Preetha Pandurangu v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` THURSDAY, THE 13[TH] DAY OF JULY 2023 / 22ND ASHADHA, 1945 ``` ## **`WP(C) NO. 32801 OF 2015`** ## **`PETITIONER:`** ``` PREETHA PANDURANGU, THIRUMALA DEVASWOM HIGH SCHOOL, MATTANCHERRY, ERNAKULAM,KOCHI-682 002. ``` ``` BY ADV SRI.KALEESWARAM RAJ ``` ## **`RESPONDENTS:`** |**`1`**|**`STATE OF KERALA`**| |---|---| ||**`REPRESENTED BY ITS SECRETARY,`**| ||**`DEPARTMENT OF GENERAL EDUCATION,`**| ||**`KERALA GOVERENMENT SECRETARIAT,`**| ||**`THIRUVANANTHAPURAM-695 001.`**| |**`2`**|**`THE DIRECTOR OF PUBLIC INSTRUCTIONS`**| ||**`THIRUVANANTHAPURAM-695 001.`**| |**`3`**|**`THE DEPUTY DIRECTOR OF EDUCATION`**| ||**`ERNAKULAM-682 001.`**| |**`4`**|**`THE DISTRICT EDUCATIONAL OFFICER`**| ||**`ERNAKULAM-682 001.`**| |**`5`**|**`THE MANAGER`**| ||**`T.D.CORPORATE EDUCATIONAL AGENCY,`**| ||**`COCHIN THIRUMALA DEVASWOM, GOSRIPURAM,`**| ||**`KOCHI-682 002.`**| |**`6`**|**`THE HEADMISTRESS`**| ||**`T.D.CORPORATE EDUCATIONAL AGENCY,`**| ||**`COCHIN THIRUMALA DEVASWOM,`**| ||**`GOSRIPURAM, KOCHI-682 002.`**| |**`7`**|**`A.N.RAJASREE,H.S.A, (MATHEMATICS)`**| ||**`THIRUMALA DEVASWOM HIGH SCHOOL,`**| ||**`KOCHI-682 002.`**| WP(C)Nos.32801 of 2015 & con. Case 2 ## **`R7 BY ADV.G.KRISHNAKUMAR`** ## **`OTHER PRESENT:`** ## **`R1 TO R4 BY GP - SUNILKUMAR KURIAKOSE`** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.07.2023, ALONG WITH WP(C).19246/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C)Nos.32801 of 2015 & con. Case 3 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE VIJU ABRAHAM ``` ``` THURSDAY, THE 13[TH] DAY OF JULY 2023 / 22ND ASHADHA, 1945 WP(C) NO. 19246 OF 2016 ``` ## **`PETITIONER:`** ``` PREETHA PANDURANGU, HSA (MATHEMATICS), THIRUMALA DEVASWOM HIGH SCHOOL,MATTANCHERRY, ERNAKULAM-682 002. ``` ``` BY ADVS. SRI.KALEESWARAM RAJ KUM.A.ARUNA SRI.VARUN C.VIJAY ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.`** - **`2 DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695 001.`** - **`3 DEPUTY DIRECTOR OF EDUCATION ERNAKULAM-682 001.`** - **`4 DISTRICT EDUCATIONAL OFFICER ERNAKULAM-682 001.`** - **`5 ASSISTANT EDUCATIONAL OFFICER MATTANCHERRY-682 002.`** - **`6 THE MANAGER T.D.CORPORATE EDUCATIONAL AGENCY, COCHIN THIRUMALA DEVASWOM, GOSRIPURAM, KOCHI-682 002.`** - **`7 A.N.RAJASREE,HSA (MATHEMATICS),`** WP(C)Nos.32801 of 2015 & con. Case 4 ``` THIRUMALA DEVASWOM HIGH SCHOOL, MATTANCHERRY, KOCHI-682 002. ``` ``` R1 TO R5 BY GP SRI.SYNILKUMAR KURIAKOSE R6 BY ADVS.SRI.S.B.PREMACHANDRA PRABHU R7 BY ADV.G.KRISHNAKUMAR ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.07.2023, ALONG WITH WP(C).32801/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C)Nos.32801 of 2015 & con. Case 5 ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) Nos.32801 of 2015 & 19246 of 2016 .................................................................** Dated this the 13[th] day of July, 2023 ## **JUDGMENT** Petitioner in both the writ petitions is same. W.P.(C) No.32801 of 2015 was filed challenging Exts.P5, P10 and P12 orders whereas W.P.(C) No.19246 of 2016 was filed challenging Exts.P13 and P14 orders. Since the issue involved in both the writ petitions are interconnected, I am disposing of both the writ petitions by a common judgment. 2. I will advert to the facts stated in W.P.(C) No.19246 of 2016 in this judgment. The petitioner was presently working as H.S.A (Mathematics) at Thirumala Devaswom High School, Mattancherry in Ernakulam district. She was initially appointed in the abovesaid post as per Ext.P1 order for the period from 04.12.2000 to 29.03.2001 and the said appointment was duly approved by the 4[th] respondent. Subsequently, the petitioner was appointed as UPSA in the very same school in a regular vacancy on 04.06.2004 as per Ext.P2 and the said appointment was also duly approved by the 4[th] respondent. While WP(C)Nos.32801 of 2015 & con. Case 6 continuing so, she was promoted to the post of H.S.A (Mathematics) w.e.f. 15.07.2009 as per Ext.P3 order in a leave vacancy for the period from 15.07.2009 to 30.06.2014 and the appointment was also duly approved. While so petitioner was appointed in the regular vacancy of H.S.A(Mathematics) w.e.f. 15.07.2013 in a death vacancy of one Smt.V.G.Raji, H.S.A(Mathematics) as per Ext.P4 order. Approval of said appointment was declined by 4[th] respondent as per Ext.P5. In Ext.P5 the stand taken by the 4[th] respondent is that during the staff fixation 2013-2014 one post of HSA core subjects was reduced for want of sufficient student strength. Accordingly the teacher working against the post of HSA (Physical Science) was rendered surplus and on verification of the approved seniority list of the educational agency one senior Rule 43 claimant Smt.A.N.Rajasree, who is the 7[th] respondent in this writ petition, was found to be fully qualified to be promoted to the post of HSA (Mathematics). In Ext.P5 the 4[th] respondent entered a finding that instant appointment of the petitioner was made overlooking the legitimate claim of a senior Rule 43 claimant and rejected Ext.P4 appointment granted to the petitioner. Aggrieved by the same petitioner preferred Ext.P6 revision petition before the Government. The specific case of the petitioner is that though the 7[th] respondent was appointed as LPSA on 01.06.2004 she was retrenched/thrown out due to division fall in the year 2010. This Court in _**Praveena V.Kammath and others v. State of Kerala and**_ WP(C)Nos.32801 of 2015 & con. Case 7 _**others 2011(2) KHC 550**_ , a copy of which is produced as Ext.P7, declared that the 7[th] respondent is liable to be retrenched holding that the post of LPSA and UPSA are different in nature and duties are also different and therefore the same should be treated as a separate category and therefore retrenchment can also be effected only in terms of the separate seniority. Pursuant to the direction in Ext.P9 judgment of this Court in W.P(C) No.3449 of 2015, Ext.P6 revision petition submitted by the petitioner was considered by the Government and rejected as per Ext.P10 order. As per Ext.P10 order the Government recorded the submissions of both sides but rejected the request of the petitioner on the ground that as on date there is no specific Government orders that can be relied upon so as to protect the senior hand against the vacancy that arose during 2013-2014 since G.O(P) No.213/2015/G.Edn dated 06.08.2015 is also under stay by an order of this Court. The petitioner as well as the 7[th] respondent contended that they are senior to the other and they are entitled for retention as HSA (Mathematics). Eventhough rival contentions were raised none of them were considered in Ext.P10, but the same was rejected essentially for the reason that GO(P) No.213/2015/G.Edn dated 06.08.2015 is under a stay by this Court. A perusal of Ext.P10 would reveal that the 1[st] Government has not decided the question as to who is to be appointed as HSA (Mathematics) w.e.f. 15.07.2013. On the basis of Ext.P10 consequential order was passed as WP(C)Nos.32801 of 2015 & con. Case 8 Ext.P12 whereby shifting the appointment of the petitioner with effect from 15.07.2013 in the death vacancy to the post of HSA (Mathematics) w.e.f. 02.06.2014 and appointing the 7[th] respondent as H.S.A(Mathematics) w.e.f 15.07.2013. It is those orders, ie. Exts.P10 and P12 which are under challenge in W.P(C) No.32801 of 2015. Thereafter the 1[st] respondent issued Ext.P13 order whereby a direction was issued to the 2[nd] respondent to pass orders approving the appointment of the 7[th] respondent for the academic year 2010-2011 by applying the ratio of 1:40. Consequent to issuance of Ext.P13, the 2[nd] respondent issued Ext.P14 letter communicating the same to the 5[th] respondent for necessary action. Petitioner submits that the reason for rejection of her claim was based on a stay granted by this Court. Petitioner would submit that subsequently this Court has considered the question and upheld the validity of Ext.P11 Government order. Therefore the only impediment in considering the claim as stated in Ext.P10 no longer exist. 3. A counter affidavit has been filed by the 4[th] respondent wherein it is stated that Ext.P10 itself is a self-explanatory while making the position clear that the 7[th] respondent is the legitimate claimant to be promoted as HSA (Mathematics) as she is the seniormost Rule 43 claimant on rolls and is on the basis of the same the 7[th] respondent was appointed as HSA (Mathematics) w.e.f.15.07.2013. But there is no WP(C)Nos.32801 of 2015 & con. Case 9 finding to that effect in Ext.P10 and it is settled law that the reasoning in the order impugned cannot be supplemented by way of a counter affidavit. 4. The stand of the 7[th] respondent is that she was initially appointed as LPSA under the 6[th] respondent Manager on leave vacancy from 09.07.2003 to 29.09.2003 and from 11.11.2003 to 23.03.2004 and later she was appointed in a regular retirement vacancy as LPSA w.e.f. 02.06.2004 and on the basis of same the contention of the 7[th] respondent is that she is senior to the petitioner and therefore have a claim under Rule 43A KER to be promoted as HSA in preference to the petitioner. Though the petitioner was thrown out from LPSA post as per staff fixation order 2010-2011 due to division fall the Government has by Ext.P3 letter ordered that the benefit of 1:40 teacher-student ratio should be extended to the academic year 2010-2011 also in the schools affected by the special problem of division fall for the limited purpose of accommodating teachers rendered surplus and accordingly as per Ext.R7(a) order the Assistant Educational Officer accorded sanction to retain the 7[th] respondent as LPSA in the 6[th] respondent’s school for the academic year 2010-2011. Both the petitioner and 7[th] respondent raised a contention that though they were paid salary in the lower post now their payment of salary has been stopped. WP(C)Nos.32801 of 2015 & con. Case 10 5. The learned Government Pleader referring to Ext.P15 submits that the said situation occurred due to the intervening circumstances later that there is no vacancy available in the lower scale as per the staff fixation order for the year 2022-2023 and therefore the petitioner as well as the 7[th] respondent is not being paid salary. 6. After hearing the learned counsel appearing for the petitioner and the respondents as well as the the learned Government Pleader, I am of the opinion that the issue could be resolved only on a specific finding as to whether who is entitled for the post of HSA (Mathematics) which arose on 15.07.2009 and that the Government while issuing Ext.P10 order did not consider any of the contentions raised by the petitioner as well as the 7[th] respondent. Therefore, the matter requires reconsideration by the 1[st] respondent Government. Ext.P10 order is set aside with a consequential direction to the 1[st] respondent to reconsider the matter after affording an opportunity of being heard to the petitioner and respondents 6 and 7 in W.P.(C) No.19246 of 2016 and any other affected persons. Petitioner as well as the 7[th] respondent will be free to submit their notes of argument and produce documents in support of their claim. The 1[st] respondent shall pass a considered and reasoned order after averting to the various contentions raised by both sides and a decision in this regard shall be taken within a period of two months from the date of receipt of a copy of this judgment. Since the petitioner as well as the 7[th] respondent WP(C)Nos.32801 of 2015 & con. Case 11 complained that they have not been paid salary, the said aspect shall also be taken into consideration and appropriate orders shall be passed by the Government in this regard while taking a decision as directed above. Both the writ petitions are accordingly disposed of. Sd/- **VIJU ABRAHAM JUDGE** cks WP(C)Nos.32801 of 2015 & con. Case 12 ## **`APPENDIX OF WP(C) 32801/2015`** ``` PETITIONER EXHIBITS ``` ``` EXT.P1TRUE COPY OF THE APPOINTMENT ORDER DATED 4/12/2000 ISSUED BY THE 4TH RESPONDENT ``` ``` EXT.P2TRUE COPY OF THE APPOINTMENT ORDER DATED 4/6/2014 ISSUED BY THE 4TH RESPONDENT ``` ``` EXT.P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 15/7/2009 ``` ``` EXT.P4 TRUE COPY OF THE APPOINTMENT ORDER DATED 19/7/2013 EXT.P5 TRUE COPY OF THE ORDER DATED 28/11/2014 ISSUED BY THE 4TH RESPONDENT EXT.P6TRUE COPY OF THE RP SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXT.P7 TRUE COPY OF THE JUDGMENT DATED 29/3/2011 IN WPC NO.28516/2010. EXT.P8 TRUE COPY OF THE CIRCULAR DATED 1/8/2012. EXT.P9TRUE COPY OF THE JUDGMENT DATED 3/2/2015 IN WPC NO.3449/2015. EXT.P10 TRUE COPY OF THE G.O.(RT) NO.4133/2015/G.EDN DATED 17/9/2015. EXT.P11 TRUE COPY OF THE G.O.(P) NO.213/2015 DATED 6/8/2015. EXT.P12 TRUE COPY OF THE ORDER DATED 14/10/2015. ``` WP(C)Nos.32801 of 2015 & con. Case 13 |`RESPONDENTS’ EXHIBITS`|| |---|---| |`EXT.R7(a)`|`A TRUE COPY OF THE ORDER DATED`| ||`13.05.2016 OF THE ASSISTANT EDUCATIONAL`| ||`OFFICER, MATTANCHERRY`| |`EXT.R7(b)`|`A TRUE COPY OF THE ORDER OF THE 4TH`| ||`RESPONDENT DEO DATED 12.08.2016`| |`EXT.R7(c)`|`A TRUE COPY OF THE SALARY BILL DATED`| ||`06.06.2016 FOR THE PRIOD FROM`| ||`15.07.2010 TO 01.02.2014`| |`EXT.R7(d)`|`A TRUE COPY OF THE ORDER`| ||`NO.E.C3/24341/2017/DPI/K.Dis., DATED`| ||`26.08.2017 OF ADDITIONAL DIRECTOR`| ||`(GENERAL) OF PUBLIC INSTRUCTIONS`| WP(C)Nos.32801 of 2015 & con. Case 14 ## **`APPENDIX OF WP(C) 19246/2016`** ``` PETITIONER EXHIBITS ``` |`EXT.P1`|`COPY OF THE APPOINTMENT ORDER`| |---|---| ||`DTD.4.12.2000 ISSUED BY THE 4TH`| ||`RESPONDENT.`| |`EXT.P2`|`COPY OF THE APPOINTMENT ORDER`| ||`DTD.4.6.2004 ISSUED BY THE 4TH`| ||`RESPONDENT.`| |`EXT.P3`|`COPY OF THE APPOINTMENT ORDER`| ||`DTD.15.7.2009.`| |`EXT.P4`|`COPY OF THE APPOINTMENT ORDER`| ||`DTD.19.7.2013.`| |`EXT.P5`|`COPY OF THE ORDER DTD.28.11.2014 ISSUED`| ||`BY THE 4TH RESPONDENT.`| |`EXT.P6`|`COPY OF THE REVISION PETITION SUBMITTED`| ||`BY THE PETITIONER BEFORE THE 1ST`| ||`RESPONDENT.`| |`EXT.P7`|`COPY OF THE JUDGMENT DTD.29.3.2011 IN`| ||`WPC NO.28516/2010.`| |`EXT.P8`|`COPY OF THE CIRCULAR DTD.1.8.2012.`| |`EXT.P9`|`COPY OF THE JUDGMENT DTD.3.2.2015 IN`| ||`WPC NO.3449/2015.`| |`EXT.P10`|`COPY OF GO(RT)O.4133/2015/G.EDN.`| ||`DTD.17.9.2015.`| |`EXT.P12`|`COPY OF ORDER DTD.14.10.2015.`| |`EXT.P13`|`TRUE COPY OF THE LETTER DATED`| ||`08.03.2016`| |`EXT.P14`|`TRUE COPY OF THE LETTER DATED`| ||`31.03.2016`| |`Exhibit P15`|`TRUE COPY OF THE ORDER NO.`| ||`DEOEKM/1226/2023-86 DATED 04.05.2023`| ||`ISSUED BY THE OFFICE OF THE DISTRICT`| WP(C)Nos.32801 of 2015 & con. Case 15 ``` EDUCATION OFFICER, ERNAKULAM. Exhibit 16TRUE COPY OF THE REVISION PETITION DATED 06.06.2023 SUBMITTED BEFORE THE GOVERNMENT ```