[Cites 10, Cited by 0]
Kerala High Court
Ramani.P vs State Of Kerala on 4 February, 2026
Author: Anil K. Narendran
Bench: Anil K. Narendran
OP(KAT)No.265 of 2023 1 2026:KER:8411
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
WEDNESDAY, THE 4TH DAY OF FEBRUARY 2026 / 15TH MAGHA, 1947
OP(KAT) NO. 265 OF 2023
AGAINST THE ORDER DATED 26.09.2022 IN OA NO.1175 OF 2018 OF
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT:
RAMANI.P
AGED 51 YEARS
W/O.M.PADMANABHAN,
PRESENTLY WORKING AS SUPERINTENDENT KOTHAMANGALAM
MUNICIPALITY ERNAKULAM-686691,
RESIDENT OF PAVITRITM, SUNDARAGIRI,
KALAMASSERY.P.O ERNAKULAM,
KERALA, PIN - 683104
BY ADVS.
SHRI.V.N.HARIDAS
SRI.LINDONS C.DAVIS
SHRI.SAIFUDEEN T.S
SMT.E.U.DHANYA
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT LOCAL SELF
GOVERNMENT DEPARTMENT GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, KERALA, PIN - 695001
2 THE DIRECTOR OF URBAN AFFAIRS
SWARAJ BHAVAN, NANTHANCODE, KOWDIAR.P.O,
THIRUVANANTHAPURAM, KERALA, PIN - 695003
3 THE JOINT DIRECTOR
DIRECTORATE OF URBAN AFFAIRS SWARAJ BHAVAN,
NANTHANCODE KOWDIAR.P.O,
THRIVANANTHAPURAM, PIN - 695003
OP(KAT)No.265 of 2023 2 2026:KER:8411
4 MUNICIPAL SECRETARY
KOTHAMANGALAM MUNICIPALITY, KOTHAMANGALAM,
ERRIAKULAM, PIN - 689691
BY ADV SHRI.JOICE GEORGE, SC, KOTHAMANGALAM
MUNICIPALITY
OTHER PRESENT:
SRI. A. J. VARGHESE, SR. GP
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 16.01.2026, THE COURT ON 04.02.2026 DELIVERED THE
FOLLOWING:
OP(KAT)No.265 of 2023 3 2026:KER:8411
JUDGMENT
Muralee Krishna S., J.
The applicant in O.A.No.1175 of 2018 on the file of the
Kerala Administrative Tribunal, Thiruvananthapuram, ('the
Tribunal' for short) filed this original petition, invoking the
supervisory jurisdiction of this Court under Article 227 of the
Constitution of India, challenging Ext.P7 order dated 26.09.2022
passed by the Tribunal in that original application.
2. The petitioner-applicant is a member of the scheduled
caste community. She entered service in the Urban Affairs
Department as a Lower Division Clerk/Bill Collector on
08.11.1991. Her probation in that cadre was declared as
satisfactorily completed with effect from 31.03.1994. She passed
the prescribed departmental test for promotion in June 2005 and
was given promotion to the cadre of Senior Clerk on 12.01.2006.
2.1. In the original application, the petitioner pleaded that
Rule 13A(1)(a) of Part II of the Kerala State and Subordinate
Services Rules ('KS&SSR' for short) provides that where a pass in
a special or departmental test is prescribed by the Special Rules
of a service for any category, grade or post therein or in any class
thereof, a member of a service belonging to any of the Scheduled
OP(KAT)No.265 of 2023 4 2026:KER:8411
Caste or Scheduled Tribe who has not passed the said test but is
otherwise qualified and suitable for appointment to such class,
grade or post may be appointed thereto temporarily. Rule 13A(2)
provides that if an incumbent appointed under clause (a) of sub-
rule (1) does not pass the test within three years from the date of
such appointment, he shall be reverted to the class, category,
grade or post from which he was appointed. Rule 13AA provides
that the Government may, by order, exempt for a specific period,
any member belonging to a Scheduled Caste or Scheduled Tribe
and already in service from passing the test referred to in Rule 13
or 13A of the said Rules. Rule 13(B) provides that orders
exempting members of the Scheduled Castes and of the
Scheduled Tribes issued under Rule 13AA shall be deemed always
to have been applicable to members of the Scheduled Caste and
of the Scheduled Tribes who entered service after the said date
also.
2.2. According to the petitioner, the Government, in
exercise of powers under Rule 13AA, has issued
GO(Ms)No.22/77/PD dated 13.01.1972 giving temporary
exemption for two years from passing the test to those SC/ST
employees who entered the service as on 31.12.1985 or before.
OP(KAT)No.265 of 2023 5 2026:KER:8411
Later, as per the Government order dated 28.11.1997, it was
clarified that the benefit of the test exemption period is applicable
not only for the promotion test but also for the probation test. It
was stipulated that the benefit was not extended to those who
entered the service on or after 01.01.1986. The above stipulation
has created certain confusion regarding temporary promotion to
SC/ST employees who have not passed the promotion and
probation test in view of Rule 13, for a long period and thereby,
temporary promotions of SC/ST employees have not been effected
for a long time.
2.3. According to the petitioner, as per Annexure A3 circular
dated 24.02.2012, the Government clarified that the exemption
granted as per the aforesaid orders is applicable to the members
of the SC/ST community who entered service on or after
01.01.1986, who have satisfactorily completed their probation
period, but not passed a promotion test and those employees are
entitled to get test exemption qualification for a period of three
years from the date on which they would have been promoted,
had they passed the test in time. It was further directed to review
the cases of those employees who were not given the benefit and
to grant them seniority and promotion on their applications.
OP(KAT)No.265 of 2023 6 2026:KER:8411
Pursuant to Annexure A3 circular, the 2nd respondent, as per
Annexure A4 circular dated 19.09.2012, required all Municipal
Secretaries to get applications from those SC/ST employees who
are entitled to get the benefit of Annexure A3 Government circular
for exemption from the test qualification for three years.
2.4. The petitioner submitted application for retrospective
promotion and reassignment of seniority by granting an
exemption from the test qualification. The petitioner is entitled to
get retrospective promotion in the cadre of UDC with effect from
the date on which her immediate junior Sri.P.Anil Kumar was
promoted in the year 2001. However, as per Annexure A5 order
dated 11.01.2016, the 2nd respondent reassigned the seniority of
the petitioner in between serial Nos.74 and 75, i.e., between
Sri.N.A.Jayakumar and Sri.S.Rajesh who were promoted only in
the year 2003. There is no reasoning for taking the year 2003 as
a criteria and to place the petitioner between Serial Nos.74 and
75 in the gradation list. However, the petitioner did not challenge
Annexure A5 order and was satisfied with the reassignment of
seniority.
2.5. The petitioner was later promoted to the cadre of Head
Clerk/Revenue Inspector as per Annexure A6 order dated
OP(KAT)No.265 of 2023 7 2026:KER:8411
15.02.2016, reckoning her reassigned seniority pursuant to
Annexure A5. Thereafter, the petitioner was promoted to the
cadre of Superintendent as per Annexure A7 order dated
20.03.2017 of the 2nd respondent. As per Annexure A8
proceedings dated 07.12.2017, published by the 2nd respondent,
in the provisional gradation list of superintendents as on
01.02.2017, the petitioner's name is included as Serial No.172.
2.6. In the meantime, certain incumbents submitted
representation before the 2nd respondent, challenging the
reassignment of seniority of the petitioner in the cadre of Senior
Clerk as per Annexure A5 order. A show cause notice was issued
to the petitioner as to why she shall not be reverted to the cadre
of Head Clerk/Revenue Inspector. To that show cause notice, the
petitioner submitted Annexure A9 explanation dated 27.07.2017
before the 2nd respondent. However, the 2nd respondent has
issued Annexure A1 order dated 21.05.2018 reassigning the
seniority of the petitioner in the cadre of Senior Clerk with effect
from the date of her original promotion on 12.01.2006 and
restored the original seniority as Serial No.357 in the gradation
list of Senior Clerks and accordingly her promotion to the cadre of
Head Clerk/Revenue Inspector was reassigned with effect from
OP(KAT)No.265 of 2023 8 2026:KER:8411
31.03.2017 and her promotion to the cadre of superintendent has
been cancelled and reverted to the cadre of Head Clerk/Revenue
Inspector and she was posted in Kayamkulam Municipality. The
petitioner then submitted Annexure A11 representation dated
30.06.2018 before the 2nd respondent, requesting to cancel
Annexure A1 order and to retain her in the post of superintendent
without losing her seniority and to give her transfer as per the
queue list. Thereafter, by contending that the aforesaid act of the
2nd respondent as arbitrary and illegal, the petitioner filed the
original application under Section 19 of the Administrative
Tribunals Act to quash Annexure A1 order.
3. In the original application, on behalf of the 2 nd
respondent, a reply statement dated 24.09.2018 was filed,
opposing the relief sought for by the petitioner. Paragraphs 11 to
13 of that reply statement read thus:
"11. As per Rule 13A(1)(a) and 13A(2) of part ll of the Kerala
state and Subordinate Service Rules, the applicant would
have been promoted to the senior clerk category on a
condition that if she does not pass the tests within the
stipulated time, she would be reverted. As such, she should
have obtained the test qualification before 07.02.2004 ie.,
3 years from the date of promotion of her immediate junior.
But, the applicant had acquired the test qualification for
OP(KAT)No.265 of 2023 9 2026:KER:8411
promotion only on 06/2005. Hence, she is not eligible for
the benefits stipulated in the Circular No.
8130/P&AR.C3/2010/P&ARD dated 24.02.2012. It is
submitted that the applicant had not requested to consider
her for promotion under rule 13A(2)of part II of KS&SSR,
1958, at the time when she had not obtained the requisite
test qualification. It is further submitted that, if the applicant
had been given promotion when she has not passed the
requisite departmental test, she should have obtained the
said test qualification within three years from the date of
such promotion. There was no such instances in this matter.
12. Since it had been found that the seniority of the
applicant was assigned erroneously, this respondent had
cancelled the retrospective promotion given to the applicant
thereby re-assigned her seniority in the cadre of Senior
Clerk with effect from 12.01.2006, (ie., with effect from the
date of her original promotion as Senior Clerk) and restored
original position as Sl.No.317 in the gradation list of Senior
Clerks. Accordingly, her promotion to the cadre of Head
Clerk/Revenue Inspector was reassigned with effect from
31.03.2017, and her promotion to the category of
Superintendent has been cancelled, by reverting to the
cadre of HC/RI and she was posted in Kayamkulam
Municipality as HC/RI, vide Annexure A1. Subsequently, the
applicant had been relieved of her duties from
Kothamangalm municipality with effect from 28.06.2018
itself. It is further stated that as per interim order dated
03.07.2018 in O.A 1175 of 2018 Hon'ble Tribunal has stayed
the operation of Annexure A1 (Order No.E3-11403/17
Dated: 21.05.2018). As per the direction received from the
OP(KAT)No.265 of 2023 10 2026:KER:8411
Hon'ble Tribunal, this respondent had reinstated the
applicant with effect from 03.07.2018 vide order No.E3-
11403/17 Dated: 19.7.20] 8.
13. It is humbly submitted that as the staff of the Postal
Department had conducted a nationwide strike on the
month of May, 2018, several communications were pending
in this office for despatch at that time. This was the reason
for the delay in sending Annexure A1 order to the applicant.
Hence, there is no malafide intention on the part of this
respondent in the matter, as alleged by the applicant. It is
humbly submitted that this respondent had acted only in
accordance with the existing statutory provisions, by issuing
Annexure A1 order."
4. After hearing both sides and on appreciation of
materials on record, the Tribunal, by impugned Ext.P7 order,
dismissed the original application. Being aggrieved, the petitioner
is now before this Court with this original petition.
5. Heard the learned counsel for the petitioner and the
learned Senior Government Pleader.
6. The learned counsel for the petitioner would submit
that the actual promotion of the petitioner's immediate junior
Sri.N.A.Jaykumar was on 10.07.2003. Therefore, the petitioner is
also eligible to get a promotion as a Senior Clerk with effect from
03.09.2002. The petitioner who passed the departmental test in
the year 2005, is very well eligible to retain seniority as per
OP(KAT)No.265 of 2023 11 2026:KER:8411
Annexures A5 and A8 orders and therefore Annexure A1 order
reverting her to the post of Head Clerk/Revenue Inspector is to be
quashed. The department has failed to give exemption in time.
Later, the department cannot take the benefit of its wrong or
illegality. Therefore, the petitioner is eligible to refix her seniority
as per Annexure A5 order by getting a test exemption for three
years. The Tribunal has not considered the doctrine of sit back
properly. The petitioner was given seniority as early as on
11.01.2016. Thereafter, the promotions were also effected
considering this seniority and she has discharged the duty in the
promotion post for a considerable period. But Annexure A1 order
was issued only on 21.05.2018. In such circumstances, the
impugned order of the Tribunal is liable to be set aside and
Annexure A1 order is liable to be quashed.
7. On the other hand, the learned Senior Government
Pleader would submit that as per Rule 13A(1)(a) of Part II
KS&SSR, a member in a Government service belonging to SC/ST
who is otherwise qualified for promotion can be temporarily
promoted without acquiring the departmental test qualification.
However, Rule 13A(2) provides that if a person so promoted,
granting temporary exemption, fails to acquire the required
OP(KAT)No.265 of 2023 12 2026:KER:8411
qualifications within three years from the date of appointment,
he/she shall be reverted to the post from which promotion was
granted. Rule 13AA of the Rules empowers the Government to
exempt any member belonging to SC/ST for a specified period
from passing such test. The immediate junior of the petitioner was
promoted on 07.02.2001. But the petitioner did not claim
exemption as provided under Rule 13A(1)(b) of the Rules at that
time. After acquiring the test qualification, in the month of June,
2005, the petitioner was promoted as Senior Clerk on 12.01.2006.
Later by revising the case of employees belonging to SC/ST
category who entered service on or after 01.01.1986 as per
Annexures A3 and A4 circulars, Annexure A5 order was issued
granting retrospective promotion to the petitioner by placing her
in between Rank No.74 and 75. The incumbents at rank Nos.74
and 75 were promoted in the year 2003.
8. Article 227 of the Constitution of India deals with the
power of superintendence over all courts by the High Court. Under
clause (1) of Article 227 of the Constitution, every High Court shall
have superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction.
9. In Shalini Shyam Shetty v. Rajendra Shankar Patil
OP(KAT)No.265 of 2023 13 2026:KER:8411
[(2010) 8 SCC 329] the Apex Court, while analysing the scope
and ambit of the power of superintendence under Article 227 of
the Constitution, held that the object of superintendence, both
administrative and judicial, is to maintain efficiency, smooth and
orderly functioning of the entire machinery of justice in such a way
as it does not bring it into any disrepute. The power of interference
under Article 227 is to be kept to the minimum to ensure that the
wheel of justice does not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain public
confidence in the functioning of the tribunals and courts
subordinate to the High Court.
10. In Jai Singh v. Municipal Corporation of Delhi
[(2010) 9 SCC 385], while considering the nature and scope of
the powers under Article 227 of the Constitution of India, the Apex
Court held that, undoubtedly the High Court, under Article 227 of
the Constitution, has the jurisdiction to ensure that all subordinate
courts, as well as statutory or quasi-judicial tribunals exercise the
powers vested in them, within the bounds of their authority. The
High Court has the power and the jurisdiction to ensure that they
act in accordance with the well established principles of law. The
exercise of jurisdiction must be within the well recognised
OP(KAT)No.265 of 2023 14 2026:KER:8411
constraints. It cannot be exercised like a 'bull in a china shop', to
correct all errors of the judgment of a court or tribunal, acting
within the limits of its jurisdiction. This correctional jurisdiction can
be exercised in cases where orders have been passed in grave
dereliction of duty or in flagrant abuse of fundamental principles
of law or justice.
11. In K.V.S. Ram v. Bangalore Metropolitan Transport
Corporation [(2015) 12 SCC 39] the Apex Court held that, in
exercise of the power of superintendence under Article 227 of the
Constitution of India, the High Court can interfere with the order
of the court or tribunal only when there has been a patent
perversity in the orders of the tribunal and courts subordinate to
it or where there has been gross and manifest failure of justice or
the basic principles of natural justice have been flouted.
12. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1)
KHC 1] a Division Bench of this Court held that, the law is well
settled by a catena of decisions of the Apex Court that in
proceedings under Article 227 of the Constitution of India, this
Court cannot sit in appeal over the findings recorded by the lower
court or tribunal and the jurisdiction of this Court is only
supervisory in nature and not that of an appellate court.
OP(KAT)No.265 of 2023 15 2026:KER:8411
Therefore, no interference under Article 227 of the Constitution is
called for, unless this Court finds that the lower court or tribunal
has committed manifest error, or the reasoning is palpably
perverse or patently unreasonable, or the decision of the lower
court or tribunal is in direct conflict with settled principles of law.
13. In view of the law laid down in the decisions referred
to supra, the High Court in exercise of its supervisory jurisdiction
under Article 227 of the Constitution of India cannot sit in appeal
over the findings recorded by a lower court or tribunal. The
supervisory jurisdiction cannot be exercised to correct all errors of
the order or judgment of a lower court or tribunal, acting within
the limits of its jurisdiction. The correctional jurisdiction under
Article 227 can be exercised only in a case where the order or
judgment of a lower court or tribunal has been passed in grave
dereliction of duty or in flagrant abuse of fundamental principles
of law or justice. Therefore, no interference under Article 227 is
called for, unless the High Court finds that the lower court or
tribunal has committed manifest error, or the reasoning is
palpably perverse or patently unreasonable, or the decision of the
lower court or tribunal is in direct conflict with settled principles of
law or where there has been gross and manifest failure of justice
OP(KAT)No.265 of 2023 16 2026:KER:8411
or the basic principles of natural justice have been flouted.
14. From the pleadings in the original application itself, it
is clear that the petitioner has not challenged her placement in
between Serial Nos.74 and 75 in Annexure A5 order. Though in
the original petition she claims that she is eligible to get promotion
as a Senior Clerk with effect from 03.09.2002, such a claim was
not raised by the petitioner at the relevant time or in the original
application. The pleadings in the original application would show
that the petitioner is satisfied with the reassignment of the
seniority as per Annexure A5 order. It is appropriate to extract the
relevant portion of Rule 13A and Rule 13AA of Part II of KS&SSR
for a better appreciation of the contentions of the petitioner. The
said Rule read thus:
"13A. Special and Departmental Tests.-Temporary
exemption for promotion.- (1) Notwithstanding anything
contained in Rule 13,-
(a) Where a pass in a special or departmental test is
prescribed by the Special Rules of a service for any
category, grade or post therein or in any class thereof, a
member of a service belonging to any of the Scheduled
Castes or Scheduled Tribes who has not passed the said test
but is otherwise qualified and suitable for appointment to
such class, category, grade or post may be appointed
thereto temporarily.
OP(KAT)No.265 of 2023 17 2026:KER:8411
(b) Where a pass in a special or departmental test is newly
prescribed by the Special Rules of a service for any
category, grade or post therein or in any class thereof, a
member of a service who has not passed the said test but
is otherwise qualified and suitable for appointment to such
class, category, grade or post may, within 2 years of the
introduction of the test, be appointed thereto temporarily.
Provided that Special or departmental test mentioned in
clauses (a) and (b) above shall mean obligatory
departmental tests specified by the Special Rules of a
service for promotion/ by transfer appointment to any
category, grade or post therein and shall not include
obligatory departmental tests specified by the Special Rules
for satisfactory completion of probation in any category,
grade or post therein.
(2) If a member of a service appointed under clause (a) of
sub-rule (1) does not pass a test within 3 years from the
date of such appointment or when the said test also involves
practical training, within three years after the first chance
to undergo such training after such appointment, or if a
member of service appointed under clause (b) of sub-rule
(1) does not pass the test within two years from the date of
introduction of the said test or if the said test also involves
practical training, within two years after the first chance to
undergo such training after the introduction of the said test,
he shall be reverted to the class, category, grade or post
from which he was appointed and shall not again be eligible
for appointment under clause (a) or (b) as the case may be,
of sub-rule (1):
Provided that the period of temporary exemption allowed
OP(KAT)No.265 of 2023 18 2026:KER:8411
under clause (b) of sub-rule (1) shall be extended by 3 years
in the case of a person belonging to any of the Scheduled
Castes or Scheduled Tribes.
13AA. Notwithstanding anything contained in these rules,
the Government may, by order, exempt for a specified
period, any member or members, belonging to a Scheduled
Caste or Scheduled Tribe, and already in service, from
passing the tests referred to in rule 13 or rule 13A of the
said Rules:
Provided that this rule shall not be applicable to tests
prescribed for purposes of promotion of the executive staff
below the rank of Sub-Inspectors belonging to the Police
Department."
(Underline supplied)
15. In the original application, the petitioner has pleaded
that there is no reason for assigning her the seniority in between
serial Nos.74 and 75. The immediate junior of the petitioner
namely, Sri.Anil Kumar, was promoted on 07.02.2001. A pleading
to that effect is incorporated in the reply statement filed by the
2nd respondent. It was noting the seniority of the petitioner as
immediately before Sri.Anil Kumar, by Annexure A1 order, her
seniority was fixed with effect from 07.02.2001, the date on which
her immediate junior was promoted. The petitioner has no claim
that if she was actually promoted on 07.02.2001, she would have
acquired the test qualification before 07.02.2004 as prescribed
OP(KAT)No.265 of 2023 19 2026:KER:8411
under Rule13A(2) of Part II of KS&SSR. Therefore, going by the
relevant provisions in KS&SSR, as extracted above, since the
petitioner has not acquired the test qualification before
07.02.2004, it cannot be said that there is any illegality in Ext.P7
order. The Tribunal considered these aspects in its proper
perspective in the impugned order. Paragraphs 12 to 18 of the
said order read thus:
"12. It is stated in the reply statement that there were
certain complaints regarding assignment of seniority to the
applicant and the matter was re-examined. It was found
that one Sri Anilkumar was the immediate junior of the
applicant and that he was promoted on 07.02.2001. Para 10
of the affidavit of the second respondent filed along with MA
No.1535 of 2018 reads as follows:
"10. As per Rule 13A(1)(a) and 13A(2) of Part II of the
Kerala State and Subordinate Service Rules, the applicant
would have been promoted to the senior clerk category on
a condition that if she does not pass the tests within the
stipulated time, she would be reverted. As such, she should
have obtained the test qualification before 07.02.2004 ie.,
3 years from the date of promotion of her immediate junior.
But, the applicant had acquired the test qualification for
promotion only on 06/2005. Hence, she is not eligible for
the benefits stipulated in the Circular
No.8130/P&AR.C3/2010/P&ARD dated 24.02.2012".
13. The applicant could not effectively dispute these
averments. Though the applicant was entitled to the
OP(KAT)No.265 of 2023 20 2026:KER:8411
benefits of temporary exemption she can claim the same
only with effect from 07.02.2001 when her immediate junior
was promoted. On such promotion she ought to have
obtained the test qualification before 07.02.2004, failing
which she should have been reverted as provided under
Rule 13A(2) of the Rules. Therefore it is very clear that the
applicant is not entitled to the benefits of Annexure A3 and
A4 Circulars which are intended to give retrospective
promotion to those who had acquired qualifications within
three years from the date on which their turn for promotion
fell due. It is well settled in the decision of the Hon'ble High
Court in Jayakumar G. Vs. State of Kerala (2014 (3)
KHC 763) that the date of promotion on temporary
exemption cannot be postponed and it is on the date of
occurrence of the vacancy to which his immediate junior was
promoted. As the immediate junior of the applicant was
promoted on 07.02.2001, that is the only date on which she
could claim the benefit of Rule 13A of the Rules and she
should have passed the test before 07.02.2004.
14. But Sri.Fathahudeen, learned Counsel for the applicant
contended that Annexure A5 could not be cancelled after a
long time and Annexure Al order is bad for this reason. He
also relied on the judgment in K.S.E.B. Vs. Sasidharan
(2020 (3) KLT 514). He contended that two promotions
were granted to the applicant on the strength of the date
assigned to her in Annexure A5 order and there were no
challenge against the same. But it is evident from the
uncontroverted averment in the reply statement that there
were representations against the assignment of seniority to
the applicant and notice had been issued to her. It is
OP(KAT)No.265 of 2023 21 2026:KER:8411
admitted by the applicant that notice proposing cancellation
of Annexure A5 had been issued to her and she had
submitted Annexure A9 reply to the same.
15. It is also relevant to note here that though Annexure A5
order is dated 11.01.2016 Annexures A6 and A7 orders of
promotions were issued only on 15.03.2016 and
20.03.2017. The notice proposing cancellation of Annexure
A5 appears to have been issued without further delay since
Annexure A9 reply to the same is seen to have been
submitted on 27.07.2017. Therefore her contentions based
on the sit back principles will not help the applicant. It is to
press this contention that the learned Counsel for the
applicant relied on K.S.E.B. Vs Sasidharan (supra). The
above judgement makes specific reference to the decision
of the Supreme Court in R.K.Mudgal Vs R.P.Singh (AIR
1986 SC 2086). Considering the above judgment the
Supreme Court has held in Shiba Shanker Mohapathra
Vs State of Orissa (2010 (12) SCC 471) that "in
K.R.Mudgal (supra), this court has laid down, in crystal clear
words that a seniority list which remains in existence for 3
to 4 years unchallenged, should not be disturbed. Thus 3 to
4 years is a reasonable period for challenging the seniority".
Here in this case Annexure A5 order dated 11.01.2016 is
cancelled by giving a notice at least in July 2017 and the
applicant has replied to the same on 27.07.2017. This
period of about one and a half year is not sufficient to
presume long delay to raise a contention on sit back
principles. Applicant is not entitled to get the support of the
sit back principles.
16. Learned Government Pleader submits that the
OP(KAT)No.265 of 2023 22 2026:KER:8411
temporary exemption under Rules 13A of the Rules can be
availed only from the date on which the immediate junior
was promoted and it cannot be postponed to any other date.
The period of three years commences from the said date
and no employee belonging to SC/ST can continue in the
promoted post beyond that period without acquiring the
qualification. Allowing a temporary promotee without
qualification to continue beyond the said period would result
in denying the rights of another rightful claimant for
promotion. He also cited an order of this Tribunal in
O.A.No.142 of 2018. Para 8 of the order reads as follows:
"8. It is also relevant in this context to notice that when
temporary exemption is granted to an employee belonging
to SC/ST, who has not acquired the test qualifications and
he is promoted, legitimate promotion is denied to a qualified
junior. But the exemption is a statutory right conferred on
the member of a SC/ST. The conferment of the benefit to
the employees belonging to SC/ST is subject to the
condition that he would be reverted on his failure to acquire
the qualification within three years. If an employee, who is
promoted invoking Rule 13A of KS & SSR fails to acquire
qualification within three years, the qualified junior gets a
right to replace him. Therefore the claim of a member
belonging to SC/ST that he may be allowed to continue
beyond the statutory period provided under Rule 13A would
result in denial of the rights of another employee who had
acquired the qualifications. Therefore, any person promoted
by availing temporary exemption provided under Rule 13A
of KS&SSR is bound to be reverted on expiry of three year
period if he could not pass the required examination. In such
OP(KAT)No.265 of 2023 23 2026:KER:8411
circumstances, Annexure A7 order directing reversion of the
applicant with effect from 1.04.2013 does not suffer from
any illegality."
17. In this case the applicant's immediate junior was
promoted on 07.02.2001. That is the only date on which the
applicant can claim temporary exemption and the period of
exemption would expire on 07.02.2004. She did not acquire
qualification within that time and even if she was promoted
she would have been reverted on 07.02.2004. She was
actually promoted on 12.01.2006. She can claim seniority
only with effect from the said date. 18. There is no merit in
the contentions of the applicant that had she been promoted
on 07.02.2001 she would have passed the test within three
years. She did not make any such claim when her junior was
promoted on 07.02.2001. She made a claim only on the
basis of Annexure A3 Circular which was issued only in
2012. Applicant herself has admitted that there is no reason
to grant her promotion with effect from 2003 as was done
in Annexure A3."
16. From the above extracted portion of the order of the
Tribunal, it is clear that the claim of sit back was raised by the
petitioner before the Tribunal also. However, the Tribunal found
that such a claim cannot be raised by the petitioner since she was
promoted only on 12.01.2006 and immediately within a short span
of one and a half years, the said order was cancelled by issuing a
notice. Therefore, a reasonable period of three to four years
mentioned by the Apex Court in Shiba Shankar Mohapatra v.
OP(KAT)No.265 of 2023 24 2026:KER:8411
State of Orissa [(2010) 12 SCC 471] cannot be applied in the
case of the petitioner. As rightly found by the Tribunal, allowing a
temporary promotee without qualification to continue beyond the
period permitted as per the Rules would result in denying the right
of another rightful claimant for promotion.
17. Having considered the pleadings and materials on
record and the submissions made at the Bar, we find no ground
to hold that the impugned order of the Tribunal is perverse or
illegal, which warrants interference of this Court by exercising
supervisory jurisdiction under Article 227 of the Constitution of
India.
In the result, this original petition stands dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
nak
OP(KAT)No.265 of 2023 25 2026:KER:8411
APPENDIX OF OP(KAT) NO. 265 OF 2023
PETITIONER ANNEXURES
Annexure A1 ORDER NO. E3-11403/2017 DATED 21/05/2018 OF
THE 2ND RESPONDENT
Annexure A2 TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE
BOOK OF THE APPLICANT TO SHOW THE DETAILS OF
DECLARATION OF PROBATION
Annexure A3 TRUE COPY OF THE CIRCULAR NO. 8130/GAD
C3/2010 DATED 24/02/2012 ISSUED BY THE
GOVERNMENT OF KERALA
Annexure A4 TRUE COPY OF THE CIRCULAR NO. E3-11533/12
DATED 19/09/2012 OF THE 2ND RESPONDENT
Annexure A5 TRUE COPY OF THE ORDER NO. E3- 17414/15 DATED
11/01/2016 OF THE 2ND RESPONDENT
Annexure A6 TRUE COPY OF THE ORDER NO. E6-10503/2014(5)
DATED 15/02/2016 OF THE 2ND RESPONDENT
Annexure A7 TRUE COPY OF THE ORDER NO.E6-16357/16 DATED
20/03/2017 OF THE 2ND RESPONDENT
Annexure A8 TRUE COPY OF THE PROCEEDINGS NO. E6-
37435/2017(1) DATED 07/12/2017 ALONG WITH THE
RELEVANT PAGES OF THE GRADATION LIST
Annexure A9 TRUE COPY OF THE EXPLANATION DATED 27/07/2017
SUBMITTED BY THE APPLICANT TO THE 2ND
RESPONDENT
Annexure A10 TRUE COPY OF THE ORDER NO.E2-759/18 DATED
07/06/2018 OF THE 3RD RESPONDENT
Annexure A11 TRUE COPY OF THE REPRESENTATION OF THE
APPLICANT DATED 30/06/2018 BEFORE THE 2ND
RESPONDENT
Annexure MA1 TRUE COPY OF THE SUBMISSION OF THE APPLICANT
DATED 04/07/2018 TO THE 4TH RESPONDENT
Annexure MA2 TRUE COPY OF T:HE FORWARDING LETTER NO. G1-
4622/2006 R DATED 04/07/2018. OF THE 4TH
RESPONDENT
Annexure A12 TRUE COPY OF THE ORDER NO. DUA/4704/2022-E6
DATED 27/06/2022 OF THE 2NDRESPONDENT
Exhibit P1 A COPY OF THE MEMORANDUM OF ORIGINAL
APPLICATION NO. /175/2018 FILED BEFORE THE
HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM
Exhibit p2 A COPY OF THE ORDER DATED 03.07.2018 IN OA
NO.1175 OF 2018 HON'BLE KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM
Exhibit P3 A COPY OF MA NO.1477/2018 IN OA NO.1175 OF
2018 HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM DATED 18.07.2018
OP(KAT)No.265 of 2023 26 2026:KER:8411
Exhibit P4 A COPY OF THE MA NO.1535/2018 IN OA NO.1175
OF 2018 HON'BLE KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM DATED
21.07.2018
Exhibit P5 A COPY OF THE REPLY STATEMENT OF THE 2ND
RESPONDENT DATED 24.09.2018
Exhibit P6 A COPY OF THE MA NO.1467/2022 IN OA
NO.1175/2018 FILED BY THE PETITIONER DATED
14.07.2022
Exhibit P7 CERTIFIED COPY OF THE ORDER DATED 26.09.2022
IN OA 1175/2018 OF HON'BLE KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
Exhibit P8 A COPY OF THE RELEVANT PAGES OF THE REVISED
DRAFT SENIORITY LIST OF SENIOR CLERKS AS OF
31.07.2013 (PAGES NO.1 TO 13 AND 58) IS
