IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 OP.No. 8761 of 2000(R) -------------------------------- PETITIONER: ------------------- THE MANAGER, M.G.M.L.P. SCHOOL, PUNNAKODE, POOYAPPALLY.P.O., KOTTARAKKARA, KOLLAM. BY ADV. SMT.V.P.SEEMANDINI (SR.), ADV. SRI.M.R.ANISON. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM. 2. THE ASSISTANT EDUCATIONAL OFFICER, VELIYAM. 3. ELSAMMA ALEXANDER, LPSA, M.G.M.L.P. SCHOOL, PUNNAKODE, POOYAPPALLY.P.O., KOTTARAKKARA, KOLLAM. R1 & R2 BY GOVERNMENT PLEADER SRI. M.R. SABU, R3 BY ADV. SRI.M.V.THAMBAN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/11/2008, ALONG WITH O.P NOS. 9113/2001 & 22164/2002 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 8761/2000-R: ORDER ON C.M.P. NO. 14613/2000 IN O.P. NO. 8761/2000-R CLOSED 26/11/2008. SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER DTD. 26/04/94 ISSUED BY THE R.2. EXT.P.2: COPY OF THE REPORT OF THE TEACHER-IN-CHARGE OF THE SCHOOL DTD. 14/06/1994. EXT.P.3: COPY OF THE ENQUIRY REPORT OF THE DY. DIRECTOR (EDN.) KOLLAM BEARING NO.A7-34291/94 DT. 31/01/95. EXT.P.4: COPY OF THE LETTER NO.B1-14450/98 OF THE D.E.O, KOLLAM DT. 02/01/1997. EXT.P.5: COPY OF THE PROCEEDINGS OF THE PETITIONER DT. 21/01/1997 BEARING ORDER NO. 1095/95. EXT.P.6: COPY OF THE PROCEEDINGS OF THE R.2. DTD. 19/02/97 BEARING NO. F.702/94. EXT.P.7: COPY OF THE GOVT. ORDER DTD. 10/02/2000 BEARING NO. G.O. (RT). NO.566/2000. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE JUDGMENT DTD. 04/09/1997 IN O.P. NO. 20115/96 BY THE HONOURABLE HIGH COURT OF KERALA. EXT.R3.B: COPY OF THE ORDER NO. 263 DTD. 27/07/2007. //TRUE COPY// P.A. TO JUDGE. prv. S. SIRI JAGAN, J. ---------------------------------------- O.P.Nos.8761/2000,9113/2001 & 22164 OF 2002 ---------------------------------------- Dated this the 26th day of November, 2008 JUDGMENT These three original petitions relate to certain disputes between the Manager and a Teacher of an aided Lower Primary School. The Teacher is the Manager's elder brother's daughter. The issues involved in these three original petitions are the eligibility of the Teacher for promotion as Headmistress and the sustainability of the punishment of barring of increments imposed by the Manager on the Teacher which has been refused to be approved by the Educational Authorities. In view of consensus arrived at between the Manager and the teacher, I am not going into the facts and contentions in detail. But the essential facts may be stated as under. 2. The Teacher entered service of the School as a Lower Primary School Assistant on 4.6.1990. She possesses the qualifications of B.Sc and B.Ed. She also passed the departmental test in June 1997. The 2nd respondent herein also joined the School as a Lower Primary School Assistant on O.P.No.8761/2000 & con.Cases 2 4.6.1990 itself. But she possesses only SSLC with T.T.C. However, since the 2nd respondent is senior in age to the petitioner, as per the seniority list of the Teachers of the School, the 2nd respondent is senior to the petitioner. One Sri. Kesava Pillai, who was the Headmaster of the School retired on 31.5.1993. At that time, the senior- most Teacher qualified to be promoted as Headmistress was one Smt. Mariam Koshy. However, she was not appointed by the Manager as Headmistress, on the ground that the said Smt. Mariam Koshy had relinquished her right for promotion in 1989. The Manager appointed the 2nd respondent as Teacher – in- Charge from 2.6.1993 onwards. The said Smt. Mariam Koshy challenged the refusal of the Manager to promote her as Headmistress. The writ petition filed by her was dismissed. The Write Appeal No.253/1998 was also dismissed. Later pursuant to a review petition filed by Smt. Mariam Koshy, the judgment was set aside and the Writ Appeal was re-heard. By that time, the said Smt. Mariam Koshy had already attained the age of superannuation on 31.5.1998. On re-hearing of the Writ Appeal, the Division Bench directed that Smt. Mariam Koshy be notionally promoted as Headmistress with effect from 1.6.1993. In the meanwhile, the teacher involved in these O.P.No.8761/2000 & con.Cases 3 original petitions, was also prosecuting her claim for promotion as Headmistress of the School. However, in view of the judgment in favour of Smt. Mariam Koshy, who had a superior claim than the Teacher, she can now claim promotion to that post only with effect from 1.6.1998, since Smt. Mariam Koshy is entitled to hold the post notionally till her date of superannuation namely, 31.5.1998. In the meanwhile, the Manager initiated disciplinary proceedings against the Teacher. She was found guilty. The Manager proposed the punishment of removal from service which was not approved by the Educational Authorities. Thereafter, the Manager proposed the punishment of barring of increments, which was also not approved. Thereafter, the Manager challenged the orders of the Educational Authorities in that regard and ultimately the Government by Ext.P7 order in O.P.No.8761/2000 held that the Teacher is let off with a severe warning against repetition of the action constituting the misconduct in future. The claim of the Teacher for promotion was also allowed by the Educational Authorities which was also taken in appeal and revision by the Manager in which also the Manager lost since ultimately the Government by Ext.P6 order in O.P.No.22164/2002 upheld the claim of the Teacher for O.P.No.8761/2000 & con.Cases 4 promotion as Headmistress. The Manager is challenging the orders of the Government in the disciplinary proceedings and on the claim for promotion by the Teacher in O.P.Nos.8761/2000 and 22164/2002. The Teacher has filed O.P.No.9113/2001 seeking implementation of the order of the Government directing the Manager to promote the Teacher as Headmistress. 3. After elaborate hearing, because of the close relationship between the Manager and the Teacher and taking into account the fact that admittedly on the relevant date, as per the judgment of the Full Bench in S.N.D.P. L.P. School V. Roy [2006(4) KLT 497], the Teacher is entitled to be promoted as Headmistress with effect from 1.6.1998, this Court put it to the learned Counsel for the Manager as to whether the Manager is willing to settle all disputes by appointing the Teacher as Headmistress with effect from 1.6.1998. Today the learned counsel for the Manager submits that the Manager is agreeable to that course of action. In the above circumstances, recording the said consensus, these three original petitions are disposed of as follows: The Manager shall forward an appointment order to the jurisdictional Assistant Educational Officer promoting the O.P.No.8761/2000 & con.Cases 5 Teacher namely, Smt. Elsama Alexander as Headmistress of the School with effect from 1.6.1998 within a period of two weeks from the date of receipt of a copy of this judgment. The concerned A.E.O. shall approve the said appointment with effect from 1.6.1998. If any charge allowance had been given to the other teacher whose appointment as Teacher-in-Charge has been approved, shall not be recovered from her. The Teacher so promoted would be entitled to salary in the scale of pay applicable to Headmasters from the date when she completes eligibility for Headmaster's scale. Till that date her promotion would be notional without any monetary benefits. The Manager shall permit the Teacher to take charge as Headmistress within a period of two weeks from today. Arrears of salary due to the teacher from the date when she becomes eligible for Headmaster's scale shall be paid within one month from the date of approval of the appointment. S. SIRI JAGAN, JUDGE Acd O.P.No.8761/2000 & con.Cases 6