S. Lekshmi v. State of Kerala and others; Biji K. Jacob v. State of Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ## **`MONDAY, THE 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945`** ## **`WP(C) NO. 34064 OF 2015`** ## **`PETITIONER:`** ``` S.LEKSHMI ``` ``` JUNIOR HINDI TEACHER, AGCM UP SCHOOL, UPPUKANDOM, KOTHAMANGALAM, AIROORPADAM, ERNAKULAM DISTRICT, PIN-686 692. ``` ``` BY ADVS. ``` ``` SRI.P.GOPAL SRI.B.MURALEEDHARAN ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, ANNEXE, THIRUVANANTHAPURAM-695 001.`** - **`2 THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, THIRUVANANTHAPURAM-695014.`** - **`3 THE CORPORATE MANAGER SCHOOLS OF THE EVANGELISTIC ASSOCIATION OF THE EAST, IRINGOLE PO, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN-683 545.`** - **`4 THE ASSISTANT EDUCATIONAL OFFICER OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686 661.`** - **`5 THE ASSISTANT EDUCATIONAL OFFICER OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686 661.`** - **`6 BIJI K.JACOB W/O.SHOWN SCARIAH, KOCHUKUDY HOUSE, KARIELY PO, KOMBANAD, ERNAKULAM DISTRICT.`** W.P.(C) 34064 & 34076 of 2015 :2: - **`7 THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM OFFICE OF THE DISTRICT EDUCATIONAL OFFICE, KOTTAYAM-686 001.`** - **`8 THE HEAD MASTER PEMH SCHOOL, THIRUVANCHOOR, KOTTAYAM-686 019.`** - **`9 THE HEADMISTRESS AGCMUP SCHOOL, UPPUKANDAM, ERNAKULAM-686 692.`** ``` BY ADVS. ``` ``` SR.GOVERNMENT PLEADER SRI.K.M FAISAL SRI.ANOOP.V.NAIR SRI.P.MOHANDAS ERNAKULAM DR.K.P.SATHEESAN SR. SRI.K.SUDHINKUMAR SRI.S.VIBHEESHANAN ``` ``` SRI.V.A MUHAMMED ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.05.2023, ALONG WITH WP(C).34076/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) 34064 & 34076 of 2015 :3: ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945 WP(C) NO. 34076 OF 2015 ``` ## **`PETITIONER:`** ``` BIJI K.JACOB AGED 45 YEARS W/O SHON SCARIAH, FORMERLY PART-TIME JUNIOR HINDI TEACHER, E.U.P.SCHOOL,KAYANAD,MUVATTUPUZHA, (RESIDING AT KANNOTH KUDIYIL,AYIROORPADAM, ERNAKULAM-686692). ``` ``` BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695001.`** - **`2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY,THIRUVANANTHAPURAM-695014.`** - **`3 THE ASSISTANT EDUCATIONAL OFFICER KOTHAMANGALAM,ERNAKULAM DISTRICT-686691.`** - **`4 THE ASSISTANT EDUCATIONAL OFFICER`** W.P.(C) 34064 & 34076 of 2015 :4: ## **`MUVATTUPUZHA,ERNAKULAM DISTRICT-686661.`** ``` 5THE CORPORATE MANAGER SCHOOLS OF THE EVANGELISTIC ASSOCIATION OF THE EAST EA, IRINGOLE,PERUMBAVOOR,ERNAKULAM DISTRICT-683545. ``` - **`6 THE HEADMISTRESS`** ``` E.U.P.SCHOOL,KAYANAD, MUVATTUPUZHA,ERNAKULAM DISTRICT-686661. ``` - **`7 SMT.L.LEKSHMI`** ``` JUNIOR HINDI TEACHER,A.G.C.M.UPPER PRIMARY SCHOOL, ``` ``` UPPUKANDAM,AIROORPADAM,KOTHAMANGALAM, ERNAKULAM DISTRICT-686692. ``` ``` BY ADVS. ``` ``` SR.GOVERNMENT PLEADER SRI.K.M.FAIZAL SRI.ANOOP.V.NAIR ``` ``` SRI.P.GOPAL ``` ``` SRI.P.MOHANDAS ERNAKULAM ``` ``` DR.K.P.SATHEESAN SR. SRI.K.SUDHINKUMAR SRI.S.VIBHEESHANAN ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.05.2023, ALONG WITH WP(C).34064/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) 34064 & 34076 of 2015 :5: ## **JUDGMENT** Since common issues arise for consideration in these writ petitions, they are disposed of by this common judgment. For the sake of convenience, unless otherwise expressly indicated, the status of the parties and the exhibits referred to hereinbelow shall be as obtaining in W.P.(C) No.34064 of 2015. 2. The 'Schools of the Evangelistic Association of the East', a corporate educational agency, has 5 aided schools namely, St. Thomas High School, Kelakom, MSV High School, Valakom, AGCM Upper Primary School, Uppukandom, Emmanual Upper Primary School, Kayanad and PEM High School, Thiruvanchoor. A retirement vacancy of HSA (Hindi) arose at St. Thomas High School, Kelakom on 31.03.2005. The corporate W.P.(C) 34064 & 34076 of 2015 :6: manager promoted Smt. M.G. Shina, the seniormost LG Hindi teacher who has been working at PEMHS as HSA (Hindi) and posted her in the said vacancy. In the resultant vacancy of LG Hindi teacher at PEMHS, the manager appointed the petitioner _w.e.f_ 01.06.2005. The said appointment was approved by the DEO, Kottayam by Ext. P1 order dated 02.09.2005. 3. The 6[th] respondent (petitioner in W.P. (C) No. 34076 of 2015) was appointed as Part-Time LG Hindi teacher in AGCM UPS, Uppukandom under the corporate management on 06.06.2001. She was granted full-time benefits in the Part-time post _w.e.f_ 05.06.2006. 4. Ext. P1(a) is the final seniority list of Upper Primary School Assistants and Lower Primary School W.P.(C) 34064 & 34076 of 2015 :7: Assistants working in the schools under the corporate management as on 01.01.2013. The petitioner and the 6[th] respondent figure at serial Nos.15 and 16 respectively, in the said list. 5. Pursuant to the staff fixation order for the academic year 2014-2015, one post of Full-Time LG Hindi teacher was abolished in MSVHS, Valakom and Smt. P. Jainy, the seniormost LG Hindi teacher in MSVHS was transferred to PEMHS in the place of the petitioner. The petitioner was reverted as Part -Time LG (PT LG) Hindi teacher with full-time benefits and was posted at AGCM UPS in the place of the 6[th ] respondent, the juniormost PT LG Hindi teacher with full-time benefits, who was then transferred to Emmanual UPS. The AEO did not approve the appointment of the W.P.(C) 34064 & 34076 of 2015 :8: petitioner, a Full-Time LG teacher, against the Part-Time post, and the corporate manager issued Ext. P2 modified order dated 23.02.2015 allowing the petitioner to continue in service as Full-Time LG teacher with clubbing arrangement to work at Emmanual UPS and AGCM UPS against two part-time posts, simultaneously. Consequently, the 6[th ] respondent, the juniormost PT LG teacher with full-time benefits, was retrenched from service. 6. The 6[th] respondent challenged Ext.P2 before this Court in W.P. (C) No. 5794 of 2015 and also filed an appeal before the Director of Public Instructions (DPI) and as directed by this Court, the DPI considered the appeal and by Ext. P4 order, upheld Ext. P2 order of the manager allowing the petitioner to continue in service W.P.(C) 34064 & 34076 of 2015 :9: as Full-Time LG teacher by clubbing the part-time posts in Emmanual UPS and AGCM UPS into full-time post and retrenching the 6[th] respondent, the juniormost PT LG teacher. 7. The 6[th ] respondent challenged Ext. P4 order of the DPI before the Government by preferring Ext.P5 Revision Petition dated 05.06.2015 under Rule 92 of Chapter XIV A of the Kerala Education Rules, 1959 (‘KER’, for short). In Ext. P5, the 6[th] respondent, _inter alia,_ raised a contention that Ext. P1 order of appointment of the petitioner dated 01.06.2005 is contrary to the provisions of the KER. The 6[th] respondent also approached this Court by filing W.P.(C) No.17299 of 2015 and this Court directed the Government to consider and pass orders on the revision W.P.(C) 34064 & 34076 of 2015 :10: within two months after hearing all parties. 8. The Government passed Ext. P8 order setting aside Ext. P4 order of the DPI and held that appointing the petitioner as Full-Time LG Hindi teacher _w.e.f_ 01.06.2005 while the 6[th ] respondent was continuing as Part-Time LG Hindi teacher under the corporate management was in violation of Rule 43 of Chapter XIV A of the KER and that the 6[th] respondent should have been promoted to the post of Full-Time LG Hindi teacher when the vacancy arose on 01.06.2005, and the fact that the 6[th] respondent did not object to the petitioner’s appointment is no justification for the irregular appointment of the petitioner. It is also stated that the creation of full-time post by clubbing together the part-time posts in two schools has no statutory W.P.(C) 34064 & 34076 of 2015 :11: validity. The Government ordered the DPI to direct the concerned educational officer to appoint the 6[th] respondent as Full-Time Hindi teacher _w.e.f_ 01.06.2005. The relevant portion of Ext. P8 is extracted below:- “3. Government have examined the matter in detail. It is provided in Rule 43, Chapter XIV A, KER that vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority. It is seen that the very appointment of Smt. S.Lekshmi as Full Time LG Hindi Teacher with effect from 01.06.2005 while the petitioner was continuing as Part Time LG Hindi was in violation of Rule 43. The petitioner ought to have been promoted to the Full Time post with effect from 01.06.2005. That the petitioner had not raised any is no for an objection justification irregular appointment. The creation of a Full Time post by clubbing together two Part Time posts in two schools has no statutory validity. The action of the Director of Public Instruction in having upheld this irregularity on the part of the Manager is not in order. 4. In these circumstances the Director of Public Instruction is ordered to direct the educational officer concerned to appoint Smt. Biji K. Jacob as Full Time Hindi Teacher with effect from 01.06.2005 and adjust the lien of Smt. S.Lekshmi in the resultant Part W.P.(C) 34064 & 34076 of 2015 :12: Time post. He is also directed to recover the financial loss, if any, from the Manger under Rule 7, Chapter III, KER.” 9. Ext. P8 order is impugned in W.P. (C) No: 34064/2015 contending that Ext. P1 order of appointment of the petitioner was not challenged by the 6[th] respondent in any of the proceedings before this Court or before the educational authorities and the 6[th] respondent had acquiesced her rights, if any, to challenge Ext.P1 order after 10 years from the date of appointment, in a revision petition against the order of her retrenchment. It is also contended that the challenge to Ext. P1 is barred by the principle of constructive _res judicata_ since that challenge ought to have been urged in earlier litigations before the DPI and this Court. It is contended that there is delay and laches W.P.(C) 34064 & 34076 of 2015 :13: on the part of the 6[th] respondent in challenging Ext. P1 order of appointment. It is also contended that Ext. P1(a) seniority list was never challenged or disputed by the 6[th] respondent and having acknowledged the said list, the 6[th] respondent had acquiesced to the seniority of the petitioner and the 1[st] respondent should have rejected the revision petition filed by the 6[th] respondent. It is also contended that the 6[th] respondent had relinquished the offer of appointment as LG Hindi teacher on 01.06.2005 and 01.06.2007 and there is no violation of Rule 43 of Chapter XIV A of KER as held in Ext. P8 order. According to the petitioner, when the order of approval of her appointment _vide_ Ext. P1 has become final, the Government, in a revision petition filed by the 6[th] respondent against Ext. P4 order of W.P.(C) 34064 & 34076 of 2015 :14: retrenchment, cannot set aside Ext. P1 order of appointment, that too, after a decade. 10. W.P (C) No.34076/2015 is filed by the 6[th] respondent for direction to the corporate manager to implement Ext. P8 order (Ext.P10 therein). It is contended that the very first appointment of the petitioner as FT LG Hindi teacher was illegal and there is no provision in KER to club two part-time posts to make it a full-time post and the termination of service of the 6[th] respondent is against the provisions of Rule 48 of Chapter XIV A of KER. 11. The writ petitions were admitted by this Court on 11.11.2015 and this Court stayed Ext. P8 order and directed that the petitioners in both writ petitions shall W.P.(C) 34064 & 34076 of 2015 :15: be allowed to continue in the two part-time vacancies available in the schools under the management; however, the payment of salary will be subject to the result of the writ petitions. 12. Separate counter affidavits on similar lines have been filed on behalf of the Government in both writ petitions contending that the appointment of the petitioner as FT LG Hindi teacher _vide_ Ext. P1 _w.e.f_ 01.06.2005 while the 6[th] respondent was continuing as Part-time LG Hindi teacher is in violation of Rule 43 of Chapter XIV A of the KER. It is stated that written consent of the 6[th] respondent regarding relinquishment of promotion duly approved by the educational authorities was not produced at the time of appointment of the petitioner. Justifying Ext. P8 order, it is contended W.P.(C) 34064 & 34076 of 2015 :16: that the fact that no objection was raised by the 6[th] respondent to the appointment of the petitioner is not a justification for an irregular appointment. It is also stated that the creation of a full-time post by clubbing two part-time posts in two schools has no statutory validity. 13. Separate counter affidavits with similar contentions have been filed by the corporate manager wherein it is contended that the 6[th] respondent was offered an appointment when the vacancy of LG Hindi teacher arose on 01.06.2005, but she relinquished the offer since she was working as a Part-time Junior Hindi teacher at AGCM UPS Uppukandam which was only less than 100 meters away from her house, whereas the vacancy was at PEMHS, Thiruvanchoor, which was more W.P.(C) 34064 & 34076 of 2015 :17: than 70 Kms. away from her house. It is stated that since the full-time benefits in the post was already due in 2006 on completion of service of 5 years, the 6[th] respondent did not accept the offer and accordingly the petitioner was appointed in the said vacancy. It is stated that the 6[th] respondent did not give the statement of relinquishment as an entry to the said effect in the service book would deny her full-time benefit in the post. It is further stated that when another vacancy of full-time teacher arose in PEMHS, Thiruvanchoor, then again the 6[th] respondent did not accept the offer, and by Ext. R5(b) dated 31.05.2007 (in W.P (C) No: 34076/2015), approved by the educational authority, relinquished the said promotion permanently. It is further contended that the 6[th] respondent did not object W.P.(C) 34064 & 34076 of 2015 :18: to the approved seniority list of teachers under the corporate management. It is also stated that the appointment of the petitioner was not objected to by the 6[th] respondent for about ten years. The manager states that the clubbing of posts was done and Ext. P2 was issued in the interest of both the teachers and Ext. P8 cannot be sustained. It is also stated that there is no violation of Rules 43 and 48 of Chapter XIV A of KER. 14. While the petitioner and the 6[th] respondent were continuing as PT LG teachers on the basis of the interim order passed by this Court in the above writ petitions, the corporate manager issued Ext.P14(a) proceedings dated 04.01.2018 shifting the lien of the petitioner to AGCM UP School, Uppukandom with full benefits for the period from 15.07.2014 to 19.08.2014 W.P.(C) 34064 & 34076 of 2015 :19: subject to the approval by the AEO. This Court, by order dated 18.06.2019 in W.P. (C) No.34064/2015, directed the AEO to consider Ext.P14(a) and to issue orders on the question of approval of the same. The AEO, as per Ext.P19 order dated 17.07.2019, rejected the approval of Ext.P14(a) stating that there is no order in force to revert a full-time teacher to a part-time post. The AEO also relied on Ext. P8 order while rejecting Ext. P14 (a). The petitioner has amended the writ petition incorporating a challenge to Ext.P19 and for direction to approve the shifting of the lien of the petitioner for the period from 15.07.2014 to 19.08.2014 and to disburse the salary in the revised scale. 15. During the pendency of the writ petitions, Smt. P. Jainy, the seniormost LG Hindi teacher in MSVHS, W.P.(C) 34064 & 34076 of 2015 **==> picture [20 x 10] intentionally omitted <==** Valakom retired from service on 31.05.2021 and by Ext. P22 order of the manager dated 15.07.2021, the petitioner is transferred and posted as FT LG Hindi teacher in MSVHS and the 6[th] respondent is posted at Emmanual UPS, Kayanad on clubbing arrangements, subject to the final decision in the writ petitions. 16. Heard the counsel on both sides. 17. The petitioner was appointed as LG Hindi Teacher at PEMHS, Thiruvanchoor _w.e._ f 01.06.2005 _vide_ Ext.P1 order. The appointment was approved by the DEO as per order dated 02.09.2005. At that time, the 6[th] respondent was working as Part-time Junior Hindi Teacher at AGCM UP School, Uppukandom _w.e.f_ 06.06.2001 under the same corporate management. W.P.(C) 34064 & 34076 of 2015 :21: The case of the 6[th] respondent is that the appointment of the petitioner was made overlooking her claim for promotion under Rule 43 of Chapter XIV A of the KER. The case put forward by the corporate management is that the 6[th] respondent had rejected their offer for promotion to the post at the time of occurrence of vacancy as she was reluctant to move from AGCM UP School, Uppukandom where she was working as Part time Junior Hindi Teacher to PEMHS, Thiruvanchoor which is more than 70 kms away from her house. She did not give any statement of relinquishment, as an entry to the said effect in her service book would deny her the full-time benefit in the post. After getting fulltime benefits with effect from 05.06.2006, when another vacancy of full-time teacher arose in PEMHS, W.P.(C) 34064 & 34076 of 2015 **==> picture [20 x 10] intentionally omitted <==** Thiruvanchoor with effect from 01.06.2007, she again rejected the offer to the said post. However, having got full-time benefits then, she gave Ext.R5(b) statement of relinquishment. The 6[th] respondent never objected to the petitioner’s appointment for about ten years. Ext.P1 order of appointment of the petitioner was approved by the DEO on 02.09.2005 and the 6[th] respondent did not avail any statutory remedy against the appointment and approval of appointment of the petitioner. Though there is no statutory statement of relinquishment given by the 6[th] respondent at the time of appointment of the petitioner, the version of the corporate manager that the 6[th] respondent was not willing to accept the offer of appointment as she was reluctant to move far away from the place where she was staying has to be W.P.(C) 34064 & 34076 of 2015 :23: accepted. The statement of relinquishment given by her when the subsequent vacancy occurred on 01.06.2007 has also to be considered in the context. Ext. P1(a) is the seniority list which is also not objected to by the 6[th] respondent. When the 6[th] respondent did not object to the petitioner’s appointment, she was entitled to sit back and consider that her appointment effected a long time ago would not be set aside after the lapse of more than one decade. The Hon’ble Supreme Court in **Rabindra Nath Bose and Others** _**v**_ **. Union of India and Others** [AIR 1970 SC 470] held: "Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after a lapse of a number of years. It will be neither just or equitable to deprive persons who have been promoted many years ago, of the rights that have accrued to them regarding their rank and seniority by purporting to conduct a review of promotions after W.P.(C) 34064 & 34076 of 2015 :24: the lapse of many years." 18. As held by the Full Bench of this Court in **Pavithran V.K.M and another** _v_ . **State of Kerala and others** [2009 (4) KHC 4: 2009 (4) KLT 20: ILR 2009 (4) Ker.15], the theory of sit back also applies to persons governed by the provisions of KER. In **Pavithran** (supra), the Full Bench observed as follows: “9. Whenever an adverse order is passed a unless the same is against person, challenged before the appropriate forum, within the prescribed time limit, the said order will become final and the person, affected by it, will also be bound by it. It is a well settled principle in Administrative Law that, there are no void orders in absolute sense in administrative matters. There are only voidable orders. Unless a person aggrieved takes recourse to the appropriate remedy at the appropriate time, even an illegal order will be treated as valid and binding.” W.P.(C) 34064 & 34076 of 2015 :25: 19. The Government ought not to have entertained the belated challenge to Ext.P1 order of appointment of the petitioner made by the 6[th] respondent after ten years, in a revision petition filed under Rule 92 of Chapter XIV of KER, that too, against the order of retrenchment. The revision was not against the order of the subordinate authority approving the appointment. The revision was against the order of the DPI approving the rearrangement of excess Hindi Teachers and the retrenchment of the 6[th] respondent. While exercising revisional jurisdiction under Rule 92, the Government cannot pass an order of original nature. The power is revisional, which can be exercised only after the statutory functionary has exercised its appellate powers. There is no challenge against Ext. P1 order of W.P.(C) 34064 & 34076 of 2015 :26: appointment before the statutory functionaries at the appropriate time. Therefore, Ext. P1 order of appointment of the petitioner has to be treated as valid. Accordingly, Ext.P8 order to the extent it interfered with Ext.P1 order of appointment and directing the 6[th] respondent to be appointed as Full-Time Hindi Teacher _w.e.f_ 01.06.2005 cannot be sustained. 20. By Ext.P8 order, the Government have also interfered with the creation of full-time post by clubbing two part-time posts of Hindi Teacher in two schools under the corporate management stating that it has no statutory validity. The petitioner was appointed as FT LG teacher by Ext. P1 and the same was approved by the DEO. One post of FT LG Hindi teacher was abolished in MSVHS, Valakom as per staff fixation and W.P.(C) 34064 & 34076 of 2015 :27: one part-time post of LG Hindi teacher was sanctioned at AGCM UP School, Uppukandom and Emmanual UPS, Kayanad. Smt. P. Jainy who was rendered surplus was transferred to PEMHS in the place of the petitioner and the petitioner was transferred to AGCM UPS, Uppukandam against the part-time post, with full-time benefits. The 6[th] respondent was transferred from AGCM UPS to Emmanual UPS, Kayanad against the part-time post, with full-time benefits. The transfer of the petitioner, an FT LG to part-time post was objected to by the AEO and the manager issued Ext. P2 modified order allowing the petitioner to continue in service by creating a full-time post by clubbing the aforesaid two part-time posts of Hindi teacher in AGCM UP School, Uppukandom and Emmanual UPS, Kayanad. The 6[th] W.P.(C) 34064 & 34076 of 2015 :28: respondent was consequently retrenched from service. Indeed, the Kerala Education Rules do not provide for creation of full-time post by clubbing of part-time posts. However, clubbing of posts is not alien to schools governed by KER as is evident from various orders issued by Government in the matter of deployment of protected teachers. In G.O(P) 178/2002/G.Edn. dated 28.06.2002, the Government have issued orders that full time language teachers having minimum 8 periods and 5 years service need not be treated as protected; however, their service can be utilised by other schools also on clubbing basis. There is no prohibition under the KER against clubbing arrangements. The Government cannot outrightly reject the steps taken for creation of full-time post by clubbing two part-time posts in two W.P.(C) 34064 & 34076 of 2015 :29: schools under the corporate management stating that it has no statutory validity. Ext. P8 order is vitiated by non application of mind. If the two part-time posts are not so clubbed, the 6[th] respondent could have been appointed against one part-time post. If the part-time posts can be clubbed and converted into full-time post, the 6[th] respondent, the part time LG Hindi teacher may have a right for promotion to the said full time post under Rule 43 of Chapter XIV A of KER, subject to the conditions provided therein. The petitioner can then be considered only as a teacher thrown out for want for vacancy. 21. What was impugned by the 6[th] respondent before the DPI in appeal and the Government in the revision is Ext. P2 proceedings of the corporate of excess Hindi manager making rearrangement W.P.(C) 34064 & 34076 of 2015 :30: teachers and her consequential retrenchment. The Government lost sight of the relevant issues and instead of considering the legality of Ext. P2 proceedings, considered the validity of Ext. P1 order of appointment made years back. The relevant issues were brushed aside. The legality of creation of full-time post by converting part-time posts under the corporate management was not considered in the facts and circumstances of the case. If such conversion is justified, the Government have to consider who is the rightful claimant to the full-time post of LG Hindi teacher. Though the Government was called upon to consider the legality of Ext. P2, the Government misdirected itself and considered the legality of Ext. P1 and missed the wood for the trees. W.P.(C) 34064 & 34076 of 2015 :31: 22. In summation of the above discussion, I hold: (i) Ext.P8 order to the extent it interfered with Ext.P1 order of appointment and directing the 6[th] respondent to be appointed as Full-Time Hindi Teacher _w.e.f_ 01.06.2005 cannot be sustained and the same is set aside. (ii) The Government is directed to consider Ext. P5 revision petition afresh confining the exercise of revisional jurisdiction over Exts. P2 and P4 orders in the light of the observations made above. The orders in this regard shall be passed within two months from the date of receipt of a copy of the judgment after hearing the petitioner, the 6[th] respondent and the W.P.(C) 34064 & 34076 of 2015 :32: corporate manager. (iii) On the basis of the orders so passed, all service benefits of the petitioner and the 6[th] respondent including monitory benefits shall be worked out and effected from the due date by the competent authority within one month therefrom. The petitioner and the 6[th] respondent are continuing on the strength of interim orders passed by this Court on 11.11.2015. The said order shall continue till the Government pass fresh orders as directed above. They shall be paid their current salary and arrears of pay and allowance, if any, within one month from the date of receipt of a copy W.P.(C) 34064 & 34076 of 2015 :33: ## of the judgment. ## Writ petitions are disposed of. Sd/- **MURALI PURUSHOTHAMAN** **JUDGE** W.P.(C) 34064 & 34076 of 2015 :34: ## **`APPENDIX OF WP(C) 34064/2015`** |**`PETITIONER`**|**`EXHIBITS`**| |---|---| |**`EXT.P1`**|**`TRUE COPY OF THE ORDER OF APPOINTMENT OF THE`**| ||**`PETITIONER AS LG HINDI TEACHER AND THE ORDER`**| ||**`APPROVING THE APPOINTMENT OF THE PETITIONER AS LG`**| ||**`HINDI TEACHER`**| |**`EXT.P1(A)`**|**`TRUE COPY OF THE RELEVANT PORTION OF THE FINAL`**| ||**`SENIORITY LIST OF UPSA AND LPSA WORKING IN THE`**| ||**`SCHOOLS UNDER THE 3RD RESPONDENT.`**| |**`EXT.P2`**|**`TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DT 23-`**| ||**`2-2015`**| |**`EXT.P3`**|**`TRUE COPY OF THE APPEAL FILED BY THE 6TH RESPONDENT`**| ||**`DT 23-2-2015 BEFORE THE 2ND RESPONDENT.`**| |**`EXT.P4`**|**`TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DT 29-`**| ||**`5-2015 AND ORDER CORRECTING THE MISTAKE DT 30-6-`**| ||**`2015.`**| |**`EXT.P5`**|**`TRUE COPY OF THE APPEAL DT 5-6-2015 FILED BY THE`**| ||**`6TH RESPONDENT BEFORE THE GOVERNMENT.`**| |**`EXT.P6`**|**`TRUE COPY OF THE WRITTEN SUBMISSION GIVEN BY THE`**| ||**`PETITIONER BEFORE THE GOVERNMENT DT 27-6-2015`**| |**`EXT.P7`**|**`TRUE COPY OF THE WRITTEN SUBMISSION GIVEN BY THE`**| ||**`PETITIONER BEFORE THE GOVERNMENT DT 9-8-2015.`**| |**`EXT.P8`**|**`TRUE COPY OF THE ORDER DT 26-10-2015 OF THE`**| ||**`GOVERNMENT.`**| |**`EXT.P9`**|**`TRUE COPY OF THE ORDER NO.19/2014 DATED 19.08.2014`**| ||**`OF THE 3RD RESPONDENT`**| |**`EXT.P10`**|**`TRUE COPY OF THE ORDER NO.D.DIS/C/1980/2014 DATED`**| ||**`14.7.14`**<br>**`OF`**<br>**`THE`**<br>**`ASSISTANT`**<br>**`EDUCATIONAL`**| ||**`OFFICER,KOTHAMANGALAM`**| |**`EXT.P11`**|**`TRUE COPY OF THE ORDR N.D.DIS/C/408/2016-17 DATED`**| ||**`10.02.2016 OF THE ASSISTANT EDUCATIONAL OFFICER,`**| W.P.(C) 34064 & 34076 of 2015 :35: ||**`KOTHAMANGALAM.`**| |---|---| |**`EXT.P12`**|**`TRUE COPY OF THE ORDER NO.D.DIS/C/1127/2014 DATED`**| ||**`14.7.14 OF THE ASSISTANT EDUCATIONAL OFFICER,`**| ||**`MUVATTUPUZHA`**| |**`EXT.P13`**|**`TRUE COPY OF THE ORDER NO.D.DIS/C/1139/2016 DATED`**| ||**`12.2.2016 OF THE ASSISTANT EDUCATIONAL OFFICER,`**| ||**`MUVATTUPUZHA`**| |**`EXHIBIT`**|**`TRUE COPY OF THE ORDER OF THE MANAGER DATED`**| |**`P14(a)`**|**`4/1/2018`**| |**`EXHIBIT`**|**`TRUE COPY OF THE LETTER OF THE ASSISTANT`**| |**`P14(b)`**|**`EDUCATIONAL OFFICER, KOTHAMANGALAM DATED 8/1/2018`**| |**`EXHIBIT P15`**|**`TRUE COPY OF THE LETTER DATED 12/3/2018 ALONG WITH`**| ||**`STATEMENT FOR FIXATION OF BASIC PAY IN THE REVISED`**| ||**`SCALE OF PAY SUBMITTED BY THE PETITIONER BEFORE THE`**| ||**`HEADMISTRESS, AGCMUP SCHOOL, UPPUKANDOM.`**| |**`EXHIBIT P16`**|**`TRUE COPY OF THE ORDER OF THE ASSISTANT EDUCATIONAL`**| ||**`OFFICER, KOTHAMANGALAM DATED 14/3/2018`**| |**`EXHIBIT P17`**|**`TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE`**| ||**`PETITIONER DATED 19/2/2018 BEFORE THE DEPUTY`**| ||**`DIRECTOR OF EDUCATION`**| |**`EXHIBIT P18`**|**`TRUE COPY OF THE ORDER OF THE DIRECTOR OF PUBLIC`**| ||**`INSTRUCTIONS DATED 27/9/2018.`**| |**`EXHIBIT P19: `**|**`TRUE COPY OF THE ORDER OF THE ASSISTANT EDUCATIONAL`**| ||**`OFFICER,`**<br>**`KOTHAMANGALAM`**<br>**`NO.C/2828/2014`**<br>**`DATED`**| ||**`17/07/2019.`**| |**`EXHIBIT P20: `**|**`TRUE COPY OF THE ORDER OF DEPUTY DIRECTOR OF`**| ||**`EDUCATION, ERNAKULAM, NO.B5/16132/19(3) DATED`**| ||**`20/07/2019.`**| |**`EXHIBIT P20`**|**`TRUE COPY OF THE ORDER OF DEPUTY DIRECTOR OF`**| ||**`EDUCATION, ERNAKULAM, NO.B5/16132/19(3) DATED`**| ||**`20/07/2019.`**| W.P.(C) 34064 & 34076 of 2015 :36: ## **`RESPONDENT EXHIBITS`** |**`RESPONDENT`**|**`EXHIBITS`**| |---|---| |**`EXHIBIT-`**|**`TRUE COPY OF THE LETTER NO.H2/92019/14/DPI/L.DIS`**| |**`R4(a)`**|**`DATED 01.01.2015`**| |**`EXHIBIT-`**|**`TRUE COPY OF THE ORDER NO.B4/60005/2019 DATED`**| |**`R4(b)`**|**`21.09.2019.`**| |**`EXHIBIT-`**|**`TRUE COPY OF THE ORDER GO(MS)NO.95/2019 G.EDN.`**| |**`R4(c)`**|**`DATED 23-07-2019`**| |**`EXHIBIT-`**|**`TRUE COPY OF THE ORDER NO.GO(MS)NO.209/2016 /G/EDN`**| |**`R4(d)`**|**`DATED 26.12.2016`**| W.P.(C) 34064 & 34076 of 2015 :37: ## **`APPENDIX OF WP(C) 34076/2015`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1TRUE COPY OF THE PROCEEDINGS ORDER OF THE MANAGER DATED 19.08.2014 ``` ``` EXHIBIT P2TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 1.1.2015 ``` ``` EXHIBIT P3TRUE COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT DATED 19.08.2014 ``` ``` EXHIBIT P4TRUE COPY OF THE PROCEEDINGS ORDER OF THE MANAGER DATED 23.02.2015 ``` ``` EXHIBIT P5TRUE COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT DATED 23.02.2015 ``` ``` EXHIBIT P6TRUE COPY OF THE ORDER OF THE ADDITIONAL DIRECTOR(GENERAL)DATED 29.05.2015 ``` ``` EXHIBIT P7TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 5.6.2015 WITHOUT ANNEXURE EXHIBITTRUE COPY OF THE STAY PETITION FILED ALONG WITH P7(A)EXHIBIT P-7 DTD 5.6.2015. ``` ``` EXHIBIT P8TRUE COPY OF THE JUDGMENT IN W.P.(C)17289/2015-J DATED 10.06.2015. ``` ``` EXHIBIT P9TRUE COPY OF THE HEARING NOTE, WITHOUT ANNEXURES. ``` ``` EXHIBITTRUE COPY OF THE G.O.(RT)NO.5037/2015/G.EDN.DATED P1026.10.2015 OF THE GOVERNMENT. EXHIBIT TRUE COPY OF THE SENIORITY LIST ``` ``` EXHIBIT P10 RESPONDENT EXHIBITS ``` ``` EXHIBITTRUE COPY OF THE PROMOTION ORDER NO.9/2007-2008 DATED R5(A)28/05/2007 ISSUED BY THIS RESPONDENT. ``` W.P.(C) 34064 & 34076 of 2015 :38: |**`EXHIBIT`**|**`TRUE COPY OF THE STATEMENT OF RELINQUISHMENT GIVEN BY`**| |---|---| |**`R5(B)`**|**`THE PETITIONER DATED 31/05/2007.`**| |**`EXHIBIT`**|**`TRUE COPY OF THE LETTER ISSUED BY THE DEPUTY`**| |**`R5(C)`**|**`DIRECTOR, ERNAKULAM DATED 16/04/2008.`**| |**`EXHIBIT`**|**`TRUE COPY OF THE CLARIFICATION LETTER WRITTEN BY THE`**| |**`R5(D)`**|**`A.E.O., KOTHAMANGALAM DATED 22/11/2014.`**| |**`EXHIBIT`**|**`TRUE COPY OF THE COMMUNICATION RECEIVED BY THE 5TH`**| |**`R5(E)`**|**`RESPONDENT FROM A.E.O., KOTHAMANGALAM DATED`**| ||**`09/02/2015.`**| |**`EXHIBIT`**<br>**`R7(A)`**|**`TRUE COPY OF THE MEMORANDUM OF WPC NO.5794/2015.`**| |**`EXHIBIT`**<br>**`R7(B)`**|**`TRUE COPY OF THE MEMORANDUM OF WPC NO.17299/2015.`**| |**`EXHIBIT`**|**`TRUE COPY OF THE ORDER OF THE DEPUTY DIRECTOR OF`**| |**`R7(C)`**|**`EDUCATION,`**<br>**`ERNAKULAM`**<br>**`NO.B5-11149/2016`**<br>**`DATED`**| ||**`24/11/2016.`**| ``` spc/ ```