K.R. Geetha v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933** **WP(C).No. 3093 of 2011(J)** **------------------------------------** **PETITIONER:** - **-------------------** **K.R.GEETHA,HIGH SCHOOL ASSISTANT (MATHEMATICS), R.V HIGH SCHOOL,VALAKOM, KOTTARAKKARA, KOLLAM DISTRICT- 691 532.** **BY ADVS. SRI.M.V.THAMBAN, SRI.R.REJI, SMT.THARA THAMBAN, SRI.B.BIPIN, SMT.REVATHY P.NAIR.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA,REP.BY ITS SECRETARY TO THE GOVERNMENT,DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **2. THE DIRECTOR PUBLIC INSTRUCTION, THIRUVANANTHAPURAM- 696 001.** **3. DEPUTY DIRECTOR(EDUCATION), KOLLAM- 691 001.** **4. DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA,KOLLAM DISTRICT-691 506.** **5. THE MANAGER, R.V HIGH SCHOOL, VALAKOM, KOTTARAKKARA, KOLLAM DISTRICT- 691 532.** **6. THE TEACHER-IN-CHARGE, R.V HIGH SCHOOL, VALAKOM(P.O),KOTTARAKKARA, KOLLAM DISTRICT 691 532.** ## **W.P.(C). NO.3093/2011-J:** ## ***ADDITIONAL RESPONDENT 7 IMPLEADED:** **7. GOPAKUMAR.G., S/O. GOPINATHAN PILLAI, H.S.A. (MATHS) R.V.H.S. VALAKAOM, KOTTARAKARA, RESIDING AT PANDARAMVILA, PADIYATTUVILA, VALAKAOM, KOTARAKARA, KOLLAM DISTRICT – 691 532.** - ***ADDL. R7. IMPLEADED AS PER ORDER DATED 01/04/2011 IN I.A. NO. 5754/2011.** **R1 TO R4 BY GOVERNMENT PLEADR SMT. NISHA BOSE, R5 & R6 BY ADVS. SRI.N.JAMES KOSHY, SRI.T.SANJAY, ADDL. R7 BY ADV. SRI.B.MOHANLAL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2011, ALONG WITH W.P.(C). NO. 6627 OF 2011 AND CONNECTED CASES, THE COURT ON 25/07/2011 DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.3093/2011-J:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE SENIORITY LIST AS ON 01/04/1999. EXT.P.2: COPY OF THE SENIORITY LIST AS ON 01/01/2008. EXT.P.3: COPY OF THE REPRESENTATION DT. 21/10/2008. EXT.P.4: COPY OF THE REPRESENTATION DTD. 20/06/2009. EXT.P.5: COPY OF THE COVERING LETTER DTD. 17/08/2009. EXT.P.5.A: COPY OF THE LIST OF PREVIOUS HEADMASTERS.** **EXT.P.5.B: COPY OF THE SENIORITY LIST DTD. 01/01/2008. EXT.P.6: COPY OF THE REVISION PETITION BEFORE THE GOVT. ON 22/07/2009. EXT.P.7: COPY OF THE JUDGMENT DTD. 25/11/2009 IN W.P.(C).NO.33052/2009. EXT.P.8: COPY OF THE LETTER NO.72742/A3/2009/G. EDN. DT. 31/12/2009. EXT.P.9: COPY OF THE HEARING NOTE DTD. 01/02/2010. EXT.P.10: COPY OF THE G.O.(RT).NO.1246/2010/G. EDN. DT. 19/08/2010. EXT.P.11: COPY OF THE MEMO DTD. 17/02/2010. EXT.P.12: COPY OF THE EXPLANATION ON 20/02/2010. EXT.P.13: COPY OF THE ORDER 57/2110 DTD. 22/02/2010.** **EXT.P.14: COPY OF THE MEMO OF CHARGES DTD. 22/02/2010.** **EXT.P.15: COPY OF THE WRITTEN STATEMENT ON 04/03/2010. EXT.P.16: COPY OF THE ORDER NO. 32/1070/2010 DTD. 08/03/2010. EXT.P.17: COPY OF THE MEMO DTD. 08/12/2010. EXT.P.18: COPY OF THE EXPLANATION ON 13/12/2010.** **EXT.P.19: COPY OF THE LETTER NO. B2/1984/10 DTD. 15/05/2010. EXT.P.20: COPY OF THE REPRESENTATION DTD. 12/07/2010 BEFORE THE R.1. EXT.P.21: COPY OF THE LETTER NO. 59325/A3/2010/G. EDN. DT. 03/12/2010.** ## **W.P.(C). NO.3093/2011-J:** ## **EXT.P.22: COPY OF THE LETTER NO.59325/A3/2010/G. EDN. DT. 03/12/2010.** **EXT.P.23: COPY OF THE CIRCULAR NO.59325/A3/2010/G. EDN. DTD. 03/12/2010.** **EXT.P.24: COPY OF THE ORDER NO.B2/870/11 DT. 25/02/2011 OF THE D.E.O, KOTTARAKKARA.** **EXT.P.25: COPY OF THE MASS PETITION DT. 16/02/2011 SUBMITTED BEFORE THE D.E.O, KOTTARAKKARA.** **EXT.P.26: COPY OF THE ORDER NO.82/870/11 DT. 07/05/2011 ISSUED BY THE D.E.O.** **EXT.P.27: COPY OF THE COMPLAINT DTD. 14/05/2011 BEFORE THE SUPERINTENDENT OF POLICE (RURAL), KOTTARAKKARA.** **EXT.P.28: COPY OF THE COMPLAINT ON 21/05/2011.** ## **EXT.P.29: COPY OF THE LETTER NO. D1/876/2011 DT. 19/05/2011 TO THE R.6.** **EXT.P.30: COPY OF THE LIST OF DOCUMENTS SIGNED BY THE PETITIONER ON 17/06/2011.** **EXT.P.31: COPY OF THE LETTER NO.6730/A3/2011/G. EDN. DT. 27/04/2011.** **EXT.P.32: COPY OF THE LETTER.NO.1071/10 DT. 09/03/2011.** ## **EXT.P.33: COPY OF THE ORDER NO.61/2010 DTD. 29/03/2010.** **EXT.P.34: COPY OF THE RELEVANT PAGES OF THE ACQUITTANCE ROLL FOR THE MONTH OF MARCH 2010.** **EXT.P.34.A: COPY OF THE RELEVANT PAGES OF THE ACQUITTANCE ROLL FOR THE MONTH OF JUNE 2010.** **EXT.P.35: COPY OF THE LETTER NO.6730/A3/2011/G. EDN. DT. 22/06/2011 OF THE GOVERNMENT.** ## **RESPONDENTS' EXHIBITS:** **EXT.R5.A: COPY OF THE ORDER NO. 57/2010 DTD. 09/03/2010.** **EXT.R5.B: COPY OF THE ORDER NO.61/2010 DTD. 29/03/2010.** **EXT.R5.C: COPY OF THE REQUEST DTD. 02/08/2010.** **EXT.R5.D: COPY OF THE COMMUNICATION DTD. 01/11/2010 ISSUED BY THE D.E.O, KOTTARAKKARA.** **EXT.R5.E: COPY OF THE LETTER SENT BY THE MANAGER TO THE D.E.O.** ## **W.P.(C). NO.3093/2011-J:** **EXT.R5.F: COPY OF THE SENIORITY LIST AS ON 01/04/2010 ALONG WITH REQUEST FOR APPROVAL.** **EXT.R5.G: COPY OF THE PETITION DT.D 28/10/2008.** **EXT.R5.H: COPY OF THE REVIEW PETITION DTD. 21/01/2011.** **EXT.R6.A: COPY OF THE DETAILS EVIDENCING THE RECEIPT OF THE DOCUMENTS ON 17/06/2011.** **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos. 3093/2011-J, 6627/2011-C, 12629/2011-C and 14364/2011-U** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 25th day of July, 2011.** ## **JUDGMENT** These writ petitions are concerning the appointment of a Headmaster by promotion in the school managed by the petitioner in W.P.(C) No.12629/2011. The petitioner in W.P.(C) No.3093/2011 is claiming appointment on the basis of seniority. The petitioner in W.P.(C) No.6627/2011 is aggrieved by the order passed by the District Educational Officer directing to appoint the petitioner in W.P.(C) No.3093/2011 as Headmistress on a provisional basis and he is also claiming seniority. The petitioner in W.P.(C) No.14364/2011 is the Teacher-in-charge and he challenges the very same order. 2. In W.P.(C) No.3093/2011 the petitioner is seeking to quash Ext.P2 seniority list. She is seeking for a declaration that she is entitled to be ranked as the seniormost H.S.A. and qualified to be promoted as Headmistress as on 1.4.2010. The necessary facts for the disposal of these writ petitions are the following: 3. The petitioner in W.P.(C) No.3093/2011 was working as H.S.A. 2 wpc 3093/2011, etc. (Maths) before the vacancy arose and the additional 7[th] respondent therein (petitioner in W.P.(C) No.6627/2011) is also working as H.S.A. (Maths). The petitioner in W.P.(C) No.3093/2011 was appointed on 6.6.1994 as H.S.A. (Maths). She is having the qualification B.Sc. and B.Ed. and has also passed Departmental Test. The vacancy to the post of Headmistress arose on 1.4.2010. The grievance raised mainly is that the Manager of the school is not promoting her in spite of the legitimate claims of the said petitioner. The claim for appointment by promotion is based on Ext.P1 seniority list dated 1.4.1999. Ext.P2 is the copy of the seniority list dated 1.1.2008 and the complaint raised is that some of the persons who are arrayed above her, are not entitled for seniority. She is shown as serial No.8 therein. The additional 7[th] respondent is shown as serial No.5 and one Shri R. Krishnakumar is shown as serial No.6. Ext.P3 is the copy of the objection submitted by the said petitioner before the Manager with regard to the seniority list and Ext.P4 is the objection submitted before the District Educational Officer. In September, 2008 the District Educational Officer provisionally approved the seniority list and the petitioner challenged the same before the Government by filing a revision petition. Apprehending delay in the disposal of the revision petition, she filed W.P.(C) No.33052/2009 which was disposed of by Ext.P7 judgment, directing the wpc 3093/2011, etc. 3 Government to take a decision in the matter. Ext.P10 is the order passed by the Government. Therein, the Government directed the District Educational Officer and the Manager to prepare and finalise a proper seniority list and to effect promotion or charge arrangement, subject to the finalisation of the seniority list. It is the case of the petitioner that in an attempt to deny her right, the Manager issued certain memos, viz. Exts.P11 and P17 containing certain allegations. Exts.P12 and P18 are the replies submitted by the petitioner to the said memos. Ext.P14 is the copy of memo of charges and statement of allegations and Ext.P15 is the written statement of defence. In the meanwhile, she was suspended by Ext.P13 order which was cancelled by the District Educational Officer as per Ext.P16. By Ext.P19, the District Educational Officer rejected the appointment of the petitioner in W.P.(C) No.14364/2011 as Teacher-in-charge, but a provisional arrangement was allowed. When further delay occurred for finalising the seniority list, she approached the Government again by Ext.P20 representation, wherein the Government by Ext.P21, directed the District Educational Officer to take steps to appoint the petitioner as Headmistress provisionally and to grant approval accordingly. Ext.P22 is the letter addressed to the Director of Public Instruction issued by the Government directing the Director to take disciplinary action against the Manager for not obeying the directions issued 4 wpc 3093/2011, etc. by the Government. 4. Along with I.A. No.4611/2011, the petitioner has produced Ext.P24, an order passed by the District Educational Officer, finding that the petitioner is the seniormost teacher, to be appointed as Headmistress, pursuant to the interim order passed by this Court in the writ petition. Later, the District Educational Officer passed Ext.P26 order produced along with I.A. No.9334/2011, whereby the petitioner is appointed provisionally as Headmistress. Now the petitioner is continuing as Headmistress on a provisional basis. She has produced certain representations complaining that all the documents required by her, have not been handed over to her by the Teacher-in-charge. 5. In W.P.(C) No.12629/2011, the Manager is challenging Exts.P3, P8 and P9 orders/directions of the Government. Ext.P8 is a Government letter directing the District Educational Officer to approve the appointment of the petitioner in W.P.(C) No.3093/2011 as Headmistress on a provisional basis. Ext.P9 is a letter addressed to the Manager informing that the review petition filed by the petitioner cannot be considered and hence rejected. Ext.P3 directs taking of disciplinary action against the Manager. 6. In W.P.(C) No.6627/2011, the case of the petitioner who is working as H.S.A. (Maths), is that the District Educational Officer passed 5 wpc 3093/2011, etc. Ext.P7 order without giving a proper opportunity of hearing to him. He is claiming seniority over the petitioner in W.P.(C) No.3093/2011. It is pointed out that the notice proposing a hearing, was given to him on 23.2.2011 at 1.30 p.m. directing to appear before the second respondent at 4.p.m. on the same day. He wanted time to produce documents, as per Ext.P5 representation and a further representation was given as per Ext.P6 on the next day and without considering his genuine request, the order Ext.P7 is passed by which, a direction was issued to promote the petitioner in W.P.(C) No.3093/2011 as Headmistress. 7. Heard Shri M.V. Thamban, learned counsel for the petitioner in W.P.(C) No.3093/2011, Shri N. James Koshy, learned counsel who is appearing for the Manager therein, Shri V.A. Mohammed, learned counsel appearing for the Manager in W.P.(C) No.12629/2011 and Shri B. Mohanlal, learned counsel for the petitioners in W.P.(C) No.6627/2011 and 14364/2011. 8. Shri M.V. Thamban, learned counsel for the petitioner in W.P.(C) No.3093/2011 submitted that the approved seniority list as on 1.4.1999, viz. Ext.P1 therein establishes the seniority of the petitioner over other teachers. The said seniority position has been altered by the Manager as per Ext.P2, which cannot be justified. When provisional approval was granted, the 6 wpc 3093/2011, etc. matter was taken up in revision before the Government and the Government passed Ext.P10 order. It is pointed out that even thereafter no steps were taken to prepare and finalise a proper seniority list and therefore the petitioner approached the Government again. Learned counsel for the petitioner further argued that the attempt is to deny the legitimate right of the said petitioner for promotion as Headmistress in the vacancy which arose on 1.4.2010. My attention was invited to various documents produced to show that in an attempt to deny the same, on unfounded allegations memo of charges have been issued. Even though finally the petitioner has been appointed on a provisional basis as Headmistress, thereafter also the Teacher-in-charge is not handing over all the records and thus she is not being allowed to exercise her powers properly as Headmistress. 9. Learned counsel for the Manager in W.P.(C) No.3093/2011, Shri James Koshy submitted that the directions issued by the Government, relied on by the petitioner, are without hearing the Manager. It is submitted that hasty decisions have been taken which cannot be justified. It is also pointed out that the seniority list is yet to be settled and therefore the claim of seniority by the petitioner cannot be justified in the light of the claims of other senior teachers. It is also pointed out that the Manager has filed I.A. wpc 3093/2011, etc. 7 No.7547/2011 to recall and review the interim order passed in I.A. No.4611/2011. Further, it is pointed out that by Ext.R5(g), as early as on 28.10.2008 the Manager requested the District Educational Officer to give a notional appointment to the petitioner in W.P.(C) No.6627/2011 with effect from 17.9.1992 for making him eligible for notional promotion as H.S.A. (Maths) from 6.6.1994. and if the same issue is decided in his favour, then the petitioner in W.P.(C) No.3093/2011 cannot claim seniority for appointment as Headmistress. It is further pointed out that by Ext.R5 (h), the Manager has moved the Government seeking a review of the order dated 3.12.2010, viz. Ext.P22 produced in the writ petition, accepting the claim of the petitioner in the writ petition with a further direction to take disciplinary action against the Manager. It is also pointed out that even without hearing the Manager, the said review petition has been closed by the Government which is not justifiable. Learned counsel for the Manager, therefore, prayed that the review petition may be directed to be heard by the Government afresh and the District Educational Officer may be directed to take decisions with regard to the claim of the petitioner in W.P.(C) No.6627/2011 and the provisional arrangement now made by the District Educational Officer promoting the petitioner in W.P.(C) No.3093/2011, could be continued subject to the final decision, as well as the finalisation of wpc 3093/2011, etc. 8 the seniority list and other inter-related issues. 10. Shri V.A. Mohammed, learned counsel appearing for the petitioner in W.P.(C) No.12629/2011 raised the following contentions: The seniority list, Ext.P2 was only provisionally approved by the District Educational Officer, in the light of Rule 34 of Chapter XIV-A K.E.R. At that time, the petitioner in W.P.(C) No.3093/2011 had no grievance, as the seniority was yet to be settled finally. This provisional approval is only for circulation among the teachers, pending finalisation of the objections/appeals, if any, preferred by aggrieved teachers. It is pointed out that the revision petition filed by the teacher, in such circumstances, before the Government was premature as it was not maintainable since a decision with regard to the seniority was yet to be taken by the District Educational Officer by finalising the list. It is pointed out that after the Government disposed of the revision petition by directing the Manager to prepare a seniority list, a fresh seniority list was also produced which is of the year 2010. Therefore, the directions issued by the Government was fully complied with by the Manager and the allegations otherwise raised by the fifth respondent in the writ petition, are not correct. It is therefore pointed out that there was no occasion for the Government to pas an order like Ext.P3, taking the view that the Manager has not taken steps to prepare the wpc 3093/2011, etc. 9 seniority list. The direction to take disciplinary action is therefore unsustainable. It is pointed out that the said order is passed without hearing the Manager. It is also pointed out that going by Rule 43 of Chapter XIV-A K.E.R., any promotion to the higher post can only be after considering efficiency and herein, as the fifth respondent is facing a disciplinary action, she cannot automatically claim promotion and hence the matter was not finalised and the teacher in charge was appointed. Learned counsel relied upon the decision of a learned Single Judge of this Court in W.P.(C) NO.28868/2002 and the decision of a Division Bench affirming the said judgment, reported in **Appukuttan Pillai R. v. State of Kerala and others** (2009 (4) KHC 418) and that of the Apex Court in **C.O. Arumugam v. State of Tamil Nadu** (1991 (Suppl.) 2 SCC 199). 11. Shri B. Mohanlal, learned counsel appearing for the petitioner in W.P.(C) No.6627/2011 submitted that the petitioner therein was appointed initially as U.P.S.A. in the school from 5.7.1991 to 15.10.1991 and he was the rightful claimant under Rule 51-A of Chapter XIV-A K.E.R. for appointment in the next arising vacancy. It is pointed out that he was shifted to another school under the management and thereafter the petitioner in W.P.(C) No.3093/2011 was appointed on 4.1.1994 ignoring the claim for his appointment. It is therefore submitted that the view taken by the 10 wpc 3093/2011, etc. District Educational Officer in Ext.P7 produced therein, that she is the seniormost, cannot be justified. Further, it is pointed out that he was not allowed an opportunity by the District Educational Officer, to have an effective hearing of the matter by producing documents and even though request was made, it was not granted. Therefore, it is submitted that the order is passed in violation of the principles of natural justice. 12. Even going by the admitted facts and pleadings of the various parties in W.P.(C) No.3093/2011, the position that emerges is the following: The approved seniority list of the school is Ext.P1 dated 1.4.1999. Ext.P2 is the seniority list prepared by the Manager as on 1.1.2008. The dispute with regard to the said seniority list, was not finalised. Evidently, only a provisional approval was granted by the District Educational Officer. The petitioner therein filed a representation before the Government challenging the provisional approval granted and the Government thereafter passed Ext.P10 order dated 19.3.2010. A reading of the order Ext.P10 produced in W.P.(C) No.3093/2011 shows that the Manager later produced another seniority list as on 1.1.2010 and the Government, after hearing all the parties herein, directed the District Educational Officer and the Manager to prepare and finalise a proper seniority list as laid down in Rules 34 to 39 of Chapter XIV-A K.E.R. The further direction by the Government was to wpc 3093/2011, etc. 11 grant promotion or charge arrangement to the post of Headmaster in the vacancy which will arise on 1.4.2010, subject to the finalisation of the seniority list, as it is under challenge. It is the case of the fifth respondent Manager that thereafter by Ext.R5(f), the seniority list as on 1.4.2010 has been forwarded on 31.1.2011, in compliance with the direction by the Government. 13. The said seniority list is yet to be finalised by the District Educational Officer. Whether the assignment of seniority to the petitioner in W.P.(C) No.3093/2011 has to be in terms of Ext.P1 seniority list, will have to be considered by the District Educational Officer while finalising the seniority list. Of course, the scheme of the rules, viz. Rules 35 to 38 of Chapter XIV-A K.E.R. provides for various steps in the matter. Rule 34 obliges every management to prepare and maintain, in Form 11A, a staff list otherwise called the seniority list of teachers as specified therein. Rule 35 provides for other guidelines for preparing the seniority list. It is provided therein that “the District Educational Officer, the Deputy Director (Education) and the Director, as the case may be, may approve the list provisionally pending finalisation of appeals if any preferred by aggrieved teachers.” Going by Note 2, the seniority list shall be made as on the 1[st] day of January of every year and the list should be made upto date and renewed wpc 3093/2011, etc. 12 every year. The competent authority shall approve the list provisionally by 30[th] June and finally by 31[st] August every year. Going by Rule 36, the staff list as provisionally approved shall be circulated to the teachers and representations if any received from the teachers within one month from the date of circulation, shall be submitted to the concerned officer competent to approve the list with the management's remarks within two months from the date of receipt of the list provisionally approved, to the authorities specified in Rule 35. Rule 37 provides for certain principles for settling the seniority and Rule 38 is the final step in that regard. Going by sub-rule (1) of Rule 38, the concerned Educational Officer may, after considering the representations if any, and after hearing the parties, if they deem it necessary, finalise and approve the list with or without change and the list so approved shall be final. Sub-rule (2) provides for the forum of filing appeal and going by the proviso, no appeal shall be entertained after the expiry of the one month period from the date of receipt of the order. This is the scheme under the relevant rules with regard to the preparation and finalisation of the seniority list. 14. Ext.R5(f) produced along with the counter affidavit of the Manager, is the list as on 1.4.2010 which has to be finalised after hearing the appeals and representations. This Court passed an interim order in I.A. wpc 3093/2011, etc. 13 No.2102/2011 in W.P.(C) No.3093/2011 on 16.2.2011, wherein a direction was issued to the District Educational Officer to hear the necessary parties to find out who among serial Nos.1 to 6 is senior and is entitled to be appointed as Headmaster/Headmistress in respect of the vacancy which has arisen on 1.4.2010. The District Educational Officer thereafter passed Ext.P24 order produced along with I.A. No.4611/2011. Therein, the view taken is that the petitioner, Smt. K.R. Geetha, is the seniormost teacher and a direction was issued to the Manager to appoint her. Thereafter, this Court considered the matter again and by an interim order passed in I.A. No.4611/2011 dated 1.4.2011, directed the Manager to promote the petitioner provisionally, as Headmistress, in terms of Ext.P24 order. The Manager was directed to implement the same. It is subsequent to that, the Manager has filed I.A. No.7547/2011 in I.A. No.4611/2011 to recall and review the order dated 1.4.2011. Later, the District Educational Officer passed Ext.P26 order produced along with I.A. No.9334/2011, appointing Smt. K.R. Geetha, the petitioner, as Headmistress and to approve it provisionally. In between, the Government also as per letter dated 27.4.2001, directed the District Educational Officer to appoint the petitioner as Headmistress, provisionally. 15. Learned counsel for the petitioner, Shri M.V. Thamban submitted wpc 3093/2011, etc. 14 that rather than leaving the matter for a decision by the District Educational Officer after considering the objections regarding the seniority list, as argued by the learned counsel appearing for the contesting parties and the Manager, this Court can verify the documents and declare that the petitioner, Smt.K.R. Geetha is senior. In fact, except the petitioner in W.P. (C) No.6627/2011 who is the additional 7[th] respondent in W.P.(C) No.3093/2011, other teachers are not parties in any of the writ petitions. As already noticed, there are various provisions providing for the procedures, with regard to the finalisation of a seniority list and it can be done after hearing the appeals/objections. The seniority list will have to be finalised and approved in terms of Rule 38 of Chapter XIV-A K.E.R. That exercise will have to be done by the District Educational Officer himself. Therefore, this Court may not be justified in approving or disapproving any seniority list. Further, the appellate and revisional remedies of the teachers are also there. 16. Then what remains is the plea of the Manager of the school that various allegations have been raised against the petitioner in W.P.(C) No.3093/2011 and disciplinary proceedings have been proposed against her. The memos issued by the Manager have been produced by the petitioner in W.P.(C) No.3093/2011 as per Exts.P14 and P17 and the explanations wpc 3093/2011, etc. 15 submitted by the petitioner have also been produced as Exts.P15 and P18. Even though she was suspended from service, that was not extended and she was reinstated and is now continuing as Headmistress on the basis of the provisional approval. The petitioner has got a case that the disciplinary action proposed itself is due to extraneous reasons, so as to deny her the rightful claim. But learned counsel for the Manager, Shri James Koshy and Shri V.A. Mohammed submitted that genuine allegations have been raised against her which require conduct of an enquiry. 17. In this context, Shri V.A. Mohammed, learned counsel for the petitioner in W.P.(C) No.12629/2011 submitted that the right for promotion conferred under Rule 43 of Chapter XIV-A K.E.R. is dependent upon the further rider that it could be on the consideration of efficiency. In that context, the judgment of this Court in O.P.No.28868/2002 is relied upon. Therein, while interpreting Rule 43 of Chapter XIV-A K.E.R., it was held as follows in para 13: “The words “subject to....consideration of efficiency” would certainly suggest that even though promotion has to be on the basis of seniority, the Manager has some discretion based on efficiency, in the matter of considering the right of a person for promotion............................. Therefore, simply because under Rule 43, the promotion is by seniority, the Manager is not wholly without any power to consider the suitability of the person, especially in wpc 3093/2011, etc. 16 view of the words subject to considerations of efficiency occurring therein.” This view was upheld by the Division Bench in **Appukuttan Pillai's case** (2009 (4) KHC 418). 18. The decision of the Apex Court in **C.O.Arumugam's case** (1991 (Suppl.) 2 SCC 199) is also relied upon in this context, to contend that promotion of persons against whom charge has been framed in disciplinary proceedings or charge-sheet has been filed in criminal case may be deferred till the proceedings are concluded. I am not pronouncing anything finally on this issue, because it is upto the District Educational Officer who will have to take a proper decision in the matter. Therefore, the petitioner in W.P.(C) No.3093/2011 also can raise all objections with regard to the disciplinary proceedings before the said officer. 19. What remains is the challenge against Exts.P3, P8 and P9 produced in W.P.(C) No.12629/2011. It is argued by the learned counsel for the Manager that Ext.P9 has been issued by the Government without hearing the petitioner. The said letter is issued on a review petition filed by the Manager. The review was sought against Ext.P3 produced therein. In Ext.P3 order, after holding that the petitioner in W.P.(C) No.3093/2011 is the rightful claimant to the post of Headmistress and finding that the Manager has not prepared the seniority list as directed by the Government, wpc 3093/2011, etc. 17 the Director of Public Instruction was directed to initiate disciplinary action. It is contended that Ext.P3 is issued based on a letter dated 2.11.2010 of the District Educational Officer. Shri V.A. Mohammed and Shri James Koshy pointed out that prior to the issuance of Ext.P3 also, no notice was issued to the Manager. It is further pointed out that the Manager had actually taken steps to prepare and produce the seniority list as directed by the Government in the order referred to as No.1 therein, viz. Ext.P10 in W.P.(C) No.3093/2011. It is also pointed out that if a notice was issued to the Manager, he would have been able to appraise the Government about the pending disciplinary action which required the postponement of the promotion. Therefore, it is submitted that on both occasions, viz. while passing Ext.P3 as well as while rejecting the review petition, the petitioner was not issued a notice and a hearing was thus denied. Therefore, it is mainly contended that these two communications have been issued in violation of the principles of natural justice. Shri M.V. Thamban, learned counsel appearing for the fifth respondent therein submitted that the review petition itself was not maintainable as it was belated, as Rule 93 of Chapter XIV-A K.E.R. only provides for two months from the date of the order, to file the review petition. It is also pointed out that the contents of the review petition will show that the filing of the same is also suspicious. My wpc 3093/2011, etc. 18 attention was invited to the averments in the counter affidavit filed by the fifth respondent in that context. Learned counsel submitted that in Ext.P4 review petition which is dated 21.1.2011, mention is made about a seniority list prepared for the year 2010-2011 and submitted for approval to the District Educational Officer, Kottarakkara on 31.1.2011. Therefore, it is pointed out that no credence can be given to the review petition. The learned counsel for the Manager Shri V.A. Mohammed submitted that a verified petition has been filed as I.A. No.10659/2011 by the petitioner stating that the date of Ext.P4 is actually 21.2.2011 and it was a typographical error. 20. Whether the review petition itself is maintainable or not, is a matter for the Government to consider. Evidently, while issuing Ext.P9 rejecting the review petition, the parties were not heard. Learned Govt. Pleader submitted that it was disposed of in the light of the interim order dated 1.4.2011 passed by this Court in I.A. No.4611/2011 in W.P.(C) No.3093/2011. Whatever that be, it could have been heard and disposed of with notice to all the parties. 21. One of the issues raised by Shri M.V. Thamban, learned counsel for the petitioner in W.P.(C) No.3093/2011 is that the teacher in charge has not handed over all the records and what is handed over are only 10 items of wpc 3093/2011, etc. 19 documents, going by the list of documents produced along with I.A. No.9598/2011 as Ext.P30. It is submitted that he cannot refuse to hand over the records. Therefore, learned counsel prayed for a direction to the teacher-in-charge to hand over all the records. 22. In the above view of the matter, the writ petitions are disposed of with the following directions: (i) The petitioner in W.P.(C) No.3093/2011 will continue to function as Headmistress, in the light of the provisional approval granted by the District Educational Officer. The complaint that all the records have not been handed over to her, will be looked into by the District Educational Officer and appropriate directions will be issued in that regard expeditiously. (ii) Ext.P9 order produced in W.P.(C) No.12629/2011 is quashed. The review petition filed by the Manager as per Ext.P4, will be considered by the Government and appropriate orders will be passed after hearing the parties, and after considering the respective contentions, within a period of three months from the date of receipt of a copy of this judgment. (iii) The District Educational Officer will take a final decision with regard to the finalisation and approval of seniority list, Ext.R5 wpc 3093/2011, etc. 20 (f), after completing all procedures and hearing the parties including the petitioners and other teachers, within a period of two months from the date of receipt of a copy of the order to be passed by the Government as directed above. He will also take a decision with regard to the disciplinary action proposed against the petitioner in W.P.(C) No.3093/2011 and appropriate orders will be passed after hearing the parties expeditiously, at any rate, within two months from the date of receipt of a copy of this judgment. (iv) A decision with regard to the petition filed by the Manager of the school as regards the petitioner in W.P.(C) No.6627/2011 which is produced as Ext.R5(g) in W.P.(C) No.3093/2011, will be taken after hearing all the parties concerned, along with other petitions, if any, pending before him, within two months from the date of receipt of a copy of this judgment.. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**