S. Sathyaseelan Asari v. Land Revenue Commissioner, Thiruvananthapuram; State of Kerala represented by Secretary to Government of Kerala, Department of Revenue, Thiruvananthapuram; Suresh Joseph; Abdul Najeeb A. (W.P.(C) Nos. 29910/2008 (I) and 7711/2009 (H))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933** **WP(C).No. 29910 of 2008(I)** **---------------------------------------** ## **PETITIONER(S):** **------------------------** **S.SATHYASEELAN ASARI, JUNIOR SUPERINTENDENT, COMMISSIONERATE OF LAND REVENUE, PUBLIC OFFICE, THIRUVANANTHAPURAM.** **BY ADV. SRI.P.CHANDRASEKHAR** ## **RESPONDENT(S):** **---------------------------** **1. THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM.** **2. THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM.** **3. SURESH JOSEPH, TAHSILDAR, IDUKKI, IDUKKI DISTRICT.** **4. ABDUL NAJEEB A. TAHSILDAR, KASARGOD, KASARGOD DISTRICT.** **R1 & R2 BY GOVERNMENT PLEADER SRI. SANDESH RAJA R3 BY ADV. SRI.N.SUGATHAN** **R4 BY ADV. SRI. D.SOMASUNDARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/09/2011 ALONG WITH WPC.NO.7711 OF 2009, THE COURT ON 27/09/2011 DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.29910/2008 I** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF ORDER DTD. 14/11/1995 OF THE BOARD OF REVENUE.** - **P2: COPY OF ORDER DTD. 30/11/1995 BY THE BOARD OF REVENUE.** - **P2(A): COPY OF RELEVANT PAGE OF THE SAID PROVISIONAL SENIORITY OF DEPUTY TAHSILDAR/JUNIOR SUPERINTENDENT.** - **P3: COPY OF JUDGMENT DTD. 21/03/1991 IN W.A.NO.789 OF 1988.** - **P4: COPY OF JUDGMENT DTD. 6/04/1995 IN W.A.NO.162/1991.** - **P5: COPY OF REPRESENTATION DTD. 4/03/2008 OF THE PETITIONER TO THE 1ST RESPONDENT.** - **P6: COPY OF ORDER NO.LR E2-17517/08 DTD. 12/08/2008 OF THE 2ND RESPONDENT.** - **P7: COPY OF REPRESENTATION DTD. 18/08/2008 OF THE PETITIONER TO THE 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** - **R3(A): COPY OF PROCEEDINGS NO.LR(T1)-45825/07 DTD. 2/06/2007 OF THE ADDL.COMMISSIONER OF LR.** - **R3(B): EXTRACT OF THE FINAL SENIORITY LIST OF DEPUTY TAHSILDARS FOR THE PERIOD FROM 1/07/2004 TO 30/06/2005.** - **R3(C): COPY OF PROCEEDINGS NO.LRT1-23000/07 DTD. 12/06/2007 OF THE ADDL.COMMISSIONER OF LR.** - **R3(D): COPY OF PAGES 1 AND 4 OF THE SENIORITY LIST APPROVED PROBATIONERS IN THE CATEGORY OF DEPUTY TAHSILDAR FOR THE PERIOD UPTO 31/05/2007.** - **R3(E): COPY OF LETTER NO.SY/E4-15124/07 DTD.1/11/2007 OF THE DIRECTOR OF SURVEY.** **R3(F): COPY OF G.O.(P) NO.460/96/RD DTD. 12/08/1996.** **R3(G): COPY OF JUDGMENT DTD. 23/05/2008 IN W.A.NO.578/2008.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos. 29910/2008-I & 7711/2009-H** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 27th day of September, 2011.** ## **JUDGMENT** These writ petitions are filed by the respective petitioners, aggrieved by the different proceedings regarding the fixation of seniority in the Revenue Department, in various cadres. Since common questions have arisen for consideration, they are being disposed of together. First I shall refer to the contentions raised by the petitioners in W.P.(C) No.7711/2009, since a decision therein will have a bearing on W.P.(C) No.29910/2008. 2. Both the petitioners in W.P.(C) No.7711/2009 are working as Tahsildars in Alappuzha and Kannur Districts. The challenge is against Exts.P20, P23 and P25 which are proceedings issued concerning fixation of seniority and publication of revised seniority list. Ext.P20 is the revised final seniority list published by the Land Revenue Commissioner which is dated 26.5.2007 in respect of persons working in the cadre of UDC/SVO for the period from 10.9.1984 to 31.12.1992. Ext.P23 is the order issued by the Government disposing of the appeal filed by the first petitioner challenging Ext.P20. Ext.P25 is a revised provisional seniority list of Deputy Tahsildars, published on 19.5.2008, for the period 1.1.1998 to wpc 7711/2009 & 29910/2008 2 31.12.2006, which is also sought to be quashed in this writ petition. 3. The main contentions of the petitioners in W.P.(C) No.7711/2009 are the following: It is pointed out that by Ext.P1 proceedings dated 12 12.2000 a State-wise final seniority list of Head Clerks/Revenue Inspectors was published. Ext.P2 is the proceedings publishing the final seniority list of UDC/SVO for the period from 10.9.1984 to 29.2.1988. Ext.P3 is the final seniority list of UDC/SVO for the period from 1.3.1988 to 31.12.1992. Ext.P4 is the proceedings publishing the final seniority list of HC/RI/VO for the period from 1.1.1999 to 31.12.2000. Ext.P5 is the final seniority list of Deputy Tahsildars for the period from 1.1.2003 to 30.6.2004. Ext.P6 is the proceedings dated 21.12.2006 publishing the list of approved probationers in the cadre of Deputy Tahsildars. The respective position of the petitioners and the fifth respondent in these lists have been explained by the petitioners in paragraphs 4 and 5 of the writ petition. The substantial contention is that they are assigned seniority above the said respondent. Ext.P7 is the copy of the select list of Deputy Tahsildars published on 20.1.2007 wherein petitioners are serial Nos. 51 and 63. By Ext.P8 proceedings, the petitioners have been promoted to the post of Tahsildar and by Ext.P9 proceedings dated 11.7.2008 the declaration of probation of the petitioners and others in the post of Tahsildar was also wpc 7711/2009 & 29910/2008 ordered. 3 4. Therefore, the important contention raised is that the petitioners have been regularly promoted to the categories of UDC/SVO/HD/RI, Deputy Tahsildar and Tahsildar. The said promotions were granted after they initially entered service in the department as LDC in 1984. The contention therefore is that their seniority has been settled in all the categories, which were never under challenge. 5. The petitioners contend that a revised seniority list of UDC/SVO for the period from 10.9.1984 to 31.12.1992 was published as per Ext.P10 dated 29.3.2006, as a provisional list and they filed objection to the same as per Exts.P11 and P12. They came to know that an order Ext.P13 was issued earlier to Ext.P10, whereby the fourth respondent issued certain directions to revise the seniority lists and review the promotions already made, on the basis of which Ext.P10, has been issued. Objecting to the said course also, Ext.P14 representation was filed. Thereafter, they approached this Court by filing W.P.(C) No.21147/2006 challenging Ext.P10 and by Ext.P19 order, this Court initially granted an interim order of stay which was subsequently modified permitting the fourth respondent to finalise the same, after adverting to the objections filed by the aggrieved persons. Ext.P20 is the revised final seniority list of UDC/SVO for the period from 10.9.1984 to 4 wpc 7711/2009 & 29910/2008 31.12.1992. Therein, the seniority position of the petitioners which was originally assigned as per Ext.P2(a) has been pushed down and the fifth respondent who was not included in Ext.P2(a), now finds a place above them as serial No.2686 with assigned date 9.8.1988, whereas the petitioners are respectively serial Nos.2949 (assigned date 12.6.1989) and 2998 (assigned date 1.8.1989). They filed appeals under Rule 27B of KS & SSR as per Ext.P21 and the like one, which were produced along with I.A. No.15052/2007 in W.P.(C) No.21147/2006. The said writ petition was disposed of by Ext.P22 judgment, directing the Government to take a decision and finally the Government rejected their appeals by Ext.P23. Ext.P24 is the judgment in W.P.(C) No.23562/2005 which is referred to in Ext.P23 order. The relevance of the same is said to be that the said judgment has been relied upon to justify the revision of final seniority list. 6. In W.P.(C) No.29910/2008 the dispute regarding the inter-se seniority between the petitioner and respondents 3 and 4 arises for consideration. It is the case of the petitioner that he entered service as Lower Division Clerk (LDC) in the Revenue Department on 24.11.1983. He was later promoted as Upper Division Clerk (UDC) and Head Clerk/Village Officer and finally as Junior Superintendent/Deputy Thahsildar on 28.2.2006. Various test qualifications have also been wpc 7711/2009 & 29910/2008 5 acquired by him. Respondents 3 and 4 are juniors to the petitioner. His plea is that they were not appointed to the post of U.D. Clerks on regular basis. Ext.P2(a) is the relevant page of the provisional seniority list of Deputy Tahsildar/Junior Superintendent wherein the details of respondents 3 and 4 have been given. It is contended by the petitioner that their promotions are not regular. They have not passed the Chain Survey test which is mandatory for promotion as U.D. Clerk. 7. The petitioner is relying upon Exts.P3 and P4 judgments of different Division Benches of this Court, wherein several directions have been issued with regard to the preparation of seniority lists in various cadres and it is submitted that they have never been implemented by the department. The petitioner filed various representations after he was not granted promotion as Tahsildar, whereas respondents 3 and 4 were promoted, before the Government and other authorities and failing to get any action in the matter, this writ petition has been filed. 8. Heard Shri N. Sugathan, learned counsel for the petitioners in W.P.(C) NO.7711/2009, and Shri P. Chandrasekhar, learned counsel for the petitioner in W.P.(C) No.29910/2008 and for some of the respondents in W.P.(C) No.7711/2009 and, Shri K.R. B. Kaimal, learned Senior Counsel, Shri K. Jaju Babu and Shri S.P. Aravindakshan Pillai appearing for some wpc 7711/2009 & 29910/2008 6 of the the contesting respondents in W.P.(C) No.7711/2009. Shri N. Sugathan and Shri D. Somasundaram have argued for the contesting respondents in W.P.(C) NO.29910/2008, Shri Sandesh Raja, learned Govt. Pleader appeared for the Government and Land Revenue Commissioner in both the writ petitions. ## - W.P.(C) No.7711/2009 Points arising for consideration 9. While attacking the validity of the proceedings issued as per Exts.P20, P23 and P25, learned counsel for the petitioner Shri N. Sugathan submitted that the proceedings cannot survive mainly because the settled seniority cannot be unsettled after along lapse of time and the sit back theory will apply. It is submitted that Ext.P13 proceedings relied upon various representations which are seen filed much after the publication of Exts.P1 and P3 final seniority lists. It is therefore submitted that Ext.P24 judgment rendered by this Court directing only to consider a representation, could not have been relied upon at all as a justification for revising the final seniority lists. It is pointed out that the final seniority lists Exts.P1 to P5(a) were not under challenge under Rule 27B of KS & SSR. Thus, they have become final and the seniority has been settled. It is further pointed out that Exts.P6 to P9 proceedings will also have their own importance and relevance and cannot be brushed aside by publishing a revised final wpc 7711/2009 & 29910/2008 7 seniority list. The petitioners have been included in the list of approved probationers in Ext.P6 and in the select list prepared for promotion as Tahsildar as per Ext.P7. They were regularly promoted as Tahsildars as per Ext.P8 and their probation as Tahsildar has been declared by Ext.P9 with effect from 26.5.2008 and 23.6.2008 respectively. These cannot be undone at all. Reliance was placed on the relevant provisions of KS & SSR in this regard. It is further pointed out that the Government did not consider the various points raised by the petitioners in the appeal filed before it and there is no independent consideration of the points raised in the appeal and the Government has only relied upon a report of the Land Revenue Commissioner. Thus, it is contended that the order has been passed without any application of mind. My attention was invited to Exts.P16, P17, viz. two other Government Orders issued by the Government while considering certain objection with regard to the earlier seniority lists wherein the Government has substantially taken the view that the seniority lists already published have become final and no interference is called for. It is therefore contended that in the light of various decisions of the Apex Court and this Court in **Rabindra Nath Bose and others v. Union of India and others** (AIR 1970 SC 470), **Shiba Shankar Mohapatra and** wpc 7711/2009 & 29910/2008 8 **others v. State of Orissa and others** (AIR 2010 SC 706), **H.S. Vankani and others v. State of Gujarat and others** {(2010) 4 SCC 301}, **T.C. Sreedharan Pillai & others v. State of Kerala and others** (1973 KLT 151), **Satheesh Kumar v. Travancore Devaswom Board** (2009 (2) KLT 828) and **Pavithran v. State of Kerala** (2009 (4) KLT 20 - FB), the settled seniority cannot be unsettled and the sit back theory will squarely apply. It is further pointed out that the seniority list Exts.P1 to P5 were published after the decision of this Court in **Kuttikrishnan and another v. The State of Kerala and others** (ILR 2000 (3) Ker. 1) and the said exercise cannot be undone. 10. Learned Govt. Pleader Shri Sandesh Raja, while opposing the contentions of the petitioners, submitted that the contention that the seniority has been settled finally and the sit back theory will apply, is not correct. Learned Govt. Pleader submitted that this Court in the judgment in W.P.(C) No.19076/2008 has issued various directions to revise the seniority in various cadres in implementation of two other Division Bench judgments of this Court which have been produced as Exts.P3 and P4 in W.P.(C) No.29910/2008. It is submitted that apart from Ext.P4 judgment therein and the judgment in W.P.(C) No.19076/2008 several other objections were wpc 7711/2009 & 29910/2008 9 pending and this Court in Ext.P24 judgment, had directed consideration of various representations. It is submitted that the said judgments have become final. It is further submitted that many of the representations were not belated as contended by the learned counsel for the petitioners. It is also pointed out that the proceedings Exts.P7 and P8 will show that they were only subject to the decision of this Court in W.P.(C) No.21147/2006 and other cases and therefore all the promotions were provisional. Those writ petitions were disposed of by Ext.P22 judgment permitting further action in the matter. It is further pointed out that there was a fundamental defect in the earlier proceedings with regard to the publication of seniority list and the vacancy position shown was inflated, which will be evident from Ext.R5 (a) proceedings of the Board of Revenue. It is submitted that many persons found their place in the earlier lists due to the fact that the vacancy position was inflated and obtained promotions only because of their illegal inclusion therein. Actually, many qualified seniors were excluded illegally in that process, which has been rectified now. It is submitted that a fundamental defect, that too with regard to the actual number of vacancies, had been rectified in the light of the judgment of the Division Bench in **Kuttikrishnan's case** (ILR 2000 (3) Ker. 1) and other judgments. Therefore, the petitioners' contention that the seniority position was settled wpc 7711/2009 & 29910/2008 10 and they are entitled to rely upon the sit back theory, cannot be accepted. All the promotions are only provisional and their probation in various cadres were never declared. The said appointments were never regularised also. It is pointed out that various seniority lists have been published even after the filing of the writ petition, which have been produced along with the memos herein and they are not under challenge in the writ petition. 11. Shri K.R.B. Kaimal, learned Senior Counsel appearing for some of the respondents submitted that the contention that the seniority was settled is not correct, as all the promotions and appointments were only provisional. It is pointed out that there were various developments which resulted in the publication of the revised final seniority lists and that too also based on various directions issued by this Court and in the light of the various Government Orders and also the amendment of the rule. Therefore, the petitioners cannot be justified in contending that the principle of sit back theory will apply. These contentions were supported by Shri S.P. Aravindakshan Pillai, Shri P. Chandrasekhar and Shri K. Jaju Babu. It is pointed out by Shri S.P. Aravindakshan Pillai that Ext.R5(a) dated 27.5.1994 produced along with the counter affidavit of the fifth respondent shows the correct vacancy position in all the districts in respect of U.D. Clerk/Village Officer and the said proceedings was clearly overlooked wpc 7711/2009 & 29910/2008 11 while preparing the seniority lists earlier, by which persons like the petitioners obtained unmerited positions in the seniority list and acquired subsequent illegal promotions which were never treated as regular. It is submitted that in the department in none of the respective cadres, regular promotions/appointments were made and all were provisional and therefore the petitioners cannot rely upon Exts.P6 and P8 proceedings. ## - W.P.(C) No.29910/2008 points raised for consideration. 12. Before going into the further details I may advert to the contentions raised by Shri P. Chandrasekhar, learned counsel for the petitioner in W.P.(C) No.29910/2008. It was submitted that the two Division Benches of this Court in Exts.P3 and P4 judgments, which are dated 21.3.1991and 6.4.1995, have issued various directions with regard to the principles for fixing the inter-se seniority as well as promotions in different cadres in the department and these directions were never implemented by the department and only after the judgment in W.P.(C) NO.19076/2008 was issued, an attempt was made. It is therefore submitted that the judgments Exts.P3 and P4 which have become final and which were binding on the Government and the Department, were really ignored while publishing the seniority lists Exts.P1 to P5. It is therefore submitted that no finality can be attached to them. The binding judgments had to be wpc 7711/2009 & 29910/2008 12 implemented in terms of the principles stated therein. 13. Now I will refer to the various events which have culminated in the judgments of different Division Benches of this Court concerning the department. The Revenue Department consists of various services such as Kerala Revenue Ministerial Subordinate Service, the Kerala Revenue Subordinate Service, the Kerala Revenue Service and the Kerala Civil Service (Executives). The integration of Village staff and Ministerial staff in the Revenue Department from 10.9.1984 led to various disputes, which were resolved by this Court. In fact, the decision of the Division Bench in **Kuttikrishnan's case** (supra) gives various details with regard to the developments from time to time. 14. Initially the dispute started after the formation of the State, between Madras and Travancore Cochin personnel who were brought into a common service. The Special Rules were initially framed in 1975 which was challenged before this Court and the challenge was upheld in **M.V. Vasudevan Nair and others v. State of Kerala and others** (ILR 1979 (2) Kerl. 743) and the Special Rules were struck down. Again Special Rules were framed in 1980 with regard to Kerala Ministerial Subordinate Service which was under challenge before this Court and finally the issue was wpc 7711/2009 & 29910/2008 13 settled by a Division Bench of this Court in **T.K. Gopinathan and others v. State of Kerala** and others (1984 KLT 726) and the Bench struck down the Special Rules. The said decision was affirmed by the Apex Court in **N. Muraleedharan and others v. State of Kerala and others** (JT 1997 (3) SC 221.) Subsequently, by a Government Order dated 10.9.1984 which was effective from the said date, an integration was attempted, thereby the UDC was equated with Village Officer and LDC was equated with Village Assistant. Later, on 12.6.1985 the Kerala Revenue Ministerial Subordinate Service Special Rules was again brought into force which was amended on 12.7.1989 for providing the integration Government Order dated 10.9.1984. In fact, there were various writ petitions before this Court challenging the same, which were repelled and W.A. No.362/1990 was dismissed, finally. 15. The judgment of the Division Bench produced as Ext.P3 in W.P. (C) No.29910/2008 laid down the principle for promotion to the cadre of Deputy Tahsildar. The said post is governed by the Kerala Revenue Subordinate Service Special Rules, 1980. The issue arose for adjudication, as the State was of the view that what is required for promotion to the cadre of Deputy Tahsidlar is seniority in the cadre of UDC and the contrary stand wpc 7711/2009 & 29910/2008 14 taken by the employees was that the seniority in the cadre of LDC had to be taken into account. After elaborately considering the various aspects, the Division Bench held in paragraphs 4 and 5 that the seniority that has to be reckoned is the seniority of those who possess the required qualifications in the relevant feeder category. It was held that what is relevant for the purpose of transfer is the seniority in the Kerala Ministerial Subordinate Service as a whole and not seniority in any one of the four categories comprised in the Ministerial Subordinate Service. In fact, the feeder category for transfer as contained in the Special Rules consisted of four categories, viz. Head Clerk/Head Accountant, Firka Revenue Inspector/Special Revenue Inspector, Upper Division Clerk and Lower Division Clerk. The Bench did not accept the stand of the State that the seniority in the cadre of UDC has to be reckoned for the purpose of transfer appointment. It was found that the four categories are not equivalent. Thus, it was declared that it is not the seniority of any one of the four components that has to be considered, but the seniority in the Kerala Ministerial Subordinate Service as a whole. 16. The Division Bench then examined the principles to be followed in the matter of determining seniority of all who formed the Ministerial Subordinate Service, of the four different categories. After referring to the wpc 7711/2009 & 29910/2008 15 relevant rules of KS & SSR, viz. Rules 28(b)(vi) and (vii) of KS & SSR, the Bench was of the view that those provisions will govern the matter. It was held that, when there are more than one feeder category carrying different scales of pay, they should be shown in separate lists and persons bearing lower scales of pay should be appointed only after the appointment of persons bearing the higher scale of pay unless the special rules prescribe a ratio or a special order of preference in each category. It was noticed that the special rules did not prescribe a ratio nor any special order of preference. Finally, in para 10, the various principles were laid down thus: “10. For the reasons stated above, the appeals and the original petitions are disposed of with the following directions:- (1) that the feeder category for appointment by transfer to the cadre of Deputy Tahsildars under the Special Rules consists of the following categories: (1) Head Clerk/Head Accountant - (2) Firka Revenue Inspector/Special Revenue Inspector (3) Upper Division Clerk; and (4) Lower Division Clerk. (2) It is the State-wise seniority of qualified candidates in the feeder category of the members of the Kerala Ministerial Subordinate Service employed in the Land Revenue Department that should be taken into account for the purpose of effecting appointment by transfer to the cadre of Deputy wpc 7711/2009 & 29910/2008 16 Tahsildars. (3) Seniority for the above purpose shall be determined by applying Rule 28(b)(i)(vi) and (vii) of the K.S & S.S.R. The respondents shall review promotions to the cadre of Deputy Tahsildars following the aforesaid directions expeditiously.” Thus, it can be seen that the State-wise seniority of qualified candidates in the feeder categories had to be taken into account for effecting by transfer appointment to the cadre of Deputy Tahsildar and the seniority had to be determined by applying Rules 28(b)(vi) and (vii) of KS & SSR. But since different feeder categories were carrying different sales of pay, the Bench directed to show them in separate lists and directed to appoint persons bearing lower scale of pay only after appointment of persons bearing higher scale of pay. 17. Ext.P4 is the judgment in W.A. No.162/1991 and connected cases which has been reported as **Thankaraj v. State of Kerala and others** (ILR 1996 (3) Kerala 733). Therein, also the question arose was one relating to fixation of seniority of different cadres in the Revenue Department. Various questions were elaborately considered by the Bench therein. I am only summarising the directions issued by the Bench, for brevity. In para 4A, the Bench noted that the Village staff was not given 35% of the vacancies set apart for them for the post of Firka Revenue wpc 7711/2009 & 29910/2008 17 Inspector and Special Revenue Inspector and the said defect was directed to be rectified and the promotions were directed to be given to them while preparing the seniority list. It was directed as follows: “We direct the Revenue Board and the State Government to adhere to this requirement.” In para 5, the plea of the Firka Revenue Inspectors and Special Revenue Inspectors for appointment as Deputy Tahsildar by transfer and the omission by the Government in that regard was considered. The Bench noted that the issue has already been decided by a Division Bench of this Court in O.P.No.2755/1980 and after noticing the directions therein, their Lordships in para 5 held as follows: “It appears that this direction given by the Division Bench has not been given effect to by the Board in respect of all Firka Revenue Inspectors.” The Bench thereafter considered the directions issued by the Division Bench in Ext.P3 judgment produced in W.P.(C) No.29910/2008, viz. in W.A. Nos. 789/1988 and connected cases and in para 6, after referring to the directions to review the promotions to the cadre of Deputy Tahsildars, it was held as follows: “It appears that such an exercise was not taken up by the Board of Revenue.” 18. One of the issues considered by the Division Bench in wpc 7711/2009 & 29910/2008 18 **Thankaraj's case** (ILR 1996 (3) Ker. 733) was the effect of the amendment of the rules in 1993, viz. Kerala Revenue Ministerial Subordinate Service, as per G.O.(P) No.123/93/RD dated 8.3.1993, whereby the State was made the unit of appointment in respect of the categories of posts with effect from 1.11.1956. Another question considered was whether the Deputy Tahsildars who are given assigned or notional date of promotion, should be directed to complete the period of probation counting the period from the date of the notional or assigned date of promotion. Reliance was placed on an earlier decision of a Division Bench in **Janardhanan v. State of Kerala** (1991 (1) KLT 875), wherein this Court was of the view that “no one can be said to be on probation from a date anterior to the date on which he began to discharge the duties attached to that post.” A consequential direction was issued in **Janardhanan's case** (supra) to the Board of Revenue to prepare a list of Deputy Tahsildars strictly in compliance with the said decision. The said judgment had also become final. Thereafter, a fresh list was published which was revised again in the light of the amendment of the Kerala Revenue Ministerial Subordinate Service Rules, 1985 as per Government Order dated 8.3.1993, whereby the unit of appointment was made as State whereas the former one was district. The State raised a contention that in the light of the said amendment the seniority position in respect of all the wpc 7711/2009 & 29910/2008 19 categories will be affected including that of Deputy Tahsildar and this question was considered in **Thankaraj's** case (ILR 1996 (3) Ker. 733) in detail in para 10 onwards. The Division Bench was of the view that the retrospective amendment cannot affect the vested right of persons who have already been promoted as Deputy Tahsildars, which is evident from the following sentences in para 10: “The change in the Ministerial Service may affect the subsequent recruitment by transfer to the cadre of Deputy Tahsildars. This we say because persons who have already gone into the cadre of Deputy Tahsildar as per the then existed rules are not to surrender their seniority in favour of others who might have become senior in the categories governed by the Ministerial Subordinate Service Rules.” With regard to the effect of the retrospective amendment of the Rules, it was held thus in para 13: “A member of the Kerala Revenue Ministerial Subordinate Service may be getting an advantage on account of the amendment brought out by G.O.(P) No.123/93/RD dated 8[th] March, 1993 by virtue of its retrospective operation. He may be entitled to seniority in a higher cadre belonging to that service with effect from an earlier date.” Again, in para 14, it was held thus: “The amendment brought out by G.O.(P) NO.123/93/RD dated 8[th] wpc 7711/2009 & 29910/2008 20 March, 1993 is effective from 1[st] November, 1956. By making the State the Unit of appointment to the service namely, Kerala Revenue Ministerial Subordinate Service, the seniority of personnel in the various categories of post coming within its purview is altered.” ## Finally in para 20, the following directions were issued: “20. In view of what has been stated above, we vacate all interim orders passed in all the C.M.Ps. in all these proceedings. The State and the Revenue Board are directed to conform to the principles stated herein above and to prepare a seniority list of officers in various cadres governed by all the 4 Special Rules namely Kerala Revenue Ministerial Subordinate Service, Kerala Revenue Subordinate Service, Kerala Revenue Service and Kerala Civil Service Executive Rules. This exercise must be taken up at the earliest and the lists prepared within 3 months from the date of receipt of a copy of this judgment. Depending on the seniority list so prepared, persons who got promotion contrary to the principles stated in this judgment must be reverted and those who were denied promotion must be given promotion. The orders in that regard must also be issued within two weeks from the date of preparation of the seniority list, that is within 3 ½ months the entire reversion and promotion must be carried out. Since the entire interim orders have been vacated, for promotion to the cadres of Tahsildars and above, the seniority list of 21[st] June 1991 which is updated should be the basis. The persons who are holding the posts of Deputy Tahsildars wpc 7711/2009 & 29910/2008 21 as on today are not to be reverted until the list as ordered above is prepared.” 19. The important question to be considered is whether the argument of Shri N. Sugathan that the sit back theory will apply on the facts of this case. Herein, strong reliance was placed on the proceedings Exts.P6 to P8. On a perusal of the proceedings Exts.P10 and P13, it can be seen that Ext.P13 is dated 27.10.2005 which was relied upon in Ext.P10 dated 29.3.2006 for revising the seniority list and for publishing the provisional seniority list in the cadre of UDC/VO for the period from 10.9.1984 to 31.12.1992. Actually, Ext.P6 proceedings whereby the list of approved probationers in the cadre of Deputy Tahsildars for the period upto 30.6.2004 was issued, is dated 22.12.2006, after the issuance of Exts.P10 and P13. As rightly pointed out by the learned Govt. Pleader and learned counsel appearing for the contesting respondents, a reading of Ext.P7 select list published on 20.1.2007 shows that the selection is subject to the final outcome of W.P.(C) No.21147/2006 pending before this Court. The same is also subsequent to Exts.P10 and P13. Ext.P8 is the order effecting transfer and promotion to the post of Tahsildar/Senior Superintendent. Therein, it is mentioned as follows: “The above promotions will be provisional and wpc 7711/2009 & 29910/2008 22 subject to the result of W.P.(C) Nos.21147/20064731/2007 and 12603/2007 before the Hon'ble High Court.” The argument that there was a finality to the earlier proceedings including promotion as well as declaration of probation, will have to be understood in the above background. 20. Shri N. Sugathan vehemently attacked the proceedings Ext.P13 to contend that the representations are belated. A reading of Ext.P13 shows that apart from the representations of the petitioners in Ext.P24 judgment in W.P.(C)No.23562/2005, there were another 5 representations. The representations mainly point out that for the period from 10.9.1984 to 31.12.1992 the Board of Revenue had assessed and approved only 4021 vacancies in the cadre of UDC/VO, but in the seniority list 4216 persons were included. Thus, the complainants contended that if the actual number of vacancies alone are reckoned, many persons will go out and they will be entitled for seniority. After referring to these contentions and the judgment of this Court in Ext.P24, the Land Revenue Deputy Commissioner relied upon the proceedings dated 27.5.1994 of the Secretary of the Board of Revenue mentioned as reference No.7 therein, wherein the number of vacancies assessed is 4021. It was thereafter found that the seniority lists were published without reckoning the actual number of vacancies and thus there are fundamental defects in the seniority lists and accordingly a wpc 7711/2009 & 29910/2008 23 direction was issued to publish the revised seniority list after curing the defects and after publishing a provisional seniority list inviting objections in the matter. 21. Even though vehement attack was made to Ext.P13 proceedings, it can be seen that if actual number of vacancies were only 4021, the preparation and publication of a seniority list by showing an inflated number as 4216, could not be justified. In this context, learned Govt. Pleader Shri Sandesh Raja submitted that Ext.R5(a) proceedings of the Board of Revenue which is relied upon in Ext.P13, was clearly overlooked when the seniority lists were finalised earlier as per Ext.P1 onwards. One objection regarding the correctness of Ext.R5(a) has also to be cleared initially. Ext.R5(a) is dated 27.5.1994. Therein, the vacancy position of UDC and and Village Officers for the period from 10.9.1984 to 31.12.1992 have been assessed district-wise and the total number is given as 4021. The appendix to the said order gives the details period-wise also. Shri N. Sugathan relied upon Ext.P28 which is a reply given by the Public Information Officer dated 13.12.2007 under the Right to Information Act to one Shri K.Chandrasekharan Nair, Deputy Tahsildar, Ambalappuzha and contended that the reply will show that the files relating to the assessment of vacancies of UDC/VO in respect of Alappuzha, Kottayam, Idukki and wpc 7711/2009 & 29910/2008 24 Malappuram districts are not available and therefore Ext.R5(a) cannot be supported. 22. As rightly pointed out by the learned Govt. Pleader and learned counsel appearing for the contesting respondents, merely because the files in respect of four districts are not available now, that cannot affect the sanctity of Ext.R5(a) wherein the details of vacancies of various districts including the four districts are shown. Ext.P28 is only an information given under the Right to Information Act which is not a proceedings of the Land Revenue Commissioner at all. Therefore, that cannot whittle down the effect of Ext.R5(a). Further, the proceedings Ext.P13 discusses the effect of Ext.R5(a) and the discrepancies in the various lists published with respect to the actual number of vacancies. Therefore, the proceedings Ext.P13 relying upon Ext.R5(a) cannot be said to be wrong on any count. 23. It is explained by the learned Govt. Pleader Shri Sandesh Raja and learned counsel appearing for the party respondents that when the vacancies were inflated and were wrongly shown as 4216, it had resulted in some of the juniors who passed the test qualification getting unmerited position in the seniority lists earlier published, and many of the senior persons who acquired qualification later, were denied the rightful place because of the inflated position of the number of vacancies. It is submitted wpc 7711/2009 & 29910/2008 25 by Shri P. Chandrasekhar that fraud was played at the instance of interested parties, so as to secure their position in the seniority list. I find much force in the submissions made as above. The direction by the Division Bench in **Kuttikrishnan's case** (ILR 2000 (3) Ker. 1) is explicit. Therein, the direction was to prepare an integrated seniority list of UDCs. and Village Officers in one category and LDCs. and Village Assistants in another, including therein only those who were holding their respective offices as on 10.9.1984. Therefore, there could not have been any attempt to inflate the vacancies. 24. Then the question is whether Exts.P10 and P20 which are revised seniority lists, could be attacked on the ground that it will breach the finality of the seniority position based on the earlier seniority lists relied upon by the petitioners. I may herein refer to the judgment of this Court in W.P.(C) No.19076/2008 which is relied upon by the learned Govt. Pleader. The said judgment shows that the attention of this Court was invited by the petitioner therein with regard to the non compliance of the directions issued by the Division Bench in **Thankaraj's case** (ILR 1996 (3) Ker. 733) and Ext.P3 produced in W.P.(C) No.29910/2008. The judgment in W.P.(C) No.19076/2008 is produced as Ext.R1(a) along with the counter affidavit dated 21.10.2010. After referring to the decision of the Division wpc 7711/2009 & 29910/2008 26 Bench mentioned above and the directions contained therein, this Court referred to the averments made by the Government in para 5 of the counter affidavit filed in the said writ petition, wherein the stand taken was that no further review was necessary. The said contention was negatived in paragraphs 4 and 5 as follows: “The stand taken above would indicate that no review as such is required. But Ext.P5 indicates that the Government required the Commissioner of Land Revenue to furnish his specific and considered views in the implementation of the judgment dated 21.3.1991. Ext.P6, a further communication of the Government to the Commissioner of Land Revenue dated 22.2.2008, projects the pendency of the instant writ petition as reason for not taking action in terms of Ext.P1 judgment. These factors mentioned above reveal a sorry state of affairs. Ext.P1 judgment is dated 21.3.1991. It does not require any further review. A Bench of this Court directed that a seniority list of the feeder categories to the post of Deputy Tahsildar is to be prepared by applying the provisions which are mentioned therein. The list ought to have been prepared. Further directions have been issued by the Division Bench in **Thankaraj's** case. There have been several other directions by this Court. In spite of all these, Government considers it appropriate to mention in Ext.P5 dated 21.5.2008 that implementation of any judgment passed in 1991, requires further examination. There wpc 7711/2009 & 29910/2008 27 seems to be either lethargy or a deliberate intention not to implement the directions of this Court. 5. It is necessary that there is a finalisation of seniority list of Deputy Tahsildar in accordance with the directions in Ext.P1 judgment. Objections filed by the petitioner as Ext.P4, requires to be considered in the course of finalisation of the provisional seniority list.” Finally, the following directions were issued in para 6 of the judgment: “6. In the result, writ petition is disposed of directing respondents 1 and 2 to see that the State wide seniority list in the feeder categories to the post of Deputy Tahsildar as identified in Ext.P1 judgment is finalised at the earliest in accordance with the directions issued in Ext.P1 judgment, at any rate, within six months from the date of receipt of a copy of this judgment. Objections filed by the petitioner as contained in Ext.P4, which he may supplement with any other specific objections in that regard, shall also be taken into account by the competent authority, while finalizing the seniority list.” Therefore, it required the revision of State-wise seniority list of Deputy Tahsildars, as identified in Ext.P3 judgment produced in W.P.(C) No.29910/2008. Ext.R1(a) judgment is dated 26.3.2009. Shri Sugathan submitted that a Writ Appeal has been filed against the said judgment, but that was only after the hearing of the present writ petitions started and there is no interim order also. Apart from that, evidently, the directions in wpc 7711/2009 & 29910/2008 28 Exts.P3 and P4 judgments in W.P.(C) No.29910/2008 which I have already extracted, will show that the same had to be followed by the then Board of Revenue and the Government. In the light of the said directions, it cannot be said that the seniority lists published as per Exts.P1 to P5 had finally settled the seniority position. In fact, the contention by the petitioners is mainly relying upon the finality of the said seniority lists, referring to the decision in **Kuttikrishnan's case** (supra) alone. A reading of the said judgment will also show that the Division Bench had noticed therein the directions in Exts.P3 and P4 judgments. The petitioners have no case that the directions in Exts.P3 and P4 judgments have been complied with while publishing the final seniority lists by Exts.P1 to P5 produced in W.P.(C) No.7711/2009. Of course, Ext.P29 is relied upon to contend that the directions were implemented. It publishes a provisional seniority list of HC/RI for the period from 1.7.1978 to 9.9.1984 only to make promotions under Rule 9(a)(i) of KS & SSR. It was made only to tide over the then existing situation. Hence, it cannot be said to be in full implementation of W.A. NO.789/1988. Further, the counter affidavit in W.P.(C) No.19076/2008 will disprove the said contention. Thus, the plea that there is a finality as far as the seniority list is concerned, cannot be accepted in the light of these facts. Coupled with this, is the direction issued by this wpc 7711/2009 & 29910/2008 29 Court in Ext.P24 judgment produced in W.P.(C) NO.7711/2009 and the proceedings Ext.P13. 25. Learned Govt. Pleader submitted that the contention raised by the learned counsel for the petitioners Shri N. Sugathan that there was no challenge against Exts.P1 to P5 is not correct and various representations were pending. My attention was invited to the exhibits produced in W.P. (C) No.23562/2005 and the contentions raised therein. 26. In the light of the discussion above, I reject the contentions raised by the learned counsel for the petitioners in W.P.(C) No.7711/2009 and suffice it to say that the argument that everything had become final because of Exts.P1 to P9 proceedings, cannot be accepted. 27. Learned Govt. Pleader submitted that the appointments/promotions in various cadres were not regularised which is the finding of the Government also in Ext.P23 and the promotions were provisional and declaration of probation was also subject to the final outcome of the writ petitions pending before this Court at that point of time. Herein, one aspect is material. Ext.P10 was under challenge by the petitioners herein in W.P.(C) No.21147/2006 which was disposed of by Ext.P22 judgment. There were several other writ petitions pending also at that point of time. A reading of Ext.P22 judgment shows that all the wpc 7711/2009 & 29910/2008 30 interim orders passed were also vacated and the petitioners were directed to pursue the remedy of appeal under Rule 27B of KS & SSR. Initially, the petitioners had obtained an interim order of stay as against Ext.P10 which was later modified, as averred by them in para 11 of W.P.(C) No.7711/2009. Evidently, the proceedings Exts.P13 and P10 precedes Exts.P6 to P9. Therefore, whatever actions taken after the orders Exts.P13 and P10, can only be subject to the finalisation of the pending cases. It cannot be disputed that any promotions obtained by the petitioners based on the interim orders passed by this Court in the writ petitions filed by them, cannot enure to their benefit unless this Court finally upheld their claims in their favour. In fact, in Ext.P22 judgment this Court only directed to dispose of the appeal filed under Rule 27B of KS & SSR. Evidently, they had obtained the posting in the higher posts after the challenge was made by them before this Court of Ext.P10 revised provisional seniority list and based on the interim orders. A similar issue was considered in **Thankaraj's case** (ILR 1996 (3) Ker. 733) wherein in para 19 this Court held that “no sanctity can be given to that posting on the ground that that order happened to be issued pursuant to the interim order passed by this Court.” Reference was made therein about the contentions raised by the petitioner in O.P.No.7205/1991 wherein he obtained promotion as Deputy Collector as wpc 7711/2009 & 29910/2008 31 per the order passed in C.M.P.No.26802/1994. Herein also, therefore, the posting by promotion obtained by the petitioners which was subject to the outcome of W.P.(C) No.21147/2006, as evident from Exts.P7 and P8, will not help them. Evidently, Ext.P8 shows that the promotions were provisional and subject to the result of various writ petitions including W.P. (C) No.21147/2006, etc. Therefore, nothing turns upon the said promotion. Even though learned counsel for the petitioners Shri N. Sugathan submitted that the promotions are regular as envisaged under the provisions of KS & SSR, I cannot agree with the said contention. Therefore, the petitioners' contention that the seniority has been settled and the sit back theory will apply, cannot be accepted. Consequently, the publication of the select list as per Ext.P7 and the promotion as per Ext.P8 and declaration of probation as per Ext.P9, all will have to yield to the revision of the various seniority lists. 28. Shri N. Sugathan, in this context relied upon the sit back theory as explained by the various decisions of the Apex Court and this Court. A Full Bench of this Court in **Pavithran's case** (2009 (4) KLT 20 - FB), in para 8 has followed the dictum laid down in the Apex Court in **Rabindranath Bose's case** (AIR 1970 SC 470), **Cecil.D'Souza v. Union** wpc 7711/2009 & 29910/2008 32 **of India** (AIR 1975 SC 1269) and that of a Full Bench of this Court in **T.C. Sreedharan Pillai's case** (1973 KLT 151 - FB). It was held thus in para 7: “So, the sixth respondent's claim for seniority was legally sound and tenable. But, it is a well settled principle in service jurisprudence that, if a person suffers a seniority position for long period without demur, and allow others to enjoy seniority over him for a long period, he cannot normally stake his claim, when the question of promotion to the next higher post is taken up.”” True that the said theory could have application in a fit case but for the detailed facts of this case which show that the finality to the seniority lists claimed by the petitioners cannot be accepted in the light of the non compliance of the binding direction issued by this Court in Exts.P3 and P4 judgments already discussed earlier, in finalising the said seniority lists, which is clearly found in Ext.R1(a) judgment also. Therefore, the reliance placed on the decisions of this Court and the Apex Court cannot be of help to the petitioners and I reject the said contentions. 29. Shri N. Sugathan also relied upon in this context, the judgment rendered by me in W.P.(C) Nos.4643/2010 and 10475/2010 wherein the various principles regarding sit back theory were relied upon. But the facts of the said case are clearly distinguishable with the facts of this case, in the light of the points already discussed by me earlier. wpc 7711/2009 & 29910/2008 33 30. Shri N. Sugathan then relied upon the decision of a Division Bench of this Court in W.A. No.919/2000 wherein it was held as follows in para 4: “Merely because of a change in the seniority in the lower category, there arises no question of variation of the select list prepared by the statutory authority, the Departmental Promotion Committee.” It is contended that the seniority in the higher post like Deputy Tahsildar and Tahsildar cannot be varied. Shri N. Sugathan also relied upon the decision of the Division Bench in **Thankaraj's case** (supra) in that context. I have already considered the said contention earlier and has noted that in Exts.P7 and P8 it is clearly mentioned that the publication of the same and the promotion ordered are subject to the decision of this Court in the writ petitions mentioned therein. When it is mentioned thus that the same is subject to the result of the decision of the writ petitions pending before this Court, it cannot be said that the proceedings issued during the pendency of the writ petitions have become final. Therefore, the reliance placed on the judgment in W.A. No.919/2000 and that of **Thankaraj's case (** supra) cannot help them. Apart from that, in **Thankaraj's case** (supra) the issue was considered in the light of a retrospective amendment of the rules and the Bench was of the view that the retrospective amendment cannot affect wpc 7711/2009 & 29910/2008 34 the vested rights of those persons who were holding the promoted post. The circumstances herein are not similar. 31. Heavy reliance was placed on the decisions of the Apex Court in **A.P. SRTC and others v. G. Srinivas Reddy and others** {(2006) 3 SCC 674) and **Union of India v. Sarkar** (2010 (1) KLT SN C.No.11 - SC) to attack the reliance placed on Ext.P24 judgment to revise the seniority list. 32. In **A.P. SRTC's case** {(2006) 3 SCC 674}, the Apex Court was considering the effects of the judgments wherein a mere direction was issued to consider a representation. It was held in para 14 as follows: “14. We may, in this context examine the significance and meaning of a direction given by the court to “consider” a case. When a court directs an authority to “consider”, it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. There is a reason for a large number of writ petitions filed in the High Courts being disposed of with a direction to “consider” the claim/case/representation of the petitioner(s) in the writ petitions.” Shri N. Sugathan submitted that the principles stated by the Apex Court in the above two decisions will show that a mere direction to consider the representation cannot revive a stale claim. It is pointed out that this Court did not issue a direction after entering any finding on the merits of the wpc 7711/2009 & 29910/2008 35 claim. It is also submitted that the representations which were directed to be considered in Ext.P24 judgment, were belated. 33. In fact, the petitioners in Ext.P24 judgment are not made party respondents herein, even though a paper publication has been made. But still when the correctness of Ext.P24 is sought to be attacked, they should have been made party respondents herein. Apart from that, it is not because of Ext.P24 judgment alone, Ext.P13 was issued. There were other representations also. In fact, the contention cannot be accepted since what was considered by the Government in issuing Ext.P13 proceedings, is the inflated position of the number of vacancies. If the petitioners are not successful in their plea that actually there were 4216 vacancies, then the seniority lists finalised as per Exts.P1 to P5 had to be revised as pointed out in Ext.P13 proceedings. Nobody can take advantage of a wrong done and the defect in the proceedings. The representations filed by the parties therefore, had to be adverted to by the official respondents when such a fatal defect was pointed out. As already pointed out by me, there cannot be any quarrel that the directions in Exts.P3 and P4 judgments produced in W.P.(C) No.29910/2008 were never implemented at any point of time while finalysing Exts.P1 to P5 seniority lists. Therefore, those aspects loom large in these proceedings and hence for that reason also the contention of wpc 7711/2009 & 29910/2008 36 the petitioners cannot be accepted. 34. In fact, Shri N. Sugathan relied upon the decisions of the Apex Court in **Joginder Nath and others v. Union of India and others** (AIR 1975 SC 511) and **Shiba Shankar Mohapatra's case** (AIR 2010 SC 706) to contend that the challenge was not made within a reasonable period. The facts of the case in **Joginder Nath's case** (AIR 1975 SC 511) show that that the first list fixing the seniority was issued on 2.8.1971. The revised seniority list was issued on 2.6.1973 and the writ petition was filed in September, 1973. The contention by the parties therein that the challenge was belated, was repelled by the Apex Court in para 9 as follows: “9. In our opinion on the facts and in the circumstances of this case the preliminary objection raised on behalf of the respondents cannot succeed. The first list fixing the seniority of the Judicial officers initially recruited to the Delhi Judicial Service was issued on 02/08/1971. This was subject to revision on good cause being shown. Petitioners also, as we shall show hereinafter in this judgment on one ground or the other, wanted their position to be revised in the seniority list. They, however, did not succeed. A revised seniority list was issued on 02/06/1973. The filing of the writ petition was not designedly delayed thereafter. Since the petitioners' position in the seniority list vis-a-vis respondents 3 to 6 had not been disturbed in the new list dated 02/06/1973 it was sufficient for the wpc 7711/2009 & 29910/2008 37 petitioners to challenge the list dated 02/08/1971. We shall point out in this judgment that except the promotion to the posts of Additional District Judges, the seniority in relation to which also is under challenge in this writ application, nothing special had happened creating any right in favour of the respondents or no such position had been created the disturbance of which would unsettle the long standing settled matters. The writ application, therefore, cannot be thrown out on the ground of delay in regard to any of the reliefs asked for by the petitioners.” It is submitted by Shri N. Sugathan that the circumstances herein are not identical and actually there is a delay and in that context my attention was invited to para 29 of the judgment in **Shiba Shankar Mohapatra's case** (AIR 2010 SC 706) wherein it was held as follows: “29. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R.Mudgal, _(AIR 1986 SC 2086)_ (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thurs, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation.” The Apex Court was of the view that 3 - 4 years is reasonable period for wpc 7711/2009 & 29910/2008 38 challenging the seniority. But still therein, the Apex Court was of the view that if the challenge is made beyond the said period, delay has to be explained. Of course, in Ext.P24 judgment this Court directed consideration of the representations of the petitioners therein along with the other objections, if any, pending. While examining the question, some of the intervening events also are relevant for consideration. There had been amendment of the rules from time to time and various executive orders were also being issued from time to time. The decision of the Division Bench in W.A. No.789/1988 (Ext.P3 in W.P.(C) NO.29910/2008 is dated 21.3.1991 and the judgment in **Thankaraj's case** (supra) is dated 6.4.1995. At the time of Ext.P3 judgment one of the feeder category posts included in the Kerala Ministerial Subordinate Service rules is of Firka Revenue Inspector/Special Revenue Inspector. The category of Firka Revenue Inspector was abolished as per G.O.(MS) No.510/98/RD dated 14.10.1998 and the posts of Village Officers were upgraded to the post of Head Clerk/Revenue Inspector. Thereafter, there was an amendment to the Kerala Revenue Ministerial Subordinate Service Special Rules, 1985 as per G.O.(P) No.58/2011/RD dated 28.2.2001 to give the benefit of integration to the copyist with effect from 1.7.1968. Thus, even though by various proceedings between 10.11.1999 and 12.12.2000 the seniority lists in wpc 7711/2009 & 29910/2008 39 different categories were published, by proceedings dated 24.12.2001 the final seniority list of LDC/VA, and UDC/VO for different periods, had to be revised. There are other developments also which are clear from the pleadings in W.P.(C) No.7711/2009. As directed by the Government in G.O.(RT) No.3847/09/RD dated 20.10.2009, the Land Revenue Commissioner had published Anneuxre R2(a) seniority list by implementing the provisions of G.O.(MS) No.4/61/PD dated 2.1.1961. Along with the reply affidavit dated 4.7.2010 the petitioners have produced the Government Order dated 20.10.2009 as Ext.P26 which provided for the implementation of G.O.(MS) No.4/1961. There was a challenge against the said Government Order in W.P.(C) No.8123/2010, etc. This Court passed Ext.P27 interim order in the said writ petitions, wherein the operation of the Govt. Order dated 20.10.2009 was stayed that further directions were issued. The Government thereafter withdrew the said Government Order as evident from the provisional seniority list of U.D. Clerks. As per G.O.(Rt) No.4630/2010/RD dated 14.10.2010, Ext.P26 was withdrawn. The proceedings withdrawing the same was under challenge in a batch of writ petitions before this Court in W.P.(C) No.1364/2011 and connected cases. I have disposed of the said writ petitions by judgment dated 6.9.2011, whereby W.P.(C) No.1364/2011 stands dismissed. Therefore, from time to wpc 7711/2009 & 29910/2008 40 time various developments were there. The contention therefore that the earlier seniority lists, Exts.P1 to P5 have to be treated as final and sit back theory will apply, cannot be accepted, for various reasons adverted to already. 35. Then the question is whether Ext.P23 suffers from any infirmity as contended by the learned counsel for the petitioners. It is mainly alleged that the reasons stated therein cannot be accepted and none of the points raised by the petitioners have been considered in detail. 36. The appeal filed by the petitioners have been produced as Ext.P21. Therein the main contention raised is with regard to the finality of the earlier seniority list. Apart from that, it is also contended that more than 700 vacancies of UDC/VO which were actually available as on 10.9.1984, have not been included in the seniority list published earlier or in the revised seniority list now published. The petitioners relied upon Ext.P18 in this context. Ext.P18 is a statement showing the details of 354 persons who were allegedly assigned date of promotion as UDC/VO before 10.9.1984 but who were assigned later date in UDC/VO list published after the judgment of the Division Bench. The same was produced along with Ext.P11 objection. 37. Going by the decision of the Division Bench in **Kuttikrishnan's** wpc 7711/2009 & 29910/2008 41 **case** (supra) various orders assessing the vacancies were quashed by this Court. Emphasis was given by this Court to prepare an integrated list of Village Officers and UDC and that of Village Assistants and LDC who were holding office as on the date of integration, viz. 10.9.1984. It was held that the attempt to give notional promotion cannot be justified. The Division Bench held as follows in para 17: “In the view we have taken as above, the Original Petition filed by the village staff challenging the determination of the vacancies of the revenue staff as on the date of integration and the Original Petition filed by the revenue staff challenging the determination of the vacancy position of Village Officers as on the date of integration have both to be allowed to the extent of directing that a fresh integrated seniority list of Upper Division Clerks and Village Officers on the one hand and Lower Division Clerks and Village Assistants on the other as on 10[th] September 1984 be prepared solely with reference to the persons who were actually holding the respective offices as on 10[th] September, 1984 and subject to the other conditions prescribed in the Integration Government Order.” The contention in Ext.P11 objection which is reiterated in the appeal Ext.P21 is that about 700 employees who were eligible to be promoted as UDC/VO before 10.9.1984 but who were not actually holding the post of UDC/VO as on 10.19.1984 were excluded from the integrated seniority list wpc 7711/2009 & 29910/2008 42 of UDC/VO as on 10.9.1984 published after the judgment of the Division Bench in **Kuttikrishnan's case** (supra) and such a list was produced along with Ext.P11. The contention is that qualified hands should have been promoted with retrospective effect. 38. Learned Govt. Pleader submitted that such a contention cannot be accepted, as the Division Bench in **Kuttikrishnan's case** (supra) directed to publish the list of persons who were actually working in the respective posts as on 10.9.1984. Thus, it is submitted that the objection regarding non consideration of 700 vacancies cannot be accepted. In fact, in Ext.P23 order the said aspect has been considered in para 11. The contention was rejected by relying upon the judgment of the Division Bench in the above case. I do not find any reason to interfere with the same, since what is attempted is only to implement the directions in **Kuttikrishnan's case** (supra) alone. In that view of the matter, Ext.P18 list also will not help the contentions of the petitioners. 39. A reading of Ext.P23 shows that the Government personally heard the parties and the representative of the Land Revenue Commissioner. True that the Government has referred to a report of the Land Revenue Commissioner, in considering the contentions in the appeal and reliance was wpc 7711/2009 & 29910/2008 43 placed on the judgment in W.P.(C) No.23562/2005, Ext.P24. It was found in para 5 that the complaint regarding inflation of vacancies upto 4216 are genuine. It was found that 112 vacancies included during the period 2.4.1990 to 30.8.1990 were left out without any valid proceedings to support it. Reference was made to Ext.R5(a) proceedings dated 27.5.1994 of the Board of REvenue wherein the number of vacancies assessed were only 4021. It was found that in the final proceedings dated 24.12.2001, 4216 vacancies were included in the seniority list. Thus, a clear finding was rendered that the seniority list published as per proceedings dated 24.12.2001 was not in consonance with the number of vacancies ordered as per Ext.R5(a). 195 persons got the benefit of such a wrong exercise in inflating the vacancies to 4216. It is found that in the seniority list for the period from 10.9.1984 to 29.2.1988 127 persons were additionally included and in the list for 1.3.1988 to 31.12.1992, 68 persons were additionally included. Thus, it called for a revision of both the lists which was ordered by Ext.P13 and the Government found that the same is correct. By no stretch of imagination it can be contended that the view taken by the Government is wrong. When Ext.R5(a) reflected the actual number of vacancies, any inflated number of vacancies cannot be justified. No documents are there to show that actual vacancies were 4216. wpc 7711/2009 & 29910/2008 44 40. The next aspect considered by the Government is regarding the nature of the promotions granted. It was found in para 7 that the promotions granted to the petitioners as UDC/VO and Deputy Tahsildar/Junior Superintendent, have not been regularised. Even though Shri N. Sugathan, learned counsel for the petitioners contended that Exts.P7 to P9 will show that the same reflect the grant of regular promotion, as already held by me, it cannot be said that finality can be attached to them because of various reasons already discussed by me. Therefore, the view taken by the Government that even if promotions were granted, such promotions are only provisional, is justified in the light of the conditions provided in Exts.P7 and P8. Those promotions were acquired even during the period when the various writ petitions were pending, wherein interim orders were granted initially. Therefore, the view taken by the Government that promotions can only be treated as provisional and the appointments earlier made could not be treated as regular, cannot be said to be wrong. 41. Shri N. Sugathan rendered arguments based on Exts.P16 and P17 orders issued by the Government earlier. Ext.P16 is an order passed on a revision by one Shri A.G. Ajithkumar, seeking to apply 1 : 1 ratio to the post of Village Assistant/Village Officer with effect from 16.9.1985 instead wpc 7711/2009 & 29910/2008 45 of 29.12.1987. In fact, the said Government Order does not discuss any of the other points that have come up for consideration here. Ext.P17 is an order passed by the Government dated 19.12.2005 on a revision filed by one Shri M.K. Parameswaran Potty. Therein, the request of the complainant to implement G.O.(MS) No.4/61/PD dated 2.1.1961 with regard to inter unit transfer was rejected by the Government. In fact, this Government Order itself was under challenge in another writ petition, viz. W.P.(C) No.22070/2006 which was dismissed by me by judgment dated 6/9/2011. In fact, the said Government Order also cannot help the contentions of the petitioners since the main issue considered therein was only in respect of G.O.(MS) No.4/61/PD dated 2.1.1961. Apart from that, these orders were issued prior to Ext.R1(a) judgment. 42. Shri N. Sugathan, learned counsel for the petitioners relied upon the judgment of the Apex Court in **Shekhar Ghosh v. Union of India and another** {(2007) 1 SCC 331} wherein the view taken was that a mistake, even if to be corrected, has also to be done within a reasonable period. Of course, the argument is that even if there was a mistake in respect of the number of vacancies while finalysing Exts.P1 to P5, the proceedings correcting the same has to be issued within a reasonable time. But as evident from the factual position, it can be seen that the binding directions wpc 7711/2009 & 29910/2008 46 issued by this Court in Exts.P3 and P4 produced in W.P.(C) No.299102/008 were never followed by the Government, as evident from the judgment in W.P.(C) No.19076/2008 and therefore the said principle also will not help the petitioners. 43. Shri N. Sugathan, learned counsel for the petitioners also relied upon the decision of a Full Bench of this Court in **M.P. Raghavan Nair v. State Insurance Officer and others** (1971 KLT 583) - FB) to contend that any revision of seniority in the lower cadre cannot affect the rights of the petitioners in view of the select list published by the Departmental Promotion Committee. In fact, on the facts of this case it can be seen that the select list is subject to the final outcome of the pending writ petitions. Therefore, the said principle also cannot help the petitioners. 44. In fact, learned Govt. Pleader also submitted that after the publication of Ext.P20 and during the pendency of the writ petitions, subsequent seniority lists have been published, which are not under challenge in these writ petitions. I have considered the contentions of the petitioners on the merits with regard to the challenge made against Exts.P20 and P23 and have found that the Government Order has been validly passed. Therefore, I need not go into the contention that Ext.P20 has wpc 7711/2009 & 29910/2008 47 already been superseded by other seniority lists. For all these reasons, W.P.(C) NO.7711/2009 is dismissed. 45. In W.P.(C) No.29910/2008 the petitioner is relying upon Exts.P3 and P4 judgments to consider his claim for promotion. Ext.P5 is the representation filed by the petitioner. Evidently, various seniority lists have been published during the pendency of the writ petition and if any further grievance of the petitioner subsists as on today, he will be free to file a representation before the Government which will be considered duly with notice to the petitioner and the contesting respondents therein, expeditiously. W.P.(C) No.29910/2008 is disposed of accordingly. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**