S.M. Shefeek and B. Gopinath v State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 10TH DAY OF JUNE 2016/20TH JYAISHTA, 1938 OP(KAT).No. 15 of 2016 (Z) --------------------------- AGAINST THE ORDER IN TA 2418/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 17.12.2012 PETITIONERS: -------------------- 1. S.M.SHEFEEK RADIOGRAPHER, DEPARTMENT OF RADIO-DIAGNOSIS, MEDICAL COLLEGE HOSPITAL, MEDICAL COLLEGE PO., THIRUVANANTHAPURAM. 2. B.GOPINATHAN RADIOGRAPHER, DEPARTMENT OF RADIO-DIAGNOSIS, MEDICAL COLLEGE HOSPITAL, MEDICAL COLLEGE PO., THIRUVANANTHAPURAM. BY ADVS.SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENTS: ------------------------ 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. DIRECTOR OF MEDICAL EDUCATION MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 001. 3. DIRECTOR OF HEALTH SERVICES GENERAL HOSPITAL CAMPUS, THIRUVANANTHAPURAM - 695 001. 4. PRINCIPAL, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 001. 5. JOINT SECRETARY TO GOVERNMENT HEALTH & FAMILY WELFARE DEPAREMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 6. - M.A.SALIM S/O. P.MOHAMMED IBRAHIM, AL-MINAR, KANNATH LANE, THIRUVANANTHAPURAM - 695 581. 7. BENNYKUTTY M., S/O. L.MATHUNNY, KARIKKATHIL, PANANVILA LANE, POWDIKONAM P.O., THIRUVANANTHAPURAM - 695 587. OP(KAT).No. 15 of 2016 (Z) 8. KERALA GOVERNMENT RADIOGRAPHERS ASSOCIATION THIRUVANANTHAPURAM - 695 035, REPRESENTED BY ITS GENERAL SECRETARY, K.P.RADHAKRISHNAN, S/O.P.KUTTAN PILLAI, SREESARSAN. R1 TO R5 BY SR. GOVERNMENT PLEADER SRI K.C.VINCENT R7-R8 BY ADV. SRI.P.NANDAKUMAR ADV. SRI.S.ANEESH THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 10-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 15 of 2016 (Z) --------------------------- ## **APPENDIX** ## PETITIONER(S)' EXHIBITS ------------------------------------P1 - A TRUE COPY OF THE ORDER DT. 20.2.1999 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT. P2 - A TRUE COPY OF THE ORDER DT 27.10.2011 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT. P3 - A TRUE COPY OF THE ORDER DT 25.08.2009 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT. P4 - A TRUE COPY OF THE ORDER DT. 05.8.1994 ISSUED FORM THE OFFICE OF THE 3RD RESPONDENT. P5 - A TRUE COPY OF THE ORDER DT. 20.10.2009 ISSUED BY THE 4TH RESPONDENT. P6 - A TRUE COPY OF THE JUDGMENT DT. 29.6.2010 IN WPC NO. 14091/10. P7 - A TRUE COPY OF THE REPRESENTATION DT. 02.4.2011 FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT. P8 - A TRUE COPY OF THE JUDGMENT DT. 27.5.2011 IN WPC NO. 13507/2011. P9 - A TRUE COPY OF THE ORDER DT. 03.9.2011 ISSUED BY THE 5TH RESPONDENT. P10 - A TRUE COPY OF THE GOVERNMENT ORDER DT. 04.9.1992. P11 - A TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 2ND PETITIONER BY THE 4TH RESPONDENT. P12 - A TRUE COPY OF THE GOVERNMENT LETTER DT. 09.2.2011. P13 - A TRUE COPY OF THE LETTER DT. 30.3.2011 SENT OT THE 1ST RESPONDENT BY THE 3RD RESPONDENT. P14 - A TRUE COPY OF THE GOVERNMENT LETTER DT. 18.5.2011 TO THE 3RD RESPONDENT. P15 - A TRUE COPY OF THE ORDER DT. 17.12.2012 IN TA NO. 2418/2012. P16 - A TRUE COPY OF THE TA NO. 2418/2012 IN WPC NO. 25074/2011. P17 - A TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS 6 TO 8 WITH ANNEXURES. P18 - A TRUE COPY OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF THE 1ST RESPONDENT. P19 - A TRUE COPY OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF THE 2ND RESPONDENT. OP(KAT).No. 15 of 2016 (Z) P20 - A TRUE COPY OF THE REJOINDER STATEMENT FILED BY THE APPLICANTS WITH ANNEXURES. P21 - A TRUE COPY OF THE MISCELLANEOUS APPLICATION FOR THE PRODUCTION OF DOCUMENTS WITH ANNEXURES. P22 - A TRUE COPY OF THE MISCELLANEOUS APPLICATION FOR PRODUCTION OF THE DOCUMENTS WITH ANNEXURES. RESPONDENT(S)' EXHIBITS: NIL True copy P.S. to Judge dsn ## **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.** **-------------------------------------------------OP(KAT)No.15 OF 2016** ## **-------------------------------------------------DATED THIS THE 10[th] DAY OF JUNE, 2016** ## **JUDGMENT** ## **P.R.RAMACHANDRA MENON, J** . The challenge is against the verdict passed by the Kerala Administrative Tribunal way back on 17.12.2012. The reliefs sought for before the Tribunal are in the following terms: - “i) Call for the records leading to this case and issue a writ of certiorari quashing Ext.P9 order. - ii) Issue a writ of mandamus directing the 1[st] respondent to pass appropriate orders on Ext.P7 in the light of Ext.P14 Government Letter. - iii) Issue a writ of mandamus directing the 2[nd] respondent to publish cadre wise integrated seniority list of Radiographers including the persons who had opted and joined Medical Eduction Service from the Health Services Department reckoning their entire service in the concerned categories/posts including their service in Health Services Department and grant promotions accordingly.” 2. After considering the issue involved and after hearing the version of both the sides, the Tribunal declined interference as per the verdict dated 17.12.2012, the operative portion of which reads as follows: OP(KAT) No.15/2016 -2- “12. The position which emerges from the above discussion may be summarised, for the purpose of clarity, as follows: (1) Radiographer Grade II is a common cadre created in the Medical Education Department pursuant to Ext.P10 order dated 4.9.1992 merging the existing posts of Radiographer Grade II, X-Ray Technician Grade II and Technician Grade II (Radiology). (2) Radiographer Grade II and X-Ray Technician Grade II in the Health Services Department were distinct and different posts covered by separate orders governing qualifications and methods of appointment. The nature of duties of those posts was also different. But, it became a combined unified cadre in the Health Services Department only with the issuance of Annexure R6(i) order dated 7.12.2010. (3) The Radiographers Grade II in the Health Services Department upon option pursuant to Annexure R6(g) dated 25.10.2008 can join the pool of Radiographer in the Medical Education Department and they can count their seniority in that cadre from the date of advice by the Public Service Commission. (4) The X-Ray Technician Grade II and Grade I can join the Medical Education Department only as such by virtue of paragraph 5 of Appendix-I of Annexure R6 (g). They cannot claim that they became Radiographers on joining the Department of Medical Education on the ground that their Principal has mentioned them as Radiographers or has issued identity cards describing OP(KAT) No.15/2016 -3- them as Radiographers. (5) By virtue of paragraph 5 of Appendix-I of Annexure R6(g) read with paragraph 2 of Annexure R6 (i), the applicants shall be treated as juniors to all the Radiographers in the Medical Education Department including those who joined there from the Health Services Department on their integration with the cadre of Radiographer in the Medical Education Department. 13. Therefore, the stand of the Government in Ext.P9 is valid. The claim of the applicants made in this Transferred Application is untenable. Further, in this case, considering the claims and counter claims of two sets of employees, the Government have taken a reasonable view. The same cannot be described as perverse or one which no man in his sense will take. So, we cannot interfere with such a decision in exercise of our power of judicial review.” This in turn is under challenge in this Original Petition. 3. Heard the learned counsel for the petitioners, the learned Government Pleader appearing on behalf of the State/ Department and also the learned counsel appearing on behalf of the contesting respondents. 4. It is true that the matter was admitted on 28.1.2016. Pursuant to completion of service of notice, the learned counsel appearing for the party respondents brought to the notice of this OP(KAT) No.15/2016 -4- Court on 24.5.2016, that the matter was much belated and no interference was warranted. The particulars of the order, (particularly the date of the order) were never shown by the petitioners on the docket or in the cause title and as such, it might have been omitted to be noted by the Bench when the matter was admitted on 28.1.2016. It was in the said circumstance, that a specific submission was made from the part of the contesting respondents as taken note of on 24.5.2016, while directing to complete the pleadings. 5. With regard to preparation of docket and the particulars to be shown, Rule 38 of the Rules of the High Court of Kerala, 1971 is very specific, which reads thus: “38. Docketing.- All proceedings and other documents filed in Court shall be docketed on the face of the covering sheet placed at the top endorsing the name of the Court, the number and year of the proceeding to which it relates, the name of the person presenting the same and the date of presentation in Court. In addition to the above particulars, in the case of a memorandum of appeal or petition, an abbreviated cause title and a short description of its contents shall also be given in the docket as in Form No.2.” The proceedings herein are not in conformity the above said rule. 6. The learned counsel for the petitioners made an OP(KAT) No.15/2016 -5- attempt to explain the factual sequence as to the hardships caused to the petitioners, resulting in loss of seniority pursuant to the option given on bifurcation of the Department whereby the petitioners came over to opt for serving the Medical Education Service. This Court finds that the merit of the case will arise, only if the O.P. is otherwise entertainable by this Court. As mentioned hereinbefore, the verdict passed by the Tribunal was nearly '4 years ago' on 17.12.2012 and the explanation offered in the O.P. is that the matter was entrusted with another counsel; but the said counsel did not take necessary proceedings under which circumstance, the file had to be taken back and the present petition, entrusting the matter with the present counsel. The version as given in paragraph 10 of the Original Petition is given below. - “10. It is submitted that after disposal of the transfer application by the Tribunal, petitioners have entrusted a counsel for challenging the same before this Hon'ble Court. The petitioners were under the bona fide belief that the said counsel has filed original petition challenging the order of Tribunal before this Hon'ble Court. When approached repeatedly, it has been revealed that, the counsel has failed to challenge the order of the Tribunal OP(KAT) No.15/2016 -6- before this Hon'ble Court and therefore, the petitioners have taken back the files from the said counsel in the 2[nd] week of November, 2015 and thereafter, after getting a certified copy of the judgment from the Tribunal, entrusted the present counsel to prefer this original petition on 23.12.2015 and thereafter this original petition is filed on 20.1.2016. Therefore there is delay in filing this original petition. The delay occurred in filing the original petition is not intentional or due to any wilful negligence or laches on the part of the petitioners. The delay was occurred due to the reasons beyond the control of the petitioners. Therefore it is highly necessary in the interest of justice to entertain this original petition on merit, condoning the delay, otherwise high prejudice will be caused to the petitioners. The petitioners have got a meritorious case and the denial of seniority to the petitioners are absolutely illegal and arbitrary.” 7. This Court finds that the so called reason offered from the part of the petitioners is not at all a reason at all, much less anything satisfactory. There is inordinate delay on the part of the petitioners in approaching this Court raising the challenge. The jurisdiction of this Court is never to extend relief to any such person who was simply sitting on arm chair, taking rest and waking up on a fine morning, as a matter of revelation. We find OP(KAT) No.15/2016 -7- support from the ruling rendered by the Apex Court in **Rabindra Nath Bose and others** v. **Union of India and others (AIR 1970 SC 470)** . The position has been reiterated by the Apex Court as per decision reported in **Chennai Metropolitan Water Supply and Sewerage Board** v. **T.T.Murali Babu (2014 (4) SCC 108)** . That apart, the seniority position by virtue of the passage of time got settled, for not having successfully challenged and intercepted. The settled position cannot be unsettled, by virtue of the ruling rendered by the Apex Court in **Bhoop Singh** v. **Union of India (AIR 1992 SC 1414)** . No interference is called for. The O.P. fails and the same is dismissed accordingly. ## Sd/- ## **P.R.RAMACHANDRA MENON** , **JUDGE** ## Sd/- **ANIL K.NARENDRAN, JUDGE** dsn //True copy P.S. to Judge//