P. Manoharan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934** ## **WP(C).No. 5632 of 2012 (D)** ## **--------------------------** **PETITIONER(S):** **------------P.MANOHARAN, AGED 51 YEARS SON OF P.KUNHIRAMAN VYDIAR, HEADMASTER P.KUNHIKANNAN VYDIAR SMARAKA MUSLIM UPPER PRIMARY SCHOOL P.O.IRINAVU, KANNUR DISTRICT-670 301.** **BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA** **RESPONDENT(S):** - **--------------** **1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM-695 014.** **3. THE DISTRICT EDUCATIONAL OFFICER KANNUR, P.O.KANNUR-670 001.** **4. THE ASSISTANT EDUCATIONAL OFFICER PAPPINISSERI, P.O.PAPPINISSERI KANNUR DISTRICT-670561.** **5. SMT.K.K.SAVITHRI UPPER PRIMARY SCHOOL ASSISTANT** - **P.KUNHIKANNAN VYDIAR SMARAKA MUSLIM UPPER PRIMARY SCHOOL P.O.IRINAVU, KANNUR DISTRICT-670 301.** **6. THE MANAGER** - **P.KUNHIKANNAN VYDIAR SMARAKA MUSLIM UPPER PRIMARY SCHOOL P.O.IRINAVU, KANNUR DISTRICT-670 301.** **R5 BY ADV. SRI.KALEESWARAM RAJ** **R1-R4 BY ADV. SMT. LOWSY - GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 5632 of 2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXHIBIT P1- TRUE COPY OF THE APPOINTMENT ORDER DATED 10.10.1982 AND THE APPROVAL THEREOF DATED 8.11.1991.** **EXHIBIT P2- TRUE COPY OF THE SENIORITY LIST AS ON 1.4.2010.** **EXHIBIT P3- TRUE COPY OF THE G.O.(MS)NO.170/78/G.EDN. DATED 7.12.1978.** **EXHIBIT P4- TRUE COPY OF THE APPOINTMENT ORDER DATED 1.4.2011 AND THE APPROVAL THEREOF DATED 28.10.2011.** **EXHIBIT P4(A)-TRUE COPY OF THE ORDER NO.F/2452/2011 OF THE ASSISTANT EDUCATIONAL OFFICER DATED 17.10.2011.** **EXHIBIT P5- TRUE COPY OF THE ORDER NO.B6/9899/11 OF THE DISTRICT EDUCATIONAL OFFICER DATED 10.2.2012. EXHIBIT P6- TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 16.2.2012.** **EXHIBIT P6(A)-TRUE COPY OF THE STAY PETITION FILED ALONG WITH THE REVISION PETITION DATED 16.2.2012.** ## **RESPONDENTS' EXHIBITS** **EXT.R5(a): COPY OF THE APPOINTMENT ORDER DATED 27.10.1984 OF R5. EXT.R5(b): COPY OF THE SENIORITY LIST AS ON 1.4.2010. EXT.R5(c): COPY OF REPRESENTATION DATED 20.7.2011 SUBMITTED BY R5. EXT.R5(d): COPY OF G.O.(Rt)NO.1816/2011 DATED 18.5.2011.** ## _**TRUE COPY**_ _**PA TO JUDGE.**_ _**acd**_ ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - ## **W.P.(c) No. 5632 OF 2012** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of November , 2012 ## **JUDGMENT** Whether the unqualified service of the petitioner by virtue of being a TTC holder with effect from 1982 could be reckoned for the purpose of elevation as Headmaster, to be in conformity with Rule 37 of Chapter XIVA of KER, is the main point to be considered. 2. The sequence of events narrated in the writ petition shows that the petitioner commenced his service as U.P.S.A. on 20/10/1982, when he was having only a Teacher Training Certificate. Admittedly, the petitioner acquired B.Ed. and the test qualification only much later. Meanwhile, the 5[th] respondent, who was having B.Ed. and test qualification came to be appointed on 27.10.1984 and the petitioner came to be a person having regular/trained service only with effect from 1.6.1989. 3. While so, there arose a vacancy of Headmaster in the school on 1.4.2011 and the petitioner was considered and appointed as W.P.(C)No.5632/2012 2 the Headmaster of the school against the said vacancy. The appointment was approved by the AEO as per Ext.P4(a) order dated 17/10/2011, which however came to be reversed by the DEO as per Ext.P5 order dated 10.02.2012, holding that the 5[th] respondent herein was the duly qualified and eligible hand to be appointed to the post of Headmaster. Being aggrieved of Ext.P5, the petitioner preferred Ext.P6 revision petition before the first respondent under Rule 92 of Chapter XIV A of KER along with Ext.P6(a) stay petition and rushed to this Court apprehending the implementation of Ext.P5. By virtue of the interim order passed by this Court on 7.3.2012 (when the writ petition was admitted), the petitioner is continuing in the post of Headmaster. 4. On completion of service of notice, the 5[th] respondent has entered appearance and filed a detailed counter affidavit producing various documents as Exts.R5(a) to R5(d). It is contended by the 5[th] respondent that the reliance sought to be placed on Ext.P2 seniority list by the petitioner, (wherein the petitioner has been shown at Serial No.2 and 5[th] respondent at Serial No.5) is not liable to be treated as final, particularly with regard to the claim for posting as Headmaster, where W.P.(C)No.5632/2012 3 only continuous qualified service as contemplated under Rule 37 alone shall be reckoned. It is also stated that the factual position with regard to the untrained/unqualified service of the petitioner during the period in question i.e. with reference to the initial appointment in 1982 stands conceded by the petitioner and it was for reckoning the said service as well that the petitioner had moved this Court earlier along with some others by filing W.P.(C)No.2145/2011, which was disposed of, directing the first respondent/Government to consider the same and pass appropriate orders. Pursuant to the said direction, the matter was considered by the Government, who passed Ext.R5(d) order on 18/05/2011 rejecting the representation preferred by the petitioner and as such the matter has become final, the same having not been challenged by the petitioner. The 5[th] respondent contends that the finalisation of the issue as per Ext.P5 order passed by the Government had not been brought to the notice of this Court, nor was there any mention in this regard even in the proceedings pending before the DEO when Ext.R5(d) order came to be passed in favour of the 5[th] respondent. It is contended that the course and proceedings pursued by W.P.(C)No.5632/2012 4 the petitioner cannot but be deprecated, more so, when the petitioner is enjoying the benefit of interim stay and is continuing in office as Headmaster, for which he is actually not entitled to. 5. The petitioner has filed a reply affidavit as well. 6. The learned counsel for the petitioner submits that, by virtue of Ext.P3 Government Order dated 7.12.1978, the untrained service of the petitioner is liable to be counted for service benefits including seniority and this aspect however came to be omitted to be considered even by the DEO, when Ext.P5 order came to be passed. The learned counsel submits that Ext.R5(d) order passed by the Government on 18.05.2011 is in respect of some other aspects, which does not actually deal with the seniority and eligibility of the petitioner to be appointed to the post of Headmaster by virtue of the seniority reckoning the untrained service as well. The learned counsel further submits that, as borne by Ext.P2 seniority list, no objection or adverse remarks had been preferred by the 5[th] respondent, who has subscribed the signature to the same. This being the position, the seniority of the petitioner over the 5[th] respondent stands settled and the settled seniority W.P.(C)No.5632/2012 5 cannot be unsettled after lapse of several years. Reference is sought to be placed on the decision rendered by this Court in **Usha Devi v. State of Kerala** ( 2002(1) KLT 615). 7. The learned counsel for the 5[th] respondent submits that the question of seniority reckoning the unqualified service was also a subject matter of consideration before the Government, as discernible from Ext.R5(d). It is also stated that, seniority of the 5[th] respondent over the petitioner was always a subject matter of concern and the 5[th] respondent has virtually objected the placement of the petitioner over the 5[th] respondent and has filed a statutory appeal against Ext.P5, a copy of which has been produced as Ext.R5(c) as well along with the counter affidavit. That apart, the 5[th] respondent approached this Court as well, by filing W.P.(C)No.31952/2011 challenging the seniority given to the petitioner over and above the 5[th] respondent and also his promotion and appointment as Headmaster. It was after considering the said claim that the said writ petition was disposed of, as per judgment dated 30.11.2011( a copy of which has been made available for perusal of this Court), whereby the DEO was directed to consider W.P.(C)No.5632/2012 6 the matter and to pass appropriate orders. It was accordingly that the whole issue was reconsidered by the DEO who passed Ext.P5 order dated 10.02.2012; whereby Ext.P4(a) order passed by the DEO was set aside and a decision was taken in favour of the 5[th] respondent, which according to the said respondent is not assailable under any circumstance. 8. The learned Government Pleader appearing for the State/Departmental authorities submits that the AEO has already filed counter affidavit ( which however is still to form part of the records). But it is submitted that filing of the said proceedings was by virtue of a mistake and that the said counter affidavit is sought to be withdrawn, as it has not taken care of the actual facts and figures. The learned Government Pleader also submits that the matter was considered in detail by the Government earlier including the question of seniority, as borne by Ext.R5(d) and the petitioner cannot seek to reopen the issue with regard to seniority any further. It is also submitted that, by virtue of Ext.P5 order passed by the DEO, the correct factual position and the application of the relevant provisions of law has been taken care of, W.P.(C)No.5632/2012 7 which stands in favour of the 5[th] respondent. 9. As mentioned herein before, the crucial question is whether the untrained/unqualified service of the petitioner between 1982 and 1989 can be reckoned the purpose of giving seniority over the 5[th] respondent. Admittedly, at the time of initial appointment, the petitioner was having TTC, while the requisite qualification was B.Ed. plus Test qualification, which he acquired much later. The 5[th] respondent at the time of her appointment in 1984 was having all the requisite qualifications and the vacancy of Headmaster arose on 1.4.2011. 10. Rule 37 of Chapter XIV A of KER, which deals with the requisite qualifications reads as follows : _“37(1) Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is dully qualified for the post_ _(2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment._ W.P.(C)No.5632/2012 8 _If the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior.”_ By virtue of the above Rule position, there cannot be any dispute that seniority and service contemplated under the relevant Rule cannot be something other than the qualified service. Admittedly, the petitioner does not have the qualified service to the requisite extent so as to sidetrack the 5[th] respondent. This issue has been considered with reference to the Rule position by the DEO as well by passing Ext.P5. Though the petitioner is entitled to have the untrained service counted for the purpose of some service benefits, it cannot be for all purposes by virtue of the relevant rule position. 11. The next question to be considered is whether the issue with regard to the seniority was already considered by the Government, while passing Ext.R5(d). The main points mooted before the Government by the petitioner were sought to be agitated before this Court as well, he being the second petitioner in W.P.(C)No.2154/2011. It was pursuant to the verdict passed in the said case that the case of the W.P.(C)No.5632/2012 9 petitioner herein along with the case of the others was also directed to be considered leading to Ext.R5(d). The main points mooted before the Government are in the following terms : “ _i) The untrained service and the period of training of the Leave Reserve Primary Teachers ( Kannada) was reckoned as service for the purpose of sanction of time bound higher grade and sanction of notional increments. Here the petitioners have obtained teacher training course for imparting primary classes which is equal to TTC course, but the petitioners have got service benefits only after successful completion of the In-service Course, whereas Kannada knowing recruiters were untrained teachers and they were given all service benefits._ _ii) The appointment of the 2[nd] petitioner was made with effect from 20.10.1982 and he was deputed for In-service course only on 03.10.1988. Had the course conducted during 1982, petitioner could have underwent the training earlier._ _Iii) The petitioners were paid basic pay during the period from 20.10.1982 to 31.05.1989. Hence this period ought to be reckoned for all service benefits. It is added that they had lost service benefits, terminal benefits for over six and a half_ W.P.(C)No.5632/2012 10 _years, without counting for grade and other service benefits including seniority and as such a huge financial loss would be sustained to them._ _iv) It is very pertinent to note that the Government have without any ambiguity clarified that for the purposes such as seniority, pension, leave, weightage and all similar service matters other than probation and increment those untrained teachers will be treated as regular teachers with effect from the date of joining duty.”_ After considering the above points, a specific finding has been arrived at by the Government in the following lines : _“(i) The period of In-service course of TCH holders (English) will not be counted for any service benefits as they are required to undergo In-service course at their own expenses and that too as a concession, but the period of Inservice course as such will not be regarded as a break, for those who have under qualified spells of service._ _(ii) Service prior to the successful completion of the In-service course, if any, will be approved as underqualified. (iii) Service after the successful completion ( i.e. the date of passing of the In-service course) will be approved as fully qualified.”_ W.P.(C)No.5632/2012 11 From the above, it is very much clear that the question of counting the untrained service of the petitioner for the purpose of seniority was also a subject matter of consideration before the Government, which came to be answered against the petitioner. There is no dispute that the petitioner has ever challenged Ext.R5(d) and the same has become final. This being the postilion, whether the issue could be reagitated by the petitioner by way of the present writ petition or even by Ext.P6 revision petition filed against Ext.P5, is the next question which can only be answered in the negative. 12. This Court also finds that the 5[th] respondent was all along disputing the seniority by filing a statutory appeal and also by filing W.P.(C)No.31952/2011. It was pursuant to the direction in the said case, that Ext.P5 came to be passed by the DEO. This being the position, the decision cited by the petitioner in **Usha Devi v. State of Kerala** ( 2002(1) KLT 615) with regard to the finality of the seniority list is not applicable to the case in hand. 13. After hearing both the sides, this Court finds that the qualification which can be reckoned for the purpose of appointment as W.P.(C)No.5632/2012 12 Headmaster is only the 'qualified service' and by virtue of the undisputed facts, the 5[th] respondent was having the qualified service with effect from 1984, while the petitioner came to be a qualified hand only with effect from 1.6.1989. In the above circumstances, this Court finds that the 5[th] respondent is entitled to succeed and that there is absolutely no merit or bonafides in the claim put forth by the petitioner. The challenge against Ext.P5 is repelled. The writ petition being devoid of any merit, it is dismissed accordingly. By virtue of the finding on merits, this Court also finds that Ext.P6 revision petition and Ext.P6(a) petition for stay preferred by the petitioner before the Government against Ext.P5 are of no consequence. It is declared accordingly. ## **P.R.RAMACHANDRA MENON JUDGE** sv.