Sandhya T. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941** ## **WP(C).No.26653 OF 2016(F)** ## **PETITIONER/S:** **SANDHYA T., AGED 47 YEARS, W/O. RADHAKRISHNAN NAIR, KRISHNA JYOTHIS (H), OPP. POORNA AUDITORIUM, KALADY, ERNAKULAM DISTRICT, NOW WORKING AS HSST (SANSKRIT), BRAHMANANDHODAYAM HSS, KALADY.** **BY ADV. SRI.PAULSON THOMAS** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** - **2 THE DIRECTOR, DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM, PIN-695 001.** - **3 THE REGIONAL DIRECTOR, OFFICE OF THE REGIONAL DIRECTOR OF HIGHER SECONDARY EDUCATION, EDAPPALLY, ERNAKULAM-682 024.** - **4 THE MANAGER, BRAHMANANDHODAYAM HIGHER SECONDARY SCHOOL, KALADY, ERNAKULAM DISTRICT-682 051.** **BY ADVS.** - **R1 TO R3 - SMT. MARY BEENA JOSEPH, SENIOR GOVERNMENT PLEADER R4 - SRI.GEEBHOY JACOB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-12-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)No.26653 of 2016** **2** ## **JUDGMENT** This writ petition is filed by the petitioner a Higher Secondary School Teacher (HSST) (Sanskrit) appointed in the Brahmanandhodayam Higher Secondary School, Kalady, Ernakulam District, the 4[th] respondent herein, on and with effect from 23.08.2000, seeking to quash Ext.P5 Government Order to the extent notional appointment was declined to the petitioner on and with effect from 14.08.2000, and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner was appointed by transfer as HSST (Sanskrit) from the post of U.P.S.A of the same school, against the 2[nd] vacancy set apart for appointment by transfer under the 25% quota arose during the academic year 2000-2001. The school was upgraded as Higher Secondary School during 2000-2001, and the petitioner was fully qualified for the post with effect from the date of occurrence of the vacancy during 2000-2001. It is submitted that, the 1[st] post/vacancy under the 25% quota for appointment by transfer was filled up by appointing Smt. A.M. Jayakumari with effect from 14.08.2000, who was admittedly senior to the petitioner in the feeder post. Subsequently, Smt. Jayakumari was **W.P.(C)No.26653 of 2016 3** promoted as Principal and she was due to retire during 2018. The grievance of the petitioner is that, the Management committed a mistake/illegality in not appointing the petitioner by transfer with effect from 14.08.2000, the date of occurrence of vacancy, instead of 23.08.2000, resulting in deprivation of seniority to the petitioner in the HSST cadre, and her further promotion as Principal on retirement of the present incumbent during 2018. 3. It is also the case of the petitioner that, one of the 2 vacancies in the 25% quota arose on 14.08.2000 itself, and therefore, the second appointment by transfer in the said quota ought to have been made with effect from 14.08.2000. Having been aggrieved by not granting approval with effect from 14.08.2000, petitioner has approached this Court by filing W.P.(C) No.6075 of 2015, which was disposed of as per the judgment dated 21.08.2015, directing the Government to address the grievance of the petitioner. It was thereupon that Ext.P5 order is passed by the Government, however, approving the appointment of the petitioner on and with effect from 23.08.2000. It is thus aggrieved by the said action of the Government, this writ petition is filed. **W.P.(C)No.26653 of 2016** **4** 4. A detailed counter affidavit is filed by the 3[rd] respondent, basically contending that 14 posts were created in the 4[th] respondent school during the academic year 2000-01. Out of which, two posts were set apart by the Manager for 25% quota which arose on the same date, i.e., 14.08.2000. The Manager appointed Smt. A.M. Jayakumari as HSST (Hindi) by transfer against the first vacancy set apart with effect from 14.08.2000 and appointed Smt. Sandhya T. as HSST (Sanskrit), i.e., the petitioner, only with effect from 23.08.2000 against the second vacancy which arose on the same date. Similarly, the Manager appointed two other teachers as HSST (Maths) and HSST (Chemistry) by direct recruitment with effect from 14.08.2000. It is admitted that all the vacancies arose on 14.08.2000. However, according to the 3[rd] respondent, the Manager effected the appointment of the petitioner on and with effect from 23.08.2000, which has weighed with the Government while considering the claim raised by the petitioner. **==> picture [431 x 41] intentionally omitted <==** arbitrariness on the part of the Government in granting the approval from 23.08.2000. It is also pointed out **W.P.(C)No.26653 of 2016** ## **5** that, the Government have clearly found out in Ext.P5 that petitioner has approached the Government to secure the said relief after 15 years of appointment of the petitioner. Therefore, according to the learned Senior Government Pleader, there is inordinate delay on the part of the petitioner. 6. I have heard Sri. Paulson Thomas, learned counsel for the petitioner and Smt. Mary Beena Joseph, learned Senior Government Pleader, and perused the pleadings and the documents on record. 7. The issue raised by the petitioner lies in a very narrow compass. It is an admitted fact that two vacancies were available in the school in the bytransfer method, however, the petitioner was appointed only with effect from 23.08.2000. It is also admitted that, two vacancies of direct recruitment were also filled up by the Manager on and with effect from 14.08.2000. In fact, there is no proper reason assigned as to why the petitioner was not appointed on and with effect from 14.08.2000, when all others were given the said benefit of appointment on the date of vacancy, i.e., 14.08.2000. 8. Learned counsel for the petitioner in that regard has invited my attention to the judgment of this ## **W.P.(C)No.26653 of 2016** ## **6** Court in W.A.No.267 of 2006 (' _**S. Anilkumar v. O. Prasannakumari & Others**_ '). It is true, the issue considered by this Court was similar in nature. However, learned Senior Government Pleader pointed out that, in the above case, there was no delay in making the claim for approval of the appointment effective from an earlier date. But, in my considered opinion, petitioner is only seeking notional benefits on and with effect from 14.08.2000. The State Government, while passing Ext.P5 order also declined the relief to the petitioner only on the ground that there is inordinate delay on the part of the petitioner. It is also true that the delay on the part of the petitioner is unpardonable. However, since the petitioner is seeking only notional benefits, and since I find that there is gross injustice meted out to the petitioner by not granting the appointment from the date of occurrence of vacancy, i.e., on 14.08.2000, it is only appropriate that petitioner is given notional benefit from the said date. 9. In that view of the matter, I quash Ext.P5 to the extent of not granting the approval on and with effect from 14.08.2000, and there will be a direction to the respondents to grant notional benefits to the **W.P.(C)No.26653 of 2016 7** petitioner on and with effect from 14.08.2000, and also steps shall be taken to approve the appointment accordingly, at the earliest, and at any rate, within two months from the date of receipt of a copy of this judgment. Needless to say, all the benefits on the basis of the notional appointment on and with effect from the said date shall be extended to the petitioner. The writ petition is allowed accordingly. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** **St/-05.12.2019** **W.P.(C)No.26653 of 2016** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**P1**|**TRUE COPY OF THE STAFF SELECTION COMMITTEE**| |---|---| ||**REPORT DATED 8-8-2000.**| |**P1(A)**|**TRUE COPY OF THE APPROVAL ORDER DT.5-4-2006**| ||**OF THE PETITIONER AS HSST (SANSKRIT).**| |**P2**|**TRUE COPY OF THE M.A. DEGREE CERTIFICATE OF**| ||**THE PETITIONER.**| |**P3**|**TRUE COPY OF THE M.ED. DEGREE CERTIFICATE**| ||**OF THE PETITIONER.**| |**P4**|**TRUE COPY OF THE REPRESENTATION DT.23-10-**| ||**2014 FILED BY THE PETITIONER BEFORE THE 1ST**| ||**RESPONDENT STATE GOVERNMENT.**| |**P5**|**TRUE COPY OF G.O.(RT)NO.1962/2016/G.EDN.**| ||**DT. 20-6-2016.**| |**P5(A)**|**TRUE COPY OF THE JUDGMENT IN WRIT APPEAL**| ||**NO.267/2006 DT.15-1-2009.**| |**P6**|**TRUE COPY OF G.O.(MS)NO.162/98/GEN.EDN.**| ||**DT.13-5-1998.**| |**P7**|**TRUE COPY OF THE INTERIM ORDER OF THE APEX**| ||**COURT DT.7-12-1999.**| |**P8**|**TRUE COPY OF G.O.(MS) NO.298/2000/GEN/EDN.**| ||**DT.25-8-2000.**| ## **RESPONDENTS' EXHIBITS: NIL**