IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 WA.No. 1895 of 2009() --------------------- AGAINST THE JUDGEMEN IN WPC.22137/2004 Dated 10/06/2009 .................... APPELLANT/PETITIONER: ------------------------- SMT.S.ROSE MARY, U.D.CLERK (HIGHER GRADE), NOW WORKING AT TEXTBOOK OFFICE, PADMAVILASAM, FORT, THIRUVANANTHAPURAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.N.P.PRAJEESH RESPONDENTS/RESPONDENTS: --------------- 1. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. NALLASIVAN PILLAI.C., UPPER DIVISION CLERK, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM. GOVT.PLEADER, SMT.N.SUDHA DEVI FOR R1 TO R3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ. --------------------------------- W.A. No. 1895 OF 2009 ---------------------------------- Dated this, the 24th day of August, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The writ petitioner is the appellant. She joined service in the Education Department in Trivandrum District as L.D.Clerk on 16.3.1985. Later, she was promoted as U.D.Clerk, provisionally, with effect from 28.2.1986. At the relevant time, the petitioner did not complete her probation and therefore, by virtue of Rule 28 of Part II K.S. & S.S.R, she could not have been promoted on regular basis. While so, on 27.11.2002, Ext.P4 Circular was issued, publishing a provisional seniority list of U.D.Clerks for the period from 1.1.1986 to 31.12.1988. The petitioner, as she was not included in it, filed Ext.P5 representation dated 23.12.2002 before the 1st respondent against it. Later, she was informed that the representation may be filed before the 2nd respondent, as Ext.P4 was published by the said respondent. So, the petitioner filed W.A. No.1895/2009 2 Ext.P7 representation dated 13.1.2003 before the 2nd respondent, Director of Public Instruction. She was served with Ext.P9 order of the Director of Public Instruction dated 9.7.2003 stating that the promotion granted to her with effect from 28.2.1986 was found to be wrong, as it was done without vacancies available and the said promotion was cancelled as per order dated 1.11.1989. She was subsequently promoted as U.D.Clerck with effect from 5.5.1994, it was stated in Ext.P9. Aggrieved by Ext.P9 order of the DPI, she filed an appeal before the Government as per Ext.P10. Later, as per the direction of this Court, the Government dismissed her appeal by Ext.P13 dated 5.7.2004. In the meantime, Ext.P14 final seniority list was published for the period from 1.1.1986 to 31.12.1988. The petitioner was not included in that list. Therefore, the Writ Petition was filed challenging Exts.P9, P11, P13 and P14. 2. The respondents resisted the prayers in the Writ Petition by filing a counter affidavit stating that 17 persons including the appellant/petitioner were wrongly promoted in 1986 provisionally. In fact, there were no vacancies to W.A. No.1895/2009 3 accommodate them. All of them were reverted and thereafter they were promoted only in 1993. The petitioner filed a reply affidavit dealing with the above averments. The learned Single Judge, after hearing both sides, dismissed the Writ Petition upholding the contentions of the respondents. The aggrieved petitioner has preferred this Writ Appeal. 3. We heard the learned counsel for the appellant. The learned counsel submitted that she was never informed of her reversion in 1989 or further promotions in 1993. In her service book, the same was never recorded. All along, she continued to work as U.D.Clerk. 4. We considered contentions advanced on behalfof the appellant. The functions of L.D.Clerk and U.D.Clerk are one and the same. Therefore, it is meaningless to contend that she was worked as the U.D.Clerk all along. The omission of the Controlling Officer of the petitioner, her Headmaster, to record the reversion in her service book will not confer on her any right. The same will not bind the Director of Public Instruction or other seniors of her, who are placed above her W.A. No.1895/2009 4 in the seniority list. Obviously, the promotion granted in 1986 was only a provisional promotion, as she was a probationer at the relevant time. Of course, if vacancies are remaining unfilled for want of qualified hands, provisional promotions can be ordered. But, in this case, when the 2nd respondent, Director of Public Instruction, asserts that she along with 16 others were wrongly promoted without vacancies, we find no reason to take a different view. Whether she was actually served with an order or the same was recorded in her service book are matters of form and not of substance. A provisional promotee does not have any legal right to claim that she should be granted seniority with effect from that date. The learned counsel submitted that she was reverted only in paper, without notice to her. But, in the absence of any prejudice, except the prejudice resulting from reversion, nothing is pleaded or proved. If she had a case that, she was an approved probationer, when she was promoted and there were vacancies and the claim of the 2nd respondent that at the relevant time there were not sufficient vacancies is wrong, then it can be said that absence of notice has caused prejudice to her. In the absence of any such case, we are W.A. No.1895/2009 5 impressed by the technical contention of violation of principles of natural justice. 5. In the result, the Writ Appeal fails and it is dismissed. The appellant prays, the excess salary paid to her may not be recovered. We notice that public money has been paid to her by a mistake. In view of the Division Bench decision of this Court in Santhakumari v. State of Kerala [2005 (4) KLT 649], the claim of the appellant cannot be sustained. Therefore, we decline to interfere with the proposal to recover the excess salary paid to the appellant. (K. BALAKRISHNAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) ps