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2014 Supreme(Online)(KER) 29694
HIGH COURT OF KERALA
ANTONY DOMINIC, ANIL K. NARENDRAN, JJ
FRANCINA ANTONY – Appellant
Versus
STATE OF KERALA – Respondent
OP(KAT) 3467 2013
SRI.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, SRI.K.A.BALAN, SRI.PETER JOSE CHRISTO, SRI.S.A.ANAND, SMT.L.ANNAPOORNA, SRI.KALEESWARAM RAJ, SRI.VIJU THOMAS
In cases of corrected seniority, reliance on 'sit back' theory is limited where no substantial delay in reassessment occurs and where the petitioners contributed to initial errors.
Headnote:
Seniority - Employment - Kerala Service Rule - Appendix XII A
Fact of the Case:
The petitioners were Staff Nurses who availed leave for foreign employment during their probation. Post-leave, their seniority was later contested, leading to a re-evaluation of their positions and subsequent promotions.
Finding of the Court:
The court determined that the seniority adjustments were justified due to errors in initial listings, and thus the promotions based on faulty seniority warranted revision.
Issues: Whether the petitioners were entitled to the benefit of the sit back theory in light of their leave without allowance and erroneous seniority assignments.
Ratio Decidendi: The principle of sit back cannot be applied where corrective measures were enacted within five years of the original seniority decision, especially as the petitioners contributed to the mistake.
Final Decision: Writ Petition disposed of; promotions revised and period of absence regularized.
JUDGMENT
Antony Dominic, J.
This original petition is filed by the applicants in O.A.2124/2013 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram which was rejected by its order dated
23.9.2013.
2. We heard the counsel for the petitioners, learned Government Pleader and the counsel appearing for the fourth respondent.
3. Briefly stated the facts of the case are that, on being advised by the Public Service Commission, the petitioners joined the post of Staff Nurse Grade II in the Health Services Department on 28.7.1993 and 19.7.1993 respectively. On 17.8.1996, the fourth respondent also joined service as Staff Nurse Grade II.
4. During their probationary period, petitioners availed leave without allowance for foreign employment in terms of the provisions contained in Appendix XII A, Part I, Kerala Service Rule . This was during the period from 27.8.1993 to 15.3.1998 and 23.8.1995 to
22.8.2005 respectively.
5. Subsequent to their rejoining service, by Annexure A2 dated
25.10.2007, the Additional Director of Health Services finalised the seniority list of Staff Nurse Grade II for the period 7.7.1990 to 31.12.2002. Annexure A2(a) is the seniority list thus published. In this seniority list, the petitioners and the fourth respondent are assigned the seniority at Sl.Nos.387, 391 and 1259 respectively. Although as against the first respondent, there is no remark in the seniority list; in so far as the second petitioner is concerned, it is stated “relieved to take up employment abroad”.
6. Based on Annexure A2(a) seniority list, on 10.11.2008, Annexure A3 proceedings were issued by the Additional Director, promoting Sl.No.1 to 3459 in the seniority list to the cadre of Staff Nurse Grade I. In pursuance to Annexure A3, Annexure A4 was issued by the District Medical Officer, Kottayam, posting the petitioners as Head Nurses at the Medical College Hospital, Kottayam. In the meanwhile, by Government Order dated 1.6.2007, dual control system in the health services was abolished and by Government Order dated 25.10.2009, employees like the petitioners and the fourth respondent were given an option to opt for Medical Education Services.
7. Accordingly, petitioners and the fourth respondent opted for Medical Education Service and in pursuance to the option so exercised, Annexure A5 order dated 23.10.2009 was issued and they were also transferred to the Medical Education Service. Accordingly, they were relieved from the Health Services on 26.10.2009 and joined Medical Education Service on 27.10.2009. Subsequently, the petitioners also completed their period of probation as Head Nurse on 17.1.2010. It was still later on 13.3.2011 that the fourth respondent was promoted to the post of Head Nurse.
8. According to the fourth respondent, it was thereafter that she came to know that the seniority of the petitioners was fixed reckoning the period they spent on leave without allowance and coming to know of this she submitted Annexure A6 representation dated 8.7.2011 to the Additional Director of Medical Education seeking review of the seniority as well as promotion of the petitioners. While the representation was thus pending, the final seniority list of Head Nurses in the Medical Education Services as on 31.3.2011 was published on 25.8.2011 where the petitioners and the fourth respondent were assigned seniority at Sl.Nos.335 and 337 and 415 respectively.
9. While matters stood thus, the fourth respondent filed Writ Petition No.24850/2011 before this Court impugning the seniority of the petitioners in the cadre of Staff Nurse Grade I and Head Nurse. In that Writ Petition, she had also produced Annexure A6 representation dated 8.7.2011. On the constitution of the Kerala Administrative Tribunal, the Writ Petition was transferred and the Tribunal renumbered the case as T.A.6459/12.
10. When the Transfer Application was pending before the Tribunal, the Additional Director of Health Services issued Annexure A7 notice on 22.2.2012, proposing to rectif
