Ambili Ramachandran Nandanam v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN &** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY, THE 8TH DAY OF MARCH 2018 / 17TH PHALGUNA, 1939** **WA.No. 2608 of 2017 IN WPC. 25831/2008** **AGAINST THE JUDGMENT IN WP(C) 25831/2008 of HIGH COURT OF KERALA DTD 16.11.2017** ## **APPELLANT(S)** **AMBILI RAMACHANDRAN NANDANAM, MYLOM P.O., KOTTARAKKARA.** **BY ADVS.SRI.M.R.ANISON SMT.K.P.GEETHA MANI** ## **RESPONDENT(S)/RESPONDENTS:** **1. STATE OF KERALA REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE DEPUTY DIRECTOR OF EDUCATION KOLLAM-691001.** **3. THE DISTRICT EDUCATIONAL OFFICER** **KOTTARAKKARA-691506.** **R BY GOVERNMENT PLEADER SRI T RAJASEKHARAN NAIR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2018, A/W W.A.NO.2607/2017 & W.A.NO.2617/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **kkj** **// TRUE COPY //** **PA TO JUDGE** **K.SURENDRA MOHAN & ANNIE JOHN, JJ. --------------------------------------------W.A. No.2608, 2607 & 2617 of 2017 ---------------------------------------------Dated this the 8[th] day of March, 2018** ## **J U D G M E N T** ## Surendra Mohan, J. These Writ Appeals are directed against a common judgment dated 16.11.2017 of the learned Single Judge finally disposing of W.P.(C) No.20392 of 2008, W.P.(C) No.20540 of 2008 and W.P.(C) No.25831 of 2008. All the three appeals are filed by the very same person, Smt. Ambili Ramachandran. W.A.No.2607 of 2017 is filed by her challenging the judgment in W.P.(C) No.20392 of 2008. She was the 6[th] respondent in the said Writ Petition. W.A.No.2608 of 2017 is filed by her challenging W.P.(C) No.25831 of 2008, where she was the writ petitioner. W.A.No.2617 of 2017 is filed by her against the judgment in W.P.(C) No.20540 of 2008. Since common issues are involved, all the appeals have been heard together and are disposed of by this common judgment. The disputes relate to appointment to the post of High School Assistant (HSA), -:2:- W.A. No.2608, 2607 & 2617 of 2017 A.E.P.M. Higher Secondary School, Irumanangad, Kollam District. The parties and exhibits are referred to in the manner in which they are described in W.A.No.2607 of 2017. 2. The appellant was appointed as an Upper Primary School Assistant (UPSA for short) in the said school on 03.06.1996. While she was continuing as such, one vacancy of HSA(Mathematics) arose on 03.08.1998 when another teacher one Smt. K.G.Santha was promoted as Headmistress of the School. The appellant was thereupon promoted to the said post. However, her promotion was not approved for the reason that, the promotion of Smt. K.G.Santha as Headmistress was challenged by one Sri.Sambasivan HSA(Sanskrit). There were a number of Writ Petitions in this Court filed at the instance of the said person. While so, another teacher, one Smt.Girijakumari was promoted as a Higher Secondary School Teacher. Thereupon, the Manager shifted the appellant to the said -:3:- W.A. No.2608, 2607 & 2617 of 2017 vacancy on 16.09.1998. Her appointment to the said post was duly approved by the educational authorities. 3. In the above circumstances, during the academic year 1998-99, there was a division fall resulting in a reduction in the number of posts. There were only three posts of HSA (Mathematics) available in the school. The appellant was therefore reverted as a UPSA and granted protection. However, her case is that, she continued to work as an HSA and to engage classes for the High School students. The said situation continued up to the year 2003. However, when there was a reduction in the posts of UPSA, the appellant was deployed to another school. Thus, with effect from 08.07.2003 she was deployed and protected as LPSA/UPSA up to 07.02.2006. 4. Meanwhile, the dispute between Smt.K.G.Santha and Sri. Sambasivan was pending consideration of this Court. Initially, as per an interim order granted by this Court, Sri. Sambasivan was functioning as the Headmaster -:4:- W.A. No.2608, 2607 & 2617 of 2017 up to 05.08.1999. During the said period, Smt.K.G,Santha was working as an HSA (Mathematics), which factor also affected the continuance of the appellant in the school, since there were only three posts of HSA(Mathematics) available. The dispute between Smt. K.G.Santha and Sri. Sambasivan was finally settled by exhibit R6(a) order dated 13.02.2004 appointing Smt. K.G.Santha as Headmistress with effect from 06.08.1999. She was also paid her salary and all other benefits, with effect from the said date. The appellant thereupon staked a claim for the grant of approval to her appointment as HSA(Mathematics) with effect from the said date. As per exhibit P7 proceedings dated 30.01.2006, the Deputy Director of Education, Kollam decided in her favour. 5. In the meanwhile, the Government issued Exhibit P4 order dated 07.01.2002 stipulating that a new cadre of HSA (English) be created in all aided and Government schools by reallocating some of the periods to English from -:5:- W.A. No.2608, 2607 & 2617 of 2017 those allocated to core subjects (Mathematics, General Science and Social Studies) in a phased manner. The Manager of the school thereupon appointed one Sri.M.V.Manuja as HSA (English) on 13.08.2002. According to the Manager, the appointment was made to the vacancy that was created by the promotion of Smt. K.G.Santha as Headmistress. It was in the said circumstances that, by exhibit P7 proceedings, the Deputy Director of Education accepted the claim of the appellant and permitted her to join as HSA (Mathematics) in the vacancy created by the promotion of Smt. K.G.Santha as Headmistress. However, it appears that, the appellant was not permitted to join duty in compliance with exhibit P7. Therefore, she approached this Court by filing W.P.(C) No.6074 of 2006. In the said Writ Petition, it was brought to the notice of this Court by the Manager that he had challenged exhibit P7 order in revision before the Government. Another revision filed by Smt. Manuja was also stated to be pending before the -:6:- W.A. No.2608, 2607 & 2617 of 2017 Government. Therefore, the said Writ Petition was disposed of directing both the revisions to be disposed of by the Government. Accordingly, the matter was considered and by exhibit P8 order, the Government found that it was the appellant who was entitled to be appointed to the promotion vacancy of Smt. K.G.Santha. Exhibit P8 was challenged before this Court by the Manager as well as Smt. Manuja in two Writ Petitions, W.P.(C) No.23703 of 2006 and 27560 of 2006 respectively. The same was disposed of by this Court along with a Writ Petition filed by the appellant, W.P.(C) No.25488 of 2006 (claiming that she was entitled to be paid salary for the period from 03.08.1998 to 16.09.1998 and also for the period from 08.07.2003 to 07.02.2006). All the three Writ Petitions were disposed of by exhibit P12 judgment dated 11.01.2007 confirming exhibits P7 and P8 orders and dismissing the claim of the Manager as well as Smt. Manuja. The appellant was ordered to be paid salary, as claimed by her. The matter was carried in appeal in -:7:- W.A. No.2608, 2607 & 2617 of 2017 W.A.Nos.1263, 1390, 1803 and 1384 of 2007. As per exhibit P13 judgment dated 18.08.2007, this Court held that the Government had not considered the impact of exhibit P4 Government Order on the rival claims made by the teachers and therefore directed fresh orders to be passed in the matter. Accordingly, the matter was heard by the Government and exhibit P14 order was issued rejecting the claims of the Manager and Smt. Manuja holding that the appellant was entitled to be posted as HSA(Mathematics) to the vacancy caused by the promotion of Smt. K.G.Santha as Headmistress. 6. Exhibit P14 was challenged by Smt. M.Manuja in W.P.(C) No.20540 of 2008 and by the Manager in W.P.(C) No.20392 of 2008. W.P.(C) No. 25831 of 2008 was filed by Smt. Ambili Ramachandran seeking enforcement of exhibits P7 and P8. As already noticed above, all the three Writ Petitions were considered by the learned Single Judge and disposed of by the judgment against which these appeals -:8:- W.A. No.2608, 2607 & 2617 of 2017 are filed. The learned Single Judge found that, the claim of Smt. Ambili Ramachandran was not sustainable in view of the change of circumstances created by the coming into force of exhibit P4 Government Order that required a change in the ratio of teachers for core subjects, to accommodate an English teacher. Since the appellant could not aspire for a promotion in violation of the subject requirement, the learned Single Judge found that the appellant could not succeed. Accordingly, exhibit P14 order of the Government has been set aside. The aggrieved appellant is before us in these appeals. 7. According to learned Senior Counsel Smt. V.P. Seemandhini, the appellant had been working as a UPSA from 03.06.1996 onwards in the school. She was initially promoted as an HSA(Mathematics) to the vacancy that occurred consequent to the promotion of Smt.K.G.Santha as Headmistress. But, for the only reason that the promotion of Smt. K.G.Santha was disputed by Sri.Sambasivan neither -:9:- W.A. No.2608, 2607 & 2617 of 2017 the promotion of Smt. K.G.Santha nor the appointment of the appellant as HSA (Mathematics) was granted approval. It was in the said circumstances that another teacher Smt.Girijakumari was promoted as an HSST resulting in the creation of another vacancy of HSA (Mathematics). The appellant was duly promoted to the said post. Her appointment was approved with effect from 16.09.1998. Therefore, she was admittedly working as an HSA (Mathematics) during the said period. However, during the year 1999-2000, there was a division fall resulting in a reduction in the number of HSA (Mathematics) to three. Therefore, she became a protected teacher but was retained in the said school itself. According to learned Senior Counsel, she was also engaging classes for the High School section during the said period on the basis of a time table issued to her. Though she was shown as a UPSA in the Staff Fixation Order for the year 1999-2000, she continued to work as an HSA(Mathematics). The said -:10:- W.A. No.2608, 2607 & 2617 of 2017 situation continued up to the year 2002-03. It was during the year 2003-04 that she was deployed to another school. According to the learned Senior Counsel, approval to her appointment as HSA (Mathematics) was declined for the only reason that, the promotion of Smt.K.G.Santha as Headmistress was under a cloud. Therefore, once the embargo against the said appointment is removed, the appellant was entitled to be granted approval on the basis of the promotion that was already granted to her. What was ordered by the Government by exhibit P14 was only to restore to the appellant what was legitimately due to her but denied from the year 1998 onwards. It is contended that the learned Single Judge has without appreciating all the relevant facts, set aside exhibit P14. Therefore, it is contended that the judgment appealed against is required to be interfered with and set aside. 8. Advocate V.A.Muhammed who appears for the Manager on the other hand contends that since the promotion of -:11:- W.A. No.2608, 2607 & 2617 of 2017 Smt. K.G.Santha had not been approved by the educational authorities, she was continuing as an HSA(Mathematics) in the school, though she had been granted a promotion as Headmistress. Therefore, when a vacany of HSA (Mathematics) was reduced in the year 1999-2000, the appellant had been reverted. She continued as a UPSA up to the academic year 2003-04 as evident from exhibits P1 to P5 Staff fixation orders produced in W.A.No.2607 of 2017. Our attention has been drawn to the appendix that forms part of the Staff Fixation Orders, to point out that, the appellant has been named therein and described as a UPSA. Since she had not challenged the said Staff Fixation Orders invoking her statutory remedies, the orders have become final. It is therefore not open to her to challenge the said staff fixation orders at this point of time. The Government erred in losing sight of the above position of law and issuing exhibit P14, altering the position settled by the Staff Fixation Orders from the year 1999-2000 to 2003-2004. The counsel also places reliance on two decisions of this Court in **Lalitha v. State of Kerala** [2008(1) KLT 416] and **Maji George v. State of Kerala** [2014(1) KHC 829 (DB)] in support of the ## -:12:- W.A. No.2608, 2607 & 2617 of 2017 proposition that Staff Fixation Orders were not liable to be interfered with, after they become final. According to the Manager therefore, when the promotion of Smt. K.G.Santha as Headmistress was finally settled by the operation of exhibit P4 Government Order, it was necessary for the resultant vacancy to be filled up by appointing an HSA (English). It was in accordance with the mandate of the said Government Order that Smt. Manuja was appointed. Being an HSA (Mathematics) and not qualified to be appointed as a teacher in English, the appellant was not competent to stake a claim for appointment to the said post. Therefore, it is contended that the appointment of Smt.Manuja was in order. The learned Single Judge has rightly interfered with exhibit P14 and set aside the same, according to the learned counsel and there are absolutely no grounds to interfere with the same. 9. According to Advocate M.V.Thampan who appears for Smt. M.V.Manuja, his client was appointed as an HSA (English) on 13.08.2002 as per exhibit P1. She was so appointed to the vacancy that arose due to the promotion of Smt.K.G.Santha as Headmistress on 25.04.2002. However, her appointment was ## -:13:- W.A. No.2608, 2607 & 2617 of 2017 not approved by the authorities. Therefore, she was appointed again as per exhibit P2 dated 02.08.2004. The said appointment also was not approved. Therefore, the said action was challenged by her in a revision before the Government. The contention of the learned counsel is that, though Smt. K.G.Santha was promoted as the Headmistress in August 1999, the promotion did not take effect for the reason that, one Sri.Sambasivan had challenged the same. Consequently, Smt. K.G.Santha continued as an HSA. It was in the said circumstances that, the appellant was shifted to the vacancy caused by the promotion of Smt. Girijakumari as HSST. It was in the said post that she had continued. But, consequent to the division fall in the year 1999-2000, she became a protected teacher and continued as UPSA. Her contention that she had worked as an HSA, according to the learned counsel, is without any basis since the staff fixation orders passed during the subsequent years have treated her as a UPSA. In the year 2003, she had submitted a representation seeking protection. But the said request was also rejected by exhibit P7(a) order dated 14.10.2003. As per exhibit R7(b), she was also deployed on -:14:- W.A. No.2608, 2607 & 2617 of 2017 working arrangement to another school. It was ignoring all the above orders that, exhibit P7 order was passed by the Deputy Director or Education, Kollam directing her to be posted in the vacancy of Smt. K.G.Santha. The said order was also confirmed by the Government as per exhibit P8. However, exhibits P7 and P8 were set aside by this Court by exhibit P13 judgment, with a consequent direction to the Government to reconsider the entire issue. It was accordingly that exhibit P14 was passed. Since exhibit P14 also maintained the erroneous position that the appellant was entitled to be posted in the vacancy caused by the promotion of Smt.K.G.Santha, the learned Single Judge has interfered with the same. It is contended that exhibit P14 was rightly interfered with and that, the judgment appealed against does not call for any interference in appeal. 10. By way of reply, Senior Counsel Smt. V.P.Seemandhini points out that, though the appellant had been promoted to the vacancy that arose on 01.06.1998 consequent to the promotion of Smt.K.G.Santha as Headmistress, the said promotion was not approved for the only reason that Sri. Sambasivan had challenged the same. The challenge of Sri. Sambasivan was ## -:15:- W.A. No.2608, 2607 & 2617 of 2017 finally rejected only in the year 2004. Thereafter, exhibit R6(a) order dated 13.02.2004 was issued by the District Educational Officer, Kottarakkara, granting all benefits to Smt.K.G.Santha with effect from 06.08.1999. Though the earlier request of the appellant for the grant of protection and for retention in her parent school without being deployed had been rejected by exhibits P7(a) and P7(b), the situation was completely altered by exhibit R6(a) order dated 13.02.2004 settling the seniority of Smt. K.G.Santha. It was in view of the said intervening factor that exhibit P7 order was passed on 30.01.2006 by the Deputy Director of Education, Kollam. By exhibit P8, the Government also confirmed the same. According to the learned counsel, this Court has not set aside exhibits P7 and P8. In exhibit P13 judgment, this Court only found that the Government have not considered the impact of exhibit P4 Government Order dated 07.01.2002 on the controversy in question. It was only for the said purpose that the Government was directed to reconsider the matter. The above being the position, it is contended that exhibit P14 was justified in the facts and circumstances of the case. With respect to the contention that, the appellant had not raised -:16:- W.A. No.2608, 2607 & 2617 of 2017 any objection against the Staff Fixation Orders, for the years 1999-2002, 2003-2004 in which she was treated as a protected UPSA initially and later on deployed, it is contended that the number of posts of HSA(Mathematics) remained three all throughout and therefore, she could have had no complaint in the matter. 11. It is also contended that, Sri.Sambasivan had worked as the Headmaster of the school only up to 05.08.1999 on the strength of an interim order granted by this Court and that thereafter it was Smt.K.G.Santha who was functioning as the Headmistress, with the appellant working as HSA(Mathematics), continuously till her deployment. The above factual aspect has been found in exhibits P7, P8 and P14 also. The above being the factual scenario it is contended that, the learned Single Judge seriously erred in interfering with and setting aside exhibit P14. 12. Heard. We have considered the rival contentions advanced before us, anxiously. We notice that, a number of facts remain undisputed. It is not in dispute that during the academic year 1998-1999, there were four posts of HSA (Mathematics) in the school. The following persons were working in the said posts -:17:- W.A. No.2608, 2607 & 2617 of 2017 1.Smt.K.G.Santha 2.Smt. Girijakumari ## 3.Smt.UmaDevi ## 4.Smt.Shailaja 13. On 01.06.1998, a vacancy in HSA(Mathematics) arose when Smt.K.G.Santha was promoted as the Headmistress. The appellant was at that time working as a UPSA having been appointed as such on 03.06.1996. She was promoted to the vacancy of HSA (Mathematics) in the place of Smt. K.G.Santha who was promoted as Headmistress. However, her promotion was not approved for the reason that one Sri.Sambasivan, HSA(Sanskrit) had challenged the same. While so, another vacancy in HSA Mathematics arose when Smt.Girijakumari was promoted as HSST. The Manager thereupon shifted the appellant to the said post on 16.09.1998. Her appointment as HSA (Mathematics) was approved by the authorities with effect from 16.09.1998. During the next academic year, 1999-2000, there occurred a division fall resulting in a consequent reduction in the number of posts of HSA (Mathematics) to three. At this point of time, Smt.K.G.Santha also appears to have been -:18:- W.A. No.2608, 2607 & 2617 of 2017 functioning as an HSA for the reason that, Sri.Sambasivan was functioning as the Headmaster on the strength of an interim order obtained from this Court. Therefore, the appellant was treated as a UPSA in the Staff Fixation Order for the said year. The interim order continued only up to 05.08.1999 after which date, Smt.K.G.Santha was functioning as the Headmistress. It is for the said reason that, by exhibit R6(a) she has been granted her pay and allowances with effect from 06.08.1999. 14. At this stage, it is necessary to take note of the fact that, the vacancy of HSA (Mathematics) that arose in the school on 01.06.1998, to which the appellant had been initially promoted was under a cloud till 06.08.1999. Whatever may have been the cause for the dispute, the fact remains that with effect from 06.08.1999, Smt.K.G.Santha has been granted all benefits treating her as the Headmistress. Therefore, it has to be held that there was one vacancy of HSA(Mathematics) available on 06.08.1999, to which the appellant was entitled to be accommodated. It is true that, exhibit R6(a) order is dated 13.02.2004. As per exhibit R6(a), what has been done is to restore to Smt.K.G.Santha, what she had been denied because of -:19:- W.A. No.2608, 2607 & 2617 of 2017 the pendency of the dispute between her and Sri.Sambasivan in this Court. Therefore, it is with respect to the said date that the right of the appellant to be posted has to be determined. 15. According to the Manager, Smt. Manuja was appointed on 13.08.2002 in terms of the mandate of exhibit P4 Government Order. We notice that exhibit P4 is dated 07.01.2002. The Government order exhibit P4 can have effect only prospectively. We further notice from a perusal of exhibit P4 that a new cadre of HSA (English) was to be created, without causing retrenchment of the existing HSAs (core subjects). Clause 3(a) of the said order reads as under. 3.Government have examined these proposals in detail and are pleased to order as follows:- a) A new cadre of HSA (English) will be created in the Aided and Government Schools by re-allocating the periods of English now allocated to the core subjects (Maths, Science and Social Studies) **in a phased manner, without causing retrenchment of existing H.S.As.(core subjects)** . The new cadre will be **created by appointing/promoting qualified hands against the vacancies caused by retirement/additional division/Resignation/leave observing the minimum subject ratio** requirement between Maths, Science and Social Studies with a view to achieve the the object of distribution of posts envisaged in the table given in the appendix. [ **emphasis supplied]** 16. Clause 3(e) which is also relevant in the context is -:20:- W.A. No.2608, 2607 & 2617 of 2017 extracted below. e. The above Scheme will be implemented from the academic year 2002-03. It is clear from the above that, the new cadre was directed to be created by appointing / promoting qualified hands against the vacancies caused by retirement/additional division/ resignation/ leave. The said Government Order was also to be implemented from the academic year 2002-03. It is therefore clear that, the Government order can have no application to the situation that existed in the year 1999. Since Smt.K.G.Santha has been found to be entitled to promotion as Headmistress with effect from 06.08.1999, the resultant vacancy in HSA (Mathematics) also has to be filled up with reference to the said date. As on the said date, Smt. Manuja was not even appointed and exhibit P4 Government Order had not been issued. Therefore, denial of promotion to the appellant on the ground that she was not qualified to be appointed as an HSA (English), cannot be accepted. The learned Single Judge has erred in finding that the appellant was not entitled to claim promotion to a vacancy of HSA (Mathematics) that was available with effect from 06.08.1999. It is also necessary to notice that, the appellant was ## -:21:- W.A. No.2608, 2607 & 2617 of 2017 already working as an HSA(Mathematics) having an approved service in the said post from 16.09.1998 to 14.07.1999. It was only thereafter that, she became an excess hand. Therefore, she was entitled to be accommodated in the vacancy that was available in the school from 06.08.1999 onwards. We notice from a perusal of exhibit P14 that the Government has addressed the issue in the proper perspective and has found that the appellant was entitled to be posted as HSA (Mathematics) from the said date. Since she was deployed to other schools thereafter, for the period from 08.07.2003 to 07.02.2006, she was found not entitled to claim salary. We find that the said direction in exhibit P14 is correct and fully justified in the facts and circumstances noted above. We also find that there was no vacancy available in the school for the appointment of Smt. Manuja as HSA (English) on 13.08.2002. The claim of Smt. Manuja is therefore rejected. 17. Though it is contended that the Staff Fixation orders for the years 1999-2000 to 2003-04 had become final not having been subjected to any challenge by the appellant and for the said reason, the Government had no authority to alter the same, we find that since there was no alteration in the number of posts of -:22:- W.A. No.2608, 2607 & 2617 of 2017 HSA(Mathematics), it was not necessary for the appellant to have challenged the same. Exhibit P14 has not altered the said Staff Fixation Order in any manner. What exhibit P14 has done is only to restore the benefits that were denied to the appellant by reason of the pendency of the dispute between Smt.K.G.Santha and Sri. Sambasivan. The travails that the appellant had to undergo were all the fall out of the said dispute. Therefore, it is only in the fitness of things that, she is also restored to the position that she was deprived of. For the foregoing reasons, these appeals are allowed. The judgment of the learned Single Judge is set aside. Exhibit P14 order is restored. Consequential orders on the basis of exhibit P14 shall be issued by the authorities without further delay. ## **K.SURENDRA MOHAN JUDGE** **ANNIE JOHN JUDGE** kkj