Vasudevan V.T. Upper Primary School Assistant, High School, Peringode, Peringode P.O., Palakkad District v State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945** **WP(C) NO. 4646 OF 2014** ## **PETITIONER/S:** **VASUDEVAN V.T. UPPER PRIMARY SCHOOL ASSISTANT, HIGH SCHOOL,PERINGODE, PERINGODE P.O., PALAKKAD DISTRICT,PIN - 679 535.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.N.SANTHA** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,HIGHER EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM, PIN - 695 001.** - **2 DEPUTY DIRECTOR OF EDUCATION PALAKKAD, PIN - 678 001.** - **3 DISTRICT EDUCATIONAL OFFICER OTTAPALAM, PALAKKAD DISTRICT PIN - 679 101.** - **4 MANAGER HIGH SCHOOL, PERINGODE, PERINGODE P.O.,PALAKKAD DISTRICT, PIN - 679 535** - **5 K.P.PRIYA UPPER PRIMARY SCHOOL ASSISTANT,HIGH SCHOOL, PERINGODE, PERINGODE P.O.,PALAKKAD DISTRICT, PIN - 679 535.** W.P.(C) No.4646 of 2014 2 **BY ADVS. GOVERNMENT PLEADER SMT.ASHA BABU SMT.AMMU CHARLES SRI.P.B.KRISHNAN SRI.M.MANOJKUMAR CHELAKKADAN SRI.P.M.NEELAKANDAN SRI.S.NITHIN ANCHAL SRI.S.M.PRASANTH-R5 SRI.K.RAMAKUMAR SR. SRI.P.B.SUBRAMANYAN** ## **OTHER PRESENT:** **SRI BIJOY CHANDRAN, SR GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.4646 of 2014 3 # **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C)No. 4646 of 2014 ---------------------------------------------Dated this the 05[th] day of March, 2024** # **JUDGMENT** ## The above writ petition is filed with following ## prayers : _i. “call for the records leading to Exts.P5 and P8 and quash them by the issuance of a writ of certiorari or any other appropriate writ, order or direction._ _ii. declare that the petitioner is senior to the 5th respondent in the category of UPSA, that his seniority is not liable to be unsettled and that he is entitled to all consequential benefits on the basis of his settled seniority as reflected in Ext.P2, including promotion to the post of HSA(SS)._ _iii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 4 to treat the petitioner as senior to the 5th respondent in the category of UPSA and to grant him allconsequential benefits including promotion to the category of HSA, as if Exts. P5 and P8 were never issued at all._ _and_ W.P.(C) No.4646 of 2014 4 _iv. grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case including the costs of this Writ Petition (Civil)._ 2. The petitioner and the 5[th] respondent entered service as Upper Primary School Assistant (UPSA) in the 4[th] respondent school on 25.07.1997. Both of them possessed the educational qualification of BA in Economics and B.Ed in Social Science. Their date of birth is also the same i.e., 23.05.1974. It is submitted that as per Rule 37 chapter XIVA KER, seniority of a teacher in any grade in any unit is to be decided with reference to the length of continuous service in that grade in that unit provided he is qualified for the post. Sub-Rule 2 of Rule 37 says that in the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, the seniority shall be decided with reference to the date of the first appointment. If the date of first appointment is also the same, the seniority is to be decided with reference to the W.P.(C) No.4646 of 2014 5 age, the older being the senior. It is submitted that in the case of the petitioner and the 5[th] respondent, interse seniority cannot be fixed by applying Rule 37 Chapter XIVA KER because all the indicators regarding seniority are one and the same as far as they are concerned. Therefore, the 4[th] respondent-Manager while issuing seniority list of teachers in various grades in his school, as on 01.01.2000, placed the petitioner as senior to the 5[th] respondent. This seniority list was approved by the 3[rd] respondent District Educational Officer as provided in Rule 35 Chapter XIVA KER. The 5[th] respondent did not file any objection regarding the inter se seniority between the petitioner and herself. It is also submitted that as per Rule 38(1) of Chapter XIVA KER, the educational authority concerned mentioned therein may finalise and approve the seniority list after considering the representations if any and after hearing the parties and the list so approved shall be final. It is also W.P.(C) No.4646 of 2014 6 submitted by the petitioner that Rule 38(2) of Chapter XIVA KER states that an appeal shall lie to the higher authorities against an order passed under Rule 38(1) within the time limit stipulated therein. According to the petitioner, the 5[th] respondent did not file any appeal against the seniority list. Thus the seniority list became final and binding on all concerned including the petitioner and the 5[th] respondent is the submission. 3. In this context, it is submitted that when the petitioner tried to obtain a copy of the seniority list published by the 4[th] respondent as on 01.01.2000, he was told that the same was not available in the school of his and that it was irretrievably lost. But, it is submitted that there is no dispute that the higher seniority of the petitioner in the category of UPSA vis-a-vis the 5[th] respondent is settled and that it is not liable to be changed on any account. The grievance of the petitioner is that the 4[th] respondent tried to unsettle the seniority W.P.(C) No.4646 of 2014 7 of the petitioner with the 5[th] respondent. But the 3[rd] respondent informed the 4[th] respondent as per the order No. L.Dis.B1/5052/2000 dated 21.10.2000 that, the seniority list as on 01.01.2000 of the school had already been approved and that as per Rule 38, Chapter XIVA KER the seniority list once approved by the Educational Officer shall be final. Ext.P1 is the proceedings of the District Educational Officer, Ottappalam to the 4[th] respondent. 4. The 4[th] respondent thereafter published the seniority list of the teachers belonging to primary/upper primary/secondary school as on 01.01.2004 and in that list also, the petitioner is shown as senior to the 5[th] respondent. Ext.P2 is the seniority list. In Ext.P2, the petitioner is Serial No.66 and the 5[th] respondent is Serial No.67 is the submission. Therefore, it is submitted that, from Ext.P2, the 5[th] respondent accepted the seniority list as she had signed in token thereof in column No.11 W.P.(C) No.4646 of 2014 8 of Ext.P2. It is also submitted that the 5[th] respondent did not filed any objection against Ext.P2. Ext.P2 was published as per Ext.P3 by the 3[rd] respondent. Pursuant to Exts.P2 and P3, it is submitted that the seniority list was prepared, circulated, finalised and published strictly in accordance with Rules 35, 36, 37 and 38 of Chapter XIV A KER. Based on the seniority in the category of UPSA and his qualification, the petitioner was promoted to the category of High School Assistant (Social Science) with effect from 01.06.2009 in anticipation of sanction of new posts in the high school section for the year 20092010. But the said appointment was not approved for want of sufficient student strength. It is submitted that this event also establishes that the petitioner is admittedly senior to the 5[th] respondent. According to the petitioner, the 4[th] respondent Manager has been trying to help the 5[th] respondent and with this view, it appears that the 4[th] respondent approached the 3[rd] respondent W.P.(C) No.4646 of 2014 9 seeking unwarranted clarifications. Consequently, by letter No.B4/6665/11 dated 15.05.2012 the 3[rd] respondent informed the Manger that as per the criteria for fixation of seniority the 5[th] respondent is seen senior to the petitioner and therefore the Manager was advised to submit the seniority list as on 01.01.2012. Ext.P4 is the proceedings. According to the petitioner, the Manager obtained Ext.P4 behind the back of the petitioner. On the basis of Ext.P4, the Manager published the seniority list as on 01.01.2012 in which the petitioner was placed as junior to the 5[th] respondent. The petitioner filed objection before the 3[rd] respondent. But the 3[rd] respondent, as per letter No.B4/9965/11 dated 26.11.2012 informed that since the date of appointment of the petitioner and the 5[th] respondent as well as their age are the same, their seniority has to be fixed on the basis of the alphabetical order of their names as provided in Rule 27 Part II KS & SSR, that accordingly W.P.(C) No.4646 of 2014 10 the 5[th] respondent is senior to the petitioner. According to the petitioner, when the seniority was settled earlier this criterion was not adopted and the action of the Manager in placing the 5[th] respondent above the petitioner in the seniority list as on 01.01.2012 is therefore not proper and that the Manager should have convinced the petitioner about the same and re-submit the seniority list after getting the signature of the petitioner thereon. Ext.P5 is the letter from the District Educational Officer, Ottappalam to the Manager. The petitioner filed statutory appeal before the 2[nd] respondent against Ext.P5. The 2[nd] respondent as per Ext.P6 advised the 3[rd] respondent to obtain clarification from the Government in the matter and thereafter to settle the issue. In the meanwhile, in a leave vacancy that arose in the post of HSA(SS), the Manager appointed the 5[th] respondent, superseding the superior claims of the petitioner. Hence the petitioner filed a W.P.(C) No.4646 of 2014 11 detailed representation before the Government, requesting to issue directions to the respondents 3 and 4 to restore the seniority of the petitioner above the 5[th] respondent in accordance with the earlier seniority lists as on 01.01.2000 and 01.01.2004. Ext.P7 is the representation. But at that stage, the Government informed the 3[rd] respondent that as per Rule 27 Part II KS & SSR, the 5[th] respondent is to be treated as senior to the petitioner in the category of UPSA. Ext.P8 is the Government Order. According to the petitioner, nothing is mentioned in Ext.P8 as to whether Ext.P7 representation submitted by the petitioner has been considered or not while issuing that order. According to the petitioner, the alphabetical order of the names of the petitioner and the 5[th] respondent has no relevance at all in determining their seniority in the peculiar facts and circumstances of this case. It is submitted that, such a concept is alien to the KER. If on the basis of the conditions mentioned in the KER the seniority of the W.P.(C) No.4646 of 2014 12 petitioner and the 5[th] respondent cannot be settled, a reasonable criterion which the respondents 1 to 4 can perhaps adopt is the marks obtained by the petitioner and the 5[th] respondent in their qualifying examinations. According to the petitioner, for the graduation and B.Ed. degree, the petitioner has obtained more marks than the 5[th] respondent. Hence this Writ petition is filed challenging Exts.P5 and P6. 5. Heard the learned counsel appearing for the petitioner, the learned Government Pleader and the learned counsel appearing for the 5[th] respondent. 6. When this Writ petition came up for consideration on 17.02.2014, this Court passed the following order: “Govt. Pleader will get instructions. Urgent Notice on admission to R4 and R5 by speed post returnable within 10 days. There will be an interim stay against further steps of the 3[rd] respondent for approval of appointment of the 5[th] respondent by virtue of Exts.P5 and P8 for a period of two weeks.” W.P.(C) No.4646 of 2014 13 7. The above interim order was extended until further orders on 27.06.2014 and it is in force even now. It is an admitted fact that the seniority list of the 5[th] respondent school was published in the years 2000 and 2004 as evident by Exts.P1 to P3. The settled seniority is totally changed as per Ext.P4 letter from the District Educational Officer, Ottapalam to the Manager on 26.11.2012. Thereafter, Ext.P8 order was passed by the Government on 10.01.2014. The settled seniority is going to be unsettled after about 13 years. The Division Bench of this Court in _**Kerala State Electricity Board, Trivandrum and others vs. P.Sasidharan (2015 KHC 826)**_ observed that the doctrine of sit back would apply both in cases where settled seniority positions are under challenge belatedly and also applies to administrative actions overturning settled seniority positions which are sought to be defended. The relevant portions are W.P.(C) No.4646 of 2014 14 ## extracted hereunder:- _“16. Having gone through the Full Bench judgment in Sajeeve's case (supra), we are of the view that the issue is substantially covered and does not require a further deliberation. In the aforesaid judgment, the Full Bench considered the "sit back theory" and its application to various factual circumstances after referring to the Constitution Bench judgment in_ **Rabindra Nath v. Union of India** _(AIR 1970 SC 470) and other judgments wherein the Supreme Court considered the question whether the Court can interfere in a settled seniority position applying the principles of delay and laches and after referring to_ **K.R.Mudgal v. R.P.Singh** _(AIR 1986 SC 2086), the Full Bench observed in paragraph 31 as under;_ _"31. We are of the view that, just as in a case where a belated challenge to a settled position of seniority or consequential orders of promotion will not be entertained by a writ Court under Art.226 of the Constitution, on the principles laid down in Rabindra Nath v. Union of India (AIR 1970 SC 470) and Mudgal (AIR 1986 SC 2086), the Court should also be wary in countenancing a contention which, if accepted, would result in overturning seniority positions of long standing. Essentially, the doctrine of sit back would apply both in cases where challenge against settled positions are_ W.P.(C) No.4646 of 2014 15 _mounted belatedly and in cases where the challenge to administrative actions overturning settled seniority positions are sought to be defended"_ _17. When it is held that the doctrine of sit back would apply both in cases where settled seniority positions are under challenge belatedly and also applies to administrative actions overturning settled seniority positions which are sought to be defended, we are of the view that the same principles apply to the factual situation in the present case and therefore, the learned Single Judge was justified in allowing the writ petition.”_ 8. Admittedly, the 5[th] respondent has not challenged the earlier seniority list. In such circumstances, it is not justifiable for unsettling the seniority list which is settled now in the light of the principle laid down by the Division Bench in _**Sasidharan case**_ (supra). Moreover, a full bench of this Court in _**Pavithran vs. State of Kerala (2009 (4) KLT 20(FB))**_ observed that a person who enjoyed a seniority position for quite some time is entitled to sit back. It is W.P.(C) No.4646 of 2014 16 also observed that a person who has slept over his right, cannot rake up a stale claim and tinker with seniority. The Apex court in _**K.R.Mudgal and others vs. R.P.Singh and others (1986 KHC 705)**_ observed that the 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. Therefore, in the light of the above principles laid down by the apex court and this court, I am of the considered opinion that unsettling the settled seniority list based on Exts.P5 and P8 is an injustice to the petitioner. 9. Moreover, a perusal of Ext.P8 would show that the Government observed that the seniority between the petitioner and the 5[th] respondent is to be decided based on Rule 27 of Part II KS&SSR. A Division Bench of this Court in _**Balakrishnan v. A.E.O. Vadakara (2005 (4)**_ W.P.(C) No.4646 of 2014 17 _**KLT 64)**_ observed that the service conditions of aided school teachers are as contained in Chapter XIV-A KER which is prescribed in terms of Section 12 of the Kerala Educational Act. Therefore, the provisions of KS&SSR is not applicable to the teachers. Ofcourse, the situation in cases like this may not be contemplated in the Kerala Educational Act, because the date of appointment, date of birth etc., of the petitioner and the 5[th] respondent are same. But at this distance of time, when the seniority list is settled, it is not proper to unsettle the same by issuing Exts.P5 and P8. Moreover, Ext.P5 and P8 are stayed by this Court from 2014 onwards and now about 10 years over after the interim order passed by this Court. Therefore, I am of the considered opinion that Ext.P5 and P8 are to be set aside. Therefore, this writ petition is allowed in the following manner:- 1. Exts.P5 and P8 are set aside 2. It is declared that the petitioner is senior to the 5[th] W.P.(C) No.4646 of 2014 18 respondent in the category of UPSA and he is entitled all consequential benefits on the basis of settled seniority as reflected in Ext.P2 including promotion to the post of HSA. **Sd/-** **P.V.KUNHIKRISHNAN, JUDGE** SKS/DM/bng W.P.(C) No.4646 of 2014 19 ## **APPENDIX OF WP(C) 4646/2014** ## **PETITIONER EXHIBITS** **EXT.P-1: TRUE COPY OF THE LETTER NO.L.DIS.B1/8991/2004 DATED 5.3.2005 OF THE 3RD RESPONDENT** **EXT.P-2: TRUE COPY OF THE RELEVANT EXTRACT OF SENIORITY LIST OF TEACHERS BELONGING TO PRIMARY/UPPER PRIMARY/SECONDARY SCHOOL AS ON 1.1.2004** **EXT.P-3: TRUE COPY OF THE ORDER NO.C1/7551/05 (2) DATED 16.3.2006 OF THE 3RD RESPONDENT** **EXT.P-4: TRUE COPY OF THE LETTER NO.B4/6665/11 DATED 15.5.2012 THE 3RD RESPONDENT** **EXT.P-5: TRUE COPY OF THE LETTER NO.B4/9965/11 DATED 26.11.2012 OF THE 3RD RESPONDENT** **EXT.P-6: TRUE COPY OF THE LETTER NO.B5/21217/12/L.DIS. DATED 6.9.2013 OF THE RESPONDENT EXT.P-7: TRUE COPY OF THE REPRESENTATION DATED 24.9.2013 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT.** **EXT.P-8: TRUE COPY OF THE GOVERNMENT LETTER NO.59770/B3/2013/G.EDN DATED 10.1.2014.**