Manojkumar P. H.S.A. (English) v. State of Kerala and The Deputy Director of Education, Kasaragod

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930** **WP(C).No. 23888 of 2006(R)** **--------------------------------------** ## **PETITIONER(S):** **----------------------** **MANOJKUMAR P. H.S.A. (ENGLISH), G.H.S.S.UDINOOR, UDINOOR P.O. KASARAGOD DISTRICT.** **BY ADV. SRI.M.SASINDRAN SRI.TOJAN J. VATHIKULAM** ## **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA - REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD.** **GOVERNMENT PLEADER SMT.T.B.REMANI FOR R1 & R2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO. 23888/2006-R** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE ORDER DATED 19/05/2003 SANCTIONING LEAVE FROM 01/04/2000 TO 15/01/2001.** ## **EXT.P2: COPY OF THE ORDER NO.36587/P1/03/GED DATED 07/10/2003.** **EXT.P3: COPY OF THE PROCEEDINGS DATED 05/06/2003 ALONG WITH THE RELEVANT EXTRACT OF THE SENIORITY LIST.** **EXT.P4: COPY OF THE REPRESENTATION DATED 07/08/2003.** **EXT.P5: COPY OF THE G.O.(P)616/2003/FIN. DATED 19/11/2003.** **EXT.P6: COPY OF THE ORDER DATED 31/01/2004 ISSUED BY THE 2ND RESPONDENT REASSIGNING THE SENIORITY.** **EXT.P7: COPY OF THE ORDER DATED 05/02/2004 PROMOTING THE PETITIONER TO THE POST OF H.S.A.(ENGLISH).** **EXT.P8: COPY OF THE ORDER DATED 15/11/2003 PROMOTING SL.NO.19 IN EXT.P3.** **EXT.P9: COPY OF THE COUNTER AFFIDAVIT FILED ON BHEALF OF THE GOVERNMENT IN W.P.(C). NO. 35691/2003.** ## **EXT.P10: COPY OF THE JUDGMENT DATED 27/07/2005 IN W.P.(C). NO. 35691/2005.** **EXT.P11: COPY OF THE REPRESENTATION DATED 06/08/2005 SUBMITTED BEFORE THE FIRST RESPONDENT.** **EXT.P12: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT.** **EXT.P13: COPY OF THE ORDER DATED 22/08/2005 ISSUED BY THE 2ND RESPONDENT.** **EXT.P14: COPY OF THE G.O. DATED 29/07/2006 REJECTING THE REQUEST MADE BY THE PETITIONER AS PER THE EXHIBIT P.10 JUDGMENT.** ## **EXT.P15: COPY OF THE G.O.DATED 20/01/2005.** **EXT.P16: COPY OF THE JUDGMENT DATED 23/11/2005 IN W.P.(C). NO. 24460/2005.** **EXT.P17: COPY OF THE CIRCULAR DATED 04/02/2006.** **EXT.P18: COPY OF THE COMMUNICATION DATED 17/06/2008 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD TO THE HEADMASTERS.** **EXT.P19: COPY OF THE NOTIFICATION DATED 30/09/2008 ISSUED BY THE DIRECTOR OF HIGHER EDUCATION.** ## **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **Rs/** **P.A. TO JUDGE** ## **ANTONY DOMINIC, J. ============== W.P.(C) NO. 23888 OF 2006 (R) ====================** ## **Dated this the 24[th] day of November, 2008** ## **J U D G M E N T** Petitioner was a PD teacher, who joined service on 1/6/98. He joined for B.Ed for the period 24/4/2000 to 15/1/2001. He applied for leave without allowance for the period from 5/6/2000 to 15/1/2001 and the application was returned requiring him to apply for leave from 01/04/2000. Petitioner submits that in Ext.P3 seniority list, he was included at Sl.No.30, but in the final seniority list published on 7/8/03, his seniority was altered and his date of entry was indicated as 16/1/2001. To the seniority list, he filed Ext.P4 objection and wanted that his date of entry should be indicated as 1/6/98. 2. At that stage, he filed a writ petition as WP(C) No.35691/03, in which Ext.P9 counter affidavit was filed. The writ petition was disposed of by Ext.P10 judgment and para 4 and 5, being relevant, are extracted hereunder. 4. However, the petitioner has got a further contention that by Ext.P8, he was sanctioned leave from 01/04/2000 whereas he joined the course only on 24.4.2000. Therefore, the direction of the respondents asking him to apply for leave to be reviewed. I find considerable force in the contention of the petitioner. When the petitioner joined the course only on 24.4.2000, **WPC 23888/06** **:2 :** he is liable to apply for leave only from that date. Therefore, if the petitioner files a representation detailing his above claim within two weeks from today, the 2[nd] respondent shall consider the same and pass appropriate orders thereon in accordance with the observations in this judgment within a further period of one month from the date of receipt of a copy of this judgment. 5. Second contention of the petitioner is that in so far as he has been reassigned seniority as 18(a) immediately above Smt.Pushpa Koyyan appearing at Sl.No.19 in Ext.P12, his promotion should also be notionally fixed from the date of promotion assigned to the said Pushpa Koyyan. The argument is well founded on this score also. When the petitioner is reassigned seniority above his immediate junior, his date of promotion is also liable to be notionally fixed on par with that of his immediate junior, namely, Smt.Pusha Koyyan. I, therefore, direct the respondents to reconsider the matter, review Ext.P17 order and pass appropriate orders granting date of promotion to the petitioner notionally with effect from the date when Smt.Pushpa Koyyan was promoted. This exercise shall be completed within one month from the date of receipt of a copy of this judgment. 3. In so far as his leave from 24/4/2000 is concerned, he submitted Ext.P11 representation to the 1[st] respondent and for the benefit of restoration of his seniority he submitted Ext.P12 representation to the 2[nd] respondent. Petitioner contends that by Ext.P13, the 2[nd] respondent restored his seniority as prayed for in Ext.P12. However, Ext.P14 order was passed by the 1[st] respondent, holding that at the time when the petitioner availed of leave, since he had not completed probation, he has **WPC 23888/06** **:3 :** to be considered as a fresh entrant on the date of return from the leave and therefore the request of the petitioner to grant leave from 24/4/2000 to 15/1/2001 prefixing summer vacation from 01/04/2000 to 23/4/2000 does not merit consideration and on that basis it was rejected. Proceeding further, the seniority restored to the petitioner by Ext.P13 was also cancelled. It is challenging Ext.P14, this writ petition is filed. The main contention raised by the counsel for the petitioner is that, since Ext.P10 judgment and the findings therein, have become final and binding on the parties thereto, it is not permissible for the 1[st] respondent to take the view it has taken in Ext.P14. 4. Learned Government Pleader would submit that Ext.P10 judgment was rendered on the basis of the Government order dated 19/11/2003 (Ext.P5). It is stated that the said Government order was cancelled by the Government itself and the cancellation was upheld by a Division Bench of this Court in Ext.P16 judgment. It is also contended that in Ext.P16 judgment, the Division Bench directed that since the Government order dated 19/11/2003 is already cancelled, the Government shall cancell all consequential orders issued pursuant to the said Government order and give effect to the principles laid down by this Court **WPC 23888/06** **:4 :** in **Unnikrishna Panicker v. Bhasi (2001(1) KLT 449)** . It is stated that it is on the basis of Ext.P16 that Ext.P14 order was issued reviewing Ext.P13 order passed by the 2[nd] respondent. 5. Thus, what arises for consideration is the correctness or otherwise of Ext.P14 order passed by the 1[st] respondent purported to be in implementation of Ext.P16 judgment rendered by a Division Bench of this Court. Counsel for the petitioner contends that the parties are governed by Ext.P10 judgment in WP(C) No.35691/03 and it is contended that since the judgment has attained finality, irrespective of the change of law that has occurred subsequent thereto, the position as obtaining in Ext.P10 judgment shall govern the parties. It is contended that, for that reason, Ext.P16 judgment rendered far subsequent to Ext.P10 judgment cannot be of any avail to the respondents to sustain Ext.P14 cancelling Ext.P13 order passed by the 2[nd] respondent implementing Ext.P10, the interparte judgment rendered as above. 6. On appreciating the rival contentions raised by the parties, I am inclined to agree with the counsel for the petitioner. True in Ext.P16 judgment, this Court upheld the cancellation of Ext.P5 Government order, and on that basis also directed that the Government shall cancell the **WPC 23888/06** **:5 :** orders issued pursuant to Ext.P5. Fact remains that the petitioner was not a party to Ext.P16 judgment. On the other hand, in Ext.P10 judgment rendered by this Court in WP(C) No.35691/03 filed by the petitioner to which the respondents herein are parties, this Court has issued positive directions binding on the respondents. That judgment has become final and there has not been any appeal or review. It is pursuant to the binding directions issued in Ext.P10 judgment that Ext.P13 was issued. Since Ext.P10 judgment binds the party and as the judgment has become final, subsequent change of law occurred consequent on Ext.P16 can have no effect on the binding nature of Ext.P10 or the consequent action that has been taken based on Ext.P10. It is the settled principle of law that once an interparte judgment has attained finality, any change of law, even consequent on a judgment rendered by a superior court, cannot undo the previous interparte judgment. In this case, even if Ext.P5 has been cancelled subsequently, the directions issued in Ext.P10 binds the parties and therefore Ext.P16 judgment can be of no avail for the respondents to sustain Ext.P14. Therefore, the respondents are bound to give effect to para 4 and 5 of Ext.P10 judgment and Ext.P13 giving effect to para 5 needs to be sustained and I do so. **WPC 23888/06** **:6 :** 7. Therefore, the 1[st] respondent is directed to give effect to para 4 and 5 of the judgment and Ext.P14 will stand set aside. The 1[st] respondent shall reconsider Ext.P11 representation made by the petitioner pursuant to the directions in para 4 of Ext.P10 judgment and pass orders thereon. 8. In IA No. 12953/08, petitioner seeks a direction to the 2[nd] respondent to complete the process of declaration of his probation. According to the petitioner, he was promoted as HSA by Ext.P7 dated 5/2/2004. It is contended that in view of the pendency of this writ petition, his probation has not been declared so far. It is directed that on the petitioner producing a copy of this judgment, the 2[nd] respondent shall consider this aspect of the matter and pass appropriate orders within 2 weeks thereafter. Writ petition is disposed of as above. ## **ANTONY DOMINIC, JUDGE** Rp