IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 WP(C).No. 4663 of 2006(E) ------------------------ PETITIONER : -------------------- N. GANGADHARAN, PRINCIPAL, G.H.S.S. CHATHANOOR, PALGHAT DISTRICT. BY ADV. SRI. MVS. NAMBOOTHIRY RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, D.P.I'S OFFICE, TRIVANDRUM. 3. THE DY.DIRECTOR OF EDUCATION, PALGHAT. R1 TO R3 BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 4663 of 2006(E) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PROCEEDINGS ISSUED BY THE D.P.I. DATED 14.5.04. EXT.P2 : COPY OF THE DETAILED REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT ON 3-8-2005. EXT.P3 : COPY OF THE ORDER IN R.P. 827/05 IN W.P. 28900 OF 2005 DTD 4.11.05. EXT.P4 : COPY OF G.O.(RT) NO. 320/06/G.EDN DT. 19-1-2006. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.4663 OF 2006 ---------------------------------------------- Dated this the 8th day of July, 2011 JUDGMENT The petitioner joined service as a High School Assistant in the General Education Department of the Government of Kerala on 22.2.1978. When a seniority list of HSAs was prepared, the petitioner was left out on account of a mistake committed by the Departmental authorities. On representations filed by the petitioner, by Ext.P1, the petitioner was included in the list as serial No.120A in the rank list. But, by that time several High School Assistants, who were junior to the petitioner were promoted as Headmasters. Therefore, the petitioner has filed Ext.P2 representation before the 1st respondent. This Court by Ext.P3 order in R.P.No.827/2005 in W.P.(c)No.28900/2005 directed the 1st respondent to pass orders on Ext.P2 representation. Pursuant to the same, Ext.P4 order was passed rejecting the claim of the petitioner. That is under challenge in this writ petition. W.P.(C)No.4663/06 2 2. The petitioner contends that his claim has been rejected only on the ground that the petitioner had not submitted his confidential report for the last three years up to 31.12.2003 in time and therefore, the Departmental Promotion Committee could not consider his name for promotion. According to the petitioner, it is not the duty of the petitioner to forward the confidential report to the Departmental Promotion Committee and it is the duty of the Head of the Department. He further points out that he has specifically averred in the writ petition, in paragraph 5 of the writ petition that the records in the office of the Deputy Director would clearly prove that the confidential report of the petitioner was forwarded by the Principal of GHSS, Vadanakkurissi by letter No.15/03-04 dated 10.2.2004 and therefore, the finding in Ext.P4 is clearly erroneous. 3. The 1st respondent has filed a counter affidavit wherein a new stand is taken that the petitioner had not forwarded his self appraisal in time for preparing the confidential reports. 4. I have considered the rival contentions in detail. The relevant portion of Ext.P4 reads thus: W.P.(C)No.4663/06 3 “ The holders of Rank Nos. upto and including Rank No.939(78) in the seniority list of HSA appointed/recruited during the period from 1-1-78 to 31-12-78, were promoted to the cadre of HM/AEO on Rs.6675-10550 as per order No.D5/34440/04/DPI dt.15-06-04. Sri. N. Gangadharan had not submitted his confidential report for the last 3 years upto 31-12-03 in time. Hence the Departmental Promotion Committee in its meetings held on 11-06-04 had not considered his name. The name of Sri. N. Gangadharan (Rank No.120A(78) could not be included in the order dt. 15-06-04 since his name had not been included by the DPC in its meeting held on 11-06- 04. On examination of the connected files and details, it is revealed that the Confidential Report in respect of the petitioner has been received by the DPI only in January 2005. The Rank and Seniority of Sri. N. Gangadharan was fixed as 120 (A) as per order No.SYI/7573/04 dated 14-5-04 and accordingly his name was considered by the DPC held on 25-2-05 and assigned Sl.No.1 in the select list. The petitioner was promoted to the cadre of HM/AEO as per order dated, 16-3-05 of DPI. The request of the petitioner to promote him with retrospective effect from 27-5-04, ie date on which his juniors were promoted to the cadre of HM cannot be admitted since he had not submitted his Confidential Reports in time. Hence the request of the petitioner for retrospective promotion is rejected. The judgment read as first paper above is complied with accordingly. (underlining supplied) As rightly pointed out by the petitioner, it is not the duty of the petitioner to prepare and forward confidential report of the petitioner to the Departmental Promotion Committee. It is the duty of the Head of the Department where the petitioner is W.P.(C)No.4663/06 4 working. The only finding in Ext.P4 is that the confidential report in respect of the petitioner has been received by the Departmental Promotion Committee only in January 2005. The petitioner cannot be found fault with for the same. Of course, in the counter affidavit, the respondents would take a stand that the petitioner did not forward self appraisal for preparation of the confidential records. But, the 1st respondent has not chosen to controvert the specific averment of the petitioner in paragraph 5 of the writ petition, which has been narrated above. Therefore, that contention also does not find favour with me. The result of the above discussion is that it is evident that the petitioner was illegally and unjustly excluded by the Departmental Promotion Committee from consideration for promotion. At this point of time, there is no point in directing convening of adhoc Departmental Promotion Committee for consideration of the claim of the petitioner since the petitioner has already been promoted subsequently, and he has retired from service also. Admittedly, as is revealed from Ext.P4, the rank upto 939 in the seniority list of HSAs have been promoted. That means, the immediate junior to the petitioner namely rank No.121 has already been promoted. W.P.(C)No.4663/06 5 Therefore, I hold that the petitioner is entitled to the date of promotion as Headmaster with effect from the date when his immediate junior namely rank No.121 in the seniority list of HSAs has been promoted, since he has been unjustly overlooked for promotion. The petitioner would also be entitled to monetary benefits arising therefrom. Accordingly, the respondents are directed to see that the petitioner is given date of promotion as Headmaster with effect from the date when his immediate junior has been promoted as Headmaster with all monetary benefits arising therefrom. Orders in this regard shall be passed and arrears disbursed to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Consequently his retirement benefits shall also be revised and arrears disbursed within the above said period. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.4663/06 6 W.P.(C)No.4663/06 7