The Manager Kottathala Surendran Memorial Vocational Higher Secondary School & S. Rajesh v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE EASWARAN S.** **FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946** ## **WP(C) NO. 23467 OF 2018** ## **PETITIONERS:** - **1 THE MANAGER KOTTATHALA SURENDRAN MEMORIAL VOCATIONAL HIGHER SECONDARY SCHOOL, EDAVATTOM, KARUVELIL P.O., KOLLAM DISTRICT, PIN - 691 505.** - **2 S. RAJESH HIGH SCHOOL TEACHER (MALAYALAM), KSMVHSS, EDAVATTOM, KARUVELIL P.O., KOLLAM DISTRICT, PIN - 691 505, RESIDING AT GIREESH BHAVAN, THOLICODU P.O., PUNALUR, KOLLAM - 691 333.** **BY ADVS. SMT.K.R.KRISHNAKUMARI SMT.SASHA KUMARI** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM, PIN - 695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION KOLLAM - 691 001.** - **4 THE DISTRICT EDUCATIONAL OFFICER KOTTARAKKARA, KOLLAM DISTRICT, PIN - 691 506.** - **5 SMT. INDIRAMMA PROTECTED H.S.T.(MALAYALAM), KSMVHSS, EDAVATTOM, KARUVELIL P.O., KOLLAM DISTRICT, PIN - 691 505.** ## **SRI.BIMAL.K.NATH, SR.G.P.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO.23467 OF 2018** **2** ## **JUDGMENT** The present Writ Petition is filed by the petitioners challenging the decision of the 2[nd] respondent to deploy the 2[nd] petitioner from the 1[st] petitioner School, when there is a division fall had occurred. The said order was affirmed in appeal and revision petition was also dismissed. 2. The facts as narrated from the Writ Petition shows that the 2[nd] petitioner was qualified to hold the post of HSA (Malayalam) and was initially appointed on 31.03.2009. After completion of series of litigation, the appointment of the 2[nd] petitioner was approved. The 5[th] respondent, who was working as H.S.A(Malayalam) in JJVHSS, Ambalthumbhagom and as a BRC Trainer in Sasthamcotta was deployed to the 1[st] petitioner's School on 29.01.2010 as per Ext.P2. However, during academic year 2017-18, when a staff fixation order was issued to the 1[st] petitioner School, there was a division fall. Consequently, Ext.P4 order was passed in which the 2[nd] petitioner was found to be in excess of the staff strength. Accordingly, he was deployed under the protected category in **WP(C) NO.23467 OF 2018** **3** Malappuram and Kottayam District. 3. Aggrieved by Ext.P4, the 2[nd ] petitioner came before this Court in W.P.(C) No.23771/2017, which was disposed of by this Court directing the Director of Public Instructions to consider an appeal filed by the 2[nd ] petitioner. Accordingly an appeal was filed which did not result in favourable orders and aggrieved by that, Ext.P6 revision was filed. While an appeal was pending, the 2[nd ] petitioner's annual increment and salary was not released and accordingly, the 2[nd] petitioner approached this Court again and he was directed to file a revision petition before the Government and accordingly Ext.P6 was filed. It is also evident from Ext.P7 judgment in W.P.(C) No.32454/2017 that, the petitioner was relegated to file the revision before the Government. Thereafter, the 2[nd] petitioner filed W.A No. 2673/2017 aggrieved by the refusal of this Court in Ext.P7 to grant interim protection till the disposal of the revision petition before the Government. By Ext.P8 interim order, the Division Bench granting interim protection to the 2[nd ] petitioner. Though I.A No. 89/2018 was filed by the Government for vacating the interim order, by Ext.P9 the same was refused. Thereafter by Ext.P10, a **WP(C) NO.23467 OF 2018** **4** hearing notice was also given to the 2[nd] petitioner. In the meantime, it appears that he had approached this Court for non-implementation of the interim order so passed under Ext.P8. By Ext.11, a Division Bench of this Court took notice of the submissions of parties and closed contempt petition as the interim order was complied. Later by judgment dated 05.03.2018, the Division Bench disposed of the Writ Appeal directing the 1[st] respondent to take a decision on the revision petition. It is pursuant to the said direction, Ext.P15 has been passed which is impugned in the Writ Petition. 4. I have heard Sri.K.R.Krishnakumari, learned counsel appearing for the petitioners and Sri.Bimal K Nath, the learned Senior Government Pleader appearing for the respondents 1 to 4. 5. The learned counsel for the petitioner reference to Rule 37 of Chapter XIV A KER, which provides for seniority of a teacher in any unit to be decided with reference to the length of continuous service in that grade in the unit provided is duly qualified. The learned counsel further submitted that while the 2[nd] petitioner was appointed as HSA (Malayalam) and his appointment was approved with effect from **WP(C) NO.23467 OF 2018** **5** 01.09.2009 and whereas the 5[th] respondent was appointed in 1[st] respondent School only on 29.01.2010. The seniority has to be reckoned in terms of Rule 37 of Chapter XIV A KER from the date of respective appointment. 6. On the other hand, learned Senior Government Pleader contends with reference to the averments contained in the counter affidavit and submits that there is nothing illegal in the 1[st] respondent’s decision under Ext.P15. The 5[th] respondent, who is having an approved service with effect from 17.07.1989 and being a protected teacher from another School seniority of two teachers cannot be determined as per Rule 37 of Chapter XIV A KER . It is further contended that with reference to the seniority of the 2[nd] petitioner established the 5[th] respondent cannot be determined in terms of Rule 37 of Chapter XIV A KER. Therefore, it is prayed that Ext.P15 order may be sustained. 7. On a consideration of rival submission at Bar, this Court find that there is force in the contention of the petitioner. When Rule 37 of Chapter XIV A KER provides the method of reckoning of seniority, the 1[st] respondent cannot take a decision contrary to the statutory rules. It may be true **WP(C) NO.23467 OF 2018** **6** that the 5[th] respondent may be a protected teacher who was deployed from a parent school. But fact remains that the seniority has to be reckoned in terms of Rule 37 of Chapter XIV A KER. This principle is affirmed by the Full Bench of this Court in **Abraham v. State of Kerala [2009 (3) KLT 659]** Going by the indisputed facts on record, the 5[th] respondent joined in the 1[st] petitioner School in the year 2010, whereas, the 2[nd] petitioner was already working in the School from 2009 onwards. The 1[st] respondent cannot recognize the claim of the 5[th] respondent as in better terms that of the 2[nd] petitioner contrary to the statutory rules. The learned counsel for the petitioners also points out that during the pendency of the writ petition the 5[th] respondent was re-deployed to the parent school and he retired from service and whereas the 2[nd] petitioner is still continuing in service of the 1[st] petitioner school. Considering the above facts and circumstances and also especially evaluating the contentions with reference to Rule 37 of Chapter XIV A KER, this Court comes into the conclusion that the findings recorded in Ext.P15 cannot be sustained. Accordingly, Exts.P3, P4, P12 and P15 orders are quashed and **WP(C) NO.23467 OF 2018** **7** Writ Petition is allowed. The 2[nd] petitioner is entitle to be retained in the 1[st] petitioner School with all consequential benefits. **Sd/-EASWARAN.S, JUDGE** lsn **WP(C) NO.23467 OF 2018** **8** ## **APPENDIX OF WP(C) 23467/2018** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 29.05.2013 IN W.P.(C)NO. 30593/2009. EXHIBIT P2 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT BEARING NO. B4/1666/2010 K.DIS.DATED 29.01.2010.** **EXHIBIT P3 TRUE COPY OF THE STAFF FIXATION ORDER OF THE 1ST PETITIONER'S SCHOOL FOR THE ACADEMIC YEAR 2017-18 DATED 12.07.2017. EXHIBIT P4 TRUE COPY OF ORDER B1/12328/2017 DATED 14.07.2017 ISSUED BY THE THIRD RESPONDENT. EXHIBIT P5 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 18.07.2017 IN W.P. (C)NO. 23771/2017. EXHIBIT P6 TRUE COPY OF THE REVISION PETITION DATED 31.10.2017 SENT BY THE PETITIONERS TO THE 1ST RESPONDENT. EXHIBIT P7 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 13.12.2017 IN W.P. (C)NO. 32454/2017. EXHIBIT P8 TRUE COPY OF THE ORDER OF A DIVISION BENCH OF THIS HON'BLE COURT DATED 21.12.2017 IN I.A.NO. 1596/17 IN W.A.NO. 2673/17. EXHIBIT P9 TRUE COPY OF THE ORDER DIVISION BENCH OF THIS HON'BLE COURT DATED 22.01.2018 IN I.A.NO. 89/18 IN W.A.NO.2673/17.** **EXHIBIT P10 TRUE COPY OF THE HEARING NOTICE DATED 10.01.2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P11 TRUE COPY OF THE ORDER OF A DIVISION BENCH OF THIS HON'BLE COURT DATED** **WP(C) NO.23467 OF 2018** **9** **14.02.2018 IN CON.CASE (C)NO. 90/18 IN W.A.NO.2673/17. EXHIBIT P12 TRUE COPY OF THE STAFF FIXATION ORDER OF THE 1ST PETITIONER'S SCHOOL FOR THE ACADEMIC YEAR 2018-19 DATED 02.07.2018. EXHIBIT P13 TRUE COPY OF THE STAFF FIXATION ORDER OF THE 1ST PETITIONER'S SCHOOL FOR THE ACADEMIC YEAR 2013-14 DATED 09.05.2014. EXHIBIT P14 TRUE COPY OF THE RELEVANT PAGES OF THE STAFF FIXATION ORDER OF THE 1ST PETITIONER'S SCHOOL FOR THE ACADEMIC YEAR 2014-15 DATED 15.07.2014.** ## **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **LSN**