IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 WP(C).No. 22367 of 2008(K) -------------------------- PETITIONER(S): ------------------ 1. R. ANANDAN, AGED 77, S/O. RAMAN, MANAGER, VIVEKANANDA MEMORIAL LP SCHOO0L, MARUTHADY, KOLLAM. 2. G. BHARATHY AMMA, HEADMISTRESS (RTD.), VIVEKANANDA MEMORIAL L.P SCHOOL, MARUTHADY KOLLAM, (RESIDING AT K.V.N. NIVAS P.O PUTHUKKAD, CHAVARA, KOLLAM) BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (L) DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE ASSISTANT EDUCATIONAL OFFICER, KOLLAM. 3. L. SANTHA, LOWER PRIMARY SCHOOL ASSISTANT (RETD.), VIVEKANANDA MEMORIAL LP SCHOOL, MARUTHADY, KOLLAM (RESIDING AT SANTHADALE, P.O. ASHRAMAM, KOLLAM. 4. P. LALITHAMBIKA, LOWER PRIMARY SCHOOL ASSISTANT (RETD.), VIVEKANANDA MEMORIAL LP SCHOOL, MARUTHADY, KOLLAM (RESIDING AT PADMAKESH, KAVANAD, KOLLAM. ADV. SRI.M.V.THAMBAN FOR R3 SRI.M.V.BOSE FOR R4 GOVT.PLEADER SRI.DILEEP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2009, ALONG WITH WPC NO. 9059 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.22367/08 APPENDIX PETITIONERS EXHIBITS EXT.P1: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP NO.14887/1995 EXT.P2: TRUE COPY OF the GO(RT) NO.2317/98.GE. OF THE GOVERNMENT. EXT.P3: TRUE COPY OF THE APPOINTMENT ORDER. EXT.P4: TRUE COPY OF THE GO(RT) NO.471/99/GE OF THE GOVERNMENT. EXT.P5: TRUE COPY OF THE GO(MS) NO.170/78/G.EDN. OF THE GOVERNMENT. EXT.P6: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP NO.3278/1999 EXT.P7: TRUE COPY OF THE INTERIM ORDER OF THIS HON'BLE COURT IN WA NO.1175/2006. EXT.P8: TRUE COPY OF THE HEARING NOTE OF THE 1ST PETITIONER. EXT.P9: TRUE COPY OF THE -DO- 2ND PETITIONER. EXT.P10: TRUE COPY OF THE -DO- 2ND PETITIONER. EXT.P11: TRUE COPY OF THE GO(RT) NO.3114/08/G.EDN. OF THE GOVERNMENT. EXT.P12: TRUE COPY OF THE GO(MS) NO.61/81/G.EDN.OF THE GOVERNMENT. EXT.P13: TRUE COPY OF THE GO(MS) NO.151/82/G.EDN. OF THE GOVERNMENT. EXT.P14: TRUE COPY OF THE DECISION REPORTED IN 1968 KLT 556. EXT.P15: TRUE COPY OF THE JUDGMENT IN WA NO.1175/06 OF THIS HON'BLE COURT. EXT.P16: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WA NO.423/1989. WPC NO.22367/08 -2- EXTS OF R3 EXT.R3(a): TRUE COPY OF THE APPROVED SENIORITY LIST DATED 1.1.94. EXT.R3(b): TRUE COPY OF THE APPROVED SENIORITY LIST DATED 1.4.1997. EXTS.OF R4 EXT.R4(a): TRUE COPY OF GO(RT) NO.3826/91/C.EDN. DATED 23.12.1991. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NOS. 22367 OF 2008 & 9059 OF 2009 ===================== Dated this the 16th day of September, 2009 J U D G M E N T In WP(C) No.22367/08, what is under challenge is Ext.P11, GO(Rt) No.3114/08/G.Edn. dated 8/7/2008. The 3rd respondent therein, who is the beneficiary of Ext.P11 has filed WP(C) NO.9059/09 praying for implementation of Ext.P11. 2. For convenience, I shall be referring to the facts as stated in WP(C) No.22367/08. 3. The first petitioner is the Manager of an Aided School and the second petitioner is the retired Headmistress. The second petitioner and the 4th respondent therein Smt.P.Lalithambika were appointed in the school of which the first petitioner is the Manager, as untrained LPSAs on 4/6/64. It is stated that both were deputed for training in 1966. 4. While so, on 10/7/67, the 3rd respondent Smt.Santha was appointed as a teacher. It is to be stated that Smt.Santha had all the qualifications specified in Rule 4 of Chapter XXX1 KER. Second petitioner passed TTC on 3/6/68 and the 4th respondent passed TTC on 3/9/68. It is also stated that on the second WPC Nos.22367/08 & 9059/09 :2 : petitioner passing TTC, she was appointed as a trained teacher in July 1968 itself. 5. While the teachers were thus continuing in the school, it is seen that the 4th respondent was appointed as Headmistress in a vacancy which arose on 31/3/94 and she also retired from service on 31/10/95. Subsequently, a vacancy in the category of Headmaster arose on 01/4/98 and the first petitioner appointed the second petitioner to that vacancy. That was disputed and finally by Ext.P2 order issued by the 1st respondent, it was held that the second petitioner is senior to the 3rd respondent. Ext.P2 order was challenged before the Government again and in Ext.P4 order passed by the Government, it was held that the 3rd respondent herein is senior to the second petitioner and the 4th respondent. 6. That order was challenged by the second petitioner and the 4th respondent in OP Nos.22607/08 and 3278/99. Meanwhile, the second petitioner whose appointment of Headmistress was also approved by Ext.P3, retired from service on 31/3/1999. The 3rd respondent also retired from service on the same day as a LPSA. The original petitions were heard and WPC Nos.22367/08 & 9059/09 :3 : disposed of by Ext.P6 judgment rendered on 13/12/05 quashing Ext.P4 on the ground that the same was issued without notice or hearing affected parties. Accordingly, Government was directed to reconsider the matter in accordance with law. 7. The 4th respondent challenged Ext.P6 judgment by filing WA 1175/06, in which Ext.P7 order was passed directing that orders be passed as directed in the judgment. Accordingly, Government considered the matter, and by Ext.P11 order rendered on 8/7/08, the 3rd respondent was held to be senior. The relevant portion of Ext.P11 reads as under: Regarding seniority dispute the date of appointment of Smt.Bharathy Amma was approved as fully qualified teacher with effect from 6/1968 (Bharathy Amma passed TTC in March 1968). The date of appointment of Smt.P.Lalithambika was approved as fully qualified teacher from 9/1968 as she could pass TTC Examination by 9/1968 only. On the other hand Smt.L.Santha has commenced her service as a fully qualified LPSA from 7/1967. As per G.O(MS) 61/81/G.Edn dated 6.4.1981 and G.O(MS) 151/82/G.Edn dated 19.10.82 the untrained service can be considered only for the purpose of higher grade and not for fixing seniority for promotion. Promotion to the higher post can be decided with respect to seniority and sufficient qualification. The date of qualified continuous service of Smt.L.Santha is from 10.7.1967 and as such as per Rule 37(1) of Chapter XIV A KER Smt.L.Santha is the legitimate claimant for the post of Headmistress in VM LPS Maruthady which arose on 1.4.1998. It is crystal clear that Smt.L.Santha WPC Nos.22367/08 & 9059/09 :4 : is senior qualified teacher to Smt.G.Bharathy Amma and Smt.P.Lalithambika. Moreover as the date of birth of Smt.L.Santha being 9.2.1944 and having completed 50 years of age as on 8.2.1994. As she is eligible for permanent exemption from acquiring account test qualification with effect from 9.2.94. Smt.L.Santha was fully qualified and entitled to get appointed as Headmistress in VMLPS Maruthady on the occurrence of vacancy ie on 1.4.98. In this circumstances, Government are pleased to promote Smt.L.Santha as Headmistress in VMLPS, Maruthady, Kollam with effect from 1.4.1998 (ie the date of occurrence of which a vacancy of Headmistress in the school) 8. It is challenging Ext.P11, WP(C)No.22367/08 is filed. A reading of the aforesaid extracted portion of Ext.P11 shows that reference is made to Rule 37(1) of Chapter XIV A KER and Exts.P12 and P13 Government orders. The contention raised by the counsel for the petitioner is that while issuing Ext.P11, the Government have omitted to take into account Ext.P5 GO(MS) No.170/78/G.Edn dated 7th of December, 1978, clause (i) of which reads as under: (i) For purposes such as seniority, pension, leave, weightage and all similar service matters other than probation and increment those untrained teachers will be treated as regular teachers with effect from the date of joining duty. 9. It is stated that if the benefit of Ext.P5 is given, the WPC Nos.22367/08 & 9059/09 :5 : second petitioner is entitled to count her seniority as held in Ext.P2 and therefore Ext.P11 according to the second petitioner is illegal. 10. In so far as the 4th respondent Smt.Lalithambika is concerned, although originally she was also a party to the dispute in these cases, as already stated, against Ext.P6 judgment, she had filed WA No.1175/06. That Writ Appeal was disposed of as per Ext.P15 judgment rendered by a Division Bench of this Court, where taking note of the fact that she was promoted as Headmistress in the vacancy which arose on 31/3/94 and that she had already retired on 31/10/95, it was held that she will be entitled to get all service benefits as she had retired as Headmistress after working in that post. This judgment has become final. Therefore, in view of Ext.P15 judgment, the dispute is confined to the second petitioner and the 3rd respondent and the result of this litigation cannot affect the 4th respondent's entitlements in any manner. 11. Counsel for the 3rd respondent Smt.Santha contradicts the counsel for the petitioners. According to him, the qualification for LPSA has been laid down in Rule 4 of Chapter XXX1 KER and WPC Nos.22367/08 & 9059/09 :6 : that TTC is an essential qualification. It is contended that admittedly second petitioner was not a qualified teacher at the time when she was appointed. Further, he also submits that in view of the provisions contained in Rule 37(1) of Chapter XIVA KER, seniority of a teacher shall be decided with reference to the length of continuous service in that grade, provided he is duly qualified for the post. It is stated that only with the acquisition of TTC, did the second petitioner become duly qualified for the post of LPSA and therefore the provision in Ext.P5 Government order relied on by the second petitioner is against the rule and is therefore unenforcible. It is stated that so reckoned, the 3rd respondent is senior to the second petitioner and if that be so, the view taken by the Government in Ext.P11 is unexceptionable. 12. I have considered the submissions made by the counsel for the petitioners and the 3rd respondent. 13. It is not a matter of dispute that at the time of initial appointment, the second petitioner was an untrained teacher. She acquired training qualification only in June, 1968 and was appointed as a trained teacher only in July, 1968. However, in so far as the 3rd respondent is concerned, she was qualified in all WPC Nos.22367/08 & 9059/09 :7 : respects and when she was appointed on 10/7/1967. As she had satisfied the qualifications laid down in Rule 4 of Chapter XXX1 KER, in view of the provisions contained in Rule 37(1) of Chapter XIVA KER, the 3rd respondent is entitled to count her seniority from the date on which she commenced her continuous service, viz., 10/7/1967. 14. The only question is whether Clause (i) of Ext.P5 will make any difference on the seniority position. It is the settled position of law that an executive order cannot run counter to the statutory provisions. Going by the provisions contained in Rule 37 (1) of Chapter XIVA KER, the provision contained in Clause (i) of Ext.P5 assigning seniority reckoning the period when a person has rendered service as an untrained teacher, cannot be accepted as a valid provision. Therefore, Clause (i) of Ext.P5, being contrary to Rule 37(1) is an unenforcible provision and no right can be claimed on that basis. If that be so, the view taken by the Government in Ext.P11 does not call for any interference. 15. As a consequence thereof, the 3rd respondent is entitled to be promoted as Headmistress in the vacancy, which arose on 01/04/98 to which the second petitioner was appointed. WPC Nos.22367/08 & 9059/09 :8 : However it is evident that the second petitioner was appointed as Headmistress, which was approved and she retired from that post on 31/3/99. Therefore, it will be too harsh to order recovery of any amount, which has already been paid to her. However, the pensionary benefits of both the second petitioner and the 3rd respondent will have to be reworked, giving the 3rd respondent the benefit of Ext.P11 and fixing the pensionary benefits on a notional basis treating her as having been promoted as Headmistress w.e.f. 1/04/98. In the result, WP(C) No.22367/08 will stand dismissed and WP(C) No.9059/2009 will stand disposed of in the manner as directed above. It is directed that the refixation of the pensionary benefits shall be expedited and completed at any rate within three months of production of a copy of this judgment. ANTONY DOMINIC, JUDGE Rp