STATE OF KERALA Vs. SUBEER N.S

JUDGEMENT

(1.) Respondents 1 to 3 in O.A. (Ekm) No.1237 of 2015 before the Kerala Administrative Tribunal, Ernakulam Bench have filed the present Original Petition challenging Ext.P3 final order of the Tribunal dtd. 1/2/2021.

(2.) The brief facts necessary for the disposal of the present O.P are as follows: The applicant entered service as L.D Clerk in the Education Department on 8/8/1988. Later the applicant passed all the departmental tests for promotion to the post of U.D Clerk. While so, the applicant availed leave without allowance for the period from 7/3/2000 to 28/1/2004. The 3rd respondent in the O.A issued an order dtd. 31/5/2006 promoting qualified L.D Clerk in the vacancy of U.D Clerk available up to 29/12/2004. The applicant was Serial No.35 with the assigned date of promotion as 10/3/2003. The said order dtd. 31/5/2006 was revised by the 3rd respondent as per Annexure-A1 proceedings dtd. 15/9/2006 by which all qualified L.D Clerks, who entered in service on or before 31/12/1992 and who were included in the seniority list of L.D Clerks for the period 1989-1992 or before, were ordered to be promoted as U.D Clerk. Thereupon, the applicant was ranked No.37 in the list, with the assigned date of promotion as 21/1/2003. Subsequently, the 2nd respondent issued Annexure-A2 provisional seniority list of U.D Clerk dtd. 21/7/2008 for the period from 1/1/1996 to 31/12/2005 and in the said provisional seniority list the applicant was ranked 512 with the assigned date as 28/9/2002. The 2nd respondent granted 3 months time to file objection if any, to Annexure-A2 provisional list. To the knowledge of the applicant, no one objected against the rank assigned to the applicant within the time stipulated in Annexure-A2. Thereafter, the 2nd respondent in the O.A issued Annexure-A3 final seniority list on 3/8/2009 in which the applicant was ranked No.507 with the assigned date as 19/10/2001. As the applicant was promoted pursuant to Annexure-A1 proceedings as early as in 2006, his seniority was settled as per Annexures-A2 and A3. While so, the applicant received Annexure-A4 notice dtd. 5/7/2012 issued by the 2nd respondent in the O.A intimating that a personal hearing will be conducted on the complaint filed by one Balachandran regarding the seniority assigned to the applicant. The appellant obtained Annexure-A5, a copy of the alleged complaint filed by one Balachandran, UD Clerk, Thodannur as per the provisions of the Right to Information Act. It is contended that the said complainant Sri. Balachandran is a fictitious person and no such person by the name Balachandran is included in Annexure-A2 or A3 seniority list. Thereupon, the applicant submitted a reply dtd. 20/7/2012 before the 2nd respondent. It was further contended on the strength of Annexure-A6 reply received from the Asst. Education Officer, Thodannur that no such employee by the name Balachandran was working as a U.D Clerk in the said office during February 2012. The attendance register from the AEO's office during February and July 2012 obtained by the applicant also showed that no employee by the name Balachandran has signed the attendance register. The said complainant Sri. Balachandran did not appear for the hearing conducted on 20/7/2012. Based on the above materials it was contended that the complaint was lodged by a fictitious person. The 2nd and 3rd respondents in the O.A purported to be acting on Annexure-A5 complaint, issued Annexure-A7 order dtd. 20/12/2013 whereby promotions were ordered overlooking the claim of the applicant that too without revising the date assigned to the applicant in Annexure-A3 final seniority list and without issuing any orders after the hearing conducted pursuant to Annexure-A4 notice. It was contended that in Annexure -A7, Serial Nos. 36 to 40 are juniors to the applicant in the cadre of UDC and their rank numbers in Annexure-A7 are from 508 to 512. Aggrieved by Annexure-A7, the applicant preferred an appeal before the Government and thereafter approached the Kerala Administrative Tribunal by filing O.A (Ekm) No.35 of 2014, seeking expeditious disposal of the appeal filed challenging Ext.A7. The Tribunal as per Annexure-A8 order dtd. 13/3/2014 disposed of the matter with a direction to the Government to consider and pass orders on the said appeal within 3 months from the date of receipt of a copy of the order. In compliance with the direction in Annexure-A8 order passed by the Tribunal, Annexure-A9 hearing notice dtd. 5/5/2014 was issued by the Government and while the said proceeding was pending, the 2nd respondent in the O.A issued Annexure-A10 order dtd. 19/5/2014 revising the seniority of the applicant from rank no. 507 to 956A. Aggrieved by Annexure-A10, the applicant preferred Annexure-A11 appeal dtd. 17/6/2014 before the Government and the Tribunal as per Annexure-A12 order dtd. 18/7/2014 in O.A. (Ekm) No.379 of 2014 directed the Government to consider and pass orders on Annexure-A11 appeal within 3 months from the date of receipt of a copy of the order. Pursuant to the direction in Annexure-A12 order passed by the Tribunal, the Government issued Annexure-A13 order dtd. 30/3/2015 rejecting the appeal whereby Annexure-A10 order passed by the Director of Public Instruction was ratified and held that the authorities were only curing a mistake. It is aggrieved by the issuance of Annexure-A13 the applicant has approached the Kerala Administrative Tribunal filing O.A.(Ekm) No.1237 of 2015 seeking to set aside Annexure-A13 issued by the 1st respondent and also for a direction to restore the seniority assigned in Annexure-A3 rank list i.e., rank No.507 with assigned date in the cadre of UDC.

(3.) A reply statement was filed by the 1st respondent in the O.A stating that a complaint was received from one Balachandran, U.D Clerk, complaining that the date of promotion assigned to the applicant is wrong as he had availed LWA from 7/3/2000 to 28/1/2004 and on verification, it was found that the applicant was on leave without allowance at the time of his promotion as U.D Clerk. Therefore, the seniority of the applicant was revised to the date on which he rejoined duty after the leave. The appeal filed by the applicant was disposed of only after examining the matter in detail and after affording an opportunity of hearing to the applicant. The period of leave without allowance is not countable for any service benefits. It is only by a mistake on the part of the controlling officer that the applicant was granted promotion w.e.f. 19/10/2001 and was assigned the rank No.507 in the seniority list. When the said mistake was brought to the notice of the authorities necessary corrective action was taken and the applicant's seniority was reassigned based on his eligibility. It is also contended that as per Rule 27B of Part II Kerala State and Subordinate Service Rules 1958, the Government has ample power to modify settled seniority and to ratify any action taken by the authorities in this regard. The Government has vested power to review a settled seniority and in the said circumstance, the principles of sit back theory do not arise and therefore prayed for dismissal of the O.A.