IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 WP(C).No. 8931 of 2006(L) ------------------------- PETITIONER: ------------ G. SREEKUMAR, HIGHER SECONDARY SCHOOL TEACHER (COMPUTER SCIENCE) GOVERNMENT VOCATIOINAL AND HIGHER SECONDARY SCHOOL MANACAUD, THIRUVANANTHAPURAM-695 009. BY ADV. SRI.B.RAGUNATHAN SRI.V.V.MATHEW SMT.P.RETNAKUMARI RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM-695 001. 3. SMT. INDIRA DEVI P.S., HIGHER SECONDARY SCHOOL TEACHER (MATHS), GOVERNMENT GIRLS HIGHER SECONDARY SCHOOL, KARAKKULAM, THIRUVANANTHAPURAM-695 564. BY GOVERNMENT PLEADERM SMT.N.SUDHADEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8931/2006/L APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE JUDGMENT DT. 28.7.2005 IN W.P.(C) NO.256 OF 2005- E. EXT. P2: COPY OF THE REPRESENTATION DATED, 26.9.2005 ADDRESSED TO THE 1ST RESPONDENT. EXT. P3: COPY OF THE REPRESENTATION DATED, 15.10.2005, ADDRESSSED TO THE 2ND RESPONDENT. EXT. P4: COPY OF G.O.(RT) NO.5500/05/GL.EDN. DATED, 24.11.2005. EXT. P5: COPY OF ORDER NO.AD.C3/1393/HSE/2005 DT. 15.2.2006 OF THE 2ND RESPONDENT. EXT. P6: COPY OF ORDER NO.AD.B2.764/05/HSE DT. 25.2.2006, OF THE 2ND RESPONDENT. EXT. P7: COPY OF THE VACANCY REPORT DT.16.2.2006 ISSUED BY THE PRINCIPAL, SMVGM HSS, THIRUVANANTHAPURAM. /TRUE COPY/ P.A. TO JUDGE JP S.SIRI JAGAN, J. ======================= W.P.(C) No. 8931 of 2006 (L) ======================= Dated this the 22nd day of February, 2008 JUDGMENT The petitioner was appointed as a HSA in a Government school on 18.10.1990. Applications were invited by notification dated 20.9.2001 for appointment to the post of HSST (Mathematics), HSST (Computer Science) and for other subjects. According to the petitioner, he was qualified for appointment to the post of HSST (Mathematics) and HSST (Computer Science). But the petitioner applied for the post of HSST (Mathematics) only. However, he was appointed to the post of HSST (Computer Science) on 24.6.03. The same was rejected on the ground that although the petitioner passed the State Eligibility Test on 10.6.2000 which is one of the qualifications prescribed for eligibility for appointment to the post of HSST, the certificate was issued to the petitioner only on16.3.04. In spite of the fact that the petitioner produced the hall ticket and declaration of results W.P.(C) No. 8931/2006/L -2- etc. to prove that he passed the SET on 10.6.2000, petitioner's claim for appointment to the post of HSST (Mathematics) was rejected. Petitioner approached this Court by filing W.P.(C) 256/05 in which this Court, by Ext.P1 judgment, directed the Government to consider the claim of the petitioner for appointment to the post of HSST (Mathematics) sympathetically. Pursuant to the same, the Government passed Ext.P4 order and accorded sanction for appointment of the petitioner as Higher Secondary School Teacher (Mathematics) in any existing vacancy or if there is none, against the next arising vacancy of the HSST (Mathematics) for which departmental candidates are eligible, without waiting for the preparation of the seniority list for the purpose. In the meantime, another person had challenged the appointment of the petitioner to the post of HSST (Computer Science) on the ground that he was not qualified for that post. By Ext.P5 order dated 15.2.06, the 2nd respondent cancelled the appointment of the petitioner as HSST (Computer Science) and reverted him to his parent department. However, by Ext.P6 order dated 25.2.2006 the petitioner was appointed to the post of HSST (Mathematics) in accordance with Ext.P4 order of the Government and he was directed to join duty within 10 days. Petitioner W.P.(C) No. 8931/2006/L -3- joined duty on 5.6.2006 at the Government Higher Secondary School, Nedumangadu, pursuant to the interim order passed in this case on 3.7.2006. The petitioner now seeks the following reliefs in this writ petition. "i) issue a writ of mandamus or other appropriate writ, direction or order to the 1st and 2nd respondents to promote and appoint the petitioner to the post of HSST (Maths) with effect from 28.6.2003 or an earlier date, just above his immediate junior in the cadre of HAS (Maths) in the General Education Dept. ii) issue a writ of mandamus or other appropriate writ, direction or order to the 2nd respondent not to revert and terminate the petitioner from the post of HSST (CS) and further allow him to join straightaway as HSST(Maths) without any break; iii) issue a writ of certiorari or other appropriate writ, direction or order calling for the records leading to Exts. P5 and P6 and quash the same (Ext.P6 to the extent it affects him); iv) grant such other orders which this Hon’ble Court may deem fit and proper in the circumstances of the case, and v) award the costs of this petition to the petitioner." 2. Although the petitioner challenges Ext.P5 order also, petitioner submits that he is not desirous of going back as HSST (Computer Science), but would like to continue as HSST (Mathematics) but with seniority with effect from the date on which he was originally appointed as HSST (Computer Science) W.P.(C) No. 8931/2006/L -4- since at that time also he was eligible for appointment to the post of HSST (Mathematics), to which post only he had applied pursuant to notification inviting applications. According to the petitioner, since the petitioner was eligible for appointment to the post of HSST (Mathematics) in 2001 itself as recognised by this Court in Ext.P1 judgment and by the Government in Ext.P4 order, the petitioner should be assigned seniority with effect from the date of appointment of his immediate junior namely, the 3rd respondent herein, with effect from 28.6.2003. He would submit that although he was duly qualified for the post at that time itself his claim was rejected on the ground that he did not produce the certificates proving his qualifications in time. The petitioner’s contention is that it is not a because of any fault on the part of the petitioner that the certificate happened to be issued late and therefore the petitioner should not be found fault with for the same. Therefore, the petitioner submits that he is as of right eligible for seniority with effect from the date of appointment of his immediate junior. 3. On the other hand, the learned Government Pleader would submit that it was for the petitioner to obtain and produce certificates proving his qualification for appointment to the post of W.P.(C) No. 8931/2006/L -5- HSST (Mathematics) in time and since he has not produced the same in time, the authorities cannot be found fault with for denying him promotion. He would further point out that the Government has raised these contentions in W.P.© No.256/05 and Ext.P1 judgment. In that writ petition, it was found that there is force in the contention of the Government Pleader in that regard. According to her, it is only because this Court directed the Director of Higher Secondary Education to consider the claim of the petitioner sympathetically, in view of the fact that petitioner has passed the SET as well as MSC (Mathematics) within the time, by Ext.P4 order Government accorded sanction for appointment to the petitioner in the existing vacancy or in the next arising vacancy. He would submit that it was in the vacancy which was existing then that the petitioner was appointed and there was no direction in Ext.P4 order to appoint the petitioner with retrospective effect, without which she cannot claim any seniority over his junior who was appointed on 28.6.03. 4. I have considered the rival contentions in detail. Notwithstanding the fact that the petitioner deserves sympathy as observed by this Court in Ext.P1 judgment, I do not think that I can countenance the claim of the petitioner now. In Ext.P1 W.P.(C) No. 8931/2006/L -6- judgment dealing with the same claim of the petitioner, this Court noted the contention of the learned Government Pleader, in paragraph 4 as follows: "4. Mr.Raghunathan makes submissions on the basis of the pleadings as well as the documents produced. Opposing the submissions of Mr.Raghunathan, Mr.Thomaskutty, learned Government Pleader submitted that the real reason for the delay in issuance of Ext.P2 certificate to the petitioner was the delay on the petitioner’s side in the matter of producing P.G.Certificate in M.Sc.(Maths). The P.G.Certificate was issued to him only in 2002 i.e., after the notification. Therefore it would not have been possible at all for the petitioner to produce that certificate before the date of notification. The learned Government Pleader also points out that even though all the blame is placed on the Commissioner for Entrance Examinations, the Commissioner is not made a party to the writ petition." Thereafter this Court held as follows: "5. Not that I do not find force in the submissions of the learned Government Pleader, I notice that as a matter of fact the petitioner who had passed both SET as well as M.Sc. (Maths) well within time deserves to be considered sympathetically. Ext. P4 is pending before the Government (the 1st respondent) and I feel that the petitioner has made out a strong case for the grant of relief through Ext.P4. Ext.P4 is pending with the Government for more than one year now. The Government (the 1st respondent) will hear the petitioner and pass appropriate orders on Ext.P4 at the earliest in the light of the observations contained above within two months of the petitioner producing a copy of this judgment." Therefore this Court did not actually recognize any absolute W.P.(C) No. 8931/2006/L -7- right for the petitioner to get the appointment to the post of HSST (Mathematics) with effect from an anterior date, but only directed the Government to consider the claim of the petitioner sympathetically. It is pursuant to that direction Ext.P4 order was passed. The relief portion of Ext.P4 is thus: "It is a fact that the Petitioner was qualified for inclusion in the seniority list for appointment by transfer prepared in 2001. However the authorities were not in a position to include him in the list as he failed to produce the certificates of Post Graduation and State Eligibility Test at the appropriate time. The Hon’ble High Court has observed that the fact that the petitioner passed both State Eligibility Test as well as M.Sc.(Maths) well within the time deserves sympathetic consideration. In the circumstances, taking a lenient view, Government are pleased to accord sanction for the appointment of Shri.G.Sreekumar as Higher Secondary School Teacher (Maths) in any existing vacancy or if there is none, against the next arising vacancy of Higher Secondary School Teacher (Maths) for which departmental candidates are eligible, without waiting for the preparation of the seniority list for the purpose. The Director, Higher Secondary Education will take immediate necessary follow up action in the matter. " 5. In Ext.P4 order also there is no recognition of the right of the petitioner to be appointed with retrospective effect or with seniority with effect from an anterior date. The only W.P.(C) No. 8931/2006/L -8- direction was to appoint the petitioner in the existing vacancy or next arising vacancy. The petitioner has not challenged Ext.P4 also. It is pursuant to this order Ext.P6 order was issued to the petitioner and the petitioner joined ultimately pursuant to order dated 3.7.2006 of this Court in this writ petition. Since neither this Court nor the Government had recognised any right for the petitioner for either any appointment with retrospective effect or any seniority in the post of HSST (Mathematics) with effect from an anterior date, I do not think that the petitioner can as of right claim seniority with effect from 26.3.2003 which is the date his immediate junior in the post of HSA was promoted. In the above circumstances, I do not find any merit in the contention of the petitioner. Accordingly, the writ petition is dismissed. S.SIRI JAGAN, JUDGE jp