Ajith Kumar A.K. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930** **WP(C).No. 32918 of 2007(R)** **----------------------------------------** **PETITIONER:** - **-------------------** **AJITH KUMAR A.K.,** **HIGHER SECONDARY SCHOOL TEACHER (BOTANY) GOVT. HIGHER SECONDARY SCHOOL,IRIKKUR.** **BY ADV. SRI.P.RAVINDRAN (SR.)** **RESPONDENTS:** **-------------------------** **1. STATE OF KERALA,REP. BY PRINCIPAL SECRETARY,GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM.** **3. THE PRINCIPAL, GOVERNMENT HIGHER SECONDARY SCHOOL, IRIKKUR P.O., IRIKKUR, KANNUR DISTRICT.** **GOVERNMENT PLEADER SMT. T.B.REMANI FOR R1 & R2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.32918/2007 R** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE ORDER DTD. 23/07/1997 PROMOTING THE PETITIONER AS HSS TEACHER.** - **P2: COPY OF THE JUDGMENT IN O.P.NO.23027/02 DTD. 7/07/2003.** - **P3: COPY OF THE JUDGMENT IN W.A.NO.1810/2003 DTD. 10/11/03.** - **P4: COPY OF THE ORDER PROVISIONALLY PROMOTING THE PETITIONER AS HSS TEACHER W.E.F. 6/08/2004.** - **P5: COPY OF THE ORDER DTD. 5/12/2005.** - **P6: COPY OF THE JUDGMENT IN W.P.NO.994/2006.** - **P7: COPY OF THE ORDER DTD. 19/09/2007.** ## **RESPONDENT'S EXHIBITS: N I L** ## **/TRUE COPY/** **P.A.TO JUDGE** _Kss_ ## **ANTONY DOMINIC, J** **-----------------------------------------------------------** W.P.(C).No.32918/2007 **-----------------------------------------------------------** Dated this the 24[th] day of September, 2008 ## JUDGMENT Challenge in this writ petition is against Ext.P7. petitioner was promoted and appointed as HSST by Ext.P2. But however, for want of production of equivalency certificate, as he had acquired his Post Graduation from the Annamalai University, he could not join duty. His claim was examined by this court in WP(c).No.23027/2002 and by Ext.P2 judgment this court directed that fresh orders be passed, in the light of the observations made therein. Though the Director of Higher Secondary Education filed a Writ Appeal, that was dismissed by Ext.P3 judgment. It is stated that an SLP filed was also dismissed. 2. In pursuance to Exts.P2 and P3 judgments in the writ petition and writ appeal, the Director passed Ext.P4 WP(c).No.32918/2007 2 order dated 6.8.2004, appointing the petitioner as HSST (Botany) in GHSS, Irikkur, Kannur with immediate effect. That was clarified by Ext.P5 that the petitioner having joined duty on 12.8.2004, he will be eligible for pay and allowance and all other benefits with effect from that date. 3. These orders were again challenged by the petitioner before this court in WP(c).No.994/2006 and that writ petition was disposed of by Ext.P6 judgment, directing that the matter be reconsidered. Accordingly, Ext.P7 order has been passed, in which it is ordered as follows; “The petitioner filed WP(c).No.994/06 before the Hon'ble Court against the above decision of Government and the Hon'ble Court pronounced its judgment read as 5[th] paper above. Accordingly, Government have examined the case with reference to the rules, the direction of the High Court in judgment dated 8.1.2007 and the WP(c).No.32918/2007 3 arguments of the petitioners and are pleased to order that as the petitioner was appointed as Higher Secondary School Teacher(Botany) as per the proceedings read as Ist paper above his seniority in the cadre of Higher Secondary School Teacher will be assigned notionally with effect from 23.7.1997 and monetary benefits will be allowed from 12.8.2004 ie. the actual date of his assumption of charge, in view of the restriction imposed by Rule 23(a) Part I, Kerala Service Rules. The judgment of the Hon'ble High Court is complied with accordingly.” 4. A reading of that portion of Ext.P7 shows that the seniority of the petitioner has been assigned notionally with effect from 23.7.1997 and monetary benefits have been allowed with effect from 12.8.2004, the actual date of the WP(c).No.32918/2007 4 petitioner taking the charge, in view of the provisions contained in Rule 23(a) Part-I KSR. In this writ petition, the challenge raised by the petitioner is only against that part of Ext.P7, which declined the monetary benefits. 5. I heard the counsel for the petitioner and also the Government Pleader. It is true that the petitioner was originally appointed with effect from 23.7.1997. The fact remains that in view of the long litigation, he could get appointment only by Ext.P4 and he could assume duties only from 12.8.2004. Therefore, though for reasons not attributable to the petitioner, it is a fact that the petitioner was not worked during the period prior to 23.7.1997. If that be so, I feel that it will be unjustified to give monetary benefits to the petitioner for the period between 12.8.2004 to 23.7.2007. 6. It is also to be noticed that, that the apex court has, while directing retrospective appointment to a candidate, directed that the candidate will not be entitled to WP(c).No.32918/2007 5 backwages or seniority from the retrospective date, in the judgment reported in **Hemani Malhotra v. High Court of Delhi(** 2008(7)SCC 11). 7. True, the learned counsel for the petitioner referring to Ext.P3 judgment contends that, it has been held therein, he is entitled to consequential benefits. In my view, that does not mean that the respondents were required by this court to give back wages also for the period the petitioner did not work, particularly in the face of Rule 23(a) Part-I KSR, which governs the petitioner. Writ Petition fails and is dismissed. **ANTONY DOMINIC JUDGE** vi. WP(c).No.32918/2007 6