Smt. Juby K. Thoppil & Sri. Binoy P. Eapen v. Director of Public Instructions, Thiruvananthapuram; District Educational Officer, Kottayam; Corporate Manager, CSI Schools (CSI Diocese of Madhya Kerala), Kottayam; Benoy P. Eapen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933** **WP(C).No. 16389 of 2006(A)** **-------------------------** **PETITIONER:** - **-------------------** **JUBY. K. THOPPIL, U.P.S.A., C.M.S. HIGH SCHOOL, MUNDIYAPPALLY, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI. KRB.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL** **RESPONDENTS:** - **-----------------------** **1. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **2. DISTRICT EDUCATIONAL OFFICER, KOTTAYAM.** **3. CORPORATE MANAGER,** - **C.S.I. SCHOOLS, C.S.I. DIOCESE OF MADHYA KERALA, CATHEDRAL ROAD, KOTTAYAM.** ## **4. BENOY. P. EAPEN,** - **H.S.A. (MATHEMATICS), C.M.S. COLLEGE HIGHER SECONDARY SCHOOL, KOTTAYAM.** **R1 & R2 – BY GOVERNMENT PLEADER SRI. BIJOY CHANDRAN. R3 - ADV. SRI.BABU VARGHESE** **R4- ADV. SRI.S.SUBASH CHAND.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2011, ALONG WITH WPC NO. 20692 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SCL.** ## **WP(C).No. 16389 of 2006(A)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: TRUE COPY OF THE APPOINTMENT ORDER DATED 12.7.2000 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **P2: TRUE COPY OF THE APPOINTMENT ORDER DATED 18.9.2001 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **P3: TRUE COPY OF THE APPOINTMENT ORDER DATED 26.6.2001 ISSUED BY THE THIRD RESPONDENT TO THE 4TH RESPONDENT.** - **P4: TRUE COPY OF THE ORDER NO.1155/A/05 DATED 13/10/2005 ISSUED BY THE THIRD RESPONDENT.** - **P5: TRUE COPY OF THE ORDER NO.B6-14471/05/K.DIS DATED 27/12/2005 ISSUED BY THE 2ND RESPONDENT.** - **P6: TRUE COPY OF THE PETITION DATED 17.2.2006 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **P7: TRUE COPY OF THE ORDER NO.B6.890/06.L.DIS DATED 8.3.2006 ISSUED BY THE 2ND RESPONDENT.** - **P8: TRUE COPY OF THE ORDER NO.266/06 DATED 23.3.2006 ISSUED BY THE 3RD RESPONDENT.** - **P9: TRUE COPY OF THE REPRESENTATION DATED NIL/4/206 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** ## **RESPONDENTS' EXHIBITS:** - **R4(A): TRUE COPY OF THE APPOINTMENT ORDER AS HSA (MATHS) DATED 26/6/2001 ISSUED BY THE 3RD RESPONDENT.** - **R4(B): TRUE COPY OF THE ORDER DATED 12/7/2004 THUS ISSUED BY THE 3RD RESPONDENT.** - **R4(C): TRUE COPY OF THE ORDER DATED 29/1/2005 IN WP(C) NO.33206/2005.** - **R4(D): TRUE COPY OF THE JUDGMENT DATED 29/11/2005 IN WP(C) NO.33206/2005.** - **R4(E): TRUE COPY OF THE HALL TICKET BEARING REG. NO.5915.** ## **//TRUE COPY//** ## **PA TO JUDGE** ## **SCL.** S.SIRI JAGAN, J. ================== W.P.(C).Nos.16389/2006 & 20692/2007 ================== Dated this the 13[rd] day of October, 2011 **==> picture [103 x 14] intentionally omitted <==** In these two writ petitions the petitioners are two teachers of a Corporate Educational Agency, running several aided schools, competing for accommodation in a regular vacancy, which arose on 30.4.2001, in one of the schools of the Educational Agency. The petitioner in W.P.(C).No.16389/2006 is Smt.Juby.K.Thoppil (hereinafter referred as Smt.Juby) and the petitioner in W.P.(C).No. 20692/2007 is Sri.Binoy.P.Eapen (hereinafter referred to as Sri.Binoy). [I shall refer to the Exhibits as obtaining in W.P.(C).No. 20692/2007 for convenience]. Sri.Binoy entered service as a UPSA on 8.6.1998. Smt.Juby was appointed as an H.S.A. (Mathematics) in a leave vacancy for the period from 12.7.2000 to 28.9.2000, which appointment was duly approved by the educational authority, consequent to which, she became a preferential claimant under Rule 51A of Chapter XIVA of the Kerala Education Rules, for future vacancies of H.S.A. (Maths) in the schools under the educational agency. While so, several vacancies of H.S.A. (Maths) arose in the schools, one of which was a regular vacancy, which arose on 30.4.2001 on the promotion of the incumbent as Headmaster. Vacancies other than the one which arose on 30.4.2001 were filled up w.p.c.16389/06 & cc -: 2 :- by senior hands, in respect of which, the petitioners in these writ petitions do not have any grievance. Smt.Juby was the person eligible to be appointed to the vacancy which arose on 30.4.2001. But she was appointed in a leave vacancy for the period from 11.6.2001 to 17.9.2001, which appointment was later approved. As on 30.4.2001, Sri.Binoy had not obtained B.Ed. degree although he had appeared for the examination, the results of which were declared only on 21.6.2001. The manager of the schools of the Educational Agency appointed Sri.Binoy in the vacancy, which arose on 30.4.2001, on 26.6.2001, by Ext.P1 order, which appointment was also approved by the educational authorities. While so, by Ext.P3 order dated 18.9.2001, Smt.Juby was appointed in another leave vacancy for the period from 18.9.2001 to 19.7.2006, which appointment was approved for the periods from 18.9.2001 to 31.3.2002 and from 5.6.2002 to 19.7.2006. While so, consequent to reduction in staff strength of H.S.A.(Maths) Sri.Binoy was retrenched from service by the manager as the juniormost H.S.A. (Maths) under the educational agency, by Ext.P5 order dated 13.10.2005. Sri.Binoy challenged his reversion before the District Educational Officer, Kottayam. Alleging delay in consideration of the same, Sri.Binoy filed W.P.(C).No. 33206/2005, in which, this Court issued Ext.P6 interim direction on 29.11.2005 directing the DEO to consider the same and pass orders. Pursuant thereto, the DEO w.p.c.16389/06 & cc -: 3 :- passed Ext.P8 order upholding the claim of Sri.Binoy on the ground that he was holding a regular post and Smt.Juby was only a leave substitute. In view of Ext.P8, by Ext.P7 judgment, this Court disposed of W.P.(C).No.33206/2005. Since the manager did not implement Ext.P8 order, Sri.Binoy again approached this Court by filing W.P.(C). No.753/2006, in which, by Ext.P9 interim order dated 11.1.2006, this Court directed the DEO to pass consequential orders releasing salary to Sri.Binoy. DEO passed Ext.P10 order dated 10.7.2006 adjusting lien of Sri.Binoy in a leave vacancy and directing the manager to recover salary paid to Smt.Juby for the period from 14.10.2005 to 11.1.2006, which was complied with by Manager by issuing Ext.P11 order dated 23.3.2006 directing Smt.Juby to refund the salary. In the meanwhile, on 17.2.2006, Smt.Juby filed Ext.P12 revision petition [which is the same as Ext.P6 in W.P.(C).No.16389/2006] before the Director of Public Instruction under Rule 8A of Chapter XIVA of the Kerala Education Rules seeking to set aside the appointment of Sri.Binoy on 26.6.2001, contending that as a Rule 51A claimant, Smt.Juby was entitled to be appointed to the vacancy which arose on 30.4.2001 especially since Sri.Binoy did not possess the qualification of B.Ed. on the date of occurrence of the vacancy he having passed B.Ed. only on 21.6.2001. On receipt of Ext.P11 direction [which is the same as Ext.P8 in W.P.(C).No. 16389/2006], Smt.Juby filed W.P.(C). w.p.c.16389/06 & cc -: 4 :- No.16389/2006 seeking the following reliefs: - “i) a writ of mandamus to the 1[st] Respondent to take up and issue orders on Ext.P6. - ii) a writ of mandamus to respondents 1 and 2 to direct the 3[rd] respondent to appoint the petitioner as H.S.A. (Maths) in the regular promotion vacancy with effect from 11-6-2001 (in the place of the 4[th] respondent) and to accommodate her as H.S.A (Maths) in the leave vacancy from 14-10-2005 to 19.7.2006, and to grant all consequential benefits including arrears of salary in the scale of H.S.A. - iii) a writ of certiorari quashing/setting aside the direction in Ext.P8 to refund the salary paid to the petitioner for the period from 14-10-2005 to 11-1-2006. - iv) a writ of of mandamus to the 2[nd] respondent to take up and pass orders on Ext.P9.” While that writ petition was pending, the Director of Public Instruction passed Ext.P14 order dated 31.1.2007 on Ext.P12 revision petition filed by Smt.Juby, setting aside Ext.P1 order, holding that Sri.Binoy obtained B.Ed. qualification only on 21.6.2001 and Smt.Juby ought to have been appointed in the vacancy which arose on 30.4.2001, instead of Sri.Binoy. The DEO was directed to pass consequential orders. Sri.Binoy filed Ext.P15 revision petition before the Government. Pursuant to Ext.P16 judgment in W.P.(C).No. 6044/2007, the Government passed Ext.P17 order dated 5.5.2007, upholding Ext.P14 order directing as follows: “Considering all the facts and circumstances stated above Government are pleased to order that the appointment of Smt. Juby K. Thopil as H.S.A (Maths) be approved from 11/6/01 onwards and her service from 12/1/06 to 5/6/06 in the C.M.S. High School, Mundakayam and from 5/6/06 onwards as H.S.A (Maths) be approved notionally and she is given salary in the cadre of UPSA for the period in which she had worked as UPSA. She will be given appointment as H.S.A immediately if she had not been given so far.” w.p.c.16389/06 & cc -: 5 :- Challenging Exts.P14 and Ext.P17 orders, Sri.Binoy has filed W.P.(C). ## No. 20692/2007 seeking the following reliefs: - “i) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P17 order issued by respondent No.1 - ii) To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P14 order issued by respondent No.2. - iii) To issue a declaration that Ext.P14 and P17 orders are issued contrary to the principle of law contained in Rule 51 Chapter XIVA KER and vitiated by violation of principles of natural justice rendering the same liable to be set aside by this Hon'ble Court;” 2. The main contention raised by the counsel for Sri.Binoy is that of delay and laches. He submits that the appointment of Sri.Binoy by Ext.P1 order was approved as early as in 2001 and Ext.P12 revision petition filed by Smt.Juby in 2006 suffers form the vice of delay and laches. According to him, although no limitation is prescribed in Rule 8A of Chapter XIVA of the KER, it is settled law that a revision under that Rule has to be filed within a reasonable time. According to him, this Court has in various decisions held that 90 days should be taken as a reasonable time for filing such revisions and therefore Ext.P12 revision petition filed in 2006 clearly suffers the vice of from delay and laches, for which reason, the impugned orders should be set aside. He relies on a decision of mine in W.P.(C).No.9446/2006, which was upheld by the Division Bench of this Court in W.A.No.595/2008 in support of his contention regarding delay and laches. He also contends w.p.c.16389/06 & cc -: 6 :- that Ext.P14 order suffers from the vice of violation of principles of natural justice as well. He points out that Ext.P12 revision was posted for hearing on 2.8.2006 and one Smt.J.Beena, Addl. D.P.I. heard the matter and when it was pointed out that two writ petitions are pending on the subject matter, the hearing was adjourned _sine die_ . But without any further hearing and that too, after more than six months, another officer by name Smt.V.Damayanthi, passed Ext.P14 order on 31.1.2007, which amounts to violation of principles of natural justice. Sri.Binoy would therefore seek to quash Exts.P14 and P17 orders on those grounds. 3. The counsel for Smt.Juby would contend that the question of delay and laches in filing Ext.P12 revision has to be considered in the light of the date of knowledge of the facts by Smt.Juby. According to him, the educational agency was having several schools. Smt.Juby was not aware of the vacancies available and the appointments made. She and Sri.Binoy were not appointed in the same school. No seniority list was published by the manager as per rules. She was appointed in a leave vacancy on 11.6.2001. She was not aware of the appointment of Sri.Binoy and the fact that he was appointed in a regular vacancy to which she was the rightful claimant. Further she knew about the fact that Sri.Binoy did not possess B.Ed. degree as on the date of occurrence of vacancy only after the DEO passed Ext.P10 order, w.p.c.16389/06 & cc -: 7 :- immediately after which she filed Ext.P12 revision and therefore she cannot be deprived of her rightful claim on the ground of delay and laches. Counsel relies on a Single Bench decision of this Court in _**Hazil Ivy Padua v. State of Kerala**_ , 1991 (2) KLT 474, wherein under very similar circumstances this Court held that a revision under Rule 8A after 3 years of appointment does not suffer from delay and laches, since the revision petitioner was not aware of the facts leading to the denial of her rightful claim for preferential appointment. Smt.Juby contends that since Sri.Binoy's B.Ed. results were published only on 21.6.2001, he acquired the requisite qualifications for appointment as H.S.A. (Maths) on that date only and therefore as on the date of occurrence of vacancy on 30.4.2001, he did not possess the requisite qualification. Even otherwise, as a Rule 51A claimant Smt.Juby was the rightful candidate to be appointed to the vacancy, which arose on 30.4.2001, is her contention. She relies on the decision of the Supreme Court in _**Janany v. Rajeevan**_ , 2010 (2) KLT 630 (SC), in support of her contention that the date of acquisition of qualification is the date of declaration of results and promotion under Rule 43 should be made from persons possessing the required qualification as on the date of occurrence of vacancy. With respect to the contention regarding want of hearing by the DPI, she contends that in institutional decisions it is not necessary that the person who heard should decide, w.p.c.16389/06 & cc -: 8 :- if arguments of both sides are available in the file. 4. Sri.Binoy contends that the explanation for the delay cannot be accepted since in Ext.P12 revision petition, Smt.Juby had not offered these explanations and the same cannot be pressed into service now to explain the delay. According to him, whether she had knowledge about his appointment and qualifications are matters within her exclusive knowledge, which she should have pleaded and proved before the DPI and having not done the same, she cannot now contend that she knew about those facts only in 2006. 5. I have bestowed anxious consideration to the arguments on both sides. I had disposed of W.P.(C).No.753/2006 on 3.10.2011, without prejudice to the right of Sri.Binoy to prosecute W.P.(C).No. 20692/2007 on all the grounds raised in W.P.(C).No.753/2006. 6. At the outset I make it clear that after five writ petitions on the same issue, and six years of the start of the litigation between the parties, I am not inclined to remand the matter to the DPI for fresh consideration on the ground of violation of the principles of natural justice. Even if the contention of Sri.Binoy is true, since he had ample opportunity for putting forward all his contentions in full before the Government and this Court, he is not now prejudiced by the situation and in order to avoid multiplicity of litigation and to give a quietus to the issue, I am inclined to decide the issue on merits in these writ w.p.c.16389/06 & cc -: 9 :- petitions themselves, after considering the contentions of the parties on merits. 7. Before me, Sri.Binoy does not seriously dispute the fact that as on 30.4.2011, when the vacancy arose Smt.Juby was the rightful claimant to the vacancy, although he had raised a contention that the date of acquisition of qualification is the last date of examination, which was prior to 30.4.2001. He cannot also dispute the same. Admittedly, the results of his B.Ed. examination were declared only in June 2001. Therefore, as on the date of occurrence of vacancy on 30.4.2001, he did not have the requisite qualification, insofar as the date of acquisition of qualification is the date of declaration of results, which is 21.6.2001. It was also clear that as on the date of occurrence of vacancy, namely 30.4.2001, the claim of Smt.Juby for appointment to the said vacancy under Rule 51A in preference to the claim of Sri.Binoy under Rule 43 was very much alive and current. Therefore, as between the two, the Manager ought to have appointed Smt.Juby, which fact is beyond the scope of any dispute. Then the only other question to be decided is whether Smt.Juby should be deprived of her rightful claim on the ground of delay and laches. Neither in Ext.P14 nor in Ext.P17 is there any indication that Sri.Binoy had raised a contention on delay and laches either before the DPI or the Government. In fact in Ext.P15 revision w.p.c.16389/06 & cc -: 10 :- petition filed by Sri.Binoy before the Government there is no whisper about any contention regarding delay and laches. Therefore when Sri.Binoy accuses Smt.Juby of failure to explain the delay in Ext.P12 revision petition, he conveniently forgets that he also failed to raise the contention of delay and laches either before the DPI or before the Government. 8. Apart from that I am not satisfied that there is any delay and laches on the part of Smt.Juby in filing Ext.P12 revision petition. I am of opinion that the question of delay and laches should be considered with reference to the date when she became aware of the overlooking of her claim for preferential appointment vis-a-vis Sri.Binoy. The educational agency has several schools. A teacher, that too, one who was not in service at the time of occurrence of vacancy, cannot be expected to keep track of the vacancies that may arise and the appointments made to those vacancies by the Manager. It is for the Manager to keep track of the claims and to appoint the rightful claimant. Smt.Juby was in fact appointed on 11.6.2001 and Sri.Binoy was appointed only on 26.6.2001. Smt.Juby was appointed in C.M.S. High School, Olassa, whereas Sri.Binoy was appointed in C.M.S. High School, Thalavady. Smt.Juby continued to work without interruption thereafter. When there was a fall in divisions, it was Sri.Binoy who was retrenched. So she had no occasion to know that w.p.c.16389/06 & cc -: 11 :- Sri.Binoy was appointed to a regular vacancy overlooking her better claim until the DEO passed Ext.P8 order on 27.12.05. Smt.Juby filed Ext.P12 revision on 17.2.2006. In the circumstances, it cannot be said that Smt.Juby is guilty of any delay and laches. She filed the revision within a reasonable time after she was made aware of the real facts relating to the issue. As rightly pointed out by the counsel for Smt.Juby, the ratio of the decision in _**Hazil Ivy Padua's**_ case (supra) is squarely applicable to her case insofar as the facts of the case are similar. On the other hand, in the judgments in W.P.(C) No.9446/2006 and W.A.No.595/2008, there is a specific finding that the respondent was aware of the facts leading to the case, despite which she did not choose to agitate her claim within a reasonable period. That being so, that decision is clearly distinguishable on facts. In view of the above findings, Smt.Juby is entitled to succeed in these writ petitions. Accordingly, W.P.(C) No.20692/2007 filed by Sri. Binoy P. Eapen is dismissed. Consequently Smt.Juby is entitled to all consequential benefits flowing from Exts.P14 and P17 orders, which shall be implemented by the District Educational Officer, Kottayam, within one month from the date of receipt of a copy of this judgment. The Manager of the school shall also pass orders within two weeks from the receipt of the orders of the DEO in that regard. In view of the above directions, no further orders are necessary in W.P.(C) w.p.c.16389/06 & cc -: 12 :- No.16389/2006. However, it is directed that since Ext.P8 order in W.P.(C) No.16389/2006 is an order consequential to Ext.P5 order [Ext.P8 in W.P.(C)No.20692/2007], which has been set aside by Exts.P14 and P17 orders in W.P.(C)No.20692/2007, the same shall not now be implemented. W.P.(C)No.16389/2006 is disposed of with the above direction. Interlocutory applications stand closed. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge