S. Jayalekshmi v. State of Kerala and Others

``` “C.R.” ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE EASWARAN S.`** ``` TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946 ``` ## **`WP(C) NO. 12745 OF 2018`** ## **`PETITIONER/S:`** ``` S.JAYALEKSHMI, AGED 56 YEARS, W/O.CHANDRA RAJAN, SREE VILAS, KOITHOORKONAM P.O., POTHENCODE, THIRUVANANTHAPURAM-695584. ``` ``` BY ADVS. SRI.MOHAN JACOB GEORGE SRI.T.K.NAVAS SMT.NIGI GEORGE SMT.P.V.PARVATHY P-41 SMT.REENA THOMAS ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (H) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.`** - **`2 DIRECTOR OF PUBLIC INSTRUCTIONS OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014.`** - **`3 DISTRICT EDUCATIONAL OFFICER STATUE, THIRUVANANTHAPURAM-695001.`** - **`4 ASSISTANT EDUCATIONAL OFFICE KANIYAPURAM-695301.`** - **`5 SMT.T.RADHAMONY AGED ABOUT 59 YEARS, SANTHEEVANAM, AVANAVANCHERRY P.O., ATTINGAL-695101.`** ``` WP(C) NO.12745 OF 2018 ``` **2** ``` 6MANAGER EASWARA VILASOM U.P.SCHOOL, THONAKKAL, KoITHOORKONAM, POTHENCODE, THIRUVANANTHAPURAM-695584. ``` ``` BY ADVS. SRI.S.MOHAMMED AL RAFI FOR R6 SRI.N.NISHAM FOR R6 SRI.K.SIJU FOR R5 SRI.B.SUGATHAN FOR R5 ``` ``` GP- SRI.IMAM GREGORIOUS KARAT ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.12745 OF 2018 ``` **3** **==> picture [72 x 10] intentionally omitted <==** ## **JUDGMENT** The petitioner was appointed as a Headmistress of the 6[th] respondent School as evident from Ext.P2 on 30.06.2014. When the appointment was sent for approval, it was declined by the Educational Authorities as per Ext.P4 order stating that the petitioner is a protected teacher and she is not entitled to be appointed as Headmistress. Thereafter, the said order was confirmed by the 2[nd] respondent as per Ext.P4(b). Aggrieved by the same, the petitioner preferred a revision before the Government, which was kept pending. In the meantime, aggrieved by the rejection of approval of petitioner's appointment, the Manager had also independently invoked the statutory remedies. Finally, when the matter reached the hands of the 1[st] respondent, there were three revision petitions before the 1[st] respondent. The first one at the instance of the Manager. The second one at the instance of the petitioner and the third revision petition by the 5[th] respondent the aggrieved ``` WP(C) NO.12745 OF 2018 ``` **4** teacher, who claimed that despite the rejection of approval of petitioner's appointment as Headmistress, there were no direction to appoint her instead of the petitioner. It appears that the 1[st] respondent has taken up all the three revision petitions and disposed the revision petitions filed by the Manager and the 5[th] respondent as per Ext.P1 order dated 21.12.2017, leaving the revision petition filed by the petitioner to become redundant. It is challenging Ext.P1 Government Order and the orders by which the appointment was refused to be approved, the petitioner has approached this Court in the present Writ Petition. 2. The 1[st] respondent has filed a counter affidavit in which in paragraph No.2 it is stated that the petitioner being a protected teacher is not entitled for promotion as Headmistress. In so far as, the non-consideration of the revision filed by the petitioner is concerned, the 1[st] respondent has stated in paragraph No.7, which reads as follows: “Exhibit P1 order was issued based on the revision petitions submitted by the petitioner and the Manager of the School under Rule 92 of Chapter XIVA KER and Government has no power to review an order already issued under Rule 92 of Chapter XIVA KER. ``` WP(C) NO.12745 OF 2018 ``` **5** However detailed report was called for from the Director of Public Instructions on Exhibit P7 review petition submitted by the petitioner. It was in the meantime that the petitioner has moved before the Honourable Court. It is submitted that Government had already examined the revision petition of the petitioner and had issued a speaking order as per Exhibit P1 after examining the argument notes submitted by both the petitioner and the Manager. Hence no separate orders for each revision petition is required and the argument is baseless.” 3. The 5[th] respondent has filed a counter affidavit, in which it is stated that the Manager was not justified in appointing the petitioner as the Headmistress. It is also further contended that, the revision filed by the petitioner was within time and it was liable to be entertained in terms of Chapter XIV A Rule 92. The 5[th] respondent further contended that in the decision in **Manager, Mar Sleeba UPS v. State of Kerala [1990 (1) KLT 626]** , the petitioner has no preferential claim for appointment as Headmistress. 4. The petitioner, hence, filed a reply affidavit in response to the counter affidavit filed on behalf of the 1[st] respondent. In the reply affidavit filed by the petitioner, it is specifically pointed out in paragraph No.6 that the petitioner **6** ## **`WP(C) NO.12745 OF 2018`** was never treated as a protected teacher under any point of time. Further, as per Ext.P11 seniority list, the petitioner was ranked senior to that of the 5[th] respondent and she had raised no objection to the same. 5. I have heard Sri.Mohan Jacob George, the learned counsel for the petitioner, the learned Government Pleader for respondent Nos. 1 to 4, Sri.Siju Kamlasanan for the 5[th] respondent and Sri.Mohammed Al Rafi for the 6[th] respondent. I have considered the rival submissions made across the Bar. 6. Ext.P3 common seniority list stood approved by the Educational Authorities shows that the petitioner is the second in serial number and her seniority was approved. Whereas the 5[th] respondent teacher was ranked below the petitioner. The promotion to the post of Headmaster is governed by Rule 44(1) of Chapter XIV A KER. The rule lays down that the appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained in accordance with Rule 34 of Chapter XIV A KER. Since Exhibit P3 seniority list is approved by the authorities and that the 5[th] respondent has not ``` WP(C) NO.12745 OF 2018 ``` **7** challenged the seniority list at any point of time, the 5[th] respondent cannot question the appointment of the petitioner. 7. In **Soumini Vs State of Kerala [2000(1) KLT 599],** this Court had occasion to consider a similar issue. It was held that once the seniority list is not objected by a teacher, the incumbent is bound by it. Applying the aforesaid principles, it is clear that 5[th] respondent is estopped from questioning the action of the 6[th] respondent, who had gone by the seniority list and approved by the Educational Authorities. 8. In **Ushadevi Vs State of Kerala [2002 (1) KLT 615]** , a Division Bench had occasion to consider a similar issue, wherein it was held that a rank list once it is final cannot be challenged after a long delay and unsettle the position. The fact remains that the petitioner was appointed on 30.06.2014 and that the 5[th] respondent did not object to the said appointment. It also remains indisputable that the appointment of the petitioner was in the year 2014. The 5[th] respondent never chose to object to the same. She raised a claim only on 6.5.2015. It is also to be noted that the 5[th] respondent retired ## **`WP(C) NO.12745 OF 2018`** from service on 31.3.2015. Therefore, it passes one’s comprehension as to how the Department could have entertained a claim of a teacher for promotion after her retirement. 9. That apart, the respondents 1 to 4 failed to notice that going by settled principle relating to _**“sit back theory**_ ” the claim of the 5[th] respondent was not liable to the sustained. In **shiba Shankar Mahopatra and others Vs State of Orissa and others [2010(12) SCC 471],** the Hon’ble Supreme Court has clearly expounded the principles relating to “sit back theory”. It was held by the Apex Court that challenge to the seniority list at a belated stage should be rejected in as much as it seeks to disturb the vested rights of persons regarding seniority, rank and promotion, which has accrued to them during the intervening period. 10. A more pertinent question may also have to be answered by this court. It is the specific case of the 5[th] respondent that the petitioner is a protected teacher and hence she is the rightful claimant. Reliance is placed on the decision of ``` WP(C) NO.12745 OF 2018 ``` **9** this court in **Manager, Mar Sleeba UPS** _(Supra)_ **.** However, there can be no dispute to the said proposition raised by the 5[th] respondent. On the other hand, the petitioner contends that she can never be considered as protected teacher, since she was allowed to continue without any break in the school. The learned counsel for the petitioner places reliance on Exhibit P3 seniority list to contend that the continuance of the petitioner is permitted by the Education Authorities. Still further, the learned counsel for the petitioner points out that as per Exhibit P11, the Seniority list was circulated among the teachers calling for their objections and the 5[th] respondent has specifically noted that she has no objection to the seniority of the petitioner over her. Hence, this Court finds some merit in the aforesaid contention. The drawing of the seniority list and the 5[th] respondent not raising any objection will certainly amount to waiver of her rights and would certainly constitute an estoppel. This act coupled with the raising of claim for promotion after retirement must be viewed in detriment to her cause. 11. The primary consideration which ought to have ``` WP(C) NO.12745 OF 2018 ``` **10** weighed in the minds of authorities was that the claim of the 5[th] respondent for promotion is after her retirement. The proceedings reveal that only on 6.5.2015 the claim for promotion is raised by the 5[th] respondent. Hence, this Court is of definite view that such a belated claim for promotion ought not have been entertained. Hence, the respondents 1 to 4 misdirected themselves to the entire issue before them. Hence, irresistible conclusion to be drawn is that the 5[th] respondent had no grievance in the appointment of the petitioner till her retirement. With these indisputable facts, when this Court analyses the orders impugned, it can be concluded that there is total non-application of mind by the respondents 1 to 4. In Exhibit P4 order, it is concluded that Rule 37(1) of Chapter XIVA KER stood amended by order dated 23.7.2010, whereas the said amendment has no bearing on the issue raised in the writ petition. Still further, as per Rule 45 of Chapter XIV-A KER, the specialist teachers are entitled for appointment as Headmaster provided, they acquire the qualification prescribed for the post. Admittedly, the petitioner is qualified and the said fact is not ``` WP(C) NO.12745 OF 2018 ``` **11** disputed by the respondents 1 to 5. Still further, the specific contention of the petitioner that till she was promoted as Headmistress, she was never detached from the school warranting a loss in her seniority is never dealt with by the 1[st] respondent in the impugned order. 12. It must be noted that if the respondents 1 to 5 had any objection with the petitioner being included in the seniority list despite, she being a protected teacher and she not being entitled to any benefits as that of a regular teacher, they ought not have approved the seniority list. The fact also remains that the petitioner continued in service from 2014 till her retirement. Therefore, the petitioner cannot now be prejudiced because she continued in service and then retired as a Headmistress. It is only when, the 2[nd] respondent refused to approve the appointment of the petitioner in an appeal against the order of the District Educational Officer, that the 5[th] respondent raised a claim before the 1[st] respondent in a revision under Rule 92 Chapter XIV-A KER. It is thus clear that the 5[th] respondent had never resorted to an appeal under Rule 44(2) of Chapter XIV-A ``` WP(C) NO.12745 OF 2018 ``` **12** KER. However, even if this Court is not called upon to decide whether a revision under Rule 92 of Chapter XIV-A could be filed even without resorting to the remedy under Rule 44(2), this Court cannot be oblivious of the fact that the 5[th] respondent has not taken any steps to question the appointment of the petitioner as a Headmistress until her retirement. In the above circumstances, the Writ petition is allowed. Ext.P1 is quashed. It is declared that the petitioner’s appointment as per Ext.P2 is liable to be approved. Hence, the 4[th] respondent is directed to approve the appointment of the petitioner as Headmistress within a period of one month from the date of receipt of the copy of the judgment and release all consequential benefits to the petitioner within a further period of two months thereafter. No order as to costs. Sd/- **EASWARAN.S JUDGE** lsn ``` WP(C) NO.12745 OF 2018 ``` **13** ## **`APPENDIX OF WP(C) 12745/2018`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1-COPY OF ORDER DATED 21/12/2017 OF THE GOVERNMENT. EXHIBIT P2-COPY OF THE APPOINTMENT ORDER DATED 30/06/2014 ISSUED BY THE 6TH RESPONDENT. EXHIBIT P3-COPY OF THE SENIORITY LIST AS ON 30/06/2014 PUBLISHED BY THE 6TH RESPONDENT OF THE TEACHERS. EXHIBIT P4-COPY OF THE ORDER DATED 08/07/2014 OF THE AEO KANIYAPURAM. EXHIBIT P4(a)-COPY OF THE ORDER DATED 12/01/2015 OF THE DEO, THIRUVANANTHAPURAM. EXHIBIT P4(b)-COPY OF THE ORDER DATED 27/05/2016 OF THE DPI, THIRUVANANTHAPURAM. EXHIBIT P5-COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER. EXHIBIT P6-COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. EXHIBIT P7-COPY OF THE SAID REVIEW PETITION. EXHIBIT P8-COPY OF ORDER NO.C/250/2018 DATED 28/03/2018 THE AEO, KANIYAPURAM. EXHIBIT P9-COPY OF THE HEARING NOTICE DATED 17/08/2016 ISSUED TO THIS PETITIONER BY THE FIRST RESPONDENT. EXHIBIT P10-COPY OF THE PETITION DATED 25/01/2018 SUBMITTED BY THE PETITIONER. EXHIBIT P11COPY OF SENIORITY LIST CIRCULATED AMONG THE STAFF CALLING FOR THEIR OBJECTION EXHIBIT P12COPY OF GO(MS) 157/2015/G.EDN. DATED 10.6.2015. EXHIBIT P13COPY OF GO(P) 226/2003/G.EDN. DATED ``` ## **`WP(C) NO.12745 OF 2018`** ## **14** ||**`14.8.2003.`**| |---|---| |**`EXHIBIT P14`**|**`INFORMATION REGARDING THE VACANCIES TO THE`**| ||**`POST OF UPSA DURING THE PERIOD FROM 2000-`**| ||**`2003 IN THE EASWARA VILASOM UP SCHOOL`**| ||**`OBTAINED UNDER THE RIGHT TO INFORMATION`**| ||**`ACT.`**| |**`Exhibit P-15`**|**`Copy of the relevant portion of Chapter`**| ||**`XIVA of KER`**| |**`Ext.P-16`**|**`Copy of order No.B4/21999/05 dated`**| ||**`11.05.2006 of the Deputy Director of`**| ||**`General Education`**| |**`Ext.P-17`**|**`Copy of G.O.(P) No.130/2010/G.Edn dated`**| ||**`23.07.2010`**| |**`RESPONDENTS EXHIBITS:`**|| |**`EXHIBIT R5(a)`**|**`TRUE COPY OF GO(P) NO.130/2010/G.EDN. DTD`**| ||**`23.7.2010`**| ``` TRUE COPY ``` ``` P.A TO JUDGE ``` ## **`LSN`**