Soumini G. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 20TH DAY OF OCTOBER 2017/28TH ASWINA, 1939** ## **WP(C).No. 8640 of 2008 (C)** **---------------------------** **PETITIONER(S):** **--------------------------** **SOUMINI. G., KRISHNAPRIYA, MINALOOR, ATHANI POST, THRISSUR DISTRICT.** **BY ADVS.SRI.P.BHASKARAN, SRI.P.RAMAKRISHNAN.** - **RESPONDENT(S): --------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR.** **4. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT.** **5. THE MANAGER, SRI NARAYANA TEACHERS TRAINING INSTITUTE, CHERUTHURUTHY P.O., THRISSUR DISTRICT.** - **R1 TO R4 BY GOVT. PLEADER SMT.PRIYA SHANAVAS. R5 BY ADV. SRI.P.C.SASIDHARAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-10-2017, ALONG WITH WP(C).NO.28764 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** - rs. ## **WP(C).No. 8640 of 2008 (C)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** |**EXT.P1**|**TRUE COPY OF THE ORDER DATED 20-10-2000 BY WHICH THE**| |---|---| ||**PETITIONER WAS DISMISSED FROM SERVICE.**| |**EXT.P2**|**TRUE COPY OF THE JUDGMENT IN C.C.NO.87/97 OF THE JFCM**| ||**COURT, WADAKANCHERY.**| |**EXT.P3**|**TRUE COPY OF THE JUDGMENT IN CC.NO.234/97 OF THE JFCM**| ||**COURT, WADAKANCHERY.**| |**EXT.P4**|**TRUE COPY OF THE ORDER DATED 18-05-2000 IN CRL.M.P.820/2000**| ||**IN CRL.A.477/99 OF THE SESSIONS COURT, THRISSUR.**| |**EXT.P5**|**TRUE COPY OF THE ORDER DATED 18-05-2000 IN CRL.M.P.818/2000**| ||**IN CRL. A.479/99 OF THE SESSIONS COURT, THRISSUR.**| |**EXT.P6**|**TRUE COPY OF THE ORDER DATED 22-06-2001 ISSUED BY THE**| ||**IST RESPONDENT DIRECTING TO REINSTATE THE PETITIONER**| ||**IN SERVICE.**| |**EXT.P7**|**TRUE COPY OF THE JUDGMENT IN CRL.A.NO.479/99**| ||**DATED 29-03-2003 OF THE SESSIONS COURT, THRISSUR.**| |**EXT.P8**|**TRUE COPY OF THE ORDER IN CRL.RP NO. 1007/2003**| ||**DATED 12-11-2004 OF THE HIGH COURT OF KERALA.**| |**EXT.P9**|**TRUE COPY OF THE REPRESENTATION DATED 21-02-2005**| ||**SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.**| |**EXT.P10**|**TRUE COPY OF THE REPRESENTATION DATED 21-02-2005**| ||**SUBMITTED BEFORE THE IST AND 2ND RESPONDENTS.**| |**EXT.P11**|**TRUE COPY OF THE COMMUNICATION ISSUED BY THE**| ||**IST RESPONDENT TO THE 3RD RESPONDENT DATED 29-03-2005.**| |**EXT.P12**|**TRUE COPY OF THE REPRESENTATION DATED 28-04-2005**| ||**SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.**| |**EXT.P13**|**TRUE COPY OF THE COMMUNICATION DATED 05-05-2005**| ||**ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.**| |**EXT.P14**|**REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE**| ||**THE 3RD RESPONDENT SEEKING REINSTATEMENT IN SERVICE.**| |**EXT.P15**|**TRUE COPY OF THE JUDGMENT IN WP(C) NO. 17332/2005**| ||**DATED 23.11.2006 OF THE HONOURABLE HIGH COURT.**| **....2/-** ## **WP(C).No. 8640 of 2008 (C)** **EXT.P16 TRUE COPY OF THE REQUEST DATED 20.03.2007 SUBMITTED TO THE 5TH RESPONDENT BY THE PETITIONER. EXT.P17 TRUE COPY OF THE COMMUNICATION DATED 26.04.2007 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT. EXT.P18 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER DATED 18/04/2007. EXT.P19 TRUE COPY OF THE REPRESENTATION DATED 18/06/2007 SUBMITTED BY THE PETITIONER. EXT.P20 TRUE COPY OF THE ORDER DATED 05/11/2007 ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT.** **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **A.MUHAMED MUSTAQUE, J.** _*****************************************************************************_ W.P.(C) Nos.8640/2008 & 28764/2009 _******************************************************************************_ Dated this the 20[th] day of October, 2017 ## JUDGMENT Both the writ petitions concern reinstatement of Smt.Soumini in service of the training Institute. The Manager filed W.P.(C) No.28764 of 2009 challenging Ext.P9 order of the Government and Ext.P7 order of the Deputy Director of Education, Thrissur ordering reinstatement of Smt.Soumini into service. The prayer of Smt.Soumini is to implement the order of the Deputy Director of Education. The Manager refused to implement the orders on two grounds. The first ground is that Smt.Soumini was dismissed from the service and without there being an order interfering with dismissal, Smt.Soumini cannot be reinstated. The second ground is that the Manager made an appointment in the vacancy of Smt.Soumini upon the dismissal and therefore, there are no vacancies to accommodate Smt.Soumini. Perhaps, the brief narration of history of the facts would be sufficed in this matter as this Court is concerned only about the validity of the orders now passed. Smt.Soumini was proceeded in a criminal offence. She was convicted by the trial court and the same was upheld by the W.P.(C) Nos.8640/2008 & 28764/2009 2 Appellate Court. In revision, she was acquitted. Taking note of the conviction, the Manager dismissed her from service. However, the admitted position that the Manager had not obtained approval in terms of Chapter XIVA of Rule 74 of the Kerala Education Rules from the District Educational Officer. There were intervening orders passed by the Deputy Director of Education to reinstate Smt.Soumini. One of such order was passed immediately following the stay of the operation of the order of conviction passed by the trial court. In fact, the Manager questions the authority of the Deputy Director of Education stating that he has no such power to interfere with the matter as he is not a competent authority. Anyhow, these are all matters are not now germane for consideration for the reason that this Court does not consider the dismissal was valid for the simple reason that the Manager had not obtained permission of the District Educational Officer in terms of Chapter XIVA of Rule 74 of the KER. Therefore, even without there being a challenge against the dismissal, it can be held that dismissal without approval cannot be given any legal effect. W.P.(C) Nos.8640/2008 & 28764/2009 3 2. However, what looms large in this matter is that the Manager had appointed Sri.Unni K.P as per the appointment order dated 10.1.2001, who was holding the post of LPSA in the vacancy created by Smt.Soumini. That was given approval. The consequent vacancy of Sri.Unni K.P. was also filled up. This approval was given without reference to any claim of that could have been made by Smt.Soumini in the future. In such circumstances, that appointee cannot be thrown out from the service. Consciously when such approval was given, such appointment has to be protected. Therefore, the only question now arises in what manner the order now passed by the authorities has to be implemented. 3. Smt.Sowmini has filed W.P.(C) No.8640 of 2008 for implementing Ext.P20 order of the Deputy Director of Education to reinstating her. 4. Chapter XIVA of Rule 91 of the KER provides as follows: “When a teacher who has been dismissed, removed, retired compulsorily or suspended is reinstated in service or would have been reinstated but for his retirement can superannuation while under W.P.(C) Nos.8640/2008 & 28764/2009 4 suspension, rules for the time being in force relating to Government servants in the matter shall mutatis mutandis apply.” ## 5. In **E.J.Abraham v. Manager, Chungathara School** ## **[1974 KLT SN 52]** it was held by this Court as follows: “If there are specific provision incorporated in the KER, that matters are not mentioned in the KER would be governed by the Kerala Service Rules, certainly, in view of Rule 91, such provisions of KSR would be followed.” 6. Chapter VII of Part 1 of the Kerala Service Rules(KSR) is related to dismissal, removal and suspension. Therefore, it is clear that Chapter VII of Part I KSR would equally apply in so far as the matters covered by Rule 91 of Chapter XIV A of the KER. It is appropriate in this context to refer Rule 56B, Note 4 of Chapter VII of Part I KSR, it reads as follows: “A permanent post vacated by the dismissal, removal, compulsory retirement or reduction of a Government Servants to a lower service, grade or post or to a lower time-scale should not be filled substantively until the expiry of the period of one year from the date of such dismissal, removal, compulsory retirement or reduction, as the case may be. Where on the expiry of the period of one year, the permanent post is filled and W.P.(C) Nos.8640/2008 & 28764/2009 5 the original incumbent of the post is reinstated thereafter, he should be accommodated against any post which may be substantively vacant in the grade to which his previous substantive post belonged. If there is no such vacant post, he should be accommodated against a supernumerary post which should be created in this grade with proper sanction and with the stipulation that it would be terminated on the occurrence of the first substantive vacancy in that grade.” 7. In the light of Note-4 as above, if the substantive vacancy now being manned by a valid appointment, Smt.Soumini can be reinstated in a supernumerary post to be created. The Manager's case is that there is no other vacancy. Therefore, the order of the Deputy Director of Education, which has been affirmed by the Government can be implemented only by way of creating a supernumerary post by accommodating Smt.Soumini. It is to be noted that Sri.Unni K.P. and the teacher appointed in the vacancy of Sri.Unni K.P. will be displaced if the order is given effect without creating a supernumerary post to accommodate Smt.Soumini. They were continuing for last more than 17 years. The approval was given by the Department without any reservation as to the claim of Smt.Soumini. In such W.P.(C) Nos.8640/2008 & 28764/2009 6 circumstances, the only possible way to accommodate Smt.Soumini is by creating a supernumerary post. Thus, both the writ petitions are disposed of by the following directions: i. The decision of the Deputy Director Education to reinstate Smt.Soumini which was affirmed by the Government shall be implemented by creating a supernumerary post. ii. Needful shall be done by the Government to implement the order of reinstatement by creating a supernumerary post within a period of two months from the date of receipt of a copy of this judgment. iii. The claim for the service benefit of Smt.Soumini is left open. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ln