Writ Appeal Nos.991/11, 1675/11, 59/2012, 1105/2012 and OP(KAT) Nos.3477/2012 and 3538/2013 vs U. Fassaludeen & Others (High Court of Kerala at Ernakulam)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 12TH DAY OF JUNE 2014/22ND JYAISHTA, 1936** **WA.No. 991 of 2011 ( ) -----------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 19076/2008 of HIGH COURT OF KERALA DATED 26-03-2009** **APPELLANTS/3RD PARTIES.:** **--------------------------------------------** **1. P.B.SUNILAL, TAHSDILAR, TALUK OFFICE, THODUPUZHA.** **2. V.T.RAJAN, DEPUTY TAHSILDAR, TALUK OFFICE, ADOOR.** **BY ADVS.SMT.V.P.SEEMANTHINI (SR.) SMT.K.P.GEETHA MANI SMT.P.A.RINUSA SRI.M.R.ANISON** ## **RESPONDENT(S)/PETITIONER AND RESPONDENTS:** **----------------------------------------------------------------------------** ## **1. U.FASSALUDEEN,** **DEPUTY TAHSILDAR, REVENUE RECOVERY, KOLLAM.** ## **2. STATE OF KERALA REPRESENTED BY THE** **PRINCIPAL SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, GOVERNMENT SECRETRIAT THIRUVANANTHAPURAM.** ## **3. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM.** ***R4. JANIL KUMAR T., TAHSILDAR, VADAKARA** ## **(*R4 IS IMPLEADED AS PER ORDER DTD.24/2/12 IN IA NO.38/12 IN WA NO.991/11)** **R1 BY ADV. SRI.K.JAJU BABU R1 BY ADV. SMT.M.U.VIJAYALAKSHMI R2-R3 BY ADV. SR GOVERNMENT PLEADER SRI.MANILAL** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 5-06-2014, ALONG WITH WA. 1675/2011 AND CONNECTED CASES, THE COURT ON 12/06/2014 DELIVERED THE FOLLOWING:** **WA NO 991/11** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** **ANNEXURE A1: TRUE COPY OF THE CHART PREPARED BY THE APPELLANTS SHOWING THE DETAILS OF THE SENIORITY LIST PRAPARED AND PUBLISHED IN BETWEEN 1991 TO 2008.** ## **//True Copy//** **PA to Judge** **Rp** ## **ANTONY DOMINIC & ALEXANDER THOMAS, JJ. =============================== Writ Appeal Nos.991/11, 1675/11, 59/2012, 1105/2012, OP(KAT) Nos.3477/2012 and 3538/2013 ==============================** ## **Dated this the 12[th ] day of June, 2014** ## **J U D G M E N T** ## Antony Dominic, J. The issues that are raised in these proceedings are connected and therefore these cases were heard together and are disposed of by this judgment. 2. W.A.No.1675/2011 is filed by the petitioners in W.P.(C) No. 7711/2009 whereas W.A.No. 1105/2012 is filed by third parties after obtaining leave of this Court. W.A. No.991/2011 and 59/2012 are filed by third parties to W.P.(C) No. 19076/2008, who are aggrieved by the said judgment. O.P.(KAT) No.3477/2012 and 3538/2013 are filed by the petitioners in O.A.No. 333/2011 and 759/2012, who are aggrieved by the orders dated 17.08.2012 and 19.06.2013 passed by the Tribunal dismissing the OAs filed by them. 3. For convenience, we shall first deal with W.A.Nos.1675/2011 and 1105/2012. 4. The appellants in W.A.No.1675/2011 filed W.P.(C) Writ Appeal Nos.991/11 & conn.cases **: 2 :** No.7711/2009 seeking to quash Exts.P20, P23 and P25 and for a direction to continue to maintain the seniority lists evidenced by Ext.P1 to P5. Ext.P20 is the final seniority list of Upper Division Clerks/ Village Officers in the Revenue Department for the period from 10.09.1984 to 31.12.1992, which was published by the 2[nd] respondent, the Land Revenue Commissioner, on 26.05.2007. In that seniority list, appellants 1 and 2 were at Serial Nos.2949 & 2998 with the assigned date 12.06.1989, 01.08.1989, respectively. However, in so far as the 5[th] respondent is concerned, he was assigned seniority at Sl.No.2686 with the date 09.08.1988. 5. Aggrieved by the seniority assigned to the 5[th] respondent over them and invoking the appellate remedy under Rule 27B of the KS & SSR, the appellants filed Ext.P21 representation. Pursuant to the directions of this Court in Ext.P22 judgment dated 13.11.2007 in W.P.(C) No. 21147/2006 directing the 1[st] respondent, the State of Kerala, to consider the representation along with other representations and to pass orders thereon, relying on the report submitted by the 2[nd] respondent, Ext.P23 Writ Appeal Nos.991/11 & conn.cases **: 3 :** order dated 05.12.2008 was passed by the 1[st] respondent rejecting the representations. 6. In the meanwhile, on 19.05.2008, based on Ext.P20 final seniority list and referring to Ext.P22 judgment, the 2[nd] respondent published Ext.P25, a revised seniority list of Deputy Tahsildars in the Revenue Department, whereby Ext.P5 final seniority list published on 30.11.2004 was revised. This seniority list was for the period from 01.01.1998 to 31.12.2006. In this seniority list, appellants 1 and 2 in W.A.No.1675 of 2011 were assigned seniority at 3551 and 3554 with effect from 28.02.2006 and 18.03.2006 respectively. In so far as the 5[th] respondent is concerned he was given seniority at 3362 with assigned date 16.07.2005. 7. In the writ petition, the appellants in W.A.No.1675 of 2011, contended that pursuant to the directions of this Court in _**Kuttikrishnan and another v. The State of Kerala and Others**_ (ILR 2000 (3) Kerala 1), Ext.P1 integrated seniority list of HC/RI in the Revenue Service for the period from 10.09.1984 to 31.12.1998 was published on 12.12.2000. According to them, on Writ Appeal Nos.991/11 & conn.cases **: 4 :** 24.12.2001, Ext.P2 Integrated Seniority List of Upper Division Clerk/ Village Officer was published for the period from 10.09.1984 to 29.02.1988. In that seniority list, appellants 1 and 2 were included at Serial Nos.2587 and 2619 respectively and the 5[th] respondent, being junior to them, did not find a place. 8. Subsequently, Ext.P3 final seniority list of Upper Division Clerk/Village Officer for the period from 01.03.1988 to 31.12.1992 was published on 24.12.2001, where the 5[th] respondent was included at serial No.23. Still later, on 27.11.2004, Ext.P4, a final seniority list of HC/RI/VO for the period from 01.01.1999 to 31.12.2000 was published. In that seniority list, appellants 1 and 2 and the 5[th] respondent were assigned seniority at Serial Nos.971, 996 and 1077 with seniority from 03.07.2000, 01.08.2000 and 23.11.2000, respectively. They also pointed out that Ext.P1 final seniority list of Deputy Tahsildars, for the period from 01.01.2003 to 30.06.2004 was published on 30.11.2004. It is pointed out that in this seniority list, while the appellants were assigned seniority at Serial Nos.560 and 577 with effect from 29.06.2004, the 5[th] respondent was not even included. Writ Appeal Nos.991/11 & conn.cases **: 5 :** 9. It is also pointed out that after their promotion as Deputy Tahsildars, when Ext.P6 list of approved probationers in the cadre of Deputy Tahsildar for the period upto 30.06.2004 was published, appellants' names were included at Serial Nos.65 and 68, with effect from 05.06.2006 and 08.06.2006 respectively. Case of the appellants is that the seniority as reflected in Exts.P1 to P5 remained unchallenged and attained finality and that therefore the said seniority could not have been upset as has been done by Exts.P20, P23 and P25 and that the 5[th] respondent could not have been assigned seniority over them. 10. The learned single Judge considered contentions urged and the writ petition was dismissed. It is this judgment which is under challenge before us. 11. In so far as W.A.No.1105 of 2012 is concerned, this appeal is filed by third parties to W.P.(C) No. 7711/2009 and according to them, in implementation of the judgment under appeal, Annexure A-VI revised select list was published on 23.01.2012 for the year 2007and 2008 and they were removed from the select list for 2007 and were placed in the select list for Writ Appeal Nos.991/11 & conn.cases **: 6 :** 2008 and that in the meanwhile, they stood reverted from the post of Tahsildar to Deputy Tahsildar. 12. The learned Sr. Counsel appearing for the appellants in W.A.No.1675/2011 contended that the seniority which stood settled by Exts.P1 to P5 could not have been challenged or revised beyond a reasonable time. She therefore contended that the respondents committed gross illegality in revising the seniority list. In this context, she placed reliance on the judgments of the Apex Court in _**K.R. Mudgal and others v. R.P. Singh and Others** (AIR 1986 SC 2086)_ , _**Shiba Shankar Mohapatra and others v. State of Orissa and others** (AIR 2010 SC 706)_ and _**H.S. Vankani and others v. State of Gujarat and Others** (2010 (4) SCC 301)._ She also referred us to the judgment of this Court in _**Usha Devi v. The State of Kerala and Others** (ILR 2002 (1) Kerala 93 (DB))_ . Learned counsel also submitted that learned single Judge dismissed the writ petition placing reliance on the judgment in W.P.(C) No.19076/2011 and on the assumption that the directions therein were not complied with. This, according to the counsel, is also erroneous and in Writ Appeal Nos.991/11 & conn.cases **: 7 :** support thereof she referred us to the facts pleaded in W.A.Nos. 991 of 2001 and 59 of 2012 filed against the judgment in W.P.(C) No.19076/2011. 13. On behalf of the appellants in W.A.No.1105 of 2012 filed against the judgment in W.P.(C) No.7711 of 2009, learned Sr. Counsel contended that Exts.P1 to P5 seniority lists referred to above had attained finality and therefore the settled seniority could not have been belatedly revised. It was also pointed out that in Ext.P5, the seniority list was ordered to be subject to the result of W.P.(C) No.21147 of 2006. According to them, that writ petition was disposed of by Ext.P22 judgment and that pursuant to the directions therein, the representations filed under Rule 27B of KS & SSR were considered and were rejected by Ext.P23 order. Therefore, according to them, there was no uncertainty with respect to the seniority lists which had attained finality. 14. They also contended that Ext.P7 select list was not modified in any manner provided under Rule 28(b)(i)(8)(a) of KS & SSR. Learned senior counsel also argued that subsequent to their promotion, even if changes were made to the seniority list or Writ Appeal Nos.991/11 & conn.cases **: 8 :** select list, that could not have affected their selection and promotions. In support of this contention, learned senior counsel referred us to the Apex Court judgment in _**S.K. Ghosh v. Union of India** (AIR 1968 SC 1385)_ and the judgments of this Court in _**M.P. Raghavan Nair v. State Insurance Officer and Others** (1971 KLT 583-FB)_ , _**Thankaraj v. State of Kerala and others** (ILR 1996 (3) Kerala 733)_ and _**M.N. Jayaprakash v. V.V. Mohanan and others** (W.A.No.919 of 2000)_ . 15. Counsel for the contesting respondents and the learned Government Pleader invited our attention to the averments in paragraph 10 of the counter affidavit filed on behalf of the 1[st] respondent in W.P.(C) No.7711 of 2009, where it is stated thus; _“In view of the judgment of the Hon’ble High Court and on the basis of the legal opinions, the Government decided to withdraw G.O.(Rt)No.3847/2009/RD, dated 20.10.2009. The 2[nd] respondent has issued a provisional seniority list of LCD/VA by proceedings No.LRT4 13358/2009 dated 15.10.2010 inviting objections. The seniority list of L.D. Clerk will be finalized within one month after the disposing of the objections received from the employees if any. The 2[nd] respondent is also going to issue_ Writ Appeal Nos.991/11 & conn.cases **: 9 :** _the provisional seniority list of UDC/SVO, HC/RI/VO, DT/JS and Tahsildars/ SS in view of the directions in R2(a) judgment. It is also submitted that the contempt case filed against the non compliance of Ext.R1(a) judgment is pending before the Hon’ble High Court. In view of the interim order passed by the Hon’ble High Court in this writ petition, the said judgment could not be implemented. The grievance faced by the petitioner in the writ petition can be raised before the 2[nd] respondent at the time of finalization of the seniority list of UDC/SVO, HC/RI/VO.”_ 16. They further submitted that in pursuance of the above, on 05.11.2009, Ext.R2(a), provisional seniority list of LDC/VA of the Revenue Department was published and that the said list was finalised on 17.03.2010. It was that finalized seniority list that was challenged in W.P.(C) No.8123 of 2010 and connected cases and that by interim order dated 06.04.2010, this Court had stayed all further proceedings pursuant to the finalized seniority list. According to them, subsequently, the list was withdrawn by the respondents and a fresh provisional list was published on 15.10.2010 and that the same was finalized. 17. It was also stated that as per Ext.R14 published on Writ Appeal Nos.991/11 & conn.cases **: 10 :** 29.01.2011, provisional seniority list of UDC/VO for the period from 10.09.1984 to 31.10.1998 was published and that the same was finalized on 16.04.2011 as per Ext.R14(a). It was also pointed out that final seniority list of HC/RI for the period from 01.11.1998 to 31.12.2005 was published on 07.05.2011 as per Ext.R14(b). They also produced Ext.R14(c), the provisional seniority list of Deputy Tahsildars for the period from 01.01.1998 to 31.12.2008, published on 03.06.2011 and Ext.R14(e) published on 01.12.2011 is the finalized seniority list of Deputy Tahsildars. They have also produced Ext.R14(d), the final seniority list of Tahsildars for the period from 01.04.2001 to 31.12.2010, published on 17.03.2012. It is pointed out that the reversion complained of by the appellants as per Annexure VI dated 15.03.2012 was in pursuance of Ext.R14(e) final seniority list of Deputy Tahsildars. 18. Respondents stated that Ext.P20 final seniority list of UDC/VO published on 26.05.2007 was for the period from 10.09.1984 to 31.12.1992 and that Ext.P25 revised seniority list of Deputy Tahsildars was for the period from 01.01.1998 to Writ Appeal Nos.991/11 & conn.cases **: 11 :** 31.12.2006. They pointed out that these seniority lists stand superseded by Ext.R14(a) final seniority list of UDC/VO published on 16.04.2011 for the period from 10.09.1984 to 31.10.1998 and Ext.R14(e) final seniority list of Deputy Tahsildar published on 01.12.2011, for the period from 01.01.1998 to 31.12.2008. It is therefore contended that the impugned seniority lists having been withdrawn by respondents 1 and 2, challenge raised in the writ petition against those seniority lists has become infructuous. 19. W.A.No.991/2011 and 59/2012 are also filed by third parties, who claim to be affected by the judgment in W.P.(C) No.19076 of 2008. That writ petition was filed mainly complaining about the alleged non-finalization of the provisional seniority list of Deputy Tahsildars published on 26.05.2007. Appellants herein contended that the writ petition was disposed of by the learned Single Judge on the erroneous assumption that the respondents therein had not complied with the directions of this Court in the judgment in W.A.No.799 of 1988, a copy of which was produced as Ext.P1. According to them, it is on that basis that the learned judge directed finalization of the seniority lists considering Writ Appeal Nos.991/11 & conn.cases **: 12 :** Ext.P4 representation and as directed in the judgment in W.A.No.799 of 1988. 20. The case of the appellants is that the petitioners in W.P. (C) No.19076 of 2008 had suppressed material facts and that the directions in the judgment in W.A.No.799/1988 were already complied with and the details of which, are as shown in Annexure I chart attached to W.A.No. 991/2012. They also stated that the consequential seniority lists that were issued in pursuance of the judgment, were the subject matter of litigation before this Court in the cases of _**Thankaraj v. State of Kerala and Others** (ILR 1996 (3) Kerala 733)_ and _**Kuttikrishnan and another v. The State of Kerala and Others** (ILR 2000 (3) Kerala 1)_ . It was stated that it was finally that Exts.P1 to P5 and Ext.P29 were issued. Therefore, it is contended that the factual basis on which the judgment of W.P.(C) No.19076 of 2008 was rendered being erroneous, the said judgment is unsustainable. It was also contended that since the judgment in W.P.(C )No.7711/2009 was rendered relying on the judgment in W.P.(C) No.19076/2008, the former is also illegal and untenable. Writ Appeal Nos.991/11 & conn.cases **: 13 :** 21. In so far as O.P.(KAT) No.3477 of 2012 is concerned, that was filed seeking mainly to quash the revised seniority lists which were produced as Annexures VIII, IX and XII, which were referred to herein above as Exts.R14(a), R14(b) and R14(e) respectively. When the OP was taken up for hearing, learned counsel for the petitioners requested that on account of certain subsequent developments, the original petition may be dismissed as not pressed. 22. In so far as OP (KAT)No.3538 of 2013 is concerned, the petitioners therein filed OA No.759 of 2013 before the Kerala Administrative Tribunal seeking _inter-alia_ to set aside Annexure A11 proceedings of the Land Revenue Commissioner and Annexure A12, the revised seniority list of UDC/VO, which was referred to above as Ext.R14(a). That original petition was dismissed by the Tribunal by its order dated 19.06.2013 as highly belated and barred by limitation in view of section 21(1)(b) read with Section 20 (2) (b) of the Administrative Tribunals Act. 23. Even during the arguments of this case, nothing was pointed out by the learned counsel for the petitioners to hold that Writ Appeal Nos.991/11 & conn.cases **: 14 :** the conclusion of the Tribunal that the OA filed on 10.04.2013 was barred by the limitation is illegal. Further, the law is settled that once the course of action or a remedy has become time barred, it is not open to a litigant to take recourse to the discretionary remedy provided under Article 226 of the Constitution of India and to revive a cause of action or the remedy and get the matter agitated on merits. This principle has been laid down by a Division Bench of this Court in _**Asst.Commr. Of Central Excise v. Krishna Poduval**_ (2005(4) KLT 947), where it was held thus; _7. At the outset we may state that in so far as the respondents have not taken up the original orders imposing penalty in appeals before the appellate authority within the maximum period prescribed under S.85(3) of the Finance Act, 1994, they cannot get the appeals revived and heard on merits by resorting to the discretionary remedy before this Court under Article 226 of the Constitution of India. Once the period of limitation has run itself out and the appellate authority does not have power to condone the delay in filing the appeals beyond the_ Writ Appeal Nos.991/11 & conn.cases **: 15 :** _maximum period prescribed under the Act, the remedies of the appellants come to an end just like in the case of a time barred suit and the respondents cannot, by invoking the discretionary remedy under the extraordinary jurisdiction of this court under Article 226 of the Constitution of India, resurrect their unenforceable cause of action and require this court to consider their contentions against the original orders on merit. That would amount to defeating the very law of limitation which we are not expected to do under Art.226. If we are to entertain the contentions of the respondents on merits, that would amount to negating the law of limitation which we have no jurisdiction to do under Article 226 and which may even lead no anomalous results. We are not satisfied that the jurisdiction of this Court under Art.226 of the Constitution of India is so wide as to resurrect a cause of action which has become unenforceable on account of the law of limitation. Further, we are of the firm opinion that the jurisdiction under Art.226 of the Constitution of India cannot be invoked against express statutory provisions,_ Writ Appeal Nos.991/11 & conn.cases **: 16 :** _however harsh the effect of the provisions may be on an_ _assessee or litigant._ If that is so, the Tribunal’s order dismissing OA No.759 of 2013 deserves to be upheld. 24. The resultant position is that Exts.P20 and P25 final seniority lists which are the subject matters of W.A Nos.1675/2011 and 1105/2012 stand superseded by the revised seniority lists finalized as per Ext.R14(a) and Ext.R14(e) published on 16.04.2011 and 01.12.2011 and it was in pursuance of Ext.R14 (e) that by Annexure A-VI in WA No.1105/2012 the appellants therein were removed from the select list for 2007 and reverted to the post of Deputy Tahsildar. Ext.R14(a) or Ext.R14(e) are not challenged by the appellants. The petitioners in O.P.(KAT) Nos.3477/2012 and 3538/2013 were unsuccessful in challenging these seniority lists also. In such circumstances, we have to accept the contention of the respondents that the challenge against Exts.P20, P23 and P25 in W.A.Nos.1675/2011 and 1105/2012 does not, in view of the subsequent developments leading to Ext.R14 series of seniority lists, survive for Writ Appeal Nos.991/11 & conn.cases **: 17 :** consideration. 25. In so far as W.A.Nos.991 of 2011 and 59 of 2012 are concerned, they are filed against the judgment in W.P.(C) No.19076 of 2008. By this judgment, this Court directed that respondents therein shall see that the state wide seniority lists in the feeder categories to the post of Deputy Tahsildar as identified in the judgment in W.A.No. 799 of 1988 is finalised in accordance with the directions in the writ appeal judgment mentioned above. 26. Irrespective of the contentions raised by the appellants, the ultimate outcome of the judgment was the finalization of the seniority lists. As we have already found, by Ext.R14 series, the earlier seniority lists stand superseded. Therefore, the contentions now raised by the appellant against the judgment of the learned single Judge do not merit consideration. Instead, if the appellants are aggrieved, their remedy, in our considered view, was to challenge the latest seniority lists evidenced by Ext.R14 series, which has not been done by them. Therefore, these writ appeals also do not merit consideration. For the aforesaid reasons, we do not find any substance in these writ appeals and the OP(KAT)s. Writ Appeal Nos.991/11 & conn.cases **: 18 :** ## Accordingly, the appeals and the original petitions are dismissed without any order as to costs. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **ALEXANDER THOMAS JUDGE** Rp //True Copy// PA to Judge