"Luxury Litigation": Supreme Court Pulls Up State Of Kerala For Challenging Seniority Of Upper Division Clerk

"In the case of an upper division clerk who has been given seniority, is there for SC to interfere? We are not a court of law but a court of justice as well. Dismissed," the bench of Justices DY Chandrachud and Surya Kant orally remarked while dismissing the SLP against the order dated January 17, 2022.

When the matter was called for hearing, Justice DY Chandrachud the presiding judge of the bench said, "One upper division clerk has got seniority...and the State is here challenging it.. Why don't you do something better? Build schools, roads or infrastructure."

The counsel appearing for the State contended that the respondent was on leave without allowance at the time of his promotion as U.D Clerk and that respondent's seniority was revised to the date on which he rejoined duty after the leave.

He further said that the period of leave without allowance was not countable for any service benefits.

On counsel for the State's contention that the respondent was on leave, Justice Kant said,

"He was on leave and he was not absent on duty. You people indulge in luxury litigation because you are a state."

To further persuade the bench counsel said that it is only by a mistake on the part of the controlling officer that he was granted promotion and was assigned the rank in the seniority list and when the said mistake was brought to the notice of the authorities, necessary corrective action was taken and the applicant's seniority was reassigned based on his eligibility.

"We must do all this on reasonable dispatch and there was no fraud on his part. If you feel there is an error you must rectify the error correctly," Justice Chandrachud remarked.

"You are not granting any promotion but that period is being considered for reckoning of seniority," Justice Kant further added.

"In the case of an upper division clerk who has been given seniority, is there for SC to interfere? We are not a court of law but a court of justice as well", the bench orally said dismissing the plea.

The impugned order was passed by the bench of Justices Alexander Thomas and Viju Abraham while considering a plea challenging the order dated February 1, 2021 passed by Kerala Administrative Tribunal had declared that the applicant who had entered service as L.D Clerk in the Education Department was entitled to retain his rank and seniority as settled in Annexure-A3 final seniority list.

While affirming the view by KAT, the bench had said, "Annexure-A3 final seniority list was published as early as on 03.08.2009 and the said seniority is finalized after publishing a provisional seniority list and inviting objections if any to the same. There were no objections to the rank and seniority assigned to the applicant in the provisional seniority list. There was no objection to Annexure-A3 final seniority list also by any of the aggrieved persons except a bogus complaint submitted as Annexure A5, that too almost 3 years after the finalization of the seniority list. None of these aspects were considered by the Director of Public Instruction and the Government while issuing the impugned orders. Moreover, the review of the seniority based on Annexure-A5 complaint was undertaken by the Director of Public Instruction, who has no authority to take a decision invoking Rule 27B of Part II KS & SSR. The Government also lost sight of these aspects while issuing Annexure-A13 order ratifying Annexure-A10 decision of the Director of Public Instruction."

Case Title: The State Of Kerala And Ors. V. Subeer N.S. And Anr.| SLP(C) No. 8029/2022

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