IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 WP(C).No. 21860 of 2006(B) --------------------------------------- PETITIONER(S): ----------------------- V.SARADAMBIKA, THAKSHASILA, PARAVATHIAR JUNCTION, PATTATHANAM, KOLLAM, (LIBRARIAN, GRADE-I, RETD. M.G.COLLEGE, THIRUVANANTHAPURAM.). BY ADV. SRI.T.P. DEYANANTHAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT HIGHER EDUCATION 'D' DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. THE SECRETARY, N.S.S. COLLEGES, CENTRAL COMMITTEE, PERUNNA, CHANGANACHERRY. R1 & R2 BY GOVERNMENT PLEADER SRI. NOBLE MATHEW R3 BY ADVS. SRI.P.G. PARAMESWARA PANICKER (SENIOR) SRI.P. GOPAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VPV WPCNO.21860/2006 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RELEVANT PART OF THE SENIORITY LIST OF NSS COLLEGE SERVICE STAFF IN LETTER NO. H.6216/05 DATED 30.9.2005. EXT.P1(A): COPY OF THE RELEVANT PART OF G.O.(P) 3000/98/FIN. DATED 25.11.1998. EXT.P2: COPY OF THE LETTER NO.ESTT.E1-56284/01/CILL.EDN. DATED 5.12.2001. EXT.P3: COPY OF THE ORDER OF WORK ENGAGEMENT ISSUED BY THE SECRETARY NSS COLLEGE CENTRAL COMMITTEE IN ORDER NO.H-6177/03 DATED 6.10.2003. EXT.P4: COPY OF MEMO NO.G2-4194/03 DATED 9.10.2003. EXT.P5: COPY OF THE G.O.(MS)119/04/H.EDN. DATED 17.9.2004. EXT.P6: COPY OF MEMO NO.G2/3947/05 DATED 2.6.2005. EXT.P7: COPY OF THE G.O.(RT)NO.1161/05/H.EDN. DATED 4.7.2005. EXT.P8: COPY OF THE REPRESENTATION DATED 16.11.2005. EXT.P9: COPY OF JUDGMENT DATED 23.11.2005 IN W.P.(C)NO.32640/05. EXT.P10: COPY OF G.O.(RT) 482/06/H.EDN. DATED 9.3.2006. EXT.P11: COPY OF G.LR.NO.9298/D3/06/H.EDN. DATED 27.5.2006. EXT.P12: COPY OF ORDER NO.H-3343/06 DATED 3.6.2006 ISSUED BY THE 3RD RESPONDENT. EXT.P13: COPY OF ORDER NO.E4-42160/06/COLL.EDN.DATED 9.12.2005. EXT.P14: COPY OF CLARIFICATION LETTER NO.9542/D3/93/H.EDN. DATED 25.1.1994. EXT.P15: COPY OF THE STAFF FIXATION ORDER NO. E4-4325/06 COLL.EDN. DATED 17.12.2006 ISSUED BY THE 3RD RESPONDENT IN RESPECT OF M.G. COLLEGE, THIRUVANANTHAPURAM. EXT.P16: COPY OF THE JUDGMENT IN W.P.(C) NO. 28955/04 DATED 3.4.2006. EXT.P17: COPY OF THE ORDER GO(MS) NO.50/08/HED DATED 09.5.2008. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE VPV S.SIRI JAGAN, J. ================== W.P.(C).No. 21860 of 2006 ================== Dated this the 30th day of November, 2011 J U D G M E N T The petitioner joined the colleges under the 3rd respondent, which are aided colleges, as Librarian Grade IV, on 28.9.1982. She was later promoted as Librarian Grade II on 10.11.1993. According to the petitioner, the petitioner became qualified for higher grade in the scale of pay applicable to Librarian Grade I on completion of eight years' service in the post of Librarian Grade II. But it was not granted to the petitioner. Subsequently, the petitioner was asked to discharge the functions of Librarian Grade I with effect from 10.10.2003. While functioning as such, the petitioner was promoted as Librarian Grade I on 3.6.2005. According to the petitioner, the vacancy of Librarian Grade I arose with effect from 1.4.2003 and, therefore, the petitioner is entitled to promotion in the post of Librarian Grade I with effect from 1.4.2003. The petitioner filed W.P.(C).No. 32640/2005, in which, this Court directed the 1st respondent to pass orders within three months. By Ext.P10 order, the petitioner's claim was rejected. The petitioner filed a review petition, which was also rejected by Ext.P11 order. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(i) issue a writ of certiorari calling for details relating to Exhibits P2, P10 and P11 and quash the same; w.p.c.21860/06 - : 2 :- (ii) to issue a writ of mandamus or any other writ or order or direction to the 1st respondent to direct the 2nd and 3rd respondents to grant Higher Grade of Librarian Grade II w.e.f 10.11.2001 in the scale of pay of Librarian Grade I and regular promotion of Librarian grade I w.e.f. 1.4.2003 with back arrears of pay; (iii) declare that the petitioner is entitled to higher grade and regular promotion w.e.f. 10.11.2001 and 1.4.2003 in the scale of pay of Ist grade Librarian and consequential benefits.” However, the petitioner now confines her prayer to the relief of regular promotion as Grade I Librarian with effect from 1.4.2003. According to the petitioner, since the vacancy arose with effect from 1.4.2003, the petitioner ought to have been promoted with effect from that date insofar as there is no change of duties on promotion. The same has been denied to the petitioner on the basis of Ext.P2 circular issued by the Director of Collegiate Education, whereby the Director of Collegiate Education interdicted filling up of all promotion posts, which arose after 1.12.2001, which was lifted only on 17.9.2004. According to the petitioner, the validity of Ext.P2 circular was considered by a learned Single Judge of this Court in Ext.P16 judgment in W.P.(C).No. 28955/2004, and this Court held that the said circular affecting the rights of employees for promotions cannot be enforced. The petitioner, therefore, submits that in view of that judgment, based on Ext.P2 circular, the petitioner could not have been denied promotion with effect from the date of occurrence of the vacancy on the ground that the vacancy arose during the ban period. w.p.c.21860/06 - : 3 :- 2. A counter affidavit has been filed on behalf of the 2nd respondent supporting the orders passed. The 3rd respondent has filed a counter affidavit supporting the case of the petitioner. 3. I have considered the rival contentions in detail. 4. It is not disputed that before me that on promotion from Grade II Librarian to Grade I Librarian, there is no change of duties. Admittedly, the vacancy arose on 1.4.2003. It is also admitted that the petitioner was not promoted only because of Ext.P2 ban imposed by the Director of Collegiate Education in the matter of filling up vacancies by promotion. By Ext.P16 judgment, this Court has categorically held that the Director of Collegiate Education had no jurisdiction to issue Ext.P2 circular and that the circular affecting the rights of employees for promotion and the managements to make promotion cannot be enforced. Therefore, I am of opinion respondents 1 and 2 cannot deny eligible promotion to the petitioner to the vacancy which arose on 1.4.2003 on the basis of Ext.P2 circular. Accordingly, this writ petition is disposed of with the following directions: The petitioner shall be given notional promotion as Grade I Librarian with effect from 1.4.2003. The petitioner's pay shall be fixed accordingly for the purpose of calculating her retirement benefits. But the petitioner is not entitled to arrears of pay based on the fixation. The petitioner's retirement benefits shall be calculated on the basis of w.p.c.21860/06 - : 4 :- the pay fixed as directed above as on the date of her retirement. The petitioner's retirement benefits shall be revised on the basis of refixed pay as directed above. Orders in this regard shall be passed and arrears of retirement benefits disbursed to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge