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2025 DIGILAW 1250 (KER)

Divya G. S. W/o Saju R. v. Kerala Water Authority

2025-05-19

MURALI PURUSHOTHAMAN

body2025
JUDGMENT : 1. The petitioner entered the service of the 1 st respondent, Kerala Water Authority, as Lower Division Clerk on 14.07.2009 and was posted at its Head Office, Thiruvananthapuram. She was subsequently promoted to the post of Upper Division Clerk with effect from 09.10.2015. 2. Provisional seniority list of U.D. Clerks as on 01-11-2017 was published by the Chief Engineer (H.R.D. & General), the 3 rd respondent on 27-11-2017 vide Ext.P1 and calling for objections, if any. In Ext.P1, petitioner’s name figures at S. No.383. Going by Ext.P1, the reassigned date of promotion of the petitioner is 18.08.2011 which is against the resultant vacancy of one Sreelatha who was promoted with effect from 17.08.2011. 3. While so, Ext.P2, another provisional seniority list was published by the 3 rd respondent on 01.06.2019 without cancelling Ext.P1 list. In Ext.P2, the petitioner is placed at Serial Number 69 and the reassigned date of promotion is 18.01.2014, which the petitioner states is incorrect. The petitioner states that the 3 rd respondent has no authority to draw and publish a second provisional seniority list, without cancelling the earlier one. 4. The 3 rd respondent, as per Ext.P3 proceedings dated 30.07.2020, finalized Ext.P2 draft seniority list. Challenging Ext.P3, the petitioner preferred Ext.P4 appeal before the Managing Director, the 2 nd respondent. Since no action was taken on Ext.P4, WP (C) No.16182 of 2020 was filed by the petitioner seeking a direction to the 2 nd respondent to consider and pass orders thereon. 5. In the meantime, WP (C) No.13933 of 2019 was filed by one Saju challenging his reversion from the post of U.D Clerk to L.D Clerk for not passing the departmental test within the prescribed three years of occurrence of vacancy, as required under Rule 13A(2) of the KS & SSR, 1958. This Court stayed the reversion. Despite the order of stay, Saju was promoted to the post of Head Clerk, and his promotion was challenged by one Saffeeq and others in WP (C) No.1778 of 2020. 6. This Court stayed the reversion. Despite the order of stay, Saju was promoted to the post of Head Clerk, and his promotion was challenged by one Saffeeq and others in WP (C) No.1778 of 2020. 6. All the three writ petitions were heard and disposed of vide Ext.P5 common judgment dated 09.11.2022, whereby, the 2 nd respondent was directed to consider and pass orders on Ext.P4 appeal submitted by the petitioner within a period of three months from the date of receipt of copy of the judgment, with specific reference to the date of occurrence of vacancy and the date of acquisition of qualification. 7. Upon non-compliance of Ext.P5 judgment by the 2 nd respondent when the petitioner preferred Con. Case (C) No.1708 of 2023, an application for extension of time to comply with the direction in the judgment was filed by the 2 nd respondent and finally Ext.P6 communication dated 16.01.2024 was issued by the 2 nd respondent, reiterating what has been stated in Ext.P3 seniority list. The petitioner contends that Ext.P6 is in the nature of a communication and cannot be treated as an order and is, per se wrong and arbitrary. The Contempt of Court Case was disposed of by Ext.P8 judgment dated 22.02.2024 which reads as follows: “Heard the learned counsel appearing for the petitioner. Since it is submitted that an order has been passed which is only a reproduction of the earlier order, it is contended that directions have not been complied with. However, in view of the fact that an order has been passed and issues with regard to inter se seniority in the water authority, I am of the opinion that a proper resolution of the issue can be had only with the affected parties on the party array. In the above view of the matter, this Contempt of Court Case is, closed, without prejudice to the contentions of the parties and the right of the petitioner to challenge the order in appropriate proceedings.” 8. The petitioner states that as evident from Ext. P1, the date of promotion reassigned to her is 18.08.2011 and that she had passed the departmental test way back on 30.04.2011 and therefore entitled to be promoted to the post of U.D. Clerk with effect from 18.08.2011. The petitioner states that as evident from Ext. P1, the date of promotion reassigned to her is 18.08.2011 and that she had passed the departmental test way back on 30.04.2011 and therefore entitled to be promoted to the post of U.D. Clerk with effect from 18.08.2011. However, by Ext.P6 order, the date of promotion reassigned to her is 18.01.2014, which is wrong and against the provisions of Part II Rule 28 (bb) of KS & SSR. The petitioner states that this Court in Ext. P5 judgment had specifically directed the 2 nd respondent to consider and pass orders on Ext.P4 appeal assigning seniority of U.D. Clerks with specific reference to the date of occurrence of vacancy and the date of acquisition of qualification. However, Ext.P6 is in total derogation of the directions in Ext. P5 Judgment. The petitioner states that the 2 nd respondent can pass fresh orders as directed in Ext.P5, even without hearing the affected parties since all the parties were heard before passing Ext.P6. According to the petitioner, on account of the unjustified stand taken by the respondents, several employees were promoted even before they acquired qualification, overlooking the seniority of the petitioner. The petitioner has sought for a a direction to quash Ext. P6 and for a declaration that she is entitled to get promotion and seniority in the cadre of U.D. Clerk with effect from 18.08.2011 and for consequential service benefits. 9. A counter affidavit has been filed on behalf of the Kerala Water Authority. It is stated therein that in compliance with the directions of this Court in Ext.P5 judgment, Ext.P4 appeal preferred by the petitioner was duly considered, and Ext.P6 order was passed. It is further stated that the petitioner was unable to produce any material to substantiate the contention that she is eligible for promotion with effect from a date prior to what has already been assigned to her and that there are no pleadings in the writ petition to the effect that the petitioner is entitled to promotion with effect from a date prior to what has already been assigned to her and the pleadings are vague. It is further stated that the date of promotion as evidenced from Exts.P2 and P6 has been based on the directions contained in the judgment of this Court in W.P. (C) No.24198 of 2009 wherein this Court directed that due dates of promotions should be assigned to all persons in the cadre of U.D Clerks by considering the exact date of occurrence of each vacancy that arose after the date of first advice of candidates. The 1 st respondent states that said judgment has attained finality. The 1 st respondent further states that all the parties who are likely to be affected by any order passed in the writ petition are necessary parties to the writ petition and the petitioner has deliberately not made them parties so as to obtain orders behind their back. 10. The additional respondents 6 and 7 who got themselves impleaded in the writ petition have filed counter affidavit contending that the writ petition is bad for non-joinder of necessary parties. The relief sought for by the petitioner in the writ petition clearly affects their seniority and if the prayers in the writ petition are allowed, all the persons included in the seniority list will be adversely affected and therefore, the writ petition has to be dismissed for the non- joinder of necessary parties. It is further stated that Ext.P3 seniority list was issued in 2020 and there is no challenge to Ext.P3 which has already settled the seniority of around 200 persons. In Ext.P3, the petitioner's seniority is assigned at S. No.69 with effect from 18.01.2014. The same is not challenged. Without doing so, the petitioner has come up in this writ petition with the belated challenge in the year 2024 to unsettle the settled seniority of more than 150 persons without impleading any of them. It is stated that the seniority of respondents 6 and 7 is already settled by virtue of the principle of sit back theory. It is further stated that the seniority of the additional respondents was calculated and reckoned based on the last date of examination as provided under Rule 28(bb) of Part II KS & SSR and the writ petition is filed without appreciating the purpose of Rule 13 of Part II KS & SSR. It is stated that the writ petition is hit by delay and laches, misconceived and liable to be dismissed. 11. It is stated that the writ petition is hit by delay and laches, misconceived and liable to be dismissed. 11. The petitioner has filed reply affidavit to the counter affidavits resisting the contentions therein and reiterating her contentions in the writ petition. 12. The contention of the petitioner is that she is entitled to be promoted to post of U.D Clerk w.e.f 18.08.2011. By Ext.P1 provisional seniority list, she has rightly been assigned seniority w.e.f 18.08.2011. However, by Ext.P3, the date of promotion assigned to her is 18.01.2014 instead of 18.08.2011. Aggrieved by Ext.P3, she preferred Ext.P4 appeal and by Ext.P6, the 2 nd respondent has rejected the appeal. In Ext.P5 judgment, this Court had directed consideration of Ext.P4 appeal assigning seniority of U.D Clerks with specific reference to date of occurrence of vacancy and date of acquisition of qualification. The petitioner states that the appeal has been rejected in total derogation of the directions in Ext.P5 judgment. The petitioner also contends that Ext.P6 is only a reproduction of Ext.P3 and has been passed flouting the directions in Ext.P5. The petitioner preferred a contempt of court case and by Ext.P8 judgment, this Court held that, since an order has been passed and the issue relates to inter se seniority within the Kerala Water Authority, a proper resolution can be achieved only if the affected parties are included in the party array. Accordingly, the petitioner has filed the present writ petition. 13. Only the official respondents have been made parties to the writ petition. The additional respondents 6 and 7 got themselves impleaded and contended that writ petition is bad for non-joinder of necessary parties. It is contended that while passing Ext.P6 order, about 250 persons were heard and that, if Ext.P6 is interfered with, that would unsettle the settled seniority of more than 150 persons. The Kerala Water Authority, in its counter affidavit, has also stated that those likely to be affected by any order in the writ petition are necessary parties. 14. The prayer in the writ petition is to quash Ext.P6 order passed on Ext.P4 appeal filed against Ext.P3 seniority list. A declaration is also sought to the effect that the petitioner is entitled to get promotion and seniority in the cadre of U.D Clerk w.e.f 18.08.2011. 14. The prayer in the writ petition is to quash Ext.P6 order passed on Ext.P4 appeal filed against Ext.P3 seniority list. A declaration is also sought to the effect that the petitioner is entitled to get promotion and seniority in the cadre of U.D Clerk w.e.f 18.08.2011. If the above prayers are granted, it would unsettle the existing seniority of several persons presently serving in the Kerala Water Authority. Rule 148 of the Rules of the High Court of Kerala, 1971 provides that all persons directly affected shall be made parties to the writ petition. The Rule further provides that where such persons are numerous, one or more of them may, with the permission of the Court on application made for the purpose, be impleaded on behalf of or for the benefit of all persons so affected. In Ext.P8 judgment, this Court observed that, when Ext.P6 order has been passed and the issues relate to inter se seniority in the Kerala Water Authority, a proper resolution of the issues can be had only with the affected parties on the party array. However, none of the persons included in Ext.P3, who are likely to be affected by any order passed in the writ petition, have been made parties. Only the official respondents have been arrayed as parties to the writ petition. Sri Renjith would contend that the petitioner is only seeking a direction to the 2 nd respondent to pass fresh orders on Ext.P4 as directed in Ext.P5 judgment and since the parties were already heard while passing Ext.P6, it is not necessary to hear the parties again while passing fresh orders in compliance with Ext.P5. Any direction to the 2 nd respondent to have fresh fresh consideration of an administrative order in the nature of Ext.P6 will potentially affect the people who have acquired rights under that order. Therefore, those persons must be given an opportunity to contest or defend the validity of Ext.P6; otherwise, it would amount to violation of the principle of audi alteram partem. Moreover, the relief sought for in the writ petition is in the nature of declaration that the petitioner is entitled to get promotion and seniority in the cadre of U.D. Clerk w.e.f 18.08.2011. Consequently, all persons directly affected by any such declaration must be made parties to the writ petition. Moreover, the relief sought for in the writ petition is in the nature of declaration that the petitioner is entitled to get promotion and seniority in the cadre of U.D. Clerk w.e.f 18.08.2011. Consequently, all persons directly affected by any such declaration must be made parties to the writ petition. It is trite law that inter se seniority issues require affected parties to be heard. As observed by this Court in Ext. P8 judgment, a proper resolution of the inter se seniority issue in the Kerala Water Authority can be had only if the affected parties are in the party array. Since the affected persons have not been made parties, the writ petition is dismissed for non-joinder of necessary parties; however, this is without prejudice to the right of the petitioner to file a fresh writ petition with the proper parties in the party array. It is made clear that this Court has not made any observation as to the merits of the writ petition.