Lilly. V.A. v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937 ## W.P.(C).No.20448 of 2012 (E) -------------------------------------------------- PETITIONER(S):- -------------------------- LILLY. V.A., PRINCIPAL, ST. ANTONY'S HSS, MOORKKANAD, THRISSUR. BY ADVS.SRI.PAULSON THOMAS SRI.BENOY THOMAS RESPONDENT(S):- ---------------------------- 1. STATE OF KERALA, - REPRESENTED BY THE SECRETARY, GENERAL EDUCATIONDEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695601. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM, PIN-695001. 3. REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, EDAPPALLY-682024. 4. CORPORATE MANAGER, DIOCESE OF IRINJALAKUDA, IRINJALAKKUDA, THRISSUR, PIN-680121. 5. JAISON PIUS, - HSST(JR) ECONOMICS, ST.MARY'S HSS, IRINJALAKUDA, THRISSUR-680121. R1 TO R3 BY SENIOR GOVERNMENT PLEADER SMT.M.J.RAJASREE. R4 BY ADV. SRI.S.MUHAMMED HANEEFF R5 BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- W.P.(C) NO.20448 OF 2012-E ## **APPENDIX** ## PETITIONER(S) EXHIBITS:- -------------------------------------- EXT-P1 TRUE COPY OF THE APPROVAL ORDER OF THE PETITIONER AS HSST JUNIOR ECONOMICS W.E.F.1.1.2002 - EXT-P2 TRUE COPY OF THE APROVAL PROCEEDINGS OF THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION DATED 25.1.2012 GRANTING APPROVAL TO THE PETITIONER HSST ECONOMICS W.E.F.25.6.2010. - EXT-P3 TRUE COPY OF THE PROCEEDINGS OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION DATED 6.8.2012. - EXT-P4 TRUE COPY OF THE APPROVAL ORDER OF THE PETITIONER AS LPSA. - EXT-P5 TRUE COPY OF GO(MS)141/2008.GEN DATED 18.8.2008. - EXT-P6 TRUE COPY OF THE ORDER DT.2.7.2015 ISSUED BY THE HIGHER SECONDARY EDUCATION. EXT-P7 TRUE COPY OF THE PROCEEDINGS NO.32759T2/2010/GEN.EDN. DATED 06.1.2011. ## RESPONDENTS' EXHIBITS:- ---------------------------------------- EXT.R5(a) TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 5TH RESPONDENT DATED 6.6.2000. EXT.R5(b) TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 5TH RESPONDENT DATED 22.10.1998. EXT.R5(c) TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 5TH RESPONDENT DATED 2.2.1999. EXT.R5(d) TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 5TH RESPONDENT DATED 3.6.1999. EXT.R5(e) TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 5TH RESPONDENT DATED 21.10.1999. EXT.R5(f) TRUE COPY OF THE ORDER OF APPOINTMENT OF THE 5TH RESPONDENT DATED 4.1.2000. W.P.(C) NO.20448 OF 2012-E - 2 - EXT.R5(g) TRUE COPY OF THE LETTER NO.ED.NO.79/2010 OF THE CORPORATE MANAGER DT.11.05.2010. EXT.R5(h) TRUE COPY OF THE COMMUNICATION NO.32759/T2/2010/G.EDN. OF THE GOVERNMENT DT.6.1.2011. EXT.R5(i) TRUE COPY OF THE COMMUNICATION NO.B2/10047/RDDE/10 OF THE GOVERNMENT DATED 13.1.2011. vku/- [ true copy ] ## “C.R.” ## K. Vinod Chandran, J --------------------------------------- ## W.P.(C) No.20448 of 2012-E --------------------------------------Dated this the 09[th] day of March, 2016 ## **JUDGMENT** The petitioner is aggrieved with Exhibit P3 order of the Director of Higher Secondary Education, which directed the 5[th] respondent to be appointed as Higher Secondary School Teacher [for brevity “HSST”]. 2. The incumbency details of the petitioner and the 5[th] respondent are as here in after stated. Both the petitioner and the 5[th] respondent were appointed as Lower Primary School Assistant [for brevity “LPSA”] on 06.06.2000 and as HSST (Junior) on 01.01.2002; the very same dates. Both the petitioner and the 5[th] respondent also had prior service in the very same school, as Upper Primary School Assistants [for brevity “UPSA”]. No documents of the petitioner's prior service is produced. But, the petitioner admits that the same was subsequent to the broken service of the 5[th] respondent. WP(C)No.20448 of 2012 - 2 - 3. The petitioner was promoted to the vacancy of HSST on 25.06.2010 when a vacancy arose in the subject of Economics; in which both the petitioner and the 5[th] respondent are qualified. The petitioner's appointment was approved as per Exhibit P2. The 5[th] respondent challenged the petitioner's appointment and its approval, before the Director of Higher Secondary Education, which resulted in Exhibit P3 order, against the petitioner; which is challenged herein. The petitioner was also subsequently appointed as Principal and is continued as per the interim order granted by this Court. It is the seniority claim which has to be decided as between the petitioner and the 5[th] respondent. 4. The learned counsel for the petitioner assails Exhibit P3 on the preliminary ground of there being no jurisdiction conferred on the Director, since Chapter XXXII of the Kerala Education Rules, 1959 [for brevity “KER”] does not speak of an appeal to the Director of Higher Secondary Education. It is also pointed out that Chapter XXXII, Rule 1(b), defines “Director” as the Director of Higher Secondary Education Department or any officer authorised by the Government to exercise such power. WP(C)No.20448 of 2012 - 3 - The Regional Deputy Director having been authorised to exercise the power of Director, there could be no further appeal to the Director of Higher Secondary Education, is the compelling argument. 5. On facts it is contended that in the Higher Secondary section the seniority has to be considered only in accordance with the general principles, being that, if the appointment to the post of HSST (Junior) is on the same date, then the elder person would have seniority. The petitioner also contends that there can be no importing of the provisions of Chapter XIV-A to Chapter XXXII, since this Court has found that it is not possible, in _**Pathanapuram Taluk S.C.M.Schools v. Sreelatha**_ **[2006 (3) KLT 867]** and _**Sam Joseph v. State of Kerala**_ **[2009 (3) KLT 99].** 6. The learned counsel for the petitioner also would refer to Chapter XXXII to further buttress his contentions. Rule 6, relating to qualifications of the Principal, is pointed out to indicate that the qualifying service in the lower unit cannot be reckoned for seniority. One of the qualifications required for promotion as Principal is a minimum approved teaching experience of 12 years WP(C)No.20448 of 2012 - 4 - at Higher Secondary School Level under the same Educational Agency. A relaxation is provided, insofar as any person having six years service in the Higher Secondary section being entitled to seek for reckoning of approved teaching experience at the High School/Upper Primary/Lower Primary schools; but only insofar as reckoning the qualifying service and not for the purposes of seniority. Rule 4 of Chapter XXXII is referred, to indicate that Serial No.2 speaks of 'by transfer' appointment from Junior Lecturer/HSST (Junior), which has to follow the general principles of seniority. If such general principles of seniority is followed, necessarily the petitioner and the 5[th] respondent having been appointed on the same day, petitioner, being elder, would have to be granted such seniority, is the argument. 7. The learned counsel for the 5[th] respondent would canvass the position that the seniority in the grade of HSST (Junior) would depend upon their respective seniority in the lower unit; to determine which, necessarily reliance has to be made to Rule 37(2). The learned counsel relies on a Full Bench decision of this Court in _**Valsamma v. State of Kerala**_ **[2014 (4) KLT 569 (F.B.)]** to contend that in deciding the seniority under rule 37(2), WP(C)No.20448 of 2012 - 5 - the 'first appointment' would have to be reckoned, taking into account the service in a leave vacancy also. The 5[th] respondent would also rely on the decision in _**Saramma Joseph v. Secretary to Government**_ **[2001 (3) KLT 36]** to advance the aforesaid contention. The contention of the 5[th] respondent is that the seniority has to be decided on the basis of Rule 37 of Chapter XIV-A KER, since both the petitioner and the 5[th] respondent were working in the lower section of the same school and was appointed 'by transfer' to the post of HSST (Junior). The 'by transfer' appointment was by virtue of such continuous service in the lower unit. The learned counsel for the 5[th] respondent would rely on the decision in _**Jayasree v. Director of H.S.E.**_ **[2009 (2) KLT 352].** 8. The learned counsel for the petitioner, however, would refute such argument on the ground that the Full Bench decision and the Division Bench decision noticed therein were all with respect to the 'first appointment' in the lower category, being a regular appointment of continuous nature and no service in a leave vacancy can be reckoned for determining the first appointment. The petitioner relies on the decision in WP(C)No.20448 of 2012 - 6 - _**A.Janardhana v. Union of India and Others**_ **[AIR 1983 SC 769]** and _**B.Manmad Reddy v. Chandra Prakash Reddy**_ **[(2010) 3 SCC 314]** to contend that no rule being available under Chapter XXXII and the provisions of Chapter XIV-A being impossible of application to Chapter XXXII, the general principles would have to be resorted to and the petitioner, who is elder, would have to be assigned such seniority. 9. Both the petitioner and the 5[th] respondent were teachers in the L.P. section of the very same school when they were promoted to the post of HSST (Junior) on the very same day. Their regular appointment in the post of LPSA was also on the same date. Both of them had prior service as UPSA, in leave vacancies, again in the same school; but the first appointment being admittedly that of the 5[th] respondent. The entire issue would depend on whether Rule 37(2) has any relevance insofar as deciding the seniority of HSST's and the interpretation given to “first appointment” found in the above rule. 10. _**Sreelatha**_ ( _supra_ ) sought for compassionate appointment on the ground that her husband, who was working as a UPSA in an aided school, died in harness. As against the - 7 - WP(C)No.20448 of 2012 offer of appointment to the post of Full-time Menial, the petitioner sought for appointment as Laboratory Assistant in the Higher Secondary section. A Division Bench of this Court found that a Rule 51B claimant cannot be heard to seek appointment to the vacancy arising in the Higher Secondary section, since the scheme for employment assistance for dependents of teaching and non-teaching staff of aided Higher Secondary Schools and aided Vocational Higher Secondary Schools were made applicable by a separate order. Without incorporation of Rule 51B in Chapter XXXII, there could have been no claim raised on the basis of the statutory right arising under Chapter XIV-A to a vacancy in the Higher Secondary section, which is exclusively covered by Chapter XXXII. 11. _**Sam Joseph**_ ( _supra_ ) the senior most HSST under a corporate educational agency claimed appointment as Principal in the Higher Secondary section of a Girls High School; as against the Managers decision to appoint an admitted junior lady teacher. The Manager on the strength of Rule 35 of Chapter XIVA, sought to uphold his action since it permits separate seniority list of teachers in the girls schools and boys schools. WP(C)No.20448 of 2012 ## - 8 - Chapter XIV-A was found to be not applicable for the Higher Secondary section covered under Chapter XXXII. The permission to admit boys in the Higher Secondary section of a girls High School and vice versa was specifically noticed. Relevant also would be reference to _**Jayasree**_ ( _supra_ ), who was appointed in leave vacancies in two spells and raised a claim to a subsequent regular vacancy. A Division Bench of this Court found that an HSST relieved on termination of vacancy would not be entitled to make a claim under Rule 51A; but, however, the general principles of service jurisprudence was relied on to find that a person validly appointed to a vacancy, by a selection process and thrown out on termination of the vacancy would be entitled to raise a claim for the next arising vacancy. The 5[th] respondent cannot garner any help from the said decision since it did not agree with the proposition that Chapter XIVA was applicable to Chapter XXXII. 12. On the binding precedents noticed above, it is clear that Chapter XIV-A and the provisions thereunder would not apply to Chapter XXXII. Determination of seniority under Chapter XXXII would have to be made on the general principles. WP(C)No.20448 of 2012 - 9 - _**B.Manmad Reddy**_ ( _supra_ ) was relied on to contend that on being integrated into a higher cadre the incumbents have to necessarily loose their birth-mark; meaning the source from which they were recruited. No preference could be conferred merely by virtue only of the particular source; say direct recruitment candidates being first considered. This works in showering inequities which has to be avoided following the constitutional embargo in Article 16 was the finding. This would not be applicable since the source of appointment of the rival claimants is the same herein. 13. In _**A.Janardhana**_ ( _supra_ ) it was held that in the absence of a rule, general principles would have to be applied. The well recognised canon of service jurisprudence for determining _inter-se_ seniority of members of the same service were stated to be: 'rule of continuous officiation or length of service or the date of entering into service and continuous uninterrupted service' ( _sic_ ). The concept of first appointment is one coming within the above; i.e., the first entry in service. Both the petitioner and the 5[th] respondent were promoted to the post of HSST (Junior) by virtue of their regular appointments and continuous service as LPSA in the very same school. Referring to WP(C)No.20448 of 2012 ## - 10 - general principles the petitioner would emphasise the rule of reference to age. But general principles also take within its ambit the rule of first appointment. Both these concepts are recognised in KER as far as aided schools upto high schools are concerned. Such recognition is by virtue of R 37 (2) of Chapter XIVA, which first recognises 'continuous service' and that being equal, 'first appointment' and only as a last resort the 'age'. 14. Essentially the rival claimants were promoted as HSST (Junior) by virtue of their service in the lower section of the school; to which a ratio is conceded by Chapter XXXII. Hence in deciding on who is to be promoted to the Higher Secondary, the seniority in the lower sections is the reigning consideration. This Court has also time and again held that in working the ratio for recruitment as HSST (Junior); and resorting to 'by transfer' appointment, the senior eligible in the lower category would have to be preferred and the subject of that senior be filled up 'by transfer'. It cannot be said that there is absolutely no relevance to the seniority of the rival claimants in the lower section. Viewed in that context, if there was only one vacancy of HSST (Junior) available in the Higher Secondary section, who among them WP(C)No.20448 of 2012 - 11 - would have been so promoted, is a significant aspect to be examined. 15. It so transpired that two vacancies arose and both the petitioner and the 5[th] respondent were promoted on the same day. For determining the seniority in the Lower Primary section, necessarily Rule 37(2) would have to be looked at. Rule 37(2) speaks of “continuous service” and “first appointment”; both having been considered in the Full Bench judgment. There is a rule determining how the seniority has to be reckoned and though not applicable in the higher secondary section, the same can be adopted as the eminent norm regulating the assignment of seniority. The rival claimants come from the same source and though their birth-mark is obliterated on promotion, between them a dispute on seniority could be first resolved on the basis of 'first appointment' and then 'age'; their 'continuous service' being the same. 16. The Full Bench in _**Valsamma**_ ( _supra_ ) interpreted Rule 37(2) and the words “continuous service” and “first appointment”. The matter was placed before the Full Bench, since a Division Bench expressed a doubt regarding the law laid WP(C)No.20448 of 2012 ## - 12 - down by another Division Bench in W.A.No.3249 of 2001. The Full Bench affirmed the view taken by the earlier Division Bench and did not approve the doubt expressed by the later Division Bench. The facts in the case considered by the Full Bench and the Division Bench reveal that rival claimants were before the Court claiming the post of Headmaster/Headmistress (H.M). High School Assistants [for brevity “HSAs”], appointed on the same day as HSA, claimed promotion to the post of H.M. One of them was older than the other and on the basis of such seniority in age, claimed seniority in the cadre of HSA. The other, younger teacher, had an earlier service in the lower section of the school, upon which, the seniority had to be determined as per Rule 37(2). 17. Rule 37(1) offers no difficulty insofar as seniority of a teacher in any grade in any unit has to be decided with reference to the length of continuous service in that grade in that unit, subject to the teacher being qualified for the post. Rule 37(1) has no application, since both the claimants were appointed in the same grade in the same unit on the same date. This requires the seniority to be determined as per sub-rule (2) of Rule 37. Sub-rule (2) starts with the recital that when the commencement WP(C)No.20448 of 2012 - 13 - of continuous service in the same grade, in the same unit, is on the same day, then the seniority has to be decided with reference to the date of first appointment. 18. The Full Bench found that the younger HSA had an earlier service as UPSA and the date of first appointment would enure to the benefit of the younger. The declaration of law, approving the earlier Division Bench, was that “continuous service” and “first appointment” are two different concepts and commencement of continuous service in the first part of sub-rule (2) of Rule 37, is the commencement of continuous service in the same grade in the same unit. That being on the same day, the date of first appointment has to be considered and if either of them have a first appointment in any other grade or in another unit in the case of a Corporate management, then the seniority would have to be determined on the basis of such first appointment. The first appointment as a UPSA was declared as granting seniority to the teacher, who along with another was appointed on the same date as an HSA. 19. The facts are almost similar here; but it gives rise to a different aspect, insofar as the 'first appointment' claimed is WP(C)No.20448 of 2012 ## - 14 - not in a regular continuous service, but on broken periods in leave vacancies. The 5[th] respondent was appointed as a LPSA by Exhibit R5(a) and as UPSA, in various periods, as is indicated from Exhibits R5(b) to R5(f). The petitioner was also appointed as a LPSA by Exhibit P4. The petitioner alertly points out that Exhibit P4 appointment of the petitioner is not an appointment under Rule 51A, since Rule 51A claim was to a UPSA post and the appointment made was to a LPSA post. Rule 51A, at that point of time, did not permit exercise of such claim to any arising vacancy, whether in the lower or higher cadre. However, this should not detract from the position that the 5[th] respondent had a valid Rule 51A claim by virtue of her earlier appointments. Rule 51A claim has no relevance as far as the present controversy is concerned. 20. The broken periods of service, in leave vacancy or otherwise, in aided schools is recognised by the KER for all purposes and it also gives rise to a claim for appointment to a regular vacancy; arising under Rule 51A. The period would be treated as qualifying service for pension and would be reckoned for increment. In such circumstance, though the Full Bench had not considered the issue of whether a temporary appointment WP(C)No.20448 of 2012 ## - 15 - could be reckoned for determining the first appointment under sub-rule (2) of Rule 37, the recognition of such period of service for all purposes by the KER would persuade this Court to take a view that the same can be considered for the purpose of determining the first appointment. Sufficient reliance can be garnered for the said proposition from the decision in _**Saramma Joseph**_ ( _supra_ ) _**.**_ The 5[th] respondent, by virtue of her earlier service in the same school under a different cadre, is entitled to be considered senior to the petitioner in the cadre of HSST (Junior). 21. The preliminary contention raised by the petitioner was that the order of the Director of Higher Secondary Education is without jurisdiction. The petitioner has relied on G.O.(MS) No.162/91/G.Edn. dated 01.10.1991 to contend that an appeal was provided to the Director and a review to the Government as per the said G.O. On the basis of the judgment dated 31.10.2008 in W.P.(C) No.17054 of 2004, it is contented that only a revision before the Government would be maintainable. In the aforesaid judgment, the learned Single Judge found that an appeal is provided to the Director and a review to the Government, which WP(C)No.20448 of 2012 ## - 16 - stood as such despite Chapter XXXII being introduced to the KER governing the matters arising in the Higher Secondary section of the aided schools. Before the introduction of Chapter XXXII, the District Educational Officer was the authority for approving such appointments and in the absence of a Director of Higher Secondary Education, the reference to the Director was found to be a reference to the Director of Public Instruction. Considering the fact that Chapter XXXII also does not provide for any forum where the orders of the Director could be challenged, a review before the Government was held to be maintainable. 22. The contention of the learned Counsel for the petitioner that no appeal would lie to the Director has to be accepted, since the Regional Director is a person authorised to act as the Director as per Rule 1(b) of Chapter XXXII of KER. It would have been perfect, if the 5[th] respondent had moved the Government; but the question of jurisdiction has to be looked at in the context of this Court having found the claim of the 5[th] respondent to be legally sustainable. In that context, considering the fact that the order of the Director is perfectly justified and having upheld a legal claim; this Court is of the opinion that no WP(C)No.20448 of 2012 - 17 - interference need be caused to the orders of the Director, going by the decision of the Hon'ble Supreme Court in _**Mohd. Swalleh**_ _**v. IIIrd Addl.District Judge, Meerut**_ **[AIR 1988 SC 94].** The writ petition would stand dismissed. No costs. **Sd/-** K.Vinod Chandran Judge. vku/- [ true copy ]