IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 WP(C).No. 26310 of 2007(F) ------------------------------------- PETITIONER(S): ---------------------- M.R.JAYA, H.S.A(MATHEMATICS), CHETTIKULANGARA HIGH SCHOOL, CHETTIKULANGARA, MAVELIKKARA, ALAPPUZHA DISTRICT. BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE BY ADV. SRI.P.K.MANOJKUMAR RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. 3. THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA. 4. THE MANAGER, CHETTIKULANGARA HIGH SCHOOL, CHETTIKULANGARA, MAVELIKKARA, ALAPPUZHA DISTRICT. 5. P.S.SHEEBA, H.S.A(MATHEMATICS), CHETTIKULANGARA HIGH SCHOOL, CHETTIKULANGARA, MAVELIKKARA, ALAPPUZHA DISTRICT. R1 TO R3 BY GOVT. PLEADER SMT.RANI DIOTHIMA R5 BY ADV. SRI.P.CHANDRASEKHAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.26310/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REPRESENTATION DTD. 3.9.2004 SUBMITTED BY THE PETITIONER TO THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. P2:- COPY OF THE ORDER NO.B3-31454/04 /K.DIS DTD. 2.7.2005 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. P3:- COPY OF THE JUDGMENT DTD. 8.6.2005 IN WPC. 1162/2005 PASSED BY THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM. P4:- COPY OF THE JUDGMENT DTD. 3.8.2005 IN RP. NO.447/2005 PASSED BY THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM. P5:- COPY OF THE JUDGMENT DT. 23.1.2006 IN WA. 2257/2005 PASSED BY THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM. P6:- COPY OF THE ORDER G.O.(RT) NO.3900/07G.EDN. DTD. 20.8.2007 ISSUED BY THE GOVERNMENT. P7:- COPY OF THE ORDER OF APPOINTMENT NO.K.DIS B6/6033/2000 DTD. 12.2.2001 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA TO THE MANAGER, H.S.CHETTIKULANGARA. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.26310/2007-F ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 27th day of June, 2011 J U D G M E N T The dispute between the petitioner and the fifth respondent which culminated in the order passed by the Government in Ext.P6 is the subject matter of the writ petition. 2. The matter relates to the claim of the petitioner for appointment as Upper Primary School Assistant in a vacancy to which the fifth respondent was appointed. Both of them were appointed in vacancies for short term duration and the petitioner was initially appointed on 17/06/1998 and the period ended on 14/09/1998 and, where as the fifth respondent was appointed on 02/07/1998 to 14/08/1998. The petitioner had obtained further appointments between 15/09/1998 to 25/03/1999, from 01/06/1999 to 29/10/1999 and 01/11/1999 to 31/03/2000. The fifth respondent was appointed in a regular vacancy of U.P.S.A on 12/11/1998. W.P.(C). No.26310/2007 -:2:- 3. Both of them were appointed as High School Assistants later. The petitioner was appointed for the period from 05/06/2000 to 05/06/2001 and thereafter from 06/06/2001 onwards which has been approved and the fifth respondent has been appointed with effect from 05/06/2002 which has also been approved. 4. It appears that the petitioner, after she was appointed as High School Assistant raised a dispute regarding the appointment of the fifth respondent as U.P.S.A from 12/11/1998. The matter reached the Deputy Director of Education who passed Ext.P2 order in favour of the petitioner. Thereafter, the challenge was made by the petitioner of an order dated 09/08/2004 of the Government in W.P(C).No.1162/2005 which was disposed of by Ext.P3 Judgment. Ext.P4 is the order passed in the Review Petition therein and Ext.P5 is the order passed in the Writ Appeal and finally, the Government passed an order Ext.P6 after hearing both the parties which is under challenge here. W.P.(C). No.26310/2007 -:3:- 5. Heard the learned counsel for the petitioner, learned counsel for the fifth respondent and the learned Government Pleader. 6. The whole controversy is about the alleged non compliance of the directions issued in Ext.P4 order passed in the Review Petition which according to the learned counsel for the petitioner has been overlooked by the Government while passing Ext.P6. It is argued that the Government was of the impression that the petitioner was estopped from raising objections against the appointment of the fifth respondent from 12/11/1998. My attention was taken to the Judgment in W.P.(C).No.1162/2005 (Ext.P3) as well as the Order in Review Petition (Ext.P4). It is necessary to consider the above so as to appreciate the arguments raised by the learned counsel for the petitioner. 7. In Ext.P3 Judgment, this Court in para.2 observed as follows:- “I want to make it clear that at this distance of time, the petitioner will not be entitled W.P.(C). No.26310/2007 -:4:- to challenge the appointment of the 5th respondent as a UPSA in the proceedings which are going to be reconsidered by the Government as per the order which is being passed”. Finally, in the operative portion also it was observed as follows:- “It is clarified once again that it will not be open to the petitioner to challenge the appointment cum approval given to the 5th respondent as UPSA.” The fifth respondent mentioned therein is the fifth respondent herein itself. 8. Of course, the learned counsel for the petitioner submitted that with regard to the said directions in the order Ext.P4 passed in the Review Petition, after considering various aspects this Court in the operative portion directed as follows:- “.........the Review Petition will stand disposed of clarifying that it will be open to W.P.(C). No.26310/2007 -:5:- the review petitioner to produce before the Government at the time when the Government rehears the parties pursuant to the directions in my judgment, the order, if any, passed by the D.D.E on the basis of the hearing already conducted by him on 07/06/2005 and it will be permissible to the Government to take that order also into account and to that extent the last sentence in my judgment dated 08/06/2005 will stand reclarified.” The learned counsel for the petitioner further submitted that the Government only considered the findings in Ext.P3 Judgment without taking note of the clarifications made in Ext.P4 Review Petition. Whereas the learned counsel appearing for the fifth respondent submitted that actually the review petition was not allowed and the observations in Ext.P3 still remain as such, which dis-entitles the petitioner from raising objections against the fifth respondent's appointment as U.P.S.A from 12/11/1998. W.P.(C). No.26310/2007 -:6:- 9. Evidently, in Ext.P3 Judgment this Court foreclosed the legal right available to the petitioner to raise objections in the matter as evident from the observations in para.2 and 3. A reading of the order in the Review Petition also shows that those observations have not been removed but this Court only clarified that the petitioner can place reliance upon Ext.P2 order passed by the Deputy Director of Education. Whether that will enable the petitioner to challenge the appointment of the fifth respondent as U.P.S.A is the next question. Evidently, the parties are bound by the binding directions issued by this Court. What is permitted by Ext.P4 is only to rely upon Ext.P2 order and now by Ext.P6 order the Government has reversed the same for various reasons. It was held that petitioner did not file any statutory appeal in time. The order therefore cannot be held as illegal. Therefore, Ext.P3 Judgment has become final. The petitioner cannot therein maintain any successful challenge against the fifth respondent's appointment from 12/11/1998 as U.P.S.A. W.P.(C). No.26310/2007 -:7:- 10. The next question is with regard to the seniority in the cadre of H.S.A. The petitioner was appointed as H.S.A earlier than the fifth respondent, namely, from 05/06/2000 to 05/06/2001 and is continuing from 06/06/2001 onwards whereas, the fifth respondent was appointed from 05/06/2002 onwards. Both of them have been granted approval of appointment from 06/06/2001 and 05/06/2002 respectively. 11. It is submitted by the learned counsel for the petitioner that the appointment of the petitioner as H.S.A from 05/06/2000 to 05/06/2001 also have been approved. Therefore, the petitioner is entitled to have seniority in the post of H.S.A. 12. The learned counsel for the fifth respondent also submitted that the petitioner can be treated as senior in the post of H.S.A as against the fifth respondent. There are other senior H.S.A's above the petitioner, who are not parties here. 13. Therefore, the challenge against Ext.P6 fails. But it is made clear that the petitioner will be W.P.(C). No.26310/2007 -:8:- treated as senior in the post of H.S.A as against the fifth respondent. The writ petition is accordingly disposed of. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms