IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 WP(C).No. 17491 of 2007(G) -------------------------------------- PETITIONER(S): ---------------------- K.K.BABURAJ, JR.SUPERINTENDENT, N.S.S. TRAINING COLLEGE, OTTAPALAM, RESIDING AT KALARIKKAL KARUMUTTIL HOUSE, PENGAMUCK P.O., PIN-680 544, THRISSUR. BY ADV. MR.T.P.DEYANANTHAN RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM-33. 3. THE SECRETARY, N.S.S.CENTRAL COMMITTEE, PERUNNA P.O., CHANGANASSERY. R1 & R2 BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR R3 BY MR.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE, SC, ADV. MR.P.GOPAL, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 17491/2007-G APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CIRCULAR NO.E1.56284/01/COLL. EDN. DATED 05/12/2001 ISSUED BY 2ND RESPONDENT. EXT.P2: COPY OF THE JUDGMENT IN W.P.(C). NO. 28955/2004 (V) DTED 03/04/2006. EXT.P3: COPY OF THE ORDER NO.G.O.NO.119/04/H.EDN. DATED 17/09/2004 ISSUED BY 1ST RESPONDENT. EXT.P4: COPY OF THE ORDER G.O.(RT)NO.1161/05/H.EDN. DATED 04/07/2005. EXT.P5: COPY OF THE ORDER OF R3 NO.H.3446/05 DATED 26/05/2005. EXT.P6: COPY OF THE ORDER NO.E2-18229/05/COLL.EDN. DATED 14/10/2005 ISSUED BY THE 2ND RESPONDENT. EXT.P7: COPY OF THE JUDGMENT DATED 19/07/2006 IN W.P.(C). NO. 18910/2006 (A). EXT.P8: COPY OF THE ORDER OF THE MANAGER IN ORDER NO.E 4901/06 DATED 23/08/2005. EXT.P9: COPY OF THE LETTER OF THE 2ND RESPONDENT IN E4-51311/06/COLL. EDN. DATED 04/05/2007. EXT.P10: COPY OF THE REPRESENTATION DATED 23/05/2007 SUBMITTED TO THE RESPONDENTS. EXT.P10(a): COPY OF THE POSTAL TRANSIST RECEIPT DATED 24/05/2007. EXT.P11: COPY OF THE LETTER NO.E4-26718-2007/COLL. EDN. DATED 20/11/2007. EXT.P12: COPY OF THE ORDER NO.E4-51311/06/COLL. EDN. DATED 20/09/2007. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE Rs/ S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 17491 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd May, 2009. J U D G M E N T While the petitioner was working as U.D. Clerk in the colleges under the N.S.S. Management, the Government implemented the policy of de-linking pre-degree course from colleges. Allegedly on the basis of a ban imposed on promotions consequent to that policy decision, the petitioner did not get his due promotion as Head Accountant. This Court, in Ext. P2 judgment, held that even in the case of non-teaching staff of aided colleges, the ban was in force only till the period prescribed in the Act, by which the said policy was implemented. That was over in the year 2000. The petitioner claimed promotion as Head Accountant. Ultimately, he succeeded and by Ext. P5 order dated 26-5-2005, the manager of the college promoted the petitioner as Head Accountant and posted him at N.S.S. College, Manjeri in the vacancy which arose on account of the retirement of one Sri. K. Unnikutty, Head Accountant, on 30-4-2002. However, in Ext. P5, it was specifically stated that the said order of promotion will take effect only from the forenoon of 3-6-2005. The petitioner submits that since there was a vacancy on 1-5-2002 on retirement of Sri. K. Unnikutty at N.S.S. College, Manjeri, the petitioner's promotion ought to have been with effect from 1-5-2002 and not with effect from 3-6- 2005. Subsequent to Pre-degree de-linking, by Ext. P6, the Director of Collegiate Education revised the staff pattern of various colleges including N.S.S. Training College, Ottappalam. As per the revised staff pattern, there was a post of Junior Superintendent, which was a post to be filled up by promotion from Head Accountants. In Ext. P6 staff fixation order, it was specifically stated that that staff fixation order will take effect from 17-9-2004. The petitioner did not get promotion to that post. The petitioner submits that in respect of his date of promotion as Head Accountant and his claim for promotion W.P.C. No. 17491/2007 -: 2 :- as Junior Superintendent, he filed a representation both before the management and the Director of Collegiate Education. By Ext. P8, the management granted promotion to the petitioner as Junior Superintendent with retrospective effect from 17-9-2004. But, in Ext. P8, although the claim of the petitioner for promotion as Head Accountant with effect from 1-5-2002 was referred to, that claim was not considered. Thereafter, by Ext. P9 order dated 4-5-2007, the Director of Collegiate Education approved the promotion of the petitioner as Junior Superintendent only with effect from 14-10-2005 on the ground that the post of Junior Superintendent was created only on 14-10-2005. The petitioner filed Ext. P10 representation before the Government, the Director of Collegiate Education and the management, in which both his claims regarding date of promotion as Head Accountant and promotion as Junior Superintendent was raised. But, by Ext. P11 order, the Director of Collegiate Education held that the petitioner is entitled to promotion as Junior Superintendent only with effect from 14-10-2005. By Ext. P11 also, the petitioner's claim regarding date of promotion as Head Accountant was not considered. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(i) to issue a writ of certiorari or any other writ or order calling for details relating to Ext. P 9 and quash the same; (ii) to issue a writ of mandamus or any other appropriate writ, order or direction to the respondents to act in accordance with Exts.P3 and P4, and promote the petitioner within a time frame according to the date of occurrence of vacancies and approve the same with back arrears of pay; (iii) to declare that the petitioner is entitled to promotion as Head Accountant and Junior Superintendent w.e.f. 1-5-2002 and 1- 6-2004 with monetary benefits as in Ext. P 4; (iv) to direct the 1st respondent to consider Ext. P10 W.P.C. No. 17491/2007 -: 3 :- representation and pass orders within a time frame in accordance with Exts.P3 and P4 orders after hearing the petitioner; (iv)(a) to issue a writ of certiorari or any other writ, or order or direction calling for details relating to Exts.P9 and P11 and quash the same.” 2. According to the petitioner, as is clear from Ext. P5 order itself, the petitioner was appointed in the vacancy which arose on account of the retirement of Sri. K. Unnikutty on 30-4-2002 and therefore the vacancy arose on 1-5-2002. That being so, the petitioner was entitled to be promoted to that vacancy with effect from 1-5-2002. He further contends that as is clear from Ext. P6, the staff pattern of the college was fixed with effect from 17-9-2004 and the post of Junior Superintendent was sanctioned. He points out that the Director of Collegiate Education himself, in Ext. P12 order, approved the promotion of two persons as Junior Superintends in N.S.S. College, Manjeri and N.S.S. Training College, Ottappalam with effect from 17-9-2004 and therefore there was no reason whatsoever to deny that benefit to the petitioner. 3. A counter affidavit has been filed by the 2nd respondent reiterating the stand that since the post of Junior Superintendent was created with effect from 14-10-1995, the petitioner is entitled to approval as Junior Superintendent with effect from that date. With regard to the claim of the petitioner for promotion as Head Accountant with effect from 1-5-2002, the averments in the counter affidavit is very vague. Although the 3rd respondent has not filed any counter affidavit, he would support the claim of the petitioner on both counts. 4. I have considered the rival contentions in detail. 5. The fact that there was a post of Head Accountant in N.S.S. College, Manjeri which was occupied by Sri. K. Unnikutty, is not seen W.P.C. No. 17491/2007 -: 4 :- disputed by anybody. It is also not disputed before me that he retired on 30-4-2002. If that be so, in N.S.S. College, Manjeri, there was a vacancy of Head Accountant with effect from 1-5-2002. In fact, in Ext. P5, it is specifically stated that the petitioner has been promoted to that vacancy only. If that be so, there was no reason for restricting the petitioner's promotion with effect from 3-6-2005 as was done in Ext. P5. No reason whatsoever is also forthcoming from any of the respondents for the same. Of course, the learned Government Pleader would make a feeble attempt to contend that the staff pattern prior to revision was as per Ext. P3 and that perhaps in N.S.S. College, Manjeri, there was no separate post of Head Accountant, but only a Junior Superintendent-cum-Head Accountant. But, in Ext. P3 that position is applicable to only E Grade colleges. The petitioner would submit that N.S.S. College, Manjeri is a B Grade college. The respondents are not able either to affirm or contradict the same. In any event, it is not disputed before me that Sri. Unnikutty was working only as a Head Accountant. That being so, on his retirement, the vacancy of Head Accountant in N.S.S. College, Manjeri should be available for promotion of the petitioner. Going by the above reasoning, normally, I should have held that the petitioner is entitled to promotion as Head Accountant with effect from 1-5-2002. But, another difficulty arises in that matter. In Ext. P5 itself, one Sri. M.P.Vasudevan, U.D. Clerk of N.S.S. College, Manjeri was promoted as Senior Superintendent and posted in the same college. The petitioner would admit that Sri. M.P. Vasudevan is senior to the petitioner. If that be so, it defies logic as to how Sri. M.P. Vasudevan, a U.D. Clerk was promoted directly as Senior Superintendent, if there were posts of Head Accountant and Junior Superintendent in that college. Therefore, the petitioner could have been given the date of W.P.C. No. 17491/2007 -: 5 :- promotion of Head Account as 1-5-2002 only if some material is available to me to show that there was a vacancy of Head Accountant in N.S.S. College, Manjeri as on 1-5-2002. None of the parties have been able to provide me any such a material. Therefore, I am of opinion that the matter should be re-considered by the Director of Collegiate Education with regard to the petitioner's claim for promotion as Head Accountant with effect from 1-5-2002. 6. It is altogether a different situation as regards the petitioner's claim for promotion as Junior Superintendent with effect from 17-9-2004. In Ext. P6 staff fixation order, it is clearly stated that in N.S.S. Training College, Ottappalam, a post of Junior Superintendent is sanctioned. It is specifically stated in Ext. P6 order that the said staff fixation order will take effect from 17-9-2004. Further from Ext. P 12 it is clear that the appointment of two other similarly placed Junior Superintendents were approved with effect from 17-9-2004. The learned Government Pleader could not satisfy me as to why the same benefit could not be given to the petitioner. The learned Government Pleader could not also explain to me as to how if the post was sanctioned with effect from 14-10-2005, staff fixation was made with effect from 17-9-2004. in view of the above findings, the writ petition is disposed of with the following directions: (a) Exts.P9 and P11 orders are quashed. It is declared that the petitioner is entitled to promotion as Junior Superintendent with effect from 17-9-2004. (b) The Director of Collegiate Education will pass orders approving promotion of the petitioner as Junior Superintendent with effect from 17-9-2004 within one month from the date of receipt of a copy of this judgment. Monetary benefits arising therefrom shall be W.P.C. No. 17491/2007 -: 6 :- disbursed to the petitioner within another month. (c) The Director of Collegiate Education shall re-consider the claim of the petitioner for promotion as Head Accountant with effect from 1-5-2002, after ascertaining whether there was in fact a vacancy of Head Accountant in N.S.S. College, Manjeri with effect from that date, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner as well as the 3rd respondent. Sd/- S. Siri Jagan, Judge. Tds/