Joseph M. C. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938** ## **WP(C).No. 18469 of 2012 (G)** ## **----------------------------** ## **PETITIONER:** ## **-----------** ## **JOSEPH.M.C,** **S/O.LATE CHACKO,AGED 50 YEARS, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE), SALVATION ARMY HIGHER SECONDARY SCHOOL, KAWADIYAR P.O. THIRUVANANTHAPURAM-695003, RESIDING AT PALLIKKUNNEL HOUSE, KEEZHOOR P.O, THALAYOLAPARAMBU, PIN-686605.** **BY ADVS.SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH SRI.K.RAMACHANDRAN (THYKOODAM)** ## **RESPONDENT(S):** ## **--------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION (H) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695001.** **3. DISTRICT EDUCATIONAL OFFICER, THIRUVANANTHAPURAM-695001.** **4. MANAGER, SALVATION ARMY HIGHER SECONDARY SCHOOL, KAWADIYAR P.O. THIRUVANANTHAPURAM-695003.** **R1-R3 BY SENIOR GOVERNMENT PLEADER SMT RAJI T BHASKAR R4 BY ADV. SRI.K.P.SUJESH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WPC 18469 OF 2012:** ## **------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS: -----------------------** **EXHIBIT P1: TRUE COPY OF THE B.SC DEGREE CERTIFICATE ISSUED TO THE PETITIONER OF THE UNIVERSITY OF KERALA DATED 24-1-1986.** **EXHIBIT P2: TRUE COPY OF THE B.ED.CERTIFICATE ISSUED TO THE PETITIONER OF THE GANDHIJI UNIVERSITY DATED 24-11-1992. EXHIBIT P3: TRUE COPY OF THE STAFF-FIXATION ORDER NO.D.DIS/B54156/2000 DATED 26-8-2000 OF THE DISTRICT EDUCATION OFFICER, THIRUVANANTHAPURAM.** **EXHIBIT P4: TRUE COPY OF THE REVISION PETITION DATED 3-2-2001 OF THE PETITIONER BEFORE 1ST RESPONDENT.** **EXHIBIT P5: TRUE COPY OF THE ORDER IN GO(RT)NO.1533/2001/G.EDN. DATED 11-4-2001 OF THE ST RESPONDENT.** **EXHIBIT P6: TRUE COPY OF THE JUDGMENT DATED 8-10-2009 IN OP 16769/2001 OF THIS HON'BLE COURT.** **EXHIBIT P7: TRUE COPY OF THE GO(RT) NO.3307/2010/G.EDN. DATED 27-7-2010 OF THE 1ST RESPONDENT.** **EXHIBIT P8: TRUE COPY OF THE GO(P)NO.1016/2000/FIN DATED 12-7-2000 OF 1ST RESPONDENT.** **EXHIBIT P9: TRUE COPY OF THE REPRESENTATION DATED 11-10-2010 OF THE PETITIONER ADDRESSED TO THE 1ST RESPONDENT.** **EXHIBIT P10: TRUE COPY OF THE REPRESENTATION DATED 12-12-2011 OF THE PETITIONER TO THE 1ST RESPONDENT.** ## **RESPONDENTS' EXHIBITS: NIL** ## **----------------------** ## **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## ANU SIVARAMAN, J. ---------------------------------------- W.P.(C) No.18469 of 2012 ----------------------------------------Dated this the 18th day of November, 2016 ## JUDGMENT Petitioner challenges Ext.P7 order passed by the Government in revision to the limited extent it denies the benefits of arrears of salary and allowances on account of his notional promotion as HSA (Physical Science) with effect from 05.06.2000. The petitioner was appointed as LPSA in the 4th respondent's school with effect from 02.06.1997. A vacancy of HSA (Physical Science) arose in the school on 05.06.2000 on the promotion of HSA (Physical Science) as Headmaster. The petitioner was fully qualified for appointment against the said post under Rule 43 of Chapter XIV A, KER. However, the 4th respondent appointed one Sonia T.Danial, a fresh hand, against the vacancy of HSA (Physical Science). The petitioner had raised his claim for promotion against the said vacancy immediately on coming to know of the said appointment. It appears that the appointment of Sonia T.Danial was not W.P.(C) No.18469 of 2012 -2- approved on the ground that one Smt.Rosamma Thomas, HSA (Physical Science), was continuing on orders of protection. The said Sonia T.Danial preferred revision before the Government. By Ext.P5 order dated 11.04.2001, the Government considered the contentions raised by Smt.Sonia T.Danial as well as Smt.Rosamma Thomas, and observed that Smt.Rosamma Thomas HSA (Social Science) was a protected teacher and had to be recalled to fill up the post of HSA (Physical Science). It was found that the fresh hand had no claim for continuance since the post in question had to be filled up by accommodating a protected teacher. It was also found that a fresh hand had no locus standi to challenge the adjustment, as the preferential claim of the Rule 43 claimant was overlooked in her appointment. 2. The petitioner challenged the said order before this Court filing O.P.No.16769/2001. By judgment dated 08.10.2009, the writ petition was disposed of, quashing Ext.P5 order to the extent that it denies relief to the petitioner in W.P.(C) No.18469 of 2012 -3- respect of his claim for promotion under Rule 43 of Chapter XIV A KER as HSA (Physical Science), and directing the reconsideration of the matter. Ext.P7 order was thereafter passed on 27.07.2010 upholding the petitioner's claim for promotion under Rule 43 Chapter XIV A KER. However, it was stated that the petitioner would be notionally promoted as HSA (Physical Science) with effect from 05.06.2000 onwards, without any back arrears of his notional promotion as stipulated in Government Order dated 12.07.2000. 3. Government Order dated 12.07.2000 is produced as Ext.P8 in this writ petition. It is argued that the said Government Order which relates to arrears of salary in case of notional promotion has no application in the instant case as the petitioner's claim for appointment against the post which fell vacant on 05.06.2000 had been found by the Government in Ext.P7 order. Since the approval of appointment is to take effect from the date of appointment, and since there was no delay on the part of the petitioner in making his claim for W.P.(C) No.18469 of 2012 -4- appointment under Rule 43, it is contended that the denial of back arrears to the petitioner is completely unjustified. 4. The learned counsel for the petitioner places reliance on decisions of this Court as well as the Apex Court reported in Union of India and others v. K.V.Jankiraman and others [1991 (4) SCC 109], State of Kerala and others v. E.K.Bhaskaran Pillai [2007 (6) SCC 524], G.Narayana Pillai v. Regional Deputy Director of Public Instruction and Others [1972 KLJ 761], Rajappan Nair v. State of Kerala & others [1984 KLT 141 (DB)] and Valsala Kumari Devi v. State of Kerala [2011 (3) KLT 549] to contend that promotion was wrongly denied to an incumbent, and he would be entitled monetary benefits of such promotion. 2. Heard the learned Senior counsel for the petitioner and the learned Government Pleader appearing for the respondents. 3. A counter affidavit has been filed by the third respondent, contending that Smt.Rosmma Thomas had W.P.(C) No.18469 of 2012 -5- actually worked against the post of HSA (Physical Science) from 05.06.2000 and had been paid salary. It is further stated that payment of salary to the petitioner would amount to double payment, and back arrears are not admissible since the petitioner had not actually worked against the post of HSA (Physical Science). 4. I have considered the contentions raised in detail. The petitioner had raised his claim for appointment to the vacant post of HSA (Physical Science) which fell vacant on 05.06.2000. The petitioner had also been seeking the benefits of appointment against the said post. However, the manager had appointed a fresh hand against the said post. The said appointment was not approved by the educational authorities on the ground that a HSA (Social Science) was remaining under orders of protection. By Ext.P7 order of the Government, it has now been found by the Government itself that the post which fell vacant on 05.06.2000, being that of HSA (Physical Science), it could not have been filled up by recalling the HSA W.P.(C) No.18469 of 2012 -6- (Social Science) since it would be in violation of the Minimum Subject Requirement. In the above view of the matter, it has been found that the petitioner was legally entitled to be appointed against the vacancy of HSA (Physical Science) which arose on 05.06.2000. The further contention with regard to the double payment would also not hold good in this case, in view of the fact that Smt.Rosamma Thomas was already a protected hand and would have had to be paid her entire salary and allowances, even if she had not been recalled to work in the school. In the above view of the matter, I am of the definite opinion that the finding contained in Ext.P7 to the effect that the petitioner was the rightful claimant to be appointed as HSA (Physical Science) in the vacancy which arose on 05.06.2000, should lead to his entitlement to pay and allowances in the promoted post as well. Ext.P7 order, to the extent it denies retrospective operation to the promotion of the petitioner is set aside. It is directed that the petitioner shall be paid the W.P.(C) No.18469 of 2012 -7- difference of salary and allowances consequent to his promotion to the post of HSA (Physical Science) with effect from 05.06.2000. The pay and allowances shall be calculated and paid to the petitioner within a period of 3 months from the date of receipt of a copy of this judgment. The learned Government Pleader submits that the educational authorities should be permitted to proceed against the manager. The said claim is left open. Writ petition is ordered accordingly. ANU SIVARAMAN, JUDGE vs