High Court of KeralaDivision BenchOriginal Petition dismissed; No costs.

Soumya M.R. and Others v. State of Kerala and Others

Case / Petition Number:OP(KAT)85/2018
Neutral Citation:/

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • V. Chitambaresh
  • T. V. Anil Kumar
Judgment Date
2018-11-22
Court Decision / Holding
The Original Petition is dismissed. No costs.
Final Disposition
Original Petition dismissed; No costs.

Parties to the Case

Appellants / Petitioners

  • Soumya M.R.
  • Dhanya R.S.
  • Sini P.V.
  • Rali P.R.
  • Johnson E.V.
  • Sheema M.
  • Avinash P.

Respondents

  • State of Kerala
  • Director of Public Instructions
  • Deputy Director of Education, Kalpetta
  • Kerala Public Service Commission
  • District Officer, Kerala Public Service Commission
  • Shijimole P.R.
  • Smitha Cherumanalil
  • Sajitha Kumari N.K.
  • Laha Sunnia P.

Legal Representation & Advocates

Counsels for Petitioners

  • • Sumathy Dandapani (Sr.)
  • • Millu Dandapani

Counsels for Respondents

  • • K.R. Deepa, Sr. GP for R1 & R2
  • • P. Ravindran (Sr.) and O.D. Sivadas for R6–R9

Case Synopsis & Summary

The Original Petition concerns the appointment of High School Assistant (Malayalam) in Government Schools within the Wayanad educational district. The petitioners claim that vacancies existing as of 17 July 2015 must be reported to the Kerala Public Service Commission (PSC) and filled from the then-live ranked list, despite belated Staff Fixation Orders issued in 2016. Interim orders in OA 642/2015 directed the reporting of 17 vacancies to the PSC by 17 July 2015; seven vacancies were already reported, and ten more were provisionally reported in time in obedience to the interim order. The petitioners, who were in the succeeding ranked list published on 11 April 2017, stake a claim to the ten vacancies. The bone of contention is whether the Staff Fixation Orders for 2015-16 can take effect from 15 July 2015 or only prospectively, given the pendency of writ petitions and the applicable Kerala Education Rules (KER), Rule 12(6). The respondents contend belated fixation orders cannot operate retroactively. The court reasons that Rule 12(6) is to be read as directory and that belated fixation orders should take effect from 15 July 2015, in light of the intervening litigation and the equity maxim actus curiae neminem gravabit, along with lex non cogit ad impossibilia. It relies on Raj Kumar Dey v. Tarapada Dey, Poolpandi, Annie v. Commissioner Chalakudy Municipality, and Vimalakumari v. State to justify this approach. The PSC has a duty to advise candidates even after lapse of a ranked list if vacancies are reported during its life; Government Order 29.1.2016 cannot override the KER. The petition is dismissed with no costs.

Provisions of Law Cited

Rule 12(6), Chapter XXIII, Kerala Education Rules, 1959 (KER)Rule 12, Chapter XXIII, Kerala Education Rules, 1959 (as amended up to 11-08-2014)Kerala Education Rules, 1959 (KER)

Legal Doctrines & Maxims

  • actus curiae neminem gravabit
  • lex non cogit ad impossibilia

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners pressed that fixation of staff for 2015-16 should relate back to 15 July 2015, despite belated orders, since Rule 12(6) contemplates finalisation by that date. They argued that pendency of writ petitions prevented timely fixation and that the PSC has a continuing duty to advise candidates when vacancies arise within the life of the ranked list. They relied on Annie v. Commissioner, Chalakudy Municipality (1984 KLT 170) and Vimalakumari v. State (1994 (2) KLT 47 (FB)) to support retroactive applicability and the principle that equity requires not to penalize candidates. They also invoked Raj Kumar Dey and Poolpandi to justify the use of actus curiae and lex non cogit ad impossibilia to overcome administrative delay. They contended that an Executive Order cannot override KER rules. Respondents: The respondents argued that fixation orders for 2015-16 are prospective and that belated fixation cannot have retroactive effect; they stressed the primacy of the Kerala Education Rules and the need to adhere to the time frames prescribed, while maintaining that the Government Order of 2016 cannot supersede statute.

Contentions of Respondents

The respondents emphasized that fixation orders for 2015-16 should operate prospectively and that belated orders cannot be retroactively applicable. They argued that the Kerala Education Rules, 1959 and Rule 12(6) provide a framework that was not defeated by interim orders, and that government communications cannot override the KER. They relied on the need to maintain the integrity of the ranked list and the statutory process, including timely advice by the PSC after vacancies were reported within the life of the list.

Cited Precedents (4)

Case NameCitationTreatmentExplanation
Raj Kumar Dey and others v. Tarapada Dey and othersAIR 1987 SC 2195PositiveCited to justify the application of actus curiae neminem gravabit and lex non cogit ad impossibilia in the context of delayed fixation orders and the equity-based approach.
Poolpandi and others v. Superintendent, Central Excise and othersAIR 1992 SC 1795PositiveUsed to support the equitable principle of not imposing impossibilities, reinforcing belated fixation orders in the given context.
Annie v. Commissioner, Chalakudy Municipality and others1984 KLT 170PositiveApproved as a precedent for the PSC’s duty to advise candidates even after lapse of the ranked list; relied upon by the court to validate life of the ranked list.
Vimalakumari v. State1994 (2) KLT 47 (FB)PositiveApproved the Annie precedent and held it to still be good law, supporting the court’s approach to vacancy advice and fixation timing.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Soumya M.R. and Others v. State of Kerala and Others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 22ND DAY OF NOVEMBER 2018/1ST AGRAHAYANA, 1940** **OP(KAT).No. 85 of 2018** **AGAINST THE ORDER DATED 23.2.2018 IN R.A.[EKM] NO.24/2017 IN O.A.NO.1786/2015 AND THE ORDER DATED 20.10.2017 IN O.A.NO.1786/2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS:** - **1 SOUMYA M.R., AGED 32 YEARS, W/O. SUNILKUMAR, ELAMPINAYIL, CHEERAL, THAZHATHOOR P.O, WAYANAD-673952, MOB.NO.9745424643.** - **2 DHANYA R.S., AGED 36 YEARS, W/O.K.U.MANOJ KUMAR, SHIVARANJINI HOUSE, CHAMANDIPOYIL, PANDIKADAVU, MANANTHAVADY P.O., WAYANAD-670 645,MOB.NO.9656828880.** - **3 SINI P.V.,AGED 34 YEARS, W/O.JOBISH P.J., PURACKAL HOUSE, KAVUMANNAM P.O., KALPETTA VIA, WAYANAD-673122, MOB NO.9744020706.** - **4 RALI P.R., AGED 36 YEARS, W/O.SANTHOSH P.P., PARAKKAL HOUSE, KARANI P.O., WAYANAD-673 951, MOB NO.9656222199.** - **5 JOHNSON E.V., AGED 34 YEARS, S/O.VARGHESE E.U., EDAYATH PUTHENPURA HOUSE, MEMDAD P.O., WAYANAD-673122, MOB NO.9745248013.** - **6 SHEEMA M., AGED 36 YEARS, W/O.ABHILASH, MADHAVA NIVAS, CHERUKATTOR POST, PANAMARAM, WAYANAD-670 721, MOB NO.9544123702.** - **7 AVINASH P., AGED 38 YEARS, S/O.PANKAJAKSHAN NAIR, DIVYALAYAM, KARIMKUTTY, KALPETTA,WAYANAD-673 121, MOB. NO.9544269328.** - **BY ADV.SMT.SUMATHY DANDAPANI (SR.) ADV.SRI.MILLU DANDAPANI** OP(KAT)85/2018 2 **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695001.** - **2 DIRECTOR OF PUBLIC INSTRUCTIONS, DIRECTORATE OF PUBLIC INSTRUCTIONS, DPI JUNCTION, JAGATHY, THYCAUD P.O., THIRUVANANTHAPURAM, KERALA-695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, KALPETTA, WAYANAD, KERALA-673 121.** - **4 THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THULASI HILLS, PATTOM, THIRUVANANTHAPURAM, KERALA-695 004.** - **5 THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, KALPETTA, WAYANAD,KERALA-673 121.** - **6 SHIJIMOLE P.R., AGED 35 YEARS, W/O. E.K.PRAMOD KUMAR, PUTHENPURAYIL HOUSE, KARIMBIL P.O., KUNHOME, WAYANAD, KERALA-670 731.** - **7 SMITHA CHERUMANALIL, AGED 36 YEARS, W/O.T.K.HARINARAYANAN,HARISREE HOUSE, POLICE HOUSING COLONY, MUNDERI, KALPETTA, WAYANAD, KERALA-673 121.** - **8 SAJITHA KUMARI N.K.,AGED 42 YEARS, W/O.DEVADASAN M.P.,MADAPPATTIL HOUSE, NARIKUNI POST, KOZHIKODE, KERALA-673 585.** - **9 LAHA SUNNIA P., W/O.NOUSHAD A.V., ALAM NOKKUVAYAL HOUSE, KINALUR POST, BALUSSERY VIA, CALICUT-673 612.** **R1 & R2 BY SMT.K.R.DEEPA, SR.GP R6 TO R9 BY ADV. SRI.P.RAVINDRAN (SR.) ADV. SRI.O.D.SIVADAS** **THIS OP(KAT) HAVING BEEN FINALLY HEARD ON 19.11.2018, THE COURT ON 22.11.2018 DELIVERED THE FOLLOWING:** OP(KAT)85/2018 3 “CR” ## Judgment ## Chitambaresh, J. “Malayaala bhaasha than maadaka bhangi nin malar mandahaasamaay viriyunnu..........” wrote the lyricist Sreekumaran Thampi for the film 'Prethangalude Thaazhvara'. But unfortunately the pupils who study Malayalam language in curriculum are dwindling and resultantly the chances for appointment of teachers in the subject get bleaker. The Original Petition concerns the appointment of High School Assistant (Malayalam) ['HSA(Malayalam)' for short] in the Government Schools of the educational district of Wayanad. - 2.The Deputy Director of Education was directed to report 17 vacancies of H.S.A.(Malayalam) to the Kerala Public Service OP(KAT)85/2018 4 Commission ('the PSC' for short) before the close of office hours on 17.7.2015 (on which date the ranked list expired). Such a direction was issued by way of an interim order dated 15.7.2015 in O.A.(EKM) No.642/2015 on the file of the Kerala Administrative Tribunal ('the Tribunal' for short) filed by those who are in the ranked list. Seven vacancies had already been reported on that date and 10 more vacancies were provisionally reported in time by the Deputy Director in obedience to the interim order. The petitioners in this Original Petition who find a place in the succeeding ranked list published by the PSC on 11.4.2017 stake claim for appointment in the 10 vacancies aforesaid. The bone of their contention is that the vacancies arose only by virtue of the Staff Fixation Orders passed in the year 2016 whereas the earlier ranked list expired on 17.7.2015 itself. 3.We heard Mrs.Sumathi Dandapani, Senior Advocate on behalf of OP(KAT)85/2018 5 the petitioners, Mr.O.D.Sivadas, Advocate on behalf of the contesting respondents and Mrs.K.R.Deepa, Senior Government Pleader. 4.The strength of teaching staff is dependent on the strength of pupils in the school and Staff Fixation Orders are passed by the educational officers under Rule 12 of Chapter XXIII of the Kerala Education Rules, 1959 ('the KER' for short). Rule 12(6) of Chapter XXIII KER states that the fixation of staff shall be finalised by the educational officer not later than 15[th] July of every year to take effect from that date. It so happened that the several Government Orders fixing the ratio of pupils and staff for the academic year 2015-16 were the subject matter of a bunch of writ petitions in this Court. Delay occurred due to this imbroglio and the educational officer could pass the Staff Fixation Orders for the academic year 2015-16 only on various dates between the period from 6.5.2016 to 24.10.2016. OP(KAT)85/2018 6 5.The Staff Fixation Orders though passed belatedly should take effect from 15.7.2015 itself going by a plain reading of Rule 12(6) of Chapter XXIII KER and the time fixed for finalisation of the same is only directory. The educational officers could not have passed the Staff Fixation Orders earlier in view of the pendency of the bunch of writ petitions disposed of on 17.12.2015 only. There were appeals to the Division Bench and to the Supreme Court and the interim orders therein disabled the educational officers from passing Staff Fixation Orders in time. There is no reason as to why the maxim - actus curiae neminem gravabit (an act of the court will prejudice no one) - shall not apply to the fact situation emerging in this case. Yet another maxim of equity - lex non cogit ad impossibilia (the law does not compel to impossible ends) - has also relevance because of the inability of the educational officers: [See Raj Kumar Dey and others v. Tarapada Dey and others (AIR 1987 OP(KAT)85/2018 7 SC 2195) and Poolpandi and others v. Superintendent, Central Excise and others (AIR 1992 SC 1795)]. 6.Vacancies to the post of H.S.A.(Malayalam) existed on the date of expiry of the ranked list on 17.7.2015 if the Staff Fixation Orders for the academic year 2015-16 take effect from 15.7.2015 though passed belatedly. The vacancies were reported by the Deputy Director to the PSC in time before 17.7.2015 which have to be filled from the ranked list which had not by then expired. The PSC has a duty to advise candidates even after the lapse of the ranked list provided the vacancies are reported to it during the period when the ranked list had life. The decision to that effect in Annie v. Commissioner, Chalakudy Municipality and others [1984 KLT 170] has been approved in Vimalakumari v. State [ 1994 (2) KLT 47(FB)] which still holds the field. The Tribunal was therefore justified in disposing of O.A.(EKM) No.642/2015 in terms of OP(KAT)85/2018 8 the interim order dated 15.7.2015 and refusing to review the same as sought by the petitioners. 7.The petitioners relied on a Government Order dated 29.1.2016 issued by the General Education Department to contend that the Staff Fixation Orders for the academic year 2015-16 can act prospectively only. The said Government Order pertains to additional posts only and that too after the amendment to Rule 12 of Chapter XXIII KER (which has not taken place after 11.8.2014). That apart an executive order cannot override the provisions of KER which is categoric that the Staff Fixation Orders at least for the existing posts take effect from 15[th] of July every year. It should be mentioned that O.A. (EKM)No.642/2015 was disposed of along with O.A. (EKM)Nos.1045/2015 and 1786/2015 filed by similarly placed persons by the Tribunal. The fact that the petitioners have chosen to apply for review of the common order in one of the OP(KAT)85/2018 9 Original Applications only is also a factor which dissuades us from judicial review. The Original Petition is dismissed. No costs. Sd/- V. CHITAMBARESH, JUDGE Sd/T.V. ANILKUMAR, JUDGE Sha/191118 OP(KAT)85/2018 10 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**EXT.P1**||**A PHOTOCOPY OF THE REVIEW APPLICATION**| |---|---|---| |||**WITHOUT ANNEXURES FILED BY THE**| |||**PETITIONERS BEFORE THE KERALA**| |||**ADMINISTRATIVE TRIBUNAL VIDE RA**| |||**(EKM)NO.24/2017.**| |**EXT.P2**||**A PHOTOCOPY OF THE MISCELLANEOUS**| |||**APPLICATION MA (EKM)NO.153/2017 IN**| |||**RA(EKM)NO.24/2017.**| |**EXT.P3**||**A PHOTOCOPY OF THE ORDER DATED 23/02/2018**| |||**IN RA(EKM)NO.24 0F 2018 BY THE LEARNED**| |||**KERALA ADMINISTRATIVE TRIBUNAL.**| |**EXT.P4**||**A PHOTOCOPY OF THE RELEVANT EXTRACT OF**| |||**THE AMENDED RULE 12 OF CHAPTER XXIII OF**| |||**KERALA EDUCATION RULES.**| |**EXT.P5**||**A PHOTOCOPY OF THE REPLY DATED 01.01.2018**| |||**FROM THE 3RD RESPONDENT FORWARDING THE**| |||**NOTES SUBMITTED BY THE 3RD RESPONDENT FOR**| |||**PREPARING REPLY STATEMENT IN OA 1786 OF**| |||**2015.**| |**EXT.P6**||**A PHOTOCOPY OF THE ORIGINAL APPLICATION**| |||**1786/2015 BEFORE THE HON'BLE KERALA**| |||**ADMINISTRATIVE TRIBUNAL.**| |**EXT.P7**||**A PHOTOCOPY OF THE REPLY STATEMENT FILED**| |||**BY THE GOVERNMENT IN O.A.1786/2015.**| |**EXT.P8**||**A PHOTOCOPY OF THE REPLY STATEMENT FILED**| |||**BY THE PSC IN O.A.1786/2015.**| |**EXT.P9**||**A PHOTOCOPY OF THE REJOINDER PRESENTED ON**| |||**6.3.2017 FILED BY THE APPLICANTS IN**| |||**O.A.1786/2015.**| |**EXT.P10**||**A PHOTOCOPY OF THE REJOINDER PRESENTED ON**| |||**5.4.2017 FILED BY THE APPLICANTS IN**| |||**O.A.1786/2015.**| |**RESPONDENTS'**||| |**EXHIBITS**<br>**:**||| |**EXT.RA6(A)**||**TRUE COPY OF THE GO(P) NO.199/11/G.EDN.**| |||**DATED 1.10.2011.**| OP(KAT)85/2018 11 **EXT.RA6(B) TRUE COPY OF OBJECTION FILED BY THE RESPONDENTS IN THE REVIEW APPLICATION. EXT.R6(A) TRUE COPY OF THE RELEVANT PORTION OF THE RANK LIST PUBLISHED BY THE PSC FOR THE POST OF HIGH SCHOOL ASSISTANTS(MALAYALAM). EXT.R6(B) COPY OF MA(EKM) 613 OF 2015 IN O.A.NO.1786 OF 2015 WITH ANNEXURES. EXT.R6(C) COPY OF REPLY STATEMENT DATED 2.3.2016 FILED BY THE 3RD RESPONDENT. EXT.R6(D) COPY OF REJOINDER FILED IN O.A.NO.1786 OF 2015 WITH ANNEXURES. EXT.R6(E) COPY OF ADDITIONAL REPLY STATEMENT DATED 14.3.2017 FILED BY THE 3RD RESPONDENT. EXT.R6(F) COPY OF REJOINDER FILED IN O.A.NO.1786 OF 2015 WITH ANNEXURES TO THE ADDITIONAL REPLY STATEMENT. EXT.R6(G) COPY OF MA(EKM) 779 OF 2017 IN O.A.NO.1786 OF 2015 WITH ANNEXURES. EXT.R6(H) COPY OF MA(EKM) 1207 OF 2017 IN O.A.NO.1786 OF 2015 WITH ANNEXURES. EXT.R6(I) COPY OF MA(EKM) 1721 OF 2017 IN O.A.NO.1786 OF 2015 WITH ANNEXURES. EXT.R6(J) COPY OF OBJECTION DATED 19.2.2018 FILED IN RA(EKM) NO.24 OF 2017 WITH ANNEXURES.** ## **-TRUE COPY-** **PS TO JUDGE**