T. Radhamma v. State of Kerala and others (WP(C) No. 3884 of 2012 (I))

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR FRIDAY, THE 4TH DAY OF JULY 2014/13TH ASHADHA, 1936 WP(C).No. 3884 of 2012 (I) --------------------------- PETITIONER: ------------- T.RADHAMMA, AGED 58 YEARS RETIRED HEADMISTRESS, (KUTTAN PILLAI MEMORIAL) K.P.M.HIGHER SECONDARY SCHOOL, CHERIYAVELINELLOOR KOLLAM, RESIDING AT 'NIJOMA', KARINGANNOOR P.O. KOLLAM. BY ADVS.SRI.KRB.KAIMAL (SR.) SRI.B.UNNIKRISHNA KAIMAL SRI.S.SHAJI RESPONDENTS: ----------------- ## 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA GENERAL EDUCATION (A) DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695001. 2. THE DEPUTY DIRECTOR OF EDUCATION, KOLLAM-691001. ## 3. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM-691001. (THE ADDRESS OF R3 IS SUBSTITUTED AS DISTRICT EDUCATIONAL OFFICER KOTTARAKKARA - 691506 AS PER ORDER DATED 26/07/2012 IN IA NO.9890/2012) 5. (sic. 4.) THE MANAGER, (KUTTAN PILLAI MEMORIAL) K.P.M.HIGHER SECONDARY SCHOOL CHERIYAVELINELLOOR, KOLLAM-691510. R1 TO R3 BY GOVERNMENT PLEADER SRI.P.V.ELIAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3884 of 2012 (I) ## APPENDIX PETITIONER'S EXHIBITS : EXT.P1: TRUE COPY OF THE ORDER NO.B1-9905/05 DATED, 9/3/2006 ISSUED BY THE 2ND RESPONDENT. EXT.P2: TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.3685/2007/G.EDN. DATED 7/8/2007. EXT.P3: TRUE COPY OF THE ORDER G.O.(RT)NO.5921/07/G.EDN. DATED 31/12/2007 ISSUED BY THE IST RESPONDENT. EXT.P4: TRUE COPY OF THE ORDER G.O.(RT)NO.2231/2008/G.EDN. DATED 19/5/2008 ISSUED BY THE IST RESPONDENT. EXT.P5: TRUE COPY OF THE JUDGEMENT DATED 3/3/2009 OF THIS HON'BLE COURT IN WPC.31211/07. EXT.P6: TRUE COPY OF THE APPOINTMENT ORDER DATED 25/3/2009 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER TOGETHER WITH THE ORDER OF APPROVAL THEREON. - EXT.P7: TRUE COPY OF THE APPEAL DATED 13/5/2009 FILED BY THE PETITIONER BEFORE IST RESPONDENT. - EXT.P8: TRUE COPY OF THE ORDER NO.B4/8978/09 DATED 30/8/2009 ISSUED THE 2ND RESPONDENT. - EXT.P9: TRUE COPY OF THE REVISION PETITION DATED 7/11/2009 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. - EXT.P10: TRUE COPY OF THE ORDER G.O.(RT)NO.269/2012/G.EDN. DATED 17/1/2012 ISSUED BY THE IST RESPONDENT. ## RESPONDENTS' EXHIBITS : NIL // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ------------------------------ W.P.(C)No.3884 of 2012 ------------------------------Dated 4[th] July, 2014 ## **JUDGMENT** The petitioner is a retiree from the service of K.P.M. Higher Secondary School, Cheriyavelinalloor in Kollam District which is an aided school. She retired from service on superannuation on 31.3.2009 as Headmistress. The petitioner was admittedly appointed as Headmistress of the said school by the 5[th] respondent (sic., 4[th] respondent), the Manager of the school as per Ext.P6 order dated 25.3.2009. Nevertheless, the appointment of the petitioner was given retrospective effect from 30.4.2006, the date on which the said post fell vacant consequent to the retirement on superannuation of Smt.N.Thankamma. Ext.P6 order of appointment was forwarded for approval to the third respondent and thereupon, it was approved only with effect from 25.3.2009, the date on which the petitioner was admitted to duty as Headmistress of the school. Aggrieved by Ext.P6 order to the extent it approved the said appointment only with effect from 25.3.2009 the petitioner filed Ext.P7 appeal before the second respondent. The second respondent rejected the same as per Ext.P8 order. Evidently, the second respondent agreed with the findings of the third respondent WP(C).No.3884/2012 2 for declining approval to the appointment of the petitioner from 1.5.2006. In other words, both respondents 2 and 3 held that the petitioner is entitled to get approval of her appointment as Headmistress only with effect from 25.3.2009 as she was admitted to duty in that post and discharged duty as Headmistress only with effect from 25.3.2009. Feeling aggrieved by Ext.P8 order the petitioner preferred Ext.P9 revision petition under Rule 92 of Chapter XIV-A of KER. The first respondent rejected Ext.P9 revision petition as per Ext.P10 confirming the decisions of the subordinate authorities. It is in the said circumstances that this writ petition has been filed seeking quashment of Ext.P6 to the extent the approval was granted only with effect from 25.3.2009 and also Exts.P8 and P10. The further prayer of the petitioner is for issuance of a writ of mandamus commanding the third respondent to approve the appointment of the petitioner as Headmistress with effect from 1.5.2006 with all service benefits including arrears of salary from 1.5.2006 till 31.3.2009. The petitioner also seeks for issuance of writ of mandamus commanding the 3[rd] respondent to sanction her revised pensionary benefits based on her promotion as Headmistress and consequential fixation with effect from 1.5.2006. 2. A counter affidavit has been filed on behalf of the third respondent. The core contention of the third respondent is that though WP(C).No.3884/2012 3 the post of Headmaster in the school fell vacant on 1.5.2006 the petitioner was appointed as Headmistress of the school as per Ext.P6 only on 25.3.2009 and that till 24.3.2009 one Bipin Bhaskar was functioning as the Teacher in-charge of the school. In short, according to the third respondent, the petitioner had no occasion to discharge the duty attached to the post of Headmaster from 1.5.2006 and she was admitted to duty as Headmistress only from 25.3.2009. It is also stated in the counter affidavit that in the year 2005 the petitioner was the senior most High School Assistant in the school and she was appointed as the Chief Superintendent in the said school for conducting SSLC examination in March, 2005. The petitioner erroneously opened the question paper packets of Geography and Economics (old scheme) and had not reported the said incident forthwith, to the District Educational Officer, Kottarakkara and it was reported only on 21.3.2005, the date fixed for the examination of Geography and Economics (old scheme). The disciplinary action initiated against the petitioner in connection with the said incident ultimately culminated in imposition of a penalty of barring of two increments without cumulative effect, as per Ext.P3 order dated 31.12.2007. Evidently, the 4[th] respondent, the Manager of the school was unwilling to grant promotion to the petitioner and in fact, he withheld her promotion. Later, as per Ext.P5 common judgment in W.P. (C) Nos.26593 & 31211 of 2007 the Manager of the school was directed WP(C).No.3884/2012 4 to consider and pass appropriate orders on Ext.P18 application, referred as such in W.P.(C)No.31211 of 2007 filed by the petitioner seeking promotion as Headmistress. It is pursuant to Ext.P5 judgment that Ext.P6 order was passed. The subsequent developments that constrained the petitioner to file this writ petition have already been adverted to hereinbefore. 3. I have heard the learned counsel for the petitioner, the learned Standing Counsel appearing for respondents 1 and 2 and also the learned Government Pleader. 4. Going by the scheme of the Kerala Education Rules (for short `KER') evident from Rule 7 of Chapter XIV-A, an appointment effected by the Manager shall be effective from the date on which the concerned appointee is admitted to duty provided that appointment is duly approved. In this case, admittedly, the petitioner was appointed as Headmistress only as per Ext.P6 dated 25.3.2009. Till such date one Bipin Bhaskar was discharging the duty as Teacher in-charge. There is no case for the petitioner that she had successfully challenged the appointment of the said Bipin Bhaskar as Teacher in-charge and his continuance as such till 25.3.2009 in any proceedings. There is no finding in any proceedings that the appointment of the petitioner as WP(C).No.3884/2012 5 Headmistress was delayed unduly for none of her faults. In fact, earlier, taking into account the serious nature of disciplinary proceedings initiated against the petitioner the 4[th] respondent withheld promotion of the petitioner to the post of Headmistress. The 4[th] respondent had issued order No.M1/2/2005/KPMHSS dated 10.10.2005 withholding promotion of the petitioner permanently, subject to ratification by the District Educational Officer, Kottarakkara. That apart, admittedly, the 4[th] respondent had given promotion to Bipin Bhaskar as Headmaster of the school with effect from 1.6.2006. True that the said appointment was not approved as such and his appointment was approved only as a Teacher-in-charge. It is to be noted that the said Bipin Bhaskar is not arrayed as a party to this writ petition. There is no case for the petitioner that she had successfully challenged the said action on the part of the Manager, the 4[th] respondent, in delaying her appointment as Headmistress. In other words, though the vacancy of Headmistress fell vacant in the school on 1.5.2006 and despite the fact that another teacher namely, Bipin Bhaskar was approved as Teacher in-charge and continued as such till 24.3.2009 the petitioner has not chosen to challenge the same and she did not have a case that she challenged the said action successfully. True that the petitioner had submitted a representation before the 4[th] respondent Manager seeking promotion as Headmistress and ultimately that was directed to be considered by this WP(C).No.3884/2012 6 Court as per Ext.P5 common judgment dated 3.3.2009. Evidently, Ext.P6 order of promotion of the petitioner as Headmistress was passed pursuant to Ext.P5 judgment and indisputably, till its implementation the aforesaid Bipin Bhaskar continued to hold the post of Teacher-in-charge up to 24.3.2009. It is only on 25.3.2009 taking note of the directions in Ext.P5 judgment that the claim of the petitioner for appointment as Headmistress was taken up for consideration by the 4[th] respondent and Ext.P6 order was passed. True that, in and vide Ext.P6 order dated 25.3.2009 the petitioner was given appointment as Headmistress with effect from 30.4.2006. No provision was brought to my notice empowering the Manager of an aided school to effect an appointment with retrospective effect. The petitioner cannot be heard to contend that the appointment was delayed not due to any lapse on her part and it is solely for the fault of others or that she was discharging the duties attached to the post of Headmistress from 1.5.2006. In the contextual situation it is only appropriate to note that W.P.(C)No.26593 of 2007 was filed by the 4[th] respondent Manager with the prayer to set aside the relevant orders passed by the departmental authorities reducing the punishment imposed on the petitioner and also to sustain the order originally passed by him. The other writ petition viz.,W.P.(C)No.31211 of 2007 was filed by the petitioner herein seeking appropriate direction to consider and finalise the review petition (then pending before the WP(C).No.3884/2012 7 Government and subsequently disposed of during the pendency of the said writ petition) and for other incidental reliefs including a direction to consider her name for promotion to the post of Headmistress pending decision on the review petition. The review petition filed by the petitioner which was referred to as Ext.P17 in Ext.P5 judgment, was considered and Ext.P19 order (referred as such in Ext.P5 judgment) was then passed by the Government. It was after taking into account all such aspects that this Court disposed of W.P.(C)Nos.26593 and 31211 of 2007, as per Ext.P5 judgment as hereunder:- “15. It is submitted by the learned senior counsel for the petitioner-teacher that the petitioner is due to retire from the service on 31.03.2009 and that she has already submitted Ext.P18 application before the fifth respondent-Manager for considering her name for promotion as Headmistress in the school, the post still being kept vacant in view of pendency of the proceedings before this Court. In the above facts and circumstances, both the writ petitions are disposed of, directing the fifth respondent in W.P.(C)31211 of 2007 (the petitioner in W.P.(C)26593 of 2007) to consider Ext.P18 and pass appropriate orders in accordance with law at the earliest, preferably before 25[th] March, 2009. The parties shall bear their costs.” I have already noted that there is no specific provision in the Kerala Education Rules authorising the Manager in the school to effect WP(C).No.3884/2012 8 appointment with retrospective effect. Then the only question is whether the petitioner is entitled to get such relief in the light of the decision of this court in **Lilly Amma** v. **State of Kerala (2002 (3) KLT Short Note 11 (Case No.15))** . In that case, solely because of the absence of the Manager the concerned petitioner was not formerly appointed as Headmistress of the school concerned and at the same time, admittedly, the petitioner therein was discharging the duties of Headmistress. Taking note of the fact that it was not due to any lapse on her part that the appointment was delayed and that the petitioner therein had been discharging the duties attached to the post of Headmistress this Court held that for the fault of others the petitioner therein need not be put to suffer especially when she was discharging the duties of Headmistress. That is not the case here. The 4[th] respondent Manager virtually thought it not fit to grant appointment to the petitioner as Headmistress despite the occurrence of vacancy in the post of Headmistress on 1.5.2006 and ultimately, the petitioner was appointed as Headmistress, pursuant to Ext.P5 judgment, as per Ext.P6 order dated 25.3.2009. True that it was ordered with effect from 30.4.2006. Taking note of the provisions under the KER and taking note of the fact that an appointment could be approved only with effect from the date on which the appointee is admitted to duly in the post concerned the 3[rd] respondent granted approval to the appointment of the petitioner only with effect from WP(C).No.3884/2012 9 25.3.2009, the date on which the petitioner was given appointment and admitted to duty as Headmistress. That action from the part of the Manager was called in question by the petitioner availing the statutory remedies viz., before the appellate and revisional authorities. Ext.P8 is the order passed by the appellate authority and Ext.P10 is the order passed by the revisional authority. Evidently, both the appellate and revisional authorities affirmed the action on the part of the third respondent in granting approval to the appointment of the petitioner only with effect from 25.3.2009 taking note of the fact that the petitioner was granted promotion as per Ext.P6 order dated 25.3.2009 and she was admitted to the duty as Headmistress in the school only with effect from 25.3.2009. I have already taken note of the fact that till 24.3.2009 one Bipin Bhaskar was acting as the Teacher in-charge and discharging the duties of Headmaster in the school. In paragraph 5 of the writ petition the petitioner has stated that the 4[th] respondent Manager promoted one Bipin Bhaskar as Headmaster with effect from 1.5.2006 and that his appointment was not approved as he was not possessing the qualifications for appointment as Headmaster and thereupon, he was allowed to continue as Teacher-in-charge. Admittedly, the petitioner was promoted as Headmistress only as per Ext.P6 order dated 25.3.2009 and she assumed the charge in the post only on that date. Curiously the petitioner has not sought any relief in this writ petition against the said WP(C).No.3884/2012 10 action and in fact, the said Bipin Bhaskar is not made a party to this writ petition. In the light of the fact that the petitioner was promoted as Headmistress only as per Ext.P6 order dated 25.3.2009 and was admitted to the duty as Headmistress only on 25.3.2009 I do not find any illegality in the action on the part of the 3[rd] respondent or appellate and revisional authorities in granting approval to the appointment of the petitioner as Headmistress only with effect from that date especially in the absence of any successful challenge from the part of the petitioner against the continuance of Bipin Bhaskar as Teacher in-charge. That apart, after considering the petition in the light of the decision in **Lilly Amma's** case (supra) I am of the view that that decision also cannot fetch any benefit to the petitioner as it cannot be said that the petitioner was made to suffer for none of her faults or that she had been discharging the duties of Headmistress at any date earlier than 25.3.2009. For all these reasons this writ petition is liable to fail. The learned counsel for the petitioner submitted that though the petitioner retired from service on 31.3.2009 in view of the pendency of this writ petition the fixation benefits were not so far granted to the petitioner. Taking note of the approval of her appointment as Headmistress with effect from 25.3.2009, if such benefits are not granted to the petitioner reckoning her service as Headmistress with effect from 25.3.2009 the competent authority among the respondents shall take appropriate WP(C).No.3884/2012 11 action for disbursing such benefits, if any, to which the petitioner is legally entitled to expeditiously, at any rate, within a period of three months from the date of receipt of copy of this judgment. Subject to that, this writ petition is dismissed. Sd/C.T.RAVIKUMAR Judge TKS