Sheeja K. Sathyan v. State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 WP(C) NO. 18279 OF 2017** ## **PETITIONER:** **SHEEJA.K.SATHYAN AGED 43 YEARS, W/O. JAYAKUMAR,TEACHER-INCHARGE,LUTHERAN MISSION LPS.,THUMARICHAL, THIRUVANANTHAPURAM.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SMT.MINI.V.A. SRI.C.P.PEETHAMBARAN** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY,GENERAL EDUCATION (H)**| ||**DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM -**| ||**695 001.**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTIONS**| ||**THIRUVANANTHAPURAM - 695 001.**| |**3**|**THE DISTRICT EDUCATIONAL OFFICER**| ||**NEYYATTINKARA,THIRUVANANTHAPURAM - 695 121.**| |**4**|**THE ASSISTANT EDUCATIONAL OFFICER**| ||**KATTAKADA,THIRUVANANTHAPURAM - 695 572.**| |**5**|**THE CORPORATE MANAGER OF LUTHERAN SCHOOL**| ||**INDIA EVANGELICAL LUTHERN CHURCH,TRIVANDRUM SYNOD,**| ||**CLHSS COMPOUND,PEROORKADA,**| ||**THIRUVANANTHAPURAM - 695 005.**| |**6**|**MALINI JAYANTHI. D.**| ||**LPSA., CLUPS PEROORKADA,THIRUVANANTHAPURAM - 695 005.**| ## **WP(C) NO. 18279 OF 2017 -2-** **BY ADVS. BY SRI.BIJOY CHANDRAN, SR. GOVERNMENT PLEADER SRI.D.KISHORE SRI.R.MURALEEKRISHNAN (MALAKKARA)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = W.P.(C) No.18279 of 2017** **= = = = = = = = = = = = = = = = = = Dated this the 22[nd ] day of May, 2024** ## **J U D G M E N T** Orders declining the approval of appointment of the petitioner as Headmistress and reverting her to the previous post, are under challenge in this writ petition. 2. On 05.10.1994, the petitioner was appointed as LPSA by the 5[th] respondent Corporate Manager in a leave vacancy. She got regular appointment on 09.06.1999. The appointment was approved by the educational authorities. 3. On 10.07.2006, as per Ext.P1, the petitioner was appointed as teacher-in-charge of a school under the management. The appointment was approved. Subsequently there occurred a vacancy of Headmistress at the Mandikkalam School under the management. The petitioner was promoted and posted as the Headmistress with effect ## W.P.(C) No.18279 of 2017 -: 2 :- from 20.06.2014. However, the 4[th] respondent AEO declined to approve the promotion. The approval was declined for non-compliance with the Government Circular dated 13.06.2014 requiring obtaining of prior sanction for appointment. The Manager filed an appeal before the DEO. As per Ext.P7, the appeal was returned. The Manager filed Ext.P9 appeal before the second respondent. 4. Pending the appeal before the second respondent, the then Manager in office issued Ext.P10 order reverting the petitioner as teacher-in-charge. Subsequently as per Ext.P9 order, the appeal preferred by the Manager was dismissed. Challenging the order the petitioner filed Revision before the Government. The Revision was dismissed as per Ext.P18 order. It is accordingly that the petitioner is before this Court. 5. I have heard learned Senior Counsel Sri.S.Sreekumar on behalf of the petitioner and W.P.(C) No.18279 of 2017 -: 3 :- Sri.Bijoy Chandran, the learned Senior Government Pleader. 6. Ext.P18 order indicates that the Revision was dismissed for the reason that the sixth respondent was senior to the petitioner and that the seniority list is liable to be revised. Here it is to be noticed that, the appointment of the petitioner as Headmistress was refused to be approved by the authorities for a totally different reason viz., non-obtaining of prior sanction as was required under Ext.P8 Government Circular dated 13.06.2014. The issue regarding violation of the Circular does not find a place in Ext.P18 order in revision as a reason for rejection. This could be for the reason that Ext.P8 Circular was subsequently withdrawn by the Government as per Ext.P29 order dated 13.07.2022. Anyhow, the Revision preferred by the petitioner was dismissed under Ext.P18 by the Government W.P.(C) No.18279 of 2017 -: 4 :- solely on the reason of “seniority”. 7. Here it is to be noticed that, the petitioner was promoted and appointed as Headmistress as per Ext.P3 dated 20.06.2014. Ext.P4 is the seniority list as on 01.01.2011 which was approved by the authorities on 25.03.2013. There was no challenge against Ext.P4 seniority list and it had become final in terms of Rule 38 of Chapter XIVA of the KER. As per Ext.P4 seniority list, the petitioner was serial No.57 and the rival claimant-sixth respondent was serial No.72. There is no case that at the time of appointment of the petitioner as Headmistress on 20.06.2014, there was any other seniority list in force at variance from Ext.P4. The consequence of the finality of Ext.P8 seniority list in terms of Rule 38 Chapter XIVA KER was not considered in Ext.P18 order. This Court in _**Jayalekshmi v. State of Kerala 2024**_ _**(3) KLT 46**_ held that non-raising of objection to the W.P.(C) No.18279 of 2017 -: 5 :- seniority list amounts to waiver of rights. It is without considering the above that Ext.P18 held that the petitioner was not the senior most. In the circumstances, Ext.P18 order cannot be sustained. In the light of the above, fresh orders are liable to be passed on the Revision Petition. 8. It is brought to the notice of this Court that, pending the writ petition, the successor in office of the Manager has cancelled Ext.P10 order of reversion of the petitioner. At any rate, the issue regarding approval of promotion of the petitioner is to be considered in the Revision preferred by the petitioner before the Government. Resultantly, Ext.P18 order dated 23.05.2017 is quashed. The first respondent shall pass fresh orders on the revision petition with due notice to the fifth respondent Corporate Manager and the sixth respondent. W.P.(C) No.18279 of 2017 -: 6 :- It is clarified that the issue is left open for adjudication in the revision. Let the proceedings be taken to a logical conclusion within a period of four months from the date of receipt of a copy of this judgment. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF WP(C) 18279/2017** ## **PETITIONER EXHIBITS** |**Exhibit P26**|**TRUE**<br>**COPY**<br>**OF**<br>**THE**<br>**CIRCULAR**<br>**NO.**| |---|---| ||**11/H2/2016/G.EDN. DATED 16.11.2016 OF THE 1ST**| ||**RESPONDENT**| |**Exhibit P27**|**TRUE COPY OF THE ORDER DATED 1/6/2022 ISSUED**| ||**BY THE 5TH RESPONDENT**| |**Exhibit P28**|**TRUE COPY OF THE ORDER DATED 13/7/2022 OF THE**| ||**JOINT DIRECTOR (ACADEMIC) ATTACHED TO THE**| ||**OFFICE OF THE 2ND RESPONDENT**| |**Exhibit P29**|**TRUE COPY OF THE PROCEEDINGS DATED 22.5.2023**| ||**OF THE 5TH RESPONDENT**| |**Exhibit P30**|**TRUE COPY OF THE ORDER NO. 169/LSCM/2023**| ||**DATED 31/10/2023 ISSUED BY THE 5TH RESPONDENT**| |**EXHIBIT P6**|**TRUE COPY OF THE APPEAL FILED BY THE MANAGER**| ||**BEFORE THE 3RD RESPONDENT.**| |**EXHIBIT P7**|**TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT**| ||**DATED 10.11.204.**| |**EXHIBIT P8**|**TRUE COPY OF THE CIRCULAR DATED 13.06.2014 OF**| ||**THE 1ST RESPONDENT ALONG WITH ITS**| ||**CLARIFICATORY ORDER DATED 11.05.2015.**| |**EXHIBIT P9**|**TRUE COPY OF THE APPEAL DATED 23.12.2014**| ||**FILED BY THE MANAGER BEFORE THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT P10**|**TRUE COPY OF THE ORDER DATED 13.06.2017 OF**| ||**THE MANAGER OF THE SCHOOL.**| |**EXHIBIT P11**|**TRUE COPY OF THE ORDER DATED 22.07.2016 IN**| ||**W.P(C) NO. 24495/2016 OF THIS HON'BLE COURT.**| |**EXHIBIT P12**|**TRUE COPY OF THE ORDER DATED 19.05.2015 OF**| ||**THE 2ND RESPONDENT DPI.**| |**EXHIBIT P13**|**TRUE COPY OF THE PROCEEDINGS DATED 29.08.2016**| ||**OF THE 5TH RESPONDENT MANAGER.**| APPENDIX- **WP(C) 18279/2017** -2- |**EXHIBIT P3**|**TRUE COPY OF THE ORDER OF THE 5TH RESPONDENT**| |---|---| ||**DATED 02.06.2014.**| |**EXHIBIT P15**|**TRUE COPY OF THE JUDGMENT DATED 09.11.2016 IN**| ||**W.P.(C)NO. 24495/2016 OF THIS HON'BLE COURT.**| |**EXHIBIT P16**|**TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY**| ||**THE PETITIONER BEFORE THE UNDER SECRETARY TO**| ||**GOVERNMENT.**| |**EXHIBIT P17**|**TRUE COPY OF THE EXTENTION APPLICATION FILED**| ||**BY THE 1ST RESPONDENT BEFORE THIS HON'BLE**| ||**COURT IN W.P.(C)NO. 24495/2016.**| |**EXHIBIT P18**|**TRUE COPY OF THE ORDER DATED 23.05.2017 OF**| ||**THE 1ST RESPONDENT.**| |**EXHIBIT P19**|**TRUE COPY OF THE APPLICATION DATED 11-12-17**| ||**OF S.JAYAKUMAR AND ITS REPLY DATED 27-12-2017**| ||**GIVEN FROM THE OFFICE OF AEO NEDUMANGAD.**| |**EXHIBIT P20**|**TRUE COPY OF THE REPLY DATED 16-01-2018**| ||**ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT**| ||**UNDER RIGHT TO INFORMATION ACT.**| |**EXHIBIT P21**|**TRUE COPY OF THE ORDER DATED 27-06-2018 IN**| ||**APPEAL NO.AP 2067(1)/2017/SIC COMMISSION,**| ||**THIRUVANANTHAPURAM.**| |**EXHIBIT P14**|**TRUE COPY OF THE INFORMATION SUPPLIED BY THE**| ||**HEADMISTRESS, CONCORDIA LUTHERN U.P.SCHOOL,**| ||**PEROORKADA DATED 07.04.3017 WITH COPY OF THE**| ||**ATTENDANCE BOOK OF TEACHERS.**| |**EXHIBIT P1**|**TRUE COPY OF THE APPOINTMENT ORDER DATED**| ||**10.07.2006 ISSUED BY THE THEN MANAGER OF THE**| ||**SCHOOL.**| |**ECHIBIT P2**|**TRUE COPY OF THE ORDER DATED 04.11.2010 OF**| ||**THE 1ST RESPONDENT.**| |**EXHIBIT P4**|**TRUE COPY OF THE APPROVED SENIORITY LIST OF**| ||**THE SCHOOLS UNDER THE 5TH RESPONDENT.**| APPENDIX- **WP(C) 18279/2017** -3- ## **EXHIBIT P5** **TRUE COPY OF THE ORDER DATED 15.07.2014 OF THE 4TH RESPONDENT.** -----