IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 WP(C).No. 7442 of 2008(J) ------------------------------------- PETITIONER(S): ----------------------- JUBILEE RAJITHA.K.P., HIGHER SECONDARY SCHOOL TEACHER (ENGLISH), GOVERNMENT HIGHER SECONDARY SCHOOL, KUMARAPURAM, PALAKKAD DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTI NAGAR, TRIVANDRUM. 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, TRIVANDRUM. R1 & R2 BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR R3 BY ADV. SRI.P.C.SASIDHARAN, SC FOR KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.7442/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ADVICE DATED 16/10/2004 ISSUED BY THE PUBLIC SERVICE COMMISSION TO PETITIONER. P2 COPY OF THE APPOINTMENT ORDER DATED 10/1/2005 ISSUED TO PETITIONER AS HIGHER SECONDARY SCHOOL TEACHER. P3 COPY OF THE COMMUNICATION DATED 25/6/2005 ISSUEDBY THE PUBLIC SERVICE COMMISSION. P4 COPY OF THE PETITIONER'S REPLY TO EXHIBIT P3 P5 COPY OF THE ORDER DATED 19/7/2005 OF THE PUBLIC SERVICE COMMISSION. P6 COPY OF THE SECOND ADVICE ISSUEDTO THE PETITIONER ON 12/7/2005. P7 COPY OF THE JUDGMENT IN WP(C)NO.20914/05 DATED 22/8/2005. P8 COPY OF THE JUDGMENT IN WP(C)O.32074/05 DATED 17/11/2005. P9 COPY OF THE ORDER OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION DATED 15/11/2005. P10 COPY OF THE CERTIFICATE DATED 3/1/2005 ISSUED BY THE PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, PATTAMBI. P11 COPY OF THE ORDER DATED 23/11/2005 OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION APPOINTING THE PETITIONER AS HSST FOR THE 2ND TIME. P12 COPY OF THE JUDGMENT IN CONTEMPT OF COURT CASE NO.1603/2006 DATED 26/3/2007. P13 COPY OF THE ORDER DATED 27/9/2007 ISSUED BY THE DIRECTOR OF HIGHER SECONDARY EDUCATION. P14 COPY OF THE ORDER DATED IN I.A.NO.325/07 IN CONTEMPT CASE NO.1603/06 DATED 5/7/2007. RESPONDENT'S EXHIBITS: R2(A) COPY OF THE LR.NO.R1D (1)21704/04/GW, DATED 6/6/2005 ISSUED BY P.S.C. R2(B) COPY OF THE LR.NO.RID(1)21704/04/GW, DATED 19/7/05 ISSUED BY P.S.C. R2(C) COPY OF THE ORDER NO.AD.B4/100354/HSE/05/PSC, DATED 23/11/2005 ISSUED BY THE DIRECTOR OF HIGHER SECONDARY EDUCATION R2(D) COPY OF THE ADVICE MEMO NO.RID(1) 21704/04/GW, DATED 12/7/2005 ISSUED BY P.S.C. R2(E) COPY OF THE LR.NO.9492/UI/07/G.EDN, DATED 8/8/07 ISSUED BY 1ST RESPONDENT. R2(F) COPY OF THE G.O.(RT)NO.1807/06/G.EDN, DATED 4/5/06 ISSUED BY THE 1ST RESPONDENT. /TRUE COPY/ sts P.A.TO.JUDGE S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.7442 OF 2008 --------------------------------------- Dated this the 30th day of March, 2011 JUDGMENT The petitioner was advised by the Public Service Commission for appointment to the post of Higher Secondary School Teacher (English) and she joined service pursuant to the same on 31.1.2005. Subsequently, the Public Service Commission initiated steps to terminate the services of the petitioner and others on the ground that on account of orders of this Court, some others had to be included above the petitioner and others in the rank list and they had to be given advice and appointment in the vacancies to which the petitioner and others were advised and appointed. Later on, when the turn of the petitioner and others came, as per the revised rank list, they were advised. But, in the meanwhile, steps were initiated to terminate the services of the petitioner and others. Some of them obtained Ext.P7 judgment from this Court, wherein this Court directed to issue orders appointing them afresh in the post as per the subsequent advice. In view of the fresh advice, it was W.P.(C)No.7442/08 2 held that the termination of service need not be effected. Similar judgment was passed in the case of the petitioner in Ext.P8 judgment in W.P.(C) No.32074/05. But, in the meanwhile by Ext.P9 order, the services of the petitioner had already been terminated. The petitioner has got a case that the order was pre-dated. The petitioner has also got a case that the petitioner got Ext.P9 order after she rejoined duty in accordance with the second advice. But for the purpose of this writ petition it is not necessary to consider those allegations on merits. Subsequently, the petitioner requested to regularise the period from 11.7.2005, when her services were terminated till 23.11.2005, when she rejoined duty in accordance with the second advice. By Ext.P13 order, that request was considered and it was held that the petitioner's request to regularise the break of service from 11.7.2005 to 23.11.2005 for all service benefits is rejected. But, it was directed that the petitioner will be eligible for salary for the period from 11.7.2005 to 23.11.2005 in view of Ext.P8 judgment. The petitioner is challenging the same seeking the following reliefs: “i) Issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Exhibits P9 and P13 issued by the Director of Higher Secondary Education; W.P.(C)No.7442/08 3 ii) to declare that there is no brake in service as far as the petitioner is concerned for the period from 11-7-2005 to 23-11-2005 as Higher Secondary School Teacher- English at Government Higher Secondary School, Pattambi'; ii) (sic) Issue a Writ of Mandamus or any other appropriate writ, order or direction directing respondents 1 and 2 to grant annual increments to the petitioner based on Exhibit P1 advice in the cadre of Higher Secondary School Teacher” 2. The learned Government Pleader, with the help of the counter affidavit of the 2nd respondent, would argue that the petitioner is not eligible for any service benefits in respect of the period of service pursuant to the earlier mistaken advice except the salary, which she has already received. 3. I have considered the rival contentions in detail. The petitioners and others were advised in the first instance in the vacancies which ought to have gone to some others, who obtained judgment from this Court in that regard in their favour. Therefore, although the petitioner and others were not responsible for the mistake committed by the PSC, their advice and appointments are clearly wrong. The petitioner is therefore eligible for a valid appointment only with effect from 23.11.2005. Of course, the petitioner cannot be denied the salary for the period she worked. But, the service put in by the petitioner in accordance with a wrong advice memo is no W.P.(C)No.7442/08 4 service at all. Her service, counting for service benefits, would start only from the correct advice and consequent appointment with effect from 23.11.2005. Therefore, although the petitioner is entitled to salary for the period of service put in prior to 23.11.2005, the petitioner is not eligible for any other service benefits in respect of that period. The petitioner has also been given full salary up to the second appointment. Therefore, the petitioner is not entitled to any further benefits in respect thereof. Accordingly, there is no merit in this writ petition and the same is dismissed. S. SIRI JAGAN, JUDGE acd W.P.(C)No.7442/08 5 W.P.(C)No.7442/08 6