T.S. Meena v State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** # **TUESDAY, THE 12TH DAY OF JANUARY 2016/22ND POUSHA, 1937** ## **WP(C).No. 12676 of 2006 (H)** **----------------------------** **PETITIONER(S):** **--------------------------** **T.S.MEENA,HSA (ENGLISH) V.H.S.S.,** **BRAHMAMANGALAM P.O., VAIKOM, KOTTAYAM DISTRICT.** **BY ADVS.SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA,REP.BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, TRIVANDRUM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM.** **3. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM.** **4. THE DISTRICT EDUCATIONAL OFFICER, KADUTHURUTHY, KOTTAYAM DISTRICT.** **5. THE MANAGER,V.H.S.S.,BRAHMAMANGALAM P.O, VAIKOM, KOTTAYAM DISTRICT.** **6. SMT.K.MANJU,UPSA,V.H.S.S., BRAHMAMANGALAM P.O., VAIKOM, KOTTAYAM DISTRICT.** **7. K.LAKSHMANAN,UNDER SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT, GOVT.SECRETARIAT TRIVANDRUM.** **CONTD..2..** **.. 2..** ## **WP(C).No. 12676 of 2006 (H)** **8. SMT,.M.VALSALAKUMARI,JOINT SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT GOVT.SECRETARIAT, TRIVANDRUM.** ## **ADDL. RESPONDENTS*:** **R9. K.J. LALMON, PHYSICAL EDUCATION TEACHER,** **V.H.S.S BRAHMAMANGALAM BRAHMAMANGALAM PO VAIKOM, KOTTAYAM DIST.** **(* IS IMPLEADED AS ADDL. 9TH RESPONDENT AS PER ORDER DTD. 19.7.06 IN I.A NO.9716 /06)** **R,R6 BY ADV. SRI.V.A.MUHAMMED R,R6 BY ADV. SRI.K.E.HAMZA R,R5 BY ADV. SRI.BRIJESH MOHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-01-2016, ALONG WITH W.P.(C) NOS. 17790/06 & 33752/05, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 12676 of 2006 (H)** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1 COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DTD. 2.6.03 ISSUED BY THE 5TH RESPONDENT.** **EXT.P2 COPY OF THE LETTER NO. B2/2457/03 DTD 18.12.03 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT. EXT.P3 COPY OF THE ORDER NO. B3/11059/03-D DTD. 21.2.04 ISSUED BY THE 3RD RESPONDENT. EXT.P4 COPY OF THE JUDGMENT DTD. 27.7.04 IN W.P(C) NO.17474/04 OF THIS HON'BLE COURT EXT.P5 COPY OF THE ORDER NO.ST/3/23908/04/KDIS DTD. 23.08.04 ISSUED BY THE 2ND RESPONDENT. EXT.P6 COPY OF THE REVISION PETITION SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 1ST RESPONDENT DTD. 23.9.04 EXT.P7 COPY OF THE JUDGMENT DTD.7.3.05 W.P(C) NO.7533/05 OF THIS HON'BLE COURT. EXT.P8 COPYOF THE HEARING NOTICE NO.37871/A1/05/GL.EDN. DTD. 30.7.05 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER AND RESPONDENTS 5 & 6. EXT.P9 COPY OF THE ORDER NO. 32078/E2/G.EDN. DTD. 12.9.05 ISSUED BYTHE 1ST RESPONDENT TO THE 6TH RESPONDENT. EXT.P10 COPY OF THE HEARING NOTICE NO. 37871/A1/05/GL.EDN. DTD. 20.12.05 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER AND RESPONDENTS 5 & 6/ EXT.P11 COPY OF THE NOTICE DT D. 11.1.06 TO THE RESPONDENTS 7 & 8. EXT.P12 COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DTD. 5.1.06 (VIDE NO.37871/A1/05/GL.EDN. DATED 20.12.05). EXT.P13 COPY OF THE GOT. ORDER DTD. 3.4.06 VIDE NO GO(RT) 1430/06/GL.EDN. ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER AND RESPONDENTS 2 TO 6. EXT.P14 COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2002-03 ORDER NO.2621/02/B2 DTD. 22.7.02 ISSUED BY THE 4TH RESPONDENT.** **CONTD..2..** **.. 2 ..** ## **WP(C).No. 12676 of 2006 (H)** - **EXT.P15 COPY OF THE STAFF FIXATION ORDER FOR THE ACADEMIC YEAR 2003-04 ORDER NO.DDIS.78712/04/RA(4)/DPI DTD.11.5.05 ISSUED BY THE 4TH RESPONDENT.** **EXT.P16 COPY OF THE STAFF STATEMENT AS ON 2.6.03 ISSUED BY THE 5TH RESPONDENT.** **EXT.P17 COPY OF THE ORDER NO.B2/3866/06/K.DIS DTD. 14.3.07 ISSUED BY THE 4TH RESPONDENT.** ## **RESPONDENTS EXHIBITS:** **EXT.R5(A) COPY OF APPOINTMENT ORDER ISSUED TO THE PETITIONER BY THE 5TH RESPONDENT DTD. 2.6.03.** **EXT.R5(B) COPY OF ARGUMENT NOTE SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 1ST RESPONDENT D TD. 7.01.06. EXT.R6(A) COPY OF THE GO(MS) NO.155/88/6/EDN. OF THE GOVT. EXT.R6(B) COPY OF THE GO(MS) NO.187/03/G.EDN. OF THE GOVT. EXT.R6(C) COPY OF THE GO(RT) NO.2038/03/G.EDN. OF THE GOVT.** **// TRUE COPY //** **P.A TO JUDGE** ## **SB** ## **K. VINOD CHANDRAN, J.** ## **===================== W.P.(C) Nos.12676 of 2006 - H, 17790 of 2006 - P and 33752 of 2005 - R** **====================== Dated this the 12[th] day of January, 2016** ## **J U D G M E N T** The issue raised in the three writ petitions are one and the same and the multiple cases were necessitated for reason of the Government having first rejected a revision without any consideration by a cryptic order; then issuing a subsequent order, re-posting the case and then passing an order reversing the earlier order and allowing the revision. The parties are referred to by their names or designation and the documents are referred to from the writ petition in W.P.(C) No.12676 of 2006. 2. One T.S Meena was appointed as H.S.A (English) on 02.06.2003 in the respondent school by Ext.P1 order. The rival claimant is Manju K., a U.P.S.A in the same school, who aspired **2** W.P.(C) Nos.12676 of 2006 - H & connected cases for promotion to the post of H.S.A (Social Science). Ext.P1 appointment as H.S.A (English) was approved and the U.P.S.A challenged the appointment of the petitioner, raising a claim under Rule 43 of Chapter XIVA of Kerala Education Rules, 1959 (K.E.R), contending that she ought to have been promoted to the vacancy, which arose in H.S.A (Social Science) by way of retirement on 30.03.2003. 3. The request for promotion and appointment as H.S.A (Social Science) stood rejected by Ext.P3. In the meanwhile, the direct recruit, T.S. Meena approached this Court since her approval was getting delayed. This Court by Ext.P4, directed consideration and pursuant to such direction, the H.S.A (English) appointment, by direct recruitment was approved. Against Ext.P3, the U.P.S.A had filed an appeal, which also stood rejected as per Ext.P5, which was challenged in a revision produced at Ext.P6, which led to the filing of the above three writ petitions. **3** W.P.(C) Nos.12676 of 2006 - H & connected cases 4. The revision filed by the UPSA was directed to be considered as Ext.P7 of this Court dated per judgment 07.03.2005. The revision was directed to be considered within four months from the date of receipt of a copy of the judgment. Presumably due to the prescription of the period; the revisional authority by Ext.P9, without discussing the facts of the case, merely confirmed the orders passed by the educational authority and rejected the revision as devoid of merit. Ext.P9 order was challenged by the U.P.S.A in W.P.(C) No.33752 of 2005. The prayer was insofar as seeking reconsideration, since there was no consideration on merits and the U.P.S.A alleged that she was not heard. Subsequently, while the writ petition was pending, the Government strangely sought to review Ext.P9 order by Ext.P10 on the ground that the officer who heard the case first had been transferred before taking a decision. However, the decision is very evident at Ext.P9. Then the impugned order was also passed, reversing the earlier decision **4** W.P.(C) Nos.12676 of 2006 - H & connected cases and allowing the revision of the UPSA. 5. The learned Counsel for the petitioner relies on **Anil Kumar** v. **State of Kerala [2009 (3) KLT 650]** , and rightly contends that the revisional authority has become functus officio and could not have meddled with the order already passed without interference from the higher forum. Subsequently Ext.P13 was passed, allowing the claim of the U.P.S.A. The U.P.S.A filed W.P.(C) No.17790 of 2006, seeking implementation of Ext.P13 order and W.P.(C) No. 12676 of 2006 was filed by the H.S.A (English), challenging the said order. On agreement of parties, the matter was heard on facts itself since the appointments were of the year 2003-04 and the teachers cannot be relegated back to the educational authorities at this point of time, especially since the facts are before this Court. 6. The admitted fact is that in the year 2003-04, there were 18 posts of H.S.A, sanctioned as per Ext.P15. In the earlier year, there were 6 H.S.A (Social Science) working in the school of **5** W.P.(C) Nos.12676 of 2006 - H & connected cases which one retired on 31.03.2003. The staff fixation order for 2003-04 indicates that there were sanctioned only 4 posts of Social Science and hence 2 were in excess. The incumbent in one had retired in the close of the previous year. There being in existence sufficient number of H.S.A (Social Science) to occupy the sanctioned posts, there could have been no appointment made to the resultant vacancy of H.S.A (Social Science), arising on retirement. The one excess teacher could be accommodated in the H.S.A (English) post and there were still remaining 3 H.S.A (English) posts, to one of which T.S. Meena was appointed. 7. The learned Counsel for the U.P.S.A would refer to Ext.P13 order to contend that 2 of the Social Science teachers could have been shifted to the English category since they had the qualifications and such conversion was permitted as per G.O (MS)No.187/03/G.Edn. dated 16.07.2003. The said argument suffers from the fundamental fallacy that the aforesaid Government Order was issued after the appointment of H.S.A **6** W.P.(C) Nos.12676 of 2006 - H & connected cases (English) on 02.06.2003. 8. To understand the controversy better, one has to refer to G.O(MS)No.11/02/G.Edn dated 07.01.2002. The said Government Order was brought in, since Government felt that English also should be adopted as a core subject; which earlier was handled by the other teachers, of the core subjects in Social Science, Science and Maths. Having brought in English as a core subject, the Government was cautious to ensure that the H.S.A's of other core subjects are not retrenched for reason only of the introduction of a new core subject. Hence it was stipulated that any teacher in the other core subjects if facing the threat of retrenchment in a subject year; should be accommodated in the H.S.A (English) post without a fresh appointment being made to the post of H.S.A. (English). The said protection could be effected even without the required qualification for English since the accommodation was to ensure that no regular teacher in a core subject is retrenched only for the reason of the introduction **7** W.P.(C) Nos.12676 of 2006 - H & connected cases of another core subject ie., English. 9. G.O(MS) No.11/02/G.Edn by clause iii (d) also stipulated that there would be a temporary ban on promotion of claimants as per Rule 43 of Chapter XIVA K.E.R. However, exempting those, who had prescribed qualification to be posted as H.S.A (English) Hence a U.P.S.A, if possessing the necessary qualification required for H.S.A (English) could aspire to the post of H.S.A (English) but none others could have a claim to be promoted to any other core subject. This was to ensure that the newly created H.S.A. (English) posts are filled up. Reverting to the staff position as on 2003-04, there were 4 H.S.As, who were accommodated in H.S.A(Social Science) in the sanctioned vacancies of Social Science. There was one excess teacher, who was accommodated as H.S.A (English). The retirement vacancy could not be filled up since there was no sanctioned post in the academic year. The U.P.S.A could not hence be promoted under Rule 43, since her promotion could only be as H.S.A. (English). **8** W.P.(C) Nos.12676 of 2006 - H & connected cases Nor could she be promoted to the post of H.S.A (English), for reason of her being not qualified to be appointed to the said post. The appointment hence made of a qualified direct recruit as H.S.A (English) to one of the remaining 3 posts has to be upheld. 10. The further contention is with respect to the conversion as brought in by G.O(MS) No.187/03/G.Edn. dated 16.07.2003. The conversion permitted teachers' appointed in other core subjects having qualification to be appointed as H.S.A (English) to be adjusted in the vacancy of H.S.A(English) so as to enable promotion of U.P.S.A's to other core subjects. This was brought in after the appointment of the petitioner and the right accrued on the petitioner by her appointment could not have been taken away by the Government Order permitting a conversion, subsequently. 11. In such circumstance, Ext.P13 has to be set aside. The writ petition would stand allowed and the appointment of **9** W.P.(C) Nos.12676 of 2006 - H & connected cases the H.S.A (English), the petitioner in W.P.(C) No.12676 of 2006 would stand upheld. Since the appointment of H.S.A(English) has been approved and the order in revision has been set aside. W.P.(C) No.17706 of 2006 would stand dismissed. W.P.(C) No.33752 of 2005 would stand closed as the same is unnecessary, insofar as this Court has considered the issue on merits and decided the matter. In the result, W.P.(C) No. 12676 of 2006 would stand allowed, W.P.(C) No. 17790 of 2006 would stand dismissed and W.P.(C) No.33752 of 2005 would stand closed. Parties are left to suffer their respective costs. **K. VINOD CHANDRAN, JUDGE** SB/13/01/2016 // true copy // P.A to Judge.