IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 WP(C).No. 25519 of 2007(K) -------------------------- PETITIONER: ------------ MINI SAMSON, HEADMISTRESS, SEETHI SAHIB MEMORIAL UPPER PRIMARY SCHOOL, POOZHANAD, KATTAKKADA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.S.A.ANAND RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GENERAL EDUCATION DEPARTMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTURCTION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. 4. THE DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. 5. THE ASSISTANT EDUCATIONAL OFFICER, KATTAKKADA, THIRUVANANTHAPURAM DISTRICT. 6. THE MANAGER, SEETHI SAHIB MEMORIAL UPPER PRIMARY SCHOOL, POOZHANAD, KATTAKKADA,THIRUVANANTHAPURAM DISTRICT. 7. K.H.JOSEPH, UPPER PRIMARY SCHOOL ASSISTANT, SEETHI SAHIB MEMORIAL UPPER PRIMARY SCHOOL, POOZHANAD, KATTAKKADA, THIRUVANANTHAPURAM DISTRICT. R1 TO R5 BY GOVERNMENT PLEADER, SRI.T.B.REMANI ADV. SRI.M.V.THAMBAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/01/2008, THE COURT ON 09/01/2008 DELIVERED THE FOLLOWING: W.P.(C) NO.25519/2007/K APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE G.O.(P)178/2002/G.EDN. DATED 28.6.2002. EXT. P2: COPY OF THE REPRESENTATION DATED 10.5.2004 SUBMITTED BY THE PETITIONER BEFORE THE MANAGER. EXT. P3: COPY OF THE LETTER NO.48/04-05 DATED 14.6.2004, THE HEADMISTRESS INFORMED THE 5TH RESPONDENT. EXT. P4: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 25.6.2004. EXT. P5: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.19748/04-K DATED 7.7.2004. EXT. P6: COPY OF THE ORDER NO.B5-11117/2004 DATED 12.7.2004 OF THE 3RD RESPONDENT. EXT. P7: COPY OF THE ORDER NO.21/2004-2005 DATED 19.7.2004 OF THE 6TH RESPONDENT. EXT. P8: COPY OF THE ORDER NO.C/271/05/K.DIS. DATED 29.3.2005 OF THE 5TH RESPONDENT. EXT. P9: COPY OF THE STATUTORY APPEAL FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 26.4.2005. EXT. P10: COPY OF THE ORDER NO.B6/3687/05 DATED 13.12.2005 OF THE 4TH RESPONDENT. EXT. P11: COPY OF THE LETTER NO.C/1883/2006 DATED 6.4.2006 OF THE 5TH RESPONDENT. EXT. P12: COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 10.1.2006. EXT. P13: COPY OF THE LETTER OF THE PEITITONER TO THE 5TH RESPONDENT DATED 25.4.2006. EXT. P14: COPY OF THE REPRESENTATION SUB MITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 8.5.2006. EXT. P15: COPY OF THE ORDER NO.F1/21181/06/DPI/K.DIS DATED 29.9.2006 OF THE 2ND RESPONDENT. EXT. P16: COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 13.11.2006. W.P.(C) NO. 25519/2007/K EXT. P17: COPY OF THE G.O.(RT) NO.3577/07/G.EDN. DATED 2.8.2007 RESPONDENT'S EXHIBITS: EXT. R7(A): COPY OF THE JUDGMENT DT.16.7.2004 IN WP(C) NO.21056/2004. /TRUE COPY/ P.A. TO JUDGE JP S.SIRI JAGAN, J. ======================= W.P.(C) No. 25519 of 2007(K) ======================= Dated this the 9th day of January, 2008 JUDGMENT The petitioner as well as the 7th respondent in this writ petition are UPSAs in the 6th respondent's school. Originally on account of want of vacancies they were deployed on protection to Government School. The 7th respondent is senior to the petitioner. However, 7th respondent is not a graduate teacher whereas the petitioner is. The 7th respondent was recalled on 29.3.04 in a vacancy which arose prior to that date. According to the petitioner, a vacancy arose on 2.6.2004 in which the petitioner could have been recalled. The petitioner would allege that in order to enable the 7th respondent for being qualified for holding the post of Headmistress, the manager and the educational authorities prolonged recalling of the petitioner in the vacancy which arose on 2.6.2004 and ultimately only by Ext.P6 order dated 12.7.2004, petitioner was recalled to the parent school pursuant to which she joined duty. In the meanwhile, W.P.(C) No. 25519/2007/K -2- there arose a vacancy of Headmistress on 1.7.2004. On the ground that the petitioner was not in the service of the school on the date of occurrence of the vacancy, the petitioner was denied appointment as Headmistress. This action is under challenge in this writ petition. The petitioner contends that since admittedly the petitioner was eligible for appointment as Headmistress, the petitioner should not be prejudiced because of the delay in recalling the petitioner to the parent school in the vacancy that has occurred and therefore, petitioner seeks the following reliefs: "i. call for the records leading to Exts. P8, P10, P15 and P17 and quash them by the issuance of a writ of certiorari or any other appropriate writ, order or direction. ii. declare that the petitioner is entitled to be teated as having been recalled to her parent school from protection with effect from 2.6.2004 and be given promotion and all consequential service benefits on that basis. iii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 5 to approve the appointment of the petitioner as Headmistress of S.S.M.U.P. School, Poozhanadu with effect from 19.7.2004 treating her as having been on duty in the School when vacancy of Headmistress arose and grant her all consequential service benefits, within a time limit to be fixed by this Hon'ble Court. iv. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 6 to permit the petitioner to continue as Headmistress of the School as if Exts. P8, P10, P15 and P17 were never issued at all." 2. The 6th respondent-manager has not chosen to W.P.(C) No. 25519/2007/K -3- appear and contest the case although he has acceptance notice in this writ petition. The 7th respondent alone is contesting the case by filing a counter affidavit and an additional counter affidavit. The 7th respondent raises two contentions. First is that there is no deliberate delay in recalling the petitioner. He would submit that only the normal time required has been taken in recalling the petitioner to the parent school. The 2nd is that the former Headmistress was due to retire within one month from the date of reopening of the institution and therefore, by virtue of Rule 63 of Chapter XIV of A of Kerala Education Rules, a vacancy should be deemed to have arisen on 1.6.04 in which case the petitioner would not be eligible as the vacancy to which the petitioner has been recalled arose admittedly on 2.6.04. 3. I have considered the rival contentions in detail. As is clear from Ext.P3, three vacancies of UPSA arose in the school on 1.6.2004. It is also not disputed before me that out of the three vacancies the petitioner was eligible to be recalled to the 2nd vacancy. After waiting for almost a month the petitioner filed a request on 26.6.2004. However, the formal orders recalling the petitioner was passed only by Ext.P6 dated 12.7.04. W.P.(C) No. 25519/2007/K -4- Ext.P1 Government order on redeployment and recalling of protected teachers contains the following clause: "They shall be absorbed in their original posts as and when vacancies arise in those categories." 4. Going by the same, a protected teacher is entitled to be recalled to the parent school as and when vacancies arise. Therefore, since the vacancy arose on 1.6.2004 the petitioner ought to have been recalled to that post atleast within a reasonable time. It was the duty of the manager to inform the department as to the vacancy which has arisen and to see that the protected teacher is recalled without any delay. It is seen that petitioner herself filed a request on 26.6.04 after waiting for some time. In fact, the petitioner submits that she herself had filed a representation before the manager on 10.5.04 seeking appropriate action in the matter. In the above circumstances, I am of the opinion that the petitioner should not be prejudiced because of the delay in recalling the petitioner to the parent school, assuming that there was no deliberate delay on the part of the manager and the educational authorities. 5. The next contention raised by the 7th respondent is W.P.(C) No. 25519/2007/K -5- that by virtue of Rule 63 of Chapter XIV A of KER, the post of Headmaster in the school must be deemed to have arisen on 1.6.2004 since the date of superannuation of the former Headmistress falls within one month from the date of reopening of the school. Rule 63 reads as follows: "If the date of superannuation falls within one month from the date of re-opening of the institution, he will cease to be on active duty on the date of re-opening. In such cases, he will be allowed special leave on full pay from the re-opening date till he gets superannuated." Rule 63 only says that in the contingency stipulated therein the headmaster would cease to be on active duty on the date of reopening. That is only for fiscal purposes. That cannot govern the date of occurrence of vacancy. The vacancy would arise only when the teacher is actually relieved from service on attaining superannuation. I am supported in this view by a Division Bench decision of this Court in Bhaskaran v. Vishwanath (2000 (2) KLT 64). The learned counsel appearing for the 7th respondent submits that although the decision of the Division Bench is against the 7th respondent, according to him, that decision does not laid down the correct law and requires re-consideration. As the law now stands a single bench cannot doubt the correctness W.P.(C) No. 25519/2007/K -6- of a Division Bench decision and therefore, I am not inclined to deal with that contention raised by the petitioner. In any event, I do not find any thing wrong with the said decision also. That being the position, in this case the vacancy of Headmaster arose only on 1.7.2004. 7. Since I have already held that the petitioner should not be prejudiced because of the delay in recalling the petitioner to the parent school, which cannot be attributed to the petitioner at all, I am of the opinion that petitioner is entitled to be considered for appointment to the vacancy which arose on 1.7.2004 deeming that he had been recalled to the parent school with effect from the date of occurrence of that the vacancy i.e. 1.7.2004. 8. In view of the above finding, I hold that the petitioner is entitled to appointment as Headmistress in the school the vacancy which arose on 1.7.2004. However, she will be eligible for pay and allowances only from the date of actual joining duty in the school, that is from 14.7.04. The impugned orders are therefore quashed and the manager and the educational authorities are directed to pass appropriate orders approving the W.P.(C) No. 25519/2007/K -7- appointment as headmaster with effect from that date, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The petitioner would also be entitled to all consequential benefits. The writ petition is disposed of as above. S.SIRI JAGAN, JUDGE jp