K. Lakshman Reena v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 19TH DAY OF AUGUST 2014/28TH SRAVANA, 1936** ## **WP(C).No. 13689 of 2009 (E)** **-----------------------------------------** ## **PETITIONER :** **---------------------** **K.LAKSHMAN REENA, H.S.A (NATURAL SCIENCE), KAMBIL MOPILA HIGH SCHOOL, KANNUR.** **BY SRI.K.R.B.KAIMAL (SENIOR ADVOCATE) ADV. SRI.B.UNNIKRISHNA KAIMAL** ## **RESPONDENTS :** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DISTRICT EDUCATIONAL OFFICER, KANNUR.** ## **3. THE MANAGER,** ## **KAMBIL MOPILA HIGH SCHOOL, KANNUR.** ## **4. SMT.G.SUDHARMA,** - **UPPER PRIMARY SCHOOL ASSISTANT, KAMBIL MOPILA HIGH SCHOOL, KANNUR.** **R1 & R2 BY GOVERNMENT PLEADER SRI.A.J.JOSE AEDAIODI R4 BY ADV. SRI.KALEESWARAM RAJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 13689 of 2009 (E)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **--------------------------------------** - **EXHIBIT P1 : TRUE COPY OF THE ORDER NO.D.DIS-RA(3)/99765/99/DPI DATED 30.03.2000 ISSUED BY THE D.P.I.** - **EXHIBIT P2 : TRUE COPY OF THE ORDER NO.D.DIS.B.3740/2000 DATED 18.05.2000 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P3 : TRUE COPY OF THE GOVT. ORDER G.O.(RT) NO.2930/GENL.EDN DATED 27.06.2007.** - **EXHIBIT P4 : TRUE COPY OF THE ORDER NO.B3-5083/2006 DATED 13.02.2008 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P5 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)NO. 7311 OF 2008 DATED 24.11.2008.** - **EXHIBIT P6 : TRUE COPY OF THE NOTICE NO.14658/A2/08/G.EDN DATED 02.01.2009 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXHIBIT P7 : TRUE COPY OF THE REPRESENTATION DATED NIL SUBMITTED BY THE 4TH RESPONDENT TO THE GOVERNMENT.** - **EXHIBIT P8 : TRUE COPY OF THE ARGUMENT NOTE DATED 26.01.2009 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P9 : TRUE COPY OF THE ORDER G.O.(RT)NO.1659/2009/G.EDN DATED 24.04.2009 ISSUED BY THE 1ST RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------** **NIL** **//TRUE COPY//** ## **P.A.TO JUDGE.** Msd. ## **A.K.JAYASANKARAN NAMBIAR, J.** **.............................................................** W.P.(C)No.13689 of 2009 **.............................................................** Dated this the 19[th] day of August, 2014 ## **J U D G M E N T** The petitioner was appointed as UPSA in the School under the management of the 3[rd] respondent on 08.08.1983. She was promoted as an HSA (Natural Science) in a permanent vacancy that arose on 23.01.1990. The 2[nd] respondent approved the appointment of HSA only for the period up to 31.03.1990 on account of the fact that she did not have minimum eight months service as HSA during the academic year in question. The petitioner was therefore reappointed as HSA (Natural Science) on 01.06.1990 and this appointment was approved by the 2[nd] respondent with effect from 01.06.1990. The petitioner continued in service as HSA till her retirement on 31.03.2011. 2. The issue in the writ petition arises out of the staff fixation order for the academic year 1998-1999. Against five posts of HSA (Natural Science) that could be sanctioned for the School for the said academic year, it was found that there were six persons working. Similarly, against the 12 posts of HSA (Social Studies) sanctioned for the said academic year, it was found that there were -2- W.P.(C)No.13689 of 2009 only 11 persons working. As a consequence of the staff fixation order for the year 1998-1999, therefore, one HSA (Natural Science) had to be reverted as UPSA and one HSA (Social Studies) had to be appointed from among UPSA's, who qualified for the vacancy of HSA (Social Studies). In the case at hand, the person who was so appointed as HSA (Social Studies) by way of promotion was the 4[th] respondent, who had been appointed as UPSA from 06.06.1989 and had been initially appointed as HSA (Social Studies) on 01.09.1994 but had been reverted as UPSA pursuant to a division fall that occurred in the academic year 1997-1998. The HSA (Natural Science) who faced reversion as UPSA, pursuant to the staff fixation order for 1998-1999 was one K.V.Latha, who had been appointed as UPSA from 13.07.1982 and as HSA (Natural Science) with effect from 08.11.1984. 3. Pursuant to the directions issued in a writ petition filed challenging the staff fixation order for the year 1998-99, Ext.P3 order was passed by the 1[st] respondent. As per the said order, the dispute between Smt. K.V.Latha and the 4[th] respondent, with regard to who should be reverted as UPSA pursuant to the staff fixation for the academic year 1998-1999, came to be decided in favour of the 4[th] respondent and her promotion as HSA with effect from 15.07.1998 was found to be valid. Pursuant to the said order -3- W.P.(C)No.13689 of 2009 of the 1[st] respondent, the District Education Officer gave effect to the same vide Ext.P4 order, dated 13.02.2008. Pursuant to Ext.P3 order of the 1[st] respondent, the District Education Officer had to examine the inter se claims of the aforementioned Smt. K.V.Latha and the petitioner, both of whom were HSA's in Natural Science and the Junior among whom had to be reverted as UPSA pursuant to Ext.P3 order of the 1[st] respondent. On a consideration of the rival claims, it was found that the petitioner was junior to Smt. K.V.Latha and accordingly, the petitioner was reverted to the post of UPSA. 4. Exts.P3 and P4 orders were challenged by the petitioner before this Court on the ground that she was not heard prior to the passing of those orders. By Ext.P5 judgment, this Court, taking note of the submissions of the petitioner that she was the person prejudiced by Exts.P3 and P4 orders, and therefore, ought to have been heard by the respondents before passing the said orders, directed the 1[st] respondent to consider the matter afresh after hearing the petitioner. It must be noted at this stage, that the grievance of the petitioner was vis-a-vis the claim of Smt. K.V.Latha who, like the petitioner, was an HSA (Natural Science) and it was between the petitioner and the said K.V.Latha that the respondent authorities had to determine as to who among them was to be W.P.(C)No.13689 of 2009 -4- reverted to the post of UPSA. In Ext.P9 order, that came to be passed by the 1[st] respondent, it was found that it was the petitioner who had to be reverted as UPSA and not K.V.Latha as contented by the petitioner. A perusal of Ext.P9 order of the 1[st] respondent, which is impugned by the petitioner in this writ petition, would reveal the reasons that weighed with the 1[st] respondent while arriving at the conclusion therein. 5. Ext.P9 order is impugned by the petitioner on various grounds including the technical ground that the first respondent ought not to have decided the matter on the basis of the contentions of the 4[th] respondent in Ext.P7 petition submitted by her. The petitioner also challenges the maintainability of Ext.P7 petition before the 1[st] respondent. In respect of the inter se claim between the petitioner and Smt.K.V.Latha, there is nothing on record to suggest that as between the two of them, the petitioner had a superior claim over Smt. K.V.Latha for retention as has, in the event of the necessity to revert one among them. 6. In the counter affidavit filed on behalf of the 4[th] respondent, the 4[th] respondent would vehemently defend Ext.P9 order passed by the 1[st] respondent and in particular rely on the provisions under the KER which mandate that the retention of -5- W.P.(C)No.13689 of 2009 HSA's pursuant to staff fixation order would have to take into account even the subject ratio that had to be maintained in the School among the staff that was retained. It is pointed out, therefore, that since the HSA that had to be reverted was in the subject of Natural Science, there was no possibility of the 4[th] respondent, an HSA in Social Studies, being faced with the prospect of reversion pursuant to the staff fixation order of the academic year 1998-99. 7. I have heard Sri.B.Unnikrishna Kaimal, learned counsel for the petitioner, Sri.Kaleeswaram Raj, learned counsel appearing on behalf of the 4[th] respondent and the learned Government Pleader for respondents 1 to 3. 8. On a consideration of the rival submissions and the facts and circumstances of the case, I find that Ext.P9 order, which essentially confirms the stand taken by the 1[st] respondent in Ext.P3 order, considers the position of HSA's in the School in question, pursuant to the staff fixation order of 1998-1999, fairly elaborately. The position with regard to effective strength of students in the School, as also the divisions sanctioned in the School pursuant thereto from the academic year 1996-97 to 1998-1999, have been dealt with in detail in the said order. It is thereafter, on a -6- W.P.(C)No.13689 of 2009 consideration of the students strength for the academic year 19981999 and the staff fixation order that resulted there from, that the 1[st] respondent proceeded to determine the HSA's who could be retained in the School against the sanctioned divisions and those among the HSA's who had to be reverted. Nothing has been brought to my notice to warrant a departure from the view expressed by the 1[st] respondent in Ext.P9 order. This is more so, when one considers the fact that, between the petitioner and Smt.K.V.Latha, who are both HSA's in Natural Science, and one of whom had to be necessarily reverted to the post of UPSA pursuant to the staff fixation order of 1998-1999, the petitioner is admittedly junior to Smt.K.V.Latha and in the normal course of events it would be the petitioner who had to be reverted first being the junior most among the HSA's in Natural Science. 9. It is also relevant to note that this is a matter involving complicated questions of fact. In the absence of any material to doubt the factual conclusions arrived at by the 1[st] respondent in Ext.P9 order, I do not see any reason to interfere with Ext.P9 order passed by the 1[st] respondent. The decisions in **Kottayam District Co-operative bank Ltd. And Others v. P.S.Mohanan Nair and Others** (2008 (2) KHC 125), **D.L.F.Housing Construction (P) Ltd. v. Delhi Municipal Corpn.** (1976 KHC 811) and **Ratheesh** -7- W.P.(C)No.13689 of 2009 **v. State of Kerala** (2013 (3) KLT 840) support the view that I have taken. The writ petition fails and is therefore dismissed. I must hasten to add at this stage, that by way of an interim order dated 15.05.2009, passed at the time of admission of the writ petition, the petitioner was protected by an order of stay of operation and implementation of Ext.P9 order, during the pendency of the writ petition. It is understood that the petitioner continued as HSA (Natural Science) in the School on the strength of this interim order till 31.03.2011, on which date she retired from service. Considering the above facts, and in particular the fact that the petitioner has continued as HSA and discharged her duties as such for the period covered by the interim order of this Court, I make it clear that the judgment in this writ petition shall not confer any right on the respondent educational authorities to proceed against the petitioner for recovery of any amounts paid to her for the period aforementioned by way of salary or other allowances. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/