PUSHPAVATHY DEVI K v STATE OF KERALA and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 8TH DAY OF MARCH 2016/18TH PHALGUNA, 1937 WP(C).No. 28409 of 2015 (A) ---------------------------- PETITIONER(S): -------------------------- PUSHPAVATHY DEVI K HSA (PS) BJSM MADATHIL HIGH SCHOOL, THAZHAVA NORTH KUTHIRAPANDHI PO, KOLLAM 690523 BY ADVS.SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): ---------------------------- ## 1. STATE OF KERALA REPRESENTED BY SECRETARY, EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM 695001 ## 2. THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KOLLAM PIN 691001 ## 3. THE MANAGER BJSM MADATHIL HIGH SCHOOL, THAZHAVA NORTH KUTHIRAPANDHI PO, KOLLAM 690523 ## 4. T.L.SABITHA HSA (MATHS), BJSM MADATHIL HIGH SCHOOL, THAZHAVA NORTH KUTHIRAPANDHI PO, KOLLAM 690523 R1 BY ADV. GOVERNMENT PLEADER SRI M A FAYAZ R3 BY ADV. SRI.JOHN JOSEPH VETTIKAD R3 BY ADV. SRI.C.JOSEPH JOHNY R4 BY ADV. SRI.K.S.BHARATHAN R4 BY ADV. SMT.S.ANJUSHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28409 of 2015 (A) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1: TRUE COPY OF THE APPOINTMENT ORDER DATED 15.07.1986 ISSUED BY THE 3RD RESPONDENT AND APPROVED BY THE 2ND RESPONDENT EXT.P2: TRUE COPY OF THE APPOINTING ORDER DATED 02.06.1986 ISSUED BY THE 3RD RESPONDENT AND APPROVED WITH EFFECT FROM 15.07.1986 BY THE 2ND RESPONDENT EXT.P3: TRUE COPY OF THE SENIORITY LIST FOR THE YEAR JANUARY 2006 EXT.P4: TRUE COPY OF THE OBJECTION PREFERRED BY THE PETITIOER BEFORE THE 2ND RESPONDENT DATED 16.05.2015 EXT.P5: TRUE COPY OF THE ORDER DATED 23.05.2015 PASSED BY THE 2ND RESPONDENT EXT.P6: TRUE COPY OF THE ORDER DATED 29.05.2015 IN WPC.NO.16043/2015 EXT.P7: TRUE COPY OF THE JUDGMENT DATED 13.07.2015 IN WPC.NO.16043/2015 EXT.P8: TRUE COPY OF THE ORDER DATED 14.09.2015 PASSED BY THE 1ST RESPONDENT EXT.P9: TRUE COPY OF THE COMMUNICATION DT 18.09.2014 ISSUED BY THE EDUCATION (J) DEPARTMENT EXT.P10: TRUE COPY OF THE ARGUMENT NOTES FILED BY D.E.O ALONG WITH THE COVERING LETTER DT 12.08.2015 RESPONDENT(S)' EXHIBITS --------------------------------------- EXT.R3(a): TRUE COPY OF THE GOVERNMENT ORDER DT 16.05.2015 EXT.R3(b): TRUE COPY OF THE GOVERNMENT ORDER DT 10.06.2015 EXT.R3(c): TRUE COPY OF THE GOVERNMENT ORDER DT 03.05.2013 TRUE COPY P.A TO JUDGE jma ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 28409 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 08[th] day of March, 2016 ## J U D G M E N T The petitioner is aggrieved with the denial of promotion as Head Mistress (HM) despite the petitioner being senior. The incumbency details of the petitioner and the respondents are to be noticed. The petitioner was appointed as UPSA in the 3[rd] respondent's school on 01.08.1984 and promoted as per Ext.P1 on 15.07.1986, from which date the petitioner has been continuing as H.S.A (Physical Science). The 4[th] respondent was also appointed as H.S.A (Maths) by Ext.P2, with approval from 15.07.1986. The appointment is said to be from 02.06.1986 but the approval is from 15.07.1986, which was left unchallenged for a long period. 2. The dispute is with respect to the post of Head Mistress/Head Master (HM) which arose on 01.04.2015. Both the WPC.28409/2015 : 2 : petitioner and the 4[th] respondent being appointed on the same day as per Rule 37(2) of the Kerala Education Rules, the date of first appointment has to be first looked at and that too being same; then the age of the incumbents have to be looked at to decide the seniority. The petitioner is admittedly older than the 4[th] respondent. The petitioner also contends that even going by Rule 37(2) the petitioner’s appointment as UPSA from 01.08.1984, being ’s the first appointment, is long prior to that of the 4[th] respondent appointment as H.S.A. 3. The learned Counsel for the respondent Manager has two contentions. One that the 4[th] respondent in fact was appointed on 02.06.1986 as per Ext.P2 and this was to a regular vacancy which was continued thereafter and in such circumstance the 4[th] respondent is entitled to seniority above the petitioner since in the same cadre the 4[th] respondent has the seniority. The argument is that, application of Rule 37(2) would occur only in circumstances WPC.28409/2015 : 3 : where the appointment is to the same cadre, on the very same date. The next contention is that the Government has, by the impugned order considered the implication of the Right of Children to Free and Compulsory Education Act, 2009 and the rules framed thereunder by the State in G.O(P) 100/2011/G1 Edn. dt 30.04.2011 being the Right of Children to Free and Compulsory Education Act, 2009. Rule 18 is specifically referred, to contend that the 4[th] respondent has the qualification in the Departmental test and test in Kerala Education Act and Rules which gives an edge.,insofar as the consideration to the post of H M. The learned counsel for the 4[th] respondent submits that a revision is pending as against Ext.P2 order, seeking approval from 02.06.1986 itself. 4. The submission made based on Rule 18 of the RTE Act is no more valid since a learned Single Judge of this Court has considered the issue in W.P(C) No,14971/2014 by judgment dated 24.06.2014, to hold that as long as the qualification is not WPC.28409/2015 : 4 : prescribed by way of a notification there can be no rejection of seniority on the ground of absence of test qualification. The decision has also been approved by the Division Bench in judgment dated 25.06.2015 in W.A No.1900/2014. 5. The further contention is with respect to the appointment from 02.06.1986 of the 4[th] respondent. Admittedly the approval is only from 15.07.1986. On a specific query as to when the revision was filed, the learned counsel for the 4[th] respondent would concede that the revision is filed in the year 2015. Obviously, the revision was intended to defeat the claim of the petitioner herein. The approval as per Ext.P2 was granted some time in February, 1987 as is evident from Ext.P2. Neither the Manager nor the teacher challenged the same in the last about 19 years. The seniority of the petitioner hence cannot be upset by reason of any orders passed in the revision even if the approval of the 4[th] respondent is permitted from 02.06.1986 onwards. WPC.28409/2015 : 5 : Seniority is an incidence of service which has to have a certain amount of certainty at least with passage of time as has been held by the Hon'ble Supreme Court in Shiba Shankar Mohapatra v. State of Orissa (2010 (12) SCC 471) . Hence applying the sit back theory it is declared that the petitioner's seniority as on 15.07.1986, by virtue of her first appointment, as against the 4[th] respondent would remain undisturbed. Both the petitioner and the 4[th] respondent have been granted approval of appointment on the same day. The petitioner hence is entitled to be appointed as H M above the 4[th] respondent. Such appointment shall also be from 01.04.2015 onwards. The petitioner shall be entitled to the entire benefits of and allowances due to the pay Headmaster/Headmistress from 01.04.2015 onwards. 6. In the circumstance of the Manager having kept out the petitioner illegally from such appointment the pay and allowances, though paid by the Government till the date of WPC.28409/2015 : 6 : appointment as HM would be recovered from the Manager, by virtue of Rule 7 of Chapter III KER. Writ petition would stand allowed. No costs. Sd/- (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge