State of Kerala represented by Secretary to Government, Department of Health and Family Welfare, Government Secretariat, Thiruvananthapuram vs Gishy C.A.

O.P.(KAT) No.54 of 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943** ## **OP(KAT).No.54 OF 2021** **AGAINST THE ORDER DATED 21.5.2020 IN OA(EKM)No.534/2016 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. PETITIONERS/RESPONDENTS IN OA:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** **2 THE DIRECTOR OF HEALTH SERVICES THIRUVANANTHAPURAM, PIN-695001. 3 THE ADDITIONAL DIRECTOR OF HEALTH SERVICES (MEDICAL), DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM, PIN-695001.** ## **BY SR.GOVERNMENT PLEADER SRI B.VINOD** ## **RESPONDENT/APPLICANT IN OA:** **GISHY C.A. AGED 49 YEARS W/O OUSEPH, STAFF NURSE GRADE -II, PHC ANDATHODE, THRISSUR HOUSE, RESIDING AT CHUNGATH HOUSE, ADAT P O, THRISSUR, PIN-680551.** **R1 BY ADV. SRI.KALEESWARAM RAJ R1 BY ADV. SRI.VARUN C.VIJAY R1 BY ADV. KUM.THULASI K. RAJ R1 BY ADV. SMT.MAITREYI SACHIDANANDA HEGDE** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 17-02-2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:** O.P.(KAT) No.54 of 2021 2 **ALEXANDER THOMAS & T.R. RAVI, JJ.** **-----------------------------------------------O.P.(KAT) No.54 of 2021** [ _Arising out of order dated 21.05.2020 in O.A.(Ekm)No.534/16 of KAT, Tvm._ ] **--------------------------------------------------** **Dated this the 8[th ] day of April, 2021** ## **JUDGMENT** ## **T.R. RAVI, J.** The State and its Officers have filed this original petition being aggrieved by the order dated 21.05.2020 in O.A.(Ekm)No.534 of 2016 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram (hereinafter referred to as the Tribunal) whereby the challenge posed by the applicant/respondent against the revision of her seniority in the post of Staff Nurse Gr.II was upheld. 2. Heard Sri B.Vinod, learned Senior Government Pleader on behalf of the petitioners and Sri Kaleeswaram Raj on behalf of the respondent. 3. The respondent was appointed as Staff Nurse Gr.II as per Annexure A1 order dated 22.8.1998 on the basis of the advice made by the District Officer, PSC, Malappuram on 5.8.1998. She joined duty on 9.9.1998 and her probation was declared to have been satisfactorily O.P.(KAT) No.54 of 2021 3 completed with effect from 16.10.2000. Her appointment was regularised with effect from 9.9.1998. On 25.5.2006, the 3[rd] petitioner issued Annexure A4 order whereby the respondent was transferred and allotted to Thrissur district. She was given a posting as per Annexure A5 order dated 24.6.2006 by the DMO, Thrissur. In the seniority list of the Staff Nurse Grade II of persons who entered service between 19902002, published as per order dated 25.10.2007 by the 3[rd] petitioner, the respondent was placed at rank No.2105. The persons shown against ranks 1 to 3459 were temporarily promoted. The respondent was promoted as Staff Nurse Grade I as per order dated 10.11.2008. In the list attached to the proceedings, the respondent is shown against Sl.No.2118 and her rank is shown as 2105. On 12.3.2012, the Government issued Annexure A9 circular, whereby the incumbents were informed about certain corrections that have been effected to the above said orders, to remove some anomalies and were asked to file representations regarding any further corrections that need to be made. Thereafter by Annexure A7 notice, it was informed that on the basis of responses received, it has been provisionally decided to rectify the anomalies detailed in the Annexure to the said notice. It is seen from the said Annexure that in the case of the respondent, the mistake in the spelling of her name has been corrected. It can also be seen that the O.P.(KAT) No.54 of 2021 4 ranking given to the respondent as 2105 is retained. 4. The 3[rd] petitioner had issued a preliminary seniority list of Staff Nurse Gr. II for the period from 1.1.2003 to 30.6.2010 as per order dated 4.10.2012. After hearing the appeals received, the 3[rd] petitioner published the final seniority list of Staff Nurse Gr.II of the period 1.1.2003 to 30.6.2010 as per Annexure A10 and A10(a) dated 3.1.2013. Since the respondent was appointed prior to the period covered by the list and she was already included in the earlier seniority list against the correct ranking, her name was not included in the above list and she had no reason to have any grievance regarding the said final seniority list. While so, on 9.11.2015, Annexure A11 notice was issued proposing to make certain changes in Annexure A10(a) list. The proposed changes which are available in Annexure A12 annexed to Annexure A11 notice would show that the respondent was sought to be included in the said list, reckoning her seniority with effect from 7.7.2006, the date on which she joined as Staff Nurse Gr.II in Thrissur district. The reason stated in Annexure A12 is that the respondent had obtained inter-district transfer on her request and she can claim seniority only with effect from the date on which she joined the new district. It was proposed to change her rank from 2105 to 2285B. It was in these circumstances that the respondent approached the Tribunal. O.P.(KAT) No.54 of 2021 5 5. The Tribunal relied on the principles laid down by the Apex Court in **K.R.Mudgal v. R.P.Singh & Ors.** [1986 (4) SCC 531], that a seniority list which remains unchallenged for 2 to 3 years should not be disturbed. The Tribunal found that the seniority of the respondent has been settled by the list published on 25.10.2007 and she was promoted based on that seniority. Even when anomalies were rectified during 2012, there was no interference with the ranking given to her. The Tribunal noted that the notice for re-examining the seniority was issued more than 8 years later, on 9.11.2015 after the finalisation of the respondent's seniority. It is the above finding that has been challenged by the State in this original petition. 6. The main contention raised in the original petition is that the Tribunal failed to consider the contentions raised by the petitioners as seen from Exts.P2 and P3 reply statements and hence there is an error apparent on the face of Ext.P4 order. It is also contended that the Tribunal went wrong in applying the sit back theory in the case on hand. 7. We have perused Exts.P2 and P3 reply statements. As a matter of fact, the petitioners do not dispute the assignment of rank 2105 to the respondent in the final seniority list published on 25.10.2007. The contention is that a mistake has crept in regarding the assignment of seniority to the respondent. It is also admitted that the O.P.(KAT) No.54 of 2021 6 only correction carried out was regarding the name of the respondent, on her request. What is stated is that the respondent did not point out the fact that she had been assigned wrong seniority position. There is no contention raised that there was a complaint regarding the seniority assigned to the respondent from any quarters. The only question therefore is whether the petitioners should be permitted to correct an error after the passage of 8 years and after the respondent had been granted promotion on the basis of the error. ## 8. In **K.R.Mudgal (supra)** [(1986) 4 SCC 531] the Hon'ble Supreme Court in paragraphs 2 and 7 has held as follows : _“2. … A government servant who is appointed to any post ordinarily should at least after a period of 3 or 4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity. … xxxxxxxx xxxxxxxx xxxxxxxx 7. … Satisfactory service conditions postulate that there should be no sense of uncertainty amongst the government servants created by writ petitions filed after several years as in this case. It is essential that anyone who feels aggrieved by the seniority assigned to him should approach the court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the government servants there would also be administrative complications and difficulties. … ... In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches.”_ 9. Thereafter, in **Shiba Shankar Mohapatra v. State of** **Orissa,** [(2010) 12 SCC 471] **,** the Apex Court after extracting paragraphs 2 and 7 in **K.R.Mudgal(supra)** [(1986) 4 SCC 531] held in paragraph 30 thus: O.P.(KAT) No.54 of 2021 7 _“_ _**30** . 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, 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. Thus, 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.”_ 10. In the case on hand, admittedly, the respondent had joined duty on 9.9.1998 and completed her probation with effect from 16.10.2000. Her transfer to Thrissur district came 6 years later. It is thereafter that the final seniority list of Staff Nurses Gr.II was published showing the respondent's rank as 2105. It is also admitted that the respondent is promoted as Staff Nurse Gr.I purely on the basis of her ranking at 2105. The promotion took place in the year 2008 and she continued in the post without any challenge being made against her promotion, till 9.11.2015, when Annexure A11 notice was issued proposing changes to the Seniority list. The result of the proposed changes would be that the ranking of the respondent would go down further by several places. Admittedly, the rank list was finalised after inviting objections against the provisional rank list. It is not as if the petitioners could not have corrected any mistakes in the ranked list at the earliest by seeking objections. As a matter of fact, it is admitted that anomalies were in fact corrected in the year 2012 and one of the anomalies related to correction of the respondent's name. However, O.P.(KAT) No.54 of 2021 8 even at that point of time, the petitioners did not propose to change the ranking of the respondent. It is only three years later that Annexure A11 notice is issued. As held by the Apex Court, even an affected person could not have challenged the assignment of seniority after the passage of 8 years, particularly when the seniority list was finalised after the publication of a preliminary list and after considering the objections received on the said list. In the above circumstances, we do not see any reason to accept the contentions raised by the learned Senior Government Pleader. We are of the opinion that the Tribunal was wholly justified in following the principles laid down in **K.R.Mudgal supra** [(1986) 4 SCC 531]. The respondent is entitled to the benefit of sit back theory and her seniority should not be disturbed after all these years. In the result, the original petition fails and is dismissed. **==> picture [75 x 15] intentionally omitted <==** ## **ALEXANDER THOMAS, JUDGE** Sd/- **T.R. RAVI, JUDGE** dsn O.P.(KAT) No.54 of 2021 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE OA (EKM) NO. 534/2016 ALONG WITH ANNEXURES.** **ANNEXURE-A1 TRUE COPY OF THE ORDER DATED 22.08.1998. ANNEXURE-A2 TRUE COPY OF THE ORDER DATED 24.11.2000. ANNEXURE-A3 TRUE COPY OF THE ORDER DATED 09.09.1999. ANNEXURE-A4 TRUE COPY OF THE ORDER DATED 25.05.2006. ANNEXURE-A5 TRUE COPY OF THE ORDER DATED 24.06.2006. ANNEXURE-A6 TRUE COPY OF THE ORDER DATED 10.11.2008. ANNEXURE-A7 TRUE COPY OF THE NOTICE DATED 6.08.2012. ANNEXURE-A8 TRUE COPY OF THE ANNEXURE APPENDED TO ANNEXURE A7. ANNEXURE-A9 TRUE COPY OF THE CIRCULAR DATED 12.03.2012.** - **ANNEXURE-A10 TRUE COPY OF THE ORDER DATED 3.01.2013. ANNEXURE-A10(A) TRUE COPY OF THE SENIORITY LIST OF STAFF NURSE GRADE-II FOR THE PERIOD FROM 01.01.2003 TO 30.06.2010.** - **ANNEXURE-A11 TRUE COPY OF NOTICE DATED 9.11.2015. ANNEXURE-A12 TRUE COPY OF THE ANNEXURE A APPENDED TO ANNEXURE A11.** - **ANNEXURE-A13 TRUE COPY OF REPRESENTATION SUBMITTED BY THE RESPONDENT BEFORE THE 2ND PETITIONER WITH TYPED COPY.** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT ALONG WITH ANNEXURES FILED ON 08.11.2016 BY THE SECOND PETITIONER HEREIN IN THE ORIGINAL APPLICATION** - **ANNEXURE-R2(A) TRUE COPY OF THE SENIORITY LIST OF STAFF NURSE GRADE-II FOR THE PERIOD FROM 07.07.1990 TO 31.12.2002 (WITH TYPED COPY)** - **ANNEXURE-R2(B) TRUE COPY OF THE GO (P) NO.36/91/P&ARD** O.P.(KAT) No.54 of 2021 10 ## **DATED 02.12.1991.** **ANNEXURE-R2(C)** **TRUE COPY OF THE ORDER NO.ES355401/2015/DHS DATED 28.12.2015.** **EXHIBIT P3** **TRUE COPY OF THE REPLY STATEMENT ALONG WITH ANNEXURES FILED ON 25.7.2017 BY THE 1ST PETITIONER HEREIN IN THE ORIGINAL APPLICATION.** **ANNEXURE-R1(A)** - **TRUE COPY OF THE ORDER BY WHICH SENIORITY LIST OF STAFF NURSE GRADE-II FOR THE PERIOD FROM 07.07.1990 TO 31.12.2002 (WITH TYPED COPY).** **ANNEXURE-R1(B)** **TRUE COPY OF THE GO(P) NO. 36/91/P&ARD DATED 02.12.1991.** - **ANNEXURE-R1(C) TRUE COPY OF THE ORDER NO.ES355401/2015/DHS DATED 28.12.2015.** **EXHIBIT P4** **TRUE COPY OF THE FINAL ORDER DATED 21.05.2020 IN OA(EKM) 534/2016 OF THE KERALA ADMINISTRATIVE TRIBUNAL.**