D. Kalamony v. Secretary to Government, General Education Department, Govt. Secretariat, Thiruvananthapuram; State Resource Centre, Kerala; Director, State Resource Centre, Kerala; R. Jayasreekunjamma; B. Chandrabu; Dr. N.B. Suresh Kumar (WP(C) No. 11730 of 2006) and R. Jayasreekunjamma (WP(C) No. 18322 of 2015)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 31ST DAY OF MARCH 2016/11TH CHAITHRA, 1938** **WP(C).No. 11730 of 2006 (U)** **----------------------------** **PETITIONER(S):** **--------------------------** **D. KALAMONY, AGED 48 YEARS, W/O. JANARANSON, ASSOCIATE PROGRAMME CO-ORDINATOR STATE RESOURCE CENTRE, KERALA, PATTOM THIRUVANANTHAPURAM, RESIDING AT KATTUMUDUMBIL VEEDU KOONTHALLOOR, CHIRAYINKIL, THIRUVANANTHAPURAM.** **BY ADVS.SRI.T.A.RAJAN** **SRI.K.S.SALIM** **RESPONDENT(S):** **----------------------------** **1. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT THIRUVANANTHAPURAM.** **2. STATE RESOURCE CENTRE, KERALA, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS DIRECTOR.** **3. THE DIRECTOR,** **STATE RESOURCE CENTRE, KERALA, PATTOM THIRUVANANTHAPURAM.** **4. R. JAYASREEKUNJAMMA, PROGRAMME CO-ORDINATOR, STATE RESOURCE CENTRE, KERALA PATTOM, THIRUVANANTHAPURAM.** **5. B. CHANDRABANU, PROGRAMME ASSOCIATE, STATE RESOURCE CENTRE, KERALA PATTOM, THIRUVANANTHAPURAM.** **6. DR. N.B. SURESHKUMAR,** **PROGRAMME CO-ORDINATOR, STATE RESOURCE CENTRE, KERALA PATTOM, THIRUVANANTHAPURAM.** **R,R1 BY ADV. GOVERNMENT PLEADER SMT SUNITHA VINOD R,R2,3 BY ADV. SRI.ASHOK M.CHERIYAN,SC,STATE RESOURCE R,R4 BY ADV. SRI.MURALI PURUSHOTHAMAN R,R4 BY ADV. SRI.P.M.BENZIR R,R4 BY ADV. SRI.DEEPU LAL MOHAN R,R5 BY ADV. SRI.R.BINDU (SASTHAMANGALAM) R,R.5 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR R,R.5 BY ADV. SRI.V.VARGHESE R,R6 BY ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL R,R6 BY ADV. SRI.S.VISHNU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-03-2016, ALONG WITH WPC. 18322/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WPC NO. 11730/2006** **::2::** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1: TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER BEARING NO. KER/SRC/358/95 DATED 16.8.1995** **EXT.P2: TRUE COPY OF THE ORDER NO KER/SRC/600/96 DT 3.12.96 ISSUED BY THE THIRD RESPONDENT** **EXT.P3: TRUE COPY OF THE ORDER NO. SRC/117/ADMN DT 2.9.04 ISSUED BY THE 3RD RESPONDENT** **EXT.P4: TRUE COPY OF THE ORDER NO. SRC/115/ADMN DT 2.9.04 ISSUED BY THE 3RD RESPONDENT** **EXT.P5: TRUE COPY OF THE REPRESENTATION DT 9.9.04 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT** **EXT.P6: TRUE COPY OF THE ORDER NO. SRC/934/2004 DT 14.10.2004 ISSUED BY THE 3RD RESPONDENT** **EXT.P7: TRUE COPY OF THE ORDER NO. 37234/P2/04 /GED DT 16.07.05 ISSUED BY THE GOVERNMENT OF KERALA** **EXT.P8: TRUE COPY OF THE ORDER NO. SRC/146/ADMN DT 17.04.06 ISSUED BY THE 3RD RESPONDENT.** ## **RESPONDENTS EXHIBITS:** **EXT.R5(a): TRUE COPY OF THE ORDER NO. SRC/144/ADMN DT 17.04.06 OF THE DIRECTOR OF SRC** **EXT.R5(b): TRUE COPY OF THE CERTIFICATE ISSUED TO THE 5TH RESPONDENT BY THE DIRECTOR OF SRC DATED NIL** **EXT.R4(a): PHOTOCOPY OF THE LETTER NO. 1547/SRC/03 DT 04.06.04 ISSUED BY THE 2ND RESPONDENT** **EXT.R4(b): PHOTOCOPY OF the INTERIM ORDER DT 19.10.2004 IN WRIT PETITION NO. 30802/04** **EXT.R4(c): PHOTOCOPY OF the MINUTES OF GOVERNING BODY MEETING OF THE STATE RESOURCE CENTRE HELD ON 26.07.2005** **EXT.R4(d): PHOTOCOPY OF PROCEEDINGS NO. SRC/145/ADMN. DT 17.04.2006 OF THE 2ND RESPONDENT.** **EXT.R6(1): TRUE COPY OF THE COMMUNICATION D.O NO. F28-8/98 DAE (PDE) DT 7.5.1999 ISSUED BY THE JOINT DIRECTOR, DIRECTORATE OF ADULT EDUCATION** **EXT.P6(2): TRUE COPY of the COMMUNICATION NO. DO. F. 28-8-98 DAE (PDE) DT 19.04.2002 ISSUED BY THE JOINT DIRECTOR TO THE DIRECTOR STATE RESOURCE CENTRE** **EXT.R6(3): TRUE COPY OF ORDER NO. 76/SRC/ADMN. DT 22.06.2002 ISSUED BY THE DIRECTOR STATE RESOURCE CENTRE** **WPC NO. 11730/2006** **::3::** **EXT.R6(4): TRUE COPY OF the ORDER NO. SRC/142/ADMN DT 17.04.2006 ISSUED BY THE DIRECTOR STATE RESOURCE CENTRE** **EXT.R6(5): TRUE COPY OF THE JUDGMENT DT 07.09.2005 IN WPC NO. 25481/2005 OF THE HONOURABLE HIGH COURT OF KERALA** **EXT.R6(6): TRUE COPY OF the COMMUNICATION NO. 185/SRC/02 DATED 19.03.2002** **ANNEXURE A1: TRUECOPY OF THE MINUTES OF THE GOVERNING BODY HELD ON 26.07.2005** **ANNEXURE A2: TRUE COPY OF the MINUTES OF THE GOVERNING BODY HELD ON 14.03.2006** **ANNEXURE A3: TRUE COPY OF THE REPORT OF THE SPECIAL COMMITTEE** **TRUE COPY** **P.A TO JUDGE** **jma** ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) Nos.11730 of 2006 - U & 18322 of 2015 - M - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31[st] day of March, 2016 ## J U D G M E N T The petitioners in both the writ petitions are employees of the respondent State Resources Centre, Kerala (for short SRC only). The writ petitions ventilate the grievances of the petitioners for promotions at the respective dates on which they were entitled to such promotions. The posts in the SRC, which are relevant for the consideration of the dispute raised are the Research Fellow, Programme Associate, Associate Programme Coordinator and Programe Coordinator in that hierarchical ascending order. The appointment to the post of Research Fellow is only by Direct Recruitment whereas the other posts are by direct recruitment and promotion. The post of Programme Associate is to be filled up from direct recruitment or “by transfer” appointment from Research Fellows. A Research Fellow having WPC.No.11730/06 & 18322/15 : Page numbers : not less than five years service in the SRC and having three years service in the category of Research Fellow is entitled to be considered for the post of Programme Associate. An employee having at least seven years service in the SRC, with three years in that of Programme Associate itself, is entitled to be promoted to the post of Associate Programme Coordinator. The further promotion to the post of Programme Coordinator is from employees who have not less than ten years service in the SRC out of which not less than five years is in the category of Associate Programme Coordinator. 2. The petitioner does not urge any contention against the 6[th] respondent, who while continuing in the SRC, was recruited directly as a Director in 21.07.2014. Hence the contention of either parties does not affect the 6[th] respondent at all. The 5[th] respondent has also retired from service. The dispute essentially is now confined to the petitioners in the above writ WPC.No.11730/06 & 18322/15 : Page numbers : petition. The petitioner in WP(C) No.11730/2006 was appointed by Ext.P1 as a Programme Associate on 28.08.1995 as per Ext.P1. The petitioner's contention is that at that point of time, the 4[th] respondent and the 5[th] respondent were Research Fellows. The 4[th] respondent is the petitioner in W.P(C) No.18322/2015. 3. The petitioner in WPC No.11730/2006, as was noticed, was appointed as a Programme Associate on 28.08.1995. The 4[th] respondent was continuing as a Research Fellow at that point of time. The 4[th] respondent is also said to have been appointed as a Programme Associate in 1997. The petitioner was surprised insofar as the 4[th] respondent along with 5[th] respondent being granted the post of Programme Coordinator as per Ext.P4 decision with effect from 04.09.2002. The promotion is particularly assailed since the respondents did not have any experience in the post of Associate Programme Coordinator. Ext.P4 is a decision of the governing body at its meeting held on 29.06.2004. On the very WPC.No.11730/06 & 18322/15 : Page numbers : same day, the governing body also took a decision to promote the petitioner as Associate Programme Coordinator by Ext.P3. 4. The petitioners contention was that while the petitioner who had continued as a Programme Associate for seven years, was considered to the post of Associate Programme Coordinator. The 4[th] respondent who was a Research Fellow and appointed as a Programme Associate after the petitioner, was considered for double promotion to the post of Programme Coordinator. It is also urged that the 4[th] respondent was not qualified to be so promoted since she did not have the required experience in the post of Associate Programme Coordinator. The petitioner hence made a representation before the Secretary to Government as is seen at Ext.P5. The SRC also kept in abeyance the decision of the governing body made on 14.10.2004 by Ext.P4 dated 14.10.2004. The petitioner also contends that there was a seniority dispute raised by one J Jayasree against respondents 4 and 5 which was WPC.No.11730/06 & 18322/15 : Page numbers : considered as per Ext.P7 in which it was categorically held that the petitioner and J. Jayasree was entitled to promotion prior to that of respondents 4 and 5. 5. At this point, the writ petition filed by the 4[th] respondent has to be looked into; ie, W.P(C) No.18322/2015. The parties are referred to as petitioner and the 4[th] respondent itself. The 4[th] respondent challenged the order at Ext.P5 keeping in abeyance the decision of the governing body meeting held on 29.06.2004. The 4[th] respondent was granted a stay from reversion and she continued as a Programme Coordinator. Subsequently when the decision in the representation of J Jayasree was communicated to the 4[th] respondent, she challenged the same by amending the very same writ petition. That was disposed of by Ext.P11 in which a further consideration was directed. The governing body in fact, passed Ext.P9 order subsequent to the decision taken in Jayasree's case by the Government, produced as WPC.No.11730/06 & 18322/15 : Page numbers : Ext.P7. In Ext.P9 the 4[th] respondent was found entitled to promotion to the post of Associate Programme Coordinator with effect from 01.09.2000 and Programme Coordinator with effect from 01.09.2002. The 4[th] respondent dissatisfied with the same, amended the writ petition filed by her earlier and challenged Ext.P9. Her claim was that she was entitled to be promoted as Associate Programme Coordinator in 1994 itself. Ext.P11 was reconsideration. The judgment passed directing reconsideration made at Ext.P14 is challenged herein. In Ext.P14, with respect to the 4[th] respondent, the promotion as granted in Ext. P9 was confirmed ie: from 01.09.2000 as Associate Programme Coordinator and from 01.09.2005 as Programme Coordinator. 6. The contentions in W.P(C) No.11730/2006 cannot be countenanced since, when the petitioner was appointed as a Programme Associate on 28.08.1995, the 4[th] respondent who was appointed as a Research Fellow in 04.09.1989 was languishing in WPC.No.11730/06 & 18322/15 : Page numbers : that post without further promotion to the post of Programme Associate. The Special Rules G.O. (MS) No. 461/98/G.Edn dated 27.11.1998 came into effect only in the year 1998. The 4[th] respondent, as per the Special Rules, claimed such promotion from 4.9.1994. The 4[th] respondent's claim in the present writ petition is also that the promotion if granted as Programme Associate on 04.09.1994 then, suitable adjustment would have to be made in the other cadres also; granting her promotion as Associate Programme Coordinator and Programme Coordinator earlier to that granted in Ext.P14 order. The learned counsel for the petitioner would forcefully urge that the special rules having come into force, only in the year 1998, the 4[th] respondent could not have claimed promotion prior to that. 7. It is to be noticed that the 4[th] respondent did not challenge the denial of promotion in the year 1994. The 4[th] respondent admittedly, was promoted to the post of Programme WPC.No.11730/06 & 18322/15 : Page numbers : Associate on 04.09.1997. As on that date the Special Rules had not come into force, but it was effective from 1998. Even then, the 4[th] respondent did not claim a retrospective effect to such promotion. Admittedly, the 4[th] respondent is said to have initiated such action by way of Ext.P1 dated 11.11.2002, after 4years. The said claim would be hit by the principles of sit back theory as has been held in Shiba Shankar Mohapatra v. State of Orissa (2010 (12) SCC 471). The claim of the 4[th] respondent for promotion as Programme Associate with effect from 04.09.1994 has to be rejected; for reason only of it being a belated claim. 8. However, with respect to the next claim of the petitioner, the petitioner was eligible for promotion to the post of Associate Programme Coordinator with effect from 2000, when she completed three years in the post of Programme Associate. The 4[th] respondent was promoted as Programme Associate on 04.09.1997 and on completion of three years in that service, the 4[th] WPC.No.11730/06 & 18322/15 : Page numbers : respondent had a claim for promotion to the post of Associate Programme Coordinator with effect from 04.09.2000. The Special Rules had also come into force then. The 4[th] respondent also has a further claim for promotion to the post of Programme Coordinator from 01.09.2005 as per the Special Rules. In such circumstances, Exts.P14 and P15 in WPC No.18322/2015 promoting the 4[th] respondent to the post of Associate Programme Coordinator from 1.9.2000 and Programme Coordinator from 1.9.2005 is perfectly in order. The petitioner who was appointed as Programme Associate on 28.08.1995 would be entitled to the post of Associate Programme Coordinator only with effect from 28.08.2002, since she would have the total seven years service only then. The further promotion of the petitioner, to the post of Programme Coordinator, can also be only in 2007, when she completes five years in the lower category. This is the finding in Ext.P14 and P15, produced in WPC No. 18322/2015 which was passed after hearing WPC.No.11730/06 & 18322/15 : Page numbers : the petitioner also. The petitioner has not chosen to challenge the said orders. 9. The petitioner cannot claim any seniority over that of the 4[th] respondent. The petitioner in any event claims to be entitled for promotion as Programme Coordinator from 2007. The petitioner's claim was on the ground that the 4[th] respondent ought not to have been promoted to the post of Programme Coordinator. The 4[th] respondent having diligently prosecuted the matter before this Court continued as Programme Coordinator in the higher post and there can be no disturbance caused at this point of time. Though the writ petition filed by the petitioner was pending here from 2006, the intervening facts show considerable change in circumstances caused by the subsequent orders passed. The petitioner did not take steps to bring on record the subsequent events and challenge the orders passed against her; despite she having been heard and was also aware of the orders passed. WPC.No.11730/06 & 18322/15 : Page numbers : especially when the petitioner does not challenge Exts.P14 and P15 orders. Ext.P14, finds that there is no vacancy in 2007, in the post of Programme Coordinator, and the petitioner can only be accommodated in the vacancy arising later in 2014. If the petitioner has not yet been promoted in that vacancy, steps shall be taken to do that with retrospective effect and the petitioner shall also be entitled to all monetary benefits in that post also with retrospective effect. On the conclusions reached herein above both writ petitions are to be dismissed upholding Exts.P14 and P15 in WP(C) No. 18322/2015, with directions in WP(C) No. 11730/2006. Sd/- - (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge