A.K. Jayasree v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942** ## **WP(C).No.11803 OF 2018(A)** ## **PETITIONER:** **A.K.JAYASREE, W/O.K.SREEKUMAR, SREESAILAM, VALLIKODU P.O., PATHANAMTHITTA-689648 (HIGH SCHOOL ASSISTANT (HINDI),ST.GEORGE'S MOUNT HIGH SCHOOL, KAIPATTOOR, PATHANAMTHITTA)** **BY ADV. SRI.S.SUBHASH CHAND** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,PATHANAMTHITTA-689645.** - **3 THE MANAGER ST.GEORGES MOUNT HIGH SCHOOL KAIPATTOOR, PATHANAMTHITTA-689648.** - **4 KAVITHA V.KURUP, AGED 46 YEARS HIGH SCHOOL ASSISTANT (MALAYALAM), ST.GEORGE'S MOUNT HIGH SCHOOL, KAIPATTOOR, PATHANAMTHITTA, RESIDING AT PALANIKKUNNATHIL, KAIPATTOOR P.O., PATHANAMTHITTA. (ADDL R4 IS IMPLEADED AS PER ORDER DATED 11.07.2018 IN I.A.NO.12167/18 IN WPC NO.11803/2018)** - **R3 BY ADV. SHRI.MANMOHAN C.B. R4 BY ADV. SRI.MANU RAMACHANDRAN R4 BY ADV. SRI.M.KIRANLAL R4 BY ADV. SRI.R.RAJESH (VARKALA) R4 BY ADV. SRI.T.S.SARATH SRI. P.M.MANOJ - GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 11803/18 2 ## **JUDGMENT** The petitioner says that she has been working as a High School Assistant in Hindi (initially appointed as a Lower Grade Hindi Teacher) in the St.George's Mount High School, Pathanamthitta, managed by the 3rd respondentManager and that she has been constrained to approach this Court impugning Exts.P7 and P10, to the extent to which she has been denied promotion to the said post with effect from 01.06.1998. 2. The petitioner says that while she was working as a High School Teacher, which appointment has been approved with effect from 07.10.1996, there occurred a vacancy on account of the leave taken by certain Sri.Purushothaman Pillai on 01.06.1998, which was followed by a regular retirement vacancy on 01.07.1998 when he retired. WPC 11803/18 3 3. The petitioner says that instead of appointing her on 01.06.1998, the Manager offered her appointment only with effect from 01.07.1998, even though she is entitled to be appointed from the former date, as per Rule 43 Chapter XIV A of the Kerala Education Rules (KER for short). She, therefore, prays that Exts.P7 and P10 be set aside and the Authorities be directed to reckon her service from 01.06.1998 in the leave vacancy of Sri.Purushothaman Pillai. 4. In response to the afore submissions made on behalf of the petitioner made by her learned counsel – Sri.S.Subhash Chand, the learned Government Pleader – Sri.P.M.Manoj, submitted that the facts as stated by the petitioner are not accurate, since Sri.Purushothaman Pillai was to retire on attaining the age of superannuation on WPC 11803/18 4 30.06.1998. He submitted that Sri.Purushothaman Pillai was entitled to leave, preparatory to retirement, with effect from 01.06.1998 and that he thereafter retired only on 30.06.1998, thus making it clear that the actual date of occurrence of vacancy due to his superannuation was only with effect from 01.07.1998. He submitted that, therefore, the Educational Authorities are without error in having reckoned the petitioner's appointment to be effective only from 01.07.1998 and that the Manager has also so done correctly. He, therefore, prayed that this Writ Petition be dismissed, particularly because, the petitioner has not served as a High School Teacher with effect from 01.06.1998, during the period when Sri.Purushothaman Pillai was on leave. 5. Sri.Manu Ramachandran, learned counsel appearing for the 4th respondent-Smt.Kavitha V. WPC 11803/18 5 Kurup, who impleaded herself into these proceedings subsequently, submitted that his client is senior to the petitioner and therefore, that the claim in this Writ Petition, that the petitioner should be construed to have been appointed with effect from 01.06.1998 is completely untenable. He submitted that, going by the various judgments of this Court in **Viswanadhan v. Director of Public Instruction [1993(2) KLT 381], Bhaskaran v. Viswanathan [2000(2) KLT 64] and Boban Lal V and Others v. Bharat Sanchar Nigam Ltd and Others [2012(2) KHC 591]** , the claim made by the petitioner are untenable and cannot be granted. He, therefore, prayed that this Writ Petition be dismissed. 6. In reply, Sri.Subhash Chand submitted that the facts involved in the afore cited judgments are clearly distinguishable from that WPC 11803/18 6 in this case and that it has no bearing to the issues projected herein. As regards the contentions of the learned Government Pleader is concerned, he submitted that it may be true that Sri.Purushothaman Pillai was on leave from 01.06.1998 and that he superannuated only in 01.07.1998; but that even during the time when he was on leave, the petitioner - being a Rule 43 claimant - was entitled to be appointed to such vacancy with effect from 01.06.1998 itself. He, therefore, prayed that this Writ Petition be allowed. 7. When I consider the afore submissions, it is indubitable that Exts.P7 and P10 orders have been issued by the Government without hearing the 4th respondent. All that the Government considered was the petitioner's claim for being appointed with effect from 01.06.1998 and not with effect from 01.07.1998. WPC 11803/18 7 the contention of the 4th respondent had not seized their attention, but in spite of it, the Educational Authorities found that the petitioner is not entitled to the relief as sought for. While arriving at such a conclusion, the view adopted by the Educational Authorities is that since Sri.Purushothaman Pillai was on leave with effect from 01.06.1998, preparatory to his superannuation on 01.07.1998, the petitioner could not have staked claim to be appointed to such vacancy. They also say that since the Manager has not appointed the petitioner with effect from 01.06.1998 and since she had not worked in such capacity from that date, she is not entitled to any relief. 8. However, the question really is not whether the petitioner was appointed with effect from 01.06.1998 or whether she was WPC 11803/18 8 allowed to work from that date, but whether she was entitled to be appointed from the date on which the leave of Sri.Purushothaman Pillai began. This particular issue has not been considered by the Educational Authorities in the impugned orders and as I have already said above. 9. In any event of the matter, no decision could have been taken without hearing the 4th respondent also particularly when she claims to be senior to the petitioner. 10. At this time, Sri.Subhash Chand submitted that if this Court is so inclined, his client is willing to give up her claim for salary with effect from 01.06.1998 to 01.07.1998, provided the other benefits are reckoned from the former date. I am afraid that I cannot accede to this request at this time either, since I am of the view that this matter WPC 11803/18 9 requires to be reconsidered by the competent Educational Authorities after hearing the 4th respondent also. In the afore circumstances, I order this writ petition and set aside Ext.P10, not because I have found against it affirmatively, but so as to pave way for a fresh consideration of the claim of the petitioner after hearing the 4th respondent also. Resultantly, the competent Secretary of the 1st respondent will reconsider the matter, after affording an opportunity of being heard to the petitioner, the 3rd respondent-Manager as also the 4th respondent – either physically or through video-conferencing – thus culminating in an appropriate order thereon as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. WPC 11803/18 10 Needless to say, since I have not considered the merits of the dialectical contentions of the parties at this stage, it will be up to the competent Secretary of the Government to consider all of them, including the ratio in the afore cited judgments relied upon by the 4th respondent, carefully, while completing the afore exercise. **Sd/-** **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 11803/18 11 ## APPENDIX ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE APPROVED APPOINTMENT ORDER DATED 7-10-1996 ISSUED BY RESPONDENT NO.3 AND APPROVED BY RESPONDENT NO.2. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 1-71998. - EXHIBIT P3 TRUE COPY OF THE REVISION PETITION DATED 10-6-2013 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.1. - EXHIBIT P4 TRUE COPY OF THE COMMUNICATION BEARING NO.B6/10306/16 DATED 23-92016 ISSUED BY RESPONDENT NO.2 TO RESPONDENT NO.3 SEEKING A REPORT ON THE ISSUE. EXHIBIT P5 TRUE COPY OF THE REPORT DATED 7-102016 SUBMITTED BY RESPONDENT NO.3 BEFORE RESPONDENT NO.2. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 1512-2016 PASSED BY THIS HON'BLE COURT IN WP(C)NO.39863 OF 2016 (G). EXHIBIT P7 TRUE COPY OF THE ORDER DATED 13-32017 PASSED BY RESPONDENT NO.1. EXHIBIT P8 TRUE COPY OF THE GOVERNMENT ORDER BEARING NO.63678/A3/2014/G.EDN. DATED 26-10-2015 PASSED BY RESPONDENT NO.1 IN THE CASE OF ONE SMT.MARY A.P., HEAD MISTRESS, ST.MARY'S HIGHER SECONDARY SCHOOL, MULLANKOLLY. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 12-42016 PASSED BY THE DISTRICT EDUCATIONAL OFFICER, WAYANAD IMPLEMENTING EXT.P8 ORDER. WPC 11803/18 12 |EXHIBIT P10||TRUE COPY OF THE ORDER DATED 28-2-| |---|---|---| |||2018 PASSED BY RESPONDENT NO.1.| |EXHIBIT P11||TRUE COPY OF RELEVANT PORTION OF THE| |||ATTENDANCE REGISTER PERTAINING TO| |||JUNE 1998 ISSUED BY THE HEADMASTER,| |||ST.GEORGE'S MOUNT HIGH SCHOOL,| |||KAIPATTOOR UNDER THE RIGHT TO| |||INFORMATION ACT TO SRI.K.SREEKUMAR| |||ALONG WITH THE COVERING LETTER DATED| |||20/03/2017.| |RESPONDENTS'EXTS<br>:||| |EXT R4(A)||TRUE COPY OF APPOINTMENT LETTER| |||16.06.1998 ISSUED BY 3RD RESPONDENT| |EXT R4(B)||TRUE COPY OF THE SENIORITY LIST OF| |||ST.GEORGE'S MOUNT HIGH SCHOOL,| |||KAIPATTOOR AS ON 01.01.2012| |EXT R4(C)||TRUE COPY OF THE RECEIPT DATED| |||06.07.1998 WHEREBY MR.PURUSHOTHAMAN| |||NAIR RECEIVED THE SALARY FOR THE| |||MONTH OF JUNE 1998|