IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25780 of 2010(V)
1. V.N.SHIBU, S/O.T.NELSON,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. DIRECTOR OF COLLEGIATE EDUCATION
3. SANTHOSH KURIAKOSE.K.,
For Petitioner :SRI.BABU JOSEPH KURUVATHAZHA
For Respondent :SRI.PIRAPPANCODE V.S.SUDHIR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :16/09/2010
O R D E R
K.T.SANKARAN, J.
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W.P.(C) No.14351 of 2010
&
W.P.(C) No.25780 of 2010
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Dated this the 16th day of September, 2010
JUDGMENT
W.P.(C) No.14351 of 2010 is filed by Santhosh Kuriakose
in which V.N.Shibu is the third respondent. W.P.(C) No.25780 of
2010 is filed by V.N.Shibu in which Santhosh Kuriakose is the
third respondent.
2. Santhosh Kuriakose was appointed as Physical
Education Teacher in Government V.H.S.S., Mankayil, Maradu
on 1.1.2001. While he was working in that school, the Director
of Collegiate Education invited applications for appointment of
17 Physical Education Instructors in Government Polytechnics
from among the Physical Education Teachers in Government
High Schools. As per the order dated 28.11.2009 (Ext.P2 in W.P.
(C) No.14531 of 2010), the Director of Collegiate Education
appointed (by transfer) Santhosh Kuriakose in Government
WPC Nos.14351 & 25780/2010 2
Polytechnic College, Trikaripur. Santhosh Kuriakose joined in
the Government Polytechnic College on 7.12.2009.
3. V.N.Shibu joined in service as Physical Education
Teacher on 2.6.1990. He was appointed by transfer as Physical
Education Instructor, as per the order dated 6.12.2007 (Ext.P2 in
W.P.(C) No.25780 of 2010) issued by the Director of Collegiate
Education, Thiruvananthapuram. Shibu joined as Instructor in
Physical Education at Government Polytechnic College,
Neyyattinkara on 7.12.2007. While so, he got admission for
M.P.Ed. course. On his application, leave without allowance for
study purpose for a period of two years was granted as per
G.O.Rt.No.1258/08/H.Edn. dated 19.8.2008 (Ext.P3 in W.P.(C)
No.25780 of 2010). As per that Government Order, the Director
of Collegiate Education, Thiruvananthapuram was directed to fill
up the resultant vacancy. Shibu, on availing the leave attended
the course and completed the course. Shibu sought to rejoin on
duty after completing the course. As per the order dated
28.4.2010 passed by the Director of Collegiate Education
WPC Nos.14351 & 25780/2010 3
(Exhibit P4 in W.P.(C) No.14351 of 2010 – Exhibit P5 in W.P.(C)
No.25780 of 2010), Shibu was accommodated in Government
Polytechnic, Trikaripur, by ousting Santhosh Kuriakose.
4. Santhosh Kuriakose challenged the aforesaid order
dated 28.4.2010 passed by the Director of Collegiate Education
in W.P.(C) No.14351 of 2010. His contention is that he was not
appointed in the resultant vacancy on granting leave to Shibu.
But, he was appointed in a regular vacancy on the transfer of one
Jayachandran. It is contended that in the order appointing
Santhosh Kuriakose as Physical Education Instructor, it is
specifically stated that he was being appointed in the vacancy
which occurred on the transfer of Jayachandran. It is also
pointed out that there is nothing in the order dated 28.11.2009
to indicate that the appointment of Santhosh Kuriakose was as
per the Government Order dated 19.8.2008. No interim order
was granted in W.P.(C) No.14351 of 2010.
5. While so, it would appear that Santhosh Kuriakose
WPC Nos.14351 & 25780/2010 4
approached the Director of Collegiate Education and appraised
all the relevant facts. The Director of Collegiate Education
passed an order dated 12.8.2010 (Ext.P6 in W.P.(C) No.25780 of
2010) appointing Santhosh Kuriakose at Kalamassery
Government Polytechnic ousting V.N.Shibu temporarily. The
order passed by the Director of Collegiate Education dated
12.8.2010 was challenged by V.N.Shibu in W.P.(C) No.25780 of
2010. In the order dated 12.8.2010, the Director found that at
the time when leave was granted to Shibu, his probation was not
declared and therefore on rejoining, it could be treated only as a
new entry. Therefore, Santhosh Kuriakose should not have been
ousted to accommodate V.N.Shibu.
6. The Director of Collegiate Education passed the order
dated 12.8.2010 while W.P.(C) No.14351 of 2010 was pending.
That does not by itself invalidate the order. But, that order was
passed without hearing Shibu. Not only that the order dated
12.8.2010 will have the effect of a review of the order dated
28.4.2010 passed by the Director. The Director has no power to
WPC Nos.14351 & 25780/2010 5
review his own order. There was no order by any court to
consider the matter or to pass any order. Therefore, the order
dated 12.8.2010 passed by the Director is liable to be quashed.
I do so.
7. The next question to be considered is whether the
order dated 28.4.2010 passed by the Director is to be interfered
with as desired by Santhosh Kuriakose in W.P.(C) No.14351 of
2010. I think all the relevant facts are to be considered by the
same authority based on the records and facts and it is not
proper for this Court to exercise the jurisdiction under Article
226 of the Constitution of India for the first time to peruse the
records and to pass orders. Rival claims of Shibu and Santhosh
Kuriakose were not considered by any authority at any point of
time after hearing both the parties. Therefore, it is only proper
to direct the Government to look into the matter, hear Shibu and
Santhosh Kuriakose, call for all the records, find out the vacancy
position and pass appropriate orders. If Santhosh Kuriakose was
not appointed in the resultant vacancy of availing leave by Shibu,
WPC Nos.14351 & 25780/2010 6
there is no question of ousting him. All the matters should be
considered and appropriate decision should be taken within a
period of one month from the date of receipt of a copy of this
judgment. The parties shall produce copy of the Writ Petitions
and certified copy of the judgment before the first respondent.
Both the Writ Petitions are disposed of as above.
K.T.SANKARAN,
JUDGE
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