State of Kerala and others v. K.M. Radha Krishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 19TH DAY OF OCTOBER 2017/27TH ASWINA, 1939** **OP(KAT).No. 394 of 2017 (Z) ----------------------------** **AGAINST THE ORDER IN OAEKM 630/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 5-01-2017** **PETITIONERS/RESPONDENT IN OA::** **-------------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,KERALA-695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY,THIRUVANANTHAPURAM,KERALA-695014.** **3. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS,SANTHI NAGAR,THIRUVANANTHAPURAM, KERALA-695001.** **BY GOVERNMENT PLEADER SRI ANTONY MUKKATH** **RESPONDENT/APPLICANT IN OA::** **-------------------------------** **K.M.RADHA KRISHNAN, S/O.KRISNNAN NAIR,AGED 56 YEARS,SENIOR SUPERINTENDENT (RETIRED),OFFICE OF THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION,MALAPPURAM-676505(RESIDING AT KRISHNA LEEK,P.O.,MUNDUPARAMBA, MALAPPURAM DISTRICT-676509), KERALA-676509.** **R BY SRI.V.A.MUHAMMED** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 19-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No. 394 of 2017 (Z) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF THE O.A.WITH ANNEXURES EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT EXHIBIT P3 TRUE COPY OF THE ORDER DATED 5.01.2017 IN OA(EKM) 630/2015 OF THE KERALA ADMINISTRATIVE TRIBUNAL.** **RESPONDENT(S)' EXHIBITS ----------------------NIL** **KS.** ## **True copy** **P.S. (Hr.Gr.)To Judge** ## **P. R. RAMACHANDRA MENON & SHIRCY V.,JJ.** ## **============================== O.P.(KAT)No. 394 of 2017** ## **============================== Dated this the 19[th] day of October, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The correctness and sustainability of Ext.P3 verdict passed by the Kerala Administrative Tribunal in O.A. No.630/2015 setting aside the orders impugned before the Tribunal, virtually allowing the O.A., is under challenge at the instance of the State/Department, who were the respondents before the Tribunal. 2. The respondent herein joined service as Lower Division Clerk under the General Education Department on 6.4.1984. But, before the declaration of probation, he sought to avail 'leave without allowances' for the period from 7.8.1985 to 14.6.1989. Admittedly, the same was granted and the respondent was permitted to join duty on 15.6.1989. It was thereafter, that the probation was OPKAT 394/2017 2 declared on 19.8.1991, reckoning the service from 15.6.1989 onwards. Thus on completion of the probation, he was given promotion as Upper Division Clerk with effect from 16.2.1994 as per Annexure A1 order dated 3.11.1994. Further promotions were also given to him as Junior Superintendent vide Annexure A4 dated 26.4.2010 and as Senior Superintendent vide Annexure A8 dated 4.10.2013. After serving the department for quite long, the respondent retired from service on 31.5.2015. 3. While in service, the 2[nd] petitioner/2[nd] respondent in the O.A. issued Annexure A10 show-cause notice to the respondent on 5.6.2012, referring to the fact that the period prior to the declaration of probation could not have been reckoned for the purpose of granting promotion and as to why the seniority shall not be refixed accordingly, referring to such other consequences. The respondent submitted an explanation, but the same was rejected and Annexure A11 came to be passed reverting the respondent to the lower OPKAT 394/2017 3 post, which made the respondent preferred Annexure A12 Review Petition before the Government. Simultaneously, the respondent approached the Tribunal as well, by filing the O.A. No.2222/2014, which was disposed of Annexure A-13 in the following terms: “Having regard to the facts of the case, the first respondent is directed to consider the claim of the applicant for stay of Annexure A8, pending consideration of Annexure-A9 revision. This the first respondent shall do within two weeks from the date of receipt of a copy of this order. The said respondent shall dispose of Annexure-A9 revision within three months thereafter.” 4. Pursuant to the said order, the matter was considered by the Government, who passed Annexure A14 order rejecting the claim of the respondent. Though Annexure A15 Review Petition was filed before the Government, it was not fruitful and it came to be dismissed as per Annexure A16. This made the respondent to approach the Tribunal again, by way of O.A. No.630/2015. The stand of the Department was sought to be justified by OPKAT 394/2017 4 filing a reply statement. The relevant provisions and binding judicial precedents were cited from both the sides. After hearing both the parties, the Tribunal held that, even if the merit was in favour of the Government (in view of the relevant rule position) the mistake, if any, had to be corrected within a reasonable time. Reliance was placed on the judgment reported in **Venugopal v. State of Kerala [2009(2)KLJ 809].** Similarly, with regard to the right of recovery, reliance was sought to be placed on the verdict passed by the Supreme Court in **Sate of Punjab v. Rafiq Masih (White Washer) [2015(1)KLT 429(SC)]** . It was accordingly that, a declaration was made by the Tribunal, that it was difficult to accept the contentions put forth by the Government, holding it further that the principle of 'sit back theory' could not be made applicable in the instant case. The Tribunal accordingly set aside the orders impugned in the O.A. and the O.A. was allowed, directing to sanction and disburse the pensionary benefits due to the OPKAT 394/2017 5 applicant, treating him as having retired from the post of Senior Superintendent on 31.5.2015 and to effect disbursal of the amount due within two months from the date of receipt of a copy of the order. 5. There is no dispute with regard to the factual position and the law declared by the Apex Court on the point, at different points of time. The undisputed fact remains that the respondent, though joined service on 6.6.1984 and had availed 'leave without allowance' from 7.8.1985 to 14.6.1989, his probation came to be declared on 17.6.1991, after his rejoining duty on 15.6.1981. Further promotions were given to him, to various higher levels in the years 1994, 2010 and 2013. Annexure A10 show-cause notice came to be issued by the 2[nd] petitioner only on 5.6.2012, i.e. nearly 21 years after declaring the probation on 17.6.1991. Nothing else is required to hold that the course pursued by the Tribunal interfering with the orders passed by the State/Department and granting relief OPKAT 394/2017 6 to the respondent/applicant is perfectly within four walls of the law and is not assailable under any circumstances. It is also to be noted that, the seniority ordered and given to the respondent with effect from 17.6.1991 was never under challenge at the instance of anybody who were standing next in the queue, contending that the latter's seniority was adversely affected. It is further settld law that the settled position cannot be unsettled, after long lapse of time. We find support the ruling rendered by the Supreme Court in **Bhoop Singh v. Union of India and others[ AIR 1992 SC 1414].** The Original Petition is devoid of merit and it stands dismissed accordingly. ## **Sd/-** ## **P. R. RAMACHANDRA MENON JUDGE** ## **Sd/-** ## **SHIRCY V. JUDGE** **ks.** True copy P.S. (Hr.Gr.)To Judge OPKAT 394/2017 7