IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 WP(C).No. 30400 of 2010(Y) PETITIONER: --------------- C.K.THOMAS, AGED 46 YEARS, S/O.C.J.KOSHY, LECTURER IN PHYSICAL EDUCATION, GOVERNMENT COLLEGE, THRISSUR-680014, RESIDING AT SREE KRIPA, KUTTANALLUR, THRISSUR-680014. BY ADV. SRI.MATHEW KURIAKOSE RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION (F) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM-695001. ADDITIONAL RESPONDENTS IMPLEADED: 3. M.K.SUNIL, LECTURER IN PHYSICAL EDUCATION, GOVERNMENT COLLEGE, MALAPPURAM - 676 505. 4. RAJU.A., LECTURER IN PHYSICAL EDUCATION, MAHARAJAS COLLEGE, ERNAKULAM - 682 011. 5. C.D.DILEEP, LECTURER IN PHYSICAL EDUCATION, MEDICAL COLLEGE, THRISSUR - 680 014. 6. K.MANIKANTAN NAIR, LECTURER IN PHYSICAL EDUCATION, MEDICAL COLLEGE, TRIVANDRUM - 695 001. 7. M.UNNIKRISHNAN, LECTURER IN PHYSICAL EDUCATION, GOVT. VICTORIA COLLEGE, PALAKKAD - 678 001. 8. P.VIMAL KUMAR, LECTURER IN PHYSICAL EDUCATION, GOVT. ENGINEERING COLLEGE, BARTON HILL, TRIVANDRUM - 695 001. ADDITIONAL RESPONDENTS 3 TO 8 IMPLEADED VIDE ORDER DATED 25.11.2010 IN I.A.NO.14396 OF 2010. GOVERNMENT PLEADER SRI.A.J.VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE JUDGMENT DATED 10.12.1992 IN O.P.NO.10470/1991 OF THIS COURT. EXT.P2 TRUE COPY OF THE JUDGMENT DATED 19.12.2002 IN O.P.NO.3674 OF 1994 OF THIS COURT. EXT.P2(a) TRUE COPY OF THE COVERING LETTER FORWARDING EXT.P2 JUDGMENT. EXT.P3 TRUE COPY OF PROCEEDINGS NO.B1/15937/94/COLL.EDN. DATED 28.3.2003 ISSUED BY THE SECOND RESPONDENT IN FAVOUR OF THE PETITIONER. EXT.P4 TRUE COPY OF THE PROCEEDINGS DATED 16.10.2004 ISSUED IN FAVOUR OF THE PETITIONER. EXT.P5 TRUE COPY OF THE REPRESENTATION DATED 21.6.2007 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT. EXT.P5(a) TRUE COPY OF THE COVERING LETTER DATED 25.6.2007 SENDING EXT.P5 REPRESENTATION TO THE 1ST RESPONDENT. EXT.P6 TRUE COPY OF THE LETTER NO.B1/29180/07/CED DATED 22.10.2007 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXT.P7 TRUE COPY OF THE EXPLANATION DATED 7.11.2007 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT. EXT.P8 TRUE COPY OF THE COUNTER AFFIDAVIT IN W.P.(C) NO.19210/2004 FILED BY THE GOVERNMENT. EXT.P9 TRUE COPY OF THE REPRESENTATION DATED 3.8.2010 SUBMITTED BY THE PETITIONER THROUGH PROPER CHANNEL. EXT.P10 TRUE COPY OF THE COVERING LETTER DATED 3.8.2010 FORWARDING EXT.P9 REPRESENTATION BY THE PRINCIPAL, GOVT. COLLEGE, THRISSUR TO THE SECOND RESPONDENT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 30400 OF 2010 Y ------------------------------------------------------ Dated this the 25th day of November, 2010 JUDGMENT The petitioner is a Lecturer in Physical Education. He was granted notional promotion as Lecturer in Physical Education with effect from 12.6.1997, as per Ext.P4 order passed by the Director of Collegiate Education (Order NO.B1/15317/08/Coll.Edn. dated 16.10.2004). It is stated that notional promotion was given on the basis of Ext.P2 judgment in O.P.Nos.3674 of 1994 and 4177 of 1994. The grievance put forward in the Writ Petitions covered by Ext.P2 judgment was that though vacancies were available, the amendment brought to the Special Rules was subsequently being insisted to be applied. In Ext.P2 judgment, it was held thus: “2. The main contention of the petitioners is that prior to the promulgation of the Special Rules, there existed vacancies and had those vacancies been filled up, petitioners would have been appointed. Sri.Beno y Thomas, learned counsel for the petitioners in O.P.3674/1994 has produced Exts.P7 to P9 documents along with C.M.P.64874/2002 for substantiating his W.P.(C) NO.30400 OF 2010 :: 2 :: contention that there existed vacancies prior to the promulgation of Ext.P6 new Special Rules. Therefore, it is submitted that if the Director of Collegiate Education takes steps to identify the vacancies existed prior to the promulgation of Ext.P6 Special Rules, namely, 21.3.1994, the petitioners would get relief. Therefore, I dispose of the cases without expressing any opinion as to the merits of the case, but clarifying that in case there existed vacancies prior to 21.3.1994, the case of the petitioners shall be considered in the light of the un- amended rule and they shall be given the promotion. Appropriate orders with notice to the petitioners and other eligible persons shall be passed within a period of three months from the date of production of a copy of this judgment. It will be open to the petitioners to take up their contentions regarding the qualification before the Director of Collegiate Education. Needless to say in case it is found that there existed vacancies prior to 21.3.1994 and in case any petitioner is appointed against any vacancy thus identified by the Director of Collegiate Education, they will be entitled to the consequential benefits from the date of occurrence of vacancies.” 2. As per Ext.P3 order, notional promotion was granted with effect from 25.4.1997. That was subsequently modified as W.P.(C) NO.30400 OF 2010 :: 3 :: 12.6.1997 in Ext.P4 order. The petitioner submitted Ext.P5 representation to the first respondent praying that notional promotion be granted with effect from an anterior date in compliance with Ext.P2 judgment. In respect of Ext.P5 representation, clarification was sought for as per Ext.P6. The petitioner submitted Ext.P7 clarification. Later, the petitioner submitted Ext.P9 detailed representation dated 3.8.2010, wherein request made by the petitioner was to give notional promotion with effect from a date prior to 21.3.1994. 3. The reliefs prayed for in the Writ Petition are the following: “i. issue a writ in the nature of mandamus, or any other appropriate writ, order or direction, commanding the 1st respondent to consider and pass orders on Ext.P9 representation, within a stipulated time; ii. writ in the nature of mandamus commanding the second respondent to assign date of promotion as Lecturer in Physical Education to the petitioner as 26.11.1992 or any date prior to 21.3.1994 against the then existing vacancies with revision of pay W.P.(C) NO.30400 OF 2010 :: 4 :: and such other consequential benefits; iii. declare that the petitioner is entitled to be assigned with date of promotion as lecturer in Physical Education as 26.11.1992 or any date prior to 21.3.1994 and further entitled for consequential benefits viz. revision of pay arrears of pay and allowances, etc.; iv. issue such other appropriate writ, order or direction which this Hon'ble Court may deem fit in the circumstances of the case; v. award costs of these proceedings.” 4. Learned counsel for the petitioner submitted that, for the time being, it is sufficient if relief (i) is granted. In the facts and circumstances of the case, the Writ Petition is disposed of as follows: a) The Director of Collegiate Education, Thiruvananthapuram shall consider and dispose of Ext.P9 representation dated 3.8.2010 submitted by the petitioner, as expeditiously as possible and, at any rate, within two months from the date of W.P.(C) NO.30400 OF 2010 :: 5 :: receipt of a copy of the judgment, after affording an opportunity of being heard to the petitioner. b) The petitioner shall produce a copy of the Writ Petition and certified copy of the judgment before the Director of Collegiate Education, Thiruvananthapuram. (K.T.SANKARAN) Judge ahz/