IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 WP(C).No. 31119 of 2009(H) -------------------------- PETITIONER(S): --------------- K.ASOKAN, HEAD OF SECTION IN TEXTILE TECHNOLOGY, GOVT.POLY TECHNIC, KANNUR. BY ADV. SRI.V.C.JAMES SRI.GEORGE MECHERIL RESPONDENT(S): --------------- 1. THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.M.R.SREELATHA FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON 26/05/2010 DELIVERED THE FOLLOWING: WPC.31119/09 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE GO DT 12-12-07 P2 COPY OF THE LETTER DT 4-2-08 P3 COPY OF THE LETTER DT 22-11-08 P4 COPY OF THE REQUEST DT 14-5-09 P5 COPY OF THE LETTER DT 17-9-09 P6 COPY OF THE REQUEST DT 22-9-09 P7 COPY OF THE RELIEVING ORDER DT 7-10-09 P8 COPY OF THE REPORT OF TRANSFER OF CHARGE DT 7-10-09 P9 COPY OF THE JOINING REPORT DT 15-10-09 P10 COPY OF THE ORDER DT 29-10-09. P11 COPY OF THE ORDER DT 1-1-1980 P12 COPY OF THE ORDER DT 25-9-1987 P13 COPY OF THE ORDER DT 24-1-94 P14 COPY OF THE ORDER DT 16-11-95 P15 COPY OF THE SENIORITY LIST PUBLISHED ON 14-12-99 P16 COPY OF THE ORDER DT 19-10-09 P17 COPY OF THE ORDER DT 23-10-09 P18 COPY OF THE CERTIFICATE DT 30-10-09 P19 COPY OF THE INSTRUCTIONS DT 7-6-2000 P20 COPY OF THE ORDER DT 11-5-05 P21 COPY OF THE COMMUNICATION DT 18-12-10 P22 COPY OF THE REVIEW PETITION DT 26-3-10 // True Copy // P.A. To Judge C.T.RAVIKUMAR, J. ```````````````````````````````````` W.P.(C) No. 31119 of 2009 H ```````````````````````````````````` Dated this the 26th day of May, 2010 J U D G M E N T The petitioner is presently working as Head of Section in Textile Technology in Government Polytechnic, Kannur. This writ petition has been filed by the petitioner challenging Ext.P10 order dated 29-10-2009 whereby the promotion granted to him as per Ext.P1 dated 12-12-2007 was cancelled with retrospective effect from 12-12-2007. It was also ordered to withdraw the service/financial benefits due to the said promotion. 2. While the petitioner was working as Lecturer in Textile Technology at Central Polytechnic, Thiruvananthapuram, as per Ext.P1 order dated 12-12- 2007 he was promoted to the post of Head of Section in Textile Technology and was posted at Government Polytechnic at Kannur. Since the petitioner was the then Associate NCC Officer in Central Polytechnic, Thiruvananthapuram, as per Ext.P2, the NCC directorate WPC.31119/2009 : 2 : requested the Government to permit the petitioner to continue at Government Central Polytechnic, Thiruvananthapuram till the end of the academic year. Pursuant to Ext.P2 request from the NCC directorate, Government have issued Ext.P3 dated 22-11-2008 and the time for joining in the promoted post was extended till 31- 03-2009. Subsequently, as per Ext.P4 dated 14-05-2009, the NCC directorate again addressed the Government for permission to continue the petitioner in Central Polytechnic College, Thiruvananthapuram in working arrangement or on any other possible make shift arrangement. In the meanwhile, the petitioner himself had submitted a representation to the Government on 01- 04-2009. In reply to the said representation dated 01-04- 2009, Ext.P5 dated 17-09-2009 letter was issued. As per Ext.P5, he was informed that his request for permission to continue at Central Polytechnic College, Thiruvananthapuram would be considered only if he relinquished his promotion to the post of Head of Section WPC.31119/2009 : 3 : as per Rule 38 of Part II of the KS & SSR and he was granted time till 22-09-2009 to submit his reply to Ext.P5. On receipt of Ext.P5, the petitioner has submitted Ext.P6 dated 22-09-2009. In Ext.P6 itself, the petitioner has specifically stated that he had received Ext.P5 only on 22-09-2009. As per the same, he has requested for 15 days' time to take a decision in the matter ie., in the matter of relinquishment of the promotion in terms of Rule 38 of Part II of the KS & SSR as instructed in Ext.P5. Immediately thereafter, as per Ext.P7, the petitioner got himself relieved from Central Polytechnic College to join at Government Polytechnic College, Kannur. Ext.P7 is dated 07-10-2009. Ext.P9 would reveal that the petitioner had actually joined duty in the promoted post ie., in the post of Head of Section in Textile Technology, on 15-10-2009. It is while continuing in the said promoted post that the petitioner was served with Ext.P10 dated 29-10-2009 cancelling his promotion with retrospective effect from 12-12-2007. WPC.31119/2009 : 4 : 3. According to the petitioner, the reasons assigned for cancelling his promotion with retrospective effect and also to order withdrawal of the service and financial benefits due on account of the said promotion, are unsustainable in law and on facts. The opening paragraph in Ext.P10 would reveal that the Government have proceeded to pass the said order on the assumption that pursuant to the order of promotion the petitioner had not joined in the promoted post and was continuing as Lecturer in Central Polytechnic College, Thiruvananthapuram. In this context, it is to be noted that despite the specific assertion of the petitioner in the writ petition and production of Ext.P9 joining report, the said factum of his joining duty has not been refuted in the counter affidavit. Therefore, the very basis for passing the said order has to fall on ground. As noticed hereinbefore, as per Ext.P5, the petitioner was instructed to submit his reply as to whether he would like to relinquish his promotion as per Rule 38 of Part II of the WPC.31119/2009 : 5 : KS & SSR and he was granted time till 22-09-2009 for that purpose. Immediately thereafter, the petitioner has submitted Ext.P6 wherein he has specifically pointed out that he received Ext.P5 only on 22-09-2009 and requested 15 days' more time to take a decision as instructed in Ext.P5 and it is a fact evident from Ext.P9 that immediately thereafter he took a decision to join in the promoted post and in fact joined in the promoted post at Government Polytechnic College at Kannur on 15-10- 2009. Therefore, the first reason assigned for cancelling his promotion, as held earlier, is factually incorrect. The other reason assigned for cancellation of Ext.P1 is that keeping the post of Head of Section in Textile Technology in Central Polytechnic College, Kannur could be against public interest as also the interest of the students community. Considering the fact that he had joined on 15-10-2009, the said reason also could not have been assigned for cancelling his promotion, especially in view of Exts.P3 and P5. In short, the reasons assigned to WPC.31119/2009 : 6 : cancel the promotion granted to the petitioner as per Ext.P1 and also to order withdrawal of the service and financial benefits arising out of that promotion as per Ext.P10 cannot be sustained for the reasons already expatiated earlier. In the result, this writ petition is allowed. Ext.P10 is set aside. Consequentially, it is declared that the petitioner will be entitled to all consequential benefits from the date of joining in the promoted post at Government Polytechnic College, Kannur. Sd/- (C.T.RAVIKUMAR, JUDGE) aks // True Copy // P.A. To Judge