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High Court of KeralaSingle JudgeWrit petition allowed; Ext.P10 quashed; Governm...

K. Madhusoodanan Pillai v State of Kerala and others

Case / Petition Number:WP(C).No. 7776 of 2010
Neutral Citation:,

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.K. Abdul Rehim
Judgment Date
2015-03-19
Court Decision / Holding
Writ petition allowed; Ext. P10 quashed. The 1st respondent is directed to reconsider Exts. P8 and P9 representations afresh, after affording the petitioner and others concerned an opportunity of personal hearing. A fresh decision should be taken within three months from the receipt of a copy of this judgment. The court clarifies that it has not expressed any final opinion on the petitioner’s entitlement to retrospective promotion as Clerk from 8.7.2005 and leaves the matter to the Government’s consideration in light of the observations in the judgment.
Final Disposition
Writ petition allowed; Ext.P10 quashed; Government to reconsider Exts.P8 and P9 after personal hearing within three months; not expressing final opinion on retrospective promotion, left to Government's decision.

Parties to the Case

Appellants / Petitioners

  • K. Madhusoodanan Pillai

Respondents

  • State of Kerala represented by the Secretary to Government, General Education Department, Government Secretariat, Thiruvananthapuram
  • District Educational Officer, Mavelikkara
  • Manager, Vishwabharathi Model High School, Krishnapuram, Kayamkulam, Alappuzha District
  • Headmaster, Vishwabharathi Model High School, Krishnapuram Kayamkulam, Alappuzha District

Legal Representation & Advocates

Counsels for Petitioners

  • • K. Sasikumar
  • • S. Aravind
  • • P. Jinish Paul

Counsels for Respondents

  • • Sri. R. Rajasekharan Pillai
  • • Sri. R. Sreedharan Nair
  • • Sri. Sabina Jayan
  • • Sri. Mini.V.A.
  • • Sri. P.V. Elias (Government Pleader)

Case Synopsis & Summary

This writ petition challenges the Government’s rejection of the petitioner’s claim for notional retrospective promotion as Clerk. The petitioner, initially appointed as Full Time Menial in 1995 at Vishwabharathi Model High School, Krishnapuram, was repeatedly posted to other institutions, returning to the 3rd respondent’s school in 2005. While the petitioner was deployed elsewhere, a vacancy for High School Assistant (Hindi) in 2000 arose and eventually a rival candidate, Smt. Anandakumari, was recognized as entitled to appointment to that post with effect from 5.6.2000, by an order ultimately approved in 2007 after a Supreme Court decision (Raghava Kurup v Anandakumari) and related orders. The petitioner’s central plea is for a notional retrospective promotion to Clerk from 8.7.2005, when he was reposted to the 3rd respondent’s school, claiming the vacancy existed earlier due to the Anandakumari matter. The Government’s Ext. P10 rejection states the petitioner did not work as Clerk during the relevant period and the vacancy was established only from 1.6.2007. The High Court, noting missteps in the government’s consideration, quashes Ext. P10 and directs reconsideration of Exts. P8 and P9 after a personal hearing within three months, while reserving its view on the retrospective promotion itself and leaving the ultimate decision to the Government.

Provisions of Law Cited

provisions_of_law_sections

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues for a notional retrospective promotion as Clerk, with effect from 8.7.2005, based on the post-reposting sequence and the theory that a vacancy existed earlier due to the promotion of Smt.Anandakumari to H.S.A. Hindi. Exts. P8 and P9 were submitted to the Government seeking reconsideration; the argument emphasizes that the Government should have treated the petitioner’s promotion as retrospective rather than limited by the actual vacancy creation date. The petitioner contends that the government’s reliance on the date the vacancy was established (1.6.2007) ignores the notional vacancy created by prior promotions and the reversion/absorption sequence, and seeks consideration after proper hearing and factual reconciliation.

Contentions of Respondents

The Government rejected Exts. P8 and P9 via Ext. P10 on the ground that the petitioner did not work in the Clerk post during the relevant period and that the vacancy was established only from 1.6.2007. The respondents contend that the notional vacancy issue was not established and that the petitioner’s claim cannot be granted retroactively; the government asserts the vacancy date controls the entitlement and salary consequences. The respondents argue that the 2007 Supreme Court decision (Raghava Kurup v Anandakumari) settled the related matter but do not acknowledge any automatic retroactive promotion to the petitioner’s position.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Raghava Kurup v Anandakumari[2007] 1 KLT 1054Mentioned OnlyCited to reference the Apex Court’s decision related to the Anandakumari matter; the present judgment does not apply or overrule it, but relies on its existence for context.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **THURSDAY, THE 19TH DAY OF MARCH 2015/28TH PHALGUNA, 1936** ## **WP(C).No. 7776 of 2010 (V) ---------------------------** ## **PETITIONER:** **--------------------------** **K. MADHUSOODANAN PILLAI, CLERK, VISHWABHARATHI MODEL HIGH SCHOOL KRISHNAPURAM (MALARIMEL HOUSE, PEROORKARANMA CHARUMMOODU.P.O)** **BY ADVS.SRI.K.SASIKUMAR SRI.S.ARAVIND SRI.P.JINISH PAUL** ## **RESPONDENT(S):** ## **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM.** **2. DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA.** **3. MANAGER, VISHWABHARATHI MODEL HIGH SCHOOL, KRISHNAPURAM, KAYAMKULAM ALAPPUZHA DISTRICT.** ## **4. HEADMASTER,** - **VISHWABHARATHI MODEL HIGH SCHOOL, KRISHNAPURAM KAYAMKULAM, ALAPPUZHA DISTRICT.** **R3 BY ADV. SRI.R.RAJASEKHARAN PILLAI R3 BY ADV. SRI.R.SREEDHARAN NAIR R3 BY ADV. SMT.SABINA JAYAN R3 BY ADV. SMT.MINI.V.A. R1 TO 2 BY GOVERNMENT PLEADER SRI.P.V. ELIAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 7776 of 2010** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXHIBIT P1:COPY OF THE ORDER DATED 13.1.1997 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2:COPY OF THE ORDER DATED 26.12.2002 ISSUED BY THE ADMINISTRATIVE ASSISTANT IN THE OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA.** **EXHIBIT P3:COPY OF THE ORDER DATED 3.6.2003 ISSUED BY THE ADMINISTRATIVE ASSISTANT IN THE OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA.** **EXHIBIT P4:COPY OF THE ORDER DATED 30.6.2005 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA.** **EXHIBIT P5:COPY OF THE ORDER DATED 1.6.2007 ISSUED BY THE 3RD RESPONDENT CONTAINING THE ENDORSEMENT OF THE ORDER DATED 13.9.2007 PASSED BY THE 2ND RESPONDENT.** **EXHIBIT P6:COPY OF THE ORDER DATED 1.6.2007 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P7:COPY OF THE ORDER DATED 28.3.2008 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P8:COPY OF THE REPRESENTATION DATED 12.10.2007 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P9:COPY OF THE REPRESENTATION DATED 1.1.2008 SUBMITTED BY THE PETITIONER TOT HE HON'BLE MINISTER FOR EDUCATION, GOVERNMENT OF KERALA.** **EXHIBIT P10:COPY OF THE ORDER DATED 9.2.2009 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P11:COPY OF THE REPRESENTATION DATED 27.5.2009 FORWARDED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** ## **RESPONDENTS EXHIBITS: NIL** **/TRUE COPY/** **P.A. TO JUDGE** **SKV** ## C.K.ABDUL REHIM, J. =================== W.P.(C). No. 7776 OF 2010 ======================= Dated this the 19[th] day of March, 2015 ## JUDGMENT Grievance of the petitioner is regarding rejection of Exts.P8 and P9 request made before the Government, through Ext.P10 letter. Through Exts.P8 and P9 the petitioner claimed that the appointment of the petitioner by the 3[rd] respondent Manager as Clerk should have been with retrospective effect from 8.7.2005, the date on which the petitioner was reposted to the 3[rd] respondent's School. But the Government have rejected the claim stating that the petitioner has not worked during the period from the above said date and that the vacancy against which he was posted was established only with effect from 1.6.2007. 2. Brief history of the case is that, the petitioner was appointed as Full Time Menial (FTM) in the 3[rd] respondent's School with effect from 5.6.1995. The said appointment was approved by the Educational Authorities, as evidenced W.P.(C). No. 7776 OF 2010 2 from Ext.P1. While continuing as FTM in the 3[rd] respondents school the petitioner was deployed to VRVMHS, Vayalar as a protected staff, as per Ext.P2 order, dated 26.12.2002 issued by the Deputy Director of Education, Alappuzha. Subsequently he was reposted to another School viz., Panchayath High School, Pathiyoor, as per Ext.P3 order dated 3.6.2003. When a regular vacancy arose in the 3[rd] respondent's School, the petitioner was called back and absorbed as Full Time Menial through Ext.P4 order issued by the Deputy Director of Education on 30.6.2005. Pursuant to Ext.P4 the petitioner rejoined the School on 7.7.2005 and he continued as such. 3. In the meanwhile, when the petitioner was deployed to other school as a protected staff there arose a vacancy of High School Assistant (H.S.A.) in Hindi with effect from 5.6.2000. One Smt.Anandakumari, who was then working as peon raised a claim for appointment to the post of H.S.A.Hindi. Since she was not qualified to be appointed in the said vacancy the 3[rd] respondent appointed another person discarding such claim. The matter was ultimately W.P.(C). No. 7776 OF 2010 3 considered by the Director of Public Instructions and the claim of Smt.Anandakumari was allowed declaring that she is entitled to be appointed as H.S.A. Hindi with effect from 5.6.2000, however by limiting the payment of salary only from the actual date of appointment. Eventhough the Manager challenged the order passed by the Deputy Director of Education up to the Hon'ble Supreme Court the issue was finally settled by decision of the Apex Court dated 22.2.2007, reported as Raghava Kurup v Anandakumari [2007 (1) KLT 1054 ]. Consequently, the 3[rd] respondent issued proceedings promoting Smt.Anandakumari as H.S.A. Hindi with effect from 5.6.2000. The said appointment order was issued on 1.6.2007. The Educational Officer had approved the appointment only with effect from 7.12.2000. However, the matter was taken up in appeal and ultimately through Ext.P7 proceedings the 2[nd] respondent had granted approval of appointment of Smt.Anandakumari with effect from 5.6.2000. 4. As observed above, the petitioner was posted back to the 3[rd] respondents School as Full Time Menial with W.P.(C). No. 7776 OF 2010 4 effect from 7.7.2005. At that time the petitioner was appointed against a vacancy which arose consequent to promotion granted to Smt.Anandakumari as clerk. The claim of the petitioner is that since it was later found that Smt.Anandakumari was entitled to be appointed as H.S.A. Hindi with effect from 5.6.2000. The petitioner was entitled for promotion to the post of clerk with retrospective effect from the said date. Since the petitioner was deployed to other schools during that time his claim ought to have been reckoned at least with effect from the date on which he was called back and appointed as non-teaching staff in the 3[rd] respondents School. In this regard the claim of the petitioner is for a notional retrospective promotion as clerk with effect from the date on which he had rejoined the 3[rd] respondent school on 8.7.2005. 5. It is evident from Ext.P10 letter that the claim of the petitioner was rejected based on the mere observation that he had not worked in the post of clerk during the period from 8.7.2005. But the Government have omitted to notice the fact that the claim of the petitioner is for a W.P.(C). No. 7776 OF 2010 5 notional retrospectivity with respect to his date of promotion. Observations contained in Ext.P10 is to the effect that the vacancy was established only with effect from 1.6.2007. But the question whether there existed a notional vacancy pursuant to Ext.P7 order, has omitted consideration by the Government. 6. Under the above mentioned circumstances this court is of the opinion that the matter requires reconsideration at the hands of the Government. Hence this writ petition is allowed and Ext.P10 is hereby quashed. The 1[st] respondent is directed to reconsider Exts.P8 and P9 representations submitted by the petitioner, afresh, after affording an opportunity of personal hearing to the petitioner and others concerned. A fresh decision taking note of the observations contained herein above shall be taken by the 1[st] respondent at the earliest possible, at any rate within 3 months from the date of receipt of a copy of this judgment. 7. It is made clear that this court has not expressed any opinion with respect to the claim made by the petitioner W.P.(C). No. 7776 OF 2010 6 for his entitlement to have retrospective promotion in the post of Clerk with effect from 8.7.2005. It is left open to the 1[st] respondent to take appropriate decision considering all relevant factors. Sd/C.K.ABDUL REHIM, JUDGE /TRUE COPY/ P.A. TO JUDGE SKV