IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 W.A.No.75 of 2008() AGAINST THE ORDER IN WPC.26522/2004 Dated 19/11/2007 APPELLANT: PETITIONER: P.J.ROSAMMA, HSA, G.H.S. BALAL, PARAPPA (VIA), KASARAGOD DISTRICT. BY ADV. SRI.P.RAVINDRAN (SENIOR) SRI.ANIL SIVARAMAN RESPONDENTS: RESPONDENTS 1. STATE OF KERALA, REP. BY ITS SECRETARY, GOVERNMENT EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DISTRICT EDUCATION OFFICER, KASARAGOD. 4. O.GANGADHARAN, S/O.KUNHIRAMAN, HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE), GOVERNMENT TEACHERS TRAINING INSTITUTE FOR MEN, KANNUR. 5. C.GOPALAN, S/O.OTHENAN, HIGH SCHOOL ASSISTANT (MATHS), G.V.H.S.SCHOOL FOR GIRLS, KANNUR. 6. A.VENUGOPALAN, S/O.ANANTHAN, HIGH SCHOOL ASSISTANT (MATHS),G.V.H.S.SCHOOL,KATHIRUR. 7. K.P.VASANTHAKUMARI, W/O.K.K.BHASKARAN, HIGH SCHOOL ASSISTANT (MATHS), G.H.S.SCHOOL, PATYAM, PATHAYAKUNNU. BY GOVERNMENT PLEADER SMT. R.BINDU-R1 TO R3 SRI. V.A.MUHAMMED- R4 TO R7 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2009, ALONG WITH WA NO.256 OF 2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NOS. 75 & 256 OF 2008 --------------------------------------------- Dated this the 28th day of August, 2009 JUDGMENT Ravikumar, J. The appellants were the petitioners. They were High School Assistants. The above appeals were preferred respectively against the judgments in W.P.(C) No.26522 of 2004 and W.P.(C) No. 20712 of 2006. The petitioners acquired the qualifications prescribed under Rule 5 of the Kerala General Education Rules (hereinafter referred to as “the Rules”) for promotion to the post of Headmaster. Essentially, the quintessence of the contentions in both the appeals pertains to the grievance in the matter of exemption granted from passing the departmental test prescribed under Rule 5 of the said Rules in respect of teachers who have crossed the age of 50 and who are otherwise qualified for promotion as Headmaster/Assistant Educational Officer, for a period of three years. Such exemption was granted, by invoking the power vested with the Government, vide G.O.(Rt) No. 1627/G.Edn. dated 29.4.2003, a copy of which is produced as Ext.P4 in W.P.(C) No. 26522 of 2004( Ext.P1 in W.P.(C) No. 20712 of 2006). W.A.NOS.75 & 256/2008 2 The period of the said order was extended from time to time by orders on diverse dates and the last one is Ext.P7 in W.P.(C) No. 27012 of 2006. Consequential orders of promotion pursuant to the said orders of exemption were also challenged in the said Writ Petitions. The long and short of the contention of the appellants/petitioners in the Writ Petitions is that the orders of exemption are ultra vires of Section 39 of the Kerala State and Subordinate Services Rules (hereinafter referred to as “the K.S. & S.S.R”). According to the writ petitioners, the prospects of their promotion to the post of Headmaster/Assistant Educational Officer were adversely affected by the said exemption orders, in as much as consideration of eligible persons in the feeder category, sans exemption, might have fetched berth for them in the said cadre. 2. The learned Single Judge upheld the power of the Government to grant exemption in exercise of its discretionary power under Section 39 of the K.S.& S.S.R.. At the same time, the learned Single Judge observed that it would be a travesty of justice if the qualified teachers are overlooked by unqualified seniors, based on exemption and seniority. However, taking into account the peculiar facts and circumstances of the cases and also on account of the fact that the appellants herein had already retired from service and also the fact that their turn would not have arisen W.A.NOS.75 & 256/2008 3 in normal circumstances on account of the availability of large number of qualified seniors, the learned Single Judge declined to interfere with the matter and dismissed the Writ Petitions. Hence, these Writ Appeals. 3. In the appeals, the parties have reiterated the contentions raised before the learned Single Judge. It is their contention that when qualified hands are available, there was no justification on the part of the Government for invoking the power under Rule 39 of the K.S.&S.S.R. and to grant exemption to unqualified seniors from passing the departmental tests prescribed under Rule 5 of the Rules for promotion to the post of Headmaster/Assistant Educational Officer. The order of exemption thus granted vide Ext.P1 in W.P.(C) No. 20712 of 2006 was extended from time to time, without giving due regard to the availability of qualified juniors and that such orders of exemption are ultra vires of Rule 39 of the K.S.& S.S.R., it is submitted. 4. The learned Single Judge upheld the powers of the government, as per Rule 39 of the K.S.& S.S.R., to pass orders in the matter of granting exemption from passing the departmental test. In view of the umpteen number of decisions on this issue, we can only agree with that finding of the learned Single Judge. At the same time, it was observed that passing of W.A.NOS.75 & 256/2008 4 such orders without due regard to the statutory mandates compelling acquisition of qualifications, would result in administrative inefficiency. Further, it was held that having regard to the facts and circumstances of the case, the petitioners were not entitled to get any relief. Rival contentions on this aspect persuade us to examine the same. 5. The appellant in W.A. No.75 of 2008 commenced service as High School Assistant on 31.9.1981. The appellants in W.A. No.256 of 2008 commenced service as High School Assistants respectively on 10.10.1979 and 13.9.1985, on getting appointment through the Public Service Commission. However, the first appellant in the latter appeal, on obtaining inter-district transfer to Kozhikode, joined there only on 20.6.1983. It is thus clear that the appellant in W.A. No.75 of 2008 could have completed 12 years of continuous service to earn eligibility for consideration for promotion to the post of Headmaster only on 13.1.1993 and the appellants in W.A. No.256 of 2008 could have acquired such eligibility only in 1995 and 1997 respectively. At the time when the Writ Petitions were moved by the appellants herein, persons whose names figured in the rank list from 1.1.1981 to 31.12.1982 alone were being considered for promotion. The room for dispute in the said state of affairs arose on account of the rival contentions regarding the prospects of W.A.NOS.75 & 256/2008 5 promotion of the appellants at that point of time. According to the appellants, if the unqualified seniors are weeded out from the aforesaid list, that would bring them a chance for promotion to the post of Headmaster/Assistant Educational Officer. The official respondents resisted the said contention and canvassed the position that on account of the availability of a large number of qualified seniors, the appellants would not have come within the zone of consideration, even if the unqualified seniors have been removed from the list. In this context, after considering the pleadings on either side and their submission, the learned Single Judge arrived at the conclusion that the turn of the appellants would not have arisen under normal circumstances. The appellant in Writ Appeal No.75 of 2008 retired from service on 31.3.2007 and the appellants in W.A. No.256 of 2008 retired from service on superannuation respectively on 30.4.2007 and 30.6.2007. Having regard to the facts and circumstances of the cases, we feel that the view taken by the learned Single Judge is a plausible view in the matter. But, our conclusion is not resting on that sole ground. Taking into account the rival contentions regarding the chances of promotion of the appellants, in the event of removal of the name of the unqualified seniors from the list, this Court passed an order on 11.1.2008 in W.A. No.75 of 2008, which reads thus: W.A.NOS.75 & 256/2008 6 “The learned Single Judge dismissed the writ petition mainly on the ground that even assuming that the promotions were ordered in accordance with the Rules, the petitioner's turn would not have arisen. Though the appellant asserts that the said finding is not correct, no materials are produced by her in support of that claim. She prays for a chance to produce them. The learned Government Pleader may also get instructions on the question whether the petitioner's turn would have arisen if promotions were ordered strictly in accordance with the special rules, ignoring the exemption order.” On 3.3.2008, a direction was issued to the second respondent in W.A. No.256 of 2008 to file an additional affidavit giving the details mentioned in the earlier order dated 11.1.2008 in respect of the appellants therein. Consequent to the said direction, an additional affidavit/statement was filed in these appeals. A scanning of the affidavit filed by the second respondent dated 18.3.2008, in compliance of the direction of this Court in W.S. No. 75 of 2008, would reveal that on account of the availability of a sizable number of qualified seniors, the chances of promotion, in fact the chance of consideration for promotion, of the appellants would not have arisen. In paragraph 2 of the affidavit, it is stated thus: “.... It is respectfully submitted that the petitioner is included in the seniority list of H.S.As for the period from 01.01.83 to 31.12.85 W.A.NOS.75 & 256/2008 7 as rank No.492. The above seniority list was published as per order No.SY 1/40558/07/DPI dated 16.09.07. At present promotion to the post of HM/AEO is carried out from the seniority list of the H.S.As for the period from 01.01.81 to 31.12.82. The above list, it is submitted, contains 883 H.S.As of which currently promotions have been effected till rank No.779 ie. there remains 104 persons to be promoted from the above list.” Paragraphs 3 and 4 of the statement filed by the second respondent in W.A. No.256 of 2008 read thus: “3. It is respectfully submitted that the first appellant whose date of birth is 5.4.1952 retired from service on 30.4.2007 and the second appellant retired from service on 30.6.2007. The appellants were included in the seniority list of HSAs for the period from 1.1.1983 to 31.12.1983. The first appellant was rank No.197 whereas the second appellant was rank No. 1213. The above seniority list published as per order No.SY1/40558/2007/DPI dated 15.9.2007 contained 1289 HSAs. The promotion from the above seniority list commenced only in the academic year 2008. The select list prepared by the Departmental Promotion Committee (Lower) which met on 19.5.2008, included 439 HSAs from the seniority list of 1983. The above select list contained 352 test qualified persons and 87 persons who were granted the benefit of Ext.P1 Government Order. The next Departmental Promotion Committee which met on 9.7.2008 issued a select list of 33 persons eligible for promotion as Headmaster which included 15 qualified and 18 persons eligible for the benefit of Ext.P1 order. The further Departmental Promotion Committee which met on 28.5.2009 W.A.NOS.75 & 256/2008 8 issued a select list of 303 HSAs from 1983 seniority list of which 151 were qualified and 152 of those were granted benefit of the exemption order. Thus during the year 2008 a total number of 775 HSAs have been promoted to the post of Headmaster from the 1983 list of which 518 were persons having test qualification and the rest 257 were given the benefit of Ext.P1 order. 4. It is respectfully submitted that even if the entire unqualified persons in the 1983 list was removed therefrom, the first appellant would still have been rank No.102 and the second appellant rank No.469. They would only have been eligible for promotion as Headmaster/Assistant Educational Officer during the academic years 2008 & 2009 respectively. In the ordinary course the first appellant would have received promotion in the year 2008 and the second appellant in the year 2010. However both the appellants have retired from service in the academic year 2007 itself on 30.4.2007 and 30.6.2007 respectively. .....” 6. Thus, it is clear that going by the affidavit/statement filed on behalf of the second respondent, the turn of the appellants for promotion to the post of Headmaster would not have arisen on or before the date of their superannuation. In a case of this nature, in order to enable or compel the court to proceed further with the matter, the appellants should have, with the support of datas and details, controverted the contentions of the second respondent. They should have made out a case that they would have come within the zone of consideration for promotion to the post of Headmaster before they attained the age of superannuation, had the names of the W.A.NOS.75 & 256/2008 9 unqualified seniors been removed from the seniority list. However, none of the appellants endeavoured to controvert the contentions of the second respondent contained in the affidavit/statement filed in compliance of the directions of this Court to convince us that their turn would have arisen, if the authority concerned had carried out the exercise of weeding out the unqualified seniors from the seniority list. The claims of the appellants are founded on 'ifs and buts'. A time consuming and arduous exercise of revision of seniority list and review of promotions cannot be directed by this Court solely for the sake of such an exercise. The failure on the part of the appellants to controvert the affidavit/statement of the second respondent with definite datas and details makes us to agree with the conclusion arrived at by the learned Single Judge. Taking into account the dates on which the appellants joined service and retired from service on superannuation and the period of the rank list which was pressed into service during the relevant time for the purpose of consideration for promotion to the post of the Headmaster, we have no hesitation to hold that the appellants have failed to make out the case that their turn would have arisen with effect from a particular period. In view of the discussions made above, we feel that it is unnecessary to go into the validity of the orders impugned. Even W.A.NOS.75 & 256/2008 10 quashing of the said orders would not enure any benefit to the appellants. Accordingly, the Writ Appeals are dismissed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A.NOS.75 & 256/2008 11 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A. NOS.75 &256/2008 JUDGMENT 28th August, 2009 W.A.NOS.75 & 256/2008 12 W.A.NOS.75 & 256/2008 13 W.A.NOS.75 & 256/2008 14 W.A.NOS.75 & 256/2008 15 W.A.NOS.75 & 256/2008 16 W.A.NOS.75 & 256/2008 17 W.A.NOS.75 & 256/2008 18 W.A.NOS.75 & 256/2008 19 W.A.NOS.75 & 256/2008 20