IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 WP(C).No. 26681 of 2006(B) -------------------------------- PETITIONER: -------------- P.R.RADHAKRISHNAN, AMBADI, ATM NAGAR, NALLAPPILLY P.O., CHITTUR (VIA), PALAKKAD, NOW WORKING AS SR. SUPERINTENDENT, NSS COLLEGE, NEMMARA. BY MR.T.P.DEYANANTHAN, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION 'D' DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM-33. 3. NSS COLLEGES CENTRAL COMMITTEE, REPRESENTED BY ITS SECRETARY. BY MR.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE FOR R3 MR.P.GOPAL, ADVOCATE, FOR R3. MR. T.T. MUHAMOOD, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26681/2006 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF CIRCULAR No.ESTT.E1-56284/01/COLL.EDN. DTD. 5.12.01 SIGNED BY R2. EXT. P2 : COPY OF G.O.(MS) 119/04/H.Edn. DT. 17.9.04. EXT. P3 : COPY OF ORDER PROMOTING THE PETITIONER AS SR. SUPDT. ISSUED BY THE MANAGEMENT DT. 26.5.05. EXT. P4 : COPY OF STAFF FIXATION ORDER No.E4-45933/05/COLL. EDN. DT. 20.1.06. EXT. P5 : COPY OF ORDER No.E4-31533/05/COLL. EDN. DT. 19.7.06. EXT. P6 : COPY OF REVISED ORDER No.H-5528/05 DT. 24.8.05 ISSUED BY R3. EXT. P7 : COPY OF JUDGMENT IN W.P.(C) No.28955/04 (V) DT. 3.4.06. EXT. P8 : COPY OF G.O.(Rt) No.1161/2005 H.Edn. DTD. 4.7.04. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.26681 OF 2006 --------------------------------------- Dated this the 23rd day of June, 2009. J U D G M E N T The issue that is raised by the petitioner herein is covered in his favour by Exhibit P7 judgment rendered by this Court in W.P.(C)No.28955/2004. The circumstances leading to the dispute are the following: 2. The petitioner is presently working as Senior Superintendent in NSS College, Nemmara coming under the Calicut University. The petitioner was promoted as per Exhibit P3 order dated 26.05.2005 to the said post in the retirement vacancy which arose on 30.04.2004. By Exhibit P1, the Director of Collegiate Education had banned appointment and promotion in respect of non-teaching staff of private colleges pending completion of work study. Exhibit P2 is the revised staff pattern adopted by the Government in respect of non-teaching staff of Private Arts & Science Colleges etc. and the ban was lifted W.P.(C) No.26681/2006 2 accordingly. Exhibit P4 is the revised staff pattern as far as the Nemmara NSS College under the 3rd respondent is concerned which was issued on 20.01.2006, with effect from 17.09.2004. Exhibit P5 is the order granting approval of the promotion with effect from 03.06.2005. By Exhibit P6, revised proceedings were issued by the management changing the date of effect of promotion to 17.09.2004 instead of 03.06.2005. 3. The petitioner has approached this Court contending for the position that he is entitled for promotion as Senior Superintendent with effect from 01.06.2004 and to direct the 2nd respondent to rectify the anomaly in Exhibit P5 order in conformity with Exhibit P4. It is pointed out by the petitioner that the vacancy arose on 01.06.2004 and therefore, he is entitled to be promoted with effect from that date. 4. The 2nd respondent in the counter affidavit submits that there was a temporary ban of promotion as per Exhibit P1 which was lifted only by a Government Order, Exhibit P2 dated 17.09.2004 and the revised staff pattern was operative from the said date. It is submitted that the vacancies which arose W.P.(C) No.26681/2006 3 between 01.12.2001 and 17.09.2004 could not be filled up by promotion as the Government had issued temporary ban of promotion during the said period. Therefore, it is contended that promotions are being approved only from 17.09.2004. 5. The 3rd respondent has filed a counter affidavit stating that the post of Senior Superintendent in the college became vacant consequent on the retirement of Sri.A.R.Krishnankutty who attained the age of superannuation on 30.04.2004. The management of the college did not fill up the said post in view of the ban on appointments imposed by the Government. It is contended that on the basis of Exhibit P4, the management issued Exhibit P6. 6. The petitioner has filed a reply affidavit by producing Exhibit P7 judgment rendered by this Court in similar circumstances. Exhibit P1 order produced in this writ petition was produced as Exhibit P12 therein, going by the appendix to Exhibit P7 judgment. The validity of the ban order was under challenge in the said writ petition. It was held by this Court in paragraph 5 thus: W.P.(C) No.26681/2006 4 “............After the statutory ban under the Pre- degree Abolition Act was lifted, though the official respondents tried to introduce a ban against appointments, the same was held to be illegal and unenforcible, by Ext.P9 judgment of this Court. So, when the petitioners were promoted, there was no statutory ban against appointment. Therefore, the circular issued by the Director of Collegiate Education, affecting the rights of the petitioners for promotion or the managements to make appointments, cannot be enforced. But, once the Pre-degree course is abolished, there will be considerable reduction in the students strength. So, even if the pre-revised norms are followed, the staff strength have to be fixed notionally, having regard to the students strength available as per the rolls, when the petitioners were promoted in 2003. But, since the petitioners were promoted to the posts as per the pre-revised staff pattern, their promotions are liable to be approved if there are vacancies as per the strength of students available in 2003. It is declared so.......” 7. Going by the revised staff pattern, one post of Senior Superintendent has been sanctioned. This is evident from Exhibit P4. Column 3 therein shows that as per the pre-revised pattern also, one post was existing. Therefore, the dictum laid W.P.(C) No.26681/2006 5 down in Exhibit P7 judgment will apply herein also. The petitioner could have been promoted when the vacancy arose. Therefore, going by the reasoning in Exhibit P7 judgment, the respondents cannot rely upon the ban order namely, Exhibit P1, since the same was held illegal by this Court in Exhibit P7 and in the earlier judgment in O.P.No.20248/2002. There cannot be any dispute that the petitioner was entitled for promotion on the date on which the vacancy arose. Herein, going by the pleadings, the vacancy arose on the retirement of Sri.A.R.Krishnankutty on 30.04.2004. Therefore, the petitioner was eligible for promotion on that date. It is pointed out that going by the scheme, the vacancy could be filled up on the date of re-opening, that is on 01.06.2004. Petitioner is therefore entitled to be granted the promotion with effect from the said date. In that view of the matter, the 3rd respondent will forward a revised proposal by promoting the petitioner with effect from 01.06.2004 within a period of one month from the date of receipt of a copy of this judgment. The 2nd respondent will pass appropriate orders approving the appointment of the petitioner W.P.(C) No.26681/2006 6 with effect from 01.06.2004 expeditiously, at any rate, within a period of six weeks of the date of receipt of the revised proposal. The petitioner will not be entitled for payment of arrears with effect from that date since the actual order promoting the petitioner was issued only by Exhibit P3. Learned counsel for the petitioner submitted that already petitioner has been released arrears with effect from 17.09.2004. If that be so, the same will not be disturbed. This writ petition is allowed as above. T.R. RAMACHANDRAN NAIR JUDGE smp