IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 WP(C).No. 29545 of 2007(P) --------------------------------------- PETITIONER(S): -------------------------- P.GOPAKUMAR, JUNIOR SUPERINTENDENT, N.S.S. HINDU COLLEGE, CHANGANASSERY, KOTTAYAM DISTRICT. BY ADV. MR.SUNIL V.MOHAMMED RESPONDENT(S): ------------------------- 1. THE DIRECTOR OF COLLEGE EDUCATION, THIRUVANANTHAPURAM. 2. THE SECRETARY, NSS COLLEGE CENTRAL COMMITTEE, CHANGANASSERY - 2. 3. THE PRINCIPAL, NSS HINDU COLLEGE, CHANGANASSERY, KOTTAYAM DISTRICT. R1 BY GOVERNMENT PLEADER MR.DILIP MOHAN R2 BY ADV.MR.P.GOPAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.29545/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.H/5527/2006 DTD. 24.8.06 ISSUED BY THE 2ND RESPONDENT. P2:- COPY OF THE LETTER NO.E4/38004/2006/COLL. EDN. DTD. 24.3.07 OF THE IST RESPONDENT. P3:- COPY OF THE LETTER NO.E4/16203/07/COLL. IST 2ND RESPONDENT DTD. 31.5.07. P4:- COPY OF THE ORDER NO. E2/18229/2005/COLL. EDN DTD. 14.10.2005 OF THE IST RESPONDENT. P5:- COPY OF THE JUDGMENT DTD. 23.5.09 IN WPC. 17491/2009. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.29545/2007-P ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 19th day of November, 2009 J U D G M E N T The petitioner herein is working as Junior Superintendent under the second and third respondents' N.S.S. Hindu College, Changanassery. He commenced his service as Gasman (Technical) and was later appointed as Lower Division Clerk with effect from 13/09/1991. 2. He was promoted as Junior Superintendent from 17/09/2004 as per Ext.P1 order dated 24/08/2006 by the Management. Even though approval was granted, it is restricted to be effective from 14/10/2005, going by Ext.P2. The petitioner represented the matter before the first respondent but the claim of the petitioner was rejected by Ext.P3. The stand taken in Ext.P3 is that though the refixation of staff strength of non-teaching staff ordered vide office order dated 14/10/2005 was given effect from 17/09/2004 in general, postings in the newly created post cannot be approved with retrospective effect. The appointments/postings to the posts which were newly created vide order dated 14/10/2005 can be approved only with effect from that date or after. 3. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel W.P.(C). No.29545/2007 -:2:- appearing for respondent Nos.2 and 3. 4. Ext.P4 is the proceedings of the Director of Collegiate Education dated 14/10/2005 whereby the revised staff pattern of non-teaching staff has been approved. Clause (4) therein shows that the order will take effect from 17/09/2004. 5. The learned counsel for the petitioner relied upon the Judgment of this Court in W.P.(C).No.17491/2007 (Ext.P5) wherein a similar question was considered by this Court. The matter relates to the posts of Head Accountant as well as Junior Superintendent. In paragraph (6) of the said Judgment, the claim of the petitioner therein who was posted as Junior Superintendent with effect 17/09/2004 was considered and it was held thus:- “6. It is altogether a different situation as regards the petitioner's claim for promotion as Junior Superintendent with effect from 17/09/2004. In Ext.P6 staff fixation order, it is clearly stated that in N.S.S Training College, Ottappalam, a post of Junior Superintendent is sanctioned. It is specifically stated in Ext.P6 order that the said staff fixation order will take effect from 17/09/2004. Further From W.P.(C). No.29545/2007 -:3:- Ext.P12 it is clear that the appointment of two other similarly placed Junior Superintendents were approved with effect from 17/09/2004. The learned Government Pleader could not satisfy me as to why the same benefit could not be given to the petitioner. The learned Government Pleader could not also explain to me as to how if the post was sanctioned with effect from 14/10/2005, staff fixation was made with effect from 17/09/2004.” 6. Similar is the position herein also. Going by Ext.P1, the petitioner was promoted to the cadre of Junior Superintendent with effect from 17/09/2004. The stand taken herein by the respondents appears to be that Ext.P4 order is dated 14/10/2005 and therefore, approval can be given only from the said date. Even going by the prescription in Ext.P4, the said order is effective from 17/09/2004. If that be so, the petitioner cannot be denied the benefit. I respectfully agree with the findings rendered by the learned Single Judge in Ext.P5 and hence the petitioner will also be entitled for a similar benefit as the post herein was created on 17/09/2004. It is also clear from the statement annexed to Ext.P2 that promotion W.P.(C). No.29545/2007 -:4:- of persons against Sl.Nos.3 and 4 have been approved with effect from 17/09/2004. The post to which the petitioner is promoted is a newly created one as in the case of Sl.No.4. For that reason also the claim of the petitioner is justified. Therefore, the writ petition is allowed. 7. Exts.P2 and P3 to the extent to which the approval is granted to the petitioner only from 14/10/2005 are quashed. There will be a direction to the first respondent to pass a fresh order granting approval of promotion of the petitioner with effect from the date of promotion as Junior Superintendent i.e. 17/09/2004. He will be entitled for the monetary benefits flowing therefrom and appropriate action will be taken to disburse the same within a period of two months. No costs. (T.R. Ramachandran Nair, Judge.) ms