IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WP(C).No. 18727 of 2004(D) --------------------------------------- PETITIONER: ------------------- MARISHA PAUL C., U.P.S.A., T.T.V.H.S.S., KAVUMKARA, MUVATTUPUZHA, RESIDING AT KAVILAKKUDIYIL HOUSE, KADATHY EAST, MARKET P.O., MUVATTUPUZHA. BY ADV. SRI.MATHEW SKARIA. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA. 4. THE MANAGER, T.T. V.H.S.S., KAVUMKARA, MUVATTUPUZHA. 5. T.S.SUDHA, U.P.S.A., T.T.V.H.S.S., KAVUMKARA, MUVATTUPUZHA. R1 TO R3 BY GOVT. PLEADER SRI. SANIL KUMAR, R5 BY ADV. SRI.V.A.MUHAMMED. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2010, ALONG WITH W.P.(C). NO.31874/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.18727/2004-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. D. DIS. B4-5476/2001 DTD. 16/07/2001 OF THE R.3. EXT.P.2: COPY OF THE ORDER NO.O ACD.A1/18358/20001 HSE DTD. 14/12/2001 THE DIRECTOR OF HIGHER SECONDARY EDUCATION. EXT.P.3: COPY OF THE ORDER NO. ET4/8387/2003/DPI/DD'S DTD. 20/05/2003 OF THE R.2. EXT.P.4: COPY OF THE ORDER NO. B4-2008/2003/K. DIS. DTD. 25/09/2003 OF THE R.3. EXT.P.5: COPY OF THE REVISION PETITION DTD. 27/10/2003 FILED BY THE PETITIONER BEFORE THE R.1. EXT.P.6: COPY OF THE JUDGMENT DTD. 11/11/2003 IN W.P.(C).NO.35403/03. EXT.P.7: COPY OF THE G.O.(RT).NO.2019/04/GE DTD. 25/05/2004. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. C.T. RAVIKUMAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) Nos.18727 of 2004& 31874 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of July, 2010 J U D G M E N T The petitioners in both these writ petitions joined the service of the 4th respondent school which is an aided school, as Upper Primary School Assistants. The petitioner in the former writ petition is the 5th respondent in the latter writ petition and their status is on the vice versa in the latter writ petition. For the sake of convenience the parties and facts are referred hereinafter with reference to the former writ petition. The petitioner and the 5th respondent have joined as UPSA on 14.10.1999 and 15.10.1999 respectively. Both of them had brief spell of service as UPSA in the said school itself prior to the aforesaid appointments. These writ petitions have been filed to redress their grievances regarding the approval of their latter appointments viz., from 14.10.1999 and 15.10.1999 respectively. The common relevant facts deducible from the rival contentions are as follows:- In the Higher Secondary section of the school a vacancy of HSST(English) became vacant and consequently one Shri. WPC.18727/2004& 31874/2004 : 2 : Francis George, who was then working as a High School Assistant in the said school, was appointed by transfer as HSST against the said vacancy with effect from 12.7.1999. However, there occurred delay in the matter of approval of such appointment. Ultimately, the appointment of Shri. Francis George as HSST(English) by transfer, was approved with effect from 12.7.1999. Till the approval of the appointment, he has been drawing salary attached to the lower post viz., the post of High School Assistant. The contention of the petitioner is that subsequently, consequent to the approval Sri. Francis George had drawn the arrears with effect from 12.7.1999. Earlier, in the vacancy occurred on account of promotion viz., appointment by transfer of the said Francis George, one Smt. M.M. Sunimol who was then working as UPSA was promoted and appointed as H.S.A with effect from 15.10.1999. Prior to the promotion of the said Simimol as H.S.A against the resultant vacancy of appointment by transfer of Sri. Francis George another vacancy of H.S.A had, in fact, occurred in the school on account of the resignation of one Smt. Aysha A.M. Against the said vacancy of H.S.A one Smt. Mini.C.N. who was then WPC.18727/2004& 31874/2004 : 3 : working as U.P.S.A was promoted and appointed as H.S.A with effect from 11.10.1999. Thus, two vacancies of U.P.S.A occurred in the school. 2. The petitioner was appointed as UPSA with effect from 14.10.1999 against the vacancy occurred on account of the promotion of Smt. Mini.C.N., and the 5th respondent viz., the petitioner in the latter writ petition was appointed as UPSA with effect from 15.10.1999 in the vacancy occurred on account of the promotion of Smt.Sunimol M.M. On account of the delay in the matter of approval of appointment of Shri. Francis George as HSST the approval of appointment of Smt.Sunimol as HSA was delayed and naturally, that resulted in non-approval of appointment of the 5th respondent. For the same reason the approval of appointment of the petitioner as UPSA in the vacancy occurred on account of promotion of Mini was also not approved. Later, the appointment by transfer of Sri. Francis George as HSST was approved with effect from 12.7.1999 as per Ext.P2 order dated 14.12.2001. Subsequently, the appointment of Smt.Sunimol was also approved as is obvious from Ext.P7. However, earlier on account of division fall in WPC.18727/2004& 31874/2004 : 4 : the year 2001-'02 the said Smt.Sunimol was reverted as UPSA with effect from 15.7.2001. In the meanwhile, the appointment of the 5th respondent was approved, but limited to 31.3.2001. The contention of the 5th respondent is that Smt.Sunimol should have been permitted to continue as H.S.A by applying the Teacher-Student ratio of 1:40 from 15.7.2001. The 5th respondent has then filed Ext.P1 revision petition (Ext.P1 in WPC No.31874/2004) before the Director of Public Instruction. In Ext.P1 the 5th respondent has also claimed seniority in service from 14.10.1999. Taking into account all the aspects of the issue, including the prior service of the petitioner and the 5th respondent, it was directed to verify the records again, to ascertain the senior 51 A claimant among the petitioner herein and the 5th respondent. Consequential direction was also issued thereunder. Thereupon, the issue was considered in terms of the direction in Ext.P2 and consequently, the 5th respondent herein viz., the petitioner in WP(C) No. 31874/2004, was ordered to be treated as UPSA with effect from 14.10.1999 in the promotion vacancy of Smt.Mini C.N. and the petitioner herein was ordered to be treated as UPSA with effect from 15.10.1999 in the promotion WPC.18727/2004& 31874/2004 : 5 : vacancy of Smt. Sunimol M.M. The earlier orders in the matter were modified to the said extent. However, when bill was drawn in tune with Exts.P1 and P2 it was returned as per Ext.P3 observing that the junior was paid. Thereupon, the 5th respondent filed WP(C) No.625/2004. In the meanwhile, the petitioner herein moved the Government against Ext.P2 order referred above. However, Government upheld Ext.P3 referred above as per Ext.P5 and later, taking note of Ext.P5 the said writ petition was disposed of directing to settle the grievances of the 5th respondent within two months. Later, Ext.P7 order was issued by the 3rd respondent to the effect that since the petitioner has not refunded the excess salary drawn, salary could not be released to the 5th respondent. In fact, in the meanwhile, the petitioner has filed WP(C) No. 18727 of 2004. WP(C) No.31874/2004 has been filed by the 5th respondent herein challenging Exts.P4 and P7 referred above and to issue writ of mandamus commanding the respondents to disburse salary from 1.4.2001. The former writ petition viz., WP(C) No.18727/2004 has been filed mainly challenging Exts.P7, P3 and P4 viz., Exts.P5, P2 and P3 respectively in WP(C) No. 31874 of 2004 and to declare that she is entitled to get WPC.18727/2004& 31874/2004 : 6 : approval of appointment as UPSA in the school with effect from 14.10.1999. 3. I do not think it necessary to deal with the question of inter se seniority between the petitioner and the 5th respondent for the purpose of deciding the claim against the vacancy that has occurred on 14.10.1999. It is because, the petitioner herein fairly concedes the seniority of the 5th respondent. The inevitable consequence is that the 5th respondent should be treated to have been appointed with effect from 14.10.1999 against the vacancy of UPSA that has arisen on account of promotion of one Mini as HSA as the said vacancy was occurred on 14.10.1999. Once the seniority among the petitioner and the 5th respondent is thus settled, there cannot be any impediment at all for approving the appointment of the 5th respondent/the petitioner in WP(C) No.31874/2004 as UPSA with effect from 14.10.1999. 4. The shifting of the 5th respondent as against the vacancy occurred in the post of UPSA on 14.10.1999 will not and cannot save the situation for the petitioner. As already noted, the other vacancy in the category of UPSA has occurred on 15.10.1999 on account of the promotion of Smt. Sunimol WPC.18727/2004& 31874/2004 : 7 : who was then working as UPSA as HSA pursuant to the promotion of Sri. Francis George (HSST(English)). As already noticed hereinbefore, there occurred a delay in the matter of approval of appointment by transfer of Sri. Francis George as HSST and consequently, the approval of appointment of Smt.Sunimol by promotion against the resultant vacancy of H.S.A. was also delayed. Admittedly, the appointment by transfer of Sri.Francis George as HSST was, later, approved on 14.12.2001 with effect from 12.7.1999 as per Ext.P2. In fact, the said Sunimol who got promotion as HSA on 15.10.1999 had been continuing in the post of HSA, as the said Sri. Francis George was all along continued in the post of HSST. However, Smt.Sunimol was subsequently, reverted from the post of HSA pursuant to the staff fixation for the year 2000-2001 with effect from 15.7.2001. It is thus evident that based on the promotion granted with effect from 15.10.1999, Smt.Sunimol continued as HSA till 14.7.2001. The said aspect is evident from Ext.P7 order dated 25.4.2004. The reason that Sri. Francis George continued to draw the salary as HSA from 12.7.1999 till 14.12.2001 cannot be a reason for not approving the appointment of Smt.Sunimol as WPC.18727/2004& 31874/2004 : 8 : HSA with effect from 15.9.1999 for the reasons that later, appointment of Sri.Francis George as HSST was approved with effect from 12.7.1999 and he had drawn the arrears pursuant to Ext.P2. That apart, it was only on 15.7.2001 that the said Sunimol was reverted as UPSA pursuant to staff fixation for the year 2001-2002. In the said circumstances, having regard to the fact that there occurred a vacancy pursuant to the promotion of Smt.Sunimol on 15.10.1999 there could not have been any difficulty in approving the appointment of the petitioner against the said vacancy. I am of the considered view that the fact that Smt.Sunimol was drawing salary attached to the post of UPSA could not have been a reason for non-consideration of the claim for approval of appointment of Smt.Marisha Paul against the said vacancy. By virtue of her subsequent approval of appointment and continuation till 15.7.2001 in the post of HSA Smt. Sunimol must have been paid the arrears of salary that is the arrears due on account of promotion. That aspect was not at all considered by the respondents. At any rate, I am of the view that the delay in the matter of approval of appointment of Smt.Sunimol as HSA on account of the delay in the matter of WPC.18727/2004& 31874/2004 : 9 : approval of appointment by transfer of Sri. Francis George as HSST could not and should not stand in the way, any further, on account of the subsequent developments as mentioned above. The question of approval of appointments of persons based on the chain of promotions was dependent upon the approval of appointment by transfer of Sri. Francis George, as HSST. Once, it was approved with effect from 12.7.1999 there could not have been any impediment at all for approving the appointment of Smt. Sunimol as HSA from 15.10.1999 and consequently, to consider the approval of appointment of the petitioner, with effect from 15.9.1999, as UPSA. It is evident from Ext.P7 that Smt.Sunimol was subsequently reverted from the post of HSA as UPSA with effect from 15.7.2001. In other words she continued in the post of HSA pursuant to her promotion as HSA with effect from 15.10.1999 till 15.7.2001. The reason assigned for her reversion of Smt.Sunimol with effect from 15.7.2001 is the fall in the student strength and the consequent division fall. Whether the said Sunimol was subsequently retained in the said post of H.S.A is not evident from records. The said position is discernible from the documents produced in these WPC.18727/2004& 31874/2004 : 10 : writ petitions. The respondent authorities also did not specifically state anything on the said aspect in the counter affidavit. That apart, evidently, the question whether Smt.Sunimol should have been or could have been continued in the post of H.S.A even after the staff fixation order for the year 2000-01 based on the reduced teacher student ratio of 1:40 was not seen examined in this case. In fact, the 5th respondent has specifically raised such a question. According to me, the entitlement of Smt.Sunimol to continue in the category of H.S.A beyond 14.7.2001 based on the teacher student ratio of 1:40 is a matter which requires consideration in the light of relevant G.O.s on the said subject as the same would decide the fate of the petitioner. Since the petitioner has stepped in to shoes of the 5th respondent the said question specifically raised by the 5th respondent requires consideration. Since the said Simimol is not a party to these writ petitions it is forth coming whether she had raised a claim for approval of her appointment with effect from 15.10.1999 till 15.7.2001 and then for continuance beyond 15.7.2001 based on the reduced teacher student ratio. This issue is also not been considered by the respondents. I am of the WPC.18727/2004& 31874/2004 : 11 : considered view that the Director of Public Instruction, the 2nd respondent is bound to consider the aforesaid questions in the light of the relevant records and relevant orders in the matter of teacher student ratio. In the circumstances, these writ petitions are disposed of as hereunder:- WPC 31874/2004 In view of the admitted position that the petitioner is senior to the petitioner in WPC 18727/2004 there will be a direction to the Manager of the School viz, the 4th respondent in WPC 18727/2004 to shift the petitioner to the vacancy of UPSA that has arisen in his school on 14.10.1999 issue necessary orders and forward the same for approval of the competent educational officer, the 3rd respondent. On receipt of such a modified order of appointment the 3rd respondent shall approve such appointment of the petitioner in view of Ext.P2, P3 and P5 in the writ petition and also in view of this judgment. The 3rd respondent shall also issue orders regarding the consequential benefits. WPC 18727/2004 In view of the discussion made above there will be a direction to the 4th respondent, the Manager of the School to WPC.18727/2004& 31874/2004 : 12 : issue modified order of appointment showing the date of appointment of the petitioner as on 15.10.1999 in the vacancy resulted on account of the promotion of Smt.Sunimol as HSA and on receipt of the same, the 3rd respondent shall consider the question of approving the appointment of the petitioner against the vacancy that has occurred on 15.10.1999. Considering the statement in the counter affidavit that Smt.Sunimol was subsequently reverted from the post of HSA as UPSA with effect from 15.07.2001 pursuant to the staff fixation order for the year 2000-01, the question whether the Sunimol M.M. could have been retained as HSA by applying the reduced teacher student ratio of 1:40 or in the light of any other relevant Government Orders shall also be looked into. The question whether she had actually retained in the post of HSA despite the staff fixation order for the year 2000-01 also to be looked into as it would decide the right of the petitioner for continuance as UPSA with effect from 15.7.2001. In case, the said Sunimol was retained as HSA beyond 15.7.2001 or could have been retained by virtue of the orders on the subject of teacher-student ratio beyond the said date the 3rd respondent shall consider the entitlement of the petitioner for WPC.18727/2004& 31874/2004 : 13 : continuance as UPSA after 15.10.2007, of course, subject to the decision based on the first direction. Orders in terms of the directions shall be passed by the 3rd respondent expeditiously, at any rate, within a period of two months from the date of receipt of copy of this judgment. Sd/- (C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A. To Judge