Smitha B. v. State of Kerala and Others

``` WP(C) NO. 2963 OF 2021 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 2963 OF 2021`** ## **`PETITIONER:`** ``` SMITHA B., AGED 47 YEARS W/O.N.RADHAKRISHNAN, NOW WORKING AS HSA (SOCIAL STUDIES), VIM H.S.S., PALLASSANA, PALAKKAD, PIN - 678 505. BY ADV PAULSON THOMAS ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2THE DIRECTOR OF GENERAL EDUCATION GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, JAGATHY, THIRUVANANTHAPURAM, PIN - 695 005. 3DEPUTY DIRECTOR OF EDUCATION PALAKKAD, PIN - 678 001. 4DISTRICT EDUCATIONAL OFFICER PALAKKAD, PIN - 678 001. 5MANAGER, VIM H.S.S., PALLASSANA PALAKKAD, PIN - 678 505. 6PREETHA N. HSA (PHYSICAL SCIENCE), VIM H.S.S., PALLASSANA, PALAKKAD, PIN - 678 505. ``` ``` WP(C) NO. 2963 OF 2021 ``` ``` 2 ``` ``` BY ADVS. SRI.K.MOHANAKANNAN SRI.H.PRAVEEN (KOTTARAKARA) SMT.D.S.THUSHARA SRI.T.S.NEJIMUDDIN SMT.A.R.PRAVITHA SMT.T.V.NEEMA SMT.NISHA BOSE, SR.GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 2963 OF 2021 ``` ``` 3 ``` ## **P.V.KUNHIKRISHNAN, J** **--------------------------------------W.P.(C) No. 2963 of 2021** **-------------------------------------Dated this the 2[nd] day of March, 2023** ## **JUDGMENT** The above writ petition is filed with the following ## prayers : i. “issue a writ of certiorari quashing Ext.P12, P13 and P14 ii. declare that petitioner is entitled to reckon the approved service as HSA from 17.02.2014 to 04.08.2015 notionally on the basis of Ext.P9 judgment r/w P10 approval, for the purpose of seniority. iii. issue a consequential direction restraining the respondents from acting upon P14 revised seniority list prepared in pursuance to P12 order of the DD and direct to restore the seniority of the petitioner given by the DEO in pursuance to P9 judgment r/w P10 approval. iv. issue any other writ, order or direction as deemed fit by this Honourable Court.” [SIC] 2. The petitioner, Smt.Smitha. B, was originally appointed as UPSA in a leave vacancy from 01.06.1999 to 04.06.2002 in the 5[th] respondent’s School, who is, the ``` WP(C) NO. 2963 OF 2021 ``` ``` 4 ``` Manager of VIM H.S.S Pallasana’s school. Thereafter, she was shifted to a regular UPSA vacancy from 05.06.2002, and she continued as regular UPSA up to 30.06.2003, the date on which she was promoted as HSA against the leave vacancy of Smt. Anitha Kumari S. who went to New Zealand for a period of 5 years i.e. upto 11.01.2008. Thereafter, the petitioner was again appointed in the vacancy of Smt. Anitha Kumari from 12.01.2008 to 11.01.2013 on an extension of her leave period. Smt. Anitha Kumari, HSA, again sought an extension of leave from 12.01.2013 to 11.01.2018 for another five years, and therefore, the 5[th] respondent again appointed the petitioner in anticipation of sanction of leave in the said vacancy from 12.01.2013 to 11.01.2018 as HSA (Social Studies). Ext.P1 is the appointment order. But however, Smt. Anitha Kumari was not granted leave, and the Government declined her leave application as per Ext.P2 order. Thereafter, Smt.Anitha Kumari decided to re-join the school in 2014, and the Manager, in order to accommodate Smt. Anitha Kumari reverted the petitioner as UPSA w.e.f. 17.02.2014. Ext.P3 is the order reverting the petitioner as UPSA. However, Smt. Anitha Kumari went abroad after re-joining without continuing in the post and challenged the order of the ``` WP(C) NO. 2963 OF 2021 ``` ``` 5 ``` Government declining her application for leave before this Court. The petitioner challenged the actions of the 5[th] respondent reverting the petitioner as UPSA w.e.f. 17.02.2014. Both the writ petitions were heard together and disposed of by Ext.P4 judgment. This Court directed the 5[th] respondent to pass fresh orders in the matter of reversion of the petitioner to the post of UPSA by reviewing Ext.P3 order after perusing the order to be passed by the Government in the case of the petitioner in W.P.(C.) No. 4418 of 2014. Accordingly, the Government considered the issue in respect of Smt. Anitha Kumari's leave application and granted leave from 12.01.2013 to 11.01.2018. It is the submission of the petitioner that even after reverting the petitioner as per Ext.P3 order, the Manager did not appoint the petitioner as HSA. In spite of the fact that there was an undisputable regular vacancy of HSA available in the school, the Manager appointed a teacher junior to the petitioner, namely one Sri.Shaji, as HSA retaining the petitioner as UPSA despite the fact that the petitioner is a Rule 51 A claimant. Challenging the said action of the Manager, the petitioner again filed writ a petition before this Court as W.P.(C.) No. 38346/2015. It was allowed by this Court as per Ext.P6 judgment, wherein it was ``` WP(C) NO. 2963 OF 2021 ``` ``` 6 ``` directed to accommodate the petitioner as HSA w.e.f. 05.08.2015, that is, the date of occurrence of regular vacancy in the cadre of HSA and Sri. Shaji, who was given a promotion, was directed to be accommodated in the leave vacancy of Smt. Anitha Kumari from 28.01.2015. Ext.P6 judgment was implemented by the Manager by appointing the petitioner in the regular vacancy of HSA w.e.f. 05.08.2015, and the said appointment was approved, and the salary was also paid to the petitioner. Thereafter, the Manager reviewed the reversion order of the petitioner as per Ext.P7 and withdrew Ext.P3 order reverting the petitioner as UPSA and permitted the petitioner to continue as HSA till 12.01.2013 in the leave vacancy of Smt. Anitha Kumari. But the period from 17.02.2014 to 04.08.2015 i.e. the period of reversion, even though regularised for the purpose of reckoning that period as a period of service in the post of HSA, the 5[th ] respondent in Ext.P7 observed that the petitioner will be eligible only for salary of UPSA during that period. It is the case of the petitioner that the direction of this Court in Ext.P4 was to review Ext.P3 reversion so as to regularise the reverted period in the post of HSA. It is the case of the petitioner that even though the Manager has withdrawn the reversion order ``` WP(C) NO. 2963 OF 2021 ``` ``` 7 ``` and the Manager has also regularised the reverted period as HSA, the legal effect of Ext.P7 proceedings issued pursuant to Ext.P4 judgment is that the Manager cancelled Ext.P3 reversion and on such cancellation, the petitioner continues as HSA. It is the case of the petitioner that once the reversion is cancelled, the petitioner will be deemed to be HSA. In such circumstances, the petitioner challenged Ext.P7 proceedings of the Manager to the extent it restricts the payment of salary to the petitioner from 17.02.2014 to 04.08.2015 in the post of UPSA. This was considered by the DPI (Director of Public Instruction) as per the directions of this Court in W.P.(C.) No. 32044/2017. But DPI has rejected the claim as per Ext.P8. Challenging Ext.P8 order, the petitioner again filed W.P.(C.) No. 6325/2018 claiming regularisation of the service of the petitioner as HSA from 17.02.2014 to 04.08.2015 and to grant all service benefits to the petitioner in the post of HSA. It is the case of the petitioner that, as per Ext.P9, the said writ petition was substantially allowed by this Court. In Ext.P9 judgment, this Court found that the petitioner was illegally denied the right to continue as HSA during the reverted period. Therefore, it was directed that the period from 17.02.2014 to 04.08.2014 shall be counted as her ``` WP(C) NO. 2963 OF 2021 ``` ``` 8 ``` service as HSA, and no salary need to be paid to the petitioner. A further direction was given to the Manager to forward the proposal of the petitioner for approval for the period from 17.02.2014 to 04.08.2015 as HSA notionally. Therefore, it is submitted by the petitioner that except for granting salary of HSA during the above said period, it was directed to be counted for all service benefits. In pursuance to Ext.P9 judgment, the service of the petitioner from 17.02.2014 to 04.08.2015 was approved by the District Educational Officer, Palakkad, as per Ext.P10 order. It is also submitted by the petitioner that the service of the petitioner from 12.01.2013 to 16.01.2014 was already approved earlier as per the order of the DEO dated 14.11.2017. Therefore, the contention of the petitioner is that the petitioner has got continuous service in the post of HSA from 01.07.2003 onwards. In the light of Ext.P10 approval, it is submitted that the DEO, Palakkad approved the seniority list of the staff of the school in which the petitioner was assigned seniority taking into account her continuous service from 01.07.2003 in leave vacancies and from 05.08.2015 in the regular vacancies. 3. However, one Smt. Preetha N. HSA (Physical ``` WP(C) NO. 2963 OF 2021 ``` ``` 9 ``` Science) working in the same school w.e.f. 02.06.2004 objected the seniority list, and the DEO, Palakkad, rejected the objection and approved the seniority list assigning seniority to the petitioner as per Ext.P11 order. Against Ext.P11, Smt. Preetha N. filed an objection before the Deputy Director, Palakkad and the DD issued Ext.P12 order in which it is stated that Smt. Preetha N. is senior, and the petitioner was pushed down in the seniority list stating that the period during which the petitioner's service as HSA was regularised on a notional basis will not be counted as HSA service and, therefore, that period cannot be reckoned for seniority. In pursuance to Ext.P12, the seniority list was re-assigned, placing the 6[th] respondent, Smt.Preetha. N, above the petitioner. Ext.P13 is the proceedings of the District Educational Officer directing the Manager to recast the seniority list in terms of Ext.P12. On the basis of Ext.P13, the Manager has drawn a revised seniority list as per Ext.P12 placing Smt. Preetha N. as No.4 and the petitioner as No.5. Ext.P14 is the revised seniority list. However, the DEO has not approved Ext.P14 so far. Aggrieved by Ext.P12 order of the 3[rd] respondent, this writ petition is filed. 4. Heard the learned counsel for the petitioner, the ``` WP(C) NO. 2963 OF 2021 ``` ``` 10 ``` learned Government Pleader and the learned counsel appearing for the 6[th] respondent. 5. The counsel for the petitioner submitted that in the light of the dictum laid down by this Court in **Valsala Kumari Devi M.** v. **State of Kerala and Others** [2016 (2) KLT 163], Ext.P12 will not stand. But the Government Pleader and the counsel appearing for the 6[th] respondent supported the impugned orders. 6. This Court considered the contentions of the petitioner and the respondents. This Court, in **Valsala Kumari Devi's** case (supra), observed that notional service will also be treated for the purpose of seniority, treating the same as actual service rendered by the petitioner. It will be better to extract the relevant portions of **Valsala Kumari Devi's** case (supra) hereunder : “26. Taking into account the arguments advanced by the rival parties and the principles of law laid down in the above referred judgments, the point that is to be appreciated is whether the appointment of the petitioner notionally to the post of HSST with retrospective effect as per Ext. P7 can be treated as the service rendered by the petitioner enabling her to qualify as provided under Note (3) to R.6 of Chapter XXXII KER. On assimilation of facts and circumstances involved in this case and taking into account the principles of law laid down by the Apex Court and this Court, the service of the petitioner with effect from 01/08/2000 as Higher ``` WP(C) NO. 2963 OF 2021 ``` ``` 11 ``` Secondary School teacher are factors indicative to arrive at a conclusion that, the petitioner is entitled to secure all the service benefits from the said date including the seniority notionally fixed for counting service. I also take note of the fact that as per Ext. P6 judgment of a Division Bench of this Court, it was held that the petitioner is entitled to seniority with effect from 01/08/2000 and the statutory authorities were directed to reckon the seniority of the petitioner with effect from the said date. Going by the principles of law laid down by the Apex Court in the judgment cited above, merely because the appointment was notional in nature, the post to which the petitioner was appointed after replacing the incumbent in the office, with effect from 01/08/2000 is a permanent one. It is true that petitioner has not actually worked from 01/08/2000 but by legal fiction, petitioner was occupying the post of HSST with effect from an anterior date viz. 01/08/2000. Therefore, for all practical purposes, the said date will have to be adopted to reckon the service of the petitioner. In my view, the petitioner is thus entitled to get seniority with effect from the said date treating the same as actual service rendered by the petitioner. 27. I also take note of the fact that, even though under R.6(3) approved teaching experience of 12 years at Higher Secondary School level is prescribed, under Note (3) to the said rule, the qualification prescribed is only minimum service of six years and therefore when the petitioner is deemed to be in service from 01/08/2000, the same can be counted for reckoning 6 years minimum service. Moreover, Exts. P7 and P17 orders passed by the statutory authorities reckoning the seniority of the petitioner for all service benefits from the aforesaid date and upheld by Ext. P20 judgment have become final and conclusive. Viewed in any angle, I am of the considered opinion that the petitioner has qualifying minimum service of six years as provided under Note (3) to R.6 so as to enable her to be appointed as the ``` WP(C) NO. 2963 OF 2021 ``` ``` 12 ``` Principal of the 4th respondent's school. The other qualifications of the petitioner, prescribed thereunder is not in dispute.” 7. In the light of the above dictum laid down by this Court, I am of the considered opinion that Exts.P12 and P13 orders are to be reconsidered by the respondents. The relevant portion of Ext.P12, which leads to Exts.P13 and P14 are extracted hereunder: "മേല്‍ വിഷയം നേര്‍ക്കാഴ്ചാ വേളയില്‍ സമര്‍പ്പിച്ച രേഖകളുടെ അടിസ്ഥാനത്തില്‍ വിശദമായി പരിശശോധിച്ചു. ശ്രീമതി.എന്‍ പ്രീത, എച 02-06-2004 ച.എസ്.എ., (ഫിസിക്കല്‍ സയന്‍സ്) തസ്തികയില്‍ മുതല്‍ തുടര്‍ച്ചയായി ജോലിചെയ്തു വരുന്നതാണെ ന്നും സര്‍വ്വീസ് ബ്രേ്ക്കോ, റിവേര്‍ഷനോ ഇല്ല എന്നും ശ്രീമതി സ്മിത ബി. എചച.എസ്.എ. (സസോഷ്യല്‍ സയന്‍സ്) ആദ്യം യു.പി.എസ്.റ്റി.ആയും പിന്നീട് വിവിധ ഘട്ടങ്ങളിലായി ശ്രീമതി അനിതകുമാരി ടീച്ചര്‍ എടുത്ത ശൂന്യവേതനാവധി ഒഴിവില്‍ സേ വനമനുഷ്ടിക്ുയും ശ്രീമതി അനിതകുമാരി സേ വനത്തില്‍ പുന പ്രവേശിച്ചതിനെ തുടര്‍നന യു.പി.എസ്.റ്റി. ആയി റിവേര്‍ടട ചെയ്യപ്പെടുകയും പിന്നീട് 05-08-2015 മുതല്‍ ശ്രീമതി പുഷ്പലത എചച.എസ്.എ.ക പ്രധാനാധ്യാപികയായി സ്ഥാനക്കയറ്റം ലഭിച്ചതുമൂലം വന്ന ഒഴിവില്‍ എച ച.എസ്.എ. ആയി സ്ഥിരം നിയമനം ലഭിക്ുയും ചെയ്ത അധ്യാപികയാണ്. ശ്രീമതി അനിതകുമാരി സേ വനത്തില്‍ പുന പ്രവേശിച്ചതിനെ തുടര്‍നന ശ്രീമതി സ്മിത ബി.യെ യു.പി.എസ്.റ്റി ആയി റിവേര്‍ടട ചെയ്തു കാലയളവ് കേരള ഹൈ ക്കോടതിയുടെ ഡബല.പി.(സി) 6325/2018 ന്റെ 21-11-2018 ലെ വിധിന്യായ പ്രകാരം ശമ്പളാനുകൂല്യങ്ങള്‍ക അര്‍ഹതയില്ലാത്ത (നോഷണല്‍) സര്‍വീസായി കണക്കാക്കാന്‍ ഉത്തരവായിട്ടുള്ളതിനാല്‍ ടി കാലയളവ് എചച.എസ്.റ്റി (സസോഷ്യല്‍ സയന്‍സ്)- ന്റെ സേ വനകാലമായി പരിഗണിക്കുവാന്‍ കഴിയുകയില്ല. കെ.ഇ.ആര്‍. അധ്യായം 14 (എ) ചട്ടം 37 പ്രകാരം തുടര്‍ച്ചയായുള്ള സര്‍ വ്വീസാണ് സീനിയയോറിറ്റികക പരിഗണിക്കേണ്ടത്. ആയതിനാല്‍ എച ച.എസ്.റ്റി.(ഫിസിക്കല്‍ സയന്‍സ്) ആയ ശ്രീമതി പ്രീത.എന്‍.- ന്റെ സ്ഥിരം ഒഴിവിലെ 02-06-2004 മുതല്‍ക്കുള്ള സേ വനകാലം പരിഗണിചച 0101-2019 ലെ സീനിയയോറിറ്റി ലിസറ്റ ക്രമീകരിചച അംഗികരിച്ചു നല്‍കാന്‍ പാലക്കാട് ജില്ലാ വിദ്യാഭ്യാസ ഓഫീസര്‍കകു നിര്‍ദ്ദേശം നല്‍കി്ക്കൊണ ഇതിനാല്‍ ഉത്തരവാകുന്നു.” 8. Based on Ext.P12, Ext.P13 order was passed by the District Educational Officer and consequentlyExt.P14 revised seniority list was issued. In the light of the dictum laid down ``` WP(C) NO. 2963 OF 2021 ``` ``` 13 ``` by this Court in **Valsala Kumari Devi's** case (supra) I am of the considered opinion that Ext.P12 and, consequently, Exts.P13 and P14 are to be set aside, and the 3[rd] respondent has to reconsider the matter afresh, after giving an opportunity of hearing to the petitioner and respondent Nos. 5 and 6. Therefore, this writ petition is allowed in the following manner: - 1) Exts.P12, P13 and P14 are quashed. - 2) The 3[rd] respondent is directed to reconsider the matter after giving an opportunity of hearing to the petitioner and respondent Nos. 5 and 6, in the light of the principle laid down by this Court in **Valsala Kumari Devi M.** v. **State of Kerala and others** [2016 (2) KLT 163]. The above exercise shall be completed by the 3[rd] respondent as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** SKS ``` WP(C) NO. 2963 OF 2021 ``` ``` 14 ``` ## **`APPENDIX OF WP(C) 2963/2021`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER FROM 12/01/2013. ``` ``` EXHIBIT P2TRUE COPY OF THE ORDER REJECTING SMT.ANITHA KUMAR'S LEAVE APPLICATION NO.6113/M2/2013/G.EDN. DATED 25/11/2013. EXHIBIT P3TRUE COPY OF THE ORDER REVERTING THE PETITIONER AS UPSA DATED 17/02/2014. ``` - `EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WP(C) NO.5360/2014 DATED 06/09/2016.` - `EXHIBIT P5 TRUE COPY OF G.O.(RT) NO.675/2017/G.EDN. DATED 09/03/2017.` ``` EXHIBIT P6TRUE COPY OF THE JUDGMENT IN WP(C) NO.38346/2015 DATED 08/09/2016. ``` ``` EXHIBIT P7TRUE COPY OF PROCEEDINGS OF THE MANAGER. EXHIBIT P8TRUE COPY OF THE ORDER OF THE DPI NO.EM(1)/66858/2017/DPI/K.DIS. DATED 27/12/2017. EXHIBIT P9TRUE COPY OF THE JUDGMENT IN WP(C) NO.6325/2018 DATED 21/11/2018. EXHIBIT P10TRUE COPY OF THE ORDER OF THE DEO NO.K.DIS.B2/1619/2018 DATED 26/02/2019. EXHIBIT P11TRUE COPY OF THE ORDER OF THE DEO, PALAKKAD NO.K.DIS.B2/6218/19 DATED 16/03/2020. EXHIBIT P12TRUE COPY OF THE ORDER OF THE DD NO.K.DIS.B4/7389/2020 DATED 02/11/2020. ``` ``` WP(C) NO. 2963 OF 2021 ``` ``` 15 ``` |`EXHIBIT P13`|`TRUE COPY OF THE PROCEEDINGS OF THE DEO`| |---|---| ||`DIRECTING THE MANAGER TO RECAST THE`| ||`SENIORITY LIST IN TERMS OF P12`| ||`NO.K.DIS.B2/3154/2020 DATED 08/01/2021.`| |`EXHIBIT P14`|`TRUE COPY OF THE RELEVANT PART OF THE`| ||`REVISED SENIORITY LIST SUBMITTED FOR`| ||`APPROVAL BEFORE THE DEO BY THE MANAGER.`| |`Exhibit P15`|`TRUE COPY OF THE SENIORITY LIST`| ||`PREVAILING AS ON 1/1/2014`|