IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 WP(C).No. 14025 of 2008(T) --------------------------------- PETITIONER: ---------------- B.VASANTHAKUMARI AMMA, HEADMISTRESS, S.N.G.S.HIGH SCHOOL, KADAIKODE, KOLLAM DIST. BY ADV. SRI.K.R.B.KAIMAL (SR.) SRI.B.UNNIKRISHNA KAIMAL RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKARA. 3. THE MANAGER, S.N.G.S.HIGH SCHOOL, KADAIKODU, KOLLAM DIST. 4. SMT.G.VIJAYALAKSHMI AMMA, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE) S.N.G.S.HIGH SCHOOL, KADAIKODU, KOLLAM DISTRICT. BY ADV. SRI.M.V.THAMBAN FOR R4 SRI.V.K.SATHYANATHAN FOR R4 BY GOVT. PLEADER A.J. VARGHESE FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT. P1 : TRUE COPY OF SENIORITY LIST EXT. P2 : TRUE COPY OF SENIORITY LIST EXT. P3 : TRUE COPY OF ORDER NO. B4/1627/07 DATED 27.6.2007 OF 3RD RESPONDENT. EXT. P4 : TRUE COPY OF APPOINTMENT ORDER DATED 2.7.2007. EXT. P5 : TRUE COPY OF REVISION PETITION DATED 1.1.2007 EXT. P6 : TRUE COPY OF JUDGMENT IN W.P.(C) NO. 24728/07 DATED 17.12.2007 EXT. P7 : TRUE COPY OF ORDER G.O. (RT) NO. 1739/08/GL/EDN. DATED 7.4.2008 OF 1ST RESPONDENT. EXT. P8 : TRUE COPY OF ORDER G.O.(RT) NO. 625/07/GENL/EDN. DATED 12.2.2007 OF 1ST RESPONDENT. /TRUE COPY/ P.A. TO JUDGE VKM K.T.SANKARAN, JUDGE ------------------------------- W.P.(C) NO. 14025 OF 2008 ---------------------------------------- Dated this the 18th day of June, 2008 JUDGMENT The petitioner is presently working as Headmistress. The Petitioner joined service as High School Assistant in S.N.G.S High School, Kadaikodu in Kollam District on 22.06.1983. The appointment of the petitioner was approved. The 4th respondent commenced approved service in the said school as H.S.A (Physical Science) on 15.07.1983. While the petitioner was working as H.S.A. (Social Science), consequent on reduction of post, she was granted protection and was deployed to another High School on 18.09.1998. She worked in the said school till she was recalled to the parent school on 1.11.2005. 2. It is stated that in the seniority list prepared as per Ext. P1 as on 1.1.06 and Ext. P2 as on1.1.07, the petitioner was shown as senior to the 4th respondent. The post of Head mistress became vacant in the school on 31.3.2007 due to retirement of the then W.P.(C) No. 14025/2008 2 Headmistress. The Manager appointed the petitioner as Headmistress as per order dated 1.4.2007. The Manager sent the proposal for approval of appointment of the petitioner to the District Educational Officer. The 4th respondent submitted representation to the District Educational Officer objecting to the seniority list and objecting to the approval of appointment of the petitioner. The 4th respondent contended that the petitioner does not have requisite qualification for appointment as Headmistress. It was contended that on protection and deployment, the petitioner lost her lien in the parent school and after rejoining in the parent school she does not have the required continuous service of 12 years as provided under Rule 44 A(1) of Chapter XIV A of KER. The District Educational Officer after hearing the parties rejected the contention put forward by the 4th respondent and approved the appointment of the petitioner as per Ext. P4 order. The seniority list was approved as per Ext. P3 order. 3. Challenging Ext. P3 order approving the seniority list as on 1.1.2007, the 4th respondent filed a Revision Petition before the Government, the 1st respondent. The 1st respondent allowed the W.P.(C) No. 14025/2008 3 revision as per Ext. P7 Order. It was held thus in Ext. P7. “As per Rule 37(1) chapter XIV A KER Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that unit provided he is duly qualified for the post. From the above rule it is clear that for the purpose of seniority service of a teacher in a particular unit would alone be taken into consideration. If a teacher had worked in any other school on deployment that will not be counted for seniority in the parent school. A teacher who has been retrenched from service for want of vacancy is to be treated as not in service of that school even though he is deployed to work in another school under the scheme of protection given to the retrenched teachers. Really protection is only a welfare measure granted by Government to avoid hardship to retrenched teachers. Several judgments in different writ petitions and writ Appeals have upheld the above stand. Apart from seniority, another requirement for promotion is qualification. Only qualified teachers are eligible for promotion to the post of HM. Rule 44 A Chapter XIV A KER contemplates that the minimum service W.P.(C) No. 14025/2008 4 qualification for appointment as HM in aided complete High Schools/Training Schools shall be 12 years of continuous graduate service with a pass in the test in KER Act and Rules and a pass in Account Test (Lower) conducted by the KPSC. In the light of the facts and circumstances of the case, Government are pleased to set aside the order of the DEO, Kottarakkara fixing the seniority of the petitioner and other, read as 1st paper above and to direct the Manager, SNGSHS, Kadaikode to prepare fresh seniority list of teachers as on 1.1.07 reckoning only their contemplated under Rule 37(1) of Chapter XIV A KER. The Manager is also directed to appoint the senior most qualified teacher to the post of H.M. immediately invoking Rules 37(1) and 44 A of Chapter XIV A KER. The DEO, Kottarakkara is directed to take immediate action to implement the above orders of the Government forthwith.” Ext. P7 order is under challenge in this Writ Petition. 4. The learned counsel for the petitioner submitted that the 4th respondent having not challenged the seniority list as evidenced W.P.(C) No. 14025/2008 5 by Ext. P1 in time, she cannot successfully challenge Ext. P2 seniority list. The 4th respondent is not entitled to challenge Ext. P2 seniority list and challenge the appointment of the petitioner as Headmistress. The learned counsel for the petitioner relied on the decision in Usha Devi Vs. State of Kerala (2002(1) KLT 615) in support on his contention. The learned counsel appearing for the 4th respondent on the other hand contended that by deployment of the petitioner on protection, she lost her lien in the parent school and after re deployment to the parent school she does not have the required continuous service of 12 years as provided under Rule 44 A Chapter XIV A of the Kerala Educational Rules. Even if it is to be held that the 4th respondent is precluded from challenging Ext. P1 seniority list, the relevant question to be considered is whether the petitioner is a qualified hand to be appointed as Headmistress as per Rule 44 A Chapter XIV A of the Kerala Educational Rules. 5. In Rahellamma Vs. State of Kerala (1997 (2) KLT 429) a Division Bench of this Court had taken the view that a teacher who has been retrenched from service for want of vacancy is to be treated as not in service of that school even if he is deployed to W.P.(C) No. 14025/2008 6 work in another school under the scheme of protection given to the retrenched teachers. The service of the protected teacher at the school where he is deployed cannot be counted for the purpose of seniority vis-a-vis the teachers working in the parent school. It was also held that under Rule 37 of Chapter XIV A of the KER, he cannot reckon his service for the purpose of seniority in any grade in any unit he had worked previously. The service he has rendered as a protected teacher cannot be taken into consideration as service for the purpose of Rule 45 Chapter XIV A of the KER. The decision of this Court in 1990(1) KLT 626, Manager, Mar Sleeba UPS Vs. State of Kerala also took the view that a protected teacher cannot have any lien on the post held by him in his parent school after his retrenchment and consequential deployment in another school. 6. As per Rule 44 A Chapter XIV A of KER, for the appointment of Headmaster the incumbent must have continuous service for a period of 12 years. After redeployment to the parent school, the petitioner does not have continuous service of 12 years, the petitioner having rejoined the parent school only on 2.11.2005. The vacancy arose on 1.4.07. The petitioner being not qualified for W.P.(C) No. 14025/2008 7 appointment as Headmistress, I am of the view that she is not entitled to the reliefs prayed for in the writ petition. The view taken by the 1st respondent in Ext. P7 order is legal and proper and in consonance with the Division Bench decision of this Court in Rahelamma's case (supra). The Writ Petition lacks merit and it is accordingly dismissed. K.T. SANKARAN, JUDGE vkm