SREEDEVI.B v. STATE OF KERALA AND OTHERS

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH AGRAHAYANA, 1944`** ## **`WP(C) NO. 18448 OF 2021`** ## **`PETITIONER:`** ``` SREEDEVI.B W/O GOPIKRISHNAN V., VADAKEDATHU HOUSE, AYMANAM P.O, KOTTAYAM-686015, (UPPER PRIMARY SCHOOL TEACHER(UPST), DEVASWOM BOARD HIGH SCHOOL, KANGAZHA.) ``` ``` BY ADV S.SUBHASH CHAND ``` ## **`RESPONDENTS:`** - `1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.` - `2 THE DIRECTOR OF GENERAL EDUCATION, OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, THIRUVANANTHAPURAM-695001.` - `3 DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, ATTINGAL, THIRUVANANTHAPURAM DISTRICT-695101.` - `4 THE DISTRICT EDUCATIONAL OFFICER` - `OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM, ERNAKULAM DISTRICT` - `5 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KANJIRAPPALLY, KOTTAYAM DISTRICT-686506.` - `6 THE CORPORATE MANAGER TRAVANCORE DEVASWOM BOARD SCHOOLS/THE SECRETARY, TRAVANCORE DEVASWOM BOARD, DEVASWOM BUILDINGS,` W.P. (C) No.18448 of 2021 2 ``` NANTHANCODE, THIRUVANANTHAPURAM-695011. ``` ``` 7GREESHMA T.S. MUTTATHU ILLAM, THRIKKOTHAMANGALAM P.O, KOTTAYAM-686011. ``` ``` 8APARNA G.NAIR. HARISREE, T.C.19/174-31 KRA (301(A)), NEAR MARYGIRI SCHOOL, KUDAPPANAKUNNU P.O, THIRUVANANTHAPURAM-695043. ``` ``` BY ADV SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD ``` ``` SMT NISHA BOSE, SR GOVERNMENT PLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON07.12.2022,THECOURTONTHESAMEDAY DELIVERED THE FOLLOWING: ``` W.P. (C) No.18448 of 2021 3 ## **JUDGMENT** The petitioner states that she commenced regular, continuous service in the cadre of Upper Primary School Teachers in the Devaswom Board High School, Kangazha, an aided school under the management of the 6th respondent, with effect from 23.06.2016 on the cover of Ext.P1 order. According to the petitioner, while she was working as aforesaid, a regular promotion vacancy of a High School Teacher (Physical Science) arose in the Devaswom Board High School, Vamanapuram. She contends that being the senior most qualified Upper Primary School Teacher eligible for promotion, she was promoted and appointed as High School Teacher (Physical Science) in terms of Ext.P2. The petitioner contends that the 3rd respondent has returned the proposal on the ground that, in view of the ban imposed due to COVID-19 restrictions, the proposal cannot be considered. According to the petitioner, being a Rule 43 claimant, she has a statutory right to be promoted as High School Teacher as and when a vacancy arises to the said post. W.P. (C) No.18448 of 2021 4 2. The petitioner contends that later, respondents 1 and 2 have come up with Ext.P7 order permitting the filling up of regular vacancies of teachers during the academic year 2021-2022 with effect from 15.07.2021. According to the petitioner, there were three regular vacancies of High School teacher (Physical Science) in existence at the Devaswom Board High School, Vamanapuram, and Devaswom Board High School, Thrikkariyoor. Instead of acknowledging the statutory right of the petitioner under Rule 43 and her superior right to be promoted and posted, the 6th respondent has refused to promote the petitioner as High School Teacher and appointed two fresh hands. It is in the afore circumstances that the petitioner has approached this Court contending that the appointment made as above by the management is illegal and against the provisions of the Act and Rules. The petitioner has in this writ petition sought to quash Exts.P10 and P11, being the appointment orders issued in respect of respondents 7 and 8, on the premise that the same is issued without taking note of the superior claim of the petitioner as a Rule 43 claimant. The petitioner has also sought for direction to the 6th respondent to consider the case of the petitioner and promote her as High School Teacher with effect from 15.07.2021, the date on which the ban W.P. (C) No.18448 of 2021 5 was lifted. 3. A statement has been filed by the learned standing counsel wherein it is stated that though the promotion appointment of the petitioner was made on 03.06.2020, due to Covid pandemic, the school remained closed. The proposal for the appointment of the petitioner was also rejected by Ext P3 order. At this stage, the petitioner requested that she be reverted back to the UPST post and be permitted to continue in DBHS, Kangazha. The petitioner was accordingly reverted to the post of UPST, and she was allowed to continue in DBHS, Kangazha, on the strength of Ext.P6 order. It is stated that the promotion of UPST to HST was kept in abeyance in view of the interim order granted by this Court in W.P.(C) No.32001 of 2018 and connected cases. It is also stated that, as it was felt that if UPST is promoted, it would reduce the strength of teaching staff, and to avoid a situation, the management kept in abeyance the promotion of UPST to HST, keeping one vacancy of HST open. According to the respondents, the stay of appointment of UPST was vacated only on 08.03.2022. Later, the 6th respondent considered the request of the petitioner and passed orders promoting the petitioner to the post of HST in DBHS, Vamanapuram, by Ext.R6(a) order. It is also W.P. (C) No.18448 of 2021 6 stated that by Ext.R6(b) order, the appointments to the post of HST vide Exts P10 and P11 orders were further revised and the seniority of the petitioner is protected. It is stated that in view of Exts R6(a) and R6(b) orders, the petitioner cannot have any further grievance. 4. Sri. Subhash Chand, the learned counsel appearing for the petitioner, would highlight the fact that the petitioner is a Rule 43 claimant and that the management was statutorily bound to grant appointment to the petitioner as and when the vacancy arose. In order to substantiate his contention, the learned counsel would rely on the law laid down by this Court in **Rajendran v. State of Kerala** 1993 (1) KLT 893. It is submitted that the vacancies in the higher grade in the higher grade of pay is required to be filled up by promotion of qualified hands in the lower grade, according to seniority. 5. The learned Government Pleader submits that the undisputed fact is that the petitioner is a Rule 43 claimant, and there was no reason why the Management did not recognize the said right. It is further submitted that there is no need for the petitioner to put in any application for that purpose. 6. Sri. G Biju, the learned Standing Counsel appearing for the W.P. (C) No.18448 of 2021 7 Devaswom Board, has reiterated the contentions in the counter. He highlighted the facts stated therein and also the order passed by this Court in the writ petition and contended that the petitioner was permitted to work as a UPST to ensure that the studies do not suffer **.** According to the learned counsel, in view of Exts.R6(a) and (b) orders, the petitioner cannot have any further grievance. 7. I have considered the submissions advanced. From Exhibit R6(a) order, it appears that the petitioner has been promoted to the post of HST and is working now at the DBHS, Vamanapuram. The 6th respondent has also placed on record Exhibit R6(b) to substantiate that the seniority of the petitioner stands protected. The petitioner is duly qualified to be promoted to the post of HST as and when the vacancy arose to the post, and the management was bound to promote her recognizing her status as a Rule 43 claimant. As the ban imposed by the Government was lifted on 15.07.2021, the right of the petitioner to get promoted to the post accrued on the said date. In that view of the matter, the following directions are issued. a) The 6th respondent shall reconsider the claim of the petitioner and pass fresh orders in W.P. (C) No.18448 of 2021 8 acknowledgment of the right of the petitioner to get promoted as High School Teacher (Physical Science) with effect from 15.07.2021. b) Orders as directed above shall be passed expeditiously, in any event, within a period of one month and forward the same to the DEO concerned, who shall pass consequential orders within a further period of four weeks. This writ petition is disposed of. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** IAP W.P. (C) No.18448 of 2021 9 ## **`APPENDIX OF WP(C) 18448/2021`** ``` PETITIONER’S EXHIBITS: ``` - `Exhibit P1 TRUE COPY OF THE APPROVED APPOINTMENT ORDER DATED 23.06.2016 ISSUED BY RESPONDENT NO. 6 AND APPROVED BY THE COMPETENT EDUCATIONAL OFFICER.` - `Exhibit P2 TRUE COPY OF THE SAID ORDER BEARING ROC NO.12/20/EDN DATED 3/6/2020 THUS ISSUED BY RESPONDENT NO.6.` - `Exhibit P3 TRUE COPY OF THE ORDER BEARING NO.B6/17420/2020 DATED 15/09/2020 OF RESPONDENT NO.3.` - `Exhibit P4 TRUE COPY OF THE GOVERNMENT ORDER BEARING GO(MS)NO.28/2021/G.EDN DATED 22/2/2021 OF RESPONDENT NO.1.` - `Exhibit P5 TRUE COPY OF THE ORDER DATED 13.10.2020 OF RESPONDENT NO.2.` - `Exhibit P6 TRUE COPY OF THE SAID ORDER BEARING ROC NO.12/20/EDN DATED 4/1/2021 PASSED BY RESPONDENT NO.6.` - `Exhibit P7 TRUE COPY OF THE ORDER BEARING NO.H.(2)/19500/2019 DGE DATED 12/7/2021 OF RESPONDENT NO.2.` - `Exhibit P8 TRUE COPY OF THE REPRESENTATION DATED 28/8/2021 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.3.` W.P. (C) No.18448 of 2021 10 ``` Exhibit P9 ``` ``` TRUE COPY OF THE REPRESENTATION DATED 28/8/2021 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.4. ``` - `Exhibit P10 TRUE COPY OF THE APPOINTMENT ORDER BEARING ROC NO.12659/20/EDN DATED 26/8/2021 ISSUED BY RESPONDENT NO.6 IN FAVOUR OF RESPONDENT NO.7.` - `Exhibit P11 TRUE COPY OF THE APPOINTMENT ORDER BEARING ROC NO.12569/20/EDN DATED 26/08/2021 ISSUED BY RESPONDENT NO.6 IN FAVOUR OF RESPONDENT NO.8.` ``` RESPONDENTS’ ``` ``` EXHIBITS: ``` - `ANNEXURE R6(a) TRUE COPY OF THE ORDER NO.ROC 3008/21/EDN DATED 06.09.2021 ISSUED BY THE 6TH RESPONDENT` - `ANNEXURE R6(b) TRUE COPY OF THE ORDER DATED 11.07.2022 ISSUED BY THE 6TH RESPONDENT`