Kerala High Court
K.Madhusoodanan Pillai vs State Of Kerala on 14 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 14TH 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
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. 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
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
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
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
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.
10. That having been so said, the
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
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
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
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
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
