R. Biji v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 10[TH] DAY OF JULY 2023 / 19TH ASHADHA, 1945 WP(C) NO. 19703 OF 2019`** ## **`PETITIONER:`** ``` R.BIJI, W/O.RADHAKRISHNAN M.S. AGED 46, “KARTHIKEYAM”, WEST GATE, HARIPAD, MANNARASALA P.O., ALAPPUZHA, PIN - 690 514, (HSA, HIGH SCHOOL, EDAPPON), NOW WORKING AS CLUSTER CO-ORDINATOR, BLOCK RESOURCES CENTRE, CHENGANNUR. BY ADVS.D.JOTHIKUMAR & T.N.JAYADEVAN ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM- 695 001.`** - **`2 DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF DPI, JAGATHI, TRIVANDRUM - 695 014.`** - **`3 THE DEPUTY DIRECTOR OF EDUCATION, DD OFFICE, KODIVEEDU, ALAPPUZHA - 688 001.`** - **`4 THE DISTRICT EDUCATION OFFICER, DEO OFFICE, MAVELIKKARA, ALAPPUZHA - 690 101.`** - **`5 THE MANAGER, HIGH SCHOL, EDAPPON P.O., AYARANIKUDI, MAVELIKARA - 690 558.`** - **`6 RAJI S.SINDHU, HSA, HIGH SCHOOL, EDAPPON P.O., AYARANIKUDI, MAVELIKARA - 690 558. R1 TO R4 BY GP – SRI.SUNILKUMAR KURIAKOSE R5 BY ADV.SRI.K.SHAJ R6 BY ADVS.SRI.N.SASIDHARAN UNNITHAN SRI.A.N.RETNAKARAN`** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C)No.19703 of 2019 2 ## **CR** ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) No.19703 of 2019 .................................................................** Dated this the 10[th] day of July, 2023 ## **JUDGMENT** The above writ petition is filed challenging Exts.P3 to P5 orders and for a declaration that the petitioner is senior to the 6[th] respondent as per Rule 37 of Chapter XIVA of the Kerala Education Rules (hereinafter referred to as “KER”) and therefore entitled to be promoted to the post of Headmaster in preference to the 6[th] respondent. 2. Petitioner entered service as HSA (Natural Science) in the school of the 5[th] respondent on 04.06.2007 and her appointment was approved with effect from that date. The 6[th] respondent was appointed as HSA (Mathematics) in the same school on the same day, viz. 04.06.2007. The 6[th] respondent is younger in age than the petitioner and the date of birth of the petitioner is 16.05.1973 and that of the 6[th] respondent is 28.05.1974. But when the provisional seniority list was drawn by the 5[th] respondent Manager, the petitioner was shown as junior to the 6[th] respondent. The petitioner submitted her WP(C)No.19703 of 2019 3 objection to the provisional seniority list published by the Manager. Thereupon, she has preferred a complaint before the 4[th] respondent and by Ext.P2 order, the 4[th] respondent declared that the petitioner is senior to the 6[th] respondent. Challenging Ext.P2, the 6[th] respondent filed an appeal before the 3[rd] respondent and the 3[rd] respondent by Ext.P3 order allowed the appeal holding that the 6[th] respondent is senior to the petitioner. The reason stated in Ext.P3 was that the 6[th] respondent had worked in the UP section from 23.11.1998 to 31.03.1999 in a maternity leave vacancy and therefore her first appointment was in 1998, before the appointment of the petitioner as HSA and hence she is senior. Aggrieved by Ext.P3, the petitioner challenged the same before the 2[nd] respondent and by Ext.P4 order, the Government confirmed the findings in Ext.P3 order. Petitioner again filed a revision before the 1[st] respondent which was also dismissed as per Ext.P5 order. Petitioner contended that the claim of the 6[th] respondent that she has previous service in Upper Primary school section is doubtful inasmuch as the only document produced by her is the copy of the acquittance register. The 6[th] respondent did not produce the appointment letter or any evidence to show that the said appointment was approved and that the same is not entered in her service book. The specific contention of the petitioner is that there is no reliable evidence to show that the 6[th] respondent has previous WP(C)No.19703 of 2019 4 service in the Upper Primary school section. To substantiate her contentions, the petitioner has produced Ext.P6, a reply given under the Right to Information Act in which it is stated that the order of appointment and approval given to the 6[th] respondent is not available in the records. Even though the petitioner requested for a certified copy of the appointment order of the 6[th] respondent as UPSA and the consequential approval of the same, the petitioner was served with Ext.P7 reply informing that the service book of the 6[th] respondent could not be given without her consent and Ext.P7(A) certificate of service of the 6[th] respondent was given to the petitioner, but the order of appointment and the consequential approval was not served on the petitioner. Petitioner submits that none of the documents to substantiate the appointment of the 6[th] respondent as UPSA and the consequential approval of the same is not available in the school. Petitioner also relies on Ext.P7(D) document wherein the petitioner was informed by the Office of the District Educational Officer that the records sought for by the petitioner are not available in the office. Petitioner on the strength of Exts.P8(A) and P9(A) replies obtained under the provisions of the Right to Information Act submitted that no documents are forthcoming to prove that the 6[th] respondent has previous approved service as UPSA and therefore going by Rule 37 of Chapter XIVA KER, as both were appointed on the very same day, WP(C)No.19703 of 2019 5 the petitioner being senior, should have been assigned seniority over the 6[th] respondent. 3. A counter affidavit has been filed on behalf of the 1[st] respondent wherein it is stated that the 6[th] respondent has acquired four months nine days service as UPSA from 23.11.1998 to 31.03.1999 in a leave vacancy, before her regular continuous service in the High School section. It is the contention of the 1[st] respondent that as per Sub-rule (2) of Rule 37 of Chapter XIVA KER if the beginning of service of teachers of the same grade is on the same day, the seniority can be fixed on the basis of the first appointment. “First appointment” means an approved posting and it does not specify the claimant under Rule 43, 51A of Chapter XIVA KER and on the basis of the prior appointment as UPSA, the 6[th] respondent is senior to the petitioner and therefore the assignment of seniority to the 6[th] respondent is perfectly legal and valid. 4. The 5[th] respondent has filed an affidavit wherein the service book, order of appointment as UPSA and the teachers’ signature register in respect of the 6[th] respondent were produced as Exts.R5(A) to R5(C). 5. The 6[th] respondent has filed a detailed counter affidavit wherein it is stated that she was initially appointed as UPSA in the High School, Edappon for the period from 23.11.1998 to 31.03.1999 WP(C)No.19703 of 2019 6 against a temporary vacancy by the 5[th] respondent Manager. Her appointment was duly approved by the 4[th] respondent DEO and the salary was drawn by her. The 6[th] respondent has also produced Ext.R6(a) order of appointment as UPSA in which it is endorsed by the DEO that the said appointment has been approved. It is the claim of the 6[th] respondent that taking into consideration her previous service, seniority has been correctly fixed and she was placed above the petitioner in Ext.R6(b) seniority list dated 01.01.2015 approved by the 4[th] respondent. On the basis of Ext.R6(b) it is contended that the seniority of the 6[th] respondent is finally fixed and settled over the petitioner as early as on 01.01.2015 and there is absolutely no reason to upset the settled seniority of the 6[th] respondent. It is the specific contention of the 6[th] respondent that the previous service should be reckoned for the purpose of seniority and the 6[th] respondent has become a senior to the petitioner as per the provisions of Rule 37(2) of Chapter XIVA KER which does not provide that the previous appointment should be permanent or continuous and that there shall not be a break between the previous and present appointment. The 6[th] respondent also relies on the judgment in _**Balakrishnan v. AEO, Vadakara (2005 (4) KLT 64**_ and also on the Full Bench decision in _**Valsamma v. State of Kerala (2014 (4) KLT 569)**_ in support of her contention. WP(C)No.19703 of 2019 7 6. I have considered the rival contentions of both sides. Petitioner as well as the 6th respondent relies on Rule 37 of Chapter XIVA KER, in support of their claim and the said rule 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 duly qualified for the post._ _Provided that the period of service rendered in the parent school or in another school by a teacher, who is relieved under rule 52, shall be reckoned for seniority on his reappointment to the parent school._ _(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. If the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior.”_ 7. Based on Rule 37 of Chapter XIVA KER it is the contention of the petitioner that in 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 and if the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior. Petitioner would contend that both the petitioner, as well as the 6[th] respondent, commenced service on the same day, i.e., 04.06.2007 and the petitioner being senior to the 6[th] respondent is entitled for seniority over her. Per contra, relying on the very same rule, the 6[th] respondent submits that she was initially appointed as UPSA with WP(C)No.19703 of 2019 8 effect from 23.11.1998 to 19.02.1999 against the temporary vacancy which was duly approved by the 4[th] respondent District Educational Officer and salary was also drawn and in view of the same, her seniority has to be fixed with reference to the date of first appointment, i.e., the appointment as UPSA from 23.11.1998 to 19.02.1999. Petitioner has also raised a contention based on the decision of the Apex Court in _**Manager, VKNM Vocational Higher Secondary School v. State of Kerala and others (2016) 4 SCC 216**_ that even though the 6[th] respondent had a preferential right of appointment in future vacancies, the right under old law not having crystallized into a vested right as no vacancy to claim the said right had arisen before the law changed adversely against her, the 6[th] respondent cannot claim the benefit of her earlier appointment as UPSA. The said contention of the petitioner is based on the amendment to Rule 51A which mandates that the appointee for claiming the benefit under Rule 51A should have completed one full academic year to be entitled for such preferential right and admittedly the 6[th] respondent has only less than three months service as UPSA, therefore, the said period cannot be claimed by the 6[th] respondent for claiming seniority above the petitioner. As stated above, petitioner has also taken a contention that though the 6[th] respondent claimed that she has service as UPSA for the period from 23.11.1998 to 31.03.1999, the appointment order or WP(C)No.19703 of 2019 9 the order of approval has not been produced to substantiate her claim. 8. Let me first consider who is the senior going by Rule 37 of Chapter XIVA KER. In _**Balakrishnan**_ ’s case supra interpreting Rule 37 this Court held as follows: _“5. Sub-r.(1) cannot answer the issue because both of them commence the qualified continuous service on the same date. - Necessarily we have to step over to sub r.(2) which provides that the seniority of such incumbents commencing continuous qualified service on the same day shall be reckoned “with reference to the date of first appointment”, obviously meaning earlier temporary appointment, which may be either qualified or under qualified. It is pertinent to note sub-r.(1) which stipulates commencement of continuous service “provided he is qualified for the post”. Commencement of continuous service shall be thus qualified continuous service. But sub-r.(2) while mentioning “the date of first appointment” as the order to reckon seniority among the persons having same date of continuance service, the word ‘qualified’ is not made mention of. What is mentioned in sub-r.(2) is not “first qualified appointment” but only “first appointment”. Necessarily, that is a conscious omission by the legislature, which we cannot fill up. We cannot therefore accept the contention that while determining the preference between the two or more persons, who are having the same date of qualified continuous service, the earlier first appointment also shall be qualified appointment, because several orders permitted appointment of under qualified hands as teachers in the absence of fully qualified hands. The decision reported in K.P.Mathiri v. State of Kerala and others (1973 KLT 284) is of a time when sub-r.(2) was not amended in the present form. At that time it did not give an answer to a situation when two teachers commenced qualified continuous service on the same date. It was in that situation the rule was amended to provide an answer. After amendment, the very same_ WP(C)No.19703 of 2019 10 _question had been adverted to by this court in the decision reported in Johny v. State of Kerala (1980 KLT 734). It had been taken in appeal and confirmed. Later also this court had adopted the same view in the decision in Vijayamma v. State of Kerala (1998 (1) KLT 706). More over, we see from the decision in Mathiri’s case that the continuous service that can be counted for seniority must be qualified service. That alone is counted in this case. When both have same date of continuous service, the ranking shall be as per R.37(2). Mathiri’s case does not deal with this aspect. So the appellant cannot claim seniority.”_ _(underline supplied)_ The Full Bench of this Court in _**Valsamma**_ ’s case supra had also occasion to interpret Rule 37 of Chapter XIVA KER and held as follows: _“18. The interpretation which has been put by the Division Bench after referring to R.37 is that R.37 clearly envisages that if appointment of two teachers in one particular cadre, for example H.S.A., is made on the same date, then their seniority is to be determined on the basis of first appointment in the same unit and if both being the same, age is to be reckoned. In the facts of the present case, the respondent having been appointed earlier as U.P.S.A., then the date of her first appointment is to be taken as 9.8.1992 and reckoning the said date, she will obviously become senior. Present is not a case where the first appointment of both the teachers is the same. Sub-rule (2) comes into play only when the continuous service in the H.S.A. grade is the same. The first appointment in H.S.A. grade is therefore the same as the_ WP(C)No.19703 of 2019 11 _commencement of continuous service. Therefore, the ‘date’ of first appointment has to be the date of appointment in the school and not in any particular grade. Thus, we are not persuaded by the submission of learned counsel for the appellant.”_ In the facts of the present case, the 6[th] respondent was first appointed as UPSA, then the date of appointment as UPSA is to be reckoned and so she has to be treated as senior to the petitioner. In light of the fact that the 6[th] respondent was first appointed as UPSA from 23.11.1998 to 31.03.1999, it will definitely make her senior to the petitioner in the seniority list. 9. The second contention raised by the petitioner is based on Rule 8 of Chapter XIVA KER which deals with the procedure with respect to the approval of the appointments. Going by Sub-rule (1) of Rule 8, there is an obligation cast on the Manager to forward the appointment order, duly signed with all details and particulars and documents as may be required for approval to the Education Officer, within 15 days from the date of joining duty of the candidate. Sub-rule (2) deals with the procedure for granting approval by the Education Officer which provides that after the approval, one copy of such approval should be communicated to the teacher concerned by the Education Officer through the Manager and another copy need to be forwarded to the Manager, to be kept in the school records. Based on WP(C)No.19703 of 2019 12 the said rules, it is the contention of the petitioner that there is no evidence to show that the 6[th] respondent was appointed as UPSA and later on approved by the departmental authorities. Even though the petitioner has sought for necessary details under the Right to Information Act, she has been given a reply stating that no such documents are available in the school records. The 5[th] respondent Manager has filed an affidavit dated 26.10.2021 and along with the same, the Manager has produced the 6[th] respondent’s service book, appointment order and the teachers’ signature register as Exts.R5(A) to R5(C). Ext.R5(A) service book would reveal that she was appointed as UPSA in a scale of pay from 23.11.1998 to 31.03.1999. Ext.R5(B) is the order of appointment of the 6[th] respondent as UPSA with effect from 23.11.1998 and perusal of the same would reveal that the said appointment was also approved by the District Education Officer, Mavelikkara. Ext.R5(C) teachers’ signature register would also show that the 6[th] respondent has signed the register and there is an endorsement that she has been appointed with effect from 23.11.1998 FN in the maternity leave vacancy of Smt.Rajanidevi. In the counter affidavit filed by the 6[th] respondent, the documents in respect of her appointment as UPSA, duly approved by the District Education Officer were also produced. The seniority list as on 01.01.2015 was also produced as Ext.R6(b) wherein the 6[th] respondent was assigned the WP(C)No.19703 of 2019 13 rank above the petitioner and the said seniority list was approved by the District Education Officer also. A perusal of the documents produced by the 5[th] respondent Manager as well as the 6[th] respondent would reveal that there is ample proof to substantiate that the 6[th] respondent had an initial appointment as UPSA for the period from 23.11.1998 to 31.03.1999 and the same was duly approved by the District Education Officer also. Therefore, the contention of the petitioner based on Rule 8 of Chapter XIVA KER is also without any basis. 10. The last contention raised by the petitioner is based on the judgment in _**Manager, VKNM Vocational Higher Secondary School**_ ’s case supra. The said decision can have no application in the facts and circumstances of this case inasmuch as in _**Manager, VKNM Vocational Higher Secondary School**_ ’s case supra, the Apex Court was considering the claim under Rule 51A of Chapter XIVA KER and held that for claiming the benefit of Rule 51A, the engagement of a teacher should have lasted for one clear academic year. But in the present case, the 6[th] respondent is not claiming the benefit of Rule 51A but claiming the benefit of Rule 37 of Chapter XIVA KER which gave seniority to the 6[th] respondent on the basis of the first appointment as UPSA. Therefore, I am of the opinion that the contention of the petitioner based on the said judgment is only to be WP(C)No.19703 of 2019 14 rejected. In view of the same, I find no reason to interfere with the order impugned in this writ petition and the writ petition is accordingly dismissed. Sd/- **VIJU ABRAHAM JUDGE** cks WP(C)No.19703 of 2019 15 ## **`APPENDIX OF WP(C) 19703/2019`** |`PETITIONER`|`EXHIBITS`| |---|---| |`EXHIBIT P1`|`A TRUE COPY OF THE APPOINTMENT ORDER`| ||`WITH THE ENDORSEMENT SHOWING THE`| ||`APPROVAL.`| |`EXHIBIT P2`|`A TRUE COPY OF THE ORDER DATED`| ||`17/04/2017 OF THE 4TH RESPONDENT.`| |`EXHIBIT P3`|`A TRUE COPY OF THE ORDER DATED`| ||`27/06/2017 OF THE 3RD RESPONDENT.`| |`EXHIBIT P4`|`A TRUE COPY OF THE ORDER DATED 16/9/2017`| ||`OF THE 2ND RESPONDENT.`| |`EXHIBIT P5`|`A TRUE COPY OF THE ORDER DATED`| ||`29/03/2019 OF THE 1ST RESPONDENT.`| |`EXT.P6`|`TRUE COPY OF THE LETTER NO.B3/7981/2017`| ||`DATED 20.11.2017`| |`EXT.P7`|`TRUE COPY OF THE LETTER DATED 22.01.2018`| |`EXT.P7(A)`|`TRUE COPY OF THE DOCUMENT SAID TO BE THE`| ||`CERTIFICATE OF SERVICE OF THE 6TH`| ||`RESPONDENT`| |`EXT.P7(B)`|`TRUE COPY OF THE REPORT NO.9/M/2018`| ||`DATED 6.12.2018`| |`EXT.P7(C)`|`TRUE COPY OF THE RTI APPLICATION DATED`| ||`9.2.2022`| |`EXT.P7(D)`|`TRUE COPY OF THE REPLY NO.B3/760/2022`| ||`DATED 9.3.2022`| |`EXT.P8`|`TRUE COPY OF THE RTI APPLICATIONS DATED`| ||`9.2.2022`| |`EXT.P8(A)`|`TRUE COPY OF THE REPLY NO.B3/762/2022`| ||`DATED 9.3.2022`| |`EXT.P9`|`TRUE COPY OF THE RTI APPLICATIONS DATED`| ||`9.2.2022`| |`EXT.P9(A)`|`TRUE COPY OF THE REPLY NO.B3/761/2022`| ||`DATED 9.3.2022`| ## RESPONDENTS’ EXHIBITS ``` Exhibit R4 (a)True copy of relevant pages of Personal Approval Register. EXT.R5(A)THE TRUE COPY OF THE SERVICE BOOK OF THE 6TH RESPONDENT RAJI S.SINDHU KEPT IN THE SCHOOL ``` WP(C)No.19703 of 2019 16 `EXT.R5(B) THE TRUE COPY OF THE APPOINTMENT ORDER OF THE 6TH RESPONDENT AS UPSA EXT.R5(C) THE TRUE COPY FO THE RELEVANT EXTRACT OF THE TEACHERS SIGNATURE REGISTER EXT.R6(a) TRUE COPY OF THE APPOINTMENT ORDERS ISSUED BY THE 5TH RESPONDENT MANAGER AND APPROVED BY THE 4TH RESPONDENT EXT.R6(b) TRUE COPY OF THE FINAL SENIORITY LIST OF TEACHERS AS ON 1/1/2015 DULY APPROVED BY THE 4TH RESPONDENT EXT.R6(c) TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN BALAKRISHNAN VS AEO VADAKA REPORTED IN (2005 (4) KLT 64)`