Saly P. Mathew v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **MONDAY, THE 18TH DAY OF MARCH 2013/27TH PHALGUNA 1934** ## **WP(C).No. 37322 of 2008 (R)** **------------------------------------------** ## **PETITIONER(S) :** **------------------------** **SALY P.MATHEW, HEADMISTRESS(RETIRED), ST.MARY'S HIGH SCHOOL, PATHANAMTHITTA, RESIDING AT KOTTACKATTETHU, KOLENCHERY PO., PATHANAMTHITTA DISTRICT.** **BY ADVS.SRI.ELVIN PETER.P.J. SRI.S.RAMESH SRI.T.NAVEEN** ## **RESPONDENT(S) :** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA.** **3. DR.T.A.GEORGE, MANAGER, ST.MARY'S HIGH SCHOOL, PATHANAMTHITTA.** **4. VALSAMMA SKARIAH, H.S.A.(PHYSICAL SCIENCE), ST.MATRY'S HIGH SCHOOL, PATHANAMTHITTA.** **R1 & R2 BY GOVERNMENT PLEADER SRI.SHYSON.P.MANGUZHA R3 BY ADV. SRI.V.PHILIP MATHEW** **R4 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY** **SMT.N.SANTHA SRI.S.A.ANAND SRI.PETER JOSE CHRISTO** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-03-2013, ALONG WITH W.P.(C).NO.4145 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 37322 of 2008 (R)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** - **EXHIBIT P1: TRUE COPY OF THE PROVISIONAL SENIORITY LIST PREPARED BY THE PREVIOUS HEADMISTRESS.** - **EXHIBIT P2: TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2007 OF THE PETITIONER.** - **EXHIBIT P3: TRUE COPY OF THE APPROVED PROVISIONAL SENIORITY LIST PREPARED BY THE MANAGER.** - **EXHIBIT P4: TRUE COPY OF THE ORDER DATED 08.01.2008 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P5: TRUE COPY OF THE JUDGMENT DATED 16.01.2008 IN W.P.(C).NO.35759/2007 OF THIS HON'BLE COURT.** - **EXHIBIT P6: TRUE COPY OF THE ORDER, G.O.(RT)NO.3952/2008/G.EDN. DATED 30.08.2008 ISSUED BY THE GOVERNMENT.** - **EXHIBIT P7: TRUE COPY OF THE HEARING NOTE DATED 26.02.2008 SUBMITTED BY THE 3RD RESPONDENT.** - **EXHIBIT P8: TRUE COPY OF THE HEARING NOTE DATED 22.02.2008 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P9: TRUE COPY OF THE FINAL SENIORITY LIST OF TEACHERS AS ON 01.01.2007.** - **EXHIBIT P10: TRUE COPY OF THE ORDER, G.O. DATED 06.03.1969 ISSUED BY THE GOVERNMENT.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------------------------** **EXHIBIT R4(A): TRUE COPY OF THE LETTER NO.B6/3425/07 DATED 27.11.2007 OF THE D.E.O., PATHANAMTHITTA.** - **EXHIBIT R4(B): TRUE COPY OF THE APPEAL DATED 15.12.2007 BEFORE THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA WITHOUT ITS ANNEXURES.** **EXHIBIT R4(C): TRUE COPY OF THE REVISION PETITION DATED 14.01.2008 BEFORE GOVERNMENT.** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **C.K. ABDUL REHIM, JUDGE** ## **- - - - - - - - - - - - - - - - - W.P.(C). Nos. 37322 of 2008 & 4145 of 2009.** **- - - - - - - - - - - - - - - - Dated this the 18[th] day of March, 2013.** ## **JUDGMENT** Since the very same order passed by the Government is under challenge in both these writ petitions, they were heard together and disposed of through this common judgment. Reference to parties and exhibits contained hereunder is in the order as reflected in W.P.(C) No. 37322 of 2008. 2. The petitioner in W.P.(C) No. 37322 of 2008 is an HSA (Physical Science) appointed in the 3[rd] respondet's school with effect from 01.06.1981. She acquired test qualification for promotion to the post of Headmistress in June, 2003. The 4[th] respondent is also an HSA (Physical Science) in the very same school. Vacancy of Headmistress arose in the school with effect from 01.06.2007. The 3[rd] respondent Manager, who is the petitioner in W.P.(C) No. 4145 of 2009, appointed the petitioner as Headmistress, as per Ext.P2 order, with effect from 01.06.2007, which was approved by the 2[nd] respondent as revealed from Ext.P2. Appointment was made on the basis that the petitioner was senior to 4[th] respondent, as per seniority list approved by the 2[nd] respondent. But, the W.P.(C) No. 37322/2008 & 4145/2009 : 2 : 4[th] respondent raised objection against the seniority list claiming that she is senior to the petitioner. The 4[th] respondent has filed a petition before the 2[nd] respondent and she had also approached this Court in a writ petition. In Ext.P5 judgment this Court observed that, during the pendency of the said writ petition the 2[nd] respondent had already issued an order confirming seniority of the petitioner. Therefore, the 4[th] respondent will be at liberty to challenge the said order in revision before the Government under Rule 92 of Chapter XIV-A KER. A revision petition filed by the 4[th] respondent was disposed of by the Government through Ext.P6. Finding was that the periods from 24.11.1988 to 25.01.1989 and from 20.12.1991 to 12.07.1999, during which the petitioner was deployed to a Government School as protected teacher cannot be reckoned for the purpose of seniority. The Government found that the 4[th] respondent is senior to the petitioner. Since the 4[th] respondent is exempted from acquiring the test qualification on the basis that she had crossed the age of 50 years, she was ordered to be promoted as Headmistress of the 3[rd] respondent's school. Aggrieved by Ext.P6 order, these writ petitions are filed by the petitioner as W.P.(C) No. 37322/2008 & 4145/2009 : 3 : well as the 3[rd] respondent (Manager). 3. Contentions raised are mainly two folded. Firstly it is contended that, since the 4[th] respondent had failed in raising any objections against the provisional list of seniority which was subsequently approved by the 2[nd] respondent, the petitioner is eligible to be promoted as Headmistress. Further contention is that, going by Rule 37(1) of Chapter XIV A KER, as amended, the petitioner is entitled to get her period of protected service reckoned for counting seniority. Hence the finding that the 4[th] respondent is senior to the petitioner, cannot be accepted, is the contention. 4. While considering the date of first appointment in the post of HSA, petitioner is admittedly senior to the 4[th] respondent. It is also evident that the seniority list with respect to the year concerned was approved by the 2[nd] respondent. But it is evident that the 4[th] respondent had approached the 2[nd] respondent raising complaints against finalisation of the seniority list. According to the 4[th] respondent, a provisional seniority list was circulated in the school in June, 2007 and she had put up her signature without endorsing 'no objection'. On the other hand, W.P.(C) No. 37322/2008 & 4145/2009 : 4 : the petitioner contended that the 4[th] respondent had submitted detailed objection before the Manager against assigning seniority to the petitioner. But the allegation is that the document in question was forged by attaching an additional paper, wherein the 'no objection' was subsequently inserted at the place where name of the 4[th] respondent is noted. It is stated that the 4[th] respondent had submitted a complaint before the 2[nd] respondent on 24.07.2007, regarding the above manipulations and based on the said complaint, the 2[nd] respondent had conducted an enquiry. But since no orders were issued, the 4[th] respondent had approached this Court in Ext.P5 writ petition. During the pendency of the writ petition, the petitioner was served with a copy of the order issued by the 2[nd] respondent dated 27.11.2007 [Ext.R4(a)]. It is challenging Ext.R4(a) that the 4[th] respondent had filed revision before the Government on 14.01.2008. A copy of the revision petition is produced as Ext.R4(c). Since it is evident that the 4[th] respondent was agitating the issue with respect to finalisation of the seniority list on the basis of manipulations in the records, it cannot be approved that the seniority list became final and it could not be W.P.(C) No. 37322/2008 & 4145/2009 : 5 : challenged. Further, it is evident that the issue agitated before the revisional authority was purely regarding finalisation of the seniority. Therefore, it is not legal and proper to accept the contention that the seniority list remained finalised or unchallenged. Such a technical stand cannot be sustained in view of the fact that the 4[th] respondent had filed revision against the order passed by the DEO. Hence, this Court is inclined to hold that the 4[th] respondent cannot be prevented from challenging the appointment of the petitioner as Headmistress on the basis that she had failed in objecting finalisation of the seniority list. 5. Next issue arising for consideration is regarding reckoning of the period of protected service for the purpose of seniority. Rule 37 of Chapter XIV-A KER as it stood as on the date of appointment of the parties as HSA and as on the date of arising of vacancy of HM, 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."_ In view of the above provision, whether the period during when W.P.(C) No. 37322/2008 & 4145/2009 : 6 : the petitioner was deployed to Government School under protection can be reckoned for the pupose of seniority, is the question. The issue remains settled through decision of a Full Bench of this Court in **Abraham v. State of Kerala** - 2009(3) KLT 659 (F.B). It is held therein that sub rule (1) of Rule 37 is very specific that the the seniority of any teacher in any grade in any unit shall be decided with reference to continuous service in that grade in that unit, provided the incumbent is qualified for the post. It means the broken service cannot be reckoned. The Full Bench held that going by Rule 37, it is manifestly clear that the broken service cannot be counted for the purpose of seniority. A plain reading of Rule 37 would show that if a teacher is deployed to the Government School on protection, the same will affect her seniority, because the seniority is reckoned with reference to continuous qualified service in the concerned unit. 6. Shri. S. Ramesh, learned counsel appearing for the petitioner had placed another decision of this Court in **Aleyamma v. Kunjamma Jacob** - 2007(1) KLT 1049. A Division Bench of this Court while dealing with an identical situation had W.P.(C) No. 37322/2008 & 4145/2009 : 7 : eventhough taken the view that service rendered as protected teacher elsewhere cannot be reckoned for the purpose of seniority observed on the facts of the said case that, no seniority list as currently drawn up with regard to the year preceding occurance of vacancy placing the appellant therein as senior was brought to the notice. Based on such an observation it is contended that, despite the dictum that service as a protected teacher cannot be counted, if there is a serniority list remaining finalised the same should be followed. But on the factual matrix of the case at hand, as already observed, the seniority list cannot be considered as remaining finalised, because the 4[th] respondent had objected finalisation of the list and the matter was taken up before the DEO and further in revision. 7. Much reliance is placed by learned counsel for the petitioner on a recent decision rendered by this Court in **Thyagarajan P.K. v. Santhosh T. Alexander** - **(2012(3) ILR Kerala 90).** A Division Bench in which I am also a party had observed that Rule 37 only prohibits adding of service of school teachers in different schools for the purpose of seniority. But operation of Rule 37 does not affect the seniority merely because W.P.(C) No. 37322/2008 & 4145/2009 : 8 : a teacher is deployed for a short term in other school and brought back with the protection of pay. Such an observation is on the basis that continuity of service is protected by providing pay protection to the teachers who were deployed to other schools on their restoration to the parent school. But despite such an observation, the case was decided only on the basis of the new proviso introduced to Rule 37(1) protecting seniority with respect to the period of deployment under Rule 52. The said proviso was introduced with effect from 23.07.2010. It reads as follows: _"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 re-appointment to the parent school."_ In view of the said proviso and in view of the factual situation that even otherwise the petitioner in the said case was admittedly senior, this Court decided that he should be given preference in the appointment, I am of the considered opinion that the Division Bench in **Thyagarajan's case** (cited supra) has not decided the issue regarding the interpretation of Rule 37(1). As long as Rule 37(1) contemplated unitwise seniority, there W.P.(C) No. 37322/2008 & 4145/2009 : 9 : cannot be any scope for interpretation that the deployment period also should be counted for seniority in the unit. Further, effect of the dictum laid down by the Full Bench in **Abraham's case** (cited supra) has not been diluted in any manner. It cannot be said that there is any overruling of the said decision through the subsequent Division Bench decision in **Thyagarajan's case.** 8. Learned counsel for the petitioner had also attempted a contention that, by virtue of introduction of the new proviso to Rule 37(1) the position which remained prior to amendment of 18.09.1962 is restored. It is pointed out that earlier provision was to the effect that the seniority is to be decided with reference to the date of first appointment in any unit. Contention of learned counsel is that, the proviso only clarifies the position and eventhough there is no specific retrospectivity provided it has to be construed that the position ante has been restored. This Court cannot accept such a contention. The provision contained in Rule 37(1), which remained till the year 2010 without the proviso, is unambiguously clear that the seniority has to be reckoned unitwise. It cannot be said that by virtue of the proviso, the effect of the said provision has been W.P.(C) No. 37322/2008 & 4145/2009 : 10 : taken away with retrospectivity. 9. Learned Counsel also placed reliance on a decision of the Hon'ble Supreme Court in **T. Narasimhulu v. State of A.P** - **[2010 (6) SCC 545]** . Refering to various earlier decisions it is held that, seniority was not a vested or accrued right and no one has a vested right to promotion or seniority. An officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of valid law. To have a particular position in the seniority list within a cadre, can neither be said as an accrued or vested right of a government servant. The decision further note that, losing some places in the seniority list within the cadre will not amount to reduction in rank, even though future chances of promotion is get delayed thereby. This Court is of the considered opinion that the dictum contained in the said decision will no way help to improve the case of the petitioner. 10. Under the above mentioned circumstances, it is evident that on excluding the period during which the petitioner was deployed in Government School under protection, the 4[th] respondent is senior in service. Since the 4[th] respondent is W.P.(C) No. 37322/2008 & 4145/2009 : 11 : exempted from acquiring the test qualification, she is eligible to be promoted as Headmistress. 11. Therefore, there is no illegality, error or impropriety in Ext.P6 decision of the Government. In the result, these writ petitions deserve no merit and the same are accordingly dismissed. **sd/-C.K. ABDUL REHIM, JUDGE.** ## **rv** W.P.(C) No. 37322/2008 & 4145/2009 : 12 :