAN, RETIRED HEAD ACCOUNTANT, GOVERNMENT POLYTECHNIC COLLEGE, PERINTHALMANNA, MALAPPURAM 679321, RESIDING AT VELUTHEDATH HOUSE, NANTHIPULAM,THRISSUR-680312.** O.P.(KAT)Nos.156 & 171 of 2016 2 - **4 SRI.S.SHANAVAS** - **AGED 47 YEARS, S/O.E.E.SAINUDDIN, HEAD ACCOUNTANT, GOVERNMENT POLYTECHNIC COLLEGE, EZHUCON, KOLLAM 691 505.** - **5 SRI.KITHARU MOHAMED K AGED 50 YEARS, S/O.KUTTIPILLA, CHIEF ACCOUNTANT, GOVERNMENT ENGINEERING COLLEGE, SREEKRISHNAPURAM, PALAKKAD 679513(NOW ON DEPUTATION AT KERALA STATE OPEN SCHOOL, THIRUVANANTHAPURAM.** - **6 SRI.R.L.DOMANIC AGED 53 YEARS, S/O.R.LAZAR, HEAD ACCOUNTANT, CENTRAL POLYTECHNIC COLLEGE, THIRUVANANTHAPURAM 695013.** - **7 SRI.KAMALAKARAN C.C. AGED 50 YEARS, S/O.C.C.CHUNDAN, SENIOR CLERK,GOVERNMENT ENGINEERING COLLEGE, SREEKRISHNAPURAM,PALAKKAD 679513.** - **8 SRI.MURALEEDHARAN S AGED 49 YEARS, S/O.K.SOMARAJAN, SENIOR CLERK, GOVERNMENT POLYTECHNIC COLLEGE, EZHUKONE, KOLLAM 691 505.** - **9 SRI.SREEKANTAN C.N. AGED 55 YEARS, S/O.C.NARAYANAN, SENIOR SUPERINTENDENT, OFFICE OF THE JOINT CONTROLLER OF TECHNICAL EXAMINATIONS, KALMANAM, THIRUVANANTHAPURAM 695564.** - **10 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001.** - **11 THE DIRECTOR OF TECHNICAL EDUCATION , FORT, THIRUVANANTHAPURAM -695023.** **BY ADVS. SR GP - T. RAJASEKHARAN NAIR. DR.K.P.SATHEESAN (SR.) SMT.V.P.SHEEJA SRI.K.SUDHINKUMAR SRI.LIJIN THAMBAN SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN** O.P.(KAT)Nos.156 & 171 of 2016 3 **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 18.01.2019, ALONG WITH OP(KAT).171/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(KAT)Nos.156 & 171 of 2016 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY ,THE 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940** **OP(KAT).No. 171 of 2016** **AGAINST THE ORDER IN OA 1728/2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 03-11-2016** ## **PETITIONERS:** **1 PADMAJA J AGED 48 YEARS, D/O. JANARDHANAN PILLAI,JUNIOR SUPERINTENDENT, COLLEGE OF ENGINEERING,THIRUVANANTHAPURAM, RESIDING AT SREESUDARSHAN,KG 155, KALPAKA GARDENS, PAPPANAMCODE,THIRUVANANTHAPURAM - 695 018.** - **2 SATHYARAJ D** **AGED 55 YEARS, S/O. DEVARAJ D,JUNIOR SUPERINTENDENT, GOVERNMENT ENGINEERING COLLEGE,BARTON HILL, THRIUVANANTHAPURAM,RESIDING AT SAMUEL BHAVAN, ATTUVILAKAM,THIRUMALA P.O., THIRUVANANTHAPURAM - 695 006.** **BY ADVS. SRI.BRIJESH MOHAN SRI.RAHUL IPE PRASAD** ## **RESPONDENTS:** **1 SMT. BINDU R. PANICKER AGED 45 YEARS, W/O. ANIL KUMAR V,HEAD ACCOUNTANT, GOVERNMENT POLYTECHNIC COLLEGE,KALAMASSERY, ERNAKULAM - 683 104. 2 SRI.TOMY KURIAN AGED 52 YEARS, S/O. KURIAN, JUNIOR SUPERINTENDENT,GOVERNMENT POLYTECHNIC COLLEGE,** O.P.(KAT)Nos.156 & 171 of 2016 5 ## **MEENANGADY,WAYANAD - 673 591.** - **3 SRI.V.B.RAMACHANDRAN** **AGED 56 YEARS, S/O. BALAKRISHNAN,RETIRED HEAD ACCOUNTANT,GOVERNMENT POLYTECHNIC COLLEGE,PERINTHALMANNA, MALAPPURAM - 679 321,RESIDING AT VELUTHEDATH HOUSE,NANTHIPULAM, THRISSUR - 680 312.** - **4 SRI.S.SHANAVAS AGED 47 YEARS, S/O. E.E.SAINUDDIN,HEAD ACCOUNTANT, GOVERNMENT POLYTECHNIC COLLEGE,EZHUCON, KOLLAM - 691 505.** - **5 SRI.KITHARU MOHAMED K AGED 50 YEARS, S/O. KUTTIPILLA, CHIEF ACCOUNTANT,GOVERNMENT POLYTECHNIC COLLEGE, SREEKRISHNAPURAM,PALAKKAD - 679 513 (NOW ON DEPUTATION AT KERALA STATE OPEN SCHOOL, THIRUVANANTHAPURAM).** - **6 SRI.R.L.DOMANIC AGED 53 YEARS, S/O.R.LAZAR,HEAD ACCOUNTANT, CENTRAL POLYTECHNIC COLLEGE,THIRUVANANTHAPURAM - 695 013.** - **7 SRI.KAMALAKARAN C.C AGED 50 YEARS, S/O.C.C.CHUNDAN,SERNIOR CLERK, GOVERNMENT ENGINEERING COLLEGE,SREEKRISHNAPURAM, PALAKKAD - 679 513.** - **8 SRI.MURALEEDHARAN S AGED 49 YEARS, S/O.K.SOMARAJAN, SENIOR CLERK,GOVERNMENT POLYTECHNIC COLLEGE, EZHUKONE,KOLLAM - 691 505.** - **9 SRI.SREEKANTAN C.N AGED 55 YEARS, S/O.C.NARAYANAN,SENIOR SUPERINTENDENT, OFFICE OF THE JOINT CONTROLLER OF TECHNICAL EXAMINATIONS,KAIMANAM, THIRUVANANTHAPURAM - 695 564.** - **10 STATE OF KERALA** **REPRESENTED BY THE SECRETARY TO GOVERNMENT,HIGHER EDUCATION DEPARTMENT, GOVERNEMNT SECRETARIAT,THIRUVANANTHAPURAM - 695 001.** - **11 THE DIRECTOR OF TECHNICAL EDUCATION FORT, THIRUVANANTHAPURAM - 695 023.** O.P.(KAT)Nos.156 & 171 of 2016 6 **12 S.LIYAKATH ALIKHAN JUNIOR SUPERINTENDENT, GOVERNMENT POLYTECHNIC COLLEGE,KOTHAMANGALAM, CHELAD P.O.,ERNAKULAM - 686 681.** **13 LEELA M HEAD ACCOUNTANT/HEAD CLERK,RAJEEV GANDHI INSTITUTE OF TECHNOLOGY,PAMPADI, KOTTAYAM - 686 521.** **BY ADVS. SR.G.P.SRI.T.RAJASEKHARAN NAIR SRI.ARJUN SANTHOSH DR.K.P.SATHEESAN (SR.) SMT.M.U.VIJAYALAKSHMI SRI.B.PRAMOD SRI.K.JAJU BABU (SR.) SRI.K.SUDHINKUMAR SRI.P.MOHANDAS (ERNAKULAM) SRI.S.VIBHEESHANAN** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 18.01.2019, ALONG WITH OP(KAT).156/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(KAT)Nos.156 & 171 of 2016 7 ## **JUDGMENT** ## **Ravikumar, J.** The former Original Petition is filed against the order dated 1.9.2016 passed by the Kerala Administrative Tribunal in O.A.No.1728 of 2015 by respondents 3 and 4 therein. The latter Original Petition has been filed against the order in R.A.No.31 of 2016 passed by the Tribunal in the aforesaid Original Application. The latter Original Petition has been filed by third parties viz., by the review applicants to the Original Application. The applicants and the other respondents in the O.A are the respondents in the former Original Petition. In the latter Original Petition filed by the third parties to the Original Application the applicants and all other respondents in the Original Application including the petitioners in the former Original Petition, are arrayed as respondents. The applicants, who are respondents in both the Original Petitions, moved O.A.No.1728 of 2015 seeking the following reliefs:- i) to set aside Annexure-A11 final gradation list of L.D.Clerk/Clerk-Typist in the Department of Technical Education published by the 2[nd] respondent as per Circular No.EG3/783/2010 dated 21.03.2015 as it is arbitrary, illegal and void. O.P.(KAT)Nos.156 & 171 of 2016 8 ii) to set aside Annexure-A12 revised seniority list of U.D.Clerks published by the 2[nd] respondent as Order No.ED1/10774/2015(1) dated 26.3.2015 as it is legally unsustainable. iii) to set aside Annexure-A13 order of promotion from head Clerk to Junior Superintendent and reversion from Senior Superintendent to Junior Superintendent published by the 2[nd] respondent as Order No.ED1/10774/2015(2) dated 26.3.2015 as it violates all principles of natural justice; iv) to set aside Annexure-A14 order of promotion from the post of Senior Clerk to Head Clerk and reversion from the post of Junior Superintendent to head Clerk published by the 2[nd] respondent as Order No.ED1/10774/2015(3) dated 26.3.2015 as it is arbitrary, illegal and unjust: v) to set aside Annexure-A15 order of reversion from the post of Junior Superintendent as Senior Clerks issued by the 2[nd] respondent as Order No.ED1/10774/2015(4) dated 26.3.2015 as the same is vitiated with malafides and ill motives; vi) to set aside Annexure-A17 Government order G.O.(Rt)No.1805/15/H Edn. dated 15.7.2015 issued by the first respondent as it is arbitrary, illegal and void; vii) to set aside Annexure-A18 circular No.ED1/50504/14/DTE dated 15.9.2015 issued by the 2[nd] respondent as it is legally unsustainable: viii) to declare that the applicants are also entitled to retain their seniority in the cadre of L.D.Clerk/U.D.Typist as reflected in ## O.P.(KAT)Nos.156 & 171 of 2016 9 Annexure-A1 to A5 seniority lists since the applicants' juniors are allowed to retain their seniority without any alteration: ix) to declare that the applicants are entitled to get the protection declared by the Hon'ble High Court of kerala in Annexure-A9 and A10 judgments since the persons in the Writ Petition are similarly placed like the applicants and their seniority is reckoned with effect from their date of advice by P.S.C/appointment. 2. The petitioners in the former Original Petition/respondents 3 and 4 in the Original Application and the official respondents filed separate reply statements countering the contentions raised by the applicants in support of their claims and contentions. After considering the rival contentions and perusal of the materials on record, the Tribunal allowed the Original Application and set aside Annexures-A11 to A15 and A18 in so far as to they re-fix the assigned seniority of the applicants in the respective seniority lists viz., Annexures-A1 to A5, resulting in their reversion from the promoted post and recovery of salary. It was further declared that the applicants are entitled to retain their seniority in the cadre of LD Clerk/UD Typist as reflected in Annexure A1 to A5. As per the said order the official respondents are also under an obligation to pass orders to O.P.(KAT)Nos.156 & 171 of 2016 10 retain the applicants in the promoted post. Pursuant to the passing of the said order in the Original Application the petitioners in the latter Original Petition, who were not parties in the Original Application moved the Tribunal seeking review of the order dated 1.9.2016 passed in O.A.No.1728 of 2015 holding that there is no error apparent on the face of the record for entertaining the Review Application. The said Review Application was dismissed as per order dated 3.11.2016. It is in the said circumstances that respondents 3 and 4 in the said Original Application filed the former Original Petition and the third parties, who were the applicants in RA No.31 of 2016, filed the latter Original Petition. 3. We have heard the learned Senior Counsel appearing for the petitioners in both the Original Petitions Sri. Jaiju Babu, the learned senior counsel Sri.K.P.Satheesan appearing for the party respondents who were applicants before the Tribunal and also the learned Senior Government Pleader. 4. For a proper disposal of the Original Petitions, it is necessary to refer to the facts of the case compendiously. The lis involved in this case is regarding the inter-se seniority in the cadre of LD Clerk/LD Typist and UD Clerk/UD Typist in the Technical Education Department pertaining to the period O.P.(KAT)Nos.156 & 171 of 2016 11 from 1.4.1988 to 31.3.2009. Annexure-A1 is a seniority list published as per Circular dated 10.10.1996 of LD Clerk/UD Typist who have passed account test/completed 50 years of age and thus eligible for promotion as UD Clerk, as on 9.9.1994. Annexure-A2 is the Circular dated 3.1.1998 whereby the final seniority list of the aforesaid categories, as on 22.10.1996, was published. 5. Annexure-A3 is the seniority list published as per Circular dated 14.10.1998, of the aforesaid categories, as on 6.5.1997. Annexure-A4 is the seniority list of aforesaid categories published as per circular dated 31.1.2000 as on 7.11.1998 and Annexure-A5 is a final seniority list of UD Clerks promoted during the period from 1.4.1988 to 31.3.1999 published as per order dated 22.12.2000. Subsequent to the publication of the aforesaid seniority lists, on the question whether inter district transferees had to forgo their seniority, the Hon'ble Apex Court rendered a decision in **Sudhakaran v. State of Kerala (2006(2) KLT 817)** . Finding that in the aforesaid seniority list, seniority of inter district transferees were not fixed in accordance with the dictum in **Sudhakaran'** s case and in fact ignoring the relevant orders governing the seniority of such persons. Pursuant to ## O.P.(KAT)Nos.156 & 171 of 2016 12 inter district transfer (DRB Rules), one S.Aji who was a LD Clerk and one S.S.Suja, a UD Clerk, of the said department, moved this court by filing WP(C)No.20519 of 2008. The said Writ Petition was disposed of as per Annexure-A6 (in Ext P1 judgment dated 16.7.2008) with a direction to the Government to give clarification as required by the Director and to finalise Exts P2 to P5, marked as such in the said Writ Petition, within the time stipulated therein. It was also made clear that in case of delay in the matter of obtaining clarifications from the Government, the Director shall proceed to finalise the lists in accordance with law without waiting for clarification from the Government, taking note of the law declared by the Apex Court in _**Sudhakaran**_ 's case supra. Annexure-A6 judgment was taken up in appeal. The said appeals viz.W.A.No.382 of 2009 and 1737 of 2008 were disposed of by a common judgment dated 23.3.2009 (Annexure-A7 in Ext P1). It is evident from Annexure-A7 that the Division Bench observed that the learned Single Judge ought not have directed to finalise the seniority lists in the light of the decision of the Apex Court in _**Sudhakaran**_ 's case (supra) without hearing the parties and based on such observation the question regarding the applicability of ## O.P.(KAT)Nos.156 & 171 of 2016 13 _**Sudhakaran**_ 's case in the matter of finalisation of seniority list was left open, but the direction to finalise the seniority list was kept in tact. Subsequent to Annexures-A6 and A7 judgments and on obtaining the clarification, the Director of Technical Education as per Order dated 6.1.2010 published the final seniority list of L.D.Clerks pertaining to the period from 1.4.1988 to 31.3.2009. Obviously, Annexure-A8 would reveal that virtually pursuant to the said judgments, the Director had issued final seniority list of LD Clerks/UD Typists who are eligible for promotion to the post of UD Clerks. It is to be noted that only an extract of the list published as per order dated 6.1.2010 was produced by the applicants as AnnexureA8. In Annexure-A8 dated 6.1.2010, admittedly the seniority of LDCs were fixed based on district wise recruitment board rules. Certain persons who feel aggrieved by Annexure-A8 approached this Court mounting challenge against AnnexureA8. To be precise, 5 among them filed WP(C) No.4643 of 2010 and the other person filed WP(C) No.10475 of 2010. The said Writ Petitions were allowed as per Annexure-A9 common judgment dated 9.12.2010. Annexure-A8 (in Ext P1) marked as such in O.P(KAT) No.156 of 2016 was produced in the said Writ Petitions and it was marked as Ext P29 in WP(C) No.4643 O.P.(KAT)Nos.156 & 171 of 2016 14 of 2010 and as Ext P12 in WP(C) No.10475 of 2010. Holding that the entire exercise leading to Ext P29 in WP(C) No.4643 of 2010 (Ext P12 in WP(C) No.10475 of 2010) being violative of sit back theory the learned Single Judge set aside Exts P24, P25 and P29. Consequently, it was declared that seniority lists published and appended to Ext P29 as Ext P29(a) could not be sustained. After making such a declaration, the Tribunal made a further declaration as hereunder:- “It is declared that the petitioners in both Writ Petitions are entitled to claim seniority based on Exts P6 to P10, and they are settled seniority, accordingly.” 6. Against Annexure-A9 judgment, two appeals viz. WA Nos.138 & 150 of 2011 were filed. The said appeals were jointly heard and disposed of as per Annexure-A10 judgment dated 26.2.2015. Evidently, as per Annexure-A10 judgment, Annexure-A9 judgment was modified to certain extent as specifically mentioned therein. Subsequent to Annexure-A10 judgment, the final seniority list of LD Clerks/Clerks-Typists appointed during the period from 1.4.1988 to 31.3.2009 was published as per Circular dated 21.3.2015. In other words, pursuant to Annexure-A10 judgment, Annexure-A8 was modified and the modified list was published as AnnexureA11. Pursuant to Annexure-A11, Annexures A12 to A15 orders O.P.(KAT)Nos.156 & 171 of 2016 15 effecting promotions in different cadres (viz.U.D Clerk to Junior Superintendent) were issued. Subsequent to the publication of Annexure-A11 list, some personnel who were aggrieved by the same filed appeals before the Government under Rule 27B of K.S & S.S.R. Aggrieved by the delay in the matter of disposal of such appeals some of them approached the Kerala Administrative Tribunal by filing O.A.No.600 of 2015. The same was disposed of as per Annexure-A16 judgment dated 10.4.2015. Evidently, Annexures A12 to A15 (promotion/reversion) herein were marked therein as Annexures A13 to A16 and Annexure A11 final gradation list was produced therein as Annexure A12. The operative portion of Annexure-A16 reads thus:- “The validity of Annexures A13 to A16 will depend upon the validity of Annexure A12 final gradation list which is already under challenge before the appellate authority. Annexure A13 is the consequential promotion list of U.D.Clerks. Annexures A14 to A16 are the reversion orders. Having regard to the facts of the case, if the applicants have not been actually relieved from the present post to the lower posts and substitutes have not joined in their place pursuant to Annexures A14 to A16, status quo as on today shall be maintained till the Government considers and pass final orders on the stay petitions preferred by the applicants along with the appeals they have preferred challenging Annexure A12. The applicants shall produce ## O.P.(KAT)Nos.156 & 171 of 2016 16 a copy of this order before the first respondent without any further delay.” 7. Obviously, some others had also filed Original Applications feeling aggrieved by Annexure A11 seniority list. Based on the directions contained in the orders passed in the said Original Applications including the one in Annexure A16, the Government had considered the appeals and disposed of them as per Annexure A17. A perusal of Annexure A17 would reveal that Government held that the benefits flowing from Annexure A10 judgment of the Division Bench could not be extended to similarly placed persons as they should be deemed to have acquiesced their rights. That apart it is stated therein thus: “It is not then permissible for such persons to turn around and claim the benefits granted to the petitioners in the Writ Petition at this distance of time. Moreover, the benefit having been specifically extended to the petitioners alone by the Division Bench, it is not legal or proper to extend the same to third parties who have not challenged the said judgment.” In the above circumstances, the request of the petitioners in the above OAs and the request in the MA2 appeal petition for re-fixing the seniority list as per the date of advise by PSC is rejected, as the request is detrimental to DRB Rules, violation of which would result in unending litigations and injustice”. O.P.(KAT)Nos.156 & 171 of 2016 17 Consequently, Annexure A18 Circular dated 15.9.2015 was issued to effect recovery of excess salary received essentially, holding their promotions based on the seniority in AnnexureA11, as illegal. It is the said developments that lead to the filing of O.A.No.1728 of 2015 which culminated in the order dated 1.9.2016. 8. The senior counsel appearing for the petitioners in the captioned Original Petitions as also the learned Government Pleader contended that the Tribunal went wrong in allowing the Original Application and in setting aside Annexure-A11 and in issuing consequential directions, in the light of AnnexureA10 judgment. It is submitted that taking into account the indisputable position that the party respondents in the Original Applications who were applicants before the Tribunal after their initial entry in service got inter departmental transfer and thus lost their seniority in terms of the DRB Rules could not have been restored in the light of DRB Rules and more particularly in the light of Annexure-A10 judgment. It is submitted by them that a perusal of Annexure-A10 judgment would reveal that though Annexure A8 seniority list (viz. Annexure A29 in the former Writ Petition disposed of as per Annexure-A7 judgment) was set aside the Division Bench ## O.P.(KAT)Nos.156 & 171 of 2016 18 modified the order under Annexure-A9 and confined the relief to the petitioners as per Annexure-A10. They drew our attention to paragraph 22 of Annexure-A10 judgment which read thus:- “22. We however, are of the view that in the facts and circumstances of the present case the entire seniority list, Ext P29 was not required to be quashed. The learned Single Judge ought to have directed maintenance of seniority position of petitioners as per Exts P6 to P10 treating their initial date of advice for reckoning seniority and direction would have been issued to revise the seniority as far as the petitioners of both the writ petitions are concerned. We thus are of the view that judgment of the learned Single Judge need to be modified.” 9. After taking such a view and making such observations in paragraph 22 in Annexure-A10, those Appeals were disposed of with the following directions:- (i) Petitioners are entitled to claim seniority based on Exts P6 to P10 (in WP(C) No.4643 of 2010). (ii) Exhibit P29 in WP(C) No.4643 of 2010 and Ext P12 in W.P.(C) No.10475 of 2010 are modified to the extent that petitioners be assigned their seniority as per the date of advice by the Kerala Public Service Commission and accordingly modify the seniority list, Ext P29 in WP(C) No.4643 of 2010 and Ext P12 in W.P.(C) No.10475 of 2010. (iii) The consequential order be issued by the O.P.(KAT)Nos.156 & 171 of 2016 19 Director of Technical Education within one month from the date of copy of this judgment is produced before him. Thus, it can be seen that the benefit of the order in AnnexureA9 was ordered to be confined only to the petitioners in WP(C) No.4643 of 2010 and WP(C)No.10475 of 2010 and in their case going by direction No.(ii) therein the Division Bench directed to assign them seniority as per the date of advice by the Kerala Public Service Commission and the seniority list viz., Ext P29 in WP(C) No.4643 of 2010, which is Ext P12 in WP(C) No.10475 of 2010, was directed to be modified only in that regard, it is submitted. It is further submitted by them that the Director of Technical Education had passed the order impugned before the Tribunal based on the direction therein. In the said circumstances, it is further submitted that when none of the parties had challenged Annexure-A10 judgment and thereby allowed Annexure-A10 judgment to become final, then Annexure-A8 seniority list could have been modified only, and strictly in accordance with, Annexure-A10. In other words, according to them, in the case of persons who got inter district transfers except in the case of petitioners in WP(C) No.4643 of 2010 and WP(C) No.10475 of 2010 all others whose names were figured in Annexure-A8 they were to forfeit O.P.(KAT)Nos.156 & 171 of 2016 20 their seniority and it is in fact, that position which was reflected in Annexure-A11. They further contended that the Tribunal had failed to take note of the actual impact and effect of Annexure-A10 judgment and a perusal of the impugned order passed by the Tribunal would reveal that ignoring the said crucial fact that Annexure-A9 was modified by the Division Bench under Annexure-A10, it treated that the question was virtually concluded by Annexure-A9 judgment. Shortly stated, according to them it is based on that misconception that the impugned order was rendered by the Tribunal. In such circumstances, the impugned order of the Tribunal invites interference, it is submitted. 10. Per contra, the learned Senior Counsel appearing for the party respondents in the captioned Original Petitions who were applicants before the Tribunal, contended that the Tribunal was perfectly justified in extending the benefit given to the petitioners in WP(C) No.4643 of 2010 and WP(C) No.10475 of 2010 under Annexure-A10 to all similarly situated persons. It is the further contention of the learned senior counsel that if the application of Annexure-A10 is confined only to the petitioners in the aforesaid Writ Petitions then, it would lead to an anomalous situation where similarly situated ## O.P.(KAT)Nos.156 & 171 of 2016 21 viz., persons who obtained inter district transfers, seniority would be fixed by adopting different method. In the case of the petitioners in the aforesaid Writ Petitions based on Annexure-A10 their seniority was admittedly fixed based on the date of advice made by the Kerala Public Service Commission and in the case of the other inter district Transferees who are similarly situated to the petitioners therein, their seniority was fixed based on the DRB Rules, entailing loss of seniority as a consequence of inter district transfer. It is this anomaly which was virtually averted by the Tribunal as per the impugned order, it is contended. The learned senior counsel further contended that a perusal of Annexure-A9 judgment would reveal that Ext P29 in WP(C) No.4643 of 2010 which is Ext P12 in WP(C) No.10475 of 2010 (which is Annexure-A8 in the former OP(KAT) No.156 of 2016) was interfered with by the learned Single Judge holding that inter district transferees whose seniority was settled as per Annexures-A1 to A5 are entitled to the benefit of sit back theory. In such circumstances, the seniority of such persons fixed and settled under Annexures A1 to A5 should not have been disturbed under Annexure-A8 which is Ext P29 in WP(C) No.4643 of 2010 and Ext P12 in WP(C) No.10475 of 2010. It ## O.P.(KAT)Nos.156 & 171 of 2016 22 is based on such finding that consequential directions were issued. In such circumstances, according to the learned Senior Counsel appearing for the respondents, who were applicants in the aforesaid Original Application, the Tribunal had rightly extended the benefit of Annexure-A10 to similarly situated inter district transferees. When that be the position, the impugned order does not invite any interference, it is contended. To buttress the said contention the learned senior counsel relied on the decisions of the Apex Court in **K.T.Veerapa and others v. State of Karnataka and others (2006)9 SCC 406)** and the decision in **State of Karnataka & others v C.Lalitha (2006)2 SCC 747.** A judgment of the learned Single Judge of this Court in **Somukuttan Nair** v **State of Kerala** reported in **(1997(1) KLT 601)** was also relied to fortify the said contention. Countering the aforesaid contentions made by the learned Senior Counsel relying on the aforementioned decisions and to canvas the point that in the light of Annexure-A10, the Tribunal was not justified in extending the benefit of Annexure-A10 to anyone other than the petitioners in WP(C) Nos.4643 and 10475, of 2010. The learned Senior Counsel appearing for the petitioners also relied on the decision of the Division Bench of this Court in ## O.P.(KAT)Nos.156 & 171 of 2016 23 **Ramachandran v. Food Corporation of India** reported in **(1989 (2) KLT 116)** , in support of the contentions. The learned senior Government Pleader, in order to drive home the same point that the benefit of Annexure-A10 should not have been extended to persons who were not parties to WP(C) Nos.4643 & 10475 of 2010 relied on a judgment of the Hon'ble Apex Court in Civil Appeal No.9849 of 2014 arising from SLP(C) No.18639 of 2012 dated 17.10.2014. 11. It is also relevant to note that the learned Senior Counsel appearing for the respondents herein who were applicants in the Original Application, contended that the applicants are not virtually challenging Annexure-A10 but their contention is that being similarly situated to petitioners in WP(C) Nos.4643 & 10475, of 2010 and when they were also found entitled to the benefit of sit back theory by the learned Single Judge, in the light of the said decisions referred (supra) there is absolutely no illegality warranting an interference with the impugned judgment. 12. We will proceed to consider the tenability of the rival contentions in the light of the binding decisions as also in the light of Annexure- A10. It is a fact that Annexure- A17 was passed after considering the appeal petitions against O.P.(KAT)Nos.156 & 171 of 2016 24 Annexure-A11 based on the directions of a Division Bench in Annexure-A10. It is also a fact that the challenge against Annexures A1 to A5 which ultimately culminated in Annexure A8 seniority list and it is the challenge against Annexure A8 that was considered firstly by the learned Single Judge in Annexure-A9 and then by the Division Bench in Annexure A10, that lead to the issuance of Annexure-A11. We have already extracted the operative portion of Annexure-A10 judgment. A bare perusal of Annexure-A10 judgment would reveal that Annexure A9 judgment of the learned Single Judge in WP(C) Nos.4643 & 10475 of 2010 was modified by the Division Bench to certain extent. The Division Bench, in unambiguous terms, held that seniority should be fixed reckoning the date of advise made by the Public Service Commission only in the case of petitioners in the aforesaid two Writ Petitions. It is to be noted that the Division Bench as per Annexure-A10 ordered to confine that benefit after fully realising the fact that going by Annexure-A9 judgment it was made available to all similarly situated persons. After issuing such a specific direction under paragraph 12 (ii) a further consequential direction was also issued by the Division Bench where under the Director of Technical Education was directed to pass ## O.P.(KAT)Nos.156 & 171 of 2016 25 consequential orders strictly in terms of Annexure-A10. In such circumstances, there can be no doubt that Annexure-A11 seniority list is nothing but the outcome of consideration and finalisation of seniority list strictly in terms of Annexure-A10. Evidently, as per Annexure-A11 in the case of inter district transferees virtually the official respondents applied DRB Rules, except in the case of the petitioners in WP(C) Nos.4643 & 10475, of 2010, in compliance with the directions in Annexure-A10 judgment. In such circumstances, the question to be considered is whether inter district transferees other than the petitioners in WP(C) Nos.4643 and 10475, of 2010, whose name were included in Annexures A1 to A5 could retain seniority reckoning the date of advice of the Public Service Commission despite their inter district transfer, ignoring Annexure-A10 judgment? As noticed herein-before, the precise case of the party respondents who were applicants in the Original Application is that for getting the benefit of Annexure-A10 judgment there is absolutely no necessity to challenge Annexure-A10 judgment. According to them, the only question to be looked into for the purpose of considering whether they are entitled to the benefit of Annexure-A10 is whether they are also similarly situated to the petitioners in O.P.(KAT)Nos.156 & 171 of 2016 26 the aforesaid Writ Petitions viz., in (WP(C) Nos.4643 & 10475 of 2010). According to them, in the light of the decisions in _**K.T.Veerapa**_ 's case, _**Lalitha**_ 's case and also _**Somukuttan Nair**_ 's case and applying the principle that once the courts declared the law Government is bound to implement the same uniformly to all officers concerned and the others who are similarly situated need not be dragged to the court. The Tribunal cannot be said to have committed an error warranting an interference in exercise of the power of judicial review. The question is how far the said contentions can be sustained in the light of Annexure-A10 judgment. 13. We have carefully gone through the said judgment relied on by the learned senior counsel appearing for the party respondents in the Original Petitions who were applicants before the Tribunal. Evidently, in all those cases, there was absolutely no specific direction as has been made by this court in Annexure A10. Therefore, the question cannot be considered in the light of those decisions without considering the effect and impact of Annexure A10 judgment. As per the same, the setting aside of Ext P29 seniority list viz., Annexure A8 herein was interfered with by the Division Bench and it was ordered that in the case of inter district transferees O.P.(KAT)Nos.156 & 171 of 2016 27 included in the lists concerned the benefit of reckoning of seniority based on the date of advise by the Public Service Commission should be confined only to the petitioners in WP(C) Nos.4643 & 10475, of 2010. We have already extracted the operative portion of Annexure-A10 judgment of the Division Bench whereby Annexure-A9 judgment was modified. Without a challenge against the said judgment how could the benefit flowing from AnnexureA10 be extended to others”. In this context it is also to relevant to note that when such a specific direction has been given by the Division Bench how could the Tribunal ignore the effect and impact of AnnexureA10 and then issue a declaration that the benefit is available to all similarly situated persons, which is totally against the direction in Annexure-A10. The question is whether it would amount to interference with Annexure A10 judgment? The existence of Annexure A10 judgment, according to us would make the decisions of the Hon'ble Apex Court in _**K.T.Veerapa**_ 's case (supra), _**C.Lalitha**_ 's case and also the learned Single Judge's decision in _**Somukuttan Nair**_ 's case inapplicable, in the cases on hand. We have already found that after taking into account the fact that the learned Single Judge under Annexure-A9 interfered with Annexure-A8 herein (viz. O.P.(KAT)Nos.156 & 171 of 2016 28 Ext P29 in WP(C) Nos.4643 and Ext P12 in W.P(C) No.10475 of 2010), a Division Bench of this court modified the same and specifically ordered that the reckoning of seniority based on date of advise of P.S.C be given only in the case of the petitioners in the said Writ Petitions. When such a specific direction is given by a Division Bench of this Court, after taking into account the position in Annexure-A9 judgment all similarly situated persons were extended the benefits how can the Tribunal virtually, extend the benefit of Annexure-A9 or Annexure-A10, solely in the light of the specific order in Annexure-A10. The Tribunal could not have ordered to extend the benefit flowing from Annexure-A10 to anyone other than the petitioners in WP(C) Nos.4643 of 2010 and WP(C)No.10475 of 2010. In fact, by ordering to extend such benefits to others the Tribunal had virtually restored the position obtained under Annexure-A9 judgment. In this context, it is also relevant to note that after Annexure-A10, Annexure-A9 judgment cannot have an independent existence and it really merged in Annexure-A10 judgment. In the contextual situation it is only apropos to refer to paragraphs 81 and 82 of the decision of the Apex Court in **Union of India and others v Major S.P.Sharma and others** reported in O.P.(KAT)Nos.156 & 171 of 2016 29 ## **(2014) 6 SCC 351)** . “81. Thus, the principle of finality of litigation is based on a sound firm principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end to litigation. The doctrine of re judicata has been evolved to prevent such anarchy. 82. In a country governed by the rule of law, the finality of a judgment is absolutely imperative and great sanctity is attached to the finality of the judgment and it is not permissible for the parties to reopen the concluded judgments of the court as it would not only tantamount to merely an abuse of the process of the court but would have far-reaching adverse effect on the administration of justice. It would also nullify the doctrine of stare decisis, a wellestablished valuable principle of precedent which cannot be departed from unless there are compelling circumstances to do so. The judgments of the court and particularly of the Apex Court of a country cannot and should not be unsettled lightly.” 14. In the said decision the Apex Court held that the principle of finality of litigation is based on the sound form principle of public policy. Non-adherence to the said principle would create anarchy and would lead to an unending process of litigation and it is to curb such situation that the doctrine of res judicata has been evolved. In this context, it is to be noted that it was the very issue which was considered by this court ## O.P.(KAT)Nos.156 & 171 of 2016 30 and which ultimately culminated in Annexure-A10. It was considered whether merely by applying sit back theory inter district transferees concerned who were included in Annexures-A1 to A5 could claim for protection of seniority. In other words fixation of their seniority disregarding the impact of inter district transfer could be protected? In this context it is also to be noted that there cannot be any doubt with respect to the impact of the application of DRB Rules. On its application seniority of inter district transferees, in other words inter unit transferees, when district is the unit, on request, would be determined with reference to the date of their joining duty in the new Unit. In that context it is also to be noted that in the case on hand it is not pleaded and established that Unit is State. In other words, Unit in the case on hand is indisputably districts. In such circumstances, the application of DRB Rules would necessarily curtail the right of such transferees to reckon their seniority based on their past service. In other words, in their case their seniority could be determined only with reference to the date of joining duty in the new Unit based on transfer, on their request. It is to be noted that this exactly is the impact of the proviso to explanation (2) Rule 27A of Part II of K.S & S.S.R. The said ## O.P.(KAT)Nos.156 & 171 of 2016 31 proviso was introduced by GO(P) No.11/76/PD dated 13.1.1976 and was published as per SRO No.149/76 in KG No.5 dated 3.2.1976. 15. As noticed hereinbefore, relying on the decisions in **K.T.Veerapa's** case, **Lalitha's** case and **Somukuttan Nair's** case (supra) the respondents would contend that when a specific question was considered and decided by a Court persons similarly situated could not be dragged to the Court and the persons similarly situated are also entitled to get the fruit of a third party decision. In **K.T.Veerapa's** case (supra) the question involved was with respect to the pay and allowances of teaching and non-teaching staff in the University of Mysore pursuant to revision of pay scales and also for consequential benefits. Some persons claimed the benefit and ultimately the court found that they are entitled to revised pay and allowances. The similarly situated persons filed writ petitions seeking same benefits. The question posed for consideration and virtually considered was whether such persons could be denied the same benefits. It is while considering that question that the Apex Court observed that the other employees identically placed could have been given the same benefits and extension of such benefits would avoid O.P.(KAT)Nos.156 & 171 of 2016 32 unnecessary litigation. In **Lalitha's** case (supra) the Apex Court held that all persons similarly situated should be treated similarly irrespective of the fact that only one person had approached the court. In **Somukuttan Nair's** case (supra) a Single Bench of this Court held that when the Courts declared the law, the Government is bound to implement the same uniformly. At the very out set it is noted that in the cases on hand the Court had declared a law. Evidently, what was considered is the question of seniority in respect of some persons who claimed protection of their seniority based on the principle of sit back theory. In such circumstances, there can be no doubt with respect to the position that the decisions in **Somukuttan Nair's** case, **Lalitha's** case as also **K.T.Veerapa's** case (supra) got no application in the cases on hand. The sit back theory is a matter which should be looked into with respect to the factual situation obtained in respect of the individual/individuals concerned who dispute and challenge the change in seniority, rather protection of seniority. There can be no dispute regarding the position of law settled in those cases. But, when a patent error was committed ignoring a provision of law the inherent power must be available with the authorities to correct the same. It ## O.P.(KAT)Nos.156 & 171 of 2016 33 is only because of the finality attained that the petitioners in W.P.(C)Nos34643 and 10475, of 2010 were given protection of seniority. It is true that in their case favourable order was issued relying on the principle of sit back theory. In the cases on hand, what makes those decisions inapplicable is Annexure-A10 judgment. As per Annexure-A9 judgment, Ext.P29 in W.P.(C)No.4643 of 2010 and Ext.P12 in W.P. (C)No.10475 of 2010 viz., Annexure-A8 herein was set aside. The benefit flowing from Annexure-A9 was available to all concerned. But, as an impact of modification of Annexure-A9 judgment by the Division Bench under Annexure-A10 Annexure-A9 got merged with it. At the risk of repetition, we would refer to the directions made as per Annexure-A10 in modification of the order of the Single Bench in Annexure-A9 and they read thus:- - “(i) Petitioners are entitled to claim seniority based on Exts.P6 to P10 (In W.P.(C)No.4643 of 2010). - (ii) Exhibit P29 in W.P.(C)No.4643 of 2010 and Ext.P12 in W.P.(C)No.10475 of 2010 are modified to the extent that petitioners be assigned their seniority as per the date of advice by the Kerala Public Service Commission and accordingly modify the seniority list, Ext.P29 in W.P.(C)No.4643 of 2010 and Ext.P12 in W.P.(C)No.10475 of 2010. ## O.P.(KAT)Nos.156 & 171 of 2016 34 - (iii) The consequential order be issued by the Director of Technical Education within one month from the date of copy of this judgment is produced before him.” The impact of the modification of Annexure-A9 judgment by the Division Bench in Annexure-A10 is that the benefit flowing from Annexure-A9 which was available to all similarly situated was restricted only to the petitioners in W.P.(C)Nos.4643 of 2010 and 10475 of 2010. When a judgment was modified by a Division Bench in such a manner and that such an order was allowed to attain finality none can be permitted to canvass the position that the benefit under Annexure-A10 is available to all similarly situated persons and it could not be confined to the petitioners in W.P.(C)Nos.4643 of 2010 and 10475 of 2010. The Tribunal, as per the impugned order, virtually restored the position available under Annexure-A9 and evidently, in that regard, the specific directions of the Division Bench in Annexure-A10 was ignored. The impact of Annexure-A10 was ignored while giving effect to, rather, following Annexure-A9 judgment. It is evident that the respondents herein had never challenged Annexure-A8 order. In such circumstances, the very principle of sit back theory would apply with some force against them as well, in the light of Annexure-A10 judgment. ## O.P.(KAT)Nos.156 & 171 of 2016 35 They cannot be permitted to get over the situation by relying on the decisions in **K.T.Veerapa's** case, **Lalitha's** case and **Somukuttan Nair's** case (supra). In the said circumstances, the impugned order passed by the Tribunal in O.A.No.1728 of 2015 dated 1.9.2016 invites interference. The order in O.A.No.1728 of 2015 is set aside. Consequently, O.A.No.1728 of 2015 is dismissed. In such circumstances, the order in R.A.No.31 of 2016 in O.A.No.1728 of 2015 would pale into insignificance. The petitioners in O.P.(KAT)No.171 of 2016 are also entitled to get the benefit under the judgment in O.P. (KAT)No.156 of 2016 or in other words, in their case also Annexure-A11 would govern the question of seniority. The Original Petitions are disposed of, accordingly. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **V.G.ARUN JUDGE** cms/TKS O.P.(KAT)Nos.156 & 171 of 2016 36 ## **APPENDIX OF OP(KAT) 156/2016** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1** - **TRUE COPY OF THE OA.1728/2015 ALONG WITH ANNEXURES A1 TO A18 FILED BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,THIRUVANANTHAPURAM.** - **EXHIBIT P2 TRUE COY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 2ND RESPONDENT IN OA.1728/2015 BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,THIRUVANANTHAPURAM ALONG WITH ANNEXURE R2(A).** - **EXHIBIT P3 TRUE COPY OF THE REJOINDER IN OA.NO.1728/2015 ALONG WITH ANNEXURE.A19 TO A21 FILED BEFORE THE KAT, THIRUVANANTHAPURAM.** **EXHIBIT P4** - **TRUE COPY OF THE ORDER DATED 01.09.2016 IN OA.1728/2015 PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT-R11(A)** - TRUE COPY OF THE ORDER DATED 09/12/2016 ISSUED BY THE DIRECTOR OF TECHNICAL EDUCATION. **EXHIBIT R1 A** TRUE COPY OF THE ORDER NO.ED1/7884/16/DTE DATED 05/12/2016 PASSED BY THE 11TH RESPONDENT. **EXHIBIT R1 B** TRUE COPY OF THE ORDER NO.ED1/7801/16/DTE DATED 05/12/2016 PASSED BY THE 11TH RESPONDENT. - **EXHIBIT R1 C** TRUE COPY OF THE ORDER NO.ED1/3425/16/DTE DATED 05/12/2016 PASSED BY THE 11TH RESPONDENT. ## **APPENDIX OF OP(KAT) 171/2016** ## **PETITIONERS' EXHIBITS:** **P1** **TRUE COPY OF THE OA 1728/2015 ALONT WITH ANNEXURES A1 TO A18 FILED BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** O.P.(KAT)Nos.156 & 171 of 2016 37 |**P2**|**TRUE COPY OF THE REPLY STATEMENT FILED ON**| |---|---| ||**BEHLAF OF THE 2ND RESPODNENT IN OA**| ||**1728/2015 BEFORE THE HON'BLE KERALA**| ||**ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM**| ||**ALONG WITH ANNEXURE R2(A).**| |**P3**|**TRUE COPY OF THE REJOINDER IN OA NO.**| ||**1728/2015 ALONG WITH ANNEXURE A.19 TO A21**| ||**FILED BEFOR THE KAT, THIRUVANANTHAPURAM.**| |**P4**|**TRUE COPY OF THE ORDER DATED 01.9.2016 IN**| ||**OA 1728/2015 PASSED BY THE KERALA**| ||**ADMINISTRATIVE TRIBUNAL,**| ||**THIRUVANANTHAPURAM.**| |**P5**|**TRUE COPY OF THE REVIEW APPLICATION IN RA**| ||**NO. 31/2016 BEFORE THE HON'BLE KERALA**| ||**ADMINISTRATIVE TRIBUNAL,**| ||**THIRUVANANTHAPURAM.**| |**P6**|**TRUE COPY OF THE ORDER DATED 3.11.2016 IN**| ||**RA NO.31/2016 IN OA 1728/2015 OF THE**| ||**HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,**| ||**THIRUVANANTHAPURAM.**| |**EXHIBIT P7**|**TRUE COPY OF ORDER DATED 28/07/2017 IN**| ||**OP(KAT) NO.156/2016 OF THIS HON'BLE COURT.**| |**EXHIBIT P8**|**TRUE COPY OF THE LIST SHOWING THE**| ||**PARTICULARS OF PROMOTIONS MADE AFTER THE**| ||**INTERIM ORDER OF THIS HON'BLE COURT ON**| ||**28/07/2017 UPTO 03/11/2018.**| |RESPONDENTS EXTS|NIL| ||/TRUE COPY/| ||P.S.TO JUDGE| |cms||