IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 OP.No. 23025 of 2001(N) ----------------------- PETITIONER: ------------ T.N.NITHYANANDAN, RETIRED H.S.A., MALABAR CHRISTIAN COLLEGE HIGH SCHOOL, KOZHIKODE. BY ADV. SRI.P.RAVINDRAN (SR.) SMT.ANU SIVARAMAN RESPONDENTS: ------------- 1. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 2. THE CORPORATE MANAGER, ALL CSI SCHOOLS IN MALABAR & WAYANAD, BANK ROAD, KOZHIKODE. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SRI.C.P.SIVADASAN NAIR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 23025/2001/N ORDER ON CMP NO.37725/2001 IN OP NO.23025/2001 DISMISSED SD/- 24.3.2008 S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE JUDGMENT IN OP NO.147332/93 DTED 3..3..1994. EXT. P2: COPY OF THE JUDGMENT IN OP NO.16326/94 DATED 27.2.1996. EXT. P3: COPY OF THE JUDGMEN IN WA NO.797/96 DATED 2..3..2000. EXT. P4: COPY OF THE JUDGMENT IN O.P. NO.10268 OF 1996 DATED 13.12.2000. EXT. P5: COPY OF THE ORDER NO.EM2/7414/2001/D.DIS DATED 28.2.2001. EXT. P6: COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 6.4.2001. EXT. P7: COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 1.4.89. EXT. P8: COPY OF THE SENIORITY LIST. /TRUE COPY/ P.A. TO JUDGE JP S.SIRI JAGAN, J. ======================= O.P. No. 23025 of 2001(N) ======================= Dated this the 24th day of March, 2008 JUDGMENT The petitioner is a retired HSA in the 2nd respondent's school. According to him, even though he was eligible to be promoted as Headmaster with effect from 15.5.1991 he was not given his due promotion. Earlier the management sought to make promotions of persons of their choice as Headmasters, claiming that they are entitled to minority status. This was not accepted by this Court and this Court directed review of promotions effected from 1.4.1989, as per Ext.P1 to P3 judgment. The petitioner also filed a writ petition in which Ext.P4 judgment has been passed directing the Director of Public Instruction to decide the matter after hearing the petitioner and the Manager. Pursuant to the same Ext.P5 order has been passed in which it was held thus: "With regard to the claim of the petitioner for promotion, it is seen that he became qualified for the post of Headmaster on 15.5.1991. It is admitted by both parties that the first promotion after 15.5.91 was effected on O.P. No. 23025/2001/N -2- 29.5.93. The person promoted is Mr.R.Padmanabhan, No.34, in the approved Seniority list submitted by the manager. The number assigned to the petitioner in the seniority list is 54. Therefore the petitioner is not eligible to claim that vacancy. The manager submitted that all the vacancies that arose thereafter were filled up according to strict seniority only which fact is not disputed by the petitioner." 2. Subsequently, in appeal filed by another teacher, Ext.P6 order has been passed by the Director of Public Instruction holding thus: "In the above circumstances, the Corporate Manger, All CSI Schools in Malabar and Wayanad is directed to review the Promotions of the Headmasters, on or after 1.4.89 notionally as directed in the Judgment in OP No.16326/94 R. The Corporate Manager should strictly observe the dates of occurance of vacancy and eligibility of the incumbents while doing so. The judgment in WA No.797 & 926/96 and Judgment dated 9.1.2001 in OP No.859/2001 of the Honourable High Court are hereby implemented accordingly." 3. Pursuant to the said order the 2nd respondent passed Ext.P7 order. Petitioner challenges Exts. P5 and P7 order. His first contention is that the finding in Ext.P5 that petitioner is not eligible to claim the vacancy which arose on 15.5.1991 since Sri.Padmanabhan was promoted to that post, is clearly wrong, since the said Padmanabhan mentioned in Ext.P5 has been given O.P. No. 23025/2001/N -3- the promotion date of 1.4.1990 in Ext.P7 which proves that Ext.P5 order to that extent is unsustainable. Further, he contends that in Ext.P7 the persons appearing at serial nos.1 and 4 do not possess the qualifications prescribed for promotion as headmaster and therefore they are not eligible to be assigned any date for promotion as headmaster. If they are excluded from a zone of consideration, the petitioner would be eligible for promotion with effect from 15.5.1991 is the contention raised. The petitioner therefore seeks quashing of Exts. P5 and P7 and a direction to the effect that petitioner is eligible to be promoted as headmaster with effect from 15.5.1991. Consequently, he presses for a direction to revise his service benefits as also pensionary benefits accordingly. 4. I have heard the petitioner and the learned Government Pleader. In spite of receipt of notice, the 2nd respondent has not chosen to enter appearance and contest the matter. From Ext.P7 order, it is clear that Sri.R.Padmanabhan has been assigned the promotion date of 1.4.1990. That being so, the finding in Ext.P5 that the petitioner is not eligible to claim O.P. No. 23025/2001/N -4- the vacancy which arose on 15.5.1991 in view of the promotion of Sri.Padmanabhan, is clearly wrong. That being so, that finding in Ext.P5 is liable to be set aside. I do so. However, I am of the opinion that the petitioner's contention that the persons appearing at serial nos.1 and 4 are not eligible for promotion as Headmasters cannot be considered without them in the party array in this original petition. In the above circumstances, the original petition is disposed of as follows: The petitioner shall file a proper appeal or revision against Ext. P7 before the 1st respondent within three weeks from the date of receipt of a copy of this judgment in which case the 1st respondent shall consider the same and pass appropriate orders, on the question as to whether the petitioner is eligible for promotion with effect from 15.5.1991 and whether persons appearing at serial nos. 1 and 4 in Ext.P7 are liable to be excluded from the zone of consideration for promotion as headmasters on account of want of qualifications. This shall be done within a period of two months from the date of receipt of a copy of the appeal or revision, after affording an opportunity of O.P. No. 23025/2001/N -5- being heard to the petitioner, the manager and the persons shown at serial nos. 1 and 4 in Ext.P7 as well as those who are likely to be affected by any orders to be passed by the 1st respondent. S.SIRI JAGAN, JUDGE jp