IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WP(C).No. 25780 of 2010(V) -------------------------- PETITIONER(S): --------------- V.N.SHIBU, S/O.T.NELSON, AGED 44 YEARS, INSTRUCTOR OF PHYSICAL EDUCATION, GOVERNMENT POLYTECHNIC COLLEGE, KALAMASSERY, ERNAKULAM DISTRICT. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SRI.S.MUJEEB RAHIMAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT DEPARTMENT OF COLLEGIATE EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1. 2. DIRECTOR OF COLLEGIATE EDUCATION DIRECTORATE OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM-33. 3. SANTHOSH KURIAKOSE.K., S/O.K.J.KURIAKOSE, AGED 44 YEARS, KAITHAKOTTIL HOUSE, CHETHIKODE P.O., ERNAKULAM DISTRICT, PIN-682 315. ADV. SRI.PIRAPPANCODE V.S.SUDHIR FOR R3 GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2010, ALONG WITH WPC NO.14351 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.2578/2010 APPENDIX PETITIONER'S EXHIBITS : EXT.P1: COPY OF THE PROCEEDING BEARING ORDER NO.A3-24585/90 DATED 2.6.1990 OF THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. EXT.P2: COPY OF THE ORDER NO.B1/29401/2005/COL.EDN. DEPT. DATED 6.12.2007 ISSUED BY THE SECOND RESPONDENT. EXT.P3: COPY OF GO (RT) NO.1258/08/H.EDN. DATED 19.8.2008 ISSUED BY THE FIRST RESPONDENT. EXT.P4: COPY OF THE ORDER NO.B1/29401/03/COL.EDN. DATED 28.11.2009 ISSUED BY THE SECOND RESPONDENT. EXT.P5: COPY OF THE ORDER NO.B1/30474/08/COL.EDN. DEPT. DATED 28.4.2010 ISSUED BY THE SECOND RESPONDENT. EXT.P5(a) : COPY OF THE ORDER NO.E1/979/2010 DATED 16.7.2010 ISSUED BY THE PRINCIPAL, GOVERNMENT POLYTECHNIC COLLEGE, TRIKARIPUR. EXT.P6: COPY OF THE ORDER NO.B-1/30474/2008/COL.EDN. DATED 12.8.2010 ISSUED BY THE SECOND RESPONDENT. RESPONDENTS' EXHIBITS : EXT.R3(a) : COPY OF THE ORDER NO.B1/29401/03/COL.EDU. DEPT. DATED 28.11.2009 OF THE SECOND RESPONDENT. EXT.R3(b) : COPY OF G.O.(P) NO.94/2010/FIN DATED 1.3.2010. EXT.R3(c) : COPY OF THE RELEVANT EXTRACT OF THE PROCEEDINGS DATED 18.12.2003 ISSUED BY THE SECOND RESPONDENT. EXT.R3(d) : COPY OF THE APPLICATION DATED 16.6.2010 SUBMITTED BY THE THIRD RESPONDENT BEFORE THE DIRECTORATE OF COLLEGIATE EDUCATION. EXT.R3(e) : COPY OF THE APPLICATION DATED 16.6.2010 SUBMITTED BY THE THIRD RESPONDENT BEFORE THE HON'BLE MINISTER FOR EDUCATION. EXT.R3(f) : COPY OF THE LETTER NO.E1/748/2010 DATED 17.6.2010 OF THE PRINCIPAL, GOVERNMENT POLYTECHNIC, THRIKKARIPPUR. EXT.R3(g) : COPY OF THE LETTER DATED 2.6.2010 ISSUED BY THE THIRD RESPONDENT TO THE SECOND RESPONDENT. EXT.R3(h) : COPY OF THE LETTER NO.E1/748/2010 DATED 2.6.2010 OF THE PRINCIPAL, GOVERNMENT POLYTECHNIC COLLEGE, THRIKKARIPPUR. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C) No.14351 of 2010 & W.P.(C) No.25780 of 2010 --------------------------------------------- Dated this the 16th day of September, 2010 JUDGMENT W.P.(C) No.14351 of 2010 is filed by Santhosh Kuriakose in which V.N.Shibu is the third respondent. W.P.(C) No.25780 of 2010 is filed by V.N.Shibu in which Santhosh Kuriakose is the third respondent. 2. Santhosh Kuriakose was appointed as Physical Education Teacher in Government V.H.S.S., Mankayil, Maradu on 1.1.2001. While he was working in that school, the Director of Collegiate Education invited applications for appointment of 17 Physical Education Instructors in Government Polytechnics from among the Physical Education Teachers in Government High Schools. As per the order dated 28.11.2009 (Ext.P2 in W.P. (C) No.14531 of 2010), the Director of Collegiate Education appointed (by transfer) Santhosh Kuriakose in Government WPC Nos.14351 & 25780/2010 2 Polytechnic College, Trikaripur. Santhosh Kuriakose joined in the Government Polytechnic College on 7.12.2009. 3. V.N.Shibu joined in service as Physical Education Teacher on 2.6.1990. He was appointed by transfer as Physical Education Instructor, as per the order dated 6.12.2007 (Ext.P2 in W.P.(C) No.25780 of 2010) issued by the Director of Collegiate Education, Thiruvananthapuram. Shibu joined as Instructor in Physical Education at Government Polytechnic College, Neyyattinkara on 7.12.2007. While so, he got admission for M.P.Ed. course. On his application, leave without allowance for study purpose for a period of two years was granted as per G.O.Rt.No.1258/08/H.Edn. dated 19.8.2008 (Ext.P3 in W.P.(C) No.25780 of 2010). As per that Government Order, the Director of Collegiate Education, Thiruvananthapuram was directed to fill up the resultant vacancy. Shibu, on availing the leave attended the course and completed the course. Shibu sought to rejoin on duty after completing the course. As per the order dated 28.4.2010 passed by the Director of Collegiate Education WPC Nos.14351 & 25780/2010 3 (Exhibit P4 in W.P.(C) No.14351 of 2010 – Exhibit P5 in W.P.(C) No.25780 of 2010), Shibu was accommodated in Government Polytechnic, Trikaripur, by ousting Santhosh Kuriakose. 4. Santhosh Kuriakose challenged the aforesaid order dated 28.4.2010 passed by the Director of Collegiate Education in W.P.(C) No.14351 of 2010. His contention is that he was not appointed in the resultant vacancy on granting leave to Shibu. But, he was appointed in a regular vacancy on the transfer of one Jayachandran. It is contended that in the order appointing Santhosh Kuriakose as Physical Education Instructor, it is specifically stated that he was being appointed in the vacancy which occurred on the transfer of Jayachandran. It is also pointed out that there is nothing in the order dated 28.11.2009 to indicate that the appointment of Santhosh Kuriakose was as per the Government Order dated 19.8.2008. No interim order was granted in W.P.(C) No.14351 of 2010. 5. While so, it would appear that Santhosh Kuriakose WPC Nos.14351 & 25780/2010 4 approached the Director of Collegiate Education and appraised all the relevant facts. The Director of Collegiate Education passed an order dated 12.8.2010 (Ext.P6 in W.P.(C) No.25780 of 2010) appointing Santhosh Kuriakose at Kalamassery Government Polytechnic ousting V.N.Shibu temporarily. The order passed by the Director of Collegiate Education dated 12.8.2010 was challenged by V.N.Shibu in W.P.(C) No.25780 of 2010. In the order dated 12.8.2010, the Director found that at the time when leave was granted to Shibu, his probation was not declared and therefore on rejoining, it could be treated only as a new entry. Therefore, Santhosh Kuriakose should not have been ousted to accommodate V.N.Shibu. 6. The Director of Collegiate Education passed the order dated 12.8.2010 while W.P.(C) No.14351 of 2010 was pending. That does not by itself invalidate the order. But, that order was passed without hearing Shibu. Not only that the order dated 12.8.2010 will have the effect of a review of the order dated 28.4.2010 passed by the Director. The Director has no power to WPC Nos.14351 & 25780/2010 5 review his own order. There was no order by any court to consider the matter or to pass any order. Therefore, the order dated 12.8.2010 passed by the Director is liable to be quashed. I do so. 7. The next question to be considered is whether the order dated 28.4.2010 passed by the Director is to be interfered with as desired by Santhosh Kuriakose in W.P.(C) No.14351 of 2010. I think all the relevant facts are to be considered by the same authority based on the records and facts and it is not proper for this Court to exercise the jurisdiction under Article 226 of the Constitution of India for the first time to peruse the records and to pass orders. Rival claims of Shibu and Santhosh Kuriakose were not considered by any authority at any point of time after hearing both the parties. Therefore, it is only proper to direct the Government to look into the matter, hear Shibu and Santhosh Kuriakose, call for all the records, find out the vacancy position and pass appropriate orders. If Santhosh Kuriakose was not appointed in the resultant vacancy of availing leave by Shibu, WPC Nos.14351 & 25780/2010 6 there is no question of ousting him. All the matters should be considered and appropriate decision should be taken within a period of one month from the date of receipt of a copy of this judgment. The parties shall produce copy of the Writ Petitions and certified copy of the judgment before the first respondent. Both the Writ Petitions are disposed of as above. K.T.SANKARAN, JUDGE csl