IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 WP(C).No. 28839 of 2010(D) -------------------------- PETITIONER(S): --------------- G.BIJU, U.P.S.A., VICTORY V.H.S.S. OLATHANNI, NEYYATTINKARA,THIRUVANANTHAPURAM PIN-695121. BY ADV. SRI.P.K.MANOJKUMAR RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTD BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION(H) DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM.-695 001 2. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM.-695 001 3. THE DISTRICT EDUCATION OFFICER, NEYYATTINKARA, THIRUVANANTHAPURAM-695 121. 4. THE MANAGER, VICTORY V.H.S.S. OLATHANNI, NEYYATTINKARA, THIRUVANANTHAPURAM-695121. 5. S.SHEEBA, U.P.S.A. VICTORY V.H.S.S. OLATHANNI, NEYYATTINKARA, THIRUVANANTHAPURAM PIN-695121. 6. ALPHONSA U.P.S.A (NOW RETRENCHED) VICTONRY V.H.S.S. OLATHANNI, NEYYATTINKARA THIRUVANANTHAPURAM-695121. 7. JUDY, U.P.S.A.(NOW RETRENCHED) VICTORY V.H.S.S. OLATHANNI, NEYYATTINKARA,THIRUVANANTHAPURAM-695121. ADV. SRI.S.JAMES VINCENT FOR R5-7 BY G.P.SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28839 of 2010(D) PETITIONER'S EXTS: EXT.P1:-COPY OF ORDER OF APPOINTMENT AND APPROVAL DTD.1.6.98 EXT.P2:- COPY OF ORDER OF APPOINTMENT AND APPROVAL DTD.6.6.01 EXT.P3:- COPY OF STAFF STATEMENT 209-10 EXT.P4:- COPY OF ORDER PASSED BY DPI DTD.18.11.1999 EXT.P5:- COPY OF PETITION DTD.9.7.1998 EXT.P6:- COPY OF HEARING NOTE DTD.9.3.2009 EXT.P7:- COPY OF REPORT DTD.31.12.2009 EXT.P8:- COPY OF HEARING NOTE DTD.28.5.09 EXT.P9:- COPY OF REPORT DTD.14.1.2009 EXT.P10:- COPY OF REPORT DTD.29.5.09 EXT.P11:- COPY OF ORDER DTD.1.3.10 EXT.P12:- COPY OF ORDER DTD.21.10.09 EXT.P13:- COPY OF ORDER OF APPROVAL OF THE APPOINTMENT DTD.23.4.2010 TO S.SHEEBA EXT.P14:- COPY OF ORDER OF APPROVAL OF THE APPOINTMENT DTD.23.4.2010 TO J.ALPHONSA EXT.P15:- COPY OF ORDER OF APPROVAL DTD. 23.4.2010 TO O.N.JUDY EXT.P16:- COPY OF ORDER DTD.6.2.1999 TO C.SWARNAMMA. EXT.P17:- COPY OF REPORT SUBMITTED BY DEO TO R1 DTD.31.8.2010 RESPONDENTS EXTS: R7(a):- EXTRACT OF ATTENDANCE REGISTER R7(b):- COPY OF ORDER DTD.14.7.1994 R7(c):- COPY OF APPOINTMENT ORDER OF R5 R7(d):- COPY OF APPOINTMENT ORDER OF R5 R7(e):- COPY OF APPOINTMENT ORDER OF R5 R7(f):- COPY OF ORDER DTD.8.1.2001 R7(g):- COPY OF ORDER DTD.20.2.08 R7(h):- COPY OF REPRESENTATION DTD.29.10.2008 R7(i):- COPY OF ORDER DTD.9.10.95 WP(C).No. 28839 of 2010(D) R7(j):- COPY OF ORDER DTD.3.6.96 R7(k):-COPY OF ORDER DTD.1.6.98 R7(l):- COPY OF ORDER DTD.10.1.96 R7(m):- COPY OF ORDER DTD.3.6.96 R7(n):- COPY OF ORDER DTD.1.6.98 R7(o):- COPY OF ORDER DTD.31.3.2010 R7(p):- COPY OF ORDER DTD.3.4.2010 R7(q):- COPY OF PETITIONS SUBMITTED BY R6 ON 25.5.2010 R7(r):- COPY OF LETTER DTD.30.5.09 R7(s):- COPY OF PETITION SUBMITTED BY R7 ON 1.6.2009 R7(t):- COPY OF PETITION DTD.1.6.09 R7(u):- COPY OF LETTER DTD.5.6.2009 R7(v):0 COPY OF PETITION DTD.3.7.09 R7(w):_ COPY OF JUDGMENT DTD.5.2.1998 IN OP NO.18913/97 R7(x):- COPY OF JUDGMENT DTD.19.12.97 IN OP 21144/96 R7(y):- COPY OF LETTER DTD.22.1.2010 ADDRESSED TO R3 R7(z):- COPY OF JUDGMENT DTD.16.7.08 IN WP(C) NO.8557/08 R7(za):- COPY OF MEMORANDUM OF WRIT PETITION DTD.2.3.08 IN WP(c) 8557/08 /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. ------------------------------ W.P.(C).No.28839 OF 2010 ------------------------------ Dated this the 29th day of October, 2010 JUDGMENT On 1.6.1998, six persons were appointed as UPSAs in Victory V.H.S.S, Olathani, Neyyattinkara, Thiruvananthapuram. They are 1) S.Sheeba, (5th respondent) 2) Biju G. (Writ Petitioner) 3) Ajithakumari.R, 4) Alphonsa.J,(6th respondent), 5) Selin P.Rini and 6) Judy O.N. (7th respondent). There is no dispute that S.Sheeba was a claimant under Rule 51A of Chapter XIV A of the Kerala Education Rules. 2. Respondents 5 to 7, namely, Sheeba, Alphonsa and Judy were appointed in the school earlier in point of time for various spells. Sheeba was appointed for the period from 14.7.1994 to 11.10.1994 and that appointment was approved. Alphonsa was appointed as UPSA from 9.10.1995 to 12.12.1995. But that appointment was not approved W.P.(C).No.28839 OF 2010 2 from that date. Judy was appointed the school as UPSA for the period from 10.1.1996 to 29.3.1996. Judy was appointed again on 3.1.1996 to 1.4.1996. 3. The appointment of Alphonsa and Judy for the spell mentioned above, were not approved. The higher authorities in the Education Department also confirmed the order passed by the Educational Officer declining the approval of appointment of Alphonsa and Judy. The matter remained as such. 4. Later, on 1.6.1998 all the aforesaid six persons including G.Biju, the petitioner, and Sheeba, Alphonsa, Judy and others were appointed as UPSAs. They were in continuous service from that date onwards. While so, the petitioner was promoted as HSA as per Ext.P2 dated 6.6.2001 and that promotion was approved by the District Educational Officer. 5. Division fall occurred and Alphonsa and Judy were retrenched from service. The petitioner is W.P.(C).No.28839 OF 2010 3 continuing in service under the premise that he is senior to Alphonsa , Judy and others except Sheeba, who were appointed on 1.6.1998. 6. It is not in dispute that the petitioner is senior going by the age. But Alphonsa and Judy contended that they having been appointed in the same school before 1.6.1998, they are entitled to be treated as seniors going by the provisions of Rule 37(2) of Chapter XIVA KER. 7. Sri.James Vincent, learned counsel appearing for respondents 5 to 7 submitted that the question of approval of appointment of Alphonsa and Judy were raised in several proceedings on various occasions and various directions were issued in the Writ Petitions filed by them. 8. While so, the Government passed Ext.P11 order dated 1.3.2010, which reads as follows: W.P.(C).No.28839 OF 2010 4 “In inviting your attention to the references cited, I am to direct you to approve the appointment of Smt.O.N.Judy as UPSA in VVHSS, Olathanni for the period from 10.1.1996 to 29.3.1996 if there is established vacancy, and if there are no other senior claimants provided and also if she is otherwise eligible.” 9. Based on Ext.P11 order, the District Educational Officer approved appointment of O.N.Judy as per the endorsement dated 23.4.2010 on Ext.P15. The learned counsel for the petitioner submitted that based on Ext.P11 Government Order, Alphonsa also approached the District Educational Officer, who approved appointment of Alphonsa for the period from 9.10.1995 to 12.12.1995 as evidenced by the endorsement on Ext.P14. Sri. James Vincent, the learned counsel appearing for the respondents 5 to 7 submitted that all throughout Smt.Alphonsa and Judy were approaching the authorities including the High Court for getting their appointment approved and in that process Ext.P11 order was passed by the Government in favour of Judy. It is also submitted that since W.P.(C).No.28839 OF 2010 5 the appointment of Alphonsa and Judy were liable to be approved, the District Educational Officer passed orders approving their appointment. 10. Ext.P11 order passed by the Government is under challenge in this Writ Petition. The petitioner also challenges Exts.P13, P14 and P15 orders of approval passed by the District Educational Officer. 11. The contention of the petitioner can be summarized as follows: “a) He is senior in age than Alphonsa and Judy. b) As per the seniority list available in the Department, the petitioner was shown as senior to Alphonsa and Judy. c) The petitioner was promoted as HSA and such promotion could be made only taking into account the seniority of the petitioner over Judy, Alphonsa and W.P.(C).No.28839 OF 2010 6 other teachers. The promotion of the petitioner was never under challenge by any of the respondents. d) The appointment of Alphonsa and Judy were not approved by the Educational Authorities. The matters remained as such. After a period of 10 years, they approached the Government challenging the order passed by the Director of Public Instruction. Ext.P11 order was passed in such circumstances on the basis of the hopelessly delayed representation made by Judy. e) The Government passed Ext.P11 order ignoring the reports and hearing notes of the lower authorities. f) Before passing Ext. P11 order, no notice was issued to the petitioner and he was not afforded an opportunity of being heard. g) Ext.P11 order is not a speaking W.P.(C).No.28839 OF 2010 7 order.” 12. Sri. James Vincent, the learned counsel appearing for respondents 5 to 7 controverted these contentions put forward by the petitioner. The submissions made by the learned counsel for respondents 5 to 7 are summarized below: Though the petitioner is senior going by age, respondents 5 to 7 were appointed for different periods earlier in point of time than the date on which the petitioner was appointed. Respondent No.5 is admittedly a claimant under Rule 51A. Respondents 6 and 7 are entitled to the benefit of Rule 37(2) of Chapter XIV A KER irrespective of the question whether their appointments for earlier spells were approved or not. It is sufficient that they had qualified service. 13. The counsel relied on the decisions in Balakrishnan v. A.E.O, Vadakara (2005(4) KLT 64), Saramma Joseph v. Secretary to Government (2001(3) W.P.(C).No.28839 OF 2010 8 KLT 36), Vijayamma v. State of Kerala (1998 (1) KLT 706), B.R.Devaki Amma v. State of Kerala (1989 (2) KLJ 256), Johny v. State of Kerala (1980 KLT 734) in support of this contention. 14. Sri.James Vincent also contended that at no point of time, a seniority list was prepared and the petitioner was never shown as senior in any approved seniority list. The contention of the Writ Petitioner based on Ext.P3 staff statement cannot be taken as a substitute for seniority list. In the staff statement, names of teachers are shown and it need not necessarily indicate their seniority. The counsel pointed out that in Ext.R7 (a) attendance register, the names of respondents 6 and 7 are shown above the name of the Writ Petitioner. Counsel also submitted that the Writ Petitioner Sheeba, Alphonsa, Judy and 10 other teachers filed WP(C) No.8557 of 2008 before the High Court and in that Writ Petition the date of joining service of all the petitioners were shown W.P.(C).No.28839 OF 2010 9 in support of the contentions raised in that Writ Petition. He submitted that arraying parties in a particular manner is not conclusive at all, whether it is in the staff statement or in the attendance register or in the Writ Petition. He pointed out that in W.P(C) No.8557 of 2008 the Writ Petitioner herein, namely, Biju is shown as serial No.10 while, respondents 5 to 7 are shown above his name. Sri. James Vincent submitted that going by the averments in WP(C) No.8557 of 2008, the Writ Petitioner cannot be heard to say that the respondents 6 and 7 had no qualified service prior in point of time than that of the petitioner. 15. The contesting respondents contended that the fact that the Writ Petitioner was promoted is not relevant at all. If it is found that respondents 6 and 7 had prior qualifying service and that they are seniors to the Writ Petitioner, all the necessary consequences would follow. W.P.(C).No.28839 OF 2010 10 16. The counsel relied on the decision in State of Kerala v. Baskara Pillai (ILR 1979 (1) Kerala 355). 17. As regards the contention that Judy made a delayed representation, the counsel submitted that Alphonsa and Judy were prosecuting various proceedings before the educational authorities as well as High Court and that at no point of time they have given up their claim for seniority. The counsel submitted that the documents produced along with the counter affidavit would reveal the same. 18. Sri.James Vincent submitted that before passing Ext.P11 order, it was not necessary to issue notice to the Writ Petitioner. The Writ Petitioner was appointed only on 1.6.1998. The question which was decided by the Government in Ext.P11 order was regarding the approval of appointment of Judy for the period from 10.1.1996 to 29.3.1996. Had the question of approval of W.P.(C).No.28839 OF 2010 11 appointment of Judy been considered before the appointment of the petitioner, and the appointment of Judy been approved, the petitioner could not raise any objection. If so, the counsel points out that even now, the Writ Petitioner cannot challenge the approval of appointment of respondents 6 and 7. 19. As regards the contention that Ext.P11 is not a speaking order, the counsel submitted that Ext.R7(y) report dated 22.1.2010 submitted by the District Educational Officer was available before the Government. The Government was considering only the question whether the appointment of Judy should be approved or not in which case the only question to be considered was whether there was an established vacancy and whether Judy was qualified. A possible rival contention which a subsequent appointee could raise at a subsequent point of time need not be reflected at all in Ext.P11 order. W.P.(C).No.28839 OF 2010 12 20. The learned Government Pleader submitted that before passing Ext.P11 order, it was not legally necessary to issue notice to the Writ Petitioner as he was not an affected party in the matter of consideration of approval of appointment of Judy. Sri.James Vincent raised a contention that it is not the law that an order passed without hearing one of the parties should be struck down in all circumstances. If it is established that the Writ Petitioner could have no valid contention at all and the authority which passed the order impugned could pass only such an order, the order impugned need not be set aside even if it is shown that the Writ Petitioner was not heard and no notice was issued to him. The counsel relied on the following Supreme Court judgments in support of that contention. S.L.Kapoor v. Jagmohan((1980)4 SCC 379); Rajendra Singh v. State of M.P. ((1996)5 SCC 460); Aligarh Muslim University v. Mansoor Alikhan (AIR 2000 SC 2783); P.D.Agrawal v. State Bank of India ((2006)8 SCC 776) and Ashok Kumar Sonkar v. W.P.(C).No.28839 OF 2010 13 Union of India ((2007)4 SCC 54). 21. After having heard the counsel on either side at length, and also after considering the pleadings of both the parties, I am of the view that without considering the question whether the Government should have issued notice to the petitioner before passing Ext.P11 order, it would be just and proper to hear the Writ Petitioner as well in the peculiar facts and circumstances of the case and taking note of the subsequent developments. As of now, there is stiff contest between the Writ Petitioner on the one hand and respondents 6 and 7 on the other. All of them were appointed in the school on the same date. Probably, all of them were moving together without any difference of opinion. Now the question arises as to who should go out. Then it becomes important as to who is the senior and who is the senior most. At this juncture, it is quite natural that all possible contentions would be taken by them in order to succeed. Now the Writ Petitioner wants to W.P.(C).No.28839 OF 2010 14 keep his position in tact, whereas respondents 6 and 7 say that it is the petitioner, who has to go out. It is only just and proper that a final decision is taken on the question whether the appointment of Alphonsa and Judy for the period prior to 1.6.1998 should be approved or not. If that question is considered and decided, most of the other contentions would become irrelevant. Sri. James Vincent submitted that even if it is found that no approval could be granted to the appointment of respondents 6 and 7, if it is found that they had qualified service, prior to 1.6.1998, respondents 6 and 7 would be entitled to the benefit of Rule 37(2) of Chapter XIV A Kerala Education Rules. The learned Government Pleader submitted that to claim the benefit of rule 37(2), it must be established that there was a post to which appointment could be effected. All these are matters which could be taken note of by the Government before passing a detailed order dealing with all the contentions of the parties. It is made clear that all the parties would be entitled W.P.(C).No.28839 OF 2010 15 to put forward their respective contentions and file detailed statements. Either of the parties would produce a copy of the Writ Petition, a copy of the counter affidavit and a copy of the reply affidavit before the Government. The first respondent shall hear the Writ Petitioner, respondents 5 to 7, the Manager and any other affected party and dispose of the matter as expeditiously as possible, and at any rate within a period of three months from the date of receipt of a copy the judgment. 22. On 20.9.2010, at the time of admitting the Writ Petition, an interim order as prayed for was granted. The interim order prayed for was to issue a direction to the respondents not to disturb the settled position of seniority of the Writ Petitioner as UPSA and not to withhold the salary of the petitioner on the basis of Exts.P14 and P15 orders passed by the District Educational Officer. The interim order dated 20.9.2010 will continue to be in force till the matter is disposed of by the W.P.(C).No.28839 OF 2010 16 Government, with the following modifications. In case it is found that the appointment of Alphonsa and Judy are liable to be approved for a period prior to 1.6.1998 or if it is found that Alphonsa or Judy was senior to the Writ Petitioner, the Writ Petitioner shall repay the salary received by him during the period from 20.9.2010 till the date of passing of order by the Government and thereafter, till the consequential orders are complied with. The Writ Petition is disposed of as above. K.T.SANKARAN, JUDGE cms