IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 WP(C).No. 15625 of 2006(I) --------------------------------------- PETITIONER(S): ----------------------- SEENA K.V. AGED 37 YEARS, D/O.VISWAMBHARAN, KARIPAPDATH HOUSE, KARAYAMUTTOM, THRISSUR DISTRICT, H.S.A. NATURAL SCIENCE, P.V.S. HIGH SCHOOL, PARAPPOOKKARA. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR. 3. THE DISTRICT EDUCATIONAL FFICER, IRINJALAKUDA. 4. THE MANAGER, P.V.S.HIGH SCHOOL, PARAPPOOKKARA, THRISSUR DIST. 5. THE HEADMISTRESS, P.V.S. HIGH SCHOOL, PARAPPOOKKARA, THRISSUR DIST. 6. RAJI SUNNY, D/O.M.C.SUNNY, MENACHERRY HOUSE, OLLUR P.O. THRISSUR. 7. JAIN P.A. W/O.K.J.VARGHESE, KURUTHUKULANGRA, DESCENT LANE, PALAZHY P.O. THRISSUR. 8. THE MANAGER, ST.ALOYSIOUS HIHGER SECONDRY SCHOOL, ELTHURUTH. ADV. SRI.T.M.CHANDRAN FOR R4 & R5 ADV. SRI.GOVIND K.BHARATHAN, SENIOR ADVOCATE FOR R6 ADV. SRI.MANU MOHAN FOR R6 ADV. SRI.R.V.SUJIT KUMAR FOR R6 GOVERNMENT PLEADER FOR R.1,2,3, THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15625 OF 2006 APPENDIX PETITIONER'S EXHIBITS: EXT.P1:TRUE COPY OF THE APPOINTMENT ORDER DATED 6-6-2001 ISSUED BY THE 4TH RESPONDENT. EXT.P2:TUR COPY OF THE REPRESENTATION DATED 28-6-2005 FILED BY THE PETITIONER. EXT.P3:TRUE COPY OF THE STAFF FIXATION ORDER PASSED BY THE DISTRICT EDUCATION OFFICER DATED 15-7-2005. EXT.P4:TRUE COPY OF THE GOVERNMENT ORDER G.O(MS)NO. 11/02 DATED 7-1-2002. EXT.P5:TRUE COPY OF THE REVISION FILED BY THE PETITIONER ON 13-9-2005. EXT.P6:TRUE COPY OF THE JUDGMENT IN W.P(C)NO.27466 /05 DT.23-9-2005. EXT.P7:TRUE COPY OF THE G.O(Rt)NO. 2204/06/GENERAL EDUCATION DT.30-5-2006. RESPONDENTS' EXHIBIT: EXT.R6(a):PHOTOCOPY OF THE LETTER NO.B2 7244/05 DT.13-1-2006. EXT.R6(b):PHOTOCOPY OF THE APPOINTMENT LETTER APPROVED BY THE DISTRICT EDUCATIONAL OFFICER DT. 29-7-2003. EXT.R6(c):PHOTOCOPY OF THE JOINING REPORT DT.1-6-2005 CERTIFIED BY THE 4TH RESPONDENT. EXT.R6(d):PHOTOCOPY OF THE ORDER DT.27-7-2006 OF THE 3RD RESPONDENT. // TRUE COPY// P.A. TO JUDGE K. SURENDRA MOHAN, J. ------------------------------- WP(C) NO. 15625 OF 2006 ----------------------------------- DATED THIS THE 28TH DAY OF AUGUST 2009 JUDGMENT ------------ This writ petition is filed by the petitioner challenging the order of the Government evidenced by Ext.P7 rejecting the revision filed by her. 2. The petitioner was working as an H.S.A, Natural Science in the P.V.S High School, Parapookkara,Thrissur District. The Manager of the School is the 4th respondent and the Headmistress is the 5th respondent. The 7th respondent is working as an H.S.A, Natural Science in the 4th respondent's School. On 19-9-2000 she availed leave without allowances from the School for a period of 5 years on the ground of “better prospects”. Thereafter, she joined as a regular teacher in the St.Aloysious Higher Secondary School, Elthuruth of which the 8th respondent is the Manager. She is alleged to have joined duty in the said School on 20-9-2000, the very next WP(C) NO. 15625 OF 2006 2 day after 19-9-2000 According to the petitioner by joining another aided educational institution in a permanent vacancy, the 7th respondent had forfeited her claim in respect of the post in which she was working. However, the above fact was not brought to the notice of the authorities at any time and therefore, she continued on leave without allowances as a High School Assistant in the 4th respondent School. 3. The petitioner was appointed to the leave vacancy of the 7th respondent on 6-6-2001 as per Ext.P1 order. She was appointed in the leave vacancy of 7th respondent for the period from 19-9-2000 to 18-9-2005. 4. The petitioner was not aware of the fact that the 7th respondent had accepted employment in another School. She came to know of the said fact only in 2005. Thereupon, she immediately submitted a representation to the Deputy Director of Education on 20-6-2005. There is some confusion regarding WP(C) NO. 15625 OF 2006 3 the date, since Ext.P2 which is stated to be the alleged representation shows the date as 28-6-2005. But it is clear that, it was only in 2005 that a representation was submitted by the petitioner informing the authorities of the fact that the 7th respondent had taken up employment in another School. It is further alleged that on coming to know of the representation submitted by the petitioner, the 7th respondent immediately submitted her resignation on 16-8-2005 purporting to resign from her post in the 4th respondent's School with effect from 3-10-2000. However the authorities did not accept the resignation and a formal order was passed accepting the resignation only with effect from 16-8-2005. 5. While so, on 1-6-2005 a regular vacancy arose in the School on the retirement of an H.S.A, Maths. Instead of appointing the petitioner to the said post, the same is alleged to have been converted into a post of H.S.A, English and the WP(C) NO. 15625 OF 2006 4 6th respondent was appointed in the said regular vacancy. In the above circumstances, on 2-5-2006 a division fall occurred and one division of standard 10 was abolished with effect from 15-7-2005. Consequent to the division fall, the petitioner being the H.S.A working in a leave vacancy was terminated on 12-6-2006. Since no orders were passed on the representation of the petitioner, she approached this Court by filing WP(C) No. 27466 of 2005. The writ petition was disposed of by Ext.P6 judgment on 23-9-2005 directing the Government to hear the petitioner, the 5th respondent and 3rd respondent - Manager, and also any other person who would be interested in the matter of the complaint made by the petitioner and to pass final orders within a period of 3 months from the date of receipt of a copy of the judgment. Pursuant to the judgment of this Court, the matter was heard by the Government and the revision petition of the petitioner has been rejected by an WP(C) NO. 15625 OF 2006 5 order dated 30-5-2006, evidenced in these proceedings by Ext.P7. The petitioner has approached this Court aggrieved by the rejection of her revision petition. 6. The writ petition is opposed by the 4th respondent Manager, respondents 1 and 2 and the 6th respondent who have filed separate counter affidavits in the case. 7. According to the respondents, there is no infirmity in the proceedings of the Government, Ext.P7. Though it is the admitted case of all that the 7th respondent had joined duty in another School in a regular vacancy after availing leave without allowances from the 4th respondent's School, it is contended that the above fact was not brought to the notice of the authorities at any time. Therefore the Manager as well as the departmental authorities were totally unaware of the fact that the 7th respondent had taken up employment in another School. Consequently, the 7th respondent continued to be on WP(C) NO. 15625 OF 2006 6 leave and the petitioner continued to work in her leave vacancy. It was only when the petitioner represented the matter for the first time on 20-6-2005 that the above fact came to the knowledge of the authorities. Therefore it is contended that it was not due to any fault on the part of the respondents that the appointment of the petitioner was not regularized. It is further pointed out that the petitioner was not vigilant in bringing to the attention of the authorities the said fact and pressing for some relief in the matter. Therefore the respondents cannot be blamed nor do they have any liability for the consequences. According to the respondents, on 1-6-2005 when a regular vacancy in Maths arose, the same was converted into a regular vacancy in English, in compliance with the Government order, Ext.P4. To the said vacancy, the 6th respondent was appointed. Consequent to the said appointment it is pointed out that the petitioner was not WP(C) NO. 15625 OF 2006 7 affected in any way because the petitioner was not a regular H.S.A. 8. The Counsel for the 6th respondent contends that she was appointed to a regular vacancy in English, after having converted the post of H.S.A Maths to H.S.A, English, which was in accordance with the provisions of Ext.P4 Government order. Therefore the Counsel prayed for dismissal of the writ petition. 9. I have heard the Counsel for the petitioner Sri.Rajendran and Counsel of 4th and 5th respondents Sri. T,M.Chandran and Advocate Sri. Govind K. Bharathan appearing for the 6th respondent. I have anxiously considered the contentions of the contesting parties. 10. According to the Counsel for the petitioner, the petitioner should have been regularized with effect from 3-10- 2000 for the reason that, consequent upon accepting regular appointment in another School, the 7th respondent had WP(C) NO. 15625 OF 2006 8 forfeited any claim that she had in respect of the post of H.S.A under the 4th respondent. It was not due to any fault on the part of the petitioner that the authorities did not take note of the above fact and initiate further action in the matter. Consequently the petitioner continued to work in the leave vacancy when she was actually entitled to a regular appointment. Secondly it is pointed out that on 1-6-2005 when a regular vacancy of H.S.A, Maths arose consequent to the retirement of a permanent teacher, the Manager should have accommodated the petitioner at least in the said regular vacancy. The action of the Manager in converting the said vacancy to that of H.S.A,English was absolutely uncalled for and vitiated by extraneous consideration. 11. It is admitted that though the 7th respondent had availed of leave without allowances for a period of 5 years from 3-10-2000, she had joined duty in a regular vacancy in the WP(C) NO. 15625 OF 2006 9 8th respondent's School immediately on the next day after she was relieved from the 4th respondent's School. However the 7th respondent did not choose to inform the 4th respondent of the said fact. It is asserted by the 4th respondent that he was not aware of the said fact till 2005. There is nothing on record to show that the Manager was aware of the fact that the 7th respondent had taken up employment in another School as contended by the petitioner. In fact the case of the petitioner is that she was also not aware of the said fact and came to know of the same only on 20-6-2005. Immediately, she had made a representation to the Deputy Director of Education pointing out the above fact. Therefore, it is clear that none of the parties were aware of the fact that the 7th respondent had taken up permanent employment in another School. It cannot be disputed that the petitioner continued to work in a leave vacancy without being regularized. WP(C) NO. 15625 OF 2006 10 12. Immediately on coming to know of the representation submitted by the petitioner the 7th respondent submitted her resignation on 16-8-2005. Though the same was stated to be with effect from 3-10-2005, the same was accepted only with effect from 16-8-2005. Therefore, though the vacancy of the 7th respondent would have been actually available from 3-10-2005, the same cannot be held to have arisen on the said date for the reason that the resignation of the 7th respondent was accepted only with effect from 16-8- 2005. Therefore, it cannot be said that the regular vacancy of the 7th respondent was available to the Manager at any time before 16-8-2005. 13. On 1-6-2005 a regular vacancy arose in the School on the retirement of an H.S.A, Maths. However, the Manager has converted the same into a vacancy of H.S.A, English following Ext.P4 Government order. Ext.P4 order specifically provides WP(C) NO. 15625 OF 2006 11 that such conversion of posts of H.S.As in the core subjects shall be made only in a phased manner without causing retrenchment of existing H.S.As (core subjects). Therefore, the Ext.P4 has taken care to provide that no H.S.A in the core subjects should be retrenched while implementing the policy contained therein. In the present case also, by implementing Ext.P4 Government order, no H.S.A has been retrenched. It is the case of the Petitioner that she should have been accommodated in the regular vacancy of Maths which arose on 1-6-2005 without converting the same into a vacancy of H.S.A, English. The staff pattern that was fixed as per the staff fixation order for the relevant year has been set out in Ext.P7, which shows that for the year 2005-06 one division was abolished and it was one post of H.S.A, Natural Science that was abolished. Therefore, since one post of H.S.A,Natural Science was already abolished, there was no justification for WP(C) NO. 15625 OF 2006 12 accommodating the Petitioner who is also a Natural Science teacher in the vacancy of Maths. Therefore, the finding in Ext.P7 that the finalization of staff fixation by converting the post of H.S.A, Maths to H.S.A, English was justified, cannot be found fault with. 14. The Counsel for the Petitioner has drawn my attention to G.O(Ms) No.275/99/G.Edn. dated 9-11-1999 wherein it has been ordered that the services of staff should be regularized against the first arising permanent/regular vacancy in respect of a School in the order of seniority. Therefore, it is pointed out that the petitioner should have been appointed in the retirement vacancy of H.S.A,Maths that arose on 1-6-2005. As already noted above, as per the staff fixation that was finalized for the year it was a post of H.S.A, Natural Science that had become excess and therefore the question of accommodating the petitioner in the said post was not called WP(C) NO. 15625 OF 2006 13 for. 15. My attention has also been drawn to Rules 53 and 54 of Chapter 40 of K.E.R to contend that a teacher shall not by himself terminate his service before the expiry of his term of appointment. According to Rule 48 of the said chapter no teacher shall be relieved before expiry of the term of appointment without the previous approval of the Educational Officer. Therefore it is contended that the authorities had knowledge of the appointment accepted by the 7th respondent in the other school. However, the above contention cannot be accepted for the reason that it was only on 16-8-2005 that the 7th respondent actually submitted her resignation and that too with effect from 3-10-2005. The D.E.O did not accept the resignation on the ground that there was no provision for retrospective resignation. Therefore the resignation was accepted only with effect from 16-8-2005. Consequently, till WP(C) NO. 15625 OF 2006 14 16-8-2005 the 7th respondent can be considered to have been only on leave without allowances which had been sanctioned to her. This is an unfortunate case where the petitioner should have got appointment to the permanent post had the state of affairs come to her knowledge at the appropriate time. Since the respondent cannot be found fault with for the consequence that has arisen, I do not think that the petitioner is entitled to any relief in this writ petition. 16. In view of the above the writ petition fails, and accordingly it is dismissed. No costs. K. SURENDRA MOHAN JUDGE pkk