Kavitha V. Kurup v. State of Kerala & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 10[TH] DAY OF JANUARY 2022 / 20TH POUSHA, 1943** **WA NO. 438 OF 2021 AGAINST THE JUDGMENT DATED 11.01.2021 IN WP(C) 11803/2018 OF HIGH COURT OF KERALA APPELLANT/4TH RESPONSENT:** **KAVITHA V.KURUP AGED 49 YEARS HSA (MALAYALAM), ST.GEORGE'S MOUNT HIGH SCHOOL, KAIPATTOOR, PATHANAMTHITTA, RESIDING AT PALANIKKUNNATHIL, KAIPATTOOR P.O., PATHANAMTHITTA -689 648** **BY ADVS. SRI.MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH SHRI.SAMEER M NAIR** ## **RESPONDENTS/WRIT PETITIONER & RESPONDENTS 1 TO 3:** **1 A.K.JAYASREE W/O.K.SREEKUMAR, SREESAILAM, VALLIKODU P.O., PATHANAMTHITTA-689648 (HIGH SCHOOL ASSISTANT (HINDI),ST.GEORGE'S MOUNT HIGH SCHOOL, KAIPATTOOR, PATHANAMTHITTA)** **2 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **3 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,PATHANAMTHITTA-689645.** :2: W.A.No438 of 2021 **4 THE MANAGER ST.GEORGES MOUNT HIGH SCHOOL KAIPATTOOR, PATHANAMTHITTA-689648.** **BY ADV SRI.S.JAYAKRISHNAN BY GOVT PLEADER SRI.BIJOY CHANDRAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :3: W.A.No438 of 2021 ## **JUDGMENT** ## **A.K.Jayasankaran Nambiar, J.** The 4[th] respondent in WP(C).No.11803 of 2018 is the appellant herein aggrieved by the judgment dated 11.01.2021 of the learned Single Judge in the Writ Petition. 2. The brief facts necessary for disposal of the Writ Appeal are as follows: The writ petition was filed by one Smt.A.K.Jayasree, who was working as a lower Grade Hindi Teacher in the 4[th] respondent school at a time when Sri.K.Purushothaman Pillai was working as H.S.A therein. It would appear that the said Sri.K.Purushothaman Pillai was to retire on superannuation on 30.06.1998 and he had availed of a leave preparatory to retirement with effect from 01.06.1998. The Manager of the school, taking note of the fact that the leave vacancy pursuant to the leave availed by Sri.K.Purushothaman Pillai was only for a period of less than two months, waited till 01.07.1998 to offer promotion to the writ petitioner as H.S.A (Hindi). In the meanwhile, however, the appellant herein was appointed to a substantive vacancy of H.S.A (Malayalam) with effect from 16.06.1998. Smt.Jayasree thereupon approached the educational authorities contending that her promotion :4: W.A.No438 of 2021 as H.S.A (Hindi) ought to have been with effect from 01.06.1998 when the earlier incumbent Sri.K.Purushothaman Pillai had proceeded on leave preparatory to retirement. The said contention of the petitioner did not find favour with the hierarchy of educational authorities under the Kerala Education Rules. Smt.Jayasree, then approached this Court through WP(C).No.39863 of 2016 at a time when her Revision Petition against the orders of the educational authorities was pending before the Government The said Writ Petition was disposed by Ext.P6 judgment that directed the Government to consider the Revision Petition and pass orders thereon after hearing Smt.Jayasree as also any other person likely to be affected by the orders to be passed by the Government. The Government eventually passed Ext.P7 order that rejected her contention, on the ground that, she had not served as H.S.A with effect from 01.06.1998 and had been appointed to the substantive vacancy of H.S.A (Hindi) only from 01.07.1998, and further that Sri.K.Purushothaman Pillai had drawn salary as H.S.A (Hindi) till 30.06.1998. It was the said Government Order that was, thereafter, impugned by Smt.Jayasree in Writ petition No.11803 of 2018, where the appellant herein was also arrayed as the 4[th] respondent considering the inter se seniority dispute that would arise between Smt.Jayasree and the appellant herein if the contention of Smt.Jayasree was accepted. :5: W.A.No438 of 2021 3. The learned Single Judge took note of the fact that the appellant herein had not been heard by the Government while disposing the Revision Petition of Smt. Jayasree, and finding that this was contrary to the directions of this Court in Ext.P6 judgment, took the view that the decision of the Government in the Revision Petition was illegal. Thereafter, despite finding that no grounds had been made out for interfering with the impugned order of the Government, the matter was remanded to the Government to reconsider the issue after affording an opportunity of being heard to the writ petitioner Smt.Jayasree, the 3[rd] respondent Manager as also the appellant herein and to take a decision thereon within two months from the date of receipt of a copy of the judgment. The judgment made it clear that this Court had not considered the merits of the dialectical contentions of the parties and that the Government was to consider the matter independently. 4. In the appeal before us, it is the contention of Sri.Manu Ramachandran, the learned counsel appearing for the appellant that there was no occassion whatsoever for the learned Single Judge, to have remanded the matter to the Government for a fresh decision, more so when the appellant, who was the 4[th] respondent in the Writ Petition had no grievance against the impugned orders of the Government that had rejected the claim of the writ petitioner. It is pointed out that the :6: W.A.No438 of 2021 Government had rightly rejected the contentions of the writ petitioner in the order impugned in the Writ Petition, more so when the very issue with regard to the date with effect from which the petitioner could have been seen as appointed as H.S.A was covered by the judgments of this Court in **Viswanadhan v. Director of Public Instruction [1993 (2) KLT 381], Bhaskaran v. Viswanathan [2000 (2) KLT 64]** and **Boban Lal V and Others v. Bharat Sanchar Nigam Ltd and Others [2012 (2) KHC 591]** . 5. Per contra, it is the submission of Sri.Subash Chand, the learned counsel for the 1[st] respondent writ petitioner that the apprehension of the appellant with regard to the writ petitioner stealing a march over her does not subsist any more since, admittedly, the appellant, being the sole test qualified hand, has since been promoted as headmistress ahead of the writ petitioner with effect from 01.04.2021. He would, therefore, submit that the judgment of the learned Single Judge need not be interfered with at this stage and the Government may be directed to consider the matter afresh as directed by the learned Single Judge. 6. We have also heard the learned Government Pleader in the matter, who apprehends that the observations of the learned Single Judge, and the directions issued in the impugned judgment, may force :7: W.A.No438 of 2021 the Government to recognise the service rendered by the writ petitioner during the period from 01.06.1998 to 10.07.1998 as rendered in a substantive vacancy of H.S.A for the purposes of determining the service benefits of the writ petitioner. He points out that the factual aspects as to whether the writ petitioner did work as H.S.A in the school from 01.06.1998 to 01.07.1998 has not been established before the educational authorities at any point in time. It is also pointed out with reference to the counter affidavit filed in the Writ Petition that the claim of the writ petitioner that she had worked as H.S.A during the period from 01.06.1998 to 01.07.1998 has also been denied by the Government. 7. On a consideration of the rival submissions and taking note of the fact that the inter se seniority dispute between the writ petitioner and the appellant herein does not subsist for any practical purposes, we feel that an examination of the legality of the appointment of the writ petitioner with effect from 01.06.1998 may not affect any right or interest of the appellant herein. We also believe that the nature of the vacancy that existed in the post of H.S.A (Hindi) during the period from 01.06.1998 to 30.06.1998 was materially different from the vacancy that arose to the post immediately thereafter, with effect from 01.07.1998. While the former vacancy was a leave vacancy in the post, consequent to the earlier incumbent Sri.K.Purushothaman Pillai :8: W.A.No438 of 2021 proceeding on leave preparatory to retirement, the vacancy that existed with effect from 01.07.1998 was a substantive vacancy consequent to the retirement of the earlier incumbent. For the purposes of seniority, it is the substantive vacancy to which a person is appointed that has to be reckoned, and when so reckoned, we find that vis-a-vis the writ petitioner and the appellant herein the date of substantive appointment of the writ petitioner to the post of H.S.A must be seen as commencing only with effect from 01.07.1998 and not 01.06.1998. As already noticed, this declaration which could have had a bearing on the rights of the appellant vis-a-vis the writ petitioner may not survive now inasmuch as the appellant has since been promoted as Headmistress in preference to the writ petitioner, who did not satisfy the qualification requirements for the post of Headmistress. 8. We deem it appropriate, however, to affirm that portion of the judgment of the learned Single Judge that remits the matter to the Government for the limited purposes of enabling the Government to examine the material produced by the writ petitioner before it to substantiate her contention that she had in fact worked as H.S.A in the school during the period from 01.06.1998 to 30.06.1998. This would be for the limited purpose of examining whether the writ petitioner is entitled to any service benefits for the work rendered during the said period. :9: W.A.No438 of 2021 Thus, in partial modification of the directions of the learned Single Judge, and subject to the observations in this judgment, the Writ Appeal is partly allowed as above. The Government shall consider and pass orders pursuant to the directions of the learned Single Judge, as modified by this judgment, within two month from the date of receipt of a copy of this judgment, after hearing the writ petitioner and considering the materials produced by her to substantiate her contention with regard to the work rendered in the school as H.S.A during the period from 01.06.1998 to 30.06.1998. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** **MOHAMMED NIAS C.P. JUDGE** mns :10: W.A.No438 of 2021 ## **APPENDIX** ## **PETITIONERS ANNEXURE:NIL** ## **RESPONDENTS ANNEXURE:** **ANNEXURE R4(A):TRUE COPY OF CIRCULAR NO0.G4-45992/79 DATED 01.07.1979 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTION.** **//TRUE COPY//** **P.A TO JUDGE**