IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 WP(C).No. 20285 of 2006(M) ------------------------------------------ PETITIONER: --------------------- P.N. RAMACHANDRAN NAIR, HEAD ACCOUNTANT (RETD.) SREE SANKARA COLLEGE, KALADY, RESIDING AT PULIYAMPILLI HOUSE, PINAVOOR, KALADY-683 574. BY ADV. SRI.T.P.DEYANANTHAN RESPONDENTS: ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-33. 3. THE MANAGER, SREE SANKARA COLLEGE, KALADY. BY ADV. SRI.K.ANAND (A.201) - R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2007 ALONG WITH R.P.NO.129 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.20285/2006 M APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.OCA/68(A) DTD. 26/06/1968 OF THE MANAGING DIRECTOR. EXT.P2; COPY OF THE ORDER OF THE MANAGING DIRECTOR DTD.1/04/2001. EXT.P3: COPY OF THE SENIORITY LIST OF THE OFFICE STAFF AS PUBLISHED IN THE COLLEGE CALENDER FOR THE YEAR 2000-01 AND 2002-2003. EXT.P4: COPY OF THE CIRCULAR ESTT.E1-56284/01/COLL.EDN. DTD. 5/12/2001 SIGNED BY 2ND RESPONDENT. EXT.P5: COPY OF THE ORDER IN I.A.NO.6581/2003 IN WP(C) NO. 19981/2003-D DTD. 25/06/2003. EXT.P6: COPY OF THE ORDER G.O.(RT) 959/03/H/EDN. DTD.8/07/2003. EXT.P7: COPY OF THE ORDER G.O.(MS) 119/04/H/EDN. DTD. 17/09/2004 OF THE GOVERNMENT OF KERALA. EXT.P8: COPY OF THE ORDER G.O.(RT) 1161/05/H.EDN. DTD. 4/07/2005 ISSUED BY DEPUTY SECRETARY TO GOVERNMENT. EXT.P9: COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER TO THE 1ST RESPONDENT DTD. 1/08/2005. EXT.P10: COPY OF THE JUDGMENT IN WP(C)24236/05(1) DTD. 16/08/2005. EXT.P11: COPY OF THE ORDER G.O.(RT) NO.756/06/H.EDN. DTD. 28/04/2006 OF THE GOVERNENT OF KERALA. EXT.P12: COPY OF THE REVIEW PETITION DTD.NIL/5/2006 SUBMITTED BY PETITIONER TO THE 1ST RESPONDENT. EXT.P13: COPY OF THE ORDER G.L.NO.12377/D3/06/H.EDN. DTD. 1/06/06 FROM THE 1ST RESPONDENT TO THE PETITIONER. EXT.P14: COPY OF THE ORDER NO.H/3343/06 DTD. 3/06/2006 OF THE SECRETARY, NSS COLLEGES CENTRAL COMMITTEE, CHANGANACHERRY. EXT.P15: COPY OF THE STAFF FIXATION ORDER OF SS COLLEGE, KALADY, IN ORDER NO.E6-2194/06/COLL.EDN. DTD. 6/02/2006. EXT.P16: COPY OF THE REPRESENTATION DTD. 26/10/2006 SUBMITTED BY PETITIONER TO THE 3RD RESPONDENT. EXT.P17: COPY OF THE JUDGMENT DTD. 3/04/2006 IN WP(C)NO.28955/04. /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. ------------------------------------ WP(C) No. 20285 of 2006 - M ------------------------------------- Dated this the 5th day of October, 2007 J U D G M E N T After putting in service in various posts from Attender onwards, the petitioner retired from service as Head Accountant of the Sree Sankara College, Kalady on 31.8.2003. The grievance of the petitioner in this writ petition is that prior to his retirement, there were vacancies of Junior Superintendent and Administrative Assistant with effect from 1.2.2002 and 1.4.2002 respectively, to which the petitioner was entitled to promotion. However, on the ground that due to delinking of Pre-degree, there was a ban on appointments, the petitioner was not given such promotion. Ultimately, without getting the promotion due, the petitioner retired on 31.8.2003. In the meanwhile, this Court declared that the ban would not apply to promotions, but would apply only to fresh appointments. In view of the legal position as declared by this Court, the petitioner claimed promotion with retrospective effect from 1.2.2002 and WP(C) NO. 20285 of 2006 :-2-: 1.4.2002 and revision of his salary and retirement benefits accordingly. Since the same was not granted, the petitioner moved this Court by filing W.P(C) No.24236 of 2005. In that, by judgment dated 16.8.2005, the first respondent was directed to consider and pass orders on the claim of the petitioner. Pursuant thereto, Ext.P11 order has been passed by the Government rejecting the claim of the petitioner. The petitioner is challenging Ext.P11 order and seeking a direction to the third respondent to promote the petitioner with effect from 1.2.2002 as Junior Superintendent and from 1.4.2002 as Administrative Assistant with consequential monetary benefits, on revision of salary and retirement benefits. 2. The petitioner points out that similarly placed persons have been granted similar benefits as is evident from Exts.P8 and P14. He also points out that this Court had upheld the right of the similarly placed persons in Ext.P17 judgment. WP(C) NO. 20285 of 2006 :-3-: 3. The second respondent has filed a counter affidavit in which the second respondent seeks to justify Ext.P11 order. The only contention raised therein is that there was a ban on appointments consequent to delinking of Pre-degree from the colleges. They would also state that consequent to delinking, there was considerable reduction of student strength resulting in surplus non-teaching staff in the colleges. The Government Pleader would support Ext.P11 on the grounds mentioned therein to the effect that the staff pattern was revised with effect from 17.9.2004, as a result of which the post of Junior Superintendent ceased to exist. On these contentions, the learned Government Pleader contests the claims of the petitioner. 4. I have considered the rival contentions in detail. In paragraph 3 of the counter affidavit filed by the second respondent, it is specifically stated thus:- “3. Consequent on the delinking of Pre-Degree from colleges a large number of Non-teaching staff became surplus in colleges. So ban on promotion to the WP(C) NO. 20285 of 2006 :-4-: regular vacancies of Non-teaching staff in all Aided Colleges have been imposed with effect from 1.12.2001. A high power committee had been appointed by Government to study the work load and to report the staff pattern of private colleges. It was during this period the promotion as Junior Superintendent with effect from 1.2.2002 and as Administrative Assistant with effect from 1.4.2002 fell due to the petitioner.” (underlining supplied) It cannot now be disputed that in view of Ext.P17 judgment, the first respondent cannot take the contention that in view of the ban, promotions could not have been legally made. The second respondent has categorically admitted in paragraph 3 of the counter affidavit (see the underlined portion above) that promotions fell due to the petitioner on 1.2.2002 and 1.4.2002 as Junior Superintendent and Administrative Assistant respectively. The subsequent revision of staff pattern with effect from 17.9.2004 cannot affect the right of the petitioner for promotion which accrued prior to that date. That being so, the eligibility of the WP(C) NO. 20285 of 2006 :-5-: petitioner for promotion to those posts with effect from those dates cannot now be disputed by the respondents. As such, the petitioner has become entitled to be promoted with retrospective effect from 1.2.2002 and 1.4.2002 as Junior Superintendent and Administrative Assistant respectively. However, this shall only be on notional basis, without monetary benefits from 1.2.2002 and 1.4.2002 till his retirement on 3.8.2003, since the petitioner has not actually worked on those posts. He would also be entitled to refixation of his pay as well as retirement benefits accordingly. The third respondent shall pass orders to put into effect the above directions within a period of two months from the date of receipt of a copy of this judgment. The arrears of pensionary benefits shall be paid to the petitioner within one month from the date of passing orders as above. This writ petition is disposed of as above. S. SIRI JAGAN, Mbs/ Judge WP(C) NO. 20285 of 2006 :-6-: S.SIRI JAGAN, J. -------------------------------------------- O.P.NO. OF 2001 ------------------------------------ WP(C) NO. 20285 of 2006 :-7-: J U D G M E N T DATED: -0-2007 WP(C) NO. 20285 of 2006 :-8-: