Kerala High Court
Betty P Anto vs Mathew Thomas on 12 June, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE S.MANU
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
WA NO. 505 OF 2024
AGAINST THE JUDGMENT DATED 21.3.2024 IN WP(C) NO.41092 OF
2023 OF HIGH COURT OF KERALA
APPELLANT/5th RESPONDENT:
BETTY P ANTO
AGED 54 YEARS
THENGUMTHARAYIL (H), PAZHAVANGADY P.O, RANNY,
PATHANAMTHITTA, WORKING AS HSST (MATHEMATICS)
SYRIAN CHRISTIAN HIGHER SECONDARY SCHOOL (03025),
CHELLACKADU P.O, RANNI, PIN - 689677
BY ADVS.
S.SUBHASH CHAND
S.JAYAKRISHNAN
RESPONDENTS/PETITIONER & RESPONDENT Nos.1 to 4:
1 MATHEW THOMAS
AGED 54 YEARS
S/O THOMAS, EZHUTHUPALLICKAL (H) MEVIDA P.O,
PALA, KOTTAYAM, WORKING AS HSST (POLITICAL
SCIENCE), SYRIAN CHRISTIAN HIGHER SECONDARY
SCHOOL (03025), CHELLACKADU P.O,
RANNI, PIN - 686573.
2 STATE OF KERALA
REP. BY ITS SECRETARY, GENERAL EDUCATION
DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695004.
3 DIRECTOR OF GENERAL EDUCATION
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM, PIN - 695001.
4 REGIONAL DEPUTY DIRECTOR
OFFICE OF REGIONAL DEPUTY DIRECTOR CHENGANNUR,
PATHANAMTHITTA, PIN - 689121.
W.A.Nos.505 & 507 of 2024
2
5 THE MANAGER
SYRIAN CHRISTIAN HIGHER SECONDARY SCHOOL (03025),
CHELLAKADU P.O, RANNI, AND VICAR
PAZHAVANGADIKKARA IMMANUEL MARTHOMA CHURCH,
PAZHAVANGADI P.O, PATHANAMTHITTA, PIN - 689677.
SR.G.P.-VINITHA.B.
THIS WRIT APPEAL HAVING COME UP FOR HEARING ON
22.05.2024, ALONG WITH WA.507/2024, THE COURT ON 12.06.2024
DELIVERED THE FOLLOWING:
W.A.Nos.505 & 507 of 2024
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE S.MANU
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
WA NO. 507 OF 2024
AGAINST THE JUDGMENT DATED 21.3.2024 IN WP(C) NO.41092 OF
2023 OF HIGH COURT OF KERALA
APPELLANT/4th RESPONDENT:
THE MANAGER
SYRIAN CHRISTIAN HIGHER SECONDARY SCHOOL (03025),
CHELLAKADU P.O, RANNI, AND VICAR
PAZHAVANGADIKKARA IMMANUEL MARTHOMA CHURCH,
PAZHAVANGADI P.O, PATHANAMTHITTA, PIN - 689677.
BY ADVS.
JACOB P.ALEX
AMAL AMIR ALI
JOSEPH P.ALEX
MANU SANKAR P.
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 & 5:
1 MATHEW THOMAS
AGED 54 YEARS
S/O THOMAS, EZHUTHUPALLICKAL (H) MEVIDA P.O,
PALA, KOTTAYAM, WORKING AS HSST (POLITICAL
SCIENCE), SYRIAN CHRISTIAN HIGHER SECONDARY
SCHOOL (03025), CHELLACKADU P.O, RANNI,
PIN - 686573
2 STATE OF KERALA
REP. BY ITS SECRETARY, GENERAL EDUCATION
DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695004
3 DIRECTOR OF GENERAL EDUCATION
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM, PIN - 695001
W.A.Nos.505 & 507 of 2024
4
4 REGIONAL DEPUTY DIRECTOR
OFFICE OF REGIONAL DEPUTY DIRECTOR CHENGANNUR,
PATHANAMTHITTA, PIN - 689121
5 BETTY P ANTO
THENGUMTHARAYIL (H), PAZHAVANGADY P.O, RANNY,
PATHANAMTHITTA, WORKING AS HSST (MATHEMATICS)
SYRIAN CHRISTIAN HIGHER SECONDARY SCHOOL (03025),
CHELLACKADU P.O, RANNI, PIN - 689677.
SR.G.P.-VINITHA.B
THIS WRIT APPEAL HAVING COME UP FOR HEARING ON
22.05.2024, ALONG WITH WA.505/2024, THE COURT ON 12.6.2024
DELIVERED THE FOLLOWING:
W.A.Nos.505 & 507 of 2024
5
[CR]
A.MUHAMED MUSTAQUE & S.MANU, JJ.
-----------------------------------------------------
W.A.No.505 & 507 of 2024
------------------------------------------------------
Dated this the 12th day of June, 2024
JUDGMENT
S.MANU, J.
These appeals arise from the judgment of the learned
Single Judge in W.P.(C)No.41092 of 2023. The appellant in
W.A.No.505 of 2024 is the 5 th respondent in the writ petition.
W.A.No.507 of 2024 is filed by the 4th respondent, Manager. The
1st respondent in both these appeals is the writ petitioner. We
refer to the parties as they are arrayed in W.A.No.505 of 2024.
2. We will start with the relevant facts. The appellant
was appointed as Higher Secondary School Teacher on
24.8.1998 in Syrian Christian Higher Secondary School,
Chellackadu, Ranni. The 1st respondent also joined service on
the same day as a Higher Secondary School Teacher (Junior).
He was later appointed as HSST on 15.7.1999.
3. In Ext.P1 seniority list as on 01.01.2018 the 1st
respondent was shown as senior to the appellant. The said
seniority list was circulated among the teachers and the
W.A.Nos.505 & 507 of 2024
appellant as well as the 1st respondent had signed the same.
Thus, the said seniority list was well within the knowledge of
both parties. It is pleaded by the appellant that she pointed out
the anomaly to the then Manager and sought correction. Later,
she submitted a representation to the 4 th respondent on
21.1.2022 pointing out that she was appointed as HSST earlier
to the appointment of the 1st respondent to the said post and
therefore her name should have been shown at Serial No.3 in
Ext.P1 seniority list. The management admits that the said
representation is available in their files. Later, the management
published another seniority list as on 01.01.2023 which has been
produced as Ext.P10. In Ext.P10, the appellant has been
included as Rank No.2 in seniority while the 1st respondent has
been put in the fifth position in the order of seniority. The 1 st
respondent did not sign the said seniority list. When it was
circulated it was noted that he has not signed as he has
objection in the matter. He submitted Ext.P2 representation to
the 4th respondent against re-determination of seniority. He
thereafter approached this Court when the Manager gave charge
of Principal to the appellant. He sought declaration that he is
senior than the appellant in the light of Ext.P1 seniority list and
W.A.Nos.505 & 507 of 2024
direction to appoint him as the Principal in the light of the
decision in Pavithran v. State of Kerala [2009 (4) KLT 20
(F.B.)]. Some other reliefs were also sought. The learned Single
Judge disposed of the said writ petition (W.P.(C)No.19180/2023)
on 14.6.2023. The learned Single Judge issued a direction to the
Regional Deputy Director to consider and pass orders on the
representation of the 1st respondent, taking into account the
judgment of this Court in Pavithran's case (supra). The
appellant herein filed R.P.No.678 of 2023, aggrieved by the
judgment in W.P.(C)No.19180 of 2023 on the ground that the
judgment was delivered without hearing her and the Manager of
the school. The learned Single Judge clarified in the review
petition that the matter was not decided on merits and disposed
the review petition on 4.7.2023 directing the 3 rd respondent to
give one more opportunity of hearing to the review petition,
Manager and the writ petitioner before passing final order. In
compliance with the directions issued by the learned Single
Judge in W.P.(C)No.19180/2023 and R.P.No.678 of 2023, the
third respondent considered the issue and passed Ext.P5 order
on 07.07.2023. The 3rd respondent rejected the request of the
1st respondent. The 3rd respondent stated in Ext.P5 that the
W.A.Nos.505 & 507 of 2024
appellant was appointed as HSST on 24.8.1998; whereas the 1 st
respondent was appointed on the same date as HSST (Junior).
It was also noted that the 1st respondent became HSST only on
15.7.1999. The provisions of KER regarding fixation of seniority
were noted and it was concluded by the 3 rd respondent that the
appellant is senior than the 1st respondent. The seniority list
prepared by the Manager was approved by the 3rd respondent.
4. Challenging the order dated 7.7.2023, the 1st
respondent approached this Court in W.P.(C)No.25534 of 2023.
By judgment dated 13.10.2023 a learned Single Judge of this
Court disposed the writ petition. The learned Single Judge found
that the order passed by the 3rd respondent does not reflect
consideration of the dictum laid down in the judgment in
Pavithran's case (supra). The learned Single Judge held that
the order was not issued by the 3 rd respondent in tune with the
directions issued by the court and therefore the order was set
aside. The 3rd respondent was directed to hear the parties again
and decide the issue.
5. In compliance with the directions contained in the
judgment in W.P.(C)No.25534 of 2023, the Regional Deputy
Director conducted hearing again and passed Ext.P7 order on
W.A.Nos.505 & 507 of 2024
21.11.2023. The Regional Deputy Director considered the issues
in detail and again concluded that the appellant is senior in the
post of HSST and the request of the 1 st respondent herein to
place him above the appellant cannot be countenanced.
6. With relentless spirits, the 1st respondent continued
the legal combat by filing W.P.(C)No.41092 of 2023, challenging
Exts.P7, P10 and P11 orders issued against his interests. He
sought a direction to the respondents 3 and 4 to appoint him as
Principal on the basis of Ext.P1 seniority list and the principles
laid down in Pavithran's case (supra). He further prayed for a
declaration to the effect that he is senior to the 5 th
respondent/appellant herein (W.A.No.505/2024). The appellant,
Manager and the Regional Deputy Director filed separate counter
affidavits. On completion of pleadings the learned Single Judge
took up the writ petition for hearing and disposed it by judgment
dated 21.3.2024. The writ petition was allowed and the
impugned orders were quashed. A direction was issued to the
4th respondent to consider seniority of the 1 st respondent herein
and the appellant in terms of Ext.P1 seniority list, without
reference to Ext.P10 seniority list and to make appointment to
the post of Principal. The appellant as well as the management,
W.A.Nos.505 & 507 of 2024
being aggrieved by the judgment of the learned Single Judge
have filed these appeals.
7. We heard respective counsel for the parties and the
learned Government Pleader elaborately.
8. Sri.S.Subhash Chand appearing for the appellant
argued that the appellant entered service as HSST on 24.8.1998
and undeniably, entry of the 1st respondent to service on the
same day was in the post of HSST (Junior). He pointed out that
the 1st respondent was appointed as HSST later on 15.7.1999.
He further submitted that Ext.P1 seniority list as on 01.01.2018
was issued at a time when the appellant was undergoing
treatment for cancer and therefore, she could not immediately
resist erroneous fixation of seniority. She had raised the issue
with the then Manager and later she submitted Ext.R5(b)
representation on 21.1.2022. He also submitted that the mistake
was realised by the management and therefore the same was
rectified by issuing Ext.P10 seniority list as on 01.01.2023. He
further contended that there is no statutory stipulation in
Chapter XXXII of the KER making it mandatory to publish
seniority list. Learned counsel maintained that the 1 st respondent
herein is making an attempt to take undue advantage of the
W.A.Nos.505 & 507 of 2024
mistake committed by the management which was later
rectified. He vehemently submitted that the learned Single Judge
committed serious error in applying sit back theory to the facts
of the present case and allowing the writ petition. He mainly
placed reliance on the judgment in Francina Antony and
another v. State of Kerala and others [2015 KHC 305] and
contended that a Division Bench of this Court upheld corrective
measures in seniority initiated within five years of the finalisation
of the seniority list and held that the same is permissible. He
pointed out that "sit back theory" was not applied by the court in
the said judgment finding that the delay was not excessive. He
raised a specific contention referring to paragraph 21 of the said
judgment that those who contributed to the mistakes and made
attempt to capitalize the mistakes committed by the appointing
authority cannot claim the benefit of sit back and dis-entitle
rightful entitlement of others. He, therefore, prayed that the
judgment of the learned Single Judge be set aside and
appointment of the appellant may be upheld.
9. Sri.Jacob P.Alex, learned counsel appearing for the
Manager submitted that provisions of Chapter XIV A of the KER
regarding maintenance of seniority list are not applicable to the
W.A.Nos.505 & 507 of 2024
Higher Secondary School sector and there is no statutory
stipulation in Chapter XXXII of the KER regarding seniority list,
similar to the provisions in Chapter XIV A. He therefore
contended that seniority list prepared/maintained by the
managements of higher secondary schools cannot be considered
as prepared on the strength of statutory stipulations. His further
contention is that a survey of precedents wherein the "sit back
theory" has been applied would show that those were all cases
wherein seniority lists were maintained in compliance with
statutory provisions. He referred to Rule 2 of Chapter XXXII of
KER and pointed out that the said provision dealing with method
of appointment and qualification of teachers and non-teaching
staff opens with non-obstante clause and therefore no provisions
other than that of Chapter XXXII would apply in matters of
qualification of teachers and non-teaching staff of Higher
Secondary Schools. He, therefore, submitted that the 1 st
respondent is dis-entitled to claim any benefit on the basis of
Ext.P1 seniority list and also that "sit back theory" cannot be
applied. He also argued that Pavithran's case (supra) has no
application to the Higher Secondary sector as it was a case
involving application of the provisions of Chapter XIV A of the
W.A.Nos.505 & 507 of 2024
KER and the seniority list concerned in the said case was
maintained as per Rules 34 and 38 of Chapter XIV A. He
reiterated the contention that Exts.P1 and P10 seniority lists not
being prepared and maintained on the basis of any statutory
provisions, the principles laid down in Pavithran's case (supra)
cannot be imported to the facts of the present case. He
confirmed that the appellant had requested for correction of the
seniority list as claimed by her in the counter affidavit and the
representation produced as Ext.R5(b) is available in the records
of the Manager. He placed various judgments of the Hon'ble
Supreme Court as well as this Court for consideration. Learned
counsel has referred to the following judgments to buttress his
contentions:-
1. Manager Nanminda Higher Secondary
School, Kozhikode v. Director of Higher
Secondary Education, Tvm and others [2015
(3) KLT 307],
2. Ramesan and others v. Manoj Kumar K. and
others [ILR 2019 (3) Ker.312],
3. Girija Kumar v. Rajitha [2019 (4) KLT 315],
W.A.Nos.505 & 507 of 2024
4. Rajeswari Devi S. v. State of Kerala [ILR
2023(2) Ker.60],
5. Rabindranath Bose and others v. The Union
of India & others [(1970) 1 SCC 84],
6. Union of India v. H.R.Patankar and others
[(1984) Suppl.SCC 359],
7. Ramchandra Shankar Deodhar & others v.
State of Maharashtra & others [(1974) 1 SCC
317],
8. A.P.Co-operative Oil Seeds Growers
Federation Ltd, Hyderabad, Andhra Pradesh
v. D.Achyuta Rao and others [(2007) 13 SCC
320],
9. Manager, Corporate Educational Agency v.
James Mathew & others [(2017) 15 SCC 595].
10. The learned Senior Counsel Sri.Raju Joseph appearing
for the 1st respondent, instructed by learned counsel Sri.Julian
Xavier submitted that the appellant is not justified in challenging
the seniority as per Ext.P1 as Ext.P1 seniority list was circulated
among teachers and the same was signed by the appellant also.
W.A.Nos.505 & 507 of 2024
He submitted that if the appellant had any genuine grievance, it
was for her to seek correction of the seniority list immediately
thereafter. He argued that the appellant has no reliable case
that she raised dispute any time before 22.1.2022. He also
submitted that promotions were effected on the basis of Ext.P1
seniority list earlier and the said list ought not have been revised
by the management after a considerable lapse of time. He also
submitted that though the 1st respondent made attempt to
obtain copies of seniority list published prior to 2018, reply
received from the Manager was to the effect that such seniority
lists are not available in their records. His further contention is
that at the time of every promotion the management certainly
would have prepared seniority lists and at no point of time the
appellant had raised any grievance prior to 21.2.2022. He
asserted that the learned Single Judge is perfectly right in
applying "sit back theory" in the facts and circumstances of the
case and the direction to consider the 1 st respondent for
appointment as Principal is absolutely justified.
11. Smt.B.Vinitha, learned Senior Government Pleader
appearing for the official respondents contended that the
appellant is admittedly senior in the cadre of HSST and the
W.A.Nos.505 & 507 of 2024
decisions taken by the Regional Deputy Director are perfectly in
order. She further submitted that the 1 st respondent is making
attempt to take advantage of a mistake committed by the
management. She relied upon the judgments reported in
Manager, Corporate Educational Agency v. James Mathew
& others [(2017) 15 SCC 595] and also the judgment of a
Division Bench of this Court in Manager, St.Paul's Higher
Secondary School v. State of Kerala and others [(2020) 2
KLT 443] to argue that the Higher Secondary School is
administered by a minority management and hence choice
regarding appointment of Principal is left to the discretion of the
Manager and only requirement is that the teacher chosen must
have necessary qualifications for the post of Principal. Hence,
she submitted that though the management has not obtained
any declaration to that effect, the inherent right of the
management under Article 30 of the Constitution empowers the
Manager to choose any qualified teacher as Principal. Crux of
the submission of the learned Senior Government Pleader is that
in any view of the matter the choice of the management to
appoint the appellant as Principal is not liable to be interfered
with.
W.A.Nos.505 & 507 of 2024
12. We find that there is no dispute regarding the fact
that the appellant was appointed on 24.8.1998 as HSST;
whereas the 1st respondent was appointed on the same day as
HSST (Junior). He was promoted as HSST only on 15.7.1999.
In the light of interpretation placed by a Division Bench of this
Court on the provisions of Rule 6 of Chapter XXXII of the KER in
Nanminda HSS's case (supra), service as HSST (Junior) cannot
be counted for promotion to the post of Principal. Therefore, it
cannot be disputed that the appellant who was appointed on
24.8.1998 as HSST is actually senior in the said post than the 1 st
respondent who got appointed as HSST only with effect from
15.6.1999 and service of the 1 st respondent in the post of HSST
(Junior) cannot be reckoned to his advantage for promotion to
the post of Principal. In this regard, it is relevant to note that
even in Ext.P1 heavily relied on by the 1 st respondent, the
respective dates have been clearly stated. Hence, the appellant
is right in contending that she is in reality senior to the 1 st
respondent in the post of HSST. Consequently, only aspect to be
considered in this case, according to us, is the pertinency of the
"sit back theory".
W.A.Nos.505 & 507 of 2024
13. A Constitution Bench of the Hon'ble Supreme Court in
Rabindranath Bose and others v. The Union of India &
others [(1970) 1 SCC 84] considered a case of officers of the
Income Tax Department aspiring for promotion as
Commissioners. The dispute was regarding seniority. Hon'ble
Supreme Court considered the delay involved in raising the
challenge and held that the original jurisdiction provided to it,
to entertain petitions under Article 32 of the Constitution, is a
guaranteed right and it could not have been the intention that
the Hon'ble Supreme Court would venture to examine stale
demands after a lapse of years. Hon'ble Supreme Court further
added that it does not follow that it was the intention of the
Constitution makers that the Supreme Court should discard all
principles and grant relief in petitions filed after inordinate delay.
Next to the said observation, in paragraph 33 of the report,
Hon'ble Apex Court held as follows:-
"33. We are not anxious to throw out petitions on this
ground, but we must administer justice in accordance
with law and principles of equity, justice and good
conscience. It would be unjust to deprive the
respondents of the rights which have accrued to them.
Each person ought to be entitled to sit back and
consider that his appointment and promotion effected a
W.A.Nos.505 & 507 of 2024
long time ago would not be set aside after the lapse of a
number of years."
Formulation of the "theory of sit back" by the Hon'ble Apex
Court, now very familiar in service jurisprudence, perhaps
happened in this case.
14. Soon thereafter, another Constitution Bench of the
Hon'ble Supreme Court, in Ramchandra Shankar Deodhar &
others v. The State of Maharashtra and others [(1974) 1
SCC 317] considered a case of promotion to the post of Deputy
Collector from the cadre of Mamlatdars/Tahsildars.
Rabindranath Bose's case was also referred to. A preliminary
objection raised on behalf of the respondents was that the
petitioners were guilty of gross laches and delay in filing the
petition. The said contention was rejected by the Hon'ble Apex
Court with the following observations:-
"10. ...............................................................
...................We do not think this contention
should prevail with us. In the first place, it must be
remembered that the rule which says that the
Court may not inquire into related and stale claims
is not a rule of law, but a rule of practice based on
sound and proper exercise of discretion, and there
W.A.Nos.505 & 507 of 2024
is no inviolable rule that whenever there is delay,
the court must necessarily refuse to entertain the
petition. Each case must depend on its own facts.
The question, as pointed out by Hidayatullah, C.J.,
in Tilockchand Motichand v. H.B.Munishi
"is one of discretion or this Court to follow from ,case to
case. There is no lower limit and there is no upper limit-. It
will all depend on what the breach of the Fundamental
Right and the remedy claimed are and how the delay
arose." ..............................................................
.......It may also be noted that the principle on
which the Court proceeds in refusing relief to the
petitioner on ground of laches or delay is that the
rights which have accrued to others by reasons of
the delay in filing the petition should not be
allowed to be disturbed unless there is reasonable
explanation for the delay. This principle was stated
in the following terms by Hidayatullah, C.J. in
Tilockchand Motichand v. H.B.Munishi (supra):
"The party claiming Fundamental Rights must move the
Court before other rights come into existence. The action of
courts cannot harm innocent parties if their rights emerge
by reason of delay on the part of the person moving the
Court."
Sikri, J., (as he then was), also re-stated the same
principle in equally felicitous language when he
said in' R. N. Bose v. Union of India(2) : "It would be
unjust to deprive the respondents of the rights which have,
W.A.Nos.505 & 507 of 2024
accrued to them. Each person ought to be entitled to sit
back and consider that his appointment and promotion
effected a long time ago would not be set aside after the
lapse of a number of years." Here as admitted by the
State Government in paragraph 55 of the affidavit
in reply, all promotions that have been made by
the State Government are provisional and the
position has not been crystallised to the prejudice
of the petitioners. No rights have, therefore,
accrued in favour of others by reason of the delay
in filing the petition. The promotions being
provisional, they have not conferred any rights on
those promoted and they are by their very nature
liable to be set at naught, if the correct legal
position, as finally determined, so requires. We
were also told by the learned counsel for the
petitioners, and that was not controverted by the
learned counsel appearing on behalf of the State
Government, that even if the petition were allowed
and the reliefs claimed by the petitioners granted
to them, that would not result in the reversion of
any Deputy Collector or officiating Deputy Collector
to the post of Mamlatdar/Tehsildar; the only effect
would be merely to disturb their inter se seniority
as officiating Deputy Collectors or as Deputy
Collectors. Moreover, it may be noticed that the
claim for enforcement of the fundamental right of
equal opportunity under Article 16 is itself a
fundamental right guaranteed under Article 32 and
W.A.Nos.505 & 507 of 2024
this Court which has been assigned the role of a
sentinel on the qui vive for protection of the
fundamental rights cannot easily allow itself to be
persuaded to refuse relief solely on the jejune
ground of laches, delay or the like."
[Emphasis added]
The above extracted observations and conclusions of
Constitution Benches of the Hon'ble Supreme Court makes the
following aspects profusely clear about "theory of sit back" -
1) Principle which says that the court may not
enquire into belated and stale claims is not a rule
of law,
2) It is a rule of practise based on sound and proper
exercise of discretion,
3) There is no inviolable rule that whenever there is
delay the court must necessarily refuse to
interfere,
4) Applicability of the principle of delay and laches
depends upon the nature of the breach of the
fundamental right involved and the remedy
claimed,
W.A.Nos.505 & 507 of 2024
5) How the delay arose is a relevant consideration,
6) Another relevant consideration is whether any
rights have been accrued to others by reason of
delay,
7) The right of equal opportunity under Article 16
being a fundamental right, violation of the same
cannot be easily ignored on the ground of laches
and delay.
15. On an analysis of the principles laid down by the
Hon'ble Apex Court as noted above, we are of the view that the
"theory of sit back" is a manifestation/application of doctrines of
delay, laches, acquiescence etc. in service jurisprudence. It is
not a rule strictly of law. Doctrines of delay, laches, etc. are
principles developed on the basis of equity and natural justice.
Such principles are not to be understood and applied in a rigid
manner. Application of such principles and doctrines to the facts
of the case arising for determination is a duty to be judiciously
undertaken by the courts. Whether there is delay or laches or
acquiescence, etc. would depend upon the facts and
W.A.Nos.505 & 507 of 2024
circumstances of the case. Principles of delay and laches cannot
be easily invoked to negate valid claims arising out of violation of
fundamental rights. Similarly, beneficiaries/collaborators of
erroneous actions of the administrative authorities cannot be
simply permitted to enjoy the benefits arising out of such
mistakes to the detriment of others, solely on grounds of delay
and laches on the part of those who suffered on account of such
mistakes. Otherwise, the result would be travesty of justice. As
we observed, the "theory of sit back" being a manifestation
basically of principles of delay, laches, acquiescence etc; which
are all doctrines based in equity, we have to consider the "theory
of sit back" also as a principle founded on equity.
16. Purpose of devising the "theory of sit back", as
explained by the Hon'ble Apex Court, is to ensure quietus
regarding seniority acted upon and remaining unchallenged for
elongated periods, so that there will be sense of security among
the employees. It is essentially a theory developed in the
interest of public policy and founded on good conscience.
Seniority is a significant aspect in official careers. Every
employee is entitled to get due benefits on account of length of
W.A.Nos.505 & 507 of 2024
service in the respective posts/cadres. Promotion prospects in
most cases normally depend upon seniority. Cases involving
instances of deliberately altering seniority to provide
undeserving benefits to favorites and denying due benefits to
disfavored are not uncommon in-service law. Bonafide mistakes
also happen in many cases. Non correction of errors in the order
of seniority results many a time in denial of benefits like
promotions to those who genuinely deserve it on the basis of
seniority. Unmerited candidates sometime steal a march over
really deserving ones. Injustice will be perpetuated in such
circumstances. Sit back theory, founded on doctrines of delay,
laches and such other equitable principles cannot be used as a
shield to defend every error in fixation of seniority not
challenged and set right instantly. The theory shall be applied
only in cases involving unreasonable delay in complaining,
accrual of valuable rights in between, manifest acquiescence by
the concerned etc. Applying the theory, heedless of facts and
circumstances of the case concerned, may lead to denial of
valuable rights and injustice. A theory founded on salutary
principles of equity shall not be applied in a manner resulting in
inequity as the word "equity" denotes "the body of principles
W.A.Nos.505 & 507 of 2024
constituting what is fair and right" (See Black's Law Dictionary).
Consequently, court has the duty to apply the theory carefully
and not mechanically. It shall be born in mind that the principle
of equity, to begin with will favour those who have been treated
unfairly and will continue to lean in their favour, till they, due to
indolence, lack of diligence or by acquiescence let others accrue
rights in their favour and get things settled with passage of time.
So, tilting of the pointer may happen at some point in the
timeline. Actual task of the court would be to judiciously find out
whether the matter has reached such a point in the timeline.
17. Coming back to the facts of the case, as we noted
above, the appellant is obviously senior in the post of HSST to
the 1st respondent. The said fact is indisputable for the reason
that her entry to service was as HSST and the 1 st respondent
who joined on the same date as HSST (Junior) was appointed as
HSST only later. The seniority list, apparently erroneous, was
first published on 01.01.2018. It appears that the appellant did
not raise any dispute in writing immediately. Her case in the
counter affidavit, supported by treatment record produced as
Ext.R5(f), is that she was undergoing treatment for cancer when
W.A.Nos.505 & 507 of 2024
the said list was issued. She also states that when the list was
circulated, she brought the error to the notice of the then
Manager and got an assurance that the same can be rectified
when the list is published next time. She submitted Ext.R5(b)
on 21.1.2022, certainly after a lapse of more than four years.
The management, taking note of the grievance and admitting
their mistakes, issued a seniority list (Ext.P10) on 01.01.2023
placing the appellant above the 1st respondent on the basis of
her entry to the post of HSST earlier than the 1 st respondent.
The question is therefore whether there is unpardonable delay
on the part of the appellant in raising dispute regarding the
erroneous seniority list dated 01.01.2018 and also that whether
alteration of the order of seniority by the management, by
issuing Ext.P10 seniority list, is liable to be held improper,
applying " theory of sit back".
18. It is evident from Ext.P1 seniority list itself that the
appellant is senior to the 1 st respondent. In fact, the entries in
Ext.P1 regarding the date of entry in service etc., are correct.
Against the name of the appellant at Serial No.4, the date of
entry in service as HSST is correctly shown as 24.8.1998.
W.A.Nos.505 & 507 of 2024
Against the name of the 1 st respondent at Serial No.3 date of
entry in service as HSST (Junior) is shown as 24.8.1998 and
with respect to the post of HSST, the date has been noted as
15.7.1999. Therefore, it is clearly revealed in Ext.P1 itself that
the date of entry in service of both the appellant and the 1 st
respondent is 24.8.1998 respectively in the posts of HSST and
HSST (Junior) and also that the 1 st respondent was appointed as
HSST only with effect from 15.7.1999. Therefore, it is crystal
clear that in the post of HSST the appellant is actually senior to
the 1st respondent. However, apparently by way of mistake, his
name was shown as Serial No.3 in the order of seniority and the
appellant was positioned next to him. The same can be
considered only as a mistake committed by the management.
The management thereafter took note of the mistake and issued
Ext.P10 seniority list on 01.01.2023. In the said seniority list
employees have been properly placed taking note of the date of
joining in respective posts. Hence, the fact remains that the
appellant is actually senior to the 1 st respondent. We do not see
that the said fact has been disputed by the 1st respondent also
specifically. He only claims the benefit of the "theory of sit back"
pointing out that the seniority list issued in 2018 was not altered
W.A.Nos.505 & 507 of 2024
or modified any time till 2023. He emphasizes that the appellant
was not diligent in raising dispute if she had any genuine
grievance and she merely acquiesced to the position in Ext.P1
seniority list and therefore she cannot be permitted to dispute it
at this distance of time.
19. As we discussed already, "theory of sit back" is
essentially a theory developed on the basis of principles of
equity, good conscience, public policy, etc, It is certainly
germane in matters related to inter se seniority and promotions.
Hon'ble Supreme Court has applied the theory in large number
of cases. However, no inflexible time limit for applying the
theory has been laid down in any case. Fixing certain time limits
as in the Limitation Act for application of such doctrines is not
rational and practical. It is true that the Hon'ble Supreme Court
has considered the period varying from 3 to 4 years as a
reasonable period for seeking correction in the matter of
seniority in K.R.Mudgal and others v. R.P.Singh and others
[(1986) 4 SCC 531]. The said judgment has been followed in
many cases including Shiba Shankar Mohapatra and others
v. State of Orissa and others [(2010) 12 SCC 471].
W.A.Nos.505 & 507 of 2024
Reference to the factual background in the above two cases
would show that the reasonable period of 3 to 4 years indicated
by the Hon'ble Supreme Court in the above cases cannot be
considered as fixing of an inflexible time limit irrespective of the
facts and circumstances of cases. It is well settled regarding
application of the foundational doctrines of delay, laches,
acquiescence, etc that no inflexible time limits can be fixed.
Hence fixing of any specific time limit for application of the
"theory of sit back", in service jurisprudence will also be not
rational and realistic. In a given case, delay of a particular
period of time like one year may be fatal. But if there is
sufficient reason to justify the same, the very same period may
be liable to be forgiven in another case. Hence, application of
such principles always depends upon the facts and
circumstances.
20. In Prabhakar v. Joint Director, Sericulture
Department & another [(2015) 15 SCC 1] the Hon'ble Supreme
Court held as follows:-
"38) It is now a well recognised principle of
jurisprudence that a right not exercised for a long
time is non-existent. Even when there is no
W.A.Nos.505 & 507 of 2024
limitation period prescribed by any statute relating
to certain proceedings, in such cases Courts have
coined the doctrine of laches and delays as well as
doctrine of acquiescence and non-suited the
litigants who approached the Court belatedly
without any justifiable explanation for bringing the
action after unreasonable delay. Doctrine of laches
is in fact an application of maxim of equity "delay
defeats equities".
39) This principle is applied in those cases where
discretionary orders of the Court are claimed, such
as specific performance, permanent or temporary
injunction, appointment of receiver etc. These
principles are also applied in the writ petitions filed
under Articles 32 and 226 of Constitution of India.
In such cases, Courts can still refuse relief where
the delay on the petitioner's part has prejudiced
the respondent even though the petitioner might
have come to Court within the period prescribed
by the Limitation Act.
40) Likewise, if a party having a right stands by
and sees another acting in a manner inconsistent
with that right and makes no objection while the
act is in progress he cannot afterwards complain.
This principle is based on the doctrine of
acquiescence implying that in such a case party
who did not make any objection acquiesced into
W.A.Nos.505 & 507 of 2024
the alleged wrongful act of the other party and,
therefore, has no right to complain against that
alleged wrong.
41) Thus, in those cases where period of limitation
is prescribed within which the action is to be
brought before the Court, if the action is not
brought within that prescribed period the
aggrieved party looses remedy and cannot enforce
his legal right after the period of limitation is over.
Likewise, in other cases even where no limitation
is prescribed, but for a long period the aggrieved
party does not approach the machinery provided
under the law for redressal of his grievance, it can
be presumed that relief can be denied on the
ground of unexplained delay and laches and/or on
the presumption that such person has waived his
right or acquiesced into the act of other. As
mentioned above, these principles as part of
equity are based on principles relatable to sound
public policy that if a person does not exercise his
right for a long time then such a right is non-
existent."
21. In the present case, the appellant offers an
explanation that at the time of issuance of Ext.P1 seniority list
she was undergoing treatment for cancer and still she raised the
issue with the then Manager, who assured her to rectify the
W.A.Nos.505 & 507 of 2024
same next time. Later, the representation marked as Ext.R5(b)
was also submitted. Management also admits that she submitted
Ext.R5(b) representation and the same is available in the
relevant file. A person in fragile health condition may be
naturally not in a position to quickly respond or object in such
matters effectively. We find the explanation of the appellant in
this regard to be reasonable and acceptable. The decision to
correct the order of seniority was taken by the management
apparently within five years and the same was
published/brought to the notice of the concerned by issuing
Ext.P10. It is also to be noted that after Ext.P1 was issued,
management did not admittedly publish any seniority lists till
issuance of Ext.P10. As rightly pointed out by the learned
counsel for the appellant Sri.Subhash Chand, a Division Bench of
this Court in Francina Antony and another v. State of Kerala
and others [2015 KHC 305], after reference to the judgments
of the Hon'ble Supreme Court including the cases of Shiba
Shankar Mohapatra (supra) and K.R.Mudgal (supra) refused
to apply the "theory of sit back" in a case in which corrective
measures were initiated within five years of finalisation of the
seniority list holding that it was not a case where there was
W.A.Nos.505 & 507 of 2024
inordinate delay for the theory of sit back to be blindly imported.
Regarding the time limit indicated by the Hon'ble Supreme Court
in Mudgal's case (supra), the Hon'ble Division observed as
follows-
"This case was also decided in the facts of the
case and the period of 3-4 years indicated
therein cannot be taken to lay down any
principle of universal application , irrespective of
the facts of the case."
In the case on hand also, corrective measures were taken within
5 years. The Division Bench also held that the petitioners
therein contributed to the mistake by the department and
attempted to capitalise out of the mistake and hence refused to
extend the benefit of the principle of sit back to them, the same
being a principle of equity.
22. In this regard, we feel it apposite to note the
observation of the Constitution Bench of the Hon'ble Apex Court
in Ramchandra Shankar Deodhar's case (supra) regarding
the enforcement of the fundamental right of equal opportunity
under Article 16. The Hon'ble Supreme Court held that the Apex
Court, which has been assigned the role of a sentinel on the
W.A.Nos.505 & 507 of 2024
qui vive for protection of the fundamental rights cannot easily
allow itself to be persuaded to refuse relief solely on the jejune
ground of laches, delay or the like. In the said judgment the
Hon'ble Supreme Court refused to apply the "theory of sit back"
specifically noticing that no rights were accrued in favour of
those who were resisting granting of relief, relying on the theory.
It was also observed by the Hon'ble Constitution Bench that the
principle on which the Court proceeds in refusing relief on
grounds of laches or delay is that the rights which have accrued
to others by reason of delay should not be allowed to be
disturbed unless there is reasonable explanation for the delay.
In view of the above extracted salutary principles laid down by
the Hon'ble Apex Court also, we are of the view that the "theory
of sit back" is not liable to be invoked in the facts and
circumstances of this case. If we apply the same in the present
case, to the detriment of the appellant, the result would be
inequity.
23. We take note of the judgment in Francina Antony's
case (supra) also to conclude that the delay in the present case
in the matter of correcting seniority cannot be considered as
W.A.Nos.505 & 507 of 2024
fatal, calling for application of the "theory of sit back". As in the
said case, in this case also, corrective action was taken before
completion of 5 years and the revised list was published
thereafter. The action of the management in issuing Ext.P10
corrected seniority list is liable to be upheld as a corrective
measure. The management has acted in a bonafide manner by
correcting the mistakes. Hence, we do not find anything
improper in appointing the appellant as Principal based on
Ext.P10. The decision in this regard, taken by the management
is found proper and legal.
24. Factual narration in Pavithran's case (supra) decided
by Honourable Full Bench reveals that the delay involved in
pursuing the dispute regarding seniority in the said case, after
the initial unsuccessful efforts, was a long period of ten years.
Application of the theory of sit back by the Full Bench in
Pavithran's case (supra) has to be understood in the said
background.
25. Another aspect to be noted is that no
advantage/disadvantage has been resulted to the appellant or
the 1st respondent on the basis of their inter se seniority as per
W.A.Nos.505 & 507 of 2024
Ext.P1. Promotional prospect arose only in the year 2023, as far
as both of them are concerned, when the post of the Principal
became vacant. For the said appointment, Ext.P10 corrected list
was relied on, triggering the series of litigation. During the
interregnum, ranking in the seniority list of the year 2018 had in
fact no relevance or impact in the careers of either the appellant
or the 1st respondent. Hence, no rights crystallised in favour of
the 1st respondent during the period between the issuance of
Exts.P1 and P10. For this reason also, we find this case unfit for
invocation of the "theory of sit back".
26. The learned Government pleader, relying on the
judgment of the Hon'ble Supreme Court in Manager, Corporate
Educational Agency's case (supra) and also the judgment in
Manager, St.Paul's Higher Secondary School's case (supra)
submitted that the management of the school being a "minority
management" entitled for claiming the rights under Article 30 of
the Constitution is free to choose any teacher having the
qualification to hold the post of Principal to the said post and
therefore regardless of the row regarding inter se seniority, the
decision of the management to appoint the appellant is liable to
W.A.Nos.505 & 507 of 2024
be upheld. We note that the learned counsel for the Manager,
Sri.Jacob P.Alex in response to the said contention fairly
submitted that the management has not claimed the rights
under Article 30 in this case before the learned Single Judge and
also before us in these appeals. He submitted that the
management has acted fairly and chosen the Principal in
accordance with seniority, without circumventing the same by
claiming the privilege under Article 30. Therefore, we need not
discuss much about the said contention raised by the learned
Government Pleader. However, we observe that for the said
reason as well, the decision of the management is liable to be
upheld.
Therefore, we set aside the judgment of the learned Single
Judge and allow these appeals. The Writ Petition filed by the 1 st
respondent shall stand dismissed.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-
S.MANU, JUDGE
skj
W.A.Nos.505 & 507 of 2024
APPELLANT'S ANNEXURES
Annexure 1 A TRUE COPY OF THE RULING OF THIS COURT
IN FRANCINA ANTONY AND ANOTHER V. STATE
OF KERALA AND OTHERS (2015 KHC 305)
