T. M. Ibrahim v. The Managing Director, Kerala State Road Transport Corporation & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **TUESDAY, THE 12TH DAY OF NOVEMBER 2013/21ST KARTHIKA, 1935** ## **WP(C).No. 34817 of 2010 (B)** **----------------------------------------** ## **PETITIONER(S):** **----------------------** ## **T.M.IBRAHIM, AGED 42 YEARS,** **S/O.MOHAMMED PILLAI, THOTTATHIL KOTTAPPURATH HOUSE, VELLARAPPALLY SOUTH.P.O., SREEMOOLANAGARAM, ALUVA. (INSPECTOR KSRTC, MALAPPURAM).** **BY ADVS.SRI.P.JAYAKUMAR SRI.V.N.MOHANADASAN** ## **RESPONDENT(S):** **------------------------** **1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, TRIVANDRUM.695 001.** **2. EXECUTIVE DIRECTOR (ADMINISTRATION), CHIEF OFFICE KSRTC, TRIVANDRUM.695 001.** **3. DISTRICT TRANSPORT OFFICER, KSRTC, MALAPPURAM. 679 331.** **4. DISTRICT TRANSPORT OFFICER, KSRTC, ERNAKULAM. 682 035.** **5. C.UDAYAKUMAR, STATION MASTER, CHIEF OFFICE, KSRTC, TRIVANDRUM.695 001.** **R1-4 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA, SC, KSRTC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-11-2013, ALONG WITH WPC. 34867/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 34817 of 2010 (B) ----------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS -----------------------------------** - **P1: COPY OF APPOINTMENT ORDER DATED 18/4/88** - **P2: COPY OF ORDER DATED 12/1/90** - **P3: COPY OF ORDER DATED 24/2/10** - **P4: COPY OF ORDER DATED 17/4/10 ISSUED BY THE 2ND RESPONDENT** - **P5: COPY OF ORDER DATED 8/11/10 ISSUED BY 2ND RESPONDENT** - **P6: COPY OF RELEVANT PAGES OF THE GRADATION LIST** - **P7: COPY OF REPRESENTATION BEFORE THE MANAGING DIRECTOR KSRTC TRIVANDRUM** - **P8: COPY OF THE ORDER NO.PL10/002001/2010 DATED 20/2/2010** - **P9: COPY OF THE ORDER DATED 28/2/11 BY WHICH A TOTAL OF 13 STATION MASTERS HAVE BEEN PROMOTED TO AS INSPECTORS** - **P10: COPY OF THE ORDER DATED 1/3/11 BY WHICH A TOTAL OF 5 STATION MASTERS HAVE BEEN PROMOTRED TO AS INSPECTORS** - **P11: COPY OF THE INTERIM ORDER DATED 22/3/11 IN WPC NO.1200 OF 2011.** - **RESPONDENTS' EXHIBITS -------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **C.K. ABDUL REHIM, J.** **------------------------------------** W.P.(C).Nos. 34817 & 34867 of 2010 **-----------------------------------** Dated this the 12[th] day of November, 2013 ## **J U D G M E N T** Since the challenge in both these writ petitions are against the very same order issued by the Deputy Chief Accounts Officer of the Kerala State Road Transport Corporation (KSRTC), these writ petitions were considered together and disposed of through common judgment. 2. Petitioners in both these cases were appointed to the post of Conductor in KSRTC under dying-in-harness scheme. They were subsequently promoted as Station Masters and then as Inspectors. But by virtue of the impugned order (Ext.P4 in WP(C).No.34867/2010 and Ext.P5 in W.P(C).No.34817/2010) they were reverted based on a complaint submitted by one of their juniors, who is cited as party respondent in both these cases. It was found that, the petitioners were considered for promotion from the cadre of Conductors on considering their date of advice as 04.08.1987. But the said advice was issued with respect to posting of the petitioners as Lower Division Clerk. Since there were no vacancies available in the cadre of Lower Division Clerk, the petitioners were appointed to the post of Conductors after obtaining written consent. Such W.P.(C).Nos. 34817 & 34867 of 2010 2 appointment was made on the basis of fresh advice issued on 09.12.1987 in the case of the petitioner in W.P.(C).No.34817/10 and on 16.05.1988 in the case of the petitioner in the other case. Since their turn for promotion based on the actual date of advice has not fallen due, the petitioner in WP(C). No.34817/10 was reverted as Station Master and the petitioner in the other case was reverted as Conductor. It is challenging the reversion effected through the impugned order, these writ petitions are filed. 3. Contention of the petitioners is that, the seniority position remained settled for years together through gradation lists published in the cadre of conductors and nobody has challenged or disputed the same all along. That being so, the reversion cannot be sustained, because the settled seniority cannot be disturbed after a long lapse of time. The party respondent was estopped from raising any objection after a long lapse of time, when the seniority position remained undisputed all along. Further contention is that the reversion was ordered without issuing any notice to the petitioners and without affording any opportunity to object such proposal. 4. While considering the issue, this court takes note W.P.(C).Nos. 34817 & 34867 of 2010 3 of the fact that, the petitioners could not produce any materials to show that their seniority in the cadre of Conductors was finalised at any point of time after publishing draft gradation list calling for objections. The copy of the list produced in both these writ petitions are only a provisional/draft gradation list. Therefore, this Court is of the considered opinion that the petitioners cannot challenge the reversion on the basis that it will amount to disturbance of the seniority remained settled long back. Therefore the contentions raised by the petitioners on the basis of the provisions contained in Rule 27(b) of the Kerala State and Subordinate Service Rules, cannot be sustained. 5. The petitioners are not disputing the fact that their date of advice in the cadre of Conductor was not on 04.08.1987. Therefore following the mandate of Rule 27(c), the seniority has to be reckoned with effect from the date of effective advice. Hence it is evident that, promotion given based on an erroneous reckoning of seniority is to be corrected. Even though this Court finds merit in the contention raised on the aspect of violation of natural justice, because of the denial of opportunity, it is to be considered that no purpose will be W.P.(C).Nos. 34817 & 34867 of 2010 4 served by quashing the impugned order and by remitting the matter for reconsideration, in view of the above factual position. 6. Learned counsel for the petitioners had placed reliance on a Division Bench decision of this Court in _**Usha Devi v. State of Kerala [2002 (1) KLT 615],**_ wherein it is held that seniority cannot be questioned if the same was not raised in proper time. Rank list cannot be challenged when it had become final, after a long delay in order to unsettle the position which remained settled for years. But, as observed in the foregoing paragraphs, the petitioners cannot prove with any materials that the rank list in the cadre of Conductors was finalised following the procedure contemplated under the relevant provisions. Yet another decision in _**Pavithran v. State of Kerala [2009(4) KLT 20] (FB)**_ was pressed into service in order to content that a person who enjoyed seniority position quite for some time is entitled to sit back and a person who had stepped over his rights cannot rake up a stale claim and tinker with the seniority. But it is evident from Exts.P3 and P4 produced in WP(C)No.34817/10 that the promotions were given only in the year 2010. The party respondent had raised W.P.(C).Nos. 34817 & 34867 of 2010 5 dispute with respect to the promotions immediately thereafter and reversion was effected in November 2010 itself. Hence it cannot be attributed that there was laches or delay on the part of the party respondent in raising the claim within the appropriate time. 7. Learned counsel for the petitioners submitted that, there arose a dispute regarding implementation of the impugned order in view of the interim order issued by this Court granting stay against the reversion. Respondents took a stand that the order of reversion was implemented even prior to issuance of the interim order and therefore the petitioners were not permitted to continue in the promoted post. Subsequently when they were promoted, they were restrained from joining duty on the basis of the alleged break in service. This Court had issued further interim orders in both these cases directing to permit the petitioners to join duty in the promoted posts. Under such circumstances, it is only just and proper to the competent authority to take steps for regularisation of the break in service. 8. It is revealed from facts enumerated in both these cases that the petitioners were subsequently given promotions W.P.(C).Nos. 34817 & 34867 of 2010 6 on the basis of seniority re-fixed in the cadre of Conductor by virtue of Ext.P6 in WP(C).No.34867/2010 and in the cadre of Station Master by virtue of Ext.P12 in WP(C).No.34817/2010. Under the above mentioned circumstances this Court is of the considered opinion that there is no sustainable grounds existing warranting interference with the impugned orders. Accordingly these writ petitions deserve no merit and they are hereby dismissed, subject to the direction for regularisation of the broken period of service. Sd/- **C.K. ABDUL REHIM, JUDGE** AV