Saju P vs State Of Kerala
2021 Latest Caselaw 22326 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
                  THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                          &
                    THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
          TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
                               OP(KAT) NO. 303 OF 2021
AGAINST     THE   ORDER   DATED     26-10-2021    IN   OA   727/2020   OF   KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.


PETITIONERS/APPLICANT      :

              SAJU P, S/O. S.PAULSON, AGED 46 YEARS,
              "HALINE", VALIYATHURA, VALLAKADAVU P.O.,
              THIRUVANANTHAPURAM-695008, ASSISTANT FOREMAN,
              GOVERNMENT CENTRAL PRESS, THIRUVANANTHAPURAM.

              BY ADVS.
              DAISY A.PHILIPOSE
              JAI GEORGE


PARTICULARS OF RESPONDENTS/RESPONDENT         :

     1        STATE OF KERALA,
              REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
              HIGHER EDUCATION DEPARTMENT, SECRETARIAT,
              THIRUVANANTHAPURAM-695 001.

     2        THE DIRECTOR OF PRINTING,
              GOVERNMENT CENTRAL PRESS,
              THIRUVANANTHAPURAM-695 001.

     3        M.P.ANEESHKUMAR, SENIOR FOREMAN,
              GOVERNMENT PRESS, KOZHIKODE, PADMA NIVAS,
              KOTENCHERI P.O., PURAMERI VIA, KOZHIKODE-673 503.

     4        MOHAMMED IQBAL,
              OFFSET MACHINE OPERATOR GRADE-1,
              GOVERNMENT PRESS, WAYANAD, MUTHEERI HOUSE,
              THACHANCODE, CHUNGATHARA P.O., MALAPPURAM-679334.
            O.P (KAT) No.303 of 2021   2


           BIJU, S/O. A.N.ARAVINDAKSHAN,
     5     AGED 47 YEARS, OFFSET PRINTING MACHINE
           OPERATOR SENIOR GRADE ON OTHER DUTY,
           GOVERNMENT PRESS, KAKKANAD,
           ERNAKULAM-682021, RESIDING AT BIJU NIVAS,
           NEDUVANNOOR, CHOWARA P.O., ERNAKULAM-683571, KERALA.




           R1 & R2 BY SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER,
           R3 TO R5 BY SMT.REKHA VASUDEVAN




     THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION
ON 09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P (KAT) No.303 of 2021                        3



    ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
  =========================================
                         O.P (KAT) No.303 of 2021
[Arising out of the impugned final order dated 26.10.2021 in OA.No.727/2020 of the KAT, Tvm ]
============================================
                    Dated this the 9th day of November, 2021

                                   JUDGMENT

Alexander Thomas, J.

The sole petitioner herein has filed the instant Ext.P1 original

application in O.A.No.727 of 2020 before the Kerala Administrative

Tribunal, Thiruvananthapuram Bench with the following prayers [ See

page 34 of the paper book of the O.P]:

" (i) Call for the entire records relating to Annexure-

A21 and set aside the same to the extent of fixing the date of 6/1/2009, to be the starting point of seniority.

(ii) Direct the 2nd respondent to implement the directions in annexure-A8, expeditiously.

(iii) Direct the 2nd respondent to consider and pass orders on Annexure-A 16 expeditiously.

(iv) Grant such other relief's that may be deemed fit and proper to this Honourable Tribunal in the interest of justice."

2. Initially, the Tribunal after hearing both sides, has

rendered an interim order on 1.6.2020 in the present O.A, staying the

operation of all further proceedings pursuance of the impugned

Annexure-A21 G.O (Rt).No.380/2020/H.Edn dated 5.3.2020 issued

by the competent authority of the State Government in the Higher

Education Department. Later, at the instance of the motion made by

the respondent in the O.A, the Tribunal has passed the impugned

Ext.P6 interim order dated 26.10.2021, whereby, the earlier interim

stay order dated 1.6.2020 granted against Annexure-A21 has been

vacated and liberty has been granted to the official respondents to take

further steps for preparation and finalization of a seniority list in

pursuance of the directions issued by the Government as per the

impugned Annexure-A21 order and in the light of the provisions

contained in the special Rules, 2016 which came into force on

6.1.2009.

3. Being aggrieved by the impugned Ext.P6 interim order

rendered by the Tribunal, whereby the earlier interim stay granted by

the Tribunal on 1.6.2020 has been vacated, the sole applicant in the

O.A has preferred the instant Original Petition under Articles 226 &

227 of the Constitution of India with the following prayers [ See page 20

of the paper book of the O.P.]:

"[i] Call for the records relating to Exhibit-P7 order and to0 set aside the order dated 26.10.2021 in O.A.No.720 of 2020 of the Kerala Administrative Tribunal [ii] Direct the Kerala Administrative Tribunal to dispose O.A.No.720 of 2020, expeditiously [ii](sic) Issue such other order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

4. Heard Smt.Daisy.A.Philipose, learned counsel appearing

for the sole petitioner in the O.P/sole applicant in the O.A and

Shri.Saigi Jacob Palatty, learned Senior Government Pleader

appearing for official respondents 1 and 2 and Smt. Rekha Vasudevan,

learned counsel appearing for contesting respondents 3 to 5.

5. We have heard both sides in extenso and the various rival

pleas have been made by them.

6. Smt.Daisy.A.Philipose, the learned counsel appearing for

the petitioner/applicant would urge that the preparation of combined

seniority list in accordance with the directions issued by the 1 st

respondent in terms of the impugned Annexure-A21 Government

Order would lead to total confusion in the Department. That, prior to

the issuance of special Rules 2016, the then prevailing the special

Rules 1976 as well as the executive orders had governed the field.

That, with the establishment of offset printing reformed Government

Presses, the same called for creation of new posts and executive orders

issued by the State Government to fill up the newly sanctioned post

which was created to ensure the operation of the offset printing

machines. That this gave rise to a series of litigations, which

ultimately culminated in the promulgation of the new special Rules of

2016, which has been given retrospective effect from 6.1.2009. One of

the contentions urged by the petitioner, as can be seen from a reading

of Ground B in the OA is that the impugned action of the 1 st

respondent as per Annexure-A21 to direct the 2 nd respondent to fix the

seniority of the employees w.e.f 6.1.2009, is highly arbitrary and

violative of Articles 14 & 16 of the Constitution of India and therefore,

Annexure-A21 is liable to be set aside. Smt.Daisy A Philipose, the

learned counsel appearing for the petitioner in the present O.P would

point out that the interim stay order was granted by the Tribunal on

1.6.2020 only in the present O.A.No.727 of 2020 and the other OAs

got tagged on with the present OA in Ext.P6, which are not in relation

to the prayer for quashment of the impugned order at Annexure-A21

herein, but in relation to the promotion claims of the applicants

therein. Further, that the interim stay order was vacated as per Ext.P6

will have effect only vis-a-vis the present O.A.No.727 of

7. The learned Senior Government Pleader would urge that

the sanctity and relevance of the date 6.1.2009 is the deemed date of

coming into force of the new Special Rules 2016, and the date 6.1.2009

was chosen as the same is the date of judgment of this Court rendered

in OP No.18719 of 2002 (produced as Annexure-A6 in the O.A), etc.

The submissions of the petitioner and the main issues to be resolved

etc., are referred to in para 4 of the impugned Ext.P6 interim order

rendered by the Tribunal, which reads as follows [ see pages 244 & 245 of

the paper book of the O.P]:

"4. Pending issuance of the Rules, promotions were effected in the Machine Section and appointments were also made to the Offset Printing Machine Branch. On issuance of such Special Rules, the need arose for reconciling the above appointments/promotions from both these Sections. The post of Assistant Foreman (Machine) was to be filled up from both the Machine Section as well as from the Offset Printing Section. Printer, Senior Grade in the Machine Section and Offset Printing Machine Operator, Senior Grade, Printer Grade I, Offset Printing Machine Operator Grade I and Grade II were the feeder category for appointment to the above post. This required issuance of a combined seniority list. The combined seniority list of Printer Grade I and Offset Machine Operator Grade II was published as per Annexure A11 order of the second respondent dated 19.9.2018. In the meanwhile, steps were afoot to publish the combined seniority list of Senior Grade Printer and Offset Machine Operator Grade I. The final seniority list was published as per Annexure-A17. As per the above seniority list, the sate of advice to the entry cadre post in the concerned branch is taken for reckoning the seniority. This is the bone of contention."

8. Further, it appears that being aggrieved by Annexure-A17

seniority list, the employees in the Offset Printing Section had

preferred a statutory appeal in terms of Rule 27B Part II KS & SSR

before the 1st respondent competent authority of the State Government

in the Higher Education Department. This resulted in the Government

as the appellate authority has issued the impugned Annexure-A21

order dated 5.3.2020, wherein it has been found that the impugned

Annexure-A17 seniority list (which is the subject matter of the said

statutory appeal), issued by the 2 nd respondent- Director of Printing

was not in accordance with law and the same has thus been set aside.

Consequential directions have also been issued by the 1 st respondent-

Government in Annexure-A21 for preparation of a fresh seniority list

in terms of the parameters in the new special Rules 2016, etc. Various

other pleas have been made by the learned counsel for the petitioner,

in support of their case that the impugned order passed by the

Tribunal at Ext.P6, is quite unreasonable and unjust and would lead to

confusion and that, the Tribunal should have decided the main matter

in the O.A instead of vacating the interim stay order granted initially

on 1.6.2020. Shri.Saigi Jacob Palatty, the learned Senior Government

Pleader appearing for the official respondents 1 & 2 and Smt.Rekha

Vasudevan, the learned counsel appearing for contesting respondents

3 to 5 have made their submissions and have supported the reasonings

and conclusions of the Tribunal in Ext.P6 interim order. We are told

that pleadings in this case have been duly completed.

9. After hearing both sides, we are of the view that the

Tribunal cannot be seriously faulted in having vacated the stay order

and also having permitted respondents 1 & 2 to set in motion the

process of preparation of a fresh seniority list by circulating

provisional seniority list and inviting objections from interested

persons etc.. However, we feel that the finalization of the seniority list,

should have been interdicted, so that the same could be effected in

accordance with the final verdict of the Tribunal. In other words, the

Tribunal could have disposed of the main matter and the finalization

of the seniority list should have been directed to be kept in hold until

then. So, we are of the view that the ultimate conclusion made by the

Tribunal in Ext.P6 interim order, might require modification to that

limited extent. Accordingly, it is ordered that the directions of the

Tribunal at Ext.P6 in vacating the interim stay order granted on

1.6.2020 and in permitting the setting in motion of the process for

preparation of a fresh seniority list in accordance with the new special

Rules, 2016 is not interdicted. Respondents 1 & 2 may go ahead with

the further process in that regard including circulation of a provisional

seniority list to all the affected persons and giving time to the affected

incumbents, including the original applicant to submit their objections

thereto. It is made clear that the petitioner may also give his main

objections to the matter as raised in the O.A, before the competent

authority of respondents 1 & 2 and the same may also be duly

considered along with various other objections that may be given by

the affected persons in regard to the proposed provisional seniority list

that may be circulated by respondents 1 & 2. After consideration of all

the objections, respondents 1 & 2 will also be at liberty to prepare a

draft seniority list and the same may be made available to the

Tribunal. The finalization of the said draft seniority list may be kept in

abeyance until the final disposal of the main matter in the O.A by the

Tribunal. The Tribunal may take all reasonable endeavours possible

in the circumstances to ensure the early consideration final disposal of

the main matter in the present O.A.No.727 of 2020, without much

delay preferably within a period of two months, at any rate within an

outer time limit of three months from the date of production of a

certified copy of this judgment. The Registry will forward a copy of this

judgment to the Kerala Administrative Tribunal, Thiruvananthapuram

Bench, who is dealing with O.A.No.727 of 2020, for necessary

information and further action.

With these observations and directions, the above Original

Petition will stand finally disposed of.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

VIJU ABRAHAM, JUDGE pm

APPENDIX OF OP(KAT) 303/2021

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE ORIGINAL APPLICATION IN O.A.NO.727 OF 2020 ON THE FILES OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.

ANNEXURE A1 A TRUE COPY OF THE ORDER NO.458/87/H.EDN. DATED 21.2.1987, ISSUED BY THE 1ST RESPONDENT.

ANNEXURE A2 A TRUE COPY OF G.O.(MS) NO.202/87/H.EDN.

DATED 16.7.1987, ISSUED BY THE 1ST RESPONDENT.

ANNEXURE A3 A TRUE COPY OF G.O.(RT) 1450/87/H.EDN.

DATED 28.7.1987, ISSUED BY THE 1ST RESPONDENT.

ANNEXURE A4 A TRUE COPY OF G.O.(MS) NO.31/2000/H.EDN. DATED 10.3.2000, ISSUED BY THE 1ST RESPONDENT.

ANNEXURE A5 A TRUE COPY OF THE ORDER NO.CMP-

22799/2000 IN OP.14124/2000 IN THIS HON'BLE COURT OF KERALA DATED 11.7.2000.

ANNEXURE A6                A TRUE COPY OF THE JUDGMENT IN
                           O.P.NO.18719 OF 2002 DATED 6.1.2009.

ANNEXURE A7                A TRUE COPY OF THE ORDER NO.10522/10/E4
                           DATED 22.7.2011, ISSUED BY THE 2ND
                           RESPONDENT.

ANNEXURE A8                A TRUE COPY OF THE ORDER DATED
                           19.11.2015 IN O.A.NO.2006 OF 2013.

ANNEXURE A9                A TRUE COPY OF THE ORDER G.O.(MS)
                           NO.2323/16/H.EDN. DATED 31.8.2016,
                           ISSUED BY THE 1ST RESPONDENT.

ANNEXURE A10               A TRUE COPY OF THE LETTER

NO.6334/2015/SPL. CELL DATED 25.3.2015, AND RELEVANT EXTRACT OF THE SENIORITY LIST ISSUED BY THE 2ND RESPONDENT.

ANNEXURE A11 A TRUE COPY OF THE LETTER NO.6334/2015/SPL. CELL DATED 19.9.2018, ISSUED BY THE 2ND RESPONDENT AND THE RELEVANT EXTRACT OF THE SENIORITY LIST.

ANNEXURE A12               A TRUE COPY OF THE LETTER
                           NO.22076/16/E4/DP DATED 28.9.2016,
                           ISSUED BY THE 2ND RESPONDENT.

ANNEXURE A13               A TRUE COPY OF THE ORDER DATED 28.3.2018
                           IN O.A.NO.2393 OF 2017.

ANNEXURE A14               A TRUE COPY OF THE ORDER NO.6759/16/E4
                           DATED 14.10.2016, ISSUED BY THE 2ND
                           RESPONDENT.

ANNEXURE A15               A TRUE COPY OF THE ORDER

NO.125/2018/E4/DP DATED 4.1.2019, ISSUED BY THE 2ND RESPONDENT.

ANNEXURE A16 A TRUE COPY OF REPRESENTATION DATED 7.1.2019, SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT.

ANNEXURE A17 A TRUE COPY OF THE ORDER NO.6334/2015/SPL. CELL DATED 24.10.2019, ISSUED BY THE 2ND RESPONDENT AND THE RELEVANT EXTRACT OF THE SENIORITY LIST.

ANNEXURE A18 A TRUE COPY OF THE ORDER IN O.A.NO.1947 OF 2019 DATED 13.11.2019, ISSUED BY THE 2ND RESPONDENT.

ANNEXURE A19 A TRUE COPY OF THE LETTER NO.6334/2015/SPECIAL CELL DATED 13.12.2019, SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT.

ANNEXURE A20 A TRUE COPY OF THE REPRESENTATION DATED 3.1.2020 SUBMITTED BY THE PETITIONER

BEFORE THE 1ST RESPONDENT.

ANNEXURE A21 A TRUE COPY OF THE ORDER NO.380/2020 DATED 5.3.2020, ISSUED BY THE 1ST RESPONDENT.

ANNEXURE A22 A TRUE COPY OF THE PROCEEDINGS NO.28240/03/SPL. CELL DATED 23.8.2003, ISSUED BY THE 2ND RESPONDENT.

Exhibit P2 A TRUE COPY OF THE APPLICATION IN M.A.NO.1464 OF 2021 IN O.A.NO.727 OF 2020 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.

Exhibit P3 A TRUE COPY OF THE APPLICATION IN M.A.NO.1463 OF 2021 IN O.A.NO.727 OF 2020 OF THE KERALA ADMINISTRATIVE TRIBUNAL.

Exhibit P4 A TRUE COPY OF THE REPLY STATEMENT DATED 4.10.2021 IN O.A.NO.727 OF 2020 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.

Exhibit P5 A TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 22.10.2021 IN O.A.NO.727 OF 2020 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.

Exhibit P6                 A TRUE COPY OF THE ORDER DATED
                           26.10.2021 IN O.A.NO.727 OF 2020 OF THE
                           KERALA ADMINISTRATIVE TRIBUNAL,
                           THIRUVANANTHAPURAM.