R. Syamala Devi v. State of Kerala and Others (W.P.(C) No.12836 of 2013)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 17TH DAY OF JULY 2013/26TH ASHADHA, 1935 WP(C).No. 12836 of 2013 (D) ---------------------------- PETITIONER: - ------------- R.SYAMALA DEVI TEACHER-IN-CHARGE HMT EDUCATIONAL SOCIETY HIGH SCHOOL KALAMASSERY, ERNAKULAM DISTRICT. BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ----------------- 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 DEPUTY DIRECTOR OF EDUCATION ERNAKULAM AT KAKKANAD-682030. 4. THE DISTRICT EDUCATIONAL OFFICER, ALUVA, ERNAKULAM DISTRICT - 683 101. 5. THE MANAGER, HMT EDUCATIONAL SOCIETY HIGH SCHOOL KALAMASSERY, ERNAKULAM DISTRICT - 683 104. 6. SMT.MOLLY T. ALURUMBIL, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE) HMT EDUCATIOAL SOCIETY HIGH SCHOOL KALAMASSERY, ERNAKULAM DISTRICT - 683 104. R1 TO R4 BY GOVT. PLEADER SMT.A.LOWSY R6 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R6 BY ADV. SMT.N.SANTHA R6 BY ADV. SRI.K.A.BALAN R6 BY ADV. SRI.PETER JOSE CHRISTO R6 BY ADV. SRI.S.A.ANAND R6 BY ADV. SMT.L.AMMU PILLAI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12836 of 2013 (D) ---------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS ---------------------------- - P1- TRUE COPY OF THE G.O.(MS.)NO.354/2000/G.EDN. DATED 31.10.2000 OF THE GOVERNMENT. - P2- TRUE COPY OF THE ORDER NO.B3-4144/2001 DATED 17.5.2001 OF THE DISTRICT EDUCATIONAL OFFICER. - P3- TRUE COPY OF THE RELEVANT PAGE OF THE SENIORITY LIST AS ON 1.1.1999. - P4- TRUE COPY OF THE ORDER NO.B3/2508/2011/K.DIS. DATED 9.8.2011 OF THE 4TH RESPONDENT. - P5- TRUE COPY OF THE ORDER NO.B3/15861/11/K.DIS. DATED 5.6.2012 OF THE 3RD RESPONDENT. - P6- TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P[C] NO.18764/2012-U DATED 24.9.2012. - P7- TRUE COPY OF THE ORDER NO.EC4/55981/2012/DPI/K.DIS. DATED 5.12.2012 OF THE 2ND RESPONDENT. - P8- TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 15.12.2012. - P9- TRUE COPY OF THE JUDGMENT IN W.P[C]NO.30779/2012-V DATED 11.1.2013. - P10- TRUE COPY OF THE G.O.(RT.)NO.1892/2013/G.EDN. DATED 29.4.2013 OF THE GOVERNMENT. - P11- TRUE COPY OF DECISION REPORTED IN 2005(4) K.L.T. 64 DATED 28.7.2005. - P12- TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER. - P13- TRUE COPY OF THE RELEVANT PAGES OF THE ATTENDANCE REGISTER OF STANDARD VII B OF THE SCHOOL FOR THE YEAR 1999-2000. - P14-TRUE COPY OF THE RELEVANT PAGES OF THE ATTENDANCE REGISTER OF STANDARD VII B OF THE SCHOOL FOR THE YEAR 2000-2001. - P15- TRUE COPY OF THE RELEVANT PAGES OF THE ATTENDANCE REGISTER OF STANDARD IX C OF THE SCHOOL FOR THE YEAR 1999-2001. - P16- TRUE COPY OF THE RELEVANT PAGES OF THE ATTENDANCE REGISTER OF STANDARD IX C OF THE SCHOOL FOR THE YEAR 2000-2001. - P17-TRUE COPY OF THE REVIEW PETITIN DATED 10TH JUNE 2007 P18-TRUE COPY OF THE REMINDER DATED 12.7.2013 WP(C).No. 12836 of 2013 (D) ## RESPONDENTS' EXHIBITS: ----------------------------- - EXT.R6(a): TRUE COPY OF THE ORDER NO.HMT ES/HS/01 DATED 24.5.2001 WITH EFFECT FROM 31.10.2000. - EXT.R6(b): TRUE COPY OF THE REPRESENTATION DATED 29.5.2006 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE DISTRICT EDUCATIONAL OFFICER, ALUVA. EXT.R6(c): TRUE COPY OF THE RECEIPT NO.B3/4132/06 DATED 29.5.2006. - EXT.R6(d): TRUE COPY OF THE ORDER NO.B3/4132/06 DATED 31.07.2006 OF THE DISTRICT EDUCATIOAL OFFICER, ALUVA. - EXT.R6(e): TRUE COPY OF THE JUDGMENT DATED 13.09.2006 IN W.P.(C) NO.24065/2006 OF THIS HON'BLE COURT. EXT.R6(f): TRUE COPY OF THE G.O.(Rt)NO.2207/07/G.EDN. DATED 21.5.2007. EXT.R6(g): TRUE COPY OF THE G.O.(Rt)NO.4084/2008/G.EDN. DATED 8.9.2008. // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ---------------------------- W.P.(C)No.12836 of 2013 ---------------------------Dated 17[th] July, 2013 ## **JUDGMENT** After hearing the learned counsel for the petitioner, the learned counsel appearing for the 6[th] respondent and also the learned Government Pleader, at length, I am constrained to come to the conclusion that the first point to be considered is whether the petitioner has approached this court with unclean hands. The answer to the said question would be unravelled by the narration of facts as hereunder:- The petitioner seeks for quashment of Exts.P7 and P10 and issuance of a writ of mandamus commanding the fourth respondent to refrain from approving the appointment of the 6[th] respondent as Headmistress of HMT Educational Society High School, Kalamassery (for short `the School') which is a recognised aided school. It is pertinent to note that the school was originally a recognised unaided school and it was converted into an aided school as per Ext.P1 viz., G.O.(Ms) No.354/2000/G.Edn. dated 31.10.2000 only with effect from 31.10.2000. The further prayer of the petitioner is for issuance of a writ of mandamus commanding the 4[th] and 5[th] respondents to appoint and approve her as its Headmistress from 1.10.2012. Ext.P7 is the WP(C).No.12836/2013 2 order of the second respondent dated 5.12.2012. As per the same, a petition dated 9.7.2012 preferred by the 6[th] respondent herein was considered and allowed pursuant to a judgment of this Court dated 24.9.2012 in W.P.(C)No.18764 of 2012 filed by the sixth respondent. Consequential direction to the fourth respondent to approve the 6[th] respondent's appointment as Teacher-in-charge with effect from 1.6.2011, if it is otherwise in order, was also given thereunder. Evidently, the petitioner was also heard in person prior to the passing of Ext.P7. Ext.P10 is an order passed by the first respondent dated 29.4.2013 pursuant to Ext.P9 judgment of this Court in W.P.(C) No.30779 of 2012 filed by the petitioner herein seeking for a direction to the Government to take a decision on the revision petition filed by her against Ext.P7 order. Thus, evidently, Ext.P10 order was passed in compliance with the directions therein. As per Ext.P10 Government have ordered to approve the appointment of the 6[th] respondent as Headmistress of the School with effect from the date of completion of 12 years of service if she is otherwise eligible. 2. The core contention of the petitioner is that the basis for fixing the inter se seniority between the petitioner and the 6[th] respondent should have been the dates of commencement of their WP(C).No.12836/2013 3 respective service while `the School' was a recognised, unaided school as both of them originally commenced service when the school was an unaided school. The petitioner commenced such service earlier than the 6[th] respondent. To be precise, according to the petitioner, she commenced such service on 16.7.1984 as a graduate teacher whereas the sixth respondent commenced such service as a graduate teacher only with effect from 1.12.1987. It is contended that the school in question was established in the unaided sector in 1966 and it became a full fledged school in the year 1976. As noticed earlier, while so, it was converted as an aided school with effect from 31.10.2000 as per GO(Ms.)No.354/2000/G.Edn. dated 31.10.2000. As per Ext.P1, the then existing teaching and non-teaching staff could be retained in the service of the school upon its conversion as aided school provided they possess the prescribed qualifications under the Kerala Education Rules. Later, appointments of all qualified teaching and non-teaching staff of the said school including the petitioner and the sixth respondent were approved as per Ext.P2 dated 17.5.2001 with effect from 31.10.2000. After narrating facts as above the petitioner took up certain claims and contentions to substantiate her right to get the reliefs sought for. In that regard, it is contended that the petitioner and the 6[th] respondent commenced regular service in the school respectively with effect from WP(C).No.12836/2013 4 16.7.1984 and 1.12.1987 and therefore, according to the petitioner, their inter se seniority position could not be changed merely because of the conversion of the recognised unaided school as a recognised aided school. The petitioner produced Ext.P3 which is the relevant page of the seniority list prepared and approved by the 4[th] respondent to contend that even in the said list which was prepared after the recognition of the school the petitioner's seniority was maintained over the 6[th] respondent. It is also contended that the 6[th] respondent had put her signature in Ext.P3 seniority list without any demur or objection and since the 6[th] respondent had not raised any objection then and there and put her signature the 6[th] respondent could not have and should not have challenged the inter se seniority fixed among herself and the petitioner, subsequently. It is also contended by the petitioner that the Teacher-in-charge of the said school one B.T.Philomina retired from on 31.3.2011 and as on that day none among the teachers in that school was having 15 years of service in an aided school. One Savithri was thereupon appointed as Teacher-incharge and she worked as such from 1.4.2011 to 31.5.2011 and thereafter relinquished the said post. Being the next senior most teacher, the petitioner was appointed as the Teacher-in-charge and that was objected to by the 6[th] respondent. It is the further contention WP(C).No.12836/2013 5 that the 4[th] respondent thereafter issued Ext.P4 proceedings dated 9.8.2011 in the matter of appointments of the aforementioned P.S.Savithri and the petitioner, as teacher-in-charge, and the objection raised by the 6[th] respondent against the petitioner's appointment. Evidently, the petitioner contended before the 4[th] respondent that it would be unjustifiable to reckon the seniority of teachers of the School based on Rule 37(1) and (2) of Chapter XIV-A, KER and whereas the 6[th] respondent sought for its application. The 6[th] respondent has also taken up the contention that for the purpose of reckoning seniority the aided school service since 31.10.2000 alone could be reckoned. As per Ext.P4, the Teacher-in-charge appointments made by the 5[th] respondent Manager were declined to be approved citing the reason that he had ignored the direction to find out a qualified teacher for appointment as Headmaster from outside on occurrence of vacancy in the post of Headmaster. The claim of the 6[th] respondent for appointment as Teacher-in-charge with effect from 1.6.2011 was also rejected. Thereupon, the 6[th] respondent took up the matter further in appeal before the second respondent and as noticed hereinbefore, subsequently Exts.P7 and P10 orders came to be passed. The contention of the petitioner is that the said order in Ext.P10 is opposed to Ext.P11 judgment of this Court viz., **Balakrishnan** v. **A.E.O.,** WP(C).No.12836/2013 6 **Vadakara** reported in **(2005(4) KLT 64)** . It is with these allegations that the petitioner sought to challenge Exts.P7 and P10 orders and sought for consequential reliefs. 3. The 6[th] respondent has filed a counter affidavit. It is specifically stated therein that the petitioner approached this Court with unclean hands and she has suppressed the material facts as also misrepresented the facts. It is stated in paragraph 6 of the counter affidavit that 16.9.1984 and 1.12.1987 are the dates on which the petitioner and the 6[th] respondent commenced their respective regular service in the School while it was a recognised unaided school and after its conversion as an aided school, as per Ext.P1, both of them commenced their aided school service from 31.10.2000. It is also stated therein that after the conversion of the School as an aided school the 6[th] respondent was appointed by the 5[th] respondent as High School Assistant (Physical Science) as per Ext.R6(a) order dated 24.5.2001 with effect from 31.10.2000 and the petitioner was also issued with a similar order of appointment with effect from 31.10.2000. This crucial aspect that after the conversion of the school separate orders of appointments were issued by the 5[th] respondent appointing both the petitioner and the 6[th] respondent as High School WP(C).No.12836/2013 7 Assistants with effect from 31.10.2000 was not disclosed by the petitioner in the writ petition. According to the 6[th] respondent, the petitioner had also willfully suppressed certain other crucial aspects. To substantiate the same along with the counter affidavit the 6[th] respondent produced Exts.R6(e) and R6(f). Ext.R6(e) is a copy of the judgment of this Court in W.P.(C)No.24065 of 2006 and in that writ petition the petitioner herein was the second petitioner and the 6[th] respondent was the 4[th] respondent. A perusal of Ext.R6(e) would reveal that the said writ petition was moved by the petitioner along with some others on being aggrieved by the decision of the 4[th] respondent herein in such a manner affecting their seniority in the School. In paragraph 11 of the counter affidavit it is stated that the 4[th] respondent herein as per Ext.R6(d) order No.B3/4132/06 dated 31.7.2006 directed the Manager to prepare a revised seniority list of teaching and non-teaching staff of the School according to the guidelines noted thereunder viz, as hereunder:- - “1. The seniority list should be prepared only taking the service after the conversion of the school as aided one i.e., 31.10.2000. 2. The details of service before granting aided status should be excluded from the seniority list. 3. The seniority should be regularised according to the WP(C).No.12836/2013 8 age vide Rule 37(1) and (2) of Chapter XIV-A KER. 4. Seniority list should be submitted to this office for provisional approval.” It is stated in the counter affidavit that the petitioner herein along with some others moved W.P.(C)No.24065 of 2006 against Ext.R6(d) after filing revision petition before the Government. Evidently, it was stated in that writ petition that as against the impugned order passed by the 4[th] respondent herein (the second respondent therein) they moved the first respondent through Ext.P8 series of representations, referred as such in that writ petition. Taking note of the said submission, as per Ext.R6(e) judgment, W.P.(C)No.24065 of 2006 was disposed of with a direction to the first respondent to consider and pass orders on the said representations on merit and in accordance with law as expeditiously as possible, at any rate, within a period of four months from the date of receipt of copy of that judgment. Though in this writ petition the petitioner has stated that against Ext.P4 order the 4[th] respondent issued orders for publication of a new seniority list as if all the appointments were made on 31.10.2000 and that the 6[th] respondent preferred an appeal before the 3[rd] respondent against it unsuccessfully and thereafter successfully challenged the same before the second respondent, the Director of Public Instruction, she has not WP(C).No.12836/2013 9 stated anything, anywhere in this writ petition as to the steps taken by her aggrieved by Ext.R6(d) order for preparation of seniority list in the aforesaid manner. The fact that aggrieved by Ext.R6(d) order of the 4[th] respondent she moved the Government and thereafter approached this Court along with some others by filing W.P.(C)No.24065 of 2006 and it culminated in Ext.R6(e) judgment dated 13.9.2006 were not even mentioned in the writ petition. The petitioner has also suppressed the fact that subsequent to Ext.R6(e) judgment the first respondent afforded an opportunity of being heard to herself, the 6[th] respondent and the other teaching staff and then passed Ext.R6(f) order dated 21.5.2007. The non-mentioning of Exts.R6(d) and R6(f) is very crucial, in the context of the issues involved in this writ petition. In Ext.R6(f) it was noticed that the 4[th] respondent directed the 5[th] respondent Manager to prepare a revised seniority list of the teaching and non-teaching staff of the school taking the service after the conversion of the School as aided and excluding the service prior to 31.10.2000 and to regularise the seniority according to age vide Rule 37(1) and (2) of Chapter XIV-A, KER as per order dated 31.7.2006. Evidently, the reference was about Ext.R6(d) order dated 31.7.2006. It was also held therein that there is no provision in the KER to fix the seniority of staff of an aid school counting the unaided service. Taking WP(C).No.12836/2013 10 note of the fact that the School was functioning for about 6 years without a Headmaster, that for appointing Headmaster a teacher should have 12 years of continuous graduate aided service and also the absence of any such qualified teaching staff in the School the 5[th] respondent was directed to get somebody from some aided schools with the required service for the purpose of posting as Headmaster, on occurrence of vacancy in the post of Headmaster. It was also held therein that the unaided recognised service of the staff of the School could not be reckoned along with aided school service for service/pensionary benefits or for the appointment of Headmaster. Ext.R6(f) order dated 21.5.2007 was evidently passed with notice to the petitioner as well. How can the petitioner feign ignorance about these crucial aspects. Evidently, she herself along with some others approached this Court by filing W.P.(C)No.24065 of 2006 against Ext.R6(d) order and it culminated in Ext.R6(e) judgment and Ext.R6(f) order dated 21.5.2007 was then passed in compliance with the directions in Ext.R6(e) judgment. Virtually, the twin contentions of the petitioner viz., seniority is to be fixed reckoning the unaided school service for the purpose of fixation of seniority in the school after its conversion as recognised aided school and for not adhering to the provisions under Rule 37(1) and (2) of Chapter XIV-A, KER to WP(C).No.12836/2013 11 regularise seniority according to age, were not found favour with the Government while passing Ext.R6(f). It is to be noted that Ext.R6(f) would undoubtedly reveal the fact that as per Ext.P8 series of representations, referred as such in Ext.R6(e) judgment; what the petitioner and the others sought for, was for fixation of their seniority counting their unaided service. This is evident from page 2 of Ext.R6(f). Ext.R6(f) to the extent it is relevant in this contextual situation reads thus:- “Ext.P8 series are representations submitted by the petitioners before Government requesting to fix their seniority counter their unaided service also. Their grievance is that if the unaided service is not - counter their juniors in service will become seniors in the seniority list. The District Educational Officer reported that the service prior to the conversion cannot be reckoned for seniority, grade promotion or any other service benefits as per the existing rules land down in KER and the petitioners are not entitled to get service benefits counting unaided service prior to 31.10.00. The District Educational Officer approved the appointment of all qualified teaching and non teaching staff with effect from 31.10.00 and directed the Manager to - revise the seniority list as per Rule 37(2) Chapter XIV A, KER by which the older became the senior ” irrespective of their dates of appointment. 4. The petitioner has not only suppressed those vital facts WP(C).No.12836/2013 12 but, wilfully taken up the pleadings as if against the proceedings of the 4[th] respondent fixing the inter se seniority of the teaching staff of the School. The 6[th] respondent alone took up the matter unsuccessfully before the third respondent and thereafter successfully before the first respondent. Her pleading appears to be that it was only after Ext.P7 that she moved the Government in the matter and then filed W.P.(C)No.30779 of 2012 and pursuant to the judgment therein Ext.P10 order was passed by the Government. Ext.P9 judgment would suggest that the factum of issuance of Ext.R6(f) order was not brought before this Court even at that time. The said statement of the petitioner is certainly misleading. Evidently, the 6[th] respondent was claiming for reckoning of only the aided service with effect from 31.10.2000 and also for fixing the seniority in accordance with Rule 37(1) and (2) of Chapter XIV-A, KER. In fact, her grievance against Ext.P4 was only regarding rejection of her request for appointment as Teacher-in-charge of the School with effect from 1.6.2011. It was that claim of the 6[th] respondent which was upheld as per Ext.P7. In the circumstances, the misrepresentation facts as aforesaid, suppression of Exts.R6(d), R6(e) and above all that she had suffered Ext.R6(f) order whereby her request for fixing the seniority reckoning the recognised unaided school service was rejected can only WP(C).No.12836/2013 13 be said to be willful suppression of material facts. Though the petitioner has suffered such an order for obvious reasons the petitioner has not only suppressed the factum of issuance of Ext.R6(e) judgment of this Court and the consequential issuance of Ext.R6(f) order by the first respondent she has also not chosen to challenge Ext.R6(f) though it is adverse to her. The petitioner has no case that she has successfully challenged Ext.R6(b) order dated 21.5.2007. In Ext.R6(f) it was also held thus:- “Though there are teachers in the school having 21 years of unaided service, unaided recognized service of the staff of the school can't be reckoned along with the aided services for service/pensionary benefits or for the appointment of HM.” These suppressions are therefore, nothing but willful suppressions of material facts and the petitioner is virtually misrepresented the facts. No explanation is forthcoming from the petitioner as to why even after suffering such an order those facts were not mentioned in the pleadings. It is to be noted that even in the reply affidavit and in the additional reply affidavit the petitioner has not offered any explanation whatsoever for this serious, willful suppression of material facts. After realising the line of defence of the respondents especially made with WP(C).No.12836/2013 14 respect to the suppression, the petitioner filed an additional reply affidavit and produced Exts.P13 to P18 along with it. Even in the additional reply affidavit though the petitioner had referred about Ext.R6(f) dated 21.5.2007 she has not sought for any relief against the same and has not produced the copy of the same. After referring the same what is stated in the additional reply affidavit is that as against the same she has preferred Ext.P17 review petition before the Government and that despite Ext.P18 reminder no decision was taken on the review petition. Ext.P17 review petition is dated 10.6.2007. This writ petition has been filed on 21.5.2013. Even then nothing was mentioned about Ext.P17 review petition. Ext.P18 remainder was filed after the filing of the counter affidavit by the 6[th] respondent and it was filed by the petitioner only on 12.7.2013. The petitioner who moved Ext.P7 review petition against Ext.R6(f) cannot be said to be unaware of Ext.R6(f) and in fact, there is no case for the petitioner that he was not served with Ext.R6(f) order passed by the Government pursuant to Ext.R6(e) judgment. In fact, the misrepresentation of facts, as stated hereinbefore, and the suppression of aforementioned material facts and documents would undoubtedly suggest that the attempt of the petitioner is to resurrect the claims and contentions which were already held against her. The tenor of the contentions in this writ WP(C).No.12836/2013 15 petition would undoubtedly reveal that the specific case of the petitioner is that she is entitled to get fixed her seniority in the aided school reckoning the unaided service rendered by her while the school was functioning as a recognized unaided school and the provisions under Rule 37(1) and (2) of Chapter XIV-A, Ker are not to be followed in the matter of fixation of seniority among the teaching staff of the School. In this context, it is to be noted that the specific contention of the 6[th] respondent in paragraph 6 of the counter affidavit that her date of birth is 27.4.1960 and that of the petitioner is 4.4.1961 is also not disputed by the petitioner. In view of the overall analysis of the circumstances I have no hesitation to hold that the petitioner has purposefully misrepresented certain crucial facts, as aforesaid, and also suppressed the material facts regarding the passing of Ext.R6(d), Ext.R6(e) judgment and also Ext.R6(f) order passed by the Government pursuant to the said judgment and after affording an opportunity of being heard to the petitioner, the 6[th] respondent and other teachers. Misrepresentation of facts and material suppression should necessarily entail the inevitable consequences. There cannot be any doubt with respect to the position that if a person approaches this Court with unclean hands he/she does not deserve a consideration of the claims and contentions on merits. Though going by the mischief WP(C).No.12836/2013 16 committed by the petitioner it is a fit case for slapping costs I am resisting from doing so taking into account the fact that the endeavour of the petitioner is to pursue with the claim relating seniority. Taking into account all the aforesaid circumstances I am of the view that this writ petition is liable to fail on the aforesaid ground. Resultantly, this writ petition is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS