IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 WP(C).No. 25689 of 2010(I) -------------------------- PETITIONER(S): --------------- V.PREMAJA, HEAD OF SECTION, DEPARTMENT OF COMPUTER APPLICATION & BUSINESS MANAGEMENT, GOVERNMENT POLYTECHNIC COLLEGE, THRIKARIPUR, KASARAGOD DISTRICT, PIN - 671310. BY ADV. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. BY G.P.SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/09/2010, A/W.WP(C) NO.26140 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------------- W.P(C).Nos.25689 of 2010 & 26140 of 2010 --------------------------------------------- Dated this the 2nd day of September, 2010 JUDGMENT The case of the petitioner, V.Premaja, in W.P. (C) No.25689 of 2010 is the following: She was appointed on a provisional basis as Lecturer in Business management on 3.6.1996 in the Residential Women Polytechnic College, Payyannur. She continued there till 31.3.1997. On the eve of 50th year of independence, the Government of Kerala issued an order directing to re-appoint all physically handicapped employees who were provisionally appointed. The petitioner, who was continuing as a provisional employee was re- appointed as per Ext.P1 proceedings dated 19.11.1998. The service of the petitioner was regularized as per Ext.P2 order dated 26.11.2001. The probation of the petitioner was declared with effect from 25.10.2001 as evidenced by Ext.P3. 2. According to the petitioner, she was the senior most Lecturer in Business Management and W.P(C).Nos.25689 of 2010 & 26140 of 2010 2 therefore, she was entitled to be promoted as Head of Section. Since her claim was not considered she filed WP(C)No. 31274/2007. As directed by this court, the Government considered the matter and issued GO(Rt)No.530/2008/H.Edn. dated 28.3.2008 (Ext.P6) promoting the petitioner as Head of the Section in Computer Application and Business Management. Ext.P6 shows that the petitioner was appointed as Head of Section provisionally under Rule 9(a)(i) of part II of KS & SSR. According to the petitioner, the mention of Rule 9(a)(i) in Ext.P6 was erroneous. The petitioner submitted Ext.P7 representation dated 19.6.2009 requesting to regularize her appointment as Head of Section. The reliefs prayed for in the Writ Petition are the following: “i) To issue a Writ of certiorari or any other appropriate Writ, Order or direction calling for the records leading to Ext.P6 and quash the same to the extent it treats the promotion of the petitioner as Head of Section in Computer Application and Business Management as provisional under Rule 9a(i) of the K.S.& S.S.R.; ii) To issue a Writ of mandamus or any other W.P(C).Nos.25689 of 2010 & 26140 of 2010 3 appropriate writ, order or direction directing the respondents to treat the promotion of the petitioner as Head of Section in Computer Application and Business Management vide Ext.P6 order as regular promotion; iii) To declare that the petitioner who possess M.B.A.Degree in Business Management is entitled to be given regular promotion as Head of Section; iv) To issue a Writ of mandamus or any other appropriate writ, order or direction directing the respondents to regularize the promotion of the petitioner as Head of Section in Computer Application and Business Management made as per Ext.P6 order and grant all consequential benefits; And v) To grant such other and further reliefs as are just, proper and necessary in the facts and circumstances of the case.” 3. The case of P.M.Ferose, the petitioner in W.P(C) No.26140 of 2010, is the following: He was appointed on a provisional basis as Lecturer in Business Management on 20.1.1997 in the Government Women's Polytechnic College, Kottakkal, where he continued till 31.3.1997. As per Government Order dated 5.10.1999(Exhibit-P1), the petitioner was re-appointed as Lecturer in Business Management on a provisional basis. As per Ext.P2 W.P(C).Nos.25689 of 2010 & 26140 of 2010 4 order dated 7th March, 2003, the service of the petitioner was regularized. The probation of the petitioner was declared with effect from 6.11.2001. As per Ext.P5 order dated 10.2.2006, the petitioner was provisionally promoted as Head of the Section under Rule 9(a)(i) of KS & SSR. According to the petitioner, this was mistakenly done and promotion could not be treated as provisional. The petitioner submitted a representation to the Government, which was disposed of as per Ext.P6 order dated 1.1.2010. Ext.P6 reads as follows: “I am to draw your attention to the reference cited and inform that, as you know Government have already taken a decision to review all the appointment of Lecturer and Head of Section in Computer Application and Business Management. This can be further pursued subject to the decision on the above Review.” 4. The reliefs prayed for the petitioner are the following: “i) To issue a Writ of certiorari or any other appropriate Writ, Order or direction calling for the records leading to Exts.P5 and P6 and quash the same to the extent it treats the promotion of the petitioner as Head of Section in Computer Application and Business W.P(C).Nos.25689 of 2010 & 26140 of 2010 5 Management as provisional under Rule 9a(i) of the K.S.& S.S.R.; ii) To issue a Writ of mandamus or any other appropriate writ, order or direction directing the respondents to treat the promotion of the petitioner as Head of Section in Computer Application and Business Management made as per Ext.P5 order as regular promotion; iii) To declare that the petitioner who possess M.B.A.Degree in Business Management is entitled to be given regular promotion as Head of Section; iv) To issue a Writ of mandamus or any other appropriate writ, order or direction directing the respondents to regularize the promotion of the petitioner as Head of Section in Computer Application and Business Management made as per Ext.P5 order and grant him all consequential benefits; And v) To grant such other and further reliefs as are just, proper and necessary in the facts and circumstances of the case.” 5. According to the petitioners, appointments could be effected even as per executive orders and existence of statutory rule is not a condition precedent to make appointments in Government service. The petitioners having been appointed as per executive orders, they are entitled to all the service benefits. There cannot be any review of the W.P(C).Nos.25689 of 2010 & 26140 of 2010 6 same only on the ground that subsequently special rules would be framed. 6. The matter is under consideration before the Government. It is submitted by the learned Government Pleader that the Government would consider all the aspects, the circumstances under which the petitioners were appointed, the fact that the special rules are not yet framed and the fact that the petitioners are continuing for in service for a long period and take appropriate decision at the Government level. It is submitted by the learned Government Pleader that it is not necessary to entertain the Writ Petitions at this stage, and that the grievance of the petitioners would be considered by the Government before disposing of the matter. The learned counsel appearing for the petitioners submitted that it is sufficient, if the Government properly considers the matter expeditiously. W.P(C).Nos.25689 of 2010 & 26140 of 2010 7 7. Taking into account the facts and circumstances of the case, the Writ Petitions are disposed of recording the submissions made by the learned Government Pleader. The Government shall consider the matter taking into account all the relevant aspects (and also taking into account the question whether regular promotions were given to two other similarly situated persons) and the averments in the Writ Petitions and the documents produced along with the Writ Petitions as expeditiously as possible and at any rate within a period of three months from the date of receipt of a copy of this judgment. The petitioners shall produce copies of the Writ Petition and certified copy of the judgment before the Government. K.T.SANKARAN, JUDGE cms