IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 OP.No. 31805 of 2001(J) ----------------------- PETITIONER: --------------- 1. M.R. JANAKY, AGED 51 YEARS W/O. RAMAN, R/AT NELLIKKAT, BALA VILLAGE, HOSDURG TALUK, KASARAGOD (DIST) HSA (HINDI) GHS BALLA EAST. 2. C. SATHI, AGED 41 YEARS, W/O. BALAKRISHNAN, R/AT RAVANESHWARAM, CHITTARI VILLAGE, HOSDURG TALUK, KASARAGOD (DIST) HSA(HINDI), GHS PERIYA. 3. V.K. KUNHIKANNAN, AGED 49 YEARS S/O. KANNAN, R/AT RAVANESHWARAM, CHITTARI VILLAGE, HOSDURG TALUK, KASARAGOD (DIST), HSA (HINDI) M.P.S.G.V.H.S.S. BELLIKOTH. BY ADV. SRI.KODOTH SREEDHARAN RESPONDENTS: ----------------- 1. THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD P.O., VIDYA NAGAR, KASARAGOD. 2. THE HEADMASTER, GHS BALLA EAST P.O. BALLA, PIN – 671 531. 3. THE HEADMASTER, GHS PERIYA, P.O. PERIYA, PALLIKERE – 671 316. 4. THE PRINCIPAL, M.P.S.G.V.H.S.S. BELLIKOTH, P.O. AJANUR, PIN – 671 531. 5. THE PRINCIPAL SECRETARY, GENERALA EDUCATION DEPARTMENT, GOVT. SECRETARIAT, ANNEX, THIRUVANANTHAPURAM-1. OP.No. 31805 of 2001 6. V.V. SANTHA HSA (HINDI), M.P.S.G.V.H.S.S. BELLIKOTH, KASARGOD DISTRICT. ADDL. R7: GANESHAN KOLIYAT, RESIDING AT KOLLADA, PADIYOTCHAL P.O., PAYYANNUR (VIA), KANNUR DISTRICT, PIN – 670 307. (IMPLEADED AS PER ORDER DATED 6/2/2003 IN C.M.P.NO.62177/02) BY ADV. SRI.V.G.ARUN SMT.M.R.SREELATHA GOVERNMENT PLEADER SMT. T.B. REMANY THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 31805 of 2001 ORDER ON C.M.P.NO.52005/2001 IN O.P.NO.31805 OF 2001 DISMISSED. 10.3.2008 SD/- S. SIRI JAGAN, JUDGE. EXT.P1: COPY OF THE ORDER G.O.(MS) NO.185/70/EDN. DT 18.4.70. EXT.P2: COPY OF THE G.O.(MS)NO.126/72/S.EDN. DT. 22.9.1972. EXT.P3: COPY OF THE G.O.(MS)NO.23/73/S.EDN. DT. 22.2.1973. EXT.P4: COPY OF THE SENIORITY LIST PUBLISHED AS PER A3.143709/99 DT. 14.12.99. EXT.P5: COPY OF THE RELEVANT PORTION OF ENTRY IN THE SERVICE BOOK OF 1ST PETITIONER. EXT.P6: COPY OF THE ORDER NO.A3 2105/2000 DT. 8.12.2000 ISSUED BY R1. EXT.P7: COPY OF THE ORDER NO.A3.3277/97 DT. 19.12.1997 ISSUED BY R1. EXT.P8: COPY OF THE ORDER NO.A3-14378/99 DT. 2.7.01 ISSUED BY R1. EXT.P9: COPY OF THE ORDER NO.A3.9418/2000 DT. 21.6.2001 ISSUED BY R1. 7TH RESPONDENT'S EXHIBITS EXT.R7(a): COPY OF THE JUDGMENT IN O.P.NO.649/2001 DTD 6.8.2002 PASSED BY THIS HON'BLE COURT. EXT.R7(b): COPY OF THE ORDER DATED 23.9.2002 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, KASARGOD. TRUE COPY PA TO JUDGE. OP.No. 31805 of 2001 ORDERAPPENDIX S. SIRI JAGAN, J. ------------------------------------ O.P.No.31805 OF 2001 ---------------------------------------- Dated this the 10th day of March, 2008 JUDGMENT The petitioners are HSAs (Hindi) in Government Schools in Kasaragod District. They are challenging Ext.P9 order, whereby they were reverted from the post of HSA (Hindi) for giving way to PSC hands recruited by direct recruitment as HSAs (Hindi). Their contention is that the cadre strength of HSAs(Hindi) in Kasaragod District is 125 and as per the G.O.(MS) No.139/96 G.Edn. dated 30.3.1996 only 30% is set apart for direct recruitment and the balance is to be filled up by inter district transfer, transfer from ministerial employees and by promotion from among P.D. Teachers. They would contend that as against 37 posts set apart for direct recruits, 54 posts are occupied by direct recruits and therefore the petitioners could not have been reverted for appointing direct recruits in their place. The petitioners therefore seek the following reliefs: “i) a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P9 order. ii) a declaration or any other appropriate writ, order O.P.NO.31805/2001 2 or direction that promotions and direct recruitment from 2.2.93 that is from the date of coming into force of note 3 to Rule 5 of KSSR should be based on cadre strength as held in 199(2) KLT 710, 2000(2) KLT 475 and in W.A. 1085/2000 and consequent review of the promotions and direct recruitment of H.S.A. (Hindi) in the Government Schools in Kasaragod District. iii) An order of stay of reversion of the petitioners pursuant to Ext.P9 order.” 2. The learned Government pleader submits that by Ext.P7 order, the petitioners were temporarily promoted under Rule 31(a)(1) of KS & SSR against the PSC quota with specific condition that as and when regular recruits report for duty, the petitioners would have to give way for them. The Government pleader also points out that as stated in Ext.P7, the petitioners were promoted temporarily because there was no ready rank list for HSA(Hindi) in Kasaragod District at that time. According to the learned Government pleader, subsequently the PSC list came into force and when candidates were advised from that list, the petitioners had to be reverted which resulted in Ext.P9. According to the learned Government pleader after having accepted Ext.P7 temporary promotion order with open eyes, the petitioners cannot challenge Ext.P9 order only. O.P.NO.31805/2001 3 3. I have considered the rival contentions in detail. Ext.P7 is the order promoting the petitioners. In the same, it is specifically stated that the promotions are being ordered temporarily under Rule 31(a) (1) of the KS & SSR since there is no ready rank list prepared by the PSC for the posts in Kasaragod District. Further in Ext.P7, it is specifically stated that the promotion ordered is purely provisional under Rule 31 (a)(1) of KS &SSR against the PSC quota and that as and when the regular candidates (PSC recruits etc) are appointed in accordance with rules, they shall be replaced by that candidates as soon as possible. The petitioners have not challenged Ext.P7 on the ground that the vacancies to which they were so promoted are available for promotion in view of the cadre strength. That being so, they cannot validly challenge Ext.P9 reversion order, which was exactly in accordance with Ext.P7 order, which they have not challenged. Therefore the challenge against Ext.P9 is not sustainable. 4. The learned Government pleader submits that going by the seniority list of P.D. Teachers prepared, the petitioners are lower down the list and therefore they had no chance for promotion at the time of filing the original petition. O.P.NO.31805/2001 4 In any event, since the reversion has been strictly in accordance with Ext.P7, I am not inclined to entertain this original petition and accordingly the same is dismissed without prejudice to the right of the petitioners to claim promotion as and when their chance comes in accordance with their seniority. S. SIRI JAGAN, JUDGE Acd O.P.NO.31805/2001 5