TONYMON ANTONY v. EXECUTIVE COMMITTEE, LBS CENTRE FOR SCIENCE AND TECHNOLOGY; LBS CENTRE FOR SCIENCE AND TECHNOLOGY; LBS INSTITUTE OF TECHNOLOGY FOR WOMEN; Vibin Kumar C.S

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 24TH DAY OF MAY 2017/3RD JYAISHTA, 1939** **WP(C).No. 36183 of 2010 (W)** **------------------------------------------** ## **PETITIONER(S) :** - **-------------------------** **TONYMON ANTONY, TRADE INSTRUCTOR, LBS INSTITUTE OF TECHNOLOGY FOR WOMEN, POOJAPPURA, THIRUVANANTHAPURAM, RESIDING AT THULUMPAMAKKAL, MOOZHOOR P.O, KOTTAYAM 686 503.** **BY SMT.SUMATHY DANDAPANI (SENIOR ADVOCATE) ADV. SRI.MILLU DANDAPANI** **RESPONDENT(S) :** - **----------------------------** **1. THE EXECUTIVE COMMITTEE, LBS CENTRE FOR SCIENCE AND TECHNOLOGY, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM 695 033, REPRESENTED BY ITS SECRETARY.** **2. THE LBS CENTRE FOR SCIENCE AND TECHNOLOGY, NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM 695 033, REPRESENTED BY ITS DIRECTOR.** **3. THE LBS INSTITUTE OF TECHNOLOGY FOR WOMEN, POOJAPPURA,TRIVANDRUM 695 012, REPRESENTED BY ITS PRINCIPAL.** **4. VIBIN KUMAR.C.S,TRADE INSTRUCTOR, LBS INSTITUTE OF TECHNOLOGY FOR WOMEN, POOJAPPURA, TRIVANDRUM 695 012, RESIDING AT CHATHANATTU HOUSE, METHALA P.O, KURUPPUMPADY VIA., ERNAKULAM, DISTRICT 683 545.** - **R1 TO R3 BY ADV. SMT.K.K.RAZIYA, S.C R4 BY ADVS. SRI.K.H.ASIF** **SRI.C.A.MAJEED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-04-2017, THE COURT ON 24-05-2017 DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 36183 of 2010 (W)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: TRUE COPY OF THE PROCEEDINGS ORDER NO. B7/2667/2005 DATED 20.07.2005.** - **EXHIBIT P2: TRUE COPY OF THE SENIORITY LIST PUBLISHED BY THE 2ND RESPONDENT, DATED 07.11.2007.** - **EXHIBIT P2(A): TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER DATED 16.11.2007.** - **EXHIBIT P3: TRUE COPY OF THE MAIN RANK LIST OF CANDIDATES FOR THE POST OF TRADESMAN (MECHANICAL).** - **EXHIBIT P4: TRUE COPY OF THE RELEVANT PAGES OF THE G.O(RT)NO. 473/2005/H.EDN. DATED 19.03.2005.** - **EXHIBIT P5: TRUE COPY OF THE LETTER NO. E/344/2007/LBT DATED 23.07.2008 SENT BY THE PRINCIPAL OF THE 3RD RESPONDENT TO THE DIRECTOR OF THE 2ND RESPONDENT.** - **EXHIBIT P6: TRUE COPY OF THE PROVISIONAL SENIORITY LIST OF TRADE INSTRUCTOR (ME) VIDE PROCEEDINGS NO. B7-127/2010(21) DATED 10.02.2010.** - **EXHIBIT P7: TRUE COPY OF THE PROVISIONAL SENIORITY LIST OF TRADERS MAN (ME) VIDE PROCEEDINGS NO. B7-127/2010(6) DATED 10.02.2010.** - **EXHIBIT P8: TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER DATED 08.03.2010.** - **EXHIBIT P9: TRUE COPY OF THE EXTRACTS OF THE MINUTES IN THE 83RD MEETING OF THE 1ST RESPONDENT.** - **EXHIBIT P10: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER, DATED 23.07.2010.** - **EXHIBIT P11: TRUE COPY OF THE EXTRACT OF THE MINUETS OF THE 84TH MEETING OF THE 1ST RESPONDENT.** - **EXHIBIT P12: TRUE COPY OF THE PROVISIONAL SENIORITY LIST OF COMPUTER PROGRAMER VIDE PROCEEDINGS NO. B7-127/2010(6) DATED 10.02.2010.** **RESPONDENT(S)' EXHIBITS :** **NIL** **//TRUE COPY//** **P.S.TO JUDGE.** Msd. ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(C).No.36183 of 2010** ## **= = = = = = = = = = = = = = = Dated this the 24th day of May, 2017** ## **JUDGMENT** - 1.The prayers in this writ petition are as follows:- - i. Call for the records relating to Exts.P2, P6 & P7 and peruse the same, - ii. issue a writ of certiorari or any other writ, order or direction quashing Exts.P2, P6 and P7 seniority list and Ext.P9 minutes to the extent it approves Exts.P6, P7 seniority lists, - iii. issue a writ of mandamus or any other writ, order or direction to recast the seniority list placing the petitioner above the 4[th] respondent.” - 2.Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the 1[st] and 2[nd] respondents as well as the learned counsel appearing for the 3[rd] respondent. - 3.It is submitted by the learned counsel for the petitioner that the petitioner is currently employed as Trade Instructor in the Mechanical Engineering department of LBS institute of W.P.(C).No.36183/10 2 technology for women, Thiruvananthapuram, the third respondent herein. The third respondent is an institution under the 2[nd] respondent which is a government undertaking. The petitioner is aggrieved by Exts.P2, P6 and P7 seniority lists which, if not set aside, will seriously affect his promotion and career prospects with the third respondent. 4.Petitioner and the 4[th] respondent were initially appointed to the post of Tradesman in Mechanical Engineering in 2005 after test and interview conducted by the 2[nd] respondent. The petitioner was ranked higher in the ranked list but the 4[th] respondent had joined service earlier. In 2007, Ext.P2 seniority list was published in which the petitioner is seen listed after the 4[th] respondent. The petitioner submitted Ext. P2(a) enquiring about the criteria for drawing up the seniority list. No reply was received. It is contended that the petitioner was verbally informed that since the organisation is not a Government department, it can formulate its own rules in respect of seniority. Subsequently, both the petitioner and the 4[th] respondent were promoted to the post of Trade Instructor W.P.(C).No.36183/10 3 Grade I. The petitioner contends that for non-teaching staff of the respondent engineering college, the applicable rules are that of the Department of Technical Education and that as far as seniority is concerned, KS & SSR should be applicable. - 5.In the mean time in early 2010, Ext.P6 seniority list for the post of Trade Instructor (ME) was published and Ext.P7 seniority list of Trade Instructor (ME) was republished. In both Exts.P6 and P7, the petitioner is listed after the respondent on the date of joining. The petitioner had therefore preferred objections to the seniority lists prepared pointing out that relying on the date of joining duty for fixing seniority is arbitrary and illegal. However, no reply was forthcoming and hence this writ petition. - 6.A counter affidavit has been filed on behalf of respondents 1 to 3. It is contended therein as follows:- The petitioner was appointed as Tradesman in Mechanical Engineering in the scale of pay of Rs.3050-5230 in the third respondent Engineering College run by the Centre. As per Exhibit P1 appointment order, he joined the post on 30.07.2005. The W.P.(C).No.36183/10 4 fourth respondent who was also similarly appointed as Tradesman in the third respondent college joined the post on 29.07.2005. Based on the dates of joining of the incumbents, the second respondent prepared a draft seniority list of Tradesman in various branches on 07.11.2007 and circulated it among the Tradesman inviting objections, if any, latest by 17/11/2007. In Exhibit P2 draft seniority list, the fourth respondent was placed at Serial No.1 and the petitioner at Serial No.2 based on their respective dates of joining as Tradesman under the third respondent. It was expressly stipulated in Exhibit P2 draft seniority list that complaints, if any, against the seniority list will not be entertained after the finalisation of the list. No objections were received against Exhibit P2 draft seniority list from any quarter. Accordingly, Exhibit P2 seniority list was finalised by the second respondent placing the fourth respondent at Serial No.1 and the petitioner at Serial No.2 on the basis of their respective dates of joining as Tradesman. Later on, on the basis of the finalised seniority list of Tradesman, the petitioner and the fourth respondent were promoted as Trade instructors on 23/11/2007. Petitioner accepted promotion to the post of Trade Instructor effected on the basis of Exhibit P2 seniority list without demur and remained silent till March 2010.” - 7.The counter affidavit filed on behalf of the 4[th] respondent also contends that the petitioner, who had not objected to the initially fixation of seniority, cannot raise objections at this W.P.(C).No.36183/10 5 later stage. It is further submitted by the learned counsel for the 4[th] respondent that the petitioner is not entitled to raise any claim on the basis of Rule 27(c) of Part II of KS&SSR since the said provisions are not applicable to service in respondents 1 to 3. The learned counsel places reliance on the decisions of the Apex Court in **Ittyachan v. Mahatma Gandhi University** [1991 KHC 529]; **Dr.A.K.Chirappanath v. Dr.M.A.Ittyachan** [1992 KHC 74] and **Raveendran Nair v. State of Kerala** [2001 KHC 508]. 8.I have considered the contentions advanced. The only issue to be decided is whether the petitioner who was ranked higher than the 4[th] respondent in Ext.P3 select list would be entitled to seniority over the 4[th] respondent in the entry post and consequently in promoted post as well. The contention raised by the respondents 1 to 3 is that by virtue of having joined service earlier, the 4[th] respondent has been assigned the seniority over the petitioner and was ranked higher in the ranked list. After having considered the contentions advanced as well as the precedents, I have no doubt in my mind that the W.P.(C).No.36183/10 6 petitioner would be entitled to seniority since the fortuitous circumstances of the 4[th] respondent having joined duty earlier cannot be a reason for grant of seniority to him. 9.The next point to be decided is as to the delay on the part of the petitioner in challenging the seniority assigned to him. In view of the objections raised by the petitioner to the initial seniority list, I am inclined to hold that the 4[th] respondent is not entitled to place reliance on the theory of sit back to contend that his settled seniority ought not be unsettled. Exts.P6 and P7 are clearly provisional seniority lists published inviting objections from aggrieved employees. The petitioner had preferred his objections to the said lists. They have not been considered by the respondents. I am of the view that there was no settling the seniority and that the contention raised by the petitioner had never been addressed by the respondent. In that view of the matter, I am of the opinion that the grant of seniority of the 4[th] respondent based on the date of joining duty was unwarranted. 7 ## W.P.(C).No.36183/10 10.The impugned orders are therefore set aside. It is declared that the petitioner is entitled to seniority over the 4[th] respondent on the strength of Exhibit P3 merit list. The respondent concerned shall assign due seniority to the petitioner. This writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj