IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 WP(C).No. 14322 of 2009(I) ------------------------------------- PETITIONER(S): ---------------------- K.A. HANZA,AGED 55 YEARS, W/O.RAVEENDRAN,HEADMISTRESS, S.B.H.S.KURUMPILAVU,THRISSUR DISTRICT. BY ADV. MR.M.SASINDRAN MR.M.B.PRAJITH RESPONDENT(S): ------------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, THRISSUR. 2. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 3. STATE OF KERALA- REP.BY SECRETARY TO GOVERNMENT,DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT,THIRUVANANTHAPURAM. 4. THE MANAGER, SWAMI BHODHANANDA HIGH SCHOOL, KURUPILAVU,THRISSUR DISTRICT. 5. K.M.ANITHA, H.S.A., S.B.H.S.KURUMPILAVU, THRISSUR DISTRICT. R1 TO R3 BY SR.GOVERNMENT PLEADER SMT.T.B.REMANI R4 BY ADV. MR.GEORGE POONTHOTTAM R5 BY ADV. MR.P.V.CHANDRA MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 14322/2009-I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE GOVERNMENT ORDER DATED 06/03/1969. EXT.P2: COPY OF THE JUDGMENT DATED 26/07/1991 IN O.P. NO. 7535 OF 1991. EXT.P3: COPY OF THE ORDER DATED 05/10/1991. EXT.P4: COPY OF THE PROCEEDINGS DATED 08/01/1992 OF THE HEADMASTER IN CHARGE INTIMATING THE JOINING OF THE PETITIONER. EXT.P5: COPY OF THE FORWARDING LETTER ALONG WITH THE APPOINTMENT ORDER AND THE OTHER REQUISITE DETAILS. EXT.P6: COPY OF THE COMMUNICATION DATED 22/07/2007 ISSUED BY THE 1ST RESPONDENT TO THE MANAGER. EXT.P7: COPY OF THE COVERING LETTER DATED 10/09/2007. EXT.P7(a): COPY OF THE SENIORITY LIST AS ON 01/01/2007 FORWARDED BY THE MANAGER TO THE FIRST RESPONDENT. EXT.P8: COPY OF THE COMMUNICATION DATED 22/09/2007 ISSUED BY THE FIRST RESPONDENT TO THE MANAGER. EXT.P9: COPY OF THE JUDGMENT DATED 17/07/2008 IN W.P.(C). NO. 30673 OF 2007. EXT.P10: COPY OF THE ORDER DATED 16/09/2008 ISSUED BY THE 1ST RESPONDENT. EXT.P11: COPY OF THE JUDGMENT DATED 26/02/2009 IN W.P.(C). NO. 31543 OF 2008. EXT.P12: COPY OF THE STATEMENT SUBMITTED ON BEHALF OF THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P13: COPY OF THE ORDER NO.B5/9943/08 DATED 13/05/2009 OF THE FIRST RESPONDENT DISTRICT EDUCATION OFFICER. EXT.P14: COPY OF THE PROCEEDINGS OF THE MANGER DATED 22/05/2009 PROMOTING THE 5TH RESPONDENT AS HEADMISTRESS ND SHIFITING THE PETITIONER AS H.S.A. EXT.P15: COPY OF THE APPEL BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 23/05/2009. EXT.P16: COPY OF THE NOTICE DATED 25/05/2009 ISSUED BY THE MANGER TO THE PETITIONER. EXT.P17: COPY OF THE REPLY DATED 26/05/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.14322/2009-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 8th day of June, 2009 J U D G M E N T It is the third time that the petitioner has approached this Court seeking identical reliefs. The dispute regarding seniority between the petitioner and the fifth respondent was the subject matter for consideration by the District Educational Officer as per the directions issued in Exts.P9 and P11 judgments. The relevant facts required for the disposal of the writ petition are the following:- 2. The petitioner started her carrier as Upper Primary School Assistant on 23/06/1977. She was appointed as a High School Assistant (Natural Science) from 01/07/1982. She was rendered surplus due to reduction of one post in the cadre of H.S.A (Natural Science) and was deployed to a Government School on protection on 26/11/1988. In the academic year 1991-02, a vacancy arose in the school and in the said vacancy, the fifth respondent was appointed. According to the petitioner, this was in violation of the Government Orders which governed the field as on that date. The petitioner approached this Court by filing O.P.No.7535/1991 which was disposed of by Ext.P2 judgment with a W.P.(C). No.14322/2009 -:2:- direction to the Deputy Director of Education to dispose of the representations filed by the petitioner. The Deputy Director of Education passed Ext.P3 order by which the Manager was directed to recall the petitioner. It appears that the petitioner had joined service on 06/01/1992. 3. According to the petitioner since the petitioner was originally appointed as H.S.A on 01/07/1982, she is senior to the fifth respondent. A vacancy arose in the post of Headmistress in the school on 31/03/2007. The petitioner was appointed by the Manager as Headmistress with effect from 01/04/2007. The Manager forwarded the order of appointment seeking approval for the same along with the seniority list. By Ext.P6, the Manager was directed to produce a revised seniority list as on 01/01/2007. The Manager thereafter produced a revised seniority list. The same is produced in the writ petition as Ext.P7. It appears that the District Educational Officer was not satisfied with the list that was produced and by Ext.P8 the Manager was directed to resubmit the seniority list along with the signatures of all the teachers. Therein it was also mentioned that the fifth respondent is senior to the petitioner. This was challenged by the petitioner in W.P.(C). No.30673/2007 wherein this Court after quashing Ext.P8, directed the District Educational Officer to consider the case afresh and pass orders after W.P.(C). No.14322/2009 -:3:- affording an opportunity of being heard to the petitioner, the fifth respondent, the Manager and any other affected party within a period of two months. 4. Thereafter, the District Educational Officer heard the parties and passed Ext.P10 order which was also the subject matter of challenge before this Court in W.P.(C).No.31543/2008 which resulted in Ext.P11 judgment, wherein again the District Educational Officer was directed to pass fresh orders. The petitioner filed a detailed statement as per Ext.P12 before the District Educational Officer. Ext.P13 is the resultant order passed by the District Educational Officer and, the Manager by Ext.P14 sought to implement the order by promoting the fifth respondent as Headmistress and both these orders are under challenge in this writ petition. The petitioner after filing an appeal before the Deputy Director of Education approached this Court by filing this writ petition. 5. Heard the learned counsel for the petitioner and the learned counsel appearing for respondent Nos.4 and 5. Going by the counter affidavit filed by the Manager, he had forwarded the order of appointment of the petitioner along with all annexures to the District Educational Officer which was returned by the said authority. The District Educational Officer W.P.(C). No.14322/2009 -:4:- issued communication Ext.P6 directing the Manager to submit the seniority list of the teachers with effect from 01/01/2007. It is submitted by the Manager that on the basis of Ext.P6 communication, the seniority list was forwarded by the Manager in which the petitioner is shown as senior to the fifth respondent. The said seniority list is Ext.P7. The same was returned again by the District Educational Officer as per Ext.P8 stating that the list does not contain the signature of the staff and, in terms of Rule 37(1) of Chapter XIV A KER the fifth respondent is senior to the petitioner and directed the Manager to prepare seniority list according to respective entitlement of the teachers. 6. Going by Rule 38 of Chapter XIV A KER, “the Assistant Educational Officer, the District Educational Officer, the Deputy Director (Education) and the Director as the case may be may after considering the representations if any, and after hearing the parties, if they deem it necessary, finalise and approve the list with or without change and the list so approved shall be final”. On a reading of Ext.P8 it is clear that the District Educational Officer directed the Manager to submit a fresh seniority list in terms of Rules 37 and 38 of Chapter XIV A KER. W.P.(C). No.14322/2009 -:5:- 7. The question is whether the order Ext.P13, passed by the District Educational Officer is in accordance with the directions contained in Ext.P11 judgment. The learned counsel for respondent Nos.4 and 5 submitted that the District Educational Officer has considered all aspects and a final conclusion has been arrived at stating that the fifth respondent is senior. The learned counsel for the petitioner submitted that none of the points raised by the petitioner in Ext.P12 have been considered in Ext.P13. A reading of Ext.P13 shows that the District Educational Officer after stating the facts leading to the dispute in the first paragraph and after incorporating the gist of the directions issued by this Court in the various judgments, simply concluded that Ext.P7 seniority list already submitted cannot be considered without modifications. Then he rendered the final conclusion that as per Rule 37(1) of Chapter XIV A KER Smt.K.M.Anitha, the fifth respondent having continuous service in the school is senior to Smt.K.A.Hanza, the petitioner. These conclusions are not supported by cogent reasons obviously. Even going by Ext.P13 he has not approved the seniority list also which ought to have been done under Rule 38 of Chapter XIV A KER, with or without change. This Court had considered the contentions of parties elaborately while rendering Ext.P11 judgment W.P.(C). No.14322/2009 -:6:- including the submission of the fifth respondent that the order Ext.P10 herein was not a speaking order. The parties understood that the District Educational Officer has to finalise the seniority list with or without modification after hearing them. Ultimately, this Court quashed Ext.P10 and directed the District Educational Officer to consider whether Ext.P7(a) seniority list can be approved with or without modification. The said exercise can obviously be done by the District Educational Officer in a matter like this only after finding out whether the claim that is raised among various parties regarding seniority is to be accepted or not. Even though the learned counsel for the fourth respondent vehemently contended that the District Educational Officer has attempted to perform the said statutory function in Ext.P13, I am not satisfied that such a consideration was made by the District Educational Officer while passing Ext.P13 order. The points in dispute have not entered the realm of proper reasoning and that vitiates the conclusion that is arrived at in Ext.P13. 8. I am therefore of the view that the matter will have to be reconsidered by the same authority. It is submitted by the parties that the said course would be more efficacious one in the light of the fact that the seniority list is yet to be approved by the District Educational Officer. In W.P.(C). No.14322/2009 -:7:- that view of the matter, Ext.P13 is set aside. The first respondent will reconsider the matter and pass fresh orders after adverting to the contentions of the parties and in exercise of the power under Rule 38 of Chapter XIV A KER. The District Educational Officer will hear the petitioner, the Manager, the fifth respondent and any other teachers who may have filed objections to the seniority list or who wishes to be heard in the matter. The first respondent will accordingly finalise the seniority list and depending upon the outcome of the same, will take the issue of approval of appointment of the Headmistress and pass orders in regard to the approval of the said appointment. The parties will appear before the District Educational Officer on 16/06/2009 and final orders will be passed on or before 30th June 2009. Since Ext.P13 order stands set aside, the appeal Ext.P15 will stand struck off. 9. The interim order passed by this Court on 03/06/2009 will continue till orders are passed accordingly. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms