Madhusoodanan Nair, Manager vs The Assistant Educational Officer, Adoor; The Deputy Director of Education, Pathanamthitta; The Director of Public Instructions, Thiruvananthapuram; State of Kerala; R. Geethakumary

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 10TH DAY OF JANUARY 2012/20TH POUSHA 1933** **WPC.No. 12867 of 2009 (C) =====================** ## **PETITIONER(S)** - **=============** - **1 MADHUSOODANAN NAIR, MANAGER** - **V.T.M.UPPER PRIMARY SCHOOL MANNADY P.O. PATHANAMTHITTA DISTRICT.** **BY ADV.SRI.S.MUHAMMED HANEEF** ## **RESPONDENT(S)** - **==============** - **1 THE ASSISTANT EDUCATIONAL OFFICER, ADOOR.** - **2 THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA AT THIRUVALLA.** - **3 DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** - **4 STATE OF KERALA, REP. BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT SECRETARIAT THIRUVANANTHAPURAM.** - **5 R.GEETHAKUMARY, TEACHER-IN-CHARGE VTM UPPER PRIMARY SCHOOL MANNADI P.O. PATHANAMTHITTA DISTRICT RESIDING AT PAZHAYAKALAYIL MANNADY P.O. PATHANAMTHITTA DISTRICT.** - **BY ADV. SMT.REKHA VASUDEVAN BY GOVERNMENT PLEADER SRI. EGY N. ELIAS** ## **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-01-2012 , ALONG WITH WPC. 32217/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **DCS** ## **WPC.No. 12867 of 2009 (C)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :-** **EXT.P1 COPY OF THE APPOINTMENT ORDER ISSUED BY THE PETITIONER TO ONE S. SREEKALA DATED 31-12-2007 EXT.P2 COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 17.03.2008 EXT.P3 COPY OF THE ORDER NO. B2/4483/08 K. DIS DATED 14.07.2008 PASSED BY THE 2ND RESPONDENT EXT.P4 COPY OF THE ORDER NO. F3/72118/08/DPI/K. DIS DT. 17.02.2009OF THE 3RD RESPONDENT EXT.P5 COPY OF THE ORDER NO. C/7423/07 K. DIS DT. 31.03.2009 ISSUED BY THE IST RESPONDENT** ## **RESPONDENT'S EXHIBITS:-** **EXT.R5(a) COPY OF THE G.O. (Rt) NO. 1153/06/G. EDN DATED 17.03.2006 EXT.R5(b) COPY OF THE APPOINTMENT ORDER DATED 14.11.2005 ISSUED BY THE PETITIONER EXT.R5(c) COPY OF THE APPOINTMENT ORDER WAS ISSUED BY THE PETITIONER ON 01.06.2007 EXT.R5(d) COPY OF THE APPOINTMENT ORDER DATED 13.06.2007 ALONG WITH THE APPROVAL ORDER DATED 08.08.2007 EXT.R5(e) COPY OF THE ORDER NO. C/5672/07. K DIS DATED 10.2007 EXT.R5(f) COPY OF THE REPRESENTATION DATED 24.12.2007 SUBMITTED TO THE IST RESPONDENT** **DCS** ## **WPC.No. 12867 of 2009 (C)** **EXT.R5(g) COPY OF THE INTERIM PRAYER DATED 01.01.2008 OF THIS HON'BLE COURT IN W.P.(C) NO. 57 OF 2008 EXT.R5(h) COPY OF THE JUDGMENT DATED 23.01.2008 IN W.A. NO. 213 OF 2008 EXT.R5(i) COPY OF THE PETITION DATED 02.08.2008 SUBMITTED BY ME BEFORE THE DIRECTOR OF PUBLIC INSTRUCTIONS EXT.R5(j) COPY OF THE JUDGMENT DATED 30.03.2009 IN W.P.(c) NO. 10149 OF 2009 OF THIS HON'BLE COURT EXT.R5(k) COPY OF THE REVISION PETITION SUBMITTED BY SMT. SREEKALA ON 05.03.2009** **/TRUE COPY/** **P.A. TO JUDGE** **DCS** ## **T.R. RAMACHANDRAN NAIR, J.** **------------------------------------------W.P.(C) Nos.12867 & 32217 OF 2009 -------------------------------------------Dated this the 10[th] day of January, 2012.** ## **J U D G M E N T** Both these writ petitions concern the very same issue namely, regarding promotion to the post of Headmistress in a vacancy which arose on 01.01.2008. W.P.(C) No.12867/2009 is filed by the Manager and W.P.(C) No.32217/2009 is filed by the person who claims to be appointed as Headmistress. The 5[th] respondent in W.P.(C) No.12867/2009 is the rival claimant, who is the teacher in charge now. The necessary facts for the disposal of these writ petitions are the following: 2. One Smt.Santhakumari who was the Headmistress of the school availed leave when she was elected to the post of President of the District Panchayath and the leave was sanctioned as special leave for the period from 06.10.2005 to 31.12.2007. The Manager appointed one Smt.Omana Amma as the Headmistress in the leave vacancy of Smt.Santhakumari initially and the incumbent Smt.Omana Amma who was promoted from the post of U.P.S.A retired from service on 31.05.2007. For the **W.P.(C) Nos.12867 & 32217/2009** **2** remaining period of the leave vacancy, the 6[th] respondent in W.P.(C) No.32217/2009) was promoted as Headmistress which was approved upto 31.12.2007. Smt.Santhakumari did not join back during the period of leave and the leave period terminated on 31.12.2007. Smt.Santhakumari attained superannuation on 31.12.2007 and on 01.01.2008 therefore a vacancy of Headmistress arose. Thereafter, the Manager appointed the petitioner in W.P.(C) No. 32217/2009, Smt.Sreekala.S as Headmistress. The said order was directly under challenge before this Court by the 6[th] respondent Smt.Geethakumary. In the said writ petition namely, W.P.(C) No.57/2008, this Court granted a stay of order of appointment and the matter was taken up in appeal by the Manager as Writ Appeal No.213/2008 which was disposed of by Ext.P2 judgment produced in W.P.(C) No.32217/ 2009. The Division Bench noted that the writ petitioner namely, the 6[th] respondent in W.P.(C) No.32217/2009 has already approached the Assistant Educational Officer. This Court directed the Assistant Educational Officer to consider and pass orders on the appeal and allowed the 6[th] respondent to continue as teacher in charge. The Assistant Educational Officer passed Ext.P3 order **W.P.(C) Nos.12867 & 32217/2009** **3** produced therein upholding the right of the 6[th] respondent. 3. The petitioner in W.P.(C) No.32217/2009 Smt.Sreekala.S appears to have filed an appeal before the Deputy Director of Education who allowed the appeal as per Ext.P4. This was taken in further appeal before the Director of Public Instruction and the decision was in favour of the 6[th] respondent as evident from Ext.P5 and the said order has been confirmed by the Government by Ext.P6 order upholding the right of the 6[th] respondent. 4. In W.P.(C) No.12867/2009, the very same orders are under challenge by the Manager and the Manager has also challenged Ext.P5 therein by which he was directed by the Assistant Educational Officer to comply with the orders of the authorities. 5. Learned counsel for the petitioners Sri.S.Muhammed Haneef submitted that the reasoning adopted by the Assistant Educational Officer and later reiterated by the Director of Public Instruction and also by the Government cannot be sustained for more reasons than one. It is pointed out that the special leave vacancy was for the period from 06.10.2005 to 31.12.2007 which was sanctioned by the Government as per Ext.R6(b) **W.P.(C) Nos.12867 & 32217/2009** **4** produced in the counter affidavit filed by the 6[th] respondent in W.P.(C) No.32217/2009. Smt.Omana Amma was appointed in the said leave vacancy till 31.05.2007 which is evident from Ext.R6(c) order and the approval is also granted in that context. It is, therefore, submitted that as on the date of retirement of Smt.Omana Amma, no substantive vacancy arose in the post of Headmistress since Smt.Santhakumari was continuing on leave in the post of Headmistress and at any time she was entitled to come back and join the post of Headmistress if the leave is cancelled. Therefore, it is pointed out that the view taken by the authorities concerned that as on 01.06.2007, a permanent vacancy has arisen and the vacancy which arose on 01.01.2008 is in continuation of the same cannot be accepted. It is submitted that the Assistant Educational Officer, Director of Public Instruction and the Government, all were of the view that as on 01.06.2007 a vacancy has arisen. It is pointed out that even though the petitioner acquired the eligibility for promotion as on 15.11.2007, on the date of occurrence of a permanent vacancy on 01.01.2008, the petitioner was having preference under Rule 45 of Chapter XIV-A K.E.R since he is a Graduate **W.P.(C) Nos.12867 & 32217/2009** **5** Teacher having B.Ed and the 6[th] respondent is an undergraduate Teacher. 6. Reliance is also placed on the judgment of this Court in _**Ushakumari** vs._ _**State of Kerala**_ (2011 (2) KLT 768) to contend for the position that what is crucial is the date of occurrence of substantive vacancy. Learned counsel for the 6[th] respondent Smt.Rekha Vasudevan contended that the retirement of Smt.Omana Amma itself creates a vacancy to which the 6[th] respondent Smt.Geethakumari was given promotion as evidently the petitioner Smt.Sreekala.S was not eligible as on that date. Smt.Santhakumari did not rejoin duty prior to the attainment of superannuation. Therefore, as on 01.01.2008, the vacancy which arose is a continuous one as rightly held by the departmental authorities and by the Government. Therefore, as it is a continuous vacancy namely, which continued from 01.06.2007, the 6[th] respondent is having a right for appointment as Headmistress from 01.01.2008 in continuation of her promotion already granted. Therefore, the crucial question is whether a substantive vacancy arose on 01.06.2007 consequent on the retirement of Smt.Omana Amma on 31.05.2007 or on **W.P.(C) Nos.12867 & 32217/2009** **6** 01.01.2008 consequent on the attainment of superannuation by Smt.Santhakumari. 7. We will have to advert to the way in which the vacancies were filled up. It can be seen that as on 06.10.2005, the vacancy arose is only due to availing of leave by Smt.Santhakumari. It is described as a special leave vacancy since the leave was granted to function as President of the District Panchayath. The appointment of Smt.Omana Amma is evidently in that special leave vacancy but not for the entire period of leave. When Smt.Omana Amma retired from service, it cannot have any impact on the substantive post held by Smt.Santhakumari since Smt.Santhakumari had availed leave as Headmistress and she had a lien in the said post. Even though the retirement of Smt.Omana Amma may create a vacancy in the lower post of U.P.S.A, it cannot have any impact on the post held by Smt.Santhakumari as she was on leave as on that day. Of course, Smt.Omana Amma had acquired the status of the Headmistress and had availed of various benefits also. Since she was only a leave substitute and the person who had availed of leave had every right to rejoin duty, it cannot be said that as on **W.P.(C) Nos.12867 & 32217/2009** **7** 01.06.2007, a substantive vacancy itself arose which enabled the 6[th] respondent to get promotion. 8. Even as regards the promotion granted to the 6[th] respondent, it can be seen that it is only as a leave substitute and not a regular promotion and it had to terminate on 31.12.2007 as evident from the appointment order Ext.R6(d) itself. Therefore, the view taken by the Assistant Educational Officer that it is a continuous vacancy from 01.06.2007 cannot be accepted. The Deputy Director of Education while considering the appeal has rightly held that Smt.Santhakumari has got a lien in the post of Headmistress till 31.12.2007 and if she rejoins duty, then the leave substitute will have to be reverted. The view taken therein is that a regular vacancy arose only on 01.01.2008. Therefore, actually, as far as the petitioner Smt.Sreekala.S and the 6[th] respondent Smt.Geethakumari are concerned, their claims for promotion will have to be adjudicated by treating 01.01.2008 as the date of occurrence of vacancy. 9. Therefore, going by the judgment in _**Ushakumari** vs._ _**State of Kerala**_ (2011 (2) KLT 768), the qualifications as on the date of occurrence of vacancy will have to be assessed. There is **W.P.(C) Nos.12867 & 32217/2009** **8** no dispute that the petitioner, a Graduate having the required qualifications under Rule 45 of Chapter XIV-A K.E.R gets a preference for appointment. The view taken by the Assistant Educational Officer and by the Director of Public Instruction and also by the Government therefore that it is a continuous vacancy cannot be accepted at all. 10. Learned counsel for the 6[th] respondent then contended that due to the termination of leave vacancy on 31.12.2007, she became a claimant under Rule 51A of Chapter XIV-A K.E.R and therefore she has got a right in the vacancy which arose on 01.01.2008. Evidently, such a claim cannot be accepted. The claim of the petitioner Smt.Sreekala.S is under Rule 45 and the claim will have to be adjudicated as on the date of occurrence of vacancy. Herein, consequent on the termination of the leave vacancy, Smt.Geethakumari normally will have to go back as U.P.S.A. Herein, the Manager promoted Smt.Sreekala.S as per Rule 45 of Chapter XIV-A K.E.R. It is not a case where Smt.Geethakumari is thrown out from the post of Headmistress. She will be only reverted as U.P.S.A and will continue in the service of the school. In that view of the matter, the principles **W.P.(C) Nos.12867 & 32217/2009** **9** which enable a claimant to enforce Rule 51A do not apply here. Therefore, the writ petitions are allowed and the impugned orders Exts.P3, P5 and P6 in W.P.(C)No.32217/2009 and Ext.P5 in W.P.(C) No.12867/2009 are quashed. There will be a direction to the Assistant Educational Officer to approve the appointment of Smt.Sreekala.S as Headmistress as appointed by the Manager and grant consequential benefits. Pursuant to the interim orders passed by this Court, Smt.Geethakumari was holding the post as teacher in charge and the eligible benefits will be granted to her as teacher in charge, if not already granted. The Assistant Educational Officer will pass appropriate orders within a period of two months from the date of receipt of a copy of this judgment. If Smt.Geethakumari was paid the scale of pay as applicable to Headmistress during the period, it will not be recovered. No costs. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp