Shakeer C.K. S/o Late Kasim v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR SATURDAY, THE 20TH AUGUST 2011 / 29TH SRAVANA 1933 WP(C).No. 3612 of 2009(E) ------------------------------- PETITIONERS: ---------------- SHAKEER C.K. S/O.LATE KASIM, THAZHATHU HOUSE, ARAKUZHA ROAD, P.O. MUVATTUPUZHA (H.S.ASSISTANT) BY ADVS. SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.M.A.AUGUSTINE RESPONDENTS: ------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (R) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. 3. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, ERNAKULAM. BY ADVS. SRI.P.C.SASIDHARAN, SC, KPSC FOR R3 SMT. RANI DIOTHIMA, GOVERNMENT PLEADER FOR R1-R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.3612/2009 A P P E N D I X ## PETITIONER'S EXHIBITS: EXT. P1 : COPY OF REPRESENTATION DTD. 31.8.06 SUBMITTED BY PETITIONER BEFORE R2. EXT. P2 : COPY OF ORDER No.A1-25453/04 20.03.07 ISSUED BY R2. EXT. P3 : COPY OF APPEAL MEMO DTD. 21.1.08 SUBMITTED BY PETITIONER BEFORE R1. EXT. P4 : COPY OF ORDER– G.O.(Rt) No.291/09/G.EDN. DTD.19.1.09. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp ## **T.R. RAMACHANDRAN NAIR, J.** **--------------------------------------W.P.(C) No.3612 OF 2009 --------------------------------------Dated this the 20[th] day of August, 2011.** ## **J U D G M E N T** The petitioner is seeking to quash Ext.P4 Government Order wherein it was held that as far as the petitioner is concerned the date 28.02.2004 on which he was readvised can only be taken as the first effective advice. It is a case where the petitioner was initially advised for appointment on 08.11.2001 and he was appointed by order dated 28.11.2001 as High School Assistant (Physical Science) and joined duty in the Government Vocational Higher Secondary School, Chottanikkara on 07.12.2001. Later he was served with a show cause notice by the 3[rd] respondent on 16.05.2002 to show cause as to why his advice should not be cancelled because of certain mistakes with regard to the rotation. 2. The petitioner filed O.P.No.21813/2002 before this Court and by virtue of the interim order passed therein, he continued in service. The said writ petition was finally dismissed on 13.08.2002 and Writ Appeal No.2111/2002 was filed by the **W.P.(C) No.3612/2009** **2** petitioner. Even though the 3[rd] respondent passed final order dated 27.09.2002, the implementation of the said order was stayed by this Court in C.M.P.No.6430/2002. But, when the writ appeal came up for final hearing, it was pointed out that the turn of the petitioner has reached on the basis of which he can be issued a fresh advice for appointment. Recording the same, the writ appeal was disposed of with a direction to the 3[rd] respondent to readvice the petitioner on his turn as per the ranked list and in accordance with the Rules relating to communal rotation. The petitioner was re-advised and appointed in the same school as per order dated 04.06.2004. 3. During the period of service, he continued based on the interim order passed by this Court but salary and other benefits were not paid. Seeking for payment of such amounts, the petitioner approached this Court by filing W.P.(C) No.18629/2004 which was disposed of by directing the petitioner to submit a representation in the matter. Later a representation was filed as per Ext.P1 and an order was issued as per Ext.P2 by granting the benefit. To the extent to which he was not granted the benefit of **W.P.(C) No.3612/2009** **3** service for the purpose of various other benefits, an appeal was filed which stands disposed of by Ext.P4. Learned counsel for the petitioner submitted that the respondents 1 and 2 have wrongly considered the latter advice in 2004 as the effective date of advice. 4. Reliance is placed on the decision of a Division Bench of this Court in _**Labour Commissioner** vs._ _**Joshua**_ (2006 (1) KLT 241). It is pointed out that the petitioner was continuing in service and he was not responsible for cancellation of the first advice. He will be entitled for the grant of benefits by reckoning the entire period for the purpose of future benefits. 5. Heard the learned Standing Counsel appearing for the Public Service Commission and the learned Government Pleader. 6. My attention was invited by the learned counsel for the petitioner to the dictum laid down in _**Labour Commissioner** vs._ _**Joshua**_ (2006 (1) KLT 241). Therein, after referring to Rule 27(c) of K.S.&S.S.R, it was held in paragraph 19 as follows: “Therefore, going by R.27(c) and the Note thereunder, the determinative factor for the purpose of seniority of the respective incumbents is the date of 'effective advice' by the Public Service Commission on the **W.P.(C) No.3612/2009** **4** basis of which they have been appointed. This is 12.06.1980 in the case of the petitioner and respondents 3 and 4. That was the date of only effective advice in their case”. 7. I am afraid, the said dictum will not help the argument of the learned counsel for the petitioner herein. The facts of the said case show that the respondents 3 and 4 therein were initially advised on 12.06.1980 for appointment as Lower Division Clerk in the Agricultural Department and the 5[th] respondent was advised on 31.05.1980 for appointment as Lower Division Clerk in the Dairy Development Department whereas the petitioner was advised later than him on 12.06.1980 in the Labour Department. The respondents 3 and 4 could not get appointment for want of vacancies. The petitioner and the 5[th] respondent were appointed but the 5[th] respondent was later discharged from service for want of vacancies and he re-registered his name and was readvised on 10.09.1980. Therefore, as between the petitioner and the respondents 3 and 4, this Court held that the date of first effective advice will be 12.06.1980. But, as regards the 5[th] respondent, his date of first effective advice is on 31.05.1980. This was because of the benefit available under the 4[th] proviso to **W.P.(C) No.3612/2009** **5** Rule 27(c) of K.S. & S.S.R. 8. The situation herein cannot be said to be identical. Herein, the first advice of the petitioner was wrong going by the stand taken by the 3[rd] respondent. He continued in the light of the interim order passed by this Court and he was readvised during the pendency of the writ appeal and on reporting the said fact, this Court directed the advice memo to be issued and thereafter he was appointed. It is so happened that the appointment was granted in the very same school. 9. As rightly pointed out by the learned Standing Counsel for the Public Service Commission, the benefit of the interim order unless it results in a final favourable judgment cannot be relied upon for claiming other benefits. Herein, evidently, between the date of first advice and the readvice made, so many persons would have been appointed. 10. If the contention of the petitioner is taken to its logical conclusion and he is granted all the benefits including the benefit of service rendered by him after the period he continued in service based on the interim order, then automatically it will **W.P.(C) No.3612/2009** **6** result in grant of regularization in service, seniority and other benefits. Of course, what is claimed herein is reckoning of the period for the purpose of pay fixation and other benefits. But, in the light of the fact that the advice made earlier was by a mistake, the petitioner could not get a favourable judgment with regard to the claim for appointment based on the said advice. What has enured to him as appointment is only the 2[nd] advice namely, the readvice in the year 2004. Therefore, as far as the petitioner is concerned, the first effective advice is the latter one and not the first one in 2001. This is the view taken by the Government in Ext.P4 also. I do not find anything wrong in the order passed by the Government as per Ext.P4. Therefore, this writ petition is dismissed. No costs. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp