IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 WP(C).No. 29831 of 2008(B) ---------------------------------------- PETITIONER(S): ------------------------ REKHA.R.THANKAL, HIGH SCHOOL ASSISTANT (MALAYALAM), DEVASWOM BOARD HIGHER SECONDARY SCHOOL, CHERIANAD, MAVELIKKARA. BY ADVS. SRI.N.SUGATHAN, SMT.VARSHA BHASKAR, SRI.S.PRASANTH (AYYAPPANKAVU). RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE MANAGER, TRAVANCORE DEVASWOM BOARD SCHOOLS, TRAVANCORE DEVASWOM BOARD, NANDANCODE, THIRUVANANTHAPURAM. 4. C.SINDHU, HIGH SCHOOL ASSISTANT (MALAYALAM), DEVASWOM BOARD HIGHER SECONDARY SCHOOL, PARUMALA.P.O, PATHANAMTHITTA DISTRICT. R1 & R2 BY GOVERNMENT PLEADER SRI. SANDESH RAJA R3 BY ADV. SRI.K.N.VENUGOPALA PANICKER, SC, TDB R4 BY ADV. SRI.S.SUBHASH CHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON 24/09/2010 DELIVERED THE FOLLOWING: Kss WPC.NO.29831/2008 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF APPOINTMENT ORDER DTD. 5/06/2002 AS APPROVED BY THE D.E.O. KUTTANAD RELATING TO THE PETITIONER. P2: COPY OF APPOINTMENT ORDER DTD. 25/10/2000 RELATING TO THE 4TH RESPONDENT. P3: COPY OF ORDER DTD. 19/06/02 ISSUED BY THE 2ND RESPONDENT. P4: COPY OF JUDGMENT DTD. 4/10/2005 IN WP(C) NO.28207/2005. P5: COPY OF G.O.(RT) NO.594405/G.EDN. DTD. 23/12/2005. P6: COPY OF PETITION DTD. 22/08/2008 SUBMITTED BY PETITIONER BEFORE THE GOVERNMENT. P7: COPY OF JUDGMENT DTD. 3/09/2008 IN WP(C) NO.23724/2008. P8: COPY OF ORDER NO.ROC.7436/08/EDN.SUIT DTD. 6/08/2008 PASSED BY THE 3RD RESPONDENT. P9: COPY OF STAFF FIXATION ORDER 5/01/2001 FOR THE YEAR 2000-2001. P10: COPY OF STAFF FIXATION ORDER DTD. 29/09/2001 FOR THE YEAR 2001-02. RESPONDENT'S EXHIBITS: R4(A): COPY OF THE ORDER DTD. 3/2/2001. R4(B): COPY OF THE GOVERNMENTORDER DTD. 15/07/2000. R4(C): COPY OF THE GOVERNMENT ORDER DTD. 29/09/2000. R4(D): COPY OF THE ORDER DTD. 14/05/2001. R4(E): COPY OF THE G.O. DTD. 24/10/2001. R4(F): COPY OF THE ORDER DTD. 10/08/2002 PASSED BY RESPONDENT NO.2. R4(G): COPY OF THE STATUTORY REVISION PETITION DTD. 2/05/2005 SUBMITTED BY ME BEFORE RESPONDENT NO.1(EXCLUDING ANNEXURE). R4(H): COPY OF THE ORDER DTD. 7/02/2005 PASSED BY RESPONDENT NO.2. /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 29831 of 2008-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of September, 2010. JUDGMENT The writ petitioner who is working as High School Assistant (Malayalam) in the school managed by the third respondent, Manager of Travancore Devaswom Board Schools, is mainly aggrieved by Ext.P5 order by which the Government granted notional seniority to the 4th respondent over her and another teacher, viz. Smt. Pushpalatha from 6.6.2002. Ext.P8 is the order by which the management implemented the same. 2. The petitioner's case, shortly stated, are the following: She has got continuous service as U.P.S.A. from 4.1.1999 apart from short spells of approved service prior to that. She was promoted and posted as H.S.A. (Malayalam) as per appointment order dated 5.6.2002 which was approved by the District Educational Officer as per Ext.P1 order. It was against a regular vacancy caused by the transfer of Smt. C.D. Satheedevi in D.B.H.S.S., Thakazhi. The 4th respondent was appointed as UPSA in a school under the Board in a leave vacancy from 12.10.1998 to 18.11.1998. She was appointed as LPSA from 30.11.1998 to 31.3.1999 and these two appointments have been approved. She was appointed in a regular vacancy wpc 29831/2008 2 of LPSA on 20.6.2000 and has continued approved service from that date. 3. The 4th respondent was initially promoted as H.S.A. (Malayalam) as per Ext.P2 order dated 25.10.2000 in D.B.H.S., Thrikkariyoor. The said vacancy arose consequent on the transfer of Smt. Rajalekshmi from that school to D.B.H.S.S., Thiruvalla. The said appointment was not initially approved by the District Educational Officer, in the light of Exts.R4(b) and R4(c) orders of the Government. It was ordered by the Government in Ext.R4(b) that “no post of H.S.A. (Malayalam) be sanctioned from the beginning of the academic year 2000-2001 reckoning the number of students learning other languages, viz. Arabic, Urdu and Sanskrit, etc.” This was clarified later by Ext.R4(c) that “existing teachers need not be disturbed.” According to the petitioner, the post of H.S.A. (Malayalam) in D.B.H.S., Thrikkariyoor was sanctioned in the staff fixation order of 2000- 2001 only to retain Smt. Rajalekshmi who was an existing teacher and therefore the benefit of those Govt. Orders are not available to the 4th respondent. Finally, by Ext.P3 order the Director of Public Instruction directed to approve her promotion as H.S.A. (Malayalam) from 25.11.2000 to 18.6.2001. Thereafter, she was reverted as U.P.S.A. with effect from 18.6.2001 and she was continuing as such. When vacancies arose in the wpc 29831/2008 3 year 2002, the petitioner was promoted as H.S.A. (Malayalam) on 5.6.2002 against a permanent vacancy and Smt. Pushpalatha was promoted as H.S.A. (Malayalam) with effect from 14.6.2002. It is therefore submitted that the notional seniority granted to the 4th respondent by the Government as per Ext.P5 cannot be supported, as the petitioner is senior to her. It is further pointed out that the order is passed without hearing the petitioner and therefore the petitioner had moved the Government again by filing Ext.P6, to reconsider the same which is pending. But, in the meanwhile, the management implemented Ext.P5 order by Ext.P8. Exts.P9 and P10 are the staff fixation orders for the years 2000 - 2001 and 2001 - 2002. 4. Shri N. Sugathan, learned counsel for the petitioner submitted that Ext.P5 order actually grants certain benefits to the 4th respondent by way of notional seniority over the petitioner and Smt. Pushpalatha and the order was passed without hearing the petitioner and therefore the same is in violation of the principles of natural justice. It is pointed out that in Ext.P4 judgment in W.P.(C) No.28207/2005 filed by the 4th respondent, actually this Court had directed the Government to dispose of Ext.P10 produced therein after hearing all affected parties and therefore the order Ext.P5, issued without hearing the petitioner, is in violation of the said judgment wpc 29831/2008 4 also. 5. The 4th respondent has filed a counter affidavit. On behalf of the first respondent also, a counter affidavit has been filed. 6. Shri Subhash Chand, learned counsel appearing for the 4th respondent raised the following contentions: The Government has only corrected a mistake committed by the management. A retirement vacancy had arisen on 31.3.2000 in D.B.H.S., Thiruvalla and the 4th respondent who alone was qualified, was liable to be promoted in that vacancy. The petitioner or Smt. Pushpalatha were not qualified to be promoted as H.S.A. (Malayalam) on that date. Actually, the Manager had decided to promote the 4th respondent. But Smt. Rajalekshmi who was working as H.S.A. (Malayalam) in DBHS, Thrikkariyoor sought for a transfer to DBHS, Thiruvalla and after transferring her in the retirement vacancy of Smt. Suvithamma, Ext.P2 order promoting the 4th respondent was issued. The 4th respondent is entitled for the benefit of Exts.R4(b) and R4(c) orders and the later order produced as Ext.R4(e). Therefore, the appointment was liable to be approved. But the Director of Public Instruction directed approval only upto 18.6.2001. The order Ext.P5 has been passed in a statutory revision petition filed by the 4th respondent against Ext.R4(h) order declining wpc 29831/2008 5 approval from 18.6.2001 passed by the Director of Public Instruction. It is not as if Ext.P5 order has been passed on a representation filed by the 4th respondent. The Management alone was party to the revision petition and the petitioner is not at all affected by the order passed as per Ext.P5. 7. It is further contended that the order Ext.P5 is passed in the year 2005 and the writ petition is filed three years thereafter, which is highly belated. Further, Ext.P5 order has been directed to be implemented by this Court in Ext.P7 judgment and the Management has only complied with the same by passing Ext.P8 order. It is therefore pointed out that the contention that the order Ext.P5 violates the principles of natural justice, cannot be supported, as it no way affects the petitioner and Smt. Pushpalatha and as 4th respondent is given only notional seniority. It is further pointed out that Smt. Pushpalatha also has not chosen to challenge it in any proceedings. 8. The crucial issue, therefore, is whether the challenge against Exts.P5 and P8 could be sustained. 9. The Government in Ext.P5 took the view that even though in Ext.R4(b) order, viz. G.O.(Ms) No.237/2000/G.Edn. dated 15.7.2000 it was ordered that “no post of H.S.A. (Mal.) be sanctioned from the beginning of the academic year 2000-2001 reckoning the number of students learning wpc 29831/2008 6 other languages, viz. Arabic, Urdu and Sanskrit, etc.” it was clarified by the later order, viz. G.O.(Ms) No.305/2000/G.Edn. dated 29.9.2000 (Ext.R4(c)), that the new principles adopted as per Ext.R4(b) will be followed only for prospective appointments, i.e. from 2000-2001 only and existing language teachers will not come under the purview of the said Govt. Order and they need not be disturbed. Again, by G.O.(Ms) No.317/01/G.Edn. dated 24.10.2001 (Ext.R4(e)), the Government ordered that the new principles adopted in the earlier Govt. Orders in the matter of sanction of the post of H.S.A. (Malayalam) will be followed for appointments made from 2001- 2002 only and the existing teachers will not come under the purview of the Govt. Order and they will not be disturbed. It was found by the Government that but for her reversion by the Management, she would have continued as H.S.A. and would have been eligible to be treated as 'existing teacher.' She is a rightful claimant under Rules 43 and 51A of Chapter XIV-A K.E.R., to be promoted in the first retirement vacancy of H.S.A. (Malayalam) to which the petitioner was appointed. The Government was of the view that it was due to the omission on the part of the management that the 4th respondent's claim was overruled, for which the management alone is responsible. Therefore, it was held that if the appointments are re- wpc 29831/2008 7 arranged in such a manner, the 4th respondent will be the seniormost among the three. Accordingly, the Government accorded notional seniority to the 4th respondent from 6.6.2002 onwards. It was also directed that the management will make good the loss sustained to the 4th respondent if she presses for it. 10. Shri Subhash Chand therefore pointed out that the Government has only directed rectification of an omission on the part of the management. Shri N. Sugathan, learned counsel for the petitioner submitted that the 4th respondent is not entitled for the benefit of Exts.R4(b), R4(c) and R4(e) orders, as they protect only the existing teachers and in this case only Smt. Rajalekshmi alone is protected. It is pointed out that as per Ext.P9 staff fixation order, three posts were sanctioned for the year 2000-2001, but by Ext.P10 order, only two posts were sanctioned in the D.B.H.S., Thrikkariyoor for the next year 2001-2002 and therefore the reversion of the 4th respondent was rightly done by the management. 11. While examining the above questions, it is important to consider various other factors also. The Government had issued G.O.(Ms) 6/02/G.Edn. dated 3.1.2002 after referring to Exts.R4(b), R4(c) and R4(e) orders. After referring to the clarifications issued as per Ext.R4(e) order, it wpc 29831/2008 8 was ordered thus in the Govt. Order dated 3.1.2002: “Now it has come to the notice of Government that many teachers have not got the approval of appointments as the staff fixation was already completed. In the above circumstances, Government are pleased to order that all educational officers will review staff fixation orders for the year 2000-2001 and approve the appointments to the eligible post vide order read as 4th paper above.” It is accordingly, in implementation of the above Govt. Order that the Director of Public Instruction, as per Ext.P3, directed the District Educational Officer to approve the appointment of the 4th respondent from 25.11.2000 to 18.6.2001. The date 25.11.2001 was later corrected as 25.10.2000. 12. The further issue is whether the Government Orders protected Smt. Rajalekshmi alone. Herein, one factor pointed out by the learned counsel appearing for the 4th respondent is relevant. Under the management, on 31.3.2000 a retirement vacancy arose when Smt. Suvithamma, H.S.A. (Malayalam) in DBHS, Thiruvalla retired from service. The 4th respondent alone was qualified and the petitioner was not qualified when the vacancy arose. The 4th respondent was entitled to be promoted in that vacancy and the management had decided to promote her also under wpc 29831/2008 9 Rule 43 of Chapter XIV-A K.E.R. But at that point of time Smt. Rajalekshmi was transferred from DBHS, Thrikkariyoor to DBHS, Thiruvalla. Had Smt. Rajalekshmi continued in DBHS, Thrikkariyoor, there would not have been any difficulty for the 4th respondent. Apart from that, since Exts.R4(b), R4(c) and R4(e) orders protect “existing teachers” in the particular circumstances of the case, they could be favourably applied to the case of the 4th respondent. The later Govt. Order, vis. G.O.(Ms) 6/02/G.Edn. dated 3.1.2002 specifically considered the case of teachers whose approval could not be made as staff fixation was already completed. The Government therein ordered that all educational officers will review staff fixation orders for the year 2000-2001 and approve the appointments to the eligible post also. Therefore, rightly the Director of Public Instruction directed approval of appointment from 25.10.2000 of the 4th respondent. 13. It is true that the 4th respondent was reverted on 18.6.2001 and later promoted on 9.1.2003 to 14.7.2003 as H.S.A. and then from 15.7.2003 to 1.6.2004 and from 2.6.2004 continuously. It is clear from Exts.R4(c) and R4(e) orders and Govt. Order dated 3.1.2002 that the Government relaxed the conditions in Ext.R4(b) order and therefore there was no prohibition for sanctioning of the post of H.S.A. (Malayalam) from the wpc 29831/2008 10 beginning of the academic year 2000-2001 reckoning the number of students learning other languages, viz. Arabic, Urdu and Sanskrit, etc. As per Ext.P9 staff fixation order, three posts were sanctioned also. Therefore, the argument of the learned counsel for the petitioner that the Government Orders protect only the post of Smt. Rajalekshmi for her continuance, cannot be sustained. As evident from Ext.P3, the Director of Public Instruction directed approval of appointment of the 4th respondent in trms of G.O.(Ms) No.6/02/G.Edn. dated 3.1.2002. 14. The next question is whether the reversion of the 4th respondent from 18.6.2001 restricts the right to challenge the later orders declining approval and ultimately in the statutory revision before the Government. Initially, the District Educational Officer, Kothamangalam declined approval of appointment which was challenged before the Deputy Director of Education, Ernakulam, who passed Ext.R4(d) order. This order was set aside by the Director of Public Instruction by Ext.P3 order, relying upon Ext.R4(e) order. Ext.R4(e) order is passed in the light of the fact that a large number of appointments made in the category of H.S.A. (Malayalam) during the year 2000-2001 have not been approved by the departmental officers in the light of Exts.R4(b) and R4(c) orders and evidently, the 4th wpc 29831/2008 11 respondent is entitled for the benefit. 15. That the 4th respondent had been continuously challenging the rejection of approval from 18.6.2001, is clear from Ext.R4(h) order passed by the Director of Public Instruction. Therein, the order granting approval only up to 18.6.2001 was upheld. That was under challenge before the Government in revision. Ext.R4(g) is the copy of the revision petition which was disposed of by Ext.P5 order. Therefore, merely because she was reverted on 18.6.2001, that will not prevent the statutory authorities and the Government from examining her right to get appointment as H.S.A. and consequent seniority and the validity of her reversion. But Shri N. Sugathan contended that by Ext.P10, the staff fixation of the school was finalised, wherein only two posts have been sanctioned and therefore the reversion is not illegal. 16. Shri Subhash Chand, learned counsel for the 4th respondent submitted that when the principles of Exts.R4(b), R4(c) and R4(e) and the G.O.(Ms) No.6/02/G.Edn. dated 3.1.2002 are applied and implemented, it can be seen that the 4th respondent was entitled for protection of those orders and therefore she could have continued as H.S.A., which aspect alone was considered by the Government in Ext.P5. Evidently, the 4th wpc 29831/2008 12 respondent's accommodation in the transfer vacancy - even though she was entitled for promotion in the retirement vacancy - by the management cannot deprive her of her rightful claim under Rule 43, as she alone was qualified as on the date of occurrence of vacancy and the petitioner and Smt. Pushpalatha were not qualified, admittedly. This is the reason why the Government in Ext.P5 took the view that the appointments can be re- arranged and the management alone is responsible for the omission. 17. The Government had passed another order as G.O.(Ms) No.135/04/G.Edn. dated 15.5.2004, after referring to Exts.R4(b), R4(c), R4 (e) and G.O.(Ms) No.6/02/G.Edn. dated 3.1.2002. The said order was passed in the light of the fact that during the year 2001-2002 also some H.S.A. (Mal.) teachers were appointed reckoning the pupils who learn other languages also and the Government therefore ordered as follows: “4. Government have examined the request in detail and found that this case is one which requires special consideration. In the circumstances Government order that the new Principles adopted in the Government Order read as 1st paper above in the matter of sanction of the post of H.S.A. (Mal) will be followed for the appointments made from 2002-2003 onwards.” In view of the above, Ext.P10 staff fixation cannot go against the 4th wpc 29831/2008 13 respondent and the same was liable to be reviewed and if so, she would have continued in the promoted post on the basis of the various Government Orders referred to above. Admittedly, the vacancies to which the petitioner and Smt. Pushpalatha were promoted, arose on 1.4.2002. The view taken by the Government that she was eligible for the benefit of Rule 43, cannot be said to be wrong. 18. Therefore, the recognition of the rights of the 4th respondent in the absence of a specific challenge against the reversion immediately after it, cannot be said to be illegal. Obviously, various Govt. Orders referred to above protect teachers who come within the parameters of those orders and the appointments/promotions were liable to be approved irrespective of the number of periods of other languages like Arabic, Urdu and Sanskrit. 19. Therefore, the rightful claim of the 4th respondent alone was recognised as per Ext.P5 order and the Government has only granted notional seniority from 6.6.2002 and the liability, if any, to make good the loss has been fastened on the management. Learned counsel for the 4th respondent submitted that the 4th respondent has not proceeded to recover anything from the management. It is not a case, therefore, that either the petitioner or Smt. Pushpaltha will be reverted by recognising the notional wpc 29831/2008 14 seniority of the 4th respondent and there will not be any disturbance for them also, which is evident from Ext.P8. By Ext.P7 judgment, this Court directed the management to comply with Ext.P5 and accordingly Ext.P8 order has been passed. Evidently, the judgment Ext.P7 has become final. Learned counsel for the petitioner submitted that Ext.P6 representation ought to have been considered by the Government. Evidently, Ext.P5 order has been passed in a statutory revision filed by the 4th respondent and there is no power of review on the Government and hence non consideration of Ext.P6 will not confer a right on the petitioner to seek disposal of the same at this distance of time. Ext.P5 order is dated 23.12.2005 and Ext.P8 is dated 6.8.2008. 20. I am, therefore, of the view that the order Ext.P5 passed by the Government cannot be said to be illegal or arbitrary or in violation of the principles of natural justice, as in Ext.P4 judgment this Court only held that the Government will hear the petitioner, the 5th respondent and anybody else who, according to the Government will be concerned in the matter. Evidently, the petitioner had no claim for a vacancy prior to 6.6.2002, as she was not qualified. Further, this Court need not issue a futile writ as no other conclusion is possible on the facts of this case. But for the wpc 29831/2008 15 accommodation given to Smt. Rajalekshmi in the retirement vacancy which arose on 31.3.2000, the 4th respondent would have continued on her rightful promotion in terms of Rule 43 of Chapter XIVA KER in the D.B.H.S., Thiruvalla itself. Therefore, it cannot be said that the granting of notional seniority to the 4th respondent really puts the petitioner in any disadvantage. The appointment of the 4th respondent was sought to be approved from 25.10.2000 onwards. But now a limited relief by way of recognising the approval from 6.6.2002 onwards with notional seniority alone has been granted. For all these reasons, I find no reason to interfere with the orders Exts.P5 and P8. The writ petition is hence dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/