IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 WP(C).No. 1810 of 2008(M) ------------------------- PETITIONER(S): --------------- N.UMADEVI, W/O K.PRAHLADAN, KOIPURATHU KIZHAKKETHIL HOUSE, CHERUMUKHA, AIRANIKUDI P.O., VIA. MAVELIKARA, ALAPPUZHA 689515. BY ADV. SRI.S.SUBHASH CHAND RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE SECRETARY, TRAVANCORE DEVASWOM BOARD/CORPORATE MANAGER, TRAVANCORE DEVASWOM BOARD SCHOOLS, DEVASWOM BUILDING, NANDHANCODE, THIRUVANANTHAPURAM. ADV. SRI.K.N.VENUGOPALA PANICKER, SC, TDB FOR R3 GOVERNMENT PLEADER SMT.T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/01/2009, ALONG WITH WPC NO. 3064 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 1810/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS OF RESPONDENT NO.3 BEARING NO.ROC/2653/05 EDN. DATED 22.6.2006. EXT.P2: COPY OF THE COMMON JUDGMENT DATED 30.1.2007 PASSED BY THIS HON'BLE COURT IN WPC NO.20572/2006. EXT.P3: COPY OF THE ORDER BEARING GO (RT) NO.4509/07/G.EDN. DATED 29.9.2007. EXT.P4: COPY OF THE REPRESENTATION DATED 18.10.2007 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.3. EXT.P5: COPY OF REPRESENTATION DATED 12.11.2007 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.1. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.1810 of 2008 & W.P.(C)No.3064 of 2008 --------------------------------------------- Dated this the 9th day of January, 2009 JUDGMENT The petitioners in these Writ Petitions are claimants under Rule 51A Chapter XIVA of the Kerala Education Rules, they having worked as Upper Primary School Assistants in various schools under the Travancore Devaswom Board. As Rule 51A claimants, they are entitled to preferential claim for appointment in the subsequent arising vacancies of UPSAs’ which arose subsequently. 2. Petitioners and certain others filed three Writ Petitions (W.P.(C) Nos.18346, 20572 and 20840 of 2006) before this Court alleging that the Travancore Devaswom Board, adopted a dubious illegal practice of transferring Lower Primary School Assistants as Upper Primary School Assistants, whenever vacancies arose in the posts of UPSAs and thereafter, filled up the resultant vacancies of LPSAs. It is alleged that this was done, with ulterior motives. The method adopted by the WPC Nos.1810 & 3064/2008 2 management would defeat the rightful claims of Rule 51A claimants like the petitioners. The Writ Petitions filed by the petitioners and others were disposed of as per a common judgment dated 30.1.2007 directing the Government to consider the representations submitted by the petitioners and others voicing the aforesaid grievance. 3. The Government considered the matter in detail and passed an order dated 29.9.2007. The Government held thus: “On hearing, heard both arguments and counter arguments and going through the merit of the case it may be noted that the management has resorted the practice of filling the arising vacancies of UPSA's by transferring existing LPSA's as UPSA's. This practice will actually deprive the statutory entitlement of the Rule 51A Claimant as they get preference in appointment in future vacancies. In the above circumstances, the transfer and posting of LPSA's to the vacancy of UPSA's shall not be allowed till such time the petitioners who are 51A Claimant/other legitimate claimants are absorbed in those vacancies of UPSA's. The earlier such transfer and postings LPSA post to UPSA post and shifting of such teachers from LPSA posts to UPSA posts if any carried out from the academic year 2006-07 onwards should be cancelled. It is also observed that the seniority list of 51A claimants/other legitimate claimants maintained by the management should be more transparent. A fresh seniority list should be computed after granting adequate time for WPC Nos.1810 & 3064/2008 3 filing objections from among the 51A claimants/other legitimate claimants at the earliest within a time frame schedule. Any future postings to the post of UPSA under the management of Secretary, Travancore Devaswam Board should be filled up according to the rank in the above seniority list till the last claimant are absorbed in those vacancies of Upper Primary Schools. The direction contained in the judgment read above is complied with accordingly.” 4. One Anjali, who was appointed as UPSA in one of the schools of the Travancore Devaswom Board, filed a Writ Petition (W.P.(C) No.1620 of 2008) contending that the Government did not hear her while passing order dated 29.9.2007. During the pendency of the Writ Petition filed by Anjali, the Government issued notice to Anjali, heard her, considered the matter afresh and passed a detailed order dated 4.3.2008. The relevant portion of the order dated 4.3.2008 reads as follows: “The case was examined in detail. The management has resorted the practice of filling arising vacancies of UPSA's by transferring existing LPSA's as UPSA as admitted by them. This practice will actually deprive the statutory entitlement of the Rule 51 A claimants as they get preference in appointment in future vacancies. In the above circumstances the transfer and posting of LPSA's to the vacancy of UPSA shall not be allowed. Till such time the petitioners who are 51 A claimant/ other WPC Nos.1810 & 3064/2008 4 legitimate claimants are absorbed in those vacancies of UPSA's. After considering the difficulties pointed out by the management all the appointments/ transfer of LPSA to UPSA's post and shifting of such teacher from LPSA to UPSA post carried out from the academic year 2006-07 should be reviewed and be rectified with as per rules during the ensuing general transfer of 2008-09 academic year. The seniority list of 51A Claimants/other legitimate claimants maintained by the management should be more transparent. A fresh seniority list should be computed after granting adequate time for filing objections from among the 51A claimants/other legitimate claimants at the earliest within a time frame schedule. Any future postings to the post of UPSA under the management of Secretary, Travancore Devaswom Board should be filled up according to the rank in the above seniority list till the last claimant are absorbed in those vacancies of Upper Primary Schools. The same should be carried out before the beginning of the ensuing general transfer of 2008-09 academic year. In the case of Smt.R.Anjali, UPSA, DB UPS, Vilakudy, the District Educational Officer, Attingal is directed to take necessary action to settle the grievance regarding salary as per rule immediately. The earlier order G.O.(Rt) 4509/07/G.Edn. dtd.29.9.07 is modified to the above extend.” 5. The order dated 4.3.2008 was passed subsequent to the filing of these Writ Petitions and it is produced as Ext.P6 in W.P.(C) No.1810/08. The reliefs prayed for in the Writ Petitions are mainly to issue a writ of mandamus directing respondent WPC Nos.1810 & 3064/2008 5 No.3, the secretary of the Travancore Devaswom Board to implement the order dated 29.9.2007 passed by the Government as well as to issue a writ of mandamus directing the third respondent to appoint the petitioners as Upper Primary School Assistants in the promotion vacancy of UPSAs. The order dated 29.9.2007, as already stated, is modified by the Government Order dated 4.3.2008. The directions issued by the Government in both these orders are substantially the same. 6. On 9.4.2008, a learned Single Judge of this Court passed an interim order in W.P.(C) No.1810/08 as follows: “There would be an interim order directing the third respondent to consider and pass orders on Ext.P7 expeditiously as possible at any rate within one month from the date of receipt of a copy of this order.” Ext.P7 referred to in the interim order is the representation dated 10.3.2008 submitted by the petitioner Umadevi requesting the third respondent to implement the Government Order dated 4.3.2008. 7. The interim order dated 9.4.2008 was not apparently implemented or complied with by the third respondent. I had occasion to pass an interim order dated 23.5.2008 which reads WPC Nos.1810 & 3064/2008 6 as follows: “Learned counsel appearing for the third respondent prays for time to file counter affidavit. Three weeks' time is granted to file counter affidavit. On a query, it is stated that the order dated 9.4.2008 is not complied with and that it would be complied with shortly.” Later, on 17.7.2008, I passed the following order: “Third respondent shall file counter affidavit touching upon the facts averred in the Writ Petition and also showing whether the interim order dated 9.4.2008 has been complied with.” 8. The interim orders dated 9.4.2008, 23.5.2008 and 17.7.2008 have not been complied with by the third respondent. It would appear that the third respondent filed a statement dated 30th June 2008, copy of which was handed over by the learned counsel for the petitioners, in which it is stated that in compliance with the Government Order dated 4.3.2008, the Travancore Devaswom Board had prepared a provisional list of Rule 51A claimants as on 1.6.2008. This statement is not part to the record and it is not incorporated in these Writ Petitions. 9. The Secretary of the Travancore Devaswom Board, who is the Corporate Manager of the schools run by the Travancore Devaswom Board, should have promptly taken steps WPC Nos.1810 & 3064/2008 7 to comply with the orders passed by the Government and also the interim orders issued by this Court. The Government was fully satisfied that the appointment of UPSAs by transfer from LPSAs was quite illegal. The Government Orders were not challenged by the third respondent and those orders have become final and conclusive. Even otherwise there is no case for the third respondent that the claim made by the Rule 51A claimants could be ignored as per law and fresh hands appointed, or LPSAs could be transferred as UPSAs. There is no case that the orders passed by the Government are erroneous or illegal or improper. In fact, the third respondent has not filed any counter affidavit in the case. The conduct of the third respondent is highly reprehensible. 10. In the facts and circumstances of the case, the prayer made by the petitioners is just and reasonable. The writ petitions are therefore liable to be allowed. The third respondent shall implement in letter and spirit the order dated 4.3.2008 passed by the Government (Ext.P6 in W.P.C.No.1810/08) as expeditiously as possible and at any rate within a period of three months from the date of receipt of a WPC Nos.1810 & 3064/2008 8 copy of this judgment. Till the order dated 4.3.2008 is complied with fully by the third respondent, no vacancy of UPSAs shall be filled up by the Travancore Devaswom Board except by appointing any of the Rule 51A claimants or any other rightful preferential claimants under the Kerala Educational Rules. It is also made clear that the interim order in I.A.No.4864/08 in W.P.C.No.3064/08 restraining the third respondent from filling up vacancies of Upper Primary School Assistants arising in the schools managed by third respondent by way of transferring teachers working in uneconomic schools to such vacancies so as to defeat the claims of Rule 51A claimants, shall remain in force until the directions contained in the Government Order dated 4.3.2008 are complied with. The Writ Petitions are allowed as above. K.T.SANKARAN, JUDGE csl