IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 WP(C).No. 16722 of 2007(N) -------------------------- PETITIONER(S): --------------------- G.JAYAPRAKASH, SENIOR SCALE LECTURER IN MALAYALAM, UNIVERSITY COLLEGE, THIRUVANANTHAPURAM. BY ADVS. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY RESPONDENT(S): ----------------------- 1. STATE OF KERALA , REPRESENTED BY THE SECRERTARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETRAIT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHPURAM. BY GOVERNMENT PLEADER SRI.NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 16722 of 2007(N -------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS ---------------------------------- EXT.P1. COPY OF THE SAID ORDER NO.ESTT-A2-8028/94/COLL.EDN. DATED 26.5.1994 ISSUED BY THE 2ND RESPONDENT. EXT.P2. COPY OF THE INTERIM ORDER DATED 7.6.1994 IN CMP NO.13040/1994 IN OP. NO.7225/1994. EXT.P3. COPY OF THE REPRESENTATION DATED 13.6.1994 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4. COPY OF THE SUBMISSION MADE BY THE PETITIONER BEFORE THE 2ND RESPONDENT ON 15.6.1994. EXT.P5. COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 28.2.1995 BEFORE THE PRINCIPAL OF THE COLLEGE, KATTAPPANA. EXT.P6. COPY OF THE COMMUNICATION DATED 4.4.1995 ISSUED BY THE 2ND RESPONDENT TO THE PRINCIPAL OF THE GOVERNMENT COLLEGE, KATTPPANA. EXT.P7. COPY OF THE JUDGMENT DATED 13.1.1999 IN O.P. NO.7525/1994 OF THIS HON'BLE COURT. EXT.P8. COPY F THE REPRESENTATION DT. 13.11.1995 SUBMITTED BEFORE THE 1ST RESPONDENT. EXT.P9. COPY OF THE GOVERNMENT ORDER GO (RT) NO.559/99/H. EDN. DATED 31.5.1999 EXT.P10 COPY OF THE GOVERNMENT ORDER NO.GO (RT) NO.728/1989/H.EDN. DATED 28.4.1989. EXT.P11. COPY OF THE COUNTR AFFIDAVIT FILED BY THE 1ST RESPONDENT IN OP NO.15706/1999 OF THIS HON'BLE COURT. EXT.P12. COPY OF THE JUDGMENT DT. 24.5.2006 IN OP NO.15706/1999 OF THIS HON'BLE COURT. EXT.P13. COPY OF THE REPRESENTATION DATD 15.7.2006 SUBMITTED BEFORE THE 1ST RESPONDENT BY THE PETITINER. EXT.P.14. COPY OF THE SAID ORDER GO (RT) NO.235/2007/H.EDN. DATED 8.2.2007. RESPONDENT'S EXHIBITS : NIL --------------------------------------------- / TRUE COPY / P.A. TO JUDGE VK S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 16722 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 18th day of October, 2011. J U D G M E N T While the petitioner was working as Senior Scale Lecturer in Malayalam in Government College, Manimalakkunnu in Ernakulam district, he was transferred to Government College, Kattappana by order dated 26.5.1994. The petitioner challenged the transfer and obtained a stay from this Court. However, the petitioner was relieved from duty. Although the petitioner requested to permit him to join duty, he was not permitted to join duty. Ultimately, the petitioner approached this Court and this Court directed the petitioner to report for duty in the transferred college. The petitioner joined duty pursuant to the order on 28.2.1995. However, for the period from 8.6.1994 to 27.2.1995, he was nowhere. The petitioner requested to regularise the said period of absence as duty, which was rejected as per Ext.P9 order. The petitioner submits that in that regard, he is entitled to be given the same benefit given to another Government employee by Ext.P10 order, which has been denied on the ground that files are not available to ascertain whether the facts of the case covered by Ext.P10 is identical to those of the petitioner. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i. issue a writ in the nature of certiorari or any other appropriate writ, order or direction, calling for the records leading to Exts. P9 and P14 orders and to quash the same; W.P(C) No. 16722 of 2007 -: 2 :- ii. issue a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the respondents to treat the period from 8.6.1994 to 27.2.1995 during which the petitioner has to compulsorily wait for posting orders, as duty and to grant all the consequential service benefits including increment, placement as Selection Grade Lecturer etc. iii. issue a writ in the nature of mandamus or such other writ, direction or order declaring that the period from 8.6.1994 to 27.2.1995 during which the petitioner had to wait compulsorily for posting order, shall be treated as duty for all purposes.” 2. A counter affidavit has been filed seeking to refute the contentions of the petitioner. 3. The learned counsel for the petitioner points out that in respect of Ext.P10, the stand taken by the Government in Ext.P11 counter affidavit filed in an earlier writ petition filed by the petitioner was that Ext.P14 has no general application and it has been issued in the peculiar circumstances of that particular case. Therefore, according to the petitioner, the Government is taking different stands at different times and the file relating to Ext.P10 is deliberately withheld to deny that benefit to the petitioner. 4. I have considered the rival contentions in detail. 5. I am of opinion that in the peculiar circumstances of the case, the petitioner cannot be denied all service benefits for the period from 8.6.1994 to 27.2.1995. It is because the petitioner has not been permitted to join duty that the petitioner could not join duty. The petitioner ultimately joined duty pursuant to the orders from this W.P(C) No. 16722 of 2007 -: 3 :- Court. In the above circumstances, I am inclined to direct the respondents to treat the period of service from 8.6.1994 to 27.2.1995 as period spent on duty. But, since the petitioner did not work for the period, I am not inclined to direct payment of arrears of salary to the petitioner for the said period. However, the said period shall be counted as duty for all other purposes like seniority, retirement benefits etc., except salary for the said period. To that extent, Exts.P9 and P14 orders are quashed. The 2nd respondent is directed to pass orders treating the period from 8.6.1994 to 27.2.1995 when the petitioner was kept out of duty as period spent on duty for all purposes except payment of arrears of salary for the said period, as expeditiously as possible, at any rate, within 2 months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/