IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 WP(C).No. 5503 of 2009(G) ------------------------------------ PETITIONER(S): ---------------------- SMT. SANTHAKUMARI M.A., AGED 58 YEARS, RETD, HEADMISTRESS, HAMADANIA UPPER PRIMARY SCHOOL, POYLINGAPARAMBU, AZHEEKODE JETTY, THRISSUR DIST, RESIDING AT KONATHEZHATH HOUSE, EDAVANAKKAD P.O., ERNAKULAM DIST. BY ADVS. MR.M.P.KRISHNAN NAIR MR.V.B.NARAYANAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY SECRETARY, GENERAL EDUCATION SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVNANTHAPURAM. 3. THE DPUTY DIRECTOR OF EDUCATION, THRISSUR. 4. THE ASSISTANT EDUCATIONAL OFFICER, KODUNGALLOOR, THRISSUR DIST. 5. THE MANAGER, HAMADANIA UPPER PRIMARY SCOOL,POYILINGAPARAMBU, AZHEEKODE JETTY, THRISSUR DIST. 6. MRS. SUBAIDA, LPSA, HAMADANIA UPPER PRIMARY SCHOOL, POYILINGAPARAMBU, AZHEEKODE JETTY, THRISSUR DIST. 7. M.B. SOFFEE, AGED 57 YEARS, WIFE OF K.V.ASHOK KUMAR, HEADMISTRESS, HAMADANIA UPPER PRIMARY SCHOOL,POYILINGAPARAMBU, AZHEEKODE JETTY, THRISSUR DIST. 8. ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION (IN CHARGE) THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR. DILIP MOHAN FOR R1 TO R4 & 8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5503 of 2009(G) APPENDIX PETITIONER'S EXHIBITS: Ext.P1 - TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2004 ISSUED BY THE 5TH RESPONDENT. Ext.P2 - TRUE COPY OF THE ORDER NO.B1-5992/04K. DIS/ DATED 25.10.04 OF THE DEO, IRINJALAKUDA. Ext.P3 - TRUE COPY OF THE ORDER DATED 19.1.2006 PASSED BY THE 1ST RESPONDENT. Ext.P4 - TRUE COPY OF THE G.O.(Rt) NO. 3643/2005/G.EDN. DATED 22.7.2005. Ext.P5 - TRUE COPY OF THE JUDGMENT DATED 26.6.2008 IN W;P(C) NO. 5669/06 OF THIS COURT. Ext.P6 - TRUE COPY OF THE REPRESENTATION DATED 11.7.08 WAS SUBMITTED B THE PETITIONER TO THE 2ND RESPONDENT . Ext.P7 - TRUE COPY OF THE NOTICE FOR HEARINGISSUED BY THE 2ND RESPONDENT DATED 19.9.2008. Ext.P8 - TRUE COPY OF THE ORDER NO. F2/21293/06/DPI DATED 15.10.08 OF THE 2ND RESPONDENT. Ext.P9 - TRUE COPY OF THE DECISION REPORTED IN 2003(1) KLT 998 (FB) SASIDHARAN NAIR VS. STATE OF KERALA. Ext.P10 - TRUE COPY OF THE APPLICATION DATED 28.8.2003 SUBMITTED BY THE PETITIONER TO THE AEO. Ext.P11 - TRUE COPY OF THE DECISION REPORTED IN 2006(2) KLT SN 5 (STATE OF KARNATAKA VS. LALITHA) . Ext.P12 - TRUE COPY OF THE GOVT. ORDER NO. 6766/2003 DATED 25.2.2004. Ext.P13 - TRUE COPY OF THE GOVT. ORDER NO. D-6984/03 DATED 26.2.2004. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 5503 of 2009 ................................................. Dated this the 27th day of August, 2009 J U D G M E N T The petitioner has filed this writ petition challenging Ext.P8 order of the director of Public Instruction wherein the petitioner claimed for promotion as Headmistress of the Hamadania Upper Primary School has been rejected. 2. The petitioner originally joined service as an LPSA at CLPS Aloor, Thrissur District and worked there for the period from 9.1.1974 to 20.3.1975 in a leave vacancy and subsequently in a permanent vacancy continuously from 2.6.1975. Thereafter the petitioner got inter-management transfer to the present school without break in service on 2.6.1977. While she was so working, the post of Headmistress in the school became vacant on the death of the incumbent. The 7th respondent herein who also got inter- management transfer and joined the school on the same date as the petitioner namely 2.6.1977 made an application to the Manager of the school for promotion to that post. The Manager appointed the 7th respondent as Headmistress with effect from 19.12.2003. That appointment was not approved by the Assistant Educational W.P(C) No. 5503 of 2009 -2- Officer. The 7th respondent filed W.P(C) No. 91114 of 2004 challenging the order of the educational authorities in that regard. As per the interim order of this court the 7th respondent continued as Headmistress and retired on superannuation on 31.5.2004. Apprehending that the Manager is likely to appoint 6th respondent as headmistress of the school in the resultant vacancy, the petitioner filed W.P(C) No. 13547 of 2004. But in the meanwhile the Manager appointed the petitioner as Headmistress of the school with effect from1.6.2004. The 6th respondent filed W.P(C) No. 17524 of 2004, claiming that she is entitled to be appointed as headmistress of the school. This court heard W.P(C) No. 13547 of 2004 filed by the petitioner and W.P(C) No. 17524 of 2004 filed by the 6th respondent together and directed consideration of the case of the parties and pass appropriate orders. Again by Ext.P2 order, the DEO rejected the claim of the petitioner. The petitioner again approached this court by filing W.P(C) No. 33168 of 2004, claiming that she is entitled tobe promoted as headmistress with effect from 1.6.2004. This court disposed of that writ petition directing consideration of the petitioner's case. Again, the petitioner filed W.P(C) No. 5669 of 2006 challenging the order of the 1st W.P(C) No. 5503 of 2009 -3- respondent passed in the matter against the petitioner. By Ext.P5 judgment, this court again directed the Director of Public Instruction to consider the matter in accordance with law. Ultimately, pursuant thereto in the light of the Full Bench decision in Sasidharan Nair v. State of Kerala 2003(1) KLT 1998, by Ext.P8 order, the 2nd respondent rejected the claim of the petitioner on the ground that the decision in Sasidharan Nair's case is not applicable to the petitioner. The petitioner is challenging Ext.P8 order. Petitioner's contention is that petitioner's continuous service as LPSA started though in a different school on 2.6.1975. The petitioner joined the present school without any break in service on 2.6.1977 whereas the 6th respondent joined the school only on 7.6.1976. Therefore the petitioner is senior to the 6th respondent, taking into account the service put in by the petitioner in the earlier school with effect from 2.6.1975. In support of the contention the petitioner relies heavily on the Full Bench decision in Sasidharan Nair's case. According to the petitioner, as per that decision on transfer from one school to another under different management, the petitioner does not lose the benefit of the service rendered by her in the previous school W.P(C) No. 5503 of 2009 -4- and therefore the petitioner is entitled to be promoted as headmistress ahead of the 6th respondent is the petitioner's contention. 3. The learned Government Pleader strongly opposes the contentions of the petitioner. According to the learned Government Pleader, reliance by the petitioner on the Full Bench decision is clearly misplaced. He would submit that the full bench decision only says that for the purpose of deciding the eligibility for promotion the service for the previous school is liable to be reckoned, but not for the purpose of seniority. Seniority can only be in accordance with the provisions of the K.E.R. which is based on continuous service in the particular school. It is pointed out that the 6th respondent has continuous service with effect from 7.6.1976 whereas petitioner's continuous service in the school is only with effect from 2.6.1977. Therefore the 6th respondent is clearly senior to the petitioner in the present school. Since under Rule 43 of Chapter XIVA of KER, promotion is based on seniority, the petitioner cannot claim promotion ahead of the 6th respondent, since the petitioner is junior to the 6th respondent in the present school is the contention of the learned Government Pleader. W.P(C) No. 5503 of 2009 -5- 4. I have considered the rival contentions in detail. 5. Facts are not disputed before me. It is true that the petitioner had continuous service in LPSA, Aloor with effect from 2.6.1975. But admittedly, the petitioner joined the present school by inter-management transfer only on 2.6.1977. It is also not disputed before me that the 6th respondent joined school on 7.6.1976. That being so, in the present school the 6th respondent was clearly senior to the petitioner. The petitioner's contention that for the purpose of reckoning seniority in the present school, the petitioner's service in the LPSA, Aloor should also be reckoned, is clearly against the provisions of the K.E.R. Under Rule 37 of Chapter 14(A) of the K.E.R, seniority of a teacher in any grade shall be decided with reference to the length of continuous service for that grade in that unit provided he is duly qualified for the post. Therefore for deciding seniority, what is relevant is continuous service in the particular school, in which case the 6th respondent has more continuous service than the petitioner and is therefore senior to the petitioner. Inter-management transfers are governed by Rules 10, 11 and 13 of Chapter 14(A) K.E.R. Rule 13 thereof inter alia provides that teachers who are transfered as per that rule W.P(C) No. 5503 of 2009 -6- will continue to receive in the latter school, the pay and scale of pay they were receiving in the former school provided they are transferred to same scale of pay. But it is also provided therein that such teachers who got inter-management transfer would join as the junior-most among the persons carrying the same scale of pay. Therefore on inter-management transfer, the petitioner joined the present school as the junior-most LPSA. Therefore the purpose of deciding seniority in the present school, the service put in by the petitioner in the earlier school is totally irrelevant. 6. In fact, the question of seniority has been decided by the Assistant Educational Officer by Ext.P12, wherein it has been decided that the 6th respondent has continuous service with effect from 7.6.1976 and the petitioner started his service only with effect form 2.6.1975. 7. The reliance by the petitioner, on Sasidharan Nair's case is clearly misplaced. In that case the Full Bench did not that the service put in by a teacher who gets inter-management transfer in the previous school would be reckoned for the purpose of seniority in the latter school. In fact in the Full Bench decision, this court was considering the question whether service put in in the previous W.P(C) No. 5503 of 2009 -7- school is liable to be reckoned for the purpose of deciding eligibility for promotion. That was a case were 2 persons contested for the post of Headmaster in a High School. As per the rules applicable, for the purpose of getting promotion to the post of headmaster, minimum 12 years continuous service as a High School Assistant was mandatory. The appellant in that case did not have 12 years service in that particular school but the appellant had put in graduate service as a HSA in another school. The question that was decided by the Full Bench was whether the previous service put in by the appellant can be counted for the purpose of deciding eligibility of the appellant. In other words, the Full Bench was considering the question as to whether for the purpose of reckoning 12 years of qualifying service for promotion as Headmaster, the service put in by the teacher in the previous school is liable to be counted. The Division Bench only held that for the purpose of eligibility for promotion the service put in in the previous school also shall be reckoned. In fact in that judgment itself it is expressly made clear that from among the persons eligible for promotion the promotion shall be in the order of seniority alone. Therefore the reliance by the petitioner on the Full W.P(C) No. 5503 of 2009 -8- Bench decision is clearly misplaced. The petitioner would point out that another Full Bench also has in Pushparaj v. Manoharan 2006(2) KLT 951(FB) taken the view that for the purpose of seniority, service rendered in the other school can be counted. From a reading of that decision, I do not find any such decision there also. In that decision also what was considered by the Full Bench is as to whether for deciding the eligibility for promotion, the service put in by a teacher in the previous school, is liable to be reckoned. The only difference between the two decisions is that in the first decision what was being considered was whether the previous service can be counted for the purpose of deciding whether a teacher has 12 years of graduate service which is an eligibility condition for promotion to the post of headmaster whereas in the latter case what was being considered was whether the service put in, in the previous school can be counted for the purpose of deciding whether the graduate teacher has half of the service of the non-graduate teacher for being preferred for promotion. In both cases, what was under consideration is not whether the service in the previous school can be counted for the purpose of seniority, but only whether the service in the previous W.P(C) No. 5503 of 2009 -9- school can be counted for the purpose of deciding eligibility for promotion. Both are two different fact situations. In both cases the Full Bench has not decided that for the purpose of deciding seniority the service put in in the previous school can be counted in the latter school. That being so, for the purpose of deciding seniority the petitioner is not entitled to count her service in the previous school. In that view the petitioner cannot claim seniority over the 6th respondent since admittedly the 6th respondent has more continuous service than petitioner. Consequently the petitioner cannot claim promotion in preference to the 6th respondent. 8. Having failed to impress the court about that contention, the counsel for the petitioner raises a very feeble contention that the school is a minority institution and therefore the Manager has a right to appoint a person of his choice as headmaster even overlooking seniority. The law is settled to the effect that in the case of a minority school the manager can appoint a person of his choice among the qualified teachers as headmaster. But unfortunately for the petitioner, the Manager has not claimed minority status for the school. In fact, earlier, such a contention W.P(C) No. 5503 of 2009 -10- was repelled in Ext.P3. Although Ext.P3 was subjected to challenge in W.P(C) No. 5669 of 2006 that issue was not raised at all by the petitioner and by Ext.P5 judgment, this court only directed consideration of the petitioner's claim in the light of Sasidharan Nair's case (supra). In any event, the Manager has not chosen to claim minority status for the school. Moreover, the petitioner has not been able to place before me any material whatsoever to show that the school is a minority institution. A school is entitled to minority status only if the school has been established and is being administered by a minority community. Absolutely no material whatsoever is placed before me to show that school had been established by a minority community and is being administered by a minority community. In the above circumstances, I do not find any merit in that contention of the petitioner also. In the above circumstances, the writ petition is without any merit and accordingly the same is dismissed. S. SIRI JAGAN, JUDGE rhs