K. Madhusoodanan Pillai v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 14[TH] DAY OF JULY 2021 / 23RD ASHADHA, 1943** **WP(C) NO. 29433 OF 2015** ## **PETITIONER:** **K.MADHUSOODANAN PILLAI, CLERK, VISHWABHARATHI MODEL HIGH SCHOOL, KRISHNAPURAM. (MALARIMEL HOUSE, PEROORKARANMA, CHARUMMODU P.O.).** **BY ADVS. SRI.K.SASIKUMAR SRI.S.ARAVIND SRI.K.JANARDHANA SHENOY SRI.V.K.PRASAD SRI.R.ROHITH SRI.P.S.RAGHUKUMAR** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 DISTRICT EDUCATIONAL OFFICER, MAVELIKARA-690 101.** - **3 MANAGER, VISHWABHARATHI MODEL HIGH SCHOOL, KRISHNAPURAM, KAYAMKULAM, ALAPPUZHA DISTRICT-690 533.** - **4 HEAD MASTER, VISHWABHARATHI MODEL HIGH SCHOOL, KRISHNAPURAM, KAYAMKULAM, ALAPPUZHA DISTRICT-690 533.** **BY ADV. SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 29433 OF 2015** **-2-** ## **JUDGMENT** The petitioner, who is stated to be working as a Clerk in the services of “Vishwabharathi Model High School”, Krishnapuram, has approached this Court impugning Ext.P12 order of the Government, through which his request for notional promotion to the post of Clerk with effect from 08.07.2005 has been rejected saying that there was no established vacancy on that date and because he was actually promoted only with effect from 01.06.2007. 2. The petitioner says that stand of the Government in Ext.P12 is fallacious, because the vacancy to which he was appointed arose consequent to the promotion of a teacher by ## **WP(C) NO. 29433 OF 2015** **-3-** name Smt.Ananthakumari, who had been initially promoted with effect from 01.06.2007, but granted notional retrospective promotion with effect from 05.06.2000, consequent to the judgment of the Hon’ble Supreme Court in **P.Raghava Kurup v. V.Ananthakumari** [2007 (1) KLT 1054]. 3. The petitioner, however, concedes that he was not in the services of the School on 05.06.2000, when Smt.Ananthakumari got her notional promotion, he having been deployed to another School and that he rejoined the School in question only on 07.07.2005, thus making him entitled to be granted notional promotion with effect from 07.07.2005. He alleges that Ext.P12 has not considered any of these contentions and has rejected his request in a mechanical manner and therefore, prays that same be set aside. **WP(C) NO. 29433 OF 2015** **-4-** 4. The learned Senior Government Pleader – Sri.P.M.Manoj, refuted the afore submissions made on behalf of the petitioner by his learned counsel – Sri.S.Aravind, arguing that petitioner cannot seek promotion with effect from 08.07.2005, since Smt.Ananthakumari was admittedly promoted only with effect from 01.06.2007. He explained that Smt.Ananthakumari, after having been promoted with effect from 01.06.2007, but was directed to be granted retrospective effect to such promotion from 05.06.2000 and, therefore, that the vacancy can only be deemed to have arisen with effect from the former date. The learned Senior Government Pleader further submitted that since the petitioner was not in service of the School in question on 05.06.2000, he cannot claim any benefits based on the occurrence of ## **WP(C) NO. 29433 OF 2015** **-5-** vacancy, even if this is accepted to be true. 5. Sri.P.M.Manoj, thereafter, submitted that this writ petition is not maintainable also for the reason that the petitioner has not approached any of the competent Educational Authorities, except by preferring Ext.P9 representation before the Hon’ble Minister; and therefore, that Government was justified in issuing Ext.P12, based on the available records. He, therefore, prayed that this writ petition be dismissed. 6. In reply to the afore submissions, Sri.S.Aravind contended that Ext.P8 representation was moved before the District Educational Officer validly; but that it is only when same was not considered by the said Authority, that his client was forced to go ## **WP(C) NO. 29433 OF 2015** **==> picture [22 x 9] intentionally omitted <==** before the Hon’ble Minister through Ext.P9. 7. I must, however, record at this time that the afore submission of Sri.S.Aravind was vehemently contested by the learned Senior Government Pleader saying that none of the files have a copy of Ext.P8 even as of now. 8. That said, the afore recorded arguments of the learned Senior Government Pleader do not fully appeal to me, because, as rightly argued by Sri.S.Aravind, Smt.Ananthakumari was initially promoted as a High School Teacher with effect from 01.06.2007 and it is consequential, therefore, that petitioner was also promoted as a Clerk with effect from that date. However, after the judgment of the Hon’ble Supreme Court in **P.Raghava Kurup** (supra), Smt.Ananthakumari was given a notional ## **WP(C) NO. 29433 OF 2015** **-7-** promotion with effect from 05.06.2000 and obviously therefore, the resultant vacancy can also be, at least notionally, deemed to have arisen from that date. However, it is admitted that petitioner was not in service of the School until 07.07.2005, he having been deployed elsewhere until then. But he joined the School, admittedly, on 08.07.2005 and consequently therefore, he is, _prima facie,_ justified in claiming that he should have been granted notional promotion with effect from 08.07.2005, since he was entitled to claim the vacancy available on that date, subject to other necessary conditions being satisfied. 9. Though I have recorded all these contentions of the rival parties as afore, I do not propose to speak on it affirmatively, because am of the view that these issues must ## **WP(C) NO. 29433 OF 2015** **-8-** first engage the attention of the Government appropriately, before a judicial review can be attempted by the petitioner on these aspects. Since Ext.P12 order is completely silent on the contentions of the petitioner with respect to arising of vacancy consequent to the notional promotion granted to Smt.Ananthakumari, I am certain that same will require to be set aside, so as to pave way for a fresh consideration at the hands of the same Authority. **==> picture [391 x 13] intentionally omitted <==** contention of the learned Senior Government Pleader, that this writ petition is not maintainable because petitioner has not approached any of the competent Authorities, cannot find favour with this Court because, right or wrong, Government has issued Ext.P12 based on Ext.P9 representation made by the ## **WP(C) NO. 29433 OF 2015** **-9-** petitioner before the Hon’ble Minister of Education. Therefore, it was up to the Government to have not accepted Ext.P9 and not to have issued Ext.P12, even if it is assumed that Ext.P8 was never preferred by the petitioner. But, they having done so, cannot now say that the petitioner is left without any remedy, including before this Court. In the afore circumstances, I allow this writ petition and set aside Ext.P12; with a consequential direction to the competent Authority of the Government to reconsider the claim of the petitioner for notional promotion with effect from 08.07.2005, adverting specifically to the contentions above and after affording him, as also the Manger of the School an opportunity of being heard - thus culminating in an appropriate order thereon, as ## **WP(C) NO. 29433 OF 2015** **-10-** expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment. **Sd/DEVAN RAMACHANDRAN JUDGE** akv ## **WP(C) NO. 29433 OF 2015** **-11-** ## **APPENDIX OF WP(C) 29433/2015** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A COPY OF THE ORDER DTD.13.1.1997 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2 A COPY OF THE ORDER DTD.26.12.02 ISSUED BY THE ADMINISTRATIVE ASSISTANT IN THE OFFIE OF THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA.** **EXHIBIT P3 A COPY OF THE ORDER DTD.3.6.2003 ISSUED BY THE ADMINISTRATIVE ASSISTANT IN THE OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA.** - **EXHIBIT P4 A COPY OF THE ORDER DTD.30.6.2005 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA.** - **EXHIBIT P5 A COPY OF THE ORDER DTD.1.6.2007 ISSUED BY THE 3RD RESPONDENT CONTAINING THE ENDORSEMENT OF THE ORDER DTD.13.9.2007 PASSED BY THE 2ND RESPONDENT.** - **EXHIBIT P6 A COPY OF THE ORDER DTD.1.6.2007 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P7 A COPY OF THE ORDER DTD.28.3.2008 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P8 A COPY OF THE REPRESENTATION DTD.12.10.2007 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P9 A COPY OF THE REPRESENTATION DTD.1.1.2008 SUBMITTED BY THE PETITIONER TO THE HON'BLE MINISTER FOR EDUCATION, GOVERNMENT OF KERALA.** **EXHIBIT P10 A COPY OF THE ORDER DTD.9.2.2009 ISSUED** **WP(C) NO. 29433 OF 2015** **-12-** **BY THE 1ST RESPONDENT.** **EXHIBIT P11 A COPY OF THE JUDGMENT DTD.19.3.2015 IN WPC NO.7776/2010.** **EXHIBIT P12 A COPY OF THE GO(RT)NO.3848/15/G.EDN. DTD.8.9.2015.** ## **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE