K.T. Sabu v. State of Kerala & Others (WA Nos. 2468 of 2016 & 2476 of 2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** ## **WA.No.2468 of 2016** **AGAINST THE JUDGMENT IN WP(C) NO.28815/2016 DATED 21-10-2016 OF HIGH COURT OF KERALA** ## **APPELLANT:** **K.T.SABU, SON OF K.P THANKAPPAN, AGED 47 YEARS, HSST (ENGLISH), VPM SNDP HSS, KAZHIMBRAM, EDAMUTTAM P.O, THRISSUR, RESIDING AT KALAPURATHOTTIYIL, VEZHAPARAMBU, MULANTHURUTHY P.O, ERNAKULAM 682 314.** ## **BY ADV. SMT.REKHA VASUDEVAN** ## **RESPONDENTS/PETITIONERS & RESPONDENTS:** - **1 SMT.BINDHU BALAKRISHNAN, PRINCIPAL, SNV HSS CHITHARA, KOLLAM DISTRICT 691 559.** - **2 SMT.B. RAJASREE, PRINCIPAL, SNDP HSS, VENKURINJI, PATHANAMTHITTA, PIN 689 662.** - **3 K.S CHITHIRA, PRINCIPAL, VPM SNDP HSS, KZHIMBRAM.** - **4 STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **5 THE DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM 695 001.** - **6 REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM 695 001.** **W.A.Nos.2468 of 2016 & - 2 - 2476 of 2016** **7 REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, CHENGANNOOR, 686 501. 8 REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, ERNAKULAM 682 024. 9 THE GENERAL MANAGER, CORPORATE MANAGEMENT OF SNDP YOGAM SCHOOLS, KOLLAM 691 001. R9 BY ADV. SRI.A.N.RAJAN BABU** ## **OTHER PRESENT:** **R4 TO R8 BY SMT.RAJI T. BHASKAR, GP R1 TO R3 BY SRI.PAULSON THOMAS.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2019, ALONG WITH WA.2476/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.Nos.2468 of 2016 & - 3 - 2476 of 2016** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** ## **WA.No.2476 of 2016** **AGAINST THE JUDGMENT IN WP(C).NO.38948/2016 DATED 08-12-2016 OF HIGH COURT OF KERALA** ## **APPELLANT/3RD PARTY:** **K.T.SABU, SON OF K.P.THANKAPPAN, AGED 47 YEARS, HSST(ENGLISH), VPM SNDP HSS, KAZHIMBRAM, EDAMUTTAM P.O., THRISSUR, RESIDING AT KALAPURATHOTTIYIL, VEZHAPARAMBU, MULANTHURUTHY P.O., ERNAKULAM - 682 314.** **BY ADV.SMT.REKHA VASUDEVAN** ## **RESPONDENTS/PETITIONERS & RESPONDENTS IN WRIT PETITION:** - **1 DR.K.R.SHAIJU, SON OF KARUNAKARAN, AGED 49 YEARS, RESIDING AT ANAMIKA, KOLLAYIL P.O., MADATHARA, PRINCIPAL, SNV HIGHER SECONDARY SCHOOL, AANADU, NEDUMANGAD P.O., THIRUVANANTHAPURAM-695 541.** - **2 STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **3 THE DIRECTOR, HIGHER SECONDARY EDUCATION, HIGHER SECONDARY DIRECTORATE, THIRUVANANTHAPURAM-695 001.** - **4 REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM-695 033.** **W.A.Nos.2468 of 2016 & - 4 - 2476 of 2016** **5 THE GENERAL MANAGER, CORPORATE MANAGEMENT OF SNDP YOGAM SCHOOLS, KOLLAM-691 001.** **BY ADVS. R1 SRI.K.SIJU R1 SMT.RENY ANTO R2 TO R4 BY GOVT. PLEADER SMT.RAJI T.BHASKAR R5 SRI.A.N.RAJAN BABU** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2019, ALONG WITH WA.2468/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **W.A.Nos.2468 of 2016 & 2476 of 2016** **- 5 -** ## **JUDGMENT** ## **[ WA.2468/2016, WA.2476/2016 ]** **Vinod Chandran,J.** **The controversy involved in the above appeals is intrinsically connected with the writ petition filed by the appellant herein, which was disposed of by judgment dated 05.06.2017; the Judges Papers of which has been called for by us and perused. The parties are referred to by their names.** **2. The issue relates to the seniority in the cadre of Higher Secondary School Teacher (Junior) [for brevity “HSST (Junior)”]. K.T.Sabu, the appellant in both the Writ Appeals, was a High School Assistant [for brevity “HSA”] in a school under the Corporate Management, having been so promoted on 01.12.1995 from the post of Upper Primary School Assistant [for brevity “UPSA”], to which post he was originally appointed on 13.09.1994. Though not significant, for completion of narration of facts, Sabu was reverted to the post of UPSA on 29.03.1996 for reason of a division fall. Again, on 03.06.1996 he was appointed, on regular basis, as HSA and then promoted as HSST (English) on 02.11.1998. He continued thereat and only on 21.02.2015,** **W.A.Nos.2468 of 2016 & - 6 - 2476 of 2016** **there was a seniority list published; wherein he found that there was an HSST (English) appointed by direct recruitment on 21.10.1998, who is one Bindu Vidhyadharan, who finds a place as additional 8[th] respondent in a writ petition filed by Sabu, numbered as W.P.(C).21345 of 2015.** **3. W.P.(C).21345 of 2015 was filed in the wake of the apprehension harboured by Sabu in the matter of appointment and consequent seniority in the post of HSST (Junior) between promotees (by-transfer appointees) and direct recruits when there was a ratio prescribed of 25:75 as per a Government Order. The contention of Sabu was that he being a claimant for by-transfer appointment to the post of HSST (Junior), in implementing the ratio the first post has to be given to the eligible HSA, to be appointed by-transfer. The above view also stands now sustained by the Hon'ble Supreme Court in** _**V.K.Girija v**_ **.** _**Reshma Parayil & Ors**_ **. [** _**(2019) 2 SCC 347**_ **].** **4. The learned Counsel for the respondents has a contention that the said declaration is based on the rule as it exists in the Kerala Education Rules, 1959 [for brevity “KER”] with respect to a ratio of 1:3. We are of the opinion that even with respect to the the ratio of 25:75 fixed by G.O.(M.S.)No.162/98/G.Edn. dated 13.05.1998;** **W.A.Nos.2468 of 2016 & - 7 - 2476 of 2016** **the declaration made in the afore-cited decision would apply, since the Government Order also provided for appointment by Direct Recruitment to the vacancies of HSST (Junior) after filling up 25% vacancies arising with by-transfer appointments from qualified High School Assistants and Primary School Teachers.** **5. Sabu filed W.P(C) No.21345 of 2015 contending that there is an objection filed against the seniority list before the Regional Deputy Director of Higher Secondary Education and if the approvals to the promotions granted to the various party respondents are taken up and decided in the meanwhile, his claims would be adversly affected. He, hence, impleaded five persons in the writ petition as respondents 4 to 8. There was also an interim order in the above case, wherein it was specifically directed that the appointment to the post of Principal shall be subject to the result of the writ petition. There was also an interim direction to the 1[st] respondent to consider the objection to the seniority list within a period of one month, after hearing all the necessary parties.** **6. The respondents being aggrieved with the fact** **that neither the objections to the seniority list were being considered nor their approvals, approached the** **W.A.Nos.2468 of 2016 & - 8 - 2476 of 2016** **learned Single Judge with an Interlocutory Application, in W.P.(C) No.21345 of 2015, numbered as I.A.No.12033 of 2016, for consideration of their approval. Then, while the said petition was pending before the learned Single Judge, three of the respondents, being respondents 5 to 7 filed a separate writ petition [W.P.(C) No.28115 of 2016] seeking consideration of their approval. The same was disposed of by judgment dated 21.10.2016, directing consideration of their approval. The interim order in the earlier petition was produced therein; but, however, Sabu was not impleaded. There was also no whisper about the prayer in the Writ Petition having been sought by way of an Interlocutory Application in the other W.P.(C) No.21345 of 2015. Later, the 4[th] respondent also filed W.P.(C) No.38948 of 2016, wherein the learned Single Judge followed his judgment in W.P(C) No.28815 of 2016 and directed consideration of the approval of the said respondent also. The appeals, numbered after obtaining leave, arise respectively from these two judgments passed by the learned Single Judge.** **7. The learned Counsel for the appellant submits that if the approvals are considered without the objections against the seniority list being decided, the appellant would lose the chance of seniority as against all these** ## **W.A.Nos.2468 of 2016 & - 9 - 2476 of 2016** **persons who were impleaded properly in the first writ petition, filed by the appellant herein. It is also contended that the respondents 5 to 7 therein though not appointed as HSST (English), their appointments, being in the direct recruitment vacancies, should be later to the date on which the appellant claims by-transfer appointment to the post of HSST (Junior)(English). The appellant claims that post, as against which appointment was given to Smt.Bindu Vidhyadharan. That post, specifically being the first arising in the Higher Secondary Section of the school has to be filled up on by-transfer appointment. Hence, the approval to the post of Principal if considered without consideration of the objections, it would prejudice the case of Sabu, is the specific contention urged before us.** **8. We then queried as to why in the subsequent writ petitions Sabu was not made a party. The learned Counsel for the party respondents in the Writ Appeals has a contention before us that the same was not required, since it does not affect the rights of Sabu especially since they were appointed to posts to which Sabu does not raise a claim. We are unable to countenance such a contention, since the grievance raised by Sabu in his writ petition was specifically as to the fixation of his seniority; whether** **W.A.Nos.2468 of 2016 & - 10 - 2476 of 2016** **they are appointed to the post of HSA (English) on 21.10.1998 or otherwise. The specific claim, we reiterate, is for the first vacancy to be filled up on by-transfer appointment, which if granted to Sabu, all the other respondents would be placed junior to Sabu in the common seniority list of the Corporate Management; irrespective of the subject and then he has a valid claim to be promoted as Principal over the other party respondents.** **9. We are not happy at the manner in which the writ petitions were filed without Sabu in the party array; especially when a similar prayer was sought by an IA in that other writ petition, which was pending and which fact was not disclosed in the later writ petition. The affidavits filed in the writ petitions also contain a declaration that the petitioners have not claimed similar or identical relief on the same subject matter. The present Writ Appeals have been necessitated only because Sabu was not in the party array and the pendency of I.A.No.12033 of 2016 in W.P.(C) No.21345 of 2015 was not disclosed in the respective writ petitions. We deprecate such conduct; but do not intend to go further into the matter and we are of the opinion that there could be a quietus to the issue if the approvals are directed to be kept in abeyance till the** **W.A.Nos.2468 of 2016 & - 11 - 2476 of 2016** **objections to the seniority list are finalised and cost imposed on the party respondents.** **10. The learned Government Pleader informs us that, the objections have been heard and orders are pending. In such circumstances, we direct that the objections pending before the Government shall be finalized within a period of one month from today. The approval shall be considered only in accordance with the findings of the Government, subject to the challenge made by either of the parties to such consideration by the Government. We are informed that the approvals have already been granted; which was occasioned only because of the subterfuge employed by the party respondents. We direct that the approvals, if already granted shall not be made effective and the same shall be considered after the objections are considered.** **The Writ Appeals are disposed of with the above directions. Considering the fact that the writ appeals were necessitated by reason of non-impleadment of the appellant the party respondents shall be liable for the costs of the appellant, which we quantify at a consolidated amount of Rs.10,000/- [Rupees ten thousand] for both appeals, and direct the Corporate Management to deduct the salaries of** ## **W.A.Nos.2468 of 2016 & - 12 - 2476 of 2016** **the party respondents equally and pay it to the appellant herein; if the party respondents do not pay it directly to the appellant and produce satisfactory evidence, within one month from the date of receipt of a certified copy of this judgment.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** **Vku/-** **W.A.Nos.2468 of 2016 & 2476 of 2016** **- 13 -** ## **APPENDIX OF WA.2468/2016** ## **APPELLANT'S ANNEXURES:** **ANNEXURE I TRUE COPY OF THE APPLICATION DATED 29/07/2016 ALONG WITH THE LETTER NO.A.C.D.B3/35044/16/H.S.E. DATED 19/08/2016 AND LETTER DATED 09/09/2016 ISSUED BY THE PUBLIC INFORMATION OFFICER.** **ANNEXURE II TRUE COPY OF THE RELEVANT PORTION OF THE PROVISIONAL SENIORITY LIST CIRCULATED BY THE 9TH RESPONDENT ON 21/02/2015. ANNEXURE III TRUE COPY OF THE APPEAL DATED 08/09/2016 FILED BY THE APPELLANT BEFORE THE 4TH RESPONDENT.** **ANNEXURE IV TRUE COPY OF THE IA NO.12583/2016 FILED BY THE RESPONDENTS 1 TO 3 HEREIN IN WPC NO.21345/2016.** **ANNEXURE V TRUE COPY OF THE INTERIM ORDER DATED 21/12/2016 IN WA NO.2476/2016. ANNEXURE VI TRUE COPY OF THE ORDER NO.TRO10/11323/16/HSE(I) DATED 22/11/2016 ISSUED IN RESPECT OF THE 1ST RESPONDENT. ANNEXURE VII TRUE COPY OF THE ORDER NO.50/C4/2016/HSE/CNGR DATED 19/12/2016 IN RESPECT OF THE 2ND RESPONDENT. ANNEXURE VIII TRUE COPY OF THE ORDER NO.50/C4/2016/HSE/CNGR DATED 19/12/2016 ISSUED IN RESPECT OF THE 3RD RESPONDENT. ANNEXURE IX TRUE COPY OF THE APPLICATION DATED 26/12/2016 SUBMITTED BY THE APPELLANT BEFORE THE 7TH RESPONDENT AND THE CHALLAN REMITTING THE FEE FOR THE PHOTOCOPY. ANNEXURE X TRUE COPY OF THE LETTER NO. 11008/C.4/R.D.D/2016/HSE DATED 31/12/2016 ISSUED FROM THE OFFICE OF THE 7TH RESPONDENT.** **W.A.Nos.2468 of 2016 & - 14 - 2476 of 2016** **ANNEXURE XI TRUE COPY OF THE HEARING NOTE DATED 10/11/2016 OF THE HEARING CONDUCTED BY THE 7TH RESPONDENT.** **ANNEXURE XII TRUE COPY OF THE SENIORITY LIST OF HSST UNDER THE 9TH RESPONDENT AS ON 01/01/2014.** **W.A.Nos.2468 of 2016 & 2476 of 2016** ## **- 15 -** ## **APPENDIX OF WA.2476/2016** ## **APPELLANT'S ANNEXURES:** ## **ANNEXURE I** **TRUE COPY OF THE APPLICATION DATED 29/07/2016 ALONG WITH THE LETTER NO.A.C.D.B3/35044/16/H.S.E. DATED 19/08/2016 AND LETTER DATED 09/09/2016 ISSUED BY THE PUBLIC INFORMATION OFFICER.** **ANNEXURE II TRUE COPY OF THE RELEVANT PORTION OF THE PROVISIONAL SENIORITY LIST CIRCULATED BY THE 5TH RESPONDENT ON 21/02/2015.** **ANNEXURE III TRUE COPY OF THE APPEAL DATED 08/08/2016 FILED BY THE APPELLANT BEFORE THE 2ND RESPONDENT.** **ANNEXURE IV TRUE COPY OF THE LETTER NO.T.R.O/06/6123/2015/H.S.E. DATED 07/08/2015.** **ANNEXURE V TRUE COPY OF THE ORDER NO.C2/3029/HSE/99 DATED 06/03/1999 ISSUED BY THE 3RD RESPONDENT.** ## **RESPONDENT'S/S ANNEXURE:** **ANNEXURE R1(A) THE TRUE COPY OF IA NO.11669/2015 IN WPC NO.21345/2015 OF THE HON'BLE HIGH COURT OF KERALA.** **[ true copy ]**