High Court of KeralaDivision Bench2020-03-18Appeals dismissed

Geetha N.S. v. State of Kerala and others (WA Nos. 1937/2018 & 2059/2018)

Case / Petition Number:WA No. 1937/2018 & WA No. 2059/2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.M. Shaffique
Gopinath P.
Judgment Date: 2020-03-18
Court Decision / Holding: The writ appeals are dismissed. The High Court upheld the Single Judge’s view that the period of leave without allowance cannot be counted toward continuous service for Rule 44A and that Geetha would become eligible for the HM post only after completing 12 years of continuous service from rejoining (i.e., in 2022). The Government order dated 19 May 2018 (Ext.P9) is maintained.
Final Disposition: Appeals dismissed

Parties to the Case

Appellants / Petitioners

Geetha N.S.

Respondents

State of Kerala
Director of Public Instruction
Deputy Director of Education
District Educational Officer, Kollam
Manager, Sankaramangalam HSS
Mini George

Legal Representation & Advocates

Counsels for Petitioners

• K.P. Dandapani (Sr.)
• Millu Dandapani

Counsels for Respondents

• George Abraham
• Government Pleader
• John Joseph Vettikkad
• A.J. Varghese (Sr GP)

Case Synopsis & Summary

These two writ appeals challenge a common judgment of the learned Single Judge dated 31 August 2018 in WP(C) Nos. 17395/2018 (Mini George v. State of Kerala and others) and 17773/2018 (Geetha N.S. v. Sankaramangalam HSS and others). Geetha N.S., a long-serving teacher appointed as Head Master (HM) of Sankaramangalam Higher Secondary School, had been on leave without allowance (LWA) from 21.6.2006 to 20.6.2010 to accompany her spouse abroad, rejoining duty on 21.6.2010. When a retirement vacancy for HM arose, the Manager appointed her HM from 1.4.2011 but with conditional approval as a teacher in-charge, as Geetha’s continuity for the HM post depended on eligibility under Rule 45C of Chapter XIV-A and the “continuous service” concept in Rule 44A. The challenge focused on whether the LWA period could be counted toward the 12-year continuous graduate service required by Rule 44A. The learned Single Judge, following VB Prasad and Rajamma P.R., held that “continuous” could not include LWA, and that Mini George’s relinquishment could not prejudice Geetha’s rights. He dismissed the petitions and noted that Geetha would become eligible for HM only after completing 12 years from rejoining duty (i.e., in 2022). The appeals were dismissed, upholding Ext.P9 (the Government order) and the original view. The High Court thus declined relief to Geetha and Mini George.

Provisions of Law Cited

Rule 45C of Chapter XIV-A, Kerala Education Rules (KER)Rule 44A of Chapter XIV-A, Kerala Education Rules (KER)Appendix 12C of Part I KSR (Kerala Service Rules)

Legal Doctrines & Maxims

Waiver: conscious, voluntary and intentional relinquishment or abandonment of a known right (Sikkim Subba Associates v. State of Sikkim, (2001) 5 SCC 629)
Crystalized right cannot be upset through belated challenge (principle related to laches)
Continuous service interpreted under Rule 44A of Chapter XIV-A of the KER with reference to leave without allowance (LWA)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contended that the period of leave without allowance should be counted as part of continuous graduate service for the purposes of Rule 44A of Chapter XIV-A, Kerala Education Rules. They relied on the Apex Court's decisions (e.g., VB Prasad) and Rajamma P.R. to argue that “continuous” should include the time actually served, notwithstanding LWA, and that Mini George’s relinquishment could not be treated as a waiver that defeats Geetha’s entitlement. They further argued that the belated challenge is admissible and that the crystalized right to HM appointment was being adversely affected by the 2018 Government order Ext.P9. They urged this Court to grant relief and recognize Geetha as eligible for HM appointment earlier than 2022.

Contentions of Respondents

The respondents pressed that Rule 44A requires 12 years of continuous graduate service, and the period of LWA cannot count toward this continuity. They argued that Geetha’s appointment as HM could not be deemed valid without completing the statutory 12 years from rejoining; the relinquishment by Mini George cannot create an entitlement, and the challenge was belated, with no valid basis to upset the Government order (Ext.P9) dated 19.05.2018. They relied on VB Prasad and Rajamma P.R. to underscore the strict interpretation of ‘continuous’ and stressed that crystalized rights cannot be unsettled by belated challenges.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
V.B. Prasad v. Manager, P.M.D.U.P. School and Others	2007 (2) KHC 534	Positive	Cited to establish the interpretation of ‘continuous’ in Rule 44A and that certain periods (like LWA) may not count toward continuous service.
Rajamma P.R. v. Manager, St. George High School and Others	2012 (3) KHC 27	Positive	Cited as supporting precedent on continuous service and eligibility timing for HM posts including post-rejoining periods.
Sikkim Subba Associates v. State of Sikkim	(2001) 5 SCC 629	Positive	Used to define legal concept of waiver as conscious, voluntary, and intentional relinquishment of known rights, informing rejection of Mini George’s relinquishment as a valid waiver.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941** **WA.No.1937 OF 2018** **AGAINST THE JUDGMENT OF THE LEARNED SINGLE JUDGE DATED 31.08.2018 IN WP(C) 17773/2018(V) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **GEETHA N.S., AGED 54 YEARS, HESDMISTRESS,SANKARA MANGALAM HSS,KOTTARA,MEYANNOOR PO,KOTTARAKKARA ,KOLLAM** **BY ADVS. SRI.K.P.DANDAPANI (SR.) SRI.MILLU DANDAPANI** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO THE GOVERNMENT,DEPARTMENT OF GENERAL EDUCATION,GOVERNMENT SECRETARIAT,THIRUVANANTHAOURAM -695001** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION, DIRECTORATE OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM -695001** - **3 THE DEPUTY DIRECTOR EDUCATION, OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), KOLLAM 691001** - **4 THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA, KOLLAM DISTRICT 691537** - **5 THE MANAGER, SANKARAMANGALAM HSS, KOTTARA, MEEYANNOOR P.O., KOTTARAKKARA, KOLLAM DISTRICT 691537** - **6 SMT. MINI GEORGE,** **WA.1937/2018, WA.2059/2018 2** ## **H.S.A (HINDI),** **SANKARAMANGALAM HSS, KOTTARA, MEEYANNOOR P.O., KOTTARAKKARA KOLLAM DISTRICT 691537** **R1-4 BY GOVT.PLEADER FOR R** ## **OTHER PRESENT:** **SRI. GEORGE ABRAHAM , SRI. JOHN JOSEPH VETTIKAD AND SRI A.J. VARGHESE SR GP** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11-03-2020, ALONG WITH WA.2059/2018, THE COURT ON 18-03-2020 DELIVERED THE FOLLOWING:** **WA.1937/2018, WA.2059/2018 3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941** ## **WA.No.2059 OF 2018** **AGAINST THE JUDGMENT DATED 31.08.2018 IN WP(C) 17395/2018(Y)ON THE FILES OF THE LEARNED SINGLE JUDGE OF HIGH COURT OF KERALA** ## **APPELLANT/5TH RESPONDENT:** **N.S. GEETHA, HEADMISTRESS, SANKARAMANGALAM HIGHER SECONDARY SCHOOL, KOTTARA, KOTTARAKKARA-691 537, KOLLAM DISTRICT.** **BY ADV. SRI.MILLU DANDAPANI** ## **RESPONDENTS/PETITIONER & RESPONDERNTS 1 TO 4:** - **1 MINI GEORGE, AGED 40 YEARS, W/O.G.THOMAS, HIGH SCHOOL ASSISTANT(HINDI), SANKARAMANGALAM HIGHER SECONDARY SCHOOL, KOTTARA, KOTTARAKKARA-691 537, KOLLAM DISTRICT.** **2 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **3 THE DEPUTY DIRECTOR OF EDUCATION, THEVALLY, KOLLAM 691 009** - **4 THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA, KOLLAM 691 537** - **5 THE MANAGER,** **WA.1937/2018, WA.2059/2018 4** **SANKARAMANGALAM HIGHER SECONDARY SCHOOL, KOTTARA, KOTTARAKKARA 691 537** **R1 BY ADV. GEORGE ABRAHAM(BY ORDER) R2-4 BY GOVERNMENT PLEADER(BY ORDER) R5 BY ADV. JOHN JOSEPH VETTIKKAD(BY ORDER)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11-03-2020, ALONG WITH WA.1937/2018, THE COURT ON 18-03-2020 DELIVERED THE FOLLOWING:** **WA.1937/2018, WA.2059/2018 5** ## **JUDGMENT** **[ WA.1937/2018 & WA.2059/2018 ] Dated this the 18th day of March 2020** ## _**Gopinath**_ **,** _**J**_ These two appeals arise from the common judgment dated 31.08.2018 of the learned Single Judge in W.P.(C) No.17395 of 2018 and W.P(C) No.17773 of 2018. The brief facts are that the appellant in these appeals namely, N.S.Geetha was appointed as High School Assistant (Maths) in the Shankaramangalam Higher Secondary School on 24.7.1997. From 21.6.2006 to 20.6.2010, she was granted leave without allowance under Appendix 12C of Part-I KSR for joining her spouse, who was working abroad. On 21.6.2010, she rejoined duty at school. There was a retirement vacancy of Head ## **WA.1937/2018, WA.2059/2018 6** Master (HM) in the school on account of retirement of the then incumbent on 31.3.2011. Smt.Geetha was appointed as HM by the Manager from 1.4.2011. However the approval of the said appointment was only as teacher in-charge on the ground that Smt.Geetha was on leave without allowance from 21.6.2006 to 20.6.2010. Rule 45C of Chapter XIV-A mandates that while granting temporary promotion to any person (when a qualified teacher is not available to be promoted as Headmaster), in the case of every high school, a minimum period of 12 years of continuous graduate service shall be insisted upon. Smt.Geetha continued as HM and on 15.8.2013, i.e on completion of 12 years after rejoining duty, the Manager of the school again appointed her as HM and the DEO approved the said appointment vide the proceeding marked Ext.P4 in WP(C) No.17773 of 2018. ## **WA.1937/2018, WA.2059/2018 7** 2. The 6[th] respondent, Smt.Mini George was appointed as HSA (Hindi) on 20.7.2000. By 27.7.2012 she acquired qualification to be appointed as HM. However, she did not choose to stake any claim that she was eligible to be so appointed. This may be on account of the fact she had, on 1.4.2011, submitted a no objection for appointment of Smt.Geetha as HM. However, on 23.10.2017 Smt.Mini George filed a revision before the Government of Kerala (R1) challenging the approval granted to the appellant (Geetha). On 19.5.2018, the first respondent issued the order marked as Ext.P9 in W.P.(C) No.17773 of 2018 holding that Smt.Geetha was not entitled to continue as the HM. This order and consequential proceedings of the Manager were challenged by Smt.Geetha by filing W.P.(C) 17773 of 2018. The 6[th] respondent Smt.Mini George filed W.P.(C) No.17395 of 2018 essentially seeking implementation of the ## **WA.1937/2018, WA.2059/2018 8** Government order dated 19.5.2018. The learned single Judge considered the writ petition filed by Smt.Geetha and the writ petition filed by Smt.Mini George together. 3. Three grounds were raised before the learned single Judge in support of the challenge raised to Ext.P9. 4. The first ground raised was that the period of leave without allowance will have to be treated as a part of the continuous graduate service for the purposes of Rule 44A of Chapter XIV-A of the KER. The learned single judge after referring to the judgment of the Supreme Court in _**V.B.Prasad v.**_ _**Manager, P.M.D.U.P. School and Others**_ reported in _**2007 (2) KHC 534**_ and the judgment of a Division Bench of this Court in _**2012 (3) KHC 27 (Rajamma**_ _**P.R.v Manager, St. George High School and Others)**_ held that the word continuous in Rule 44A of ## **WA.1937/2018, WA.2059/2018 9** Chapter XIV-A cannot but mean that the service must be continuous and that the period of leave without allowance cannot be counted for the said purpose. On a consideration of the matter, we are of the view that the finding rendered by the learned single Judge on the aforesaid point does not warrant any interference as we are bound to follow the law laid down in the aforesaid judgment of the Apex Court. 5. The next point raised before the learned single Judge was that Smt.Mini George had relinquished her claim for being appointed as HM on 1.4.2011. The learned single Judge held that the relinquishment by Smt.Mini George cannot be of any avail to the appellant Smt.Geetha. It was held that the relinquishment can be treated only as a no objection for temporary promotion granted on 1.4.2011, when both of them were not qualified to ## **WA.1937/2018, WA.2059/2018 10** be promoted as HM. The learned single Judge proceeded to hold that there is no question of waiver by Smt.Mini George. Waiver, it is settled law, is the _"conscious, voluntary and intentional_ _relinquishment or abandonment of a known, existing legal right, advantage, benefit, claim or privilege, which, except for such a waiver, the party would have enjoyed._ " [See _**Sikkim Subba Associates v. State of Sikkim, (2001) 5 SCC 629**_ **)** ] We cannot hold that Smt.Mini George had consciously waived an existing legal right for the reason that she was also not qualified as on 1.4.2011. We are therefore unable to take a different view on this point. 6. The next ground of challenge against the Government order dated 19.5.2018 was that Smt. Mini George had not questioned the appointment of the appellant Smt.Geetha, till 23.10.2017, even though ## **WA.1937/2018, WA.2059/2018 11** she had known that Smt.Geetha had been approved as HM on 21.3.2014 w.e.f 15.8.2013. The learned single Judge considered the contention in the light of various judgments of the Supreme Court and of this Court which take the view that a crystalized right cannot be upset through a challenge which is belated. The learned single Judge held that the claim of Smt.Mini George could have been rejected on the ground of delay and laches only if it were to be found that Smt.Geetha was eligible to be appointed at least on 15.8.2013, the date from which her appointment as HM was approved by the DEO through the order dated 21.3.2014. The learned single Judge found that Smt.Geetha would become qualified for appointment as HM in terms of the statutory provisions only in the year 2022, going by the provisions contained in Rule 44A of Chapter XIV-A of the KER. We find ourselves unable to ## **WA.1937/2018, WA.2059/2018 12** upset the view taken by the learned single Judge as there is no way which, we could have directed that the appointment of Smt.Geetha as HM should be approved, in the light of the statutory provisions. We are unable to hold that Smt.Geetha would have been eligible for appointment as HM without completing 12 years from the date on which she rejoined duty after availing leave without allowance. In the light of the above, we find no merit in these writ appeals and they are accordingly dismissed. sd/- ## **A.M.SHAFFIQUE** ## **JUDGE** sd/- **GOPINATH P.** **JUDGE** pm