1. The above two writ petitions relate to the same issue and are being heard and disposed of together. W.P.(C)No.16878 of 2017 is treated as the main case, and parties and documents are referred to as per their status and numbering, respectively, in the said writ petition (except in the paragraphs covering the pleadings in W.P.(C)No.30905 of 2019).

2. The prayer in W.P.(C)No.16878 of 2017 is for directions to respondents 3 and 4 to approve the petitioner’s appointment from 4.6.2012 and to pay the salary and other benefits. The petitioner was appointed as a Part-Time Hindi Teacher on 01.06.2008 against the leave vacancy of Smt. Merlin Shobhana John at BEM UP School, Ponnani. The appointment was not approved, owing to objections raised by Smt. Sheema Sujayakumari, Sri Danish Raphel and Smt. Nisha Janet, three Non-Teaching  Staff  under  the  Corporate  Manager.  As per Ext.R10(d), the petitioner's appointment against the leave vacancy of Smt.Merlin Shobhana John was cancelled, and she was appointed to the regular vacancy of Part-Time Hindi Teacher, which arose on 01.06.2009 in CMS UP School, Nedinkaruna. Sri Danish Raphel’s claim for the leave vacancy of Smt.Merlin Shobhana John was accepted, and he was appointed with effect from 01.06.2008. To get approval of her appointment, the petitioner approached the 1st respondent with a revision petition on 02.02.2012. By order in WP (C) No.9517 of 2012, this Court directed the 1st respondent to consider and pass orders on the revision petition and to maintain the status quo with respect to the appointment of the petitioner till the disposal of the revision petition. While so, Smt.Merlin Shobhana John cancelled her leave and rejoined duty, and the petitioner was retrenched from service. The 1st respondent disposed of the revision petition filed by the petitioner, as per Ext.P1 order dated 16.11.2012 (Ext.P8 in W.P.(C)No.30905 of 2019). This was followed by Ext.P2 order dated 21.12.2012, issued by the Corporate Manager, treating the petitioner’s appointment as continuous from 01.06.2009, without an ouster on 04.06.2012, despite the rejoining of Smt. Merlin Shobhana John. Based on Ext.P2, she was treated as the seniormost teacher and was promoted and appointed as a Full- Time Hindi Teacher in the available vacancy at BEM UP School, Feroke. The period of absence from 04.06.2012 to the date of joining was directed to be treated as eligible leave. The petitioner claims that the copy of Ext.P2 order was served on the 10th respondent (1st petitioner in W.P.(C)No.30905 of 2019). The petitioner thereafter joined BEM UP School, Feroke, on 07.01.2013. While so, Sri Danish Raphel filed W.P.(C)No.1036 of 2013 claiming promotion to the post of Part Time Hindi Teacher with effect from 02.06.2008.

3. During the staff fixation for 2014-15, there was a division fall, resulting in the abolition of the post of Full Time Hindi Teacher at BEM UP School, Feroke, as evidenced by Ext.P4 order dated 14.07.2014. The Joint Director of General Education issued Ext.P5 order on 12.12.2014, approving the appointments of Sri Danish Raphel and the petitioner, with effect from 02.06.2008 and 01.06.2009, respectively. W.P.(C)No.1036 of 2013 was closed based on Ext.P5. By Ext.P7 order, the 4th respondent approved the appointment of the petitioner, with effect from 01.06.2009, at CMS UP School, Nedinkaruna. The petitioner submitted Ext.P8 representation before the AEO, Feroke, seeking revision of Ext.P4 staff fixation order and restoration of the abolished post of Full Time Hindi Teacher. By Ext. P9 order, this Court directed the AEO, Feroke, to consider and pass orders on Ext.P8. By Ext.P10 order dated 2.7.2016, the AEO, Feroke considered the fact that the petitioner’s appointment was not approved owing to the non-availability of a post, and directed the Corporate Manager to retain the lien of the petitioner in Aaron UP School, Pappinisseri, in the post held by the 10th respondent. The Corporate Manager issued Ext.P11 order on 8.8.2016, transferring the petitioner to Aaron UP School by retaining her lien in the said school retrospectively from 4.6.2012. Thereafter, the Corporate Manager issued Ext.P12 order on 20.1.2017, in partial modification of Ext.P11 order, shifting the lien of the petitioner from Aaron UP School to BEM UP School, Anjarakandy, against the vacancy of Smt. Nisha Jannet, who was reverted as FTM with effect from 04.06.2012. The petitioner was directed to avail LWA for the period from 05.06.2012 to 23.07.2102, and Smt.Nisha Jannet was again promoted to that vacancy. The petitioner contends that all the above  arrangements  were  being  made  to  benefit  the  6th respondent, who had been appointed as Junior Hindi Teacher (Part Time) in the vacancy that arose on the termination of the petitioner’s service with effect from 4.6.2012, despite there being an order of status quo issued by this Court. The writ petition was filed in the above circumstances seeking a direction to the respondents 3 and 4 to approve the petitioner’s appointment from 4.6.2012 and pay the salary from that date.

4. The 4th respondent has filed a counter affidavit stating that the request for shifting the lien had been rejected by the 4th respondent since the 6th respondent was working at BEM UP School, Anjarakandy from 5.6.2012 to 23.7.2012, and there was hence no vacancy available to which the lien could be shifted. It is stated that in the letter dated 23.2.2017 issued by the Corporate Manager to the AEO Mattannur, that the 10th respondent will have to be shifted to the leave vacancy for the period from 26.7.2012 to 4.1.2013 and reverted to the post of Peon from 5.1.2013 to 28.7.2013, for the purpose of retaining the lien of the petitioner in Aaron UP School, Pappinissery. The letter also says that the 10th respondent had relinquished the promotion on 1.6.2015. It is also stated that objections were filed by the 6th respondent to the shifting of the lien of the petitioner.

5. The 6th respondent has filed a counter affidavit contending that the 6th respondent and the 10th respondent were qualified for promotion to the post of Junior Hindi teacher during 2008-2009. It is stated that posts of Part Time Junior Hindi teacher were available in 7 schools under the Corporate Management situated in Puthiyara, Ottapala, Nedumkarana, Pappinisseri, Kuthuparamba, Anjarakandy and Bilathikulam and that apart from the 6th and 10th respondents, Sri Danish Raphel, who was senior to them and working as a Peon, was also qualified for promotion to the post. It is stated that the 6th respondent became qualified from 3.8.2007. The 6th respondent had challenged the proposal for approval of the petitioner, and by Ext.R6(c) judgment in W.P.(C)No.26018 of 2009, this Court had directed the objections of the 6th respondent to be considered before issuing orders regarding approval of the appointment of the petitioner. It is stated that the petitioner was relieved from Pappinissery when Sri Danish Raphel joined there on  4.6.2012,  that  Sri  Danish  Raphel  was  transferred  to Puthiyara, and that the 10th respondent was posted in the vacancy at Pappinissery. According to the 6th respondent, the petitioner had never worked in a sanctioned post of Junior Hindi Teacher and hence was not entitled to claim approval. It is further stated that Ext.P3 produced by the petitioner is a joining report issued by the Headmistress, and it is not supported by any order of transfer issued by the Corporate Manager. It is alleged that the petitioner continued in Feroke school, where there was no sanctioned post, in collusion with the Headmistress. It is also stated that the Corporate Manager had issued an order shifting the lien of the petitioner, affecting the appointment of the 6th respondent for the period from 5.6.2012 to 23.7.2012 and directed her to refund the excess salary paid to her. A copy of the order has been produced as Ext.R6(g). It is stated that the said order has been challenged before the educational authorities.

6. The 10th respondent has filed a counter affidavit containing statements like those in the counter affidavit filed by the 6th respondent. It is stated that he entered service as FTM on 23.8.2005, was promoted as Peon with effect from 1.6.2011, was promoted as Part-time Hindi Teacher as per proceedings dated 12.7.2012 of the 5th respondent and posted in Aaron UP School, Pappinissery. It is stated that the initial appointment of the petitioner as Part-Time Hindi Teacher on 4.9.2006 at CMS High School, Arappatta and thereafter in a leave vacancy for the period from 16.10.2007 to 17.12.2007 at BEM UP School, Puthiyara were not approved till the date of filing the counter affidavit. It is stated that the subsequent appointment of the petitioner was also found to be bad as per the letter issued by the Government, and the petitioner was terminated on the appointment of Sri Danish Raphel, who was found entitled to be appointed during the said period. It is stated that the 5th respondent had appointed the petitioner based on a wrong declaration that there were no senior qualified claimants. It is contended that the Ext.P1 order was issued without notice to the 10th respondent and on the ground that the 6th respondent had relinquished her claim for promotion for the period from 31.5.2008 to 31.12.2010. Ext.R10(i), produced along with the counter affidavit, is the Revision petition filed against the Ext.P1 order on 23.04.2017.

7. During the staff fixation for the year 2018-19, the post of Part-Time Junior Hindi Teacher was made a Full-Time post. On 06.06.2019, the Corporate Manager issued Ext.P15 order promoting the petitioner as Full Time Hindi Teacher at Aaron UP School, Pappinissery, with effect from 15.07.2018. On 30.07.2019, this Court, by an interim order in the writ petition, directed the Corporate Manager to furnish a proposal to the concerned AEO regarding the transfer/appointment of the petitioner as Junior Hindi Teacher for the period from 24.7.2012. The AEO was also directed to pass orders regarding the approval. The Corporate Manager issued orders on 16.08.2019, appointing the petitioner in Aaron UP School with effect from 24.7.2012, from which date, the 10th respondent is stated to have been transferred to CMS UP School, Nedumkaruna. The AEO, Pappinissery issued Ext.P19 order on 29.08.2019, approving the petitioner’s appointment in Aaron UP School, with effect from 11.08.2016. The salary with effect from 11.08.2016 has been disbursed to the petitioner in the pre-revised scale. According to the 10th respondent, the Corporate Manager has submitted a wrong declaration that there are no claimants who will be affected by the appointment of the petitioner.

8. The 10th respondent challenged the interim order dated 30.07.2019, in W.A.675 of 2020, which was disposed of, permitting him to get impleaded in the writ petition as an additional respondent and contest the claim, and, by observing that any approval granted to the petitioner shall be treated as provisional and subject to the final result of the writ petition. He was thereafter impleaded as an additional respondent in this writ petition.

9. The petitioner submits that the appointment for the period from 04.06.2012 to 10.08.2016 is pending approval. It is submitted that only if the proposal submitted by the Manager, for shifting the lien of the petitioner from 04.06.2012 to 23.07.2012 to BEM UP School Anjarakandy, against the vacancy of the 6th respondent is approved, the lien of the 10th respondent is shifted to the leave vacancy for the period from 26.07.2012 to 04.01.2013, and he is reverted from 05.01.2013 to 27.07.2013, to the post of Peon, the petitioner’s appointment for the period from 4.6.2012 to 11.8.2016 can be approved. Pending the writ petition, the petitioner retired from service on superannuation on 31.03.2024. It is submitted that unless the appointment is approved, she will not be able to draw pay and allowances in the revised scale, and her pensionary benefits will also be affected adversely.

10. It is contended that even on merits, going by Exhibits P21 and P22 judgments and G.O (Ms.) 275/99/G.Edn dated 09.11.1999, and Note 1 to Rule 1, Chapter XIV A of KER, the 10th respondent cannot have any claim over and above the petitioner for the appointment to the regular vacancy which arose on 01.06.2009, since the right of the petitioner will arise only in the absence of a qualified teacher. It is submitted that on the date when the regular vacancy arose, the petitioner was the qualified teacher available.

WP(C) No. 30905 OF 2019

11. The writ petition has been filed seeking directions to the 1st respondent to consider and pass orders on Ext.P9 revision petition filed on 23.4.2017, after hearing the petitioners, respondents 2 and 3 and such other affected parties. The 1st petitioner has been impleaded as the additional 10th respondent in W.P.(C)No.16878 of 2017. The service details of the 1st petitioner have already been stated in previous paragraphs, while stating the facts of the connected case and are not hence repeated. The 2nd petitioner was appointed as FTM with effect from 12.11.2007, and the appointment was approved by the educational authority. The 2nd petitioner was later promoted as a peon and posted at Aaron UP School, Pappinissery, with effect from 01.08.2012. He was later promoted as Junior Hindi Teacher (PT) with effect from 29.07.2013 at BEM UP School, Kuthuparamba, in the vacancy of Smt. Leel Jain Manuel, who was transferred to BEM UP School, Bilathikulam. The above facts are evidenced by Exts.P4 to P6 orders. The petitioners claim that they are qualified for appointments as Hindi teachers from the date of their initial appointment as FTMs and are hence entitled to appointment as teachers as and when a vacancy arises by virtue of Note 1 of Rule 1 of Chapter XIV A KER.

12. The 3rd respondent in the writ petition is the petitioner in W.P.(C)No.16878 of 2017. Ext.P9 revision has been preferred against Ext.P8 order dated 16.11.2012, which has been produced as Ext.P1 in W.P.(C)No.16878 of 2017. According to the petitioners, the approval of the appointment of the petitioner in W.P.(C)No.16878 of 2017 will depend on the decision in Ext.P9 revision petition. The petitioners submit that they came to know of Ext.P8 order (GO(Rt) No.5454/2012/G.Edn dated 16.11.2012) only much after it was issued. The petitioners contend that the approval granted to the 3rd respondent on a regular basis from 01.06.2009 as a Hindi teacher was overlooking the claim of the 1st petitioner, who was qualified for promotion, that the finding in Ext. P8 order that Smt.Nisha Jannet had relinquished her claim was without hearing any of the affected parties, and that the finding entered by the 1st respondent is incorrect and illegal. The writ petition was filed originally, praying for directions to the 1st respondent to consider and pass orders on Ext.P9. Later, I.A.1 of 2023 has been filed seeking amendment of the writ petition by adding a prayer to quash Ext.P8 order.

13. The 1st respondent has filed a statement as directed by this Court. It is admitted that the 1st petitioner was not heard while issuing G.O(Rt.) No.5452/2012/G.Edn. Dated 16.01.2012. It is also admitted that the 1st petitioner had submitted a petition before the 1st respondent on 04.04.2017 stating that Ext.P8 order was issued without hearing him. It is stated that the said petition is still under consideration of the Government and that a detailed report had been called for from the Director of General Education, and on 01.04.2023, the Director of General Education submitted a report. It is stated that, as per the report, detailed clarifications are necessary to decide. It is further stated that by a letter dated 20.04.2023, the Director of General Education was directed to furnish a detailed report, but the same has not yet been received.

14. Regarding the facts, it is stated that the 1st petitioner was appointed as FTM on 23.08.2005, that he was promoted as Office Attendant with effect from 01.06.2011, and that he passed Hindi Bhooshan from Kerala Hindi Prachar Sabha in August 2008. It is stated that the 1st petitioner has claimed that he was entitled to appointment as a teacher as and when a vacancy arose, by virtue of Note 1 of Rule 1 of Chapter XIV A KER, that he was promoted and appointed as Part Time Lower Grade Hindi Teacher via proceedings dated 12.07.2012, and that he joined duty on 26.07.2012. It is stated that, in the petition filed on 23.04.2017, though he has claimed that he is eligible to be  promoted  as  Hindi  teacher  from  20.11.2008,  on  the acquisition of the necessary qualification, he did not raise any claim for the vacancy of 2009. It is stated that he had not raised any objections to the appointment of Smt.Suneetha Baby Daniel in the leave vacancy from 02.06.2008 to 31.05.2013, and that, as per the report of the DGE, objections were filed by Smt.Nisha Jannet, Smt. Sheema Jayakumar and Sri. Danish Raphel, Office Attendant, B.E.M. U.P. School. It is also stated that the DGE has reported that since Smt. Suneetha Baby Daniel was appointed to the leave vacancy from 02.06.2008, and since the 1st petitioner had qualified for the post of Part Time Hindi teacher only in August 2008, he could not have raised a claim for the post then.

15. Heard Sri R.K.Muralidharan, on behalf of the petitioners in W.P.(C)No.30905 of 2019 and for respondents 6 and 10 in W.P.(C)No.16878 of 2017, Smt. Rekha Vasudevan on behalf of the petitioner in W.P.(C)No.16878 of 2017 and for the 3rd respondent in W.P.(C)No.30905 of 2019, Sri Rajeev Jyothish George, Government Pleader for the official respondents/State and Sri V.A.Muhammed, for the 2nd respondent in W.P. (C)No.30905 of 2019 and for the 5th respondent in W.P. (C)No.16878 of 2017.

CONSIDERATION:-

16. Smt.Rekha Vasudevan, appearing for the petitioner in W.P.(C)No.16878 of 2017, argued that the revision petition filed by the 1st petitioner in W.P.(C)No.30905 of 2019 is not maintainable. Reliance is placed on the decision of a Full Bench of this Hon’ble Court in Anilkumar P. v State of Kerala & Ors. [2009 (3) KHC 596], wherein, the power of the Government to review an order passed under Rule 92 Chapter XIVA KER was considered and it was held that the Government has no power to entertain a review petition under Rule 93 against an order passed in revision under Rule 92 of Chapter XIVA KER. It is also contended that the claim of the petitioner in W.P.(C)No.30905 of 2019 is hit by delay and latches and the “Sit Back” Theory. Referring to the counter affidavit of the 4th respondent, it is submitted that the 1st petitioner had relinquished his claim for promotion to the post of Junior Hindi Teacher in the vacancy which arose on 01.06.2015. It is submitted that it is evident from Ext.P2 in W.P.(C)No.16878 of 2017, that he was aware of the issuance of Ext.P8 Government order in favour of the petitioner, and he did not raise any grievance at the said point of time. It is submitted that the grievance was raised only as per Ext.P9 revision produced in W.P.(C)No.30905 of 2019, pursuant to the proposal submitted by the Manager, referred to in the counter affidavit of the 4th respondent. The Counsel relies on the dictums of the Hon’ble Supreme Court in Bichitrananda Behera v State of Orissa [2023 KHC Online 6907], the Full Bench decision of this Court in Pavithran VKM & Anr. v State of Kerala & Ors. [2009 (4) KHC 4], and the decision in Rabindra Nath Bose & Ors. v. Union of India & Ors. [1970 KHC 379]. It is submitted that I.A.1 of 2023 filed for amendment of W.P.(C)No.30905 of 2019, in effect changes the nature of the writ petition and cannot be allowed. Reliance is placed on the judgments of the Hon’ble Supreme Court in Asian Hotels (North) Ltd. v Alok Kumar Lodha & Ors. [2022 KHC 6699], Revajeetu Builders and Developers vs Narayanaswamy and Sons & Ors. [2009 (10) SCC 84] and Chander Kanta Bansal v Rajinder Singh Anand (2008 (5) SCC 117].

17. From the facts and contentions narrated above, the following questions arise for consideration in these writ petitions.

                  (i)       Whether Ext.P8 order produced in W.P. (C)No.30905 of 2019 (Ext.P1 in W.P.(C)No. 16878 of 2017) is liable to be set aside?

                  (ii)      Whether a challenge to Ext.P8 can be raised 5 years after the issuance of the order.

                  (iii)     Whether there can be a direction to implement Ext.P8 produced in W.P. (C)No.30905 of 2019 overlooking the pendency of Ext.P9 petition filed by the 1st petitioner before the Government.

18. The counsel for the petitioner submits that the challenge to Ext.P8 is hit by delay and laches, and the sit back theory. In Anilkumar (supra), a Full Bench of this Court considered the question whether the Government has the power to review an order which has been passed under Rule 92 of Chapter XIVA KER. In the case before the Full Bench, the Government had entertained a review petition under Rule 93 of Chapter XIVA KER against an order which was passed in revision under Rule 92 of Chapter XIVA KER. The Court found that there is no power available to the Government to entertain a review petition under Rule 93 against an order passed in revision under Rule 92 of Chapter XIVA. The contention of the counsel for the petitioner is that Ext.P9, insofar as it seeks review of an order passed under Rule 92 Chapter XIVA, is not maintainable and hence no directions can be issued to the Government to consider Ext.P9.

19. In Bichitrananda Behera (supra), the Hon'ble Supreme Court considered the question of delay and laches in approaching the Court in the service matters. The Court held that normally, a writ petition raising a belated service-related claim will be rejected on the grounds of delay and laches and on the grounds of limitation if the remedy is sought by way of an application before the Administrative Tribunal. The Court held that one of the exceptions to the said Rule is a case relating to a continuing wrong. The Court held that relief can be granted in the case of continuing wrong if the continuing wrong creates a continuing source of injury. The Court also held that if the grievances in respect of any order related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. In the case before the Hon'ble Supreme Court, the challenge was made more than 12 years after the impugned order. In paragraph 21 of the judgment, the Hon'ble Supreme Court referred to the decisions of the Hon'ble Supreme Court in Union of India & Ors.v. Tarsem Singh & Anr. (2008 (8) SCC 648), Union of India V. N.Murugesan (2022 (2) SCC 25), Chairman, State Bank of India V. M.J. James (2022 (2) SCC 301), and other cases on the issue relating to delay and laches and acquiescence. There can be no quarrel regarding the proposition of law stated in the above decisions.  The Hon'ble Supreme Court had, in the said judgment, held that the question whether relief should be denied on the grounds of delay or laches would depend on the facts and circumstances of each case and what is the reasonable time cannot be put in a straitjacket formula or judicially codified in the form of days. In Pavithran (supra) a Full Bench of this Court held thus:

                  “9. 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 plaintiffs 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 v. Gurdev Singh (1992 (1) KLT SN 28 (C. No. 37) SC: (1991) 4 SCC 1). 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 sitback. 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.”

20. On facts, in the case before the Full Bench, an approved seniority list was sought to be challenged after the lapse of 10 years. In Raveendranath (supra), a Constitution Bench of the Hon'ble Supreme Court considered the question of delay in filing a petition under Article 32 against the Income Tax Service Seniority Rules, 1952. The Court held that the challenge to the 1952 Seniority Rules must fail on the ground of delay since a petition under Article 32 of the Constitution of India was filed about 15 years after the Rules were promulgated and given effect to and no reasonable explanation for the inordinate delay had also been given in the petition. In the case on hand, the petitioner in W.P.(C)No.30905 of 2019 cannot be non-suited on the ground of delay. It is an admitted case that while issuing Ext.P8 order, neither the petitioner nor any other affected parties had been heard. It is also an admitted case that the Manager was not present at the hearing. The only person other than the educational authorities who was heard was the petitioner in W.P. (C)No.16878 of 2017. It is also an admitted case that Ext.P8 will necessarily affect the rights of persons like the petitioner in W.P.(C)No.30905 of 2019. Hence, it is evident that Ext.P8 is bad since it has been issued in violation of the principles of natural justice. It is also an admitted fact that other litigations were pending regarding the appointment of the petitioner in W.P. (C)No.16878 of 2017, and the petitioner in W.P.(C)No.16878 of 2017 had sought for implementation of Ext.P8 only 5 years after the order was issued. The said writ petition was filed only on 16.05.2017, by which time, Ext.P9 petition had already been filed by the petitioner in W.P.(C)No.30905 of 2019, seeking reconsideration of the issue on the ground of violation of principles of natural justice. Hence, unlike the cases before the Supreme Court and the Full Benches of this Court, it is not a case where the petitioner in W.P.(C)No.30905 of 2019 seeks to unsettle a settled seniority position. The principles of the sit back theory will not apply in the case at hand.

21. Another contention raised was that IA No.1 of 2023, seeking to amend the writ petition, would in effect change the nature of the writ petition and cannot be allowed. Chander Kanta Bansal (supra) was a case arising from a civil proceeding, and the issue was regarding the amendment of pleadings. Relief was denied on the grounds of delay as well as on the ground that the condition of due diligence prescribed in the proviso to Rule 17 of Order VI was not satisfied. The provisions of the Code of Civil Procedure will not apply to cases arising under Article 226 of the Constitution of India, and at best, all that can be said is that the principles can be followed as a guideline. In Revajeetu Builders (supra), the Hon'ble Supreme Court was considering the effect of Rules 17 and 35 of Order VI regarding the grant or refusal of amendments. The Court said that though it has wide discretion in the matter of permitting amendment of pleadings, its powers must be exercised judiciously and with great care. The Court said that while deciding applications, the Courts must not refuse bonafide, legitimate, honest and necessary amendments. Asian Hotel (supra) was also a case arising from a civil proceeding, and the Court was considering the effect of Rule 17 of Order VI and Rule 10 of CPC for the amendment of the suit.

22. In the case at hand, the application for amendment was to raise a challenge to Ext.P8 while there was already an existing prayer for consideration of the Ext.P9 application seeking review of Ext.P8. As such, it cannot be stated to be a totally new contention, changing the nature of litigation. If the original prayer in the writ petition is allowed, it would necessarily have the effect of setting aside Ext.P8. As such, the contention that the amendment cannot be allowed is not sustainable.

23. As already observed, Ext.P8 was issued pursuant to the directions issued by this Court in the judgment in W.P. (C)No.9517 of 2012. This Court had only directed the revision petition filed by the petitioner in W.P.(C)No.16878 of 2017 to be considered and decided after hearing the petitioner and the Manager within a period of 5 months. The mere fact that this Court directed the hearing of the Manager and the petitioner does not mean that the affected parties should not be heard. A reading of Ext.P8 itself would show that several other persons will be affected by the order. The names of such Teachers are also mentioned in order. Even the name of the petitioner in W.P. (C)No.30905 of 2019 is mentioned. It is hence evident that the order was issued without notice to any of such persons who are likely to be affected by the decision. It is in the above circumstances that Ext.P9 has been preferred by the petitioner in W.P.(C)No.30905 of 2019. Ext.P9 would clearly show that not only the petitioner in W.P.(C)No.30905 of 2019 but also 3 other persons, who were appointed thereafter, would be affected by the directions contained in Ext.P8.

24. In the above circumstances, the petitioner in W.P. (C)No.30905 of 2019 is entitled to the relief prayed for. W.P. (C)No.30905 of 2019 is allowed in part. There will be a direction to the 1st  respondent to consider and pass orders on Ext.P9 revision petition filed in the said writ petition, on merits, after hearing the petitioners in W.P.(C)No.30905 of 2019, the petitioner in W.P.(C)No.16878 of 2017, respondents 5 to 10 in W.P.(C)No. 16878 of 2017 and such other interested persons at the earliest, at any rate, within two months from the date of receipt of a copy of this judgment. In view of the above directions, the prayer in W.P.(C)No.16878 of 2017 cannot be granted at present. The operation of Ext.P1 order produced in W.P.(C)No.16878 of 2017 (Ext.P8 in W.P.(C)No.30905 of 2019) shall be kept in abeyance till the disposal of Ext.P9 as directed above. However, if the revision petition Ext.P9 produced along with W.P.(C)No.30905 of 2019 is rejected by the 1st respondent, the respondents shall give effect to Ext.P1 order produced in W.P.(C)No.16878 of 2017 (Ext.P8 in W.P.(C)No.30905 of 2019).