IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 75 of 2008()
1. P.J.ROSAMMA, HSA, G.H.S.BALAL,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY ITS SECRETARY,
... Respondent
2. DIRECTOR OF PUBLIC INSTRUCTIONS,
3. DISTRICT EDUCATION OFFICER,
4. O,GANGADHARAN, S/O.KUNHIRAMAN,
5. C.GOPALAN, S/O.OTHENAN,
6. A.VENUGOPALAN, S/O.ANANTHAN,
7. K.P.VASANTHAKUMARI, W/O.K.K.BHASKARAN,
For Petitioner :SRI.P.RAVINDRAN (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :31/07/2009
O R D E R
K. BALAKRISHNAN NAIR
&
C.T. RAVIKUMAR, JJ.
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W.A. NOS. 75 & 256 OF 2008
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Dated this the 28th day of August, 2009
JUDGMENT
Ravikumar, J.
The appellants were the petitioners. They were High School
Assistants. The above appeals were preferred respectively against the
judgments in W.P.(C) No.26522 of 2004 and W.P.(C) No. 20712 of 2006.
The petitioners acquired the qualifications prescribed under Rule 5 of the
Kerala General Education Rules (hereinafter referred to as “the Rules”) for
promotion to the post of Headmaster. Essentially, the quintessence of the
contentions in both the appeals pertains to the grievance in the matter of
exemption granted from passing the departmental test prescribed under
Rule 5 of the said Rules in respect of teachers who have crossed the age of
50 and who are otherwise qualified for promotion as Headmaster/Assistant
Educational Officer, for a period of three years. Such exemption was
granted, by invoking the power vested with the Government, vide G.O.(Rt)
No. 1627/G.Edn. dated 29.4.2003, a copy of which is produced as Ext.P4
in W.P.(C) No. 26522 of 2004( Ext.P1 in W.P.(C) No. 20712 of 2006).
W.A.NOS.75 & 256/2008 2
The period of the said order was extended from time to time by orders on
diverse dates and the last one is Ext.P7 in W.P.(C) No. 27012 of 2006.
Consequential orders of promotion pursuant to the said orders of
exemption were also challenged in the said Writ Petitions. The long and
short of the contention of the appellants/petitioners in the Writ Petitions is
that the orders of exemption are ultra vires of Section 39 of the Kerala
State and Subordinate Services Rules (hereinafter referred to as “the K.S.
& S.S.R”). According to the writ petitioners, the prospects of their
promotion to the post of Headmaster/Assistant Educational Officer were
adversely affected by the said exemption orders, in as much as
consideration of eligible persons in the feeder category, sans exemption,
might have fetched berth for them in the said cadre.
2. The learned Single Judge upheld the power of the Government
to grant exemption in exercise of its discretionary power under Section 39
of the K.S.& S.S.R.. At the same time, the learned Single Judge observed
that it would be a travesty of justice if the qualified teachers are
overlooked by unqualified seniors, based on exemption and seniority.
However, taking into account the peculiar facts and circumstances of the
cases and also on account of the fact that the appellants herein had already
retired from service and also the fact that their turn would not have arisen
W.A.NOS.75 & 256/2008 3
in normal circumstances on account of the availability of large number of
qualified seniors, the learned Single Judge declined to interfere with the
matter and dismissed the Writ Petitions. Hence, these Writ Appeals.
3. In the appeals, the parties have reiterated the contentions raised
before the learned Single Judge. It is their contention that when qualified
hands are available, there was no justification on the part of the
Government for invoking the power under Rule 39 of the K.S.&S.S.R.
and to grant exemption to unqualified seniors from passing the
departmental tests prescribed under Rule 5 of the Rules for promotion to
the post of Headmaster/Assistant Educational Officer. The order of
exemption thus granted vide Ext.P1 in W.P.(C) No. 20712 of 2006 was
extended from time to time, without giving due regard to the availability of
qualified juniors and that such orders of exemption are ultra vires of Rule
39 of the K.S.& S.S.R., it is submitted.
4. The learned Single Judge upheld the powers of the government,
as per Rule 39 of the K.S.& S.S.R., to pass orders in the matter of granting
exemption from passing the departmental test. In view of the umpteen
number of decisions on this issue, we can only agree with that finding of
the learned Single Judge. At the same time, it was observed that passing of
W.A.NOS.75 & 256/2008 4
such orders without due regard to the statutory mandates compelling
acquisition of qualifications, would result in administrative inefficiency.
Further, it was held that having regard to the facts and circumstances of
the case, the petitioners were not entitled to get any relief. Rival
contentions on this aspect persuade us to examine the same.
5. The appellant in W.A. No.75 of 2008 commenced service as
High School Assistant on 31.9.1981. The appellants in W.A. No.256 of
2008 commenced service as High School Assistants respectively on
10.10.1979 and 13.9.1985, on getting appointment through the Public
Service Commission. However, the first appellant in the latter appeal, on
obtaining inter-district transfer to Kozhikode, joined there only on
20.6.1983. It is thus clear that the appellant in W.A. No.75 of 2008 could
have completed 12 years of continuous service to earn eligibility for
consideration for promotion to the post of Headmaster only on 13.1.1993
and the appellants in W.A. No.256 of 2008 could have acquired such
eligibility only in 1995 and 1997 respectively. At the time when the Writ
Petitions were moved by the appellants herein, persons whose names
figured in the rank list from 1.1.1981 to 31.12.1982 alone were being
considered for promotion. The room for dispute in the said state of affairs
arose on account of the rival contentions regarding the prospects of
W.A.NOS.75 & 256/2008 5
promotion of the appellants at that point of time. According to the
appellants, if the unqualified seniors are weeded out from the aforesaid
list, that would bring them a chance for promotion to the post of
Headmaster/Assistant Educational Officer. The official respondents
resisted the said contention and canvassed the position that on account of
the availability of a large number of qualified seniors, the appellants would
not have come within the zone of consideration, even if the unqualified
seniors have been removed from the list. In this context, after considering
the pleadings on either side and their submission, the learned Single Judge
arrived at the conclusion that the turn of the appellants would not have
arisen under normal circumstances. The appellant in Writ Appeal No.75 of
2008 retired from service on 31.3.2007 and the appellants in W.A. No.256
of 2008 retired from service on superannuation respectively on 30.4.2007
and 30.6.2007. Having regard to the facts and circumstances of the cases,
we feel that the view taken by the learned Single Judge is a plausible view
in the matter. But, our conclusion is not resting on that sole ground.
Taking into account the rival contentions regarding the chances of
promotion of the appellants, in the event of removal of the name of the
unqualified seniors from the list, this Court passed an order on 11.1.2008
in W.A. No.75 of 2008, which reads thus:
W.A.NOS.75 & 256/2008 6
“The learned Single Judge dismissed the
writ petition mainly on the ground that even
assuming that the promotions were ordered in
accordance with the Rules, the petitioner’s turn
would not have arisen. Though the appellant
asserts that the said finding is not correct, no
materials are produced by her in support of that
claim. She prays for a chance to produce them.
The learned Government Pleader may also get
instructions on the question whether the
petitioner’s turn would have arisen if promotions
were ordered strictly in accordance with the
special rules, ignoring the exemption order.”
On 3.3.2008, a direction was issued to the second respondent in W.A.
No.256 of 2008 to file an additional affidavit giving the details mentioned
in the earlier order dated 11.1.2008 in respect of the appellants therein.
Consequent to the said direction, an additional affidavit/statement was
filed in these appeals. A scanning of the affidavit filed by the second
respondent dated 18.3.2008, in compliance of the direction of this Court in
W.S. No. 75 of 2008, would reveal that on account of the availability of a
sizable number of qualified seniors, the chances of promotion, in fact the
chance of consideration for promotion, of the appellants would not have
arisen. In paragraph 2 of the affidavit, it is stated thus:
“…. It is respectfully submitted that the
petitioner is included in the seniority list of
H.S.As for the period from 01.01.83 to 31.12.85W.A.NOS.75 & 256/2008 7
as rank No.492. The above seniority list was
published as per order No.SY 1/40558/07/DPI
dated 16.09.07. At present promotion to the post
of HM/AEO is carried out from the seniority list
of the H.S.As for the period from 01.01.81 to
31.12.82. The above list, it is submitted, contains
883 H.S.As of which currently promotions have
been effected till rank No.779 ie. there remains
104 persons to be promoted from the above list.”
Paragraphs 3 and 4 of the statement filed by the second respondent in
W.A. No.256 of 2008 read thus:
“3. It is respectfully submitted that the first
appellant whose date of birth is 5.4.1952 retired
from service on 30.4.2007 and the second
appellant retired from service on 30.6.2007. The
appellants were included in the seniority list of
HSAs for the period from 1.1.1983 to
31.12.1983. The first appellant was rank No.197
whereas the second appellant was rank No.
1213. The above seniority list published as per
order No.SY1/40558/2007/DPI dated 15.9.2007
contained 1289 HSAs. The promotion from the
above seniority list commenced only in the
academic year 2008. The select list prepared by
the Departmental Promotion Committee (Lower)
which met on 19.5.2008, included 439 HSAs
from the seniority list of 1983. The above select
list contained 352 test qualified persons and 87
persons who were granted the benefit of Ext.P1
Government Order. The next Departmental
Promotion Committee which met on 9.7.2008
issued a select list of 33 persons eligible for
promotion as Headmaster which included 15
qualified and 18 persons eligible for the benefit
of Ext.P1 order. The further Departmental
Promotion Committee which met on 28.5.2009W.A.NOS.75 & 256/2008 8
issued a select list of 303 HSAs from 1983
seniority list of which 151 were qualified and 152
of those were granted benefit of the exemption
order. Thus during the year 2008 a total number
of 775 HSAs have been promoted to the post of
Headmaster from the 1983 list of which 518 were
persons having test qualification and the rest 257
were given the benefit of Ext.P1 order.
4. It is respectfully submitted that even if
the entire unqualified persons in the 1983 list
was removed therefrom, the first appellant would
still have been rank No.102 and the second
appellant rank No.469. They would only have
been eligible for promotion as
Headmaster/Assistant Educational Officer during
the academic years 2008 & 2009 respectively. In
the ordinary course the first appellant would have
received promotion in the year 2008 and the
second appellant in the year 2010. However both
the appellants have retired from service in the
academic year 2007 itself on 30.4.2007 and
30.6.2007 respectively. …..”
6. Thus, it is clear that going by the affidavit/statement filed on
behalf of the second respondent, the turn of the appellants for promotion to
the post of Headmaster would not have arisen on or before the date of their
superannuation. In a case of this nature, in order to enable or compel the
court to proceed further with the matter, the appellants should have, with
the support of datas and details, controverted the contentions of the second
respondent. They should have made out a case that they would have come
within the zone of consideration for promotion to the post of Headmaster
before they attained the age of superannuation, had the names of the
W.A.NOS.75 & 256/2008 9
unqualified seniors been removed from the seniority list. However, none
of the appellants endeavoured to controvert the contentions of the second
respondent contained in the affidavit/statement filed in compliance of the
directions of this Court to convince us that their turn would have arisen, if
the authority concerned had carried out the exercise of weeding out the
unqualified seniors from the seniority list. The claims of the appellants are
founded on ‘ifs and buts’. A time consuming and arduous exercise of
revision of seniority list and review of promotions cannot be directed by
this Court solely for the sake of such an exercise. The failure on the part of
the appellants to controvert the affidavit/statement of the second
respondent with definite datas and details makes us to agree with the
conclusion arrived at by the learned Single Judge. Taking into account the
dates on which the appellants joined service and retired from service on
superannuation and the period of the rank list which was pressed into
service during the relevant time for the purpose of consideration for
promotion to the post of the Headmaster, we have no hesitation to hold
that the appellants have failed to make out the case that their turn would
have arisen with effect from a particular period.
In view of the discussions made above, we feel that it is
unnecessary to go into the validity of the orders impugned. Even
W.A.NOS.75 & 256/2008 10
quashing of the said orders would not enure any benefit to the appellants.
Accordingly, the Writ Appeals are dismissed.
(K. BALAKRISHNAN NAIR)
JUDGE
(C.T. RAVIKUMAR)
JUDGE
sp/
W.A.NOS.75 & 256/2008 11
K.BALAKRISHNAN NAIR
&
C.T. RAVIKUMAR, JJ.
W.A. NOS.75 &256/2008
JUDGMENT
28th August, 2009
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