IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 WP(C).No. 30407 of 2003(T) ----------------------------------------- PETITIONER(S): ------------------------ 1. M.S.CHANDRAMOHANA BABU, S/O.M.SUBRAMANIAN NAIR, AGED 51 YEARS, JUNIOR SUPERINTENDENT, N.S.S.HINDU COLLEGE, CHANGANACHERRY, RESIDING AT MECHERRY, VAZHAPPALLY WEST P.O., CHANGANACHERRY. 2. P.GOPAKUMAR, S/O.PADMANABHAN NAIR, AGED 39 YEARS, HEAD ACCOUNTANT, N.S.S.HINDU COLLEGE, CHANGANACHERRY, RESIDING AT VELLAMATTATHU HOUSE, LAKKATTOOR P.O., KOTTAYAM. *3. E.B.SATHIS BABU, S/OLATE SRI.PARAMESWARAN NAIR, AGED 42 YEARS, UD CLERK, HIGHER RADE, N.S.S.TRAINING COLLEE, CHAGANCHERY,, RESIDING AT ELLIMOOTTIL HOUSE, MEVADA P.O., MUTHOLY (VIA), KOTTAYAM. * THE WORDS IN THE ADDRESS OF THE 3RD PETITIONER 'RADE, COLLEE AND CHAGANCHERY' IS CORRECTED AS 'GRADE, COLLEGE AND CHANGANACHERRY RESPECTIVELY VIDE ORDER DTD.16/6/2010 IN I.A.NO.7780/2010. BY ADVS. SRI.SAJITH KUMAR V., SRI.K.R.SUDHAKARAN PILLAI, SRI.P.R.MADHUSOODANAN. RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF COLLEGIATE EDUCATION, GOVERNMENT OF KERALA, TRIVANDRUM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, DIRECTORATE, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,KOTTAYAM. 4. THE SECRETARY, N.S.S.COLLEGES, CENTRAL COMMITTEE FOR EDUCATION, N.S.S. HEAD QUARTERS, CHANGANACHERRY. R1 TO R3 BY GOVERNMENT PLEADER SMT. SMITHA SUKUMARAN R4 BY SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE, BY ADV. SRI.P.GOPAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.30407/2003 T APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE G.O.(RT) NO.1022/2003/H.EDN. DTD. 25/07/2003 ISSUED ON BEHALF OF THE 1ST RESPONDENT. P2: COPY OF THE ORDER NO.ESTT.E1/56284/01/CO-EDN.D. DTD. 5/12/2001 ISSUED BY THE 2ND RESPONDENT. P3: COPY OF THE REPRESENTATION DTD. 4/03/2003 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT. P4: COPY OF THE ORDER NO.G.O.(RT) NO.1549/02/H.EDN. DTD. 19/11/2002 ISSUED BY THE DEPUTY SECRETARY ON BEHALF OF THE 1ST RESPONDENT. P5: COPY OF THE ORDER NUMBER G.O.(RT) NO.1161/2005/H.EDN. DTD. 4/07/05. P6: COPY OF THE PROMOTIOIN AND TRANSFER ORDERS DTD. 26/05/05 ISSUED BY THE 4TH RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss C.T.RAVIKUMAR, J. ``````````````````````````````````````````````````````` W.P.(C) No. 30407 of 2003 T ``````````````````````````````````````````````````````` Dated this the 16th day of June, 2010 J U D G M E N T The petitioners are aggrieved by the denial of their due promotions. The first petitioner was working as a Junior Superintendent in N.S.S. Hindu College, Changanacherry. The second petitioner is working as Head Accountant in the same College. The third petitioner is an Upper Division Clerk (Higher Grade) working in N.S.S. Training College, Changanacherry. According to the petitioners, they are fully qualified and entitled for promotion to their respective next higher post and they were deprived of their due promotions solely because of Ext.P2 order. Ext.P2 is an order dated 05- 12-2001 whereby the Government banned all promotions of the non-teaching staff in Private Aided Colleges subsequent to the delinking of Pre Degree Course from Colleges. Further, as per the same, a Committee was constituted for revision of the staff pattern. The specific contention of the petitioners is that the ban imposed as per Ext.P2 is unsustainable. With a WPC.30407/2003 : 2 : view to delink the Pre Degree Course from the Colleges, the Pre Degree Course (Abolition) Act, 1997 was enacted. Section 5 of the said Act imposed a ban on appointments for a period of three years. Section 5 of the said Act reads thus:- “ 5. Ban on appointment of staff etc. - Notwithstanding anything contained in the University laws or in any agreement or contract, no appointment of non-teaching staff in any University and no appointment of teaching and non-teaching staff in any college shall be made for a period of three years from the date of commencement of this Act: Provided that, in the exigencies of service, such appointment may be made, with the previous approval of the Committee.” 2. The said Act came into force with effect from 03- 06-1997 and, therefore, the ban imposed as per Section 5 was in force only up to 02-06-2000. A vacancy of Senior Superintendent has occurred on 01-06-2002 in N.S.S. Hindu College, Vazhoor, which is under the management of the fourth respondent. The first petitioner contends that he is the WPC.30407/2003 : 3 : senior most qualified hand in the feeder category and he should have been promoted as against the said post with effect from 01-06-2002. But, for the ban as per Ext.P2, he would have been promoted and appointed as Senior Superintendent. The petitioners have yet another contention. Even during the currency of the ban imposed as per Ext.P2, the respondents have relaxed the conditions in Ext.P2 in the case of certain colleges. To fortify the said contention, they have produced Ext.P4. Ext.P4 would reveal that even during the period of ban, request for effecting promotions against retirement vacancies of Junior Superintendent in Mar Ivanious College, Thiruvananthapuram was sanctioned. If vacancy occurred in the category of Junior Superintendent could have been filled up during the period of ban, there was no reason for not considering the request of the first petitioner for promotion against the vacancy that occurred in the post of Senior Superintendent on 01-06-2002. There is no case for the respondents that the petitioners do not have rightful claim WPC.30407/2003 : 4 : for promotion by virtue of their seniority. True that based on the Pre Degree Course(Abolition) Act, 1997, no appointments could have been effected in the colleges. But, the said ban was there in force only up to 02-06-2002 and the vacancy in question had arisen on 01-06-2002. The question is whether the statutory right of the petitioners for being considered for promotion could have been arrested or postponed by issuing a Government Order. Even without considering the said aspect, I am of the view that the action on the part of the respondents cannot be sustained on the sole score of arbitrary, hostile discrimination in the matter as is obvious from Ext.P4. The reason assigned in Ext.P4 for relaxing the condition in Ext.P2 in the case of Mar Ivanious College, Thiruvananthapuram was that the said college is a first grade college having 18 courses including 7 Post Graduate Courses. The petitioners and the fourth respondent contend that N.S.S. Hindu College, Changanacherry is also a first grade college with 13 Degree Courses and 11 Post Graduate WPC.30407/2003 : 5 : Courses. The said College was having a post of Administrative Assistant from the date of its sanction in the college from 1981 and the said post became vacant on 01-02- 2003. 3. In this context, certain aspects also assume relevance. In the counter affidavit filed by the second respondent, it has been categorically submitted that the promotions were not denied but only postponed for a short time as per Ext.P2 Government Order. Further, it is stated that the post of Senior Superintendent in S.V.R. N.S.S. College, Vazhoor that occurred on 01-06-2002 was later identified as surplus and accordingly declined as supernumerary with effect from 17-09-2004 as per order No.E4/41758/05/Coll.Edn. dated 29-10-2005. It is thus obvious from the aforesaid statements in the counter affidavit that the petitioners' claim for promotion against the said vacancy could not have been legally denied since it was identified as surplus and supernumerary only with effect from WPC.30407/2003 : 6 : 17-09-2004. As noted above, the said vacancy arose on 01- 06-2002. The said legal right of the first petitioner should not have deprived of relying on an executive order. There was no reason for the respondents to decline consideration of the claims of the petitioners especially in the light of Ext.P4. According to the first petitioner, his claim for promotion post of Senior Superintendent in the aforesaid college is liable to be considered. According to the fourth respondent, a vacancy was there in the post of Administrative Assistant in N.S.S. Hindu College, Changanacherry on 01-02-2003. Promotion to the said post was to be effected from the category of Senior Superintendent or similar category in the college and, therefore, if the petitioner was promoted as against the vacancy of Senior Superintendent in 2002, he could have claimed promotion to the post of Administrative Assistant that arose in the N.S.S. Hindu College, Changanacherry on 01-02- 2003. The aforesaid rightful claim of the petitioner was not considered solely because of Ext.P2. Ext.P2 cannot stand in WPC.30407/2003 : 7 : the way of consideration of the rightful claim of the petitioners for promotion to the higher categories. According to him, a relaxation as has been done in Ext.P4 is also not actually required for effecting such promotions. In view of my finding that the statutory right for being considered for promotion could not have been deprived by issuing Ext.P2 Government Order, the matter requires fresh consideration in the light of the observations. The case of petitioners 2 and 3 is that in case the rightful claim of the first petitioner was considered at the appropriate time, it would have resulted in a chain of promotion and in which event, they too, would have obtained promotion in the resultant vacancies. The first petitioner has already retired from service in the year 2006. The other petitioners are still continuing in service. 4. In view of the finding that the petitioners' rightful claim for promotion could not have been denied in the light of Ext.P2, I am of the view that the claim of the first petitioner for promotion to the post of Senior Superintendent with effect WPC.30407/2003 : 8 : from 01-06-2002 and to the post of Administrative Assistant with effect from 01-02-2003 requires consideration. Therefore, respondents 2 and 3 are directed to take appropriate steps to consider the claim of the first petitioner for promotion to the aforesaid post with effect from the aforesaid dates. It is made clear that Ext.P2 shall not stand in the way of such consideration. The claim of respondents 2 and 3 against the resultant vacancies shall be considered in the light of the decision on the claim of the first petitioner. To enable respondents 2 and 3 to consider the aforesaid claim for promotion of the first petitioner and also petitioners 2 and 3, the fourth respondent shall forward necessary proposal to the educational authority in accordance with law through the Principals of the concerned college. In this context, it is also relevant to note that in the case of certain colleges, the respondents have already granted the due promotions with retrospective effect as is obvious from Ext.P5. The same shall also be taken into consideration while considering the WPC.30407/2003 : 9 : claim of the petitioners herein. The fourth respondent shall forward the requisite proposal within a period of two months from today and on receipt of the requisite proposal, respondents 2 and 3 shall take appropriate steps for considering the appropriate claims in terms of this judgment within a further period of three months. Needless to say that in case of favourable orders to the first petitioner his pensionary benefits shall be re-fixed accordingly. Subject to the decision on the claim of the first petitioner the claim of the 2nd and 3rd petitioners for promotion with retrospective effect against the resultant vacancies shall be considered. All these considerations shall be done within the above stipulated time limit. The writ petition is disposed of as above. Sd/- (C.T.RAVIKUMAR, JUDGE) aks // True Copy // P.A. To Judge