Chitra A.P v State of Kerala & Others; S.S.V Higher Secondary School, Chirayinkeezhu v State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 30[TH] DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943`** ``` WP(C) NO. 10075 OF 2021 ``` ## **`PETITIONER/S:`** ``` CHITRA A.P AGED 36 YEARS HIGH SCHOOL ASSISTANT (ENGLISH), SSVGHS, CHIRAYINKEEZHU, THIRUVANANTHAPURAM. ``` ``` BY ADVS. BRIJESH MOHAN SMT.RESMI G. NAIR ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 ``` - `2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695 014.` ``` 3THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, 4TH FLOOR, CORPORATION BUILDINGS, PALAYAM, THIRUVANANTHAPURAM-695 033 ``` ``` 4THE MANAGER, SSVGHS, CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695 304. ``` ``` 5SMT. MAHIMA S, HSST (JR.), SSVGHS, CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695 304 BY ADVS. ``` ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` ``` 2 ``` ``` V.A.MUHAMMED V.RAJASEKHARAN NAIR SRI. BIJOY CHANDRAN. SR. GOVERNMENT PLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON30.11.2021,ALONGWITHWP(C).11561/2021,THECOURTONTHE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` ``` 3 ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 30[TH]DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA,1943 ``` ## **`WP(C) NO. 11561 OF 2021`** ## **`PETITIONER/S:`** - `1 THE S S V HIGHER SECONDARY SCHOOL, CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695 304, REPRESENTED BY ITS MANAGER.` - `2 S.MAHIMA, AGED 35 YEARS WIFE OF PRAMOD, HIGHER SECONDARY SCHOOL TEACHER (JUNIOR) ENGLISH, SS V HIGHER SECONDARY SCHOOL, CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695 304.` ``` BY ADVS. V.A.MUHAMMED V.RAJASEKHARAN NAIR ``` ## **`RESPONDENT/S:`** - `1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEX II, THIRUVANANTHAPURAM-695 001.` - `2 THE DIRECTOR OF GENERAL EDUCATION, (HIGHER SECONDARY SECTION), HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001.` ``` 4 ``` ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` - `3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, CORPORATION BUILDINGS, IVTH FLOOR, PALAYAM, THIRUVANANTHAPURAM-695 033.` ``` 4SMT.CHITRA.A.P., HIGH SCHOOL ASSISTANT (ENGLISH), SS V HIGHER SECONDARY SCHOOL, CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695 304. ``` ``` BY ADVS. BRIJESH MOHAN RESMI G. NAIR NANDU S KUMAR SRI. BIJOY CHANDRAN. SR. GOVERNMENT PLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON30.11.2021,ALONGWITHWP(C).10075/2021,THECOURTONTHE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` ``` 5 ``` ## **J U D G M E N T** By order dated 18.2.2021, the Government has ordered to reconsider the selection of Smt.S. Mahima, as HSST (Jr. English) at SSVGHSS, Chirayinkeezhu and the approval of her appointment from 29.06.2017 and has ordered the Manager to place the service particulars of Smt. S.Mahima and Smt.Chitra A.P., the rival claimant, before the Selection Committee, constituted under Chapter XXXII Rule 5 of the KER. 2. Smt. Chitra A.P. has filed W.P.(C) No.10075/2021 seeking to implement the above order and to conduct selection to the post of HSST (Jr.English) forthwith. The Manager of the SSVGHSS, Chirayinkeezhu, as well as Smt. S. Mahima, impugn the very same order in W.P.(C) No.11561/2021 and they also seek for a declaration that the appointment of Smt. Mahima as HSST (Jr.English) from 29.6.2017 is legal and valid. 3. Since common issues are raised in these writ petitions, both these writ petitions are considered and disposed of by a common judgment. The parties shall be referred to by their names and the exhibits shall be referred to as described in W.P.(C) No.11561/2021, unless mentioned otherwise. ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` ``` 6 ``` 4. The records would reveal that Smt.Chitra A.P. was appointed as HSA (English) in the SSVGHS, Chirayinkeezhu with effect from 1.6.2011. The appointment is seen to have been approved with effect from 1.6.2011 going by order dated 26.7.2017 issued by the DEO. Smt. S. Mahima commenced her service as HSA (English) on 13.6.2012 against a leave vacancy in SCV BHS, Chirayinkeezhu, another school under the same management. The appointment of Mahima was approved from 13.6.2012 to 30.3.2013 on daily wages and from 3.6.2013 to 19.8.2018 on regular basis. By Ext.P2 order dated 24.2.2020, the appointment of Smt.S. Mahima as HSA (English) was approved by the DEO, Attingal. The records reveal that Smt. Mahima got continuous service as HSA (English) from 3.6.2013 and her probation was declared on the forenoon of 3.6.2014. 5. Ext.P2 in W.P.(C) No. 10075/2021 is the extract of the common seniority list as on 1.1.2019 prepared in Form No.11A of schools under the same management. The common seniority list would show that Smt. A.P.Chitra comes under Serial No. 39 and Smt. Mahima comes under Serial No. 42. Thus, there is no dispute that Chitra is senior to Smt. Mahima. 6. While so, Smt. Mahima was promoted and appointed by transfer as HSST (Jr.) English, from 29.6.2017 in a regular vacancy which arose due ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` ``` 7 ``` to the promotion of a certain Smt. R.Deepa, HSST (Jr.) English as HSST (English) from 1.6.2017. Complaining that Smt. Chitra was ignored, she lodged a complaint before the Manager and thereafter approached the RDD. By order dated 23.10.2019, produced as Ext.P5 in W.P.(C) No.10075/2019, the RDD ordered that Smt. Chitra being the senior hand was entitled to the post of HSST (Jr.). Armed with the said order, Smt.Chitra approached the Manager and submitted a representation. When no action was taken, Smt.Chitra approached this Court and filed W.P.(C) No. 10157/2020 seeking directions. During the pendency of the writ petition, Smt.Chitra realized that Smt. Mahima had approached the Government and by order dated 7.3.2020, which is produced as Ext.P9, sanction was accorded to approve the appointment of Smt. Mahima as HSST (Jr.) English from 28.1.2019 and that the RDD, HSE, by Ext.P10 order dated 1.6.2020 granted approval to the appointment of the 2nd petitioner as HSST (Jr.) English from 30.1.2019 onwards. Smt. Chitra in the writ petition filed by her contended that the order was passed without hearing her and considering the fact that Chitra was also adversely affected by the order, this Court, by Ext.P11 judgment dated 26.11.2020, set aside the order passed by the Government and directed reconsideration of the entire issue, after affording an opportunity of ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` ``` 8 ``` hearing to both sides. In tune with the directions so issued, by the order impugned in W.P.(C) No. 11561/2021, the Government has directed the Manager to place the service particulars of Smt. Mahima as well as Smt. Chitra before the Selection Committee and to reconsider the decision. 7. Sri. Brijesh Mohan, the learned counsel appearing for Smt. Chitra submitted that Chitra has got approved service as HSA (English) from 1.6.2011 whereas, Smt. Mahima is having approved service, that too, against a leave vacancy only from 2013. Placing reliance on the combined seniority certificate, it is contended by the learned counsel that Smt. Chitra is senior to Smt. Mahima. Relying on the judgment of this Court in **V.C.Deepamol v. State of Kerala and Ors.** [2007 (4) KLT 173], it is contended by the learned counsel that Smt. Mahima’s appointment against a temporary vacancy that occurred on account of a teacher proceeding on leave will only entitle her to make a further claim under Rule 51A of the KER and nothing more. She could not have been treated as a person in service. On the other hand, Smt. Chitra was a regular teacher in the school with approved service from 1.6.2011 onwards. According to the learned counsel, in that view of the matter, there is no justification on the part of the 4th respondent in not complying with the directions issued by the Government and in conduction ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` ``` 9 ``` selection to the post of HSST (Jr.). The learned counsel would also contend that the solitary reason given by the 4th respondent for denying the appointment is that Smt. Chitra had no approved appointment as on 1.6.2017 as her appointment was approved by the DEO only on 26.7.2017. The learned counsel would rely on the judgment of a Division Bench of this Court in **Joshy v. Krishna P. Rajan** [ 2006 (4) KLT SN. 63 (Case No. 85) ] and in **Geetha S. v. Geo Thomas and Ors** [2009 (4) KLT 514] and it is argued that even if the appointment was not yet approved, the Manager could not have denied promotion or reappointment. The learned counsel would also refer to the order of the Government and it is submitted that the Manager, with a view to deny appointment to Smt. Chitra had failed to produce the service records before the selection committee which met on 28.1.2019 and it was in the said circumstances that the committee had decided to grant approval to Smt. Mahima. 8. Sri. M. Sajjad, the learned counsel appearing for Smt. Mahima submitted that there are no other qualified approved teachers in the lower grade of HST/ UPST for the post of HSST (Jr.) English in the school having approved appointment as on the date of occurrence of vacancy and on the date of appointment of the 2nd petitioner as HSST (Jr.) from 29.6.2017. It is ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` ``` 10 ``` submitted that Smt. Mahima is duly qualified as she has got an approved appointment as HSST (English) from 3.6.2013 onwards against a regular vacancy, she is the only person who is entitled to a by-transfer appointment as HSST (Jr.). It is further contended that Smt. Chitra had not applied for a by-transfer appointment as HSST (Jr.) English even after her approval as HST on 28.7.2017. On the other hand, a petition was preferred for a by-transfer appointment as HSST (Jr.) English only on 3.11.2019 much after the convening of the Selection Committee meeting on 28.11.2019. 9. I have considered the submissions advanced. I find from the records that Smt. Chitra has got approved service as HSA (English) from 1.6.2011 whereas the 5th respondent is having approved service against a leave vacancy from 2013. A perusal of Ext.P2 common seniority list would reveal that Smt. Chitra is senior to Smt. Mahima. In V.C.Deepamol (supra), a learned Single Judge of this Court had held that the appointment against a temporary vacancy which occurred on account of a teacher proceeding on leave may entitle the teacher to make a further claim under Rule 51A of Chapter XIVA of the KER if a vacancy of the same category arises in that school at a later point of time. Barring that preference, the quality of appointment is to warm up that seat and to vacate when the period of ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` ``` 11 ``` appointment ends or on return of the teacher who has proceeded on leave and nothing more. It was further held that the said teacher could not have been treated as a person ‘in service’. 10. I am unable to accept the contention of Mahima that it is not necessary to evaluate the comparative merit of qualified teachers when there is a qualified hand for appointment by transfer and hence the constitution of a selection committee was not required. Of course, the Government in Ext.P5 order produced in W.P.(C) No.11561/2021 has ordered that comparative assessment of teachers would not be necessary and the said appointment can be made without the recommendation of the selection committee based on seniority. However, in such cases, it is the duty of the Manager to conform to the statutory rules and regulations. In the instant case, in view of the dispute raised as regards the seniority, the Manager cannot rely on Ext.P5 and sideline Smt.Chitra. Furthermore, in Ext.P9 order, it is stated that in the selection committee which met on 28.1.2019, the service details of Smt. Chitra was not presented making it impossible for the committee to make a comparative assessment of the teachers. I find that it was taking note of all these aspects that Ext.P9 order was passed by the ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` ``` 12 ``` Government directing the Manager to reconsider the entire issue. In that view of the matter, I find no reason to interfere with Exhibit P9. WP (C) No. 10075 of 2021 will stand allowed and there will be a direction to the 4th respondent to comply with the directions issued by the 1st respondent in Exhibit P9 and take a decision expeditiously, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The 3rd respondent shall ensure that the 4th respondent complies with the directions as ordered in Ext.P9. W.P.(C) No.11561/2021 will stand dismissed. Sd/- ## **RAJA VIJAYARAGHAVAN V,** **JUDGE** ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` ``` 13 ``` ## **`APPENDIX OF WP(C) 11561/2021`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUECOPYOFTHEAPPOINTMENTORDEROF 2NDPETITIONERDATED13.06.2012AND APPROVAL RECORDED THEREON. Exhibit P2TRUECOPYOFTHEORDERNO. B6/583/DEO/2020/D.DISDATED24.02.2020 OF THE DEO, ATTINGAL. Exhibit P3TRUECOPYOFTHEAPPOINTMENTORDEROF THE 2ND PETITIONER DATED 29.06.2017. Exhibit P4TRUECOPYOFTHELETTER NO.TRO-D6/4222/2018/HSEDATED12.10.2018 OF THE 3RD RESPONDENT. Exhibit P5TRUECOPYOFTHEGO(RT) NO.247/2019/G.EDNDATED21.01.2019OF THE GOVT. Exhibit P6TRUECOPYOFTHESTATEMENTOF RELINQUISHMENTOFSMT.P.S.LEKSHMYDATED 26.08.2019 AND APPROVED BY THE DEO. Exhibit P7TRUECOPYOFTHEORDERNO. TRO-02/1973/HSE/2019DATED24.11.2020OF THE RDD HSE, THIRUVANANTHAPURAM. Exhibit P8TRUECOPYOFTHEREVISIONPETITION SUBMITTEDBEFORETHEGOVERNMENTDATED 19.10.2019. Exhibit P9TRUECOPYOFTHEGO(RT) NO.1184/2020/G.EDNDATED07.03.2020OF THE GOVERNMENT. ``` ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` ``` 14 ``` ``` Exhibit P10TRUECOPYOFTHEORDERNO. TRO-06/2076/2019/HSEDATED01.06.2020OF THE 3RD RESPONDENT. Exhibit P11TRUECOPYOFTHEJUDGMENTINWPCNO. 10157/2020 DATED 22.06.2020. Exhibit P12TRUECOPYOFTHEGO(RT)NO. 1716/2021/G.EDNDATED18.02.2021OFTHE GOVT. Exhibit P13TRUECOPYOFTHEAPPOINTMENTORDEROF THE4THRESPONDENTDATED01.06.2011AND APPROVAL RECORDED THEREON. Exhibit P14TRUECOPYOFTHESENIORITYLISTOFTHE SCHOOL DATED 12.07.2019. Exhibit P15TRUECOPYOFTHEORDERINRPNO. 1122/2019 DATED 13.01.2020. Exhibit P16TRUECOPYOFTHENEWSITEMPUBLISHEDIN THE DESABHIMANI DAILY DATED 01.06.2017. Exhibit P17TRUECOPYOFTHENOTICEPUBLISHEDINTHE NOTICEBOARDOFTHESCHOOLDATED 01.06.2017. ``` ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` ``` 15 ``` ## **`APPENDIX OF WP(C) 10075/2021`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1 ``` ``` TRUECOPYOFTHEAPPOINTMENTORDER DATED01.06.2011ANDORDEROFAPPROVAL ISSUED IN RESPECT OF THE PETITIONER. ``` ``` EXHIBIT P2 ``` ``` TRUECOPYOFTHERELEVANTEXTRACTOF SENIORITYLISTOFTHETEACHERSANDNON TEACHINGSTAFFOFTHESCHOOLSUNDER THE 4TH RESPONDENT. ``` ``` EXHIBIT P3 ``` ``` TRUECOPYOFTHEREPRESENTATIONDATED 26.07.2018SUBMITTEDBYTHEPETITIONER BEFORE THE 3RD RESPONDENT. ``` ``` EXHIBIT P4TRUECOPYOFTHEREPRESENTATIONDATED 29.07.2019SUBMITTEDBYTHEPETITIONER BEFORE THE 3RD RESPONDENT. ``` ``` EXHIBIT P5TRUECOPYOFORDERNO.T.R.0 06/6231/2019/HSEDATED23.10.2019 ISSUED BY THE 3RD RESPONDENT. ``` ``` EXHIBIT P6TRUECOPYOFREPRESENTATIONDATED 03.11.2019SUBMITTEDBYTHEPETITIONER BEFORE THE 4TH RESPONDENT. ``` ``` EXHIBIT P7TRUECOPYOFG.O(RT)NO.1184/20/G.EDN DATED7.3.2020ISSUEDBYTHE1ST RESPONDENT. ``` ``` EXHIBIT P8TRUECOPYOFJUDGMENTDATED22.06.2020 INW.P.CNO.10157/2020OFTHIS HON'BLE COURT. ``` ``` WP(C) NOs. 10075 & 11561 OF 2021 ``` ``` 16 ``` ``` EXHIBIT P9TRUECOPYOFG.O(RT)NO. 1716/2021/G.EDNDATED18.2.2021ISSUED BY THE 1ST RESPONDENT. ```