IMPORTANT POINTS:
• An appointee can seek the benefit of 'sit back' theory only if he demonstrates that he has been enjoying his seniority without being questioned and with notice to his rival for long.
• The Government Orders and the proviso to Rule 27(a) of KS&SSR were being followed in the preparation of seniority list of Junior Accountants till the amendment to the Special Rules. There is no rationale or justification on the part of those transferred inter-district to claim seniority from the date of the order of their first appointment to such category.

Chitambaresh, J.

'Better late than never' is a phrase which continues to be relevant. The seniority list fraught with illegality has to be revised. It needs to be done for the multiple reasons stated herein below.

2. The final state-wise seniority list of Junior Accountants in the Treasury Department was published by the Directorate of Treasuries on 5.2.1998 without a provisional seniority list or calling for objections. It is alleged that the final seniority list was so drawn up misconstruing the provisions of the Kerala Treasury Subordinate Service (Amendment) Rules, 1997 ('the Special Rules'). The final seniority list did not however reflect as to who among those included therein were the beneficiaries of inter-district transfer which would entail in loss of seniority. Repeated representations (during the period from 1998 to 2013) were filed objecting to the final seniority list and the Kerala Administrative Tribunal was moved lamenting inaction. The Tribunal directed an expeditious consideration of the representations and the Government eventually decided to revise the seniority list by G.O. (Rt)No.4930/14/Fin dated 23.6.2014.

3. The above order of the Government was challenged by those who enjoyed seniority notwithstanding the fact that they were beneficiaries of inter-district transfer by filing original applications before the Tribunal. The same were resisted by the petitioners herein relying on the provisions of the Kerala State & Subordinate Services Rules, 1958 ('the KS&SSR') and the Government Orders. The Tribunal has by the order impugned set aside G.O.(Rt)No.4930/14/Fin dated 23.6.2014 observing that the seniority cannot be upset applying the 'sit back' theory. The objectors contend that they were never put on notice earlier about the assigning of seniority to those who secured inter-district transfer and the 'sit back' theory is of no avail. The petitioners assert that the final state-wise seniority list has been drawn up without reference to the provisions of KS&SSR and the Special Rules warranting a revision as proposed.

4. We heard Mr. K. Ramakumar, Senior Advocate, Mr. P. Nandakumar, Advocate, Mr. K. Rajesh Kannan, Advocate, Mr. Antony Mukkath, Government Pleader for the petitioners and Mr. P.C. Sasidharan, Standing Counsel, Kerala Public Service Commission for the supporting respondent as well as Mr. K.P. Satheesan, Senior Advocate and Mr. B.S. Swathy Kumar, Advocate for the contesting respondents.

5. We extract below the relevant part of the Government Orders pertaining to inter-unit and inter-district transfers and its impact on the seniority of the appointees in the various departments of the State:

“i. G.O.(Ms.)4/61/PD dated 2.1.1961.

(1) A person transferred to a new unit will take rank below the juniormost in the category in the new Unit or Department. He will not be allowed to count his previous service towards seniority. Such transfers should not be prejudicial to the legitimate interest of anyone in the department to which he is transferred. But he may be allowed to count his previous service towards increment, leave, pension, gratuity, etc. He will not be required to undergo fresh probation, if he has already completed probation.

(ii) G.O.(Ms.)154/71/PD dated 27.5.1971.

(D) xxxx xxxx xxx xxxx

(i) No transfers will be allowed from one District to another within a period of five years from the date of commencement of continuous service.

(ii) Such inter-district transfers will be allowed only after five years and subject to the conditions laid down in G.O.(Ms.)No.4/61/PD, dated 2.1.1961.

(iii) G.O.(Ms.)442/80/GAD dated 26.9.1980.

(i) No transfer will be allowed from one District to another within a period of five years from the date of commencement of continuous service;

(ii) Such inter-district transfers will be allowed only after five years and subject to the conditions laid down in G.O.(Ms.)4/61/PD, dated 2.1.1961.

(iii) Headquarters vacancies will be allotted to each District by rotation, starting with