IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 WP(C).No. 29566 of 2008(T) ---------------------------------------- PETITIONER(S): ------------------------ P.VALSALA KUMARI, HEADMISTRESS, KALLADI HIGHER SECONDARY SCHOOL, KUMARAMPUTHUR, MANNARKKAD COLLEGE PO., PALAKKAD. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVT,SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 3. THE DY.DIRECTOR OF EDUCATION, PALAKKAD. 4. THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD. 5. THE MANAGER, KALLADI HIGHER SECONDARY SCHOOL, KUMARAMPUTHUR, MANNARKKAD COLLEGE.PO., PALAKKAD, 6. K.K.INDIRA DEVI, SANSKRIT TEACHER, KALLADI HIGHER SECONDARY SCHOOL, KUMARAMPUTHUR, MANNARKKAD COLLEGE.PO., PALAKKAD DISTRICT. BY GOVERNMENT PLEADER SMT. T.B.REMANI ADV. SRI.V.M.KURIAN FOR R4 SRI.MATHEW B. KURIAN FOR R4 SMT.TULASI PANICKER FOR R4 SRI.K.T.THOMAS FOR R4 SRI.V.A.MUHAMMED FOR R6 SRI.K.E.HAMZA FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29566/2008 T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF ORDER DTD. 9/11/2007 OF THE DEO, PALAKKAD. EXT.P2: COPY OF ORDER DTD. 9/01/2008 OF DY.DIRECTOR OF EDUCATION, PALAKKAD. EXT.P3: COPY OF APPOINTMENT ORDER DTD. 28/11/2007 TO THE PETITIONER. EXT.P4: COPY OF REVISION PETITION DTD. 28/01/2008 FILED BEFORE THE GOVERNMENT. EXT.P5: COPY OF OBJECTION DTD. 8/03/2008 FROM THE PETITIONER. EXT.P6: COPY OF LETTER DTD. 8/03/2008 FROM THE 5TH RESPONDENT. EXT.P7: COPY OF LETTER DTD. 22/07/2008 FROM THE DPI, TRIVANDRUM. EXT.P8: COPY OF EXPLANATION DTD.22/08/2008 FROM THE PETITIONER. EXT.P9: COPY OF ORDER DTD. 9/09/208 OF DPI, TRIVANDRUM. RESPONDENT'S EXHIBITS: EXT.R6(A): COPY OF THE DECISION REPORTED IN 2004 (3) K.L.T.SHORT NOTE PAGE 2 CASE NO.2 DTD. 23/06/2004. EXT.R6(B): COPY OF THE INTERIM ORDER OF THIS HON'BLE COURT IN WP(C) NO.30799/2008 N DTD. 21/10/2008. EXT.R6(C): COPY OF THE G.O.(MS) NO.62/73/S.EDN. OF THE GOVERNMENT DTD. 02/05/2007. EXT.R6(D): COPY OF THE APPOINTMENT ORDER DTD. 01/07/2007. EXT.R6(E): COPY OF THE ORDER NO.16/07 OF THE MANAGER DTD.27/11/2007. EXT.R6(F): COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A.NO.898/2000E DTD. 22/06/2000. EXT.R6(G): COPY OF THE COMMON SENIORITY LIST DTD. NIL. EXT.R6(H): COPY OF THE REQUEST OF THE PETITIONER DTD. 29/09/2008. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.29566/2008 ----------------------------------------------------------- Dated this the 24th day of November, 2008 JUDGMENT Challenge in this writ petition is against Ext.P9, an order passed by the 2nd respondent, ordering promotion of the 6th respondent in the vacancy of Headmaster, to which the petitioner has been promoted. 2. The facts of the case are that, by order dated 1.7.2007, the 6th respondent was promoted and appointed as Headmaster of the school. The Manager sought approval of the appointment and that was rejected by the DEO as per Ext.P1. Against that order, the 6th respondent filed appeal to the 3rd respondent. In the meanwhile, by Ext.P3 order dated 28.11.2007, the petitioner was promoted to that post and the same was approved by the DEO. WP(c).No.29566/08 2 3. The appeal filed by the 6th respondent against Ext.P1 was also rejected. Thereafter, the 6th respondent filed Ext.P4 revision before the first respondent to which the petitioner filed Ext.P5 objection. Petitioner submits that while Ext.P4 revision was pending consideration of the first respondent, she received Ext.P7 letter from the 2nd respondent making reference to petition dated 28.1.2008 submitted by the 6th respondent and calling upon the petitioner and the Manager to appear for hearing. Objections were filed as per Ext.P8 and after hearing the parties the second respondent issued Ext.P9 order dated 9.9.2008, directing promotion of the 6th respondent. The operative portion of Ext.P9 reads as follows; "In the circumstances, the revision petition of Smt. K.K. Indira Devi is allowed. She is to be promoted as Headmistress and Smt. P. Valasalakumari is to be reverted as H.S.A with immediate effect. However the approval granted to Smt.P.Valasala WP(c).No.29566/08 3 Kumari as Headmistress from 28.11.2007 to till the date of this order is accepted on the ground that she had discharged all the duties of Headmistress." 4. The contention raised by the Senior Counsel for the petitioner is that, the petition dated 28.1.2008, mentioned in Ext.P7 notice of hearing was filed on the same date on which Ext.P4 revision was filed by the 6th respondent. It is also contended that, when Ext.P4 revision was filed and to which objections were also filed, it was not open to the 6th respondent to move the 2nd respondent by filing a petition. The point that is raised is that it was during the pendency of the revision that the petition was entertained and Ext.P9 order was rendered. It is also contended that Ext.P3 order of appointment has not been challenged by the 6th respondent and that so long as the appointment order stands, Ext.P9 could not have been issued. Yet another contention that is raised is that as the 6th respondent attained the age of 55 on 11.8.2008, Ext.P9 order dated 9.9.2008, could not have WP(c).No.29566/08 4 been issued directing her promotion with prospective effect. 5. These contentions are contradicted by the counsel for the 6th respondent. Referring to para 5 of the counter affidavit, the 6th respondent would submit that, on the filing of Ext.P4 she was advised by a Section Officer, to file an objection before the second respondent and it was therefore that the petition dated 28.1.2008 was filed. It was also contended that in Ext.P8 objection to Ext.P7 notice of hearing, the petitioner did not raise any objection to the DPI entertaining the petition dated 28.1.2008 and therefore it is not open to the petitioner to canvass on the incompetence of the DPI to entertain the petition or to render Ext.P9 order. Yet another plea that is raised is that, since statutory remedy of revision is available against Ext.P9, the writ petition itself is not maintainable. 6. In so far as the argument relying on Rule 60(c) of Part I KSR raised by the counsel for the writ petitioner, the counsel for the 6th respondent contends that, that her claim WP(c).No.29566/08 5 relates to the vacancy which arose on 1.7.2007 and therefore the fact that she has attained the age of 55 on 11.8.2008 does not deprive her rightful claim to be promoted as Headmistress. 7. In my view, the petitioner is entitled to succeed and I need not go into all the issues raised. As already noticed, by Ext.P9 order passed by the DPI on 9.9.2008, promotion of the 6th respondent is ordered and petitioner is to be reverted with immediate effect. By this order, the approval granted to the petitioner as Headmistress from 28.11.2007 also has been upheld. If that be so, it is evident that the promotion ordered by Ext.P9 on 9.9.2008 is only with prospective effect. It is the undisputed position that Rule 60 (c) Part-I KSR provides that, though a teacher has attained 55 years, she is entitled to continue until the end of the academic year, but she cannot claim further promotions during the extended period. If that be so, since the 6th respondent has attained the age of 55 on 11.8.2008, Ext.P9 WP(c).No.29566/08 6 order directing her promotion as Headmistress on 9.9.2008 is clearly unsustainable. I am inclined to invalidate Ext.P9 on this sole ground. I am not dealing with the merits of the other contentions raised by both sides, which are to be appreciated and decided by the Government when they deal with Ext.P4 revision. 8. That apart I am inclined to agree with the counsel for the petitioner that when the Government was seized of the matter, the DPI ought not have entertained the petition dated 28.1.2008 filed by the 6th respondent. 9. The counsel for the 6th respondent submits that the writ petition is not maintainable. If this plea was raised at the time when the case came up for admission, possibly this court would have entertained it. Now the writ petition has been entertained, pleadings have been completed by both sides and arguments have also been heard I do not think that at this stage the petitioner should be relegated to pursue statutory remedies. WP(c).No.29566/08 7 While I quash Ext.P9, I clarify that it will be open to the 6th respondent to pursue Ext.P4 revision filed before the Ist respondent. Writ Petition is disposed of as above. ANTONY DOMINIC JUDGE vi. WP(c).No.29566/08 8