IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 WP(C).No. 18880 of 2009(D) ---------------------------------------- PETITIONER(S): ------------------------- K.A.HANZA, AGED 55 YEARS, W/O.RAVEENDRAN, HEADMISTRESS, S.B.H.S. KURUMPILAVU, THRISSUR DISTRICT. BY ADV. MR.M.SASINDRAN RESPONDENT(S): ------------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, THRISSUR. 2. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 3. STATE OF KERALA-REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 4. THE MANAGER, SWAMI BHODHANANDA HIGH SCHOOL, KURUPILAVU, THRISSUR DISTRICT. 5. K.M.ANITHA, H.S.A., S.B.H.S. KURUMPILAVU, THRISSUR DISTRICT. BY GOVT. PLEADER MR.K.RAMESH BY ADV. MR.GEORGE POONTHOTTAM FOR R4 MR.M.V.BOSE FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.18880/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE GOVERNMENT ORDER DT. 6.3.69. P2:- COPY OF THE JUDGMENT DT. 26.7.91 IN OP. 7535/91. P3:- COPY OF THE ORDER DT. 5.10.91. P4:- COPY OF THE PROCEEDINGS DT. 8.1.92 OF THE HEADMASTER-IN-CHARGE INTIMATING THE JOINING OF THE PETITIONER. P5:- COPY OF THE FORWARDING LETTER ALONG WITH THE APPOINTMENT ORDER AND THE OTHER REQUISITE DETAILS. P6:- COPY OF THE COMMUNICATION DT. 22.7.07 ISSUED BY THE IST RESPONDENT ATO THE MANAGER. P7:- COPY OF THE COVERING LETTER DT. 10.9.07. P7(a):- COPY OF THE SENIORITY LIST AS ON 1.1.07 FORWARDED BY THE MANAGER TO THE IST RESPONDENT. P8:- COPY OF THE COMMUNICATION DT. 22.9.07 ISSUED BY THE IST RESPONDENT TO THE MANAGER. P9:- COPY OF THE JUDGMENT DT. 17.7.08 IN WPC. 30673/07. P10:- COPY OF THE ORDER DT. 16.9.08 ISSUED BY THE IST RESPONDENT. P11:- COPY OF THE JUDGMENT DT. 26.2.09 IN WPC. 31543/08. P12:- COPY OF THE STATEMENT SUBMITTED ON BEHALF OF THE PETITIONER BEFORE THE IST RESPONDENT. P13:- COPY OF THE ORDER NO.B5-9943/08 DT. 13.5.09 OF THE IST RESPONDENT DISTRICT EDUCATIONAL OFFICER. P14:- COPY OF THE PROCEEDINGS OF THE MANAGER DT. 22.5.09 PROMOTING THE 5TH RESPONDENT AS HEADMISTRESS AND SHIFTING THE PETITIONER AS H.S.A. P15:- COPY OF THE JUDGMENT DT. 8.6.09 IN WPC. 14322/09. P16:- COPY OF THE STATEMENT FILED BY THE PETITIONER BEFORE THE IST RESPONDENT ON 16.6.09. P17:- COPY OF THE ORDER DT. 29.6.09 ISSUED BY THE IST RESPONDENT. P18:- COPY OF THE ENVELOPE IN WHICH THE ORDER DT. 29.6.09 WAS SENT TO THE PETITIONER. P19:- COPY OF THE ATTENDANCE CERTIFICATE ISSUED BY the BLOCK PROGRAMME OFFICER, SARVA SHIKSHA ABHAYAAAN. W.P.(C) NO.18880/09 P20:- COPY OF THE TREASURY BILL BOOK SIGNED BY THE PA IN THE DEO OFFICE WHICH WOULD SHOW THAT THE BILL WAS PASSED ON 3.7.09 AND THE CASH WAS RECEIVED ON 6.7.09. P21:- COPY OF THE RELEVANT EXTRACT FROM THE CASH BOOK OF THE SCHOOL. P22:- COPY OF THE COMMUNICATION DT. 3.7.09 ISSUED BY THE MANAGER AND RECEIVED BY THIS DEPONENT ON 6.7.09 AT. 2.30 P.M. P23:- COPY OF THE MEMO DT. 7.7.09 ISSUED BY THE MANAGER TO THE PETITIONER. P24:- COPY OF THE REPLY SUBMITTED BY THIS DEPONENT TO THE EXT.P23 MEMO. RESPONDENT'S EXHIBITS R4(a):- COPY OF THE APPOINTMENT ORDER DT. 23.5.09. R4(b):- COPY OF THE ORDER NO.B5/3454/07/K.DIS. DT. 29.6.09. R5(a):- COPY OF THE ORDER DT. 30.3.83 PASSED BY THE GOVERNMENT. R5(b):- COPY OF THE APPOINTMENT ORDER DT. 9.7.91 WITH THE ENDORSEMENT OF APPROVAL. R5(c):- COPY OF THE SENIORITY LIST AS ON 1.1.07. R5(d):- COPY OF THE PETITIONER'S APPOINTMENT AS HEADMISTRESS WITH THE ENDORSEMENT. R5(e):- COPY OF THE ORDER DT. 3.7.09 ISSUED BY THE MANAGER, S.B.H.S. KURUMPILAVU. R5(f):- COPY OF THE JOINING REPORT. R5(g):- COPY OF THE TRANSFER CERTIFICATE ISSUED TO SMIJITH C.T. R5(h):- COPY OF THE LETTER DT. 6.7.09 ISSUED TO 5TH RESPONDENT IN WP(C). R5(i):- COPY OF THE SECONDARY SCHOOL LEAVING CERTIFICATE DT. 6.7.09. R5(j):- COPY OF THE LETTER DT. 6.7.09. R5(k):- COPY OF THE LETTER DT. 6.7.09 ADDRESSED TO THE ELECTORAL OFFICER, ANTHIKKAD BLOCK PANCHAYATH. TRUE COPY P.A. TO JUDGE TSS T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.18880/2009-D ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 22nd day of July, 2009 J U D G M E N T The petitioner herein is aggrieved by Ext.P17 order passed by the District Educational Officer whereby the fifth respondent is approved as Headmistress with effect from 23/05/2009. The present dispute has got a chequered career and it is for the fourth time in a row that this Court had to intervene only because of the fact that the District Educational Officer has not correctly understood the directions issued by this Court from time to time. It is unfortunate that inspite of various directions issued by this Court, the District Educational Officer has committed the very same mistake that was adversely commented upon by this Court earlier. 2. The petitioner was appointed as Headmistress of the school as per Ext.P5 order dated 01/04/2007, issued by the Manager in a retirement vacancy which arose on 31/03/2007. The Manager then took steps to get the appointment approved and, accordingly, along with a copy of the order of appointment, the seniority list, which was published, was forwarded. Since the said list was of the year 2001, the District Educational Officer directed the Manager to forward a Seniority list as on 01/01/2007, Ext.P6 is W.P.(C). No.18880/2009 -:2:- the said letter. The said seniority list is Ext.P7(a). Ext.P7 is the forwarding letter of the Manager. Going by Ext.P7(a), the petitioner is serial No.3 and the fifth respondent is Sl.No.7. The date of appointment of petitioner as H.S.A is 01/07/1982 and that of the fifth respondent is 09/07/1991. 3. By Ext.P8, the District Educational Officer directed the Manager to prepare a fresh seniority list signed by all the teachers. While directing the Manager to produce such a list, it was observed that the fifth respondent is senior and is entitled to be placed senior to the petitioner. This was quashed by this Court in Ext.P9 judgment. The operative portion of the judgment is extracted below: “Accordingly, the Writ Petition is allowed and Ext.P8 order is quashed. The District Educational Officer shall consider the case afresh and pass fresh orders after affording an opportunity of being heard to the petitioner, the fifth respondent, the Manager and any other affected party, as expeditiously as possible and, at any rate, within two months. The petitioner as well as the fifth respondent and any other person who is interested would be entitled to produce such other materials and documents in support of their respective W.P.(C). No.18880/2009 -:3:- contentions.” 4. Thereafter, the District Educational Officer passed Ext.P10 order. The said order was challenged before this Court by the petitioner which resulted in Ext.P11 judgment. After referring to the contentions raised by the parties, Ext.P10 was quashed. The operative portion of the judgment is extracted below:- “In these circumstances, I quash Ext.P10 and direct the District Educational Officer to consider whether Ext.P7(a) seniority list can be approved with or without modification. The Director shall issue notice to the persons who have objected to Ext.P7(a) and also the petitioner and respondents 4 and 5, hear them afresh and pass final orders in the matter. This shall be done within one month from today. Till then, status quo as on today shall continue. Approval of the petitioner's appointment as Headmistress would depend on the decision thus taken by the District Educational Officer. The contentions of the parties on the merits are kept open.” 5. Again the petitioner filed Ext.P12 statement before the District Educational Officer in support of her case. By Ext.P13 dated 13/05/2009, W.P.(C). No.18880/2009 -:4:- the matter was again disposed of by the District Educational Officer without stating detailed reasons as to why the fifth respondent should be given seniority. The operative portion of the order is extracted below:- “In this context it is hereby concluded that Ext.P7 the seniority list already submitted cannot be considered without modification. As per Chapter XIV Rule 37(1) KER Smt.K.M.Anitha having continuous service in the school w.e.f. 09/07/1991 is senior to Smt.K.E.Hanza.” 6. The District Educational Officer did not approve the seniority list and did not exercise the power under Rule 38 of Chapter XIV A K.E.R. No reason is shown as to why the fifth respondent is given seniority except by relying upon Rule 37(1) and no reason is shown as to why the objections stated by the petitioner are overruled. The merits of her claim have not been adjudicated. Again the matter was considered by this Court in detail by Ext.P15 judgment. In paragraph (7) it was held that “Even though the learned counsel for the fourth respondent vehemently contended that the District Educational Officer has attempted to perform the said statutory function in Ext.P13, I am not satisfied that such a consideration was made by the District Educational Officer while passing Ext.P13 order. The points in dispute have not entered the realm of proper reasoning and that vitiates W.P.(C). No.18880/2009 -:5:- the conclusion that is arrived at in Ext.P13.” In paragraph (8) of the judgment, this Court finally held thus:- “8. I am therefore of the view that the matter will have to be reconsidered by the same authority. It is submitted by the parties that the said course would be more efficacious one in the light of the fact that the seniority list is yet to be approved by the District Educational Officer. In that view of the matter, Ext.P13 is set aside. The first respondent will reconsider the matter and pass fresh orders after adverting to the contentions of the parties and in exercise of the power under Rule 38 of Chapter XIV A KER. The District Educational Officer will hear the petitioner, the Manager, the fifth respondent and any other teachers who may have filed objections to the seniority list or who wishes to be heard in the matter. The first respondent will accordingly finalise the seniority list and depending upon the outcome of the same, will take the issue of approval of appointment of the Headmistress and pass orders in regard to the approval of the said W.P.(C). No.18880/2009 -:6:- appointment. The parties will appear before the District Educational Officer on 16/06/2009 and final orders will be passed on or before 30th June 2009. Since Ext.P13 order stands set aside, the appeal Ext.P15 will stand struck off.” 7. The petitioner had filed Ext.P16, a detailed statement before the District Educational Officer in support of her contentions. It is averred by the petitioner that apart from the petitioner and the fifth respondent two other teachers had also participated in the hearing on 16/06/2009. Ext.P17 is the order passed by the District Educational Officer which is challenged in this writ petition. After referring to various judgments rendered by this Court earlier, the District Educational Officer entered a finding that the Seniority List has to be prepared according to Rule 37(1) of Chapter XIV A K.E.R as instructed previously. The operative portion of the order is extracted below:- “Accordingly, the Manager was directed to produce a seniority list as on 01/01/2007 prepared in accordance to Chapter XIV Rule 37(1) KER. The seniority list thus submitted by the Manager is hereby provisionally approved as per Rule 37(1) Chapter XIV W.P.(C). No.18880/2009 -:7:- KER. In view of this seniority list the appointment of Smt.K.M.Anitha the senior most H.S.A as Headmistress w.e.f 23/05/2009 onwards is also hereby approved.” Thus, it is seen that the Manager was directed to produce a fresh seniority list and which has been “provisionally approved” by the District Educational Officer. 8. The learned counsel for the petitioner submitted that Ext.P7(a) is the seniority list that was produced by the Manager when the order of appointment of the petitioner was sought to be approved. The parties had been engaging the attention of the District Educational Officer with regard to the position assigned to them in the seniority list. It is therefore submitted that the District Educational Officer has acted wrongly, in directing the Manager to produce a fresh seniority list without the knowledge of the parties concerned and granting approval of the same without allowing an opportunity to the parties to contest the seniority position. It is further pointed out that none of the exercises, directed by this Court, to be complied with by the three judgments referred to above, have been borne in mind by the District Educational Officer while passing Ext.P17 order. It is also submitted that the lacuna that was existing in the various orders passed by the District Educational Officer still permeates in W.P.(C). No.18880/2009 -:8:- it. No reason is stated in Ext.P17 as to why the fifth respondent is held as senior to the petitioner. It is submitted that an order which is not supported by cogent reasons cannot be said to be a legally passed one, especially in the light of the statutory function, expected to be performed by the District Educational Officer which was emphatically declared by Ext.P15 and other judgments. 9. The fourth and fifth respondents have filed separate counter affidavits. The fifth respondent along with the counter affidavit has produced Ext.R5(c) seniority list which is said to have been approved by the District Educational Officer in the operative portion of Ext.P17 order. It is further pointed out that Ext.R5(c) is prepared by the Manager pursuant to Ext.P13 and, therefore, the same was properly considered by the District Educational Officer. This argument by the learned counsel for the fifth respondent is supported by the learned counsel for the Manager also. 10. The question is whether the directions issued by this Court have been properly understood and implemented while rendering Ext.P17 order. Shortly stated, such an exercise has not been done by the District Educational Officer. The seniority list that was produced by the Manager along with Ext.P7 is Ext.P7(a) wherein the petitioner is shown as senior. Going by Rule 38 of Chapter XIV A KER, the District Educational Officer W.P.(C). No.18880/2009 -:9:- has to finalise and approve the list with or without change. The said provision is extracted below:- “38. (1) The Assistant Educational Officer, the District Educational Officer, the Deputy Director (Education) and the Director as the case may be may after considering the representations if any, and after hearing the parties, if they deem it necessary, finalise and approve the list with or without change and the list so approved shall be final. (2) An appeal shall lie to the District Educational Officer the Deputy Director (Education), the Director and the Government respectively against an order passed by the Assistant Educational Officer, District Educational Officer, Deputy Director (Education) and Director under sub-rule (1). Provided that no appeal shall be entertained after the expiry of a period of one month from the date of receipt of the order.” 11. In that view of the matter, if at all any modification is to be done in the matter, that has to be done in respect of Ext.P7(a) seniority list. W.P.(C). No.18880/2009 -:10:- Approval could be granted with or without modification. If the District Educational Officer chooses to modify the list he has to state reasons also. Ultimately, the parties are entitled to know their position in the seniority list. If at all any change is made or modification is to be made by the District Educational Officer that can be done only after proper reasons are stated in support of it. In Sub-rule 1 of Rule 38 of Chapter XIV A KER, it is clearly mentioned that the District Educational Officer, Deputy Director or the Director as the case may be, has to consider the representations after hearing the parties, finalise and approve the list with or without change. That means, a decision has to be arrived at, in respect of the competing claims of the parties in accordance with the relevant rules and after following the relevant rules and after following the principles of natural justice. Another defect is there in Ext.P17. The new seniority list Ext.R5(c) is “provisionally approved”, that too under Rule 37(1). The relevant rule is Rule 38. There is nothing like granting a “provisional approval” as per the said rule. 12. In this case, evidently Ext.R5(c) a revised seniority list has been forwarded by the Manager. It is submitted that the same is in accordance with the directions in Ext.P13 order. But Ext.P13 has been quashed by Ext.P15 judgment, and therefore, it cannot survive. Apart from W.P.(C). No.18880/2009 -:11:- that, going by Ext.P8 letter issued by the District Educational Officer, the Manager can produce a seniority list only after getting signatures of all the teachers concerned and that test is not satisfied in Ext.R5(c). Further, when the seniority list Ext.P7(a) was pending consideration and when the matter is hotly contested before the District Educational Officer, the approval of seniority list which is produced as Ext.R5(c) is not justified. The said list was kept in dark evidently as the petitioner had no knowledge about it. The directions earlier issued by this Court by respective judgments were to consider the objections of the parties regarding Ext.P7(a) list. Hence Ext.R5(c) has no legs to stand evidently. The hearing of the matter was held on 16/06/2009, before the District Educational Officer, going by Ext.P17. Going by the counter affidavit of the fifth respondent, Ext.R5(c) is seen produced by the Manager on 24/06/2009. It was not circulated among teachers obviously. 13. In that view of the matter, Ext.P17 is quashed. The consequential orders passed as per Exts.R4(a) and R4(b) approving the fifth respondent as Headmistress and rejecting the approval of appointment of the petitioner as Headmistress are also quashed as they are only dependent orders. The District Educational Officer is directed to pass a fresh reasoned order after hearing the parties including the petitioner and the fifth W.P.(C). No.18880/2009 -:12:- respondent and any other teachers who are interested in the matter in accordance with law. The District Educational Officer will bear in mind the findings and the directions issued by this Court in various judgments including Ext.P15 and herein while passing order in the matter. Appropriate action shall be taken and orders shall be passed within a period of three weeks from the date of receipt of a copy of the judgment. The petitioner will be allowed to continue as Headmistress in the meanwhile. 14. Any order thus passed if adverse to the petitioner or to the fifth respondent, will be communicated by the District Educational Officer, properly to them, as it is pointed out that the orders approving the appointment of the fifth respondent and rejecting the approval of appointment of the petitioner were not communicated to her. Therefore, if any adverse order is passed against the petitioner, it will be implemented only after one week of service of the copy of the order. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms