IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WP(C).No. 36672 of 2007(N) --------------------------------------- PETITIONER(S): ------------------------ L.MOHANAN, HIGH SCHOOL ASSISTANT (MATHS), GOVT. HIGHER SECONDARY SCHOOL, KUZHIMATHIKADU, KUZHIMATHIKADU (PO), KOLLAM DISTRICT. BY ADV. MR.M.V.THAMBAN RESPONDENT(S): -------------------------- 1. THE DEPUTY DIRECTOR (EDUCATION), KOLLAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVT., DEPARTMENT OF GENERAL EDUCATION, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SMT.T.B.RAMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.36672/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPLICATION DTD. 10.3.92 SUBMITTED BY THE PETITIONER. P2:- COPY OF THE ORDER NO.A1-16026/92 DTD. 22.9.92 ISSUED BY DDE. P3:- COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK. P4:- COPY OF THE ORDER NO.A1-4714/94 DTD. 7.9.94 ISSUED BY DDE. P5:- COPY OF THE ORDER NO.E6/34956/04 DTD. 11.4.05 ISSUED BY THE DIRECTOR OF PANCHAYAT. P6;_ COPY OF THE CIRCULAR NO.A1-3200/95 DTD. 13.10.05 ISSUED BY DDE. P7;_ COPY OF THE GO(P) NO.36/91/P & ARD DTD. 2.12.91. P8;_ COPY OF THE JUDGMNET DT. 20.10.95 IN OP. 16470/95 (I). P9:- COPY OF THE ORDER GO(RT) NO.519/96/G.EDN. DTD. 8.2.96. P10:- COPY OF THE JUDGMENT DTD. 24.6.05 IN OP. NO.3034/96. P11:- COPY OF THE SERVICE CARD, FILED DTD. 1.11.01 BY THE PETITIONER. P12:- COPY OF THE ORDER NO.SY1/16868/2006/DPI DTD. 15.3.06 ISSUED BY THE DPI. P13:- COPY OF THE REPRESENTATION DTD. 10.8.06 SUBMITTED BY THE PETITIONER BEFORE THE DPI. P14:- COPY OF THE DETAILED REPRESENTATION DT. 31.8.06 SUBMITTED BY THE PETITIONER BEFORE GOVT. P15:- COPY OF THE LETTER NO.56116/R1/2006/G.EDN. DTD. 25.10.07 ISSUED BY THE SECRETARY TO GOVT. BY THE PETITIONER BEFORE GOVT. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.36672/2007-N ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 7th day of August, 2009 J U D G M E N T The petitioner herein is aggrieved by various orders culminating in Ext.P15 whereby, the request to restore his seniority has been rejected. He is presently working as H.S.A(Maths) in Government Higher Secondary School, Kuzhimathikadu in Kollam District. The Director of Public Instruction prepared and published provisional seniority list of High School Assistant, for the period from 01/01/1981 to 31/12/1985, wherein, his name does not figure. 2. The history of the case is the following: Petitioner was selected as H.S.A (Maths) as per advice Memo dated 19/05/1984 of the P.S.C. He joined duty in Government High School, Peruvalloor, Malappuram District on 21/06/1984. He sought for an Inter District Transfer, as per Ext.P1 application dated 10/03/1992, being the elder brother of a Jawan and that was granted as per Ext.P2. Ext.P2 is dated 22/09/1992. It was specifically provided therein that the petitioner being the relative of a Jawan, his original seniority in the post of H.S.A will be W.P.(C). No.36672/2007 -:2:- retained in Kollam District. Accordingly, entries were made in the Service Book, which is evidenced by Ext.P3. 3. Trouble arose when by way of Ext.P6, the Deputy Director issued a Circular stating that in the light of G.O.(P) No.36/91/P&ARD, dated 02/12/1991, of the Director of Public Instruction, the benefits given to the relatives of Jawans to retain their seniority in the transferee district cannot be sustained. Direction was issued to verify the same and make corrections in the Service Book. Ext.P7 is the said Government Order which evidences the fact that any Inter District Transfer except the one, that candidates advised to Head Quarters vacancies to the district of his choice will entail loss of seniority and, service prior to the transfer will count towards increment, leave and pension benefits. The petitioner approached this Court by filing O.P.No.16470/1995, which was disposed of by Ext.P8 directing the Government to consider Ext.P6 representation produced therein. Thereafter, by Ext.P9, the Government refused to recognise the seniority in the light of Ext.P7 Government Order. The Government said that Ext.P2 order has been passed without considering Ext.P7 Government Order. This was interfered with by Ext.P10 interim order of this Court wherein, he was allowed a further opportunity to approach the Government. W.P.(C). No.36672/2007 -:3:- Ext.P11 is the form of Service Card of the petitioner for preparation of seniority list. As per Ext.P13, he made a request before the Director of Public Instruction that he may be transferred back to Malappuram to safe guard his seniority. Ext.P14 is the further representation submitted before the Government in the matter. 4. In Ext.P15, communication of the Government, it is held that the petitioner is not eligible for retention of Original Seniority in Inter District Transfer in view of para 4(ii) of Ext.P7 Government Order dated 02/12/1991. This is under attack in this writ petition. 5. In the counter affidavit filed on behalf of the second respondent, justification is sought for with regard to the refusal to interfere with the earlier orders. The learned counsel for the petitioner submitted that the petitioner cannot be asked to suffer any loss based on a fault committed by the educational authority who passed Ext.P2. If the petitioner was told that he will not be able to retain the seniority, he would not have accepted the Inter District Transfer. When the transfer is ordered on a specific condition that his original seniority will be retained in the transferee district, that has to be recognised at all points of time. The said order has not been cancelled. At the time when provisional seniority was published, he was W.P.(C). No.36672/2007 -:4:- denied the rightful place based on Ext.P7 Government Order. It is further submitted that nothing is mentioned in Ext.P15 about the request made by the petitioner that he may be transferred to Malappuram District to retain the original seniority. It is pointed out that at the fag end of his career, the petitioner can only aspire promotion as Head Master and now on the loss of seniority, he will be denied the said rightful claim that would be available, if he is able to retain his original seniority. 6. The learned Government Pleader submitted that the action taken by the respondent is perfectly justified, especially, in the light of Ext.P7. 7. In the light of Ext.P7, he cannot retain the original seniority after transfer to Kollam District. But a reading of Ext.P15 does not show that the Government has considered, on merits, the request of the petitioner for a transfer back to Malappuram. In the counter affidavit, the only reason stated is that his request may not be considered by the Government at this distance of time. No other reason is also stated in the counter affidavit. 8. The entire circumstances of the case, as projected by the petitioner, have not been considered while rejecting the request. In that view of the matter, to consider his request, as made in Ext.P14, to allow him W.P.(C). No.36672/2007 -:5:- to go back to Malappuram District to safe guard his original seniority, the matter is remitted back to the Government only to this limited extent alone. Appropriate orders will be passed after considering his request made in paragraph (11) of Ext.P14 within a period of three months from the date of receipt of a copy of the judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms