IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22092 of 2009(F)
1. V.ABOOBACKER SIDHEEK, PRINCIPAL,
... Petitioner
2. K.P.ABDUAL NAZAR, PRINCIPAL, G.V.H.S.S.,
Vs
1. THE STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. THE DIRECTOR, HIGHER SECONDARY EDUCATION
3. SURESH.K., H.S.S.T.GOVT. GIRLS H.S.S.,
4. MARY A.M., H.S.S.T KULATHUMMAL,
5. THE KERALA PUBLIC SERVICE COMMISSION,
For Petitioner :SRI.M.A.FIROZ
For Respondent :SRI.ELVIN PETER P.J.
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :26/03/2010
O R D E R
S.SIRI JAGAN, J.
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W.P.(C).Nos.22092, 22287, 22405,22406,
22407, 22562, 22793, 22838, 22848,
22856, 23013, 23078, 23167
& 26777 of 2009
==================
Dated this the 26th day of March, 2010
J U D G M E N T
At the time of admitting these writ petitions, this Court passed
the following interim order on 12.8.2009;
‘Admit urgent notice. Mr. Alexander Thomas, Standing Counsel
appears for the Public Service Commission. Urgent notice to other
respondents.2. In these writ petitions, the challenge is against the select list
for promotion to the post of Principal in Govt. Higher Secondary Schools
for the year, 2009 and the consequent order passed by the Government
dated 1.8.2009 whereby the persons included in the select list have
been promoted to the cadre of Principals in Government Higher
Secondary Schools.3. The petitioners have raised various contentions in the writ
petitions. In fact in the writ petitions, the petitioners have pointed out
that there is no proper publication of the select list at all and the action
taken by the Government in issuing orders of promotion is without any
justification.4. The learned Standing Counsel for the PSC brought to my notice
a letter No. A5V(3)22661/09/GW dated 11.08.2009 addressed by the
Secretary, Kerala Public Service Commission, Pattom,
Thiruvananthapuram to the Principal Secretary to Government, Higher
Education Department, Government Secretariat, Thiruvananthapuram.
The relevant portion of that said letter is extracted below:“It has come to the notice of the Commission that
Government have issued G.O.(P) NO.154/09/Gl.Edn dated
22.07.2009 publishing the select list of promotion as Higher
Secondary Principals in the state. The said over describes the list
as a select list prepared by the Departmental promotion
Committee (Higher). The Chairman of the Departmental
Promotion Committee, Sri. Devadath G. Purakkad, Hon’ble
member Kerala Public Service Commission has reported that
though the DPC had met twice for the preparation of the select
list, the same was not finalised and minutes approved. A select
list published without the approval of the DPC cannot bew.p.c.22092/09 etc. 2
considered as a list published as per the rules.
The commission would like to know the circumstances
under which the Government had issued the above order without
the final approved minutes the DPC.”Therefore the circumstances which are revealed above prima facie show
that the select list has been published without any approval of the DPC.
In that view of the matter the order of promotion that is subsequently
passed by the Government which is sought to be implemented cannot be
sustained prima facie. Therefore the operation and implementation of
G.O(Rt)3240/09/Gen.Edn. dt. 01.08.2009 (produced as Ext.P9 in W.P.(C) No.22838/2009) is stayed for a period of one month. If any of the
petitioners have been relieved in the meanwhile, they will be re-admitted
to duty. Any further promotion pending these writ petitions, will be
made in terms of the approved seniority list. (Order dt.25.5.04.)The respondents will file counter affidavit without delay.’
A further order was passed on 28.8.2009. On the basis of that order,
again another order was passed on 1.2.2010, thus:
‘These writ petitions relate to consideration of the petitioners for
inclusion in the select list for promotion to the post of Principals in Higher
Secondary Schools. On 28.08.2009 this court passed the following
interim order.“Heard the learned Advocate General appearing for the first
respondent, learned counsel for the respondents and the learned
counsel for the petitioners.2. The learned Advocate General submitted that a
decision has been arrived at to convene an ad hoc DPC within a
period of one month and the grievances raised by the petitioners
and similarly placed persons will be considered in the meeting of
the ad hoc DPC. Therefore, the petitioners and similarly placed
persons are permitted to place appropriate representations before
the competent authority within two weeks from today, if not
already submitted, for consideration by the DPC.3. The status quo as on today will continue. Post after
one month.”2. Subsequently an affidavit dated 30.11.20090 was filed on
behalf of the 1st respondent wherein in paragraph 4 & 5 it has been
stated thus:“4. Pursuant thereto, the Government constituted the adhoc
w.p.c.22092/09 etc. 3
DPC. Thereafter, the said committee convened its meeting on
29.09.2009, considered and prepared a list of 25 Higher Secondary
School Teachers who are eligible for promotion to the post of
Principal in Higher Secondary Schools. Incidentally, it may be
pointed out that these persons were already qualified to be
promoted as Principal as on 06.01.2009. The list of the above
mentioned teachers were approved by the Government vide
notification G.O.(P) No.213/09/Gl.Edn dated 02.11.2009. A true
photocopy of the said Government Order is produced herewith as
Annexure I. As per Annexure I, the petitioner in the above writ
petition has been included in the 8th place. Likewise, the petitioner
in W.P.(C) No.22793/09 Abraham Iype is included in the 4th place.
The petitioner in W.P.(C) No.22848/09 V.A. Martin has been
included in the 18th place and petitioner in W.P.(C) No.22856/09
Valsa N.K. stands in 3rd place.5. The second meeting of the adhoc DPC was held on
24.10.2009. In the said meeting, the committee considered the
grievances of the persons including the petitioners who have filed
writ petitions before this Honourable Court. A list of candidates
who are eligible to be promoted as Principal was also prepared by
the said committee giving priority to merit and ability. However,
this list is yet to be approved by the Government since the
question of eligibility of retired hands has also to be considered in
accordance with relevant Rules. It is submitted that the
Government has, principally, taken a decision to review the
existing Rules. However, the procedural requirement of the same
would consume some time. Therefore the second list of selected
candidates can be approved and notified only after the above
procedure.”
3. The petitioners would contend that none of them are retired
employees and therefore publication of the select list in respect of them
cannot be delayed any further on the ground that since retired persons
are also involved in the matter, for their consideration Rules are to be
amended without which the select list cannot be finalised.
4. I do not think that simply because persons who were
entitled for promotion while in service, retired from service because of
the delay of the respondents in considering those persons for promotion
at the right time, would lose their right to get their case for promotion
considered atleast notionally, even after retirement for which no
amendment of rules are necessary. In the above circumstances I direct
that the decision of the Departmental Promotion Committee on
24.10.2009 shall be published within one month from today. If
necessary, within that time the Departmental Promotion Committee shall
meet again and publish the select list.’
Pursuant to the same, a select list has been published. The petitioners
w.p.c.22092/09 etc. 4
now submit that in view of the publication of the select list, all what is
now required is to direct the Government to make appointments in
accordance with the select list. The Government Pleader also seeks
orders on the same lines. Accordingly, these writ petitions are disposed
of with a direction to the respondents to make appointments from the
select list in accordance with law expeditiously, without prejudice to
the right of any person, who is aggrieved by the select list, to seek
appropriate remedies in that regard.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge