Shaji Simon C.S. v. State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE EASWARAN S. ``` ``` WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946 ``` ``` WA NO. 804 OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 22.05.2024 IN WP(C) NO.24556 OF 2019 OF HIGH COURT OF KERALA ``` ## **`APPELLANT(S)/PETITIONER :`** ``` SHAJI SYMON C.S. AGED 34 YEARS PHYSICAL EDUCATION TEACHER HIGH SCHOOL SECTION, ST. XAVIERS HIGH SCHOOL, PEYAD P.O, PALLIMUKKU, THIRUVANANTHAPURAM DISTRICT-695573., PIN - 695573 BY ADVS. BENNY GERVACIS (SR.)(K/524/1989) S.NIKHIL SANKAR ``` ## **`RESPONDENT(S)/RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001., PIN - 695001`** - **`2 DIRECTOR GENERAL OF EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014., PIN - 695014`** - **`3 DEPUTY DIRECTOR OF EDUCATION, CHALA, THIRUVANANTHAPURAM-695036., PIN - 695036`** - **`4 DISTRICT EDUCATIONAL OFFICER, NEYYATTINKARA, THIRUVANANTHAPURAM-695921., PIN - 695921`** - **`5 THE CORPORATE MANAGER, CORPORATE MANAGEMENT OF LATIN CATHOLIC SCHOOLS, DIOCESE OF NEYYATTINKARA, NEYYATTINKARA P.O, THIRUVANANTHAPURAM-695921., PIN - 695921`** 2 W.A. Nos.804 & 813 of 2024 - **`6 THE HEAD MASTER, ST. XAVIER'S HIGH SCHOOL, PEYAD P.O, PALLIMUKKU, THIRUVANANTHAPURAM-695573., PIN - 695573`** - **`7 L.V. SINESH, PHYSICAL EDUCATION TEACHER(UP SECTION) ST. XAVIERS HIGH SCHOOL PEYAD, P O PAALLIMUKKU, THIRUVANANTHAPURAM-695573., PIN – 695573`** - **`8 ADDL. NIJIL DEV (SOUGHT TO BE IMPLEADED), PIN - 695573`** ``` BY ADVS.K.JAJU BABU (SR.)(K/116/1981) M.U.VIJAYALAKSHMI BRIJESH MOHAN(K/1851/1999) ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.07.2024, ALONG WITH WA.813/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.A. Nos.804 & 813 of 2024 3 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE EASWARAN S. ``` ``` WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946 ``` ``` WA NO. 813 OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 22.05.2024 IN WP(C) NO.4804 OF 2020 OF HIGH COURT OF KERALA ``` ## **`APPELLANT(S)/7TH RESPONDENT :`** ``` SHAJI SYMON C.S. AGED 34 YEARS PHYSICAL EDUCATION TEACHER, HIGH SCHOOL SECTION, ST.XAVIERS HIGH SCHOOL, PEYAD P.O.,PALLIMUKKU, THIRUVANANTHAPURAM - 695573 ON DEPLOYMENT AS P.E.T.(HS), GVHSS, VEERANAKKAVU, THIRUVANANTHAPURAM, PIN - 695572 BY ADVS. BENNY GERVACIS (SR.)(K/524/1989) S.NIKHIL SANKAR ``` ## **`RESPONDENT(S)/RESPONDENTS 1 TO 6 & PETITIONER :`** ``` 1STATE OF KERALA REPRESENTED BY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001 2DIRECTOR GENERAL OF EDUCATION JAGATHY, THIRUVANANTHAPURAM ., PIN - 695014 3DEPUTY DIRECTOR OF EDUCATION CHALA, THIRUVANANTHAPURAM ., PIN - 695036 4DISTRICT EDUCATIONAL OFFICER NEYYATTINKARA, THIRUVANANTHAPURAM ., PIN - 695921 5THE CORPORATE MANAGER, CORPORATE MANAGEMENT OF LATIN CATHOLIC SCHOOLS, DIOCESE OF NEYYATTINKARA, NEYYATTINKARA P.O., THIRUVANANTHAPURAM ., PIN - 695921 ``` W.A. Nos.804 & 813 of 2024 4 ``` 6THE HEAD MASTER ST. XAVIER'S HIGH SCHOOL, PEYAD P.O., PALLIMUKKU, THIRUVANANTHAPURAM ., PIN - 695573 7L.V. SINESH AGED 32 YEARS SON OF VINCENT PHYSICAL EDUCATION TEACHER (UP SECTION), ST. XAVIER'S HIGH SCHOOL, PEYAD, PALLIMUKKU, THIRUVANANTHAPURAM ., PIN - 695573 BY ADVS. K.JAJU BABU (SR.)(K/116/1981) M.U.VIJAYALAKSHMI BRIJESH MOHAN(K/1851/1999) ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.07.2024, ALONG WITH WA.804/2024 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.A. Nos.804 & 813 of 2024 5 **AMIT RAWAL & EASWARAN S., JJ. ---------------------------------------W.A. Nos.804 & 813 of 2024 -----------------------------------------Dated this the 17[th] day of July, 2024** ## **JUDGMENT** ## **AMIT RAWAL, J.** This order shall dispose of two Writ Appeals, Writ Appeal Nos.804 of 2024 and 813 of 2024, preferred by Sri.Shaji Simon C.S., who is the petitioner in W.P.(C) No.24556 of 2019 and the 7[th] respondent in W.P.(C) No.4804 of 2020 preferred by Sri.L.V. Sinesh. 2. The long and short argument of the appellant though has been noticed by the Single Bench, but in order to have clarity, we would reiterate the facts. 1) Sri.Shaji Simon C.S. was appointed as a Physical Education Teacher on 24.6.2013 in the High School Section of the St.Xavier’s High School, Peyad under the management of Latin Catholic Schools Diocese of Neyyattinkara, Thiruvananthapuram. It is pertinent to mention here that the aforementioned management is running more than one school. Sri.L.V.Sinesh, the 6 W.A. Nos.804 & 813 of 2024 7[th] respondent in W.P.(C) No.24556 of 2019 and the petitioner in W.P.(C) No.4804 of 2020 was appointed as Physical Education Teacher in Upper Primary on 4.6.2012. It may not be out of place to mention here that the cadre and pay scale of both the aforementioned posts, i.e., in High School and as well as in the Upper Primary, is the same. The litigation with regard to above two posts had already been pondered by the Division Bench of this Court in **Rani George v. Deputy Director of Education** [2004 KHC 715] wherein, in paragraph No.32, it has been held that both posts will be considered as a single unit. 2) The post of Physical Education Teacher in the Upper Primary was abolished in 2016 but, in view of the direction in **Rani George** (Supra), by adopting the clubbing process, both the teachers were retained. Staff Fixation did not take place for the period 2010-2011 and 2015-2016. During the interregnum, as noticed above, both the persons, above mentioned, were appointed. The appellant's, Shaji Simon’s, appointment was approved on 24.6.2013 whereas, the appointment of Sri.L.V. Sinesh, the petitioner in W.P.(C) No. 4804 of 2020, was approved W.A. Nos.804 & 813 of 2024 7 in the year 2012. Obviously, Sri.L.V Sinesh was senior. 3) Sri.Sinesh preferred a writ petition before this Court bearing No.36210 of 2016 being aggrieved of change in the date of approval from 4.6.2012 to 14.7.2013. Directions were issued by this Court to take a call on the representation of Sri.Sinesh. The Manager cancelled the earlier order of shifting of Physical Education Teacher of the High School and Upper Primary which was challenged by Sri.Sinesh in W.P.(C) No.5837 of 2017. In pursuance of the judgment rendered in the aforementioned writ petition on 21.2.2017, the Government considered the issue, set aside the order of the Manager and held that the senior teacher was to be accommodated against the sanctioned post and directed the District Education Officer, Neyyanttinkara to approve the appointment of Sri.Sinesh. The aforementioned order was assailed by the appellant in W.P.(C) No.22968 of 2017. Another Writ Petition 33625 of 2018 was preferred by Sri.Sinesh for implementation of the order by the Government. This Court disposed of the Writ Petitions with a direction to the District Education Officer to reconsider the matter after granting personal W.A. Nos.804 & 813 of 2024 8 opportunity. It is in that background, the personal opportunity was granted which resulted into an order dated 2.9.2019, Ext.P11. 3. The order aforementioned was assailed by the appellant/petitioner in W.P.(C) No.24556 of 2019 arraying, for the sake of repetition, Sri.Sinesh as respondent No.7 and Sri.Sinesh in Writ Petition No.4804 of 2020 by impleading Sri.Shaji Simon as the 7[th] respondent for implementation of Ext.P11 order. Learned Single Judge, by common judgment dated 22.5.2024 upheld the order impugned in the writ petitions by applying the ratio decidendi culled out in **Rani George** (Supra). 4. Sri. Benny Gervacis, the learned Senior counsel assisted by Sri. Nikihil Sankar S., submitted that the order Ext.P11 has not been read in the correct perspective while deciding the writ petitions for, the education society, ie, the management, is considering the post of Physical Education Teacher in High School higher than the Upper Primary, though Upper Primary was abolished as far back as in 2016 and therefore, credence is being given to Sri.Sinesh instead of the appellant/petitioner, which W.A. Nos.804 & 813 of 2024 9 tantamounts to downgrading his post and would take away the right of consideration for future promotion. 5. We have heard the learned counsel for the appellant and appraised the paper books. 6. The directions contained in **Rani George** (Supra) though have been noticed by the learned Single Bench, but we deem it appropriate to extract paragraph No.32 which reads as under: ## **“32. In view of the legal principles discussed above, it is held as follows:** - (i) If the educational agency is having an Upper Primary School and a High School or a High School with Upper Primary in the same district, both sections shall be treated as a single unit. (ii) The seniority of the specialist teachers working in such units shall be prepared in accordance with R.37 treating the abovesaid U.P. Schools and High Schools as a Single unit. (iii) The post of specialist teachers in the abovesaid schools/sections are interchangeable. (iv) The post of the specialist teacher attached to the High School is not a promotion post of the specialist teacher working in the U.P. School or U.P. Section of High School. (v) In case of any post of a specialist teacher in such W.A. Nos.804 & 813 of 2024 10 a unit is to be abolished, the service of the junior specialist teacher in the combined seniority list is liable to be terminated even if he/she is working in the High School subject to the provisions of R.51A of Chap. 14 Κ.E.R. (vi) A senior teacher working in the U.P. Section has no legal right to claim that he/she shall be transferred and posted in the High School on the ground of seniority alone. (vii) The Educational Agency is having the right to transfer a specialist teacher working in the U.P. Section to High School of the same unit or vice versa subject to the Rules.” On perusal of the aforementioned directions, there is no doubt that both the posts of Physical Education Teacher in High School and Upper Primary have to be treated as a single unit and there is no change of cadre or pay scale. 7. By looking at the translated copy of the order impugned, we confronted learned senior counsel as to how and in what manner appellant was aggrieved off. Having offered fatuous explanation, we deem it appropriate to extract paragraph Nos.3 to 6 of the transalted copy of Ext.P11, the impugned order. 11 W.A. Nos.804 & 813 of 2024 "3. The contentions raised by the petitioners at the personal hearing and the report of the Educational Officers were considered in detail by the Government. As per the staff fixation for the year 2010-11 in St. Xavier's School, Peyad was sanctioned 1 post of Physical Education Teacher each in UP and HS Sections. When vacancies arose in the above posts, Sri. Sinesh L.V. was appointed in the UP Section w.e.f 04.06.2012 and Sri. Shaji Simon in the HS Section w.e.f 24.06.2013. Due to the Government Order G.O(P) No.199/2011/GEDN dated 01.10.2011 implementing the teachers package and the consequent court orders the staff fixation could not be carried out from the academic year 2010- 11 to 2015-16. The Government therefore, directed that the posts in 2010-11 would continue till the academic year 2015- 16. Those appointed against were directed to be granted approval by para V(2) of Government Order G.O (P) No. 29/2016/GEDN dated 29.01.2016. 4. Since the posts sanctioned in 2010-2011 continued to exist, the posts against which Sri. Shaji Simon and Sri. Sinesh L.V. were in existance. It was only later on carriying out staff fixation according to G.O(P) No. 29/2016/GEDN dated 29.01.2016 that a post was abolished, i.e., the appointments in 2012-13 were regularized in 2016. Since the post in 2010- 11 continued till 2015-16, both were eligible for approval of their appointment. When staff fixation was carried out pursuant to G.O(P) No. 29/2016/GEDN dated 29.01.2016 w.e.f 2011-12, as far as Corporate Managements were concerned, the specialist teachers found in excess could be retained on clubbing arrangement or by deployment to other schools under the same management. W.A. Nos.804 & 813 of 2024 12 5. Since the posts of 2010-11 were permitted to be continued till 2015-16, the appointment of Sri. Shaji Simon against the transfer vacancy w.e.f 24.06.2013 is entitled to be approved. When the appointment of Sri. Shaji Simon is granted approval w.e.f 24.06.2013 as Physical Education Teacher in HS Section, and on the post of Physical Education Teacher in UP Section being abolished, the senior Sri. Sinesh L.V. is to be appointed in the HS Section and Sri. Shaji Simon retained on clubbing arrangement. Since Sri. Sinesh L.V. and Sri. Shaji Simon were continuing in their respective posts till 31.03.2019 they are permitted to continue in the respective post till 31.03.2019 and the senior Sri. Sinesh L.V. is directed to be shifted to the HS Section w.e.f 03.06.2019 and the junior Sri. Shaji Simon retained on clubbing arrangement with the Pottayilkada UP School under the same Corporate Management. Directions are accordingly issued to the Corporate Management to issue appointment orders and on receipt of the same, the District Educational Officer, Neyyattinkara is directed to approve the same. 6. Reference (2) judgment is accordingly complied with." ## 8. On perusal of the aforementioned order, it is evident that the Government followed the directions in **Rani George** (Supra) in letter and spirit by adopting the clubbing arrangement and retained the appellant in another UP School of the management, at Pottayilkkada, irrespective of the abolition of the post of Upper Primary. Obviously a person appointed prior to the appellant 13 W.A. Nos.804 & 813 of 2024 would have a preferential claim/credence for being appointed in a High School. This precisely has been noticed by the Government. The order does not take away the valuable right of the appellant for future promotion as well as reduction in post resulting into down- grading in the cadre or pay scale. Thus we are of the view that the order of the Single Judge declining to interfere in the Government order do not suffer from illegality or perversity. No ground for interference is made out. Writ Appeals are dismissed accordingly. Sd/- **AMIT RAWAL JUDGE** Sd/- **EASWARAN S. JUDGE** NS