Babitha A. Vahab v. State of Kerala & Others; Sheena N v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941** ## **WP(C).No.32309 OF 2016(K)** ## **PETITIONER:** **BABITHA A.VAHAB, W/O.MOHEMMED SHYJU, BRIGHT BUILDING, NILIKKAMUKKU, KADAKKAVOOR P.O., THIRUVANANTHAPURAM [HIGH SCHOOL ASSISTANT (MALAYALAM) AKMHSS (ABDULLA KUNJU MEMORIAL HIGHER SECONDARY SCHOOL) MYLAPORE].** **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 695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM - 695 001.** - **3 THE DEPUTY DIRECTOR [EDUCATION], OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM.** - **4 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATION OFFICER, KOLLAM - 691 001.** - **5 THE MANAGER, AKMHSS (ABDULLA KUNJU MEMORIAL HIGHER SECONDARY SCHOOL), MYLAPORE, UMAYANALLOOR P.O., KOLLAM - 691 589.** - **6 SHEENA N, W/O.NOUSHAD KHAN, MANGALATH, PATHANAPURAM, KOLLAM DISTRICT (HSA (MALAYALAM) AKMHSS, MYLAPORE, UMAYANALLOOR P.O., KOLLAM)** **R1 - 4 G.P. SRI. SUNIL NATH R5 BY ADV. SRI.M.R.ANISON** **ADV. SMT.V.BHARGAVI PANANGAD ADV. SMT.K.P.GEETHA MANI ADV. SMT.P.A.RINUSA R6 BY ADV. SRI.B.MOHANLAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.10.2019, ALONG WITH WP(C).28843/2016(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NoS.32309 & 28843 OF 2016** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941** ## **WP(C).No.28843 OF 2016** ## **PETITIONER:** **SHEENA N, AGED 40 YEARS, W/O NOUSHAD KHAN, H.S.A(MALAYALAM), A.K.M.H.S.S, MYLAPORE, UMAYANALLOOR P.O., KOLLAM, RESIDING AT MANAGALATH PUTHEN VEEDU, MANCHALLOOR, KUNDAYAM P.O, PATHANAPURAM, KOLLAM DISTRICT.** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENTS:** |**1**|**STATE OF KERALA, REPRESENTED BY THE PRINCIPAL**| |---|---| ||**SECRETARY TO GOVERNMENT, GENERAL EDUCATION**| ||**DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTION**| ||**JAGATHY, THIRUVANANTHAPURAM -695 014.**| |**3**|**THE DEPUTY DIRECTOR OF EDUCATION**| ||**THEVALLY P.O, KOLLAM - 691 009.**| |**4**|**THE DISTRICT EDUCATINAL OFFICER**| ||**COLLECTORATE, KOLLAM - 691 013.**| |**5**|**THE MANAGER A.K.M. H.S.S, MYLAPORE, UMAYANALLOOR**| ||**P.O., KOLLAM - 691 589.**| |**6**|**SMT. BABITHA A. WAHAB, BRIGHT BUILDING,**| ||**NILIKKAMUKKU, KADAKKAVOOR P.O, THIRUVANANTHAPURAM-**| ||**695 306.**| **R1-4 BY GOVERNMENT PLEADER SRI. SUNIL NATH R5 BY ADV. SRI.M.R.ANISON, ADV. SMT.K.P.GEETHA MANI R5 BY ADV. SMT.V.BHARGAVI(PANANGAD) R5 BY ADV. SMT.P.A.RINUSA R6 BY ADV. SRI.S.SUBHASH CHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.10.2019, ALONG WITH WP(C).32309/2016(K), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NoS.32309 & 28843 OF 2016** **3** ## **JUDGMENT** **Dated this the 15[th] day of October, 2019** 1. These writ petitions are filed with regard to the approval of appointment to the post of HSA Malayalam in Abdulla Kunju Memorial Higher Secondary School, Mylapore, Umayanalloor P.O., Kollam. 2. The learned counsel for the petitioner in W.P.(C) No. 28843 of 2016 submits that the petitioner in the said writ petition got appointment as HSA Malayalam in the school on 01.06.2016 and her appointment has been approved on regular basis on the said date. On the ground that the petitioner is senior in age she claims seniority over the petitioner in W.P(C) No.32309 of 2016. 3. Challenge in W.P.(C) No.28843 of 2016 is against Ext. P5 order, by which the Government had, on a review petition filed by Smt. Babitha A. Vahab, reviewed the order passed by the Government on 24.03.2015 in revision, and directed the **WP(C).NoS.32309 & 28843 OF 2016** **4** approval of the appointment of Smt. Babitha A. Vahab, petitioner in W.P.(C) No. 32309 of 2016, on regular scale of pay from 05.10.2009 to 31.03.2010. The learned counsel for the petitioner in W.P.(C) No. 28843 of 2016 contended that review under Rule 93 Chapter XIVA KER is maintainable only against original orders of the Government, that too, only within two months from the date of passing the order. Relying on the decision of the Division Bench of this Court in **Rameshan Vs. Jayavally** [2007 (2) KLT 325], it is contended that Ext. P5, which is an order reviewing an order of the Government passed in revision, was completely unsustainable and that same is liable to be set aside. ## 4. Petitioner in W.P.(C) No.32309 of 2016 on the other hand seeks the following prayers : “(i) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext. P3(a) order of respondent No.1 (ii) To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent Nos. 1 to 5 to treat the petitioner senior to respondent No. 6 going by the provisions **WP(C).NoS.32309 & 28843 OF 2016** **5** contained in Rule 37 Chapter XIV A KER read with the rulings in Valsamma P. v. State of Kerala & others [2014 (4) KHC 361], Lilly V.A. Vs. State of Kerala & Others [2016 KHC 414] and Balakrishnan Vs. AEO, Vadakara [2005 (4) KLT 64] and assign seniority to her as such, within such time as this Hon'ble Court may deem fit and proper in the interest of justice. (iii) To issue a declaration that the petitioner is entitled to have her appointment evidenced by Ext. P1 approved on regular scale of pay basis on the basis of the ruling of the Hon'ble Apex Court reported as State of Kerala Vs. Sneha Cherian and Others [2013 (1) KLT 755] and Ext.P4 proceedings of respondent No.1 and denial of the same by Ext.P3(a) order is absolutely arbitrary and unconstitutional for violation of Articles 14 and 21 of the Constitution of India.” 5. It is submitted that the petitioner was appointed in a regular vacancy, which arose in the school during the academic year 2009-'10. It is stated that one Salil C.S., who was an HSA Malayalam, was promoted as Higher Secondary School Teacher [Jr.]. It was in the resultant vacancy that the petitioner was appointed on 05.10.2009. Relying on the decision of the Apex Court in **State of Kerala Vs. Sneha Cherian and others** [2013 (1) KLT 755], the learned counsel for the petitioner contended that the vacancy was a regular continuing vacancy and as such, **WP(C).NoS.32309 & 28843 OF 2016** **6** the approval could not have been limited as one on daily wage basis. It is stated that the petitioner was entitled to approval of the appointment as HSA [Malayalam] from 05.10.2009 onwards and that as such the petitioner is clearly senior to the petitioner in W.P.(C) No. 28843 of 2016. 6. Counter affidavits have been filed by the contesting respondents as well as the official respondents in both the cases. The learned Government Pleader would submit that the issue of approval of appointment of the petitioner in W.P.(C) No. 32309 of 2016 is to be considered in view of the law laid down by the Apex Court in **Sneha Cherian's** case [supra]. The learned counsel for the petitioner in W.P.(C) No.28843 of 2016 places reliance on the decision of the Apex Court in **Manager, VKNM Vocational Higher Secondary School Vs. State of Kerala and Others** [(2016) 4 SCC 216] and contended that the principle that approval is liable to be accorded only if the duration of the vacancy is more than one academic year stands reiterated by the Apex Court and that as such, the decision in **Sneha Cherian's** case [supra] stands repelled. **WP(C).NoS.32309 & 28843 OF 2016** **7** 7. I have considered the contentions advanced. The Apex Court in **Sneha Cherian's** case [supra] has clearly considered the question of regular appointment in a continuing vacancy made during the course of an academic year. After considering the statutory provisions, the Apex Court held that the approval of appointment to a regular vacancy made even during the course of an academic year can be limited as a daily wage on the ground that the appointment was not made at the beginning of the year. It was held that what is to be looked into is the nature and duration of the vacancy and not the date on which the appointment was made. It was held that appointments in regular vacancies during the course of the academic year are also liable to be approved on regular scale of pay if the vacancy is a continuing one. This Court has later clarified that in case vacancy is a continuing one, vacation salary is also liable to be paid. ## 8. The decision in **Manager, VKNM Vocational Higher Secondary School's** case [supra] was with regard to the right **WP(C).NoS.32309 & 28843 OF 2016** **8** of a person, who claims appointment under Rule 51A, Chapter XIV KER. The finding of the Apex Court in the said case was with regard to the entitlement of a person who had worked for less than one academic year for reappointment under Rule 51A. The Apex Court in the said judgment, as a matter of fact followed the decision in **Sneha Cherian's** case [supra] at paragraph 18. The contention to the effect that the decision of the Apex Court in **Manager, VKNM Vocational Higher Secondary School's** case [supra] has made any difference to the ratio in **Sneha Cherian's** case [supra] is, therefore, completely unsustainable. 9. I am of the opinion that the issue raised is covered in favour of the petitioner in W.P.(C) No.32309 of 2016 and the appointment made on 05.10.2009 is liable to be approved on a scale of pay basis with all benefits including the vacation salary. W.P(C) 32309 of 2016 is, therefore, allowed. Ext. P3(a) order is set aside. There will be a direction to the respondents to approve the appointment of the petitioner in W.P(C) 32309 of 2016 from 05.10.2009 on regular basis and to release the consequential benefits including the vacation salary within a period of three **WP(C).NoS.32309 & 28843 OF 2016** **9** months from the date of receipt of a copy of this judgment. Consequently, W.P(C) No. 28843 of 2016 is rendered infructuous and the same is dismissed as infructuous. **Sd/ANU SIVARAMAN JUDGE** kmd **WP(C).NoS.32309 & 28843 OF 2016** **10** ## **APPENDIX OF WP(C) 32309/2016** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 05/10/2009 ISSUED BY RESPONDENT NO.5** **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 01/06/2010.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 23/10/2014 PASSED BY THIS HON'BLE COURT IN WPC NO.27563 OF 2014.** **EXHIBIT P3(A) TRUE COPY OF THE ORDER BEARING GO(RT) NO.1171/2015/G.EDN. DATED 24/03/2015 PASSED BY RESPONDENT NO.1** **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED 14/10/2015 PASSED BY RESPONDENT NO.1** **EXHIBIT P5 TRUE COPY OF THE GO(RT) NO.2653/2016/G.EDN DATED 16/8/2016.** **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 01/09/2016 PASSED RESPONDENT NO.4** **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 29.01.2019 W.P.(C) NO.39531/2018 PASSED BY THIS HON'BLE COURT.** ## **RESPONDENTS' EXHIBITS** **EXHIBIT R6(a) THE TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2010 ISSUED BY THE 5TH RESPONDENT AND ITS APPROVAL ORDER NO. B1/4480/10/K.Dis. Dated 23/02/2011 ISSUED BY THE 4TH RESPONDENT TO THIS RESPONDENT.** **EXHIBIT R6(b) THE TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT AND ITS APPROVAL ORDER NO. B1/4338/10/K.dIS. DATED 23/02/2011 ISSUED BY THE 4TH RESPONDENT TO THIS RESPONDENT.** **EXHIBIT R6(C) THE TRUE COPY OF THE ORDER NO. B1/4677/D.Dis DATED 22.08.2014 ISSUED BY THE 4TH RESPONDENT.** **WP(C).NoS.32309 & 28843 OF 2016** **11** ## **APPENDIX OF WP(C) 28843/2016** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT-P1**|**THE TRUE COPY OF THE APPOINTMENT ORDER**| |---|---| ||**DATED 01.06.2010 ISSUED BY THE 5TH**| ||**RESPONDENT AND ITS APPROVAL ORDER**| ||**NO.B1/4480/10/K.DIS DATED 23.02.2011 ISSUED**| ||**BY THE 4TH RESPONDENT TO THE PETITIONER**| |**EXHIBIT-P2**|**THE TRUE COPY OF THE APPOINTMENT AND ITS**| ||**APPROVAL ORDER OF THE 5TH RESPONDENT TO THE**| ||**PETITIONER**| |**EXHIBIT-P3**|**THE TRUE COPY OF THE JUDGMENT DATED**| ||**23.10.2014 IN WPC NO.27563/2014 OF THIS**| ||**HON'BLE COURT.**| |**EXHIBIT-P4**|**THE TRUE COPY OF THE NOTICE**| ||**NO:62246/E3/2014/G.EDN DATED 16.02.2016**| ||**ISSUED BY THE GOVERNMENT TO THE 6TH**| ||**RESPONDENT.**| |**EXHIBIT-P5**|**THE TRUE COPY OF THE ORDER G.O.**| ||**(RT)NO.2653/2016/G.EDN.DATED 16.08.2016**| ||**ISSUED BY THE 4TH RESPONDENT TO THE**| ||**PETITIONER.**| |**EXHIBIT P6**|**THE TRUE COPY OF THE ORDER DATED**| ||**22.08.2014.**| |**RESPONDENT'S/S**|**EXHIBITS:**| |**EXHIBIT R1(a)**|**TRUE COPY OF THE G.O.**| ||**(RT)NO.1171/2015/G.EDN. DATED 24.03.2015.**| |**EXHIBIT R1(b)**|**TRUE COPY OF THE LETTER**| ||**NO.44977/J2/2013/G.EDN. DATED 14.10.2015.**|