IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 WP(C).No. 12830 of 2009(W) ------------------------------------------ PETITIONER(S): ----------------------- B.RETNAMMA, AGED 53 YEARS, W/O.RAJASEKHARAN, HIGH SCHOOL ASSISTANT - PHYSICAL SCIENCE, V.G.S.S.AMBIKODAYAM H.S.S. NEDIYAVILA, KUNNATHUR EAST P.O., KOLLAM. PIN-690 540. BY ADV. MR.P.GOPINATH RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 3. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA. 4. THE MANAGER, V.G.S.S.AMBIKODAYAM H.S.S., NEDIYAVILA, KUNNATHUR EAST P.O., KOLLAM. 5. SRI.P.R.MADANAN, HIGH SCHOOL ASSISTANT - SANSKRIT, V.G.S.S.AMBIKODAYAM H.S.S., NEDIYAVILA, KUNNATHUR EAST P.O., KOLLAM. PIN-690 540. BY GOVT. PLEADER MR.T.T.MUHAMOOD FOR R1 TO R3 MR.D.SREEKUMAR FOR R4 BY ADVS.MR.V.A.MUHAMMED FOR R5 MR.K.E.HAMZA FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.12830/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LETTER DT. 18.11.08 TO THE PETITIONER. P2:- COPY OF THE REPLY DT. 24.11.08 SUBMITTED BY THE PETITIONER. P3:- COPY OF THE LETTER DT. 1.4.09 FROM THE PETITIONER TO THE 3RD RESPONDENT. P4:- COPY OF THE NOTICE OF HEARING ISSUED BY THE 3RD RESPONDENT. P5:- COPY OF THE ARGUMENT NOTE SUBMTITED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DT. NIL. P6:- COPY OF THE ORDER NO.B-6 2451/08/DIS DT. 20.4.09. P7:- COPY OF THE GO(MS) NO.104/09/EDN. DT. 6.3.69. P8:- COPY OF THE JUDGMENT IN OP. NO.11107/01 (V) DT. 11.10.01. RESPONDENT'S EXHIBITS R5(a):- COPY OF THE DECISION REPORTED IN 2007(1) K.L.T. 1049 DT. 4.1.07. R5(b):- COPY OF THE ORDER OF APPOINTMENT OF THE 5TH RESPONDENT DT. 1.4.09. R5(c):- COPY OF THE ORDER NO.B6-2135/09 OF THE DISTRICT EDUCATIONAL OFFICER DT. 22.4.09. R5(d):- COPY OF THE LETTER OF THE 5TH RESPONDENT DT. 12.5.09. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.12830 of 2009-W - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of June, 2009. JUDGMENT The petitioner is aggrieved by Ext.P6 order passed by the District Educational Officer whereby the seniority list in respect of the school was finalized and going by the said seniority list, the 5th respondent is shown as senior in the post of H.S.A. The petitioner had been working as High School Assistant (Physical Science) in the school from 31.7.1979 onwards. The petitioner remained as a protected teacher during the period from 1.12.1988 to 29.1.2004. In Ext.P6 the view taken by the District Educational Officer is that the service rendered by the petitioner consequent on the reduction of post cannot be reckoned for seniority, as per Rule 37 (i) of Chapter XIV-A K.E.R., as seniority has to be reckoned with reference to the length of continuous service in the particular unit. 2. The Headmaster of the school retired from service on 31.3.2009 and the 5th respondent was given charge as Headmaster. That was objected to by the petitioner by filing Ext.P3 and in the meanwhile, the District Educational Officer conducted a hearing on the finalisation of the seniority list. Ext.P5 is the argument note submitted by the petitioner before the wpc 12830/2009 2 District Educational Officer. 3. It is mainly contended by the learned counsel for the petitioner that the 5th respondent, at this distance of time, cannot challenge her seniority in the light of the sit back theory which is a well accepted one. Reliance is placed on Ext.P8 judgment of a Division Bench of this court. Learned counsel for the respondents relied upon the decision of a Division Bench of this court in Aleyamma v. Kunjammal Jacob (2007 (1) KLT 1049) to contend for the position that the period under which the petitioner remained as a protected teacher, cannot be counted for the purpose of seniority. 4. Going by the proceedings issued by the District Educational Officer it does not appear that the question as now posed by the petitioner was raised in the proper form. Learned counsel for the petitioner submitted that in Ext.P2 mention has been made about the fact that the petitioner was treated as senior in the seniority lists of previous years. The District Educational Officer cannot be faulted for not considering the present contention, in these circumstances. The seniority position has been settled clearly in the light of the power conferred under Rule 38 of Chapter XIV-A K.E.R. It is submitted by the learned counsel appearing for the respondents that in the light of the clear exposition of law rendered by the Division wpc 12830/2009 3 Bench in Aleyamma's case (2007 (1) KLT 1049), the petitioner is not entitled to get seniority. It is also pointed out that the seniority lists are being published every year and therefore the petitioner is not entitled to object to the assignment of seniority and the sit back theory will not apply in such a case. 5. Be that as it may, since the petitioner has got a remedy to challenge the said order in appeal before the Deputy Director of Education as is clear from Rule 38 itself, if the petitioner files an appeal within a period of three weeks from today, the same will be considered and appropriate orders will be passed in accordance with law, by the Deputy Director of Education after hearing the petitioner and respondents 4 and 5, within a further period of two months. 6. It is pointed out by the learned counsel appearing for the 5th respondent that in the light of the pendency of the writ petition, the appointment of the 5th respondent as Headmaster has not been approved so far and presently the approval is restricted as teacher in charge. It is therefore submitted that the 5th respondent is not getting salary that is admissible to the post of Headmaster. The third respondent is free to pass appropriate orders regarding the grant of approval of the appointment of Headmaster. Any approval granted will be subject to further orders to be wpc 12830/2009 4 passed in the appeal. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/