Subair K. vs State Of Kerala Represented By on 10 February, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 4387 of 2010(W)


1. SUBAIR K., H.S.S.T (JUNIOR)(ARABIC)
                      ...  Petitioner

                        Vs



1. STATE OF KERALA REPRESENTED BY
                       ...       Respondent

2. THE DIRECTOR OF HIGHER SECONDARY

                For Petitioner  :SRI.KALEESWARAM RAJ

                For Respondent  : No Appearance

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :10/02/2010

 O R D E R
                                 S. Siri Jagan, J.
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                          W.P(C) No. 4387 of 2010
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               Dated this, the 10th day of February, 2010.

                                J U D G M E N T

The petitioner was appointed as a HSST (Junior) in Arabic in

Puliyaparamb H.S.S, Kodunthirapully in Palakkad district with effect

from 2-8-2000. But, by Ext. P2 order dated 29-11-2003, that

appointment was approved only with effect from 16-11-2001. The

petitioner now seeks the following reliefs:

“i) to issue a writ of mandamus directing the respondents to
approve the service rendered by the petitioner as HSST (Junior)
(Arabic) in Puliyaparambu H.S.A, Kodunthirapully in Palakkad
dist. for the period from 2-8-2000 to 16-11-2001.

ii) to issue a writ of mandamus directing the respondents to
pay salary due to the petitioner for the period from 2-8-2000 to
16-11-2001;

iii) to declare that the petitioner was qualified to hold the post
of HSST/(Junior) (Arabic) for the period from 2-8-2000 to 16-11-
2001 as he has held the said post with effect from 16-11-2001;

iv) to issue a writ of mandamus directing the respondents to
pay arrears for salary to the petitioner for the period from 2-8-
2000 to 16-11-2001 with interest within a time frame to e fixed by
this Hon’ble Court.”

2. The petitioner has explained the long delay of almost 7 years

in seeking reliefs against Ext. P2 order, in paragraph 10 of the writ

petition thus:

“10. It is true that Ext. P2 was issued by the 2nd respondent in the
year 2002. Thus some delay has occurred in filing this writ
petition. It so happened because the petitioner expected that his
requests by way of representation will be honoured and a formal
order will be passed by the 2nd respondent granting approval of
appointment with effect from 2-8-2000 itself and consequently
service for the period from 2-8-2000 to 16-11-2001 also will be
approved. However, no third party rights are prejudiced on
account of the delay and the respondents also are not subjected to
any loss or prejudice as result of the delay. Still further, there is
long delay on the part of the respondents in taking a decision in

W.P.C. No. 4387/2010. -: 2 :-

the mater of approval of service from 2-8-2000 to 16-11-2001.
Even now no decision is taken, as a matter of fact. There is no
formal order rejecting approval of appointment from 2-8-2000 to
16-11-2001. The representation also is still pending and the
matter is yet to be decided. In view of this delay on the part of the
respondents there is recurring cause of action for the petitioner.
Even otherwise, in financial matters, the respondents cannot plead
delay and laches against the petitioner when prejudice is caused to
the respondents and the third parties and when there is recurring
cause of action. (please see the decision in Raghavan Unni v.
Union of India, 2007(2) KLT situation 39 case No. 55 and Rajan C.
v. Secretary, Ministry of Defence and others, 2009(1) KHC 151).”

3. I am not satisfied that the petitioner has satisfactorily

explained the delay. This is not a recurring right as claimed by the

petitioner. The petitioner’s right for approval with effect from 28-2-

2000 was rejected by Ext. P2 order in 2003. Even if the petitioner has

submitted a representation against the same, that is no explanation

for the delay of 7 years. If the representation had not evoked any

response within a reasonable time, the petitioner ought to have

sought appropriate remedies in the matter, which he has not.

Therefore, I am satisfied that the petitioner has not explained the

delay satisfactorily. Hence, I am not inclined to exercise my

discretionary jurisdiction under Article 226 of the Constitution of

India in favour of the petitioner and accordingly the writ petition is

dismissed.

Sd/- S. Siri Jagan, Judge.

Tds/

[TRUE COPY]

P.S TO JUDGE.