M. DEVADASAN v. STATE OF KERALA

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 23RD DAY OF MAY 2018 / 2ND JYAISHTA, 1940** **WP(C).No. 7629 of 2010** **PETITIONER(S) : ---------------** **M.DEVADASAN, HEADMASTER, PULIYANAMBRAM MUSLIM U.P SCHOOL, P.O. PULIYANAMBROM, PERINGATHUR, KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ** **RESPONDENT(S) : ----------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM- 695 001.** **3. DEPUTY DIRECTOR OF EDUCATION, KANNUR- 670 001.** **4. DISTRICT EDUCATIONAL OFFICER, THALASSERY- 670 101.** **5. ASSISTANT EDUCATIONAL OFFICER, CHOKLI- 670 672.** **6. MANAGER, PULIYANAMBRAM MUSLIM UP SCHOOL, P.O. PULIYANAMBROM, PERINGATHUR, KANNUR DISTRICT- 670 675.** **7. MUHAMMED.C.T, FULL TIME URDU TEACHER, PULIYANAMBRAM MUSLIM U.P. SCHOOL, P.O. PULIYANAMBRAM, PERINGATHUR, KANNUR DISTRICT- 670 675. R1 TO R5 BY GOVERNMENT PLEADER SRI.RON BASTIAN R6 BY ADVS. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI** **R7 BY ADV. SRI.V.A.MUHAMMED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** ## **04.06.2018** **WP(C).No. 7629 of 2010 (C) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: TRUE COPY OF THE SENIORITY LIST FOR THE YEAR 2003-2004. EXHIBIT P2: TRUE COPY OF THE ORDER DATED 14.11.2008 ISSUED BY THE AEO.** **EXHIBIT P3: TRUE COPY OF THE ORDER DATED 25.07.2009 ISSUED BY 4TH RESPONDENT.** - **EXHIBIT P4: TRUE COPY OF THE APPOINTMENT ORDER DATED 01.05.2008 TOGETHER WITH ENDORSEMENT DATED 17.09.2009.** - **EXHIBIT P5: TRUE COPY OF G.O.(RT.NO.758/10 DATED 18.02.2010.** - **EXHIBIT P6: TRUE COPY OF THE NOTES OF ARGUMENTS.** - **EXHIBIT P7: TRUE COPY OF THE STAFF FIXATION ORDER DATED 15.07.1992 FOR THE YEAR 1992-93.** - **EXHIBIT P8: TRUE COPY OF G.O(RT)NO.5639/08/ DATED 24.12.2008.** - **EXHIBIT P9: TRUE COPY OF G.O(P)NO.371/2000 DATED 13.11.2000.** - **EXHIBIT P10: TRUE COPY OF THE RELEVANT PAGES OF VISITS NOTES OF THE THEN ASSISTANT EDUCATIONAL OFFICER DATED 12.07.1980.** - **EXHIBIT P11: TRUE COPY OF THE CERTIFICATE DATED 01.04.2013.** ## **RESPONDENT(S)' EXHIBITS :** - **EXHIBIT R1(A): TRUE COPY OF THE G.O.(MS)NO.62/73/G.EDN DATED 02.05.1973.** - **EXHIBIT R7(A): TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK DATED NIL.** - **EXHIBIT R7(B): TRUE COPY OF THE APPOINTMENT ORDER DATED 15.07.1980.** **EXHIBIT R7(C): TRUE COPY OF THE STAFF LIST OF THE SCHOOL DATED NIL.** **EXHIBIT R7(D): TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P(C).NO.2932 OF 2009-Y DATED 01.04.2009.** - **EXHIBIT R7(E): TRUE COPY OF THE G.O(MS.)NO.371/2000/G.EDN. OF THE GOVERNMENT DATED 13.11.2000.** **EXHIBIT R7(F): TRUE COPY OF THE G.O.(MS.)NO.62/73/S.EDN. OF THE GOVERNMENT DATED 02.05.1973. EXHIBIT R7(G): TRUE COPY OF THE DECISION REPORT IN 2002(2) K.L.T 428 DATED 25.02.2002.** **WP(C).No. 7629 of 2010 (C) ---------------------------** |**EXHIBIT R7(H):**|**TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT**| |---|---| ||**IN W.A.NO.898 OF 2000-E DATED 22.06.2000.**| |**EXHIBIT R7(I):**|**TRUE COPY OF THE LETTER OF THE DIRECTOR**| ||**DATED 14.05.2009.**| |**EXHIBIT R7(J):**|**TRUE COPY OF THE ORDER NO.D5/5801/2008/DPI OF**| ||**THE DIRECTION DATED 30.05.2008.**| |**EXHIBIT R7(K):**|**TRUE COPY OF THE APPEAL FILED BEFORE THE DEPUTY**| ||**DIRECTION OF EDUCATION DATED 19.03.2010.**| |**EXHIBIT R7(L):**|**TRUE COPY OF THE SENIORITY LIST DATED NIL.**| |**EXHIBIT R7(M):**|**TRUE COPY OF THE LETTER ADDRESSED TO**| ||**THE ASSISTANT EDUCATIONAL OFFICER DATED 18.11.2008.**| |**EXHIBIT R7(N):**|**TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE**| ||**BOOK DATED NIL.**| |**EXHIBIT R7(O):**|**TRUE COPY OF THE VISIT NOTE DATED 04.07.1992.**| ||**//TRUE COPY//**| ||**P.A.TO JUDGE.**| **04.06.2018** **Msd.** ## **P.V.ASHA, J.** ## **W.P.(C) No.7629 of 2010** ## **Dated this the 23[rd] day of May, 2018** ## **JUDGMENT** The petitioner, who had been working as Headmaster of the 6[th] respondent School, has filed this writ petition challenging Ext.P5 order by which the Government ordered that the 7[th] respondent was the person eligible for promotion as Headmaster. 2. On 1.5.2008, a vacancy of Headmaster arose in the 6[th] respondent's School, which is an aided Upper Primary School. The Manager appointed the petitioner as Headmaster and placed the proposal for approval before the 5[th] respondent-Assistant Educational Officer. As per Ext.P2 order, the Assistant Educational Officer declined approval to the promotion of the petitioner and found that the 7[th] respondent was the teacher eligible for promotion on the basis of seniority. The petitioner approached the 4[th] respondent with an appeal and the same was allowed as per Ext.P3 order, directing to approve the promotion granted to the petitioner with effect from 01.05.2008. As per Ext.P4 order dated 17.09.2009 petitioner's appointment was approved with effect from 01.05.2008. While so, the 7[th] respondent approached the Government with a revision petition in which Ext.P5 order was passed allowing the said revision and upholding the order passed by the Assistant Educational Officer and directed that the 7[th] W.P.(C) No.7629 of 2010 :2: respondent should be given promotion as Headmaster. The petitioner filed this writ petition at that stage challenging Ext.P5 order pointing out that the petitioner is the senior most eligible person entitled to promotion when the vacancy arose on 01.05.2008. 3. Referring to Ext.P1 seniority list the petitioner claimed that he commenced service on 08.06.1979 whereas the 7[th] respondent was appointed as a part time teacher only that too on 12.07.1979 and he became a full time teacher only on 15.07.1980. Apart from that, producing Ext.P7 staff fixation order, the petitioner claimed that the 7[th] respondent was thrown out in the staff fixation for the year 1992-93. According to the petitioner, the seniority list Ext.P1 remained unchallenged and therefore he is entitled to all the benefits flowing out of Ext.P1 seniority list. 4. In Ext.P5 order the Government found that the 7[th] respondent had entered service as part time Urdu teacher on 02.07.1979 and became a full time teacher with effect from 15.07.1980 and he is continuing in the school as full time teacher. At the same time the Government found that the petitioner had been working in the school with effect from 08.06.1979 as under qualified LPSA and he became fully qualified LPSA from 01.06.1981 and therefore the 7[th] respondent W.P.(C) No.7629 of 2010 **==> picture [16 x 9] intentionally omitted <==** was senior to the petitioner. Regarding his retrenchment ordered in the staff fixation for the year 1992-93, it was stated that the retrenchment was bad in the light of the orders issued by Government in the year 2000. 5. In the counter affidavit filed by the 7[th] respondent produced Ext.R7(l) seniority list issued in the year 2007-08 and stated that he had submitted Ext.R7(m) appeal against that seniority list in November 2008 (apparently after promotion was granted to the petitioner). The 7[th] respondent has also got a case that he was not aware of the abolition of the post of Urdu Teacher in the year 1992-93. According to him that staff fixation was not correct as there were sufficient number of pupils then available in the School. 6. At the same time Government, in Ext.P5 order stated that the 7[th] respondent was eligible to continue in the school on the basis of the orders issued by Government in the year 2000, that teachers made full time on group diversion shall not be made part time. 7. I heard the learned Counsel appearing for all the parties and considered the contentions. 8. Petitioner was ranked senior to the 7[th] respondent in Ext.P1 as well as Ext.R7(l) seniority list. The seniority assigned to petitioner W.P.(C) No.7629 of 2010 :4: remained unchallenged all along. Though 7[th] respondent has produced a copy of appeal seen to have been submitted in November 2008 much after the promotion of petitioner, the petitioner states that he is totally unaware of it. At any rate the seniority assigned in Ext.P1 remains unaltered even now. Government has not stated anything regarding the rank assigned to petitioner in Ext.P1 or in Ext.R7(l) seniority list, while arriving at the conclusion that 7[th] respondent is senior. Apart from that Government also says that at the time of staff fixation for the year 1992-93, the 7[th] respondent was entitled to the protection of Government order issued in the year 2000 and was entitled to continue as full time. It is not stated how the order to be issued in 2000 was made applicable in the 1992-93 staff fixation. 9. As rightly contented by the learned counsel for the petitioner the seniority assigned to the petitioner in Ext.P1 was liable to be considered for determining the claim for promotion. Ext.P1 seniority list issued in the year 2003-04 remained unchallenged as on the date of his promotion. The 7[th] respondent was shown as rank no.10 in Ext.P1 seniority list with the remarks that he was a protected hand. As held in the judgment of the Full Bench reported in _**Pavithran v. State of Kerala: 2009 (4) KLT 20**_ , petitioner is entitled to enjoy the W.P.(C) No.7629 of 2010 **==> picture [16 x 9] intentionally omitted <==** seniority assigned to him in Ext.P1 seniority list and that seniority as fixed in Ext.P1 is not liable to be disturbed by the Government at the instance of the 7[th ] respondent, who never challenged it. The filing of an appeal after promotion was granted to the petitioner as claimed by 7[th] respondent producing Ext.R7(k) cannot have any effect. 10. Learned counsel for the petitioner also submits that the 6[th] respondent's school was given the status of a minority school as per Ext.P11. Even though this Court had in the judgment in _**Manager, M.M.L.P.School, Panayappilly and others vs. V.B. Sajitha and**_ _**others : 2014 (2) KHC 701**_ held that the benefit of minority status will be available only for the period subsequent to the declaration, the said judgment has been reversed by the apex court in the judgment in _**Manager, Corporate Educational Agency v. James Mathew : (2017) 5 SCC 595**_ wherein it has been held that the certificate of declaration of minority status is only a declaration of an existing status and benefit is available even prior to the date of declaration. In that view of the matter also promotion granted to the petitioner by the Manager cannot be said to be illegal. Now that the petitioner as well as the 7[th] respondent have already retired from service in May 2015 and March 2015 respectively W.P.(C) No.7629 of 2010 **==> picture [16 x 9] intentionally omitted <==** and petitioner has already got his pensionary benefits on the basis of the promotion granted to him as Headmaster, it is only to be declared that the promotion granted to the petitioner as Headmaster with effect from 01.05.2008 was regular and the order issued by the Government in Ext.P5 is illegal. Accordingly Ext.P5 order is quashed. The writ petition is accordingly allowed. Sd/- **P.V.ASHA JUDGE** rkc