Pavithran vs State of Kerala

K. Balakrishnan Nair, J.—Writ Petition (C) Nos. 20627 and 24490 of 2006 were filed, challenging Ext.P4 order of the Government dated 21.7.2006, by the aggrieved teacher and the Manager of an aided school, respectively. Both the Writ Petitions were heard and dismissed by a common judgment. So, the said teacher and the Manager have, respectively, preferred the above appeals. Since the Writ Appeals are directed against the very same order of the Government and also the common judgment of the learned Single Judge affirming the same, they are heard and disposed of together.

W.A. No. 327 of 2007:

This appeal is treated as the main case. The brief facts of the case are the following: The appellant (V.K.M. Pavithran) and the sixth respondent (K.P. Sasidharan) were Lower Primary School Assistants (for short, L.P.S.A''s.) under the fifth respondent''s school. Both of them have continuous qualified service from 1.6.1982. The appellant is elder in age. Before their regular appointment with effect from 1.6.1982, both of them had unqualified, but approved service. The appellant had worked as LPS A from 10.6.1981 to 5.12.1981 as unqualified Assistant Teacher. The sixth respondent had worked as unqualified Assistant Teacher from 22.9.1980 to 30.4.1981 and again from 1.6.1981 to 17.10.1981. The aforementioned spells of service rendered by the appellant and the sixth respondent were approved by the competent authority.

The Manager prepared a seniority list of teachers of the school as on 1.1.1993, which was provisionally approved by the Assistant Educational Officer (for short, ''the A.E.O.''). In the said list, which is produced as Ext.Pl, the appellant was shown at Sl. No. 5 and the sixth respondent at SL. No. 6. So, the sixth respondent preferred a representation against the said seniority list before the A.E.O., but the said officer rejected the same by Ext.P2 order dated 13.6.1994. Challenging Ext.P2 order, he filed an appeal before the District Educational Officer (for short, "the D.E.O.") as provided under Rule 38(2) of Chap: XIV-A, of the Kerala Education Rules (hereinafter referred to as "the Rules"). The said appeal was dismissed by the D.E.O., by Ext.P3 order dated 15.6.1995. Exts.P2 and P3 orders became final, as the. sixth respondent did not take any further steps to challenge them.

After the lapse of ten years, the sixth respondent preferred Annexure II representation dated 25.7.2005 before the A.E.O. claiming seniority over the appellant in the cadre of LPSA. The A.E.O. made an endorsement on Annexure II, on 3.8.2005 to the effect that his complaint regarding seniority has been rejected as per proceedings No. E.8201/93 L. Dis dated 13.6.1994 and addressing of a letter raising the very same point again is against the service rules. The sixth respondent challenged the said endorsement before the Government, by filing a revision, Annexure III, under Rule 92 of Chap.XIV-A of the Rules. The prayers in the revision were the following:

(a) call for the records relating to Ext.P6 and set aside the same.

(b) declare that petitioner is senior to 4th respondent Pavithran in view of the Rule 37(2) of Chap.XIV-A K.E.R. and the dictum laid down in Ext.P3 and P4 judgment and judgment in W.A. 376/88 and W.A. No. 3429/2001.

(c) direct the 3rd respondent Manager to appoint the petitioner as Teacher-in-charge from the date of appointment of the 4th respondent Pavithran.

Ext.P6 mentioned in prayer (a) quoted above was the above mentioned endorsement of the A.E.O. on Annexure II. The sixth respondent, thereafter, moved this Court, seeking a direction to the Government to dispose of Annexure III revision. The said Writ Petition was disposed of, directing the Government to pass final orders on the abovesaid revision petition. In the meantime, the appellant was promoted as Headmaster in the retirement vacancy of one P. Muraleedharan Nair with effect from 1.10.2005. While so, the Government heard both sides and allowed Annexure III revision, by Ext.P4 order dated 21.7.2006. Challenging the said order, as mentioned earlier, the appellant herein and the Manager filed the Writ Petitions. The appellant contended that his seniority position in the seniority list above the sixth respondent has become final long ago. The said respondent has invoked the statutory remedy against the position assigned to the appellant in the seniority list published as per Ext.Pl. The A.E.O. as well as the D.E.O. has rejected his claim and those orders have become final. The said authorities are competent to take decisions on the matters raised before them. The sixth respondent who slept over his rights and allowed Exts.P2 and P3 to become final, woke up from his slumber only in 2005, by filing Annexure III revision. The appellant is entitled to sit back and whatever rights the sixth respondent has got, have been lost by reason of delay and laches in challenging the orders affirming his seniority position.

The sixth respondent resisted the Writ Petition, by filing a counter affidavit and also relied on Exts.R6(a) to R6(e) judgments. Ext.R6(b) judgment declares that even if the continuous qualified service of the two incumbents commences on the same day, and if both of them have unqualified service, the person first appointed as unqualified teacher prior to regular appointment is entitled to get seniority. In Ext.R6(a) judgment, a Division Bench took the view that the dispute relating to seniority is relevant only at the time of considering eligible hands for promotion to the post of Headmaster. Even if a person has been treated as junior all along, the same will not bar him from asserting his seniority at the time of considering promotion to the post of Headmaster. In the light of the said decision and other decisions, the sixth respondent defended Ext.P4. The learned Single Judge, after hearing both sides, upheld the contentions of the sixth respondent and dismissed the Writ Petition along with the Writ Petition filed by the Manager. Hence these appeals.

We heard the learned Counsel, Sri. N. Sugathan, who appeared for the appellant and Sri. K.R.B. Kaimal, learned Senior Counsel, who appeared for the sixth respondent. We also heard Smt. P.V. Asha, who appeared for the 5th respondent, Manager. We also had the benefit of hearing the learned Government Pleader Sri. Manoj Kumar. The learned Counsel for the appellant, Mr. Sugathan, highlighted the principle relating to sit back theory and submitted that, in view of delay and laches, the rights, if any, of the sixth respondent, should be taken as lost. In support of his submissions, the learned Counsel relied on the decisions reported in Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, , Sreedharan Piliai v. State of Kerala 1973 KLT 151 (F.B.), Malcom Lawrence Cecil D''souza Vs. Union of India (UOI) and Others, and Usha Devi v. State of Kerala 2002 (1) KLT 615. Sri. K.R.B. Kaimal, learned Senior. Counsel appearing for the sixth respondent took us through the decisions of this Court produced as Exts. R6(a) to R6(e). Special reference was made to Exts-. R6(b) and R6(a) judgment''s. According to him, the facts in Ext.R6(b) are identical to those of this case. Going by the principles laid down in Ext.R6(b) judgment, the sixth respondent was entitled to be treated as senior. Though belatedly, the Government has done justice. If this Court interferes with that, an illegal order in favour of the appellant will be resurrected. So, this Court may not interfere with Ext.P4, it is submitted. The learned Government Pleader supported the above submission of the learned Senior Counsel. He submitted that, the Government have done justice and this Court may not interfere with the same, as it will result in resurrection of an illegal order. The learned Senior Counsel also pointed out that though S.L.P.(C). No. 10930 of 1989 was filed against Ext.R6(a) judgment, the Apex Court has dismissed the same declining to grant leave to appeal.

We notice that the Writ Appeal was referred to the Full Bench, in view of the apparent conflict between the decisions of this Court in W.A. No. 423 of 1989 (produced as Ext.R6(a)) and Usha Devi v. State of Kerala 2002 (1) KLT 615. In Ext.R6(a) judgment, a stale claim concerning promotion was treated as not stale, as according to the Division Bench, the claim relating to seniority becomes relevant only at the time of considering the claim for promotion to the post of Headmaster and seniority dispute at that time can be validly raised, even if the incumbent has suffered adverse seniority position for the past several years. In Usha Devi v. State of Kerala (supra), another Division Bench held that the seniority position enjoyed by an incumbent cannot be disturbed after the lapse of a long time, even assuming that the rival claimant has got a legally better claim.

The seniority of teachers in aided schools is governed by Rule 37 of Chap.XIV-A of the Rules. The said rule reads as follows:

(1) Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post.

(2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. If the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior.

Interpreting Sub-rule (2) of Rule 37, a Division Bench of this Court in Ext.R6(b) judgment held that, if there are spells of unqualified service for the rival claimants and their qualified approved service commenced on the same day, the person who was appointed first as unqualified hand shall be treated as senior. It is common ground that the 6th respondent was appointed as unqualified hand first. When the interpretation given by the Division Bench of this Court in Ext.R6(b) concerning Rule 37 of the Rules was holding the field, the A.E.O. took the decision against the sixth respondent, which was not in accordance with the above mentioned legal principle. So, the sixth respondent''s claim for seniority was legally sound and tenable. But, it is a well settled principle in service jurisprudence that, if a person suffers a seniority position for long period without demur, and allow others . to enjoy seniority over him for a long period, he cannot normally stake his claim, when the question for promotion to the next higher post is taken up.

Whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final and the person, affected by it, will also be bound by it. It is a well settled principle in Administrative Law that, there are no void orders in absolute sense in administrative matters. There are only voidable orders. Unless a person aggrieved takes recourse to the appropriate remedy at the appropriate time, even an illegal order will be treated as valid and binding. See the observations of Wade in Administrative Law, 6th Edn.

The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff''s lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the ''void'' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another. A common case where an order, however void, becomes valid is where a statutory time limit expires after which its validity cannot be questioned. The statute does not say that the void order shall be valid; but by cutting off legal remedies it produces that result:

The above statement of law has been quoted with approval by the Apex Court in several decisions, and one of them is State of Punjab and Others Vs. Gurdev Singh, . We notice that Exts.P2 and P3 orders were passed by competent statutory authorities. They could have granted the reliefs sought by the sixth respondent, but, they have declined to do that. The sixth respondent has not chosen to challenge those orders before the higher forum or this Court and as mentioned earlier, he allowed them to become final. Therefore, those orders are to be treated as valid. They cannot be ignored or treated as void ab initio and therefore, of no effect now. It is a well settled principle in service jurisprudence that, a person who enjoyed a seniority position for quite some time is entitled to sit back. The seniority position shall not, normally, be disturbed lightly. The said position is covered by several decisions of this Court and also the Apex Court, cited by the learned Counsel for the appellant. It is not in the interest of administration or public interest to allow a person, who slept over his right, to rake up a stale claim, tinker with the seniority list and demoralise other members of the service. We find no reason not to apply the above principle applicable to members of public service, to the persons working in aided schools governed by the K.E.R., also. There cannot be any separate principle for such schools concerning seniority, sit back, etc. In view of the above position, we are of the view that Ext.R6(a) judgment does not lay down the correct legal position. We overrule the said decision. We uphold the view taken by the Division Bench in Usha Devi''s case (supra), as laying down the correct legal position.

In the result, the Writ Appeal is allowed. The judgment under appeal is reversed and Ext.P4 order is quashed. No costs.

W.A. No. 378 of 2007:

It is ordered that the judgment in W.A. No. 327 of 2007 will govern this case also.