IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 WP(C).No. 31547 of 2006(E) --------------------------------- PETITIONER(S): ------------------- JACOB JOHN, UPPER DIVISION CLERK (ON LEAVE), KERALA STATE INSTITUTE OF LANGUAGES, NALANDA, THIRUVANANTHAPURAM. RESIDING AT "UNNI IYPUSSERIL", MP-6/466, KAROTTUKONAM, MALAYINKEEZHU. BY SRI.KRB.KAIMAL, SENIOR ADVOCATE ADVS.SRI.M.SREEKUMAR SRI.B.UNNIKRISHNA KAIMAL SRI.GOPALAKRISHNAN NAIR RESPONDENT(S): --------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF CULTURAL AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA STATE INSTITUTE OF LANGUAGES, REPRESENTD BY ITS DIRECTOR, NALANDA, THIRUVANANTHAPURAM. 3. THE DIRECTOR, KERALA STATE INSTITUTE OF LANGUAGES, NALANDA, THIRUVANANTHAPURAM. R1 BY GOVT. PLEADER SRI.NOBLE MATHEW R2 & 3 BY ADVS. SRI.P.K.VIJAYAMOHANAN SRI.NISHIL.P.S. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2011, ALONG WITH WPC NO. 12079 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 31547/2006 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER NO.E1-421/96/SIL DATED 13/02/1996. P2: COPY OF THE ORDER NO.E1-3393/2001/SIL DATED 30/11/2001. P3: COPY OF THE ORDER NO.E1-917/1996/SIL DATED 27/02/2003. P4: COPY OF THE ORDER NO.E1-917/2004/SIL DATED 30/06/2004. P5: COPY OF THE ORDER NO.E1-917/2004/SIL DATED 06/12/2004. P6: COPY OF THE ORDER NO.E1-917/2004/SIL DATED 13/12/2004. P7: COPY OF THE LETTER NO.6761/C1/2004/CAD DATED 16/12/2004. P8: COPY OF THE LETTER NO.6761/C1/2004/CAD DATED 04/01/2005. P9: COPY OF THE ORDER NO.E1-917/2004/SIL DATED 10/01/2005. P10: COPY OF THE ORDER NO.6761/C1/2004/CAD DATED 05/12/2005. P11: COPY OF THE ORDER NO.E1-917/2004/SIL DATED 24/01/2006. P12: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 20/02/2006. P13: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 27/02/2006. P14: COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 16/03/2006. P15: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 27/07/2006. RESPONDENT'S EXHIBITS: R2(a):COPY OF THE GOVERNMENT ORDER NO.39/2007/CAD DATED 26/03/2007 /TRUE COPY/ P.A. TO JUDGE. svs S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) Nos.31547/06 & 12079 of 2007 ---------------------------------------------- Dated this the 11th day of November, 2011 JUDGMENT The petitioners in both the writ petitions are one and the same. The issues involved in both the writ petitions are intrinsically interconnected also. Therefore, these writ petitions are disposed of by this common judgment. 2. The petitioner entered the service of the Kerala State Institute of Languages, which is a Society registered under the Societies Registration Act, as a driver on 13.2.1996. In the exigencies of service, he had been asked to work as a Lower Division Clerk in the Institute on working arrangement. As evident from Exts.P1 and P2, recognising his service on working arrangement as a Lower Division Clerk, the governing body of the Kerala State Institute of Languages, by Ext.P3 order dated 27.2.2003 regularised the services of the petitioner as a Lower Division Clerk from 17.8.2001. By Ext.P4 dated 30.6.2004, the probation of the petitioner was declared in the post of Lower W.P.(C)No.31547/06 & con.case 2 Division Clerk. Subsequently, by Ext.P5 order dated 6.12.2004, the Director of the Institute promoted the petitioner to the post of Upper Division Clerk. By Ext.P6 dated 13.12.2004, the petitioner’s pay was fixed in the post of Upper Division Clerk. But, the petitioner was not paid salary as so fixed and he was continued to be paid the salary of Lower Division Clerk. Subsequently, by Ext.P9, the Director of the Institute cancelled the promotion of the petitioner as Upper Division Clerk. The petitioner challenged the same before the Government and the Government by Ext.P10 order, set aside the order cancelling the promotion given to the petitioner. Pursuant to Ext.P10 order, by Ext.P11 order, the Director restored the petitioner to the post of Upper Division Clerk. But, the petitioner was still not paid the salary attached to the post of Upper Division Clerk. Although the petitioner filed Ext.P12 to Ext.P15 revision, nothing was done about it. It is under the above circumstances, the petitioner had filed W.P. (C) No.31547/2006 seeking the following relief: “(i) to issue a writ of mandamus or any other writ, order or direction commanding the 3rd respondent to disburse the salary in the scale of W.P.(C)No.31547/06 & con.case 3 UDC and arrears of salary including annual increment to the petitioner forthwith.” In that writ petition, respondents 2 and 3 filed a counter affidavit stating that by Ext.R2(a) order, the Government themselves have cancelled the appointment of the petitioner to the post of Lower Division Clerk itself, as also the promotion given to him. In view of that contention, the petitioner has filed W.P.(C) No. 12079/2007 challenging the said order, which is produced as Ext.P12 in that writ petition. In W.P.(C) NO.12079/2007, the petitioner seeks the following relief: “(i) to call for the records leading to Ext.P12 and to quash the same by issuing a writ of certiorari.” 3. The contention of the petitioner is two fold. First is that the cancellation of the petitioner’s appointment as Lower Division Clerk and cancellation of his promotion as Upper Division Clerk by the Government was without affording an opportunity of being heard to the petitioner, which is against the basic principles of natural justice. The second is that the 2nd respondent being an autonomous body registered under the Socities Registration Act, the Government has no power to W.P.(C)No.31547/06 & con.case 4 cancel the regularization of the petitioner as Lower Division Clerk and his promotion as Upper Division Clerk. 4. The Government has not filed any counter affidavit in either of the two writ petitions. The Kerala State Institute of Languages takes the stand that they have only complied with the directions of the Government in the matter. 5. I have considered the rival contentions in detail. I am inclined to quash Ext.P12 order in W.P.(C) No. 31547/06 on both grounds raised by the petitioner. Admittedly, Ext.P12 order has been passed on the basis of a report from the Director of the Institute. Ext.P12 does not show that the petitioner has been afforded an opportunity of being heard before passing that order. The petitioner’s specific contention in this regard has not been controverted by the Government by filing a counter affidavit. That amounts to violation of principles of natural justice. Secondly, admittedly, the Kerala State Language Institute is an autonomous body registered under the Socities Registration Act. Perhaps the Government may be empowered to interfere with the policy decision of the Institute if the Rules and Regulations of the Institute provides W.P.(C)No.31547/06 & con.case 5 for the same. But, insofar as the regularization of an employee on working arrangement as Lower Division Clerk is not a policy matter, I am of opinion that the Government could not have validly interfered with the orders of the governing body of the Institute. In any event, it is totally unjust to cancel the appointment made years ago. From Ext.P1 it is clear that the petitioner was working as Lower Division Clerk with effect from 13.2.1996. He was regualarised in service as a Lower Division Clerk as early as on 27.2.2003 with effect from 17.8.2001. He was promoted as Upper Division Clerk on 6.12.2004. Nobody has any case that the petitioner has exerted undue influence in the matter before either the Director or the governing body. In the above circumstances, I find it totally unjust to deprive of the petitioner the benefits granted to him as early as on 27.2.2003 and 6.12.2004. Accordingly, Ext.P12 order in W.P.(C) No.12079/07 is quashed. It is declared that the petitioner has been validly appointed as Lower Division Clerk and as Upper Division Clerk by Exts.P3 and P5 orders in W.P.(C) No.12079/07. Consequently, there would be a direction to respondents 2 and W.P.(C)No.31547/06 & con.case 6 3 to restore the petitioner to the post of Upper Division Clerk as per Ext.P5 and to pay him the salary and other benefits in the post of Upper Division Clerk with effect from 17.1.2004. Arrears shall be paid as expeditiously as possible at any rate, within two months from the date of receipt of a copy of this judgment. The writ petitions are allowed as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.31547/06 & con.case 7 W.P.(C)No.31547/06 & con.case 8