T.S. Padmaja v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941** ## **WP(C).No.27387 OF 2016(W)** ## **PETITIONER/S:** **T.S. PADMAJA, AGED 44 YEARS, W/O. K.S.JAYAKUMAR, HIGHER SECONDARY SCHOOL TEACHER (MALAYALAM), VIVEKODAYAM BOY'S HIGHER SECONDARY SCHOOL, THRISSUR DISTRICT - 680 001.** **BY ADVS. SRI.V.A.MUHAMMED SMT.P.A.JENZIA** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM - 695 001.** - **3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, ERNAKULAM AT EDAPPALLY - 682 024.** - **4 THE MANAGER, VIVEKODAYAM BOY'S HIGHER SECONDARY SCHOOL, THRISSUR DISTRICT - 680 001.** - **5 SHRI.N.VENUGOPALAN, HSST (MATHEMATICS), VIVEKODAYAM BOY'S HIGHER SECONDARY SCHOOL, THRISSUR DISTRICT - 680 001.** - **6 SMT. A. RAJI, HSST (HINDI),VIVEKODAYAM BOY'S HIGHER SECONDARY SCHOOL, THRISSUR DISTRICT - 680 001.** - **7 SMT. S.SHYLAJA, HSST (CHEMISTRY), VIVEKODAYAM BOY'S HIGHER SECONDARY SCHOOL, THRISSUR DISTRICT - 680 001.** **W.P.(C) No.27387 of 2016 2** **BY ADVS. R1 TO R3 - SMT. MARY BEENA JOSEPH, SENIOR GOVERNMENT PLEADER R5 TO R7 - SRI.G.SREEKUMAR (CHELUR)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-11-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C) No.27387 of 2016** **3** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P3 proceedings of the Manager of Vivekodayam Boys' Higher Secondary School, Thrissur, the 4[th] respondent herein, and also to quash Exts.P4 and P6 orders passed by the Regional Deputy Director, Higher Secondary Education, Ernakulam by which Ext.P3 proceedings of the Manager was approved, and affirmed by the State Government in revision respectively. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner commenced service as High School Assistant (H.S.A) in the school from 08.09.1994. She was promoted as HSST (Part-time) Malayalam with effect from 01.09.1998 against the vacancy earmarked for promotion. She was granted promotion prior to the introduction of Chapter XXXII in the Kerala Education Rules (K.E.R), which deals with method of appointment and qualifications of teachers and non-teaching staff in Aided Higher Secondary Schools. The Government as per G.O.(Rt)No.162/1998/G.Edn. dated 13.05.1998 ordered that teachers appointed from General Education Service against the 25% vacancies should be treated as Full- ## **W.P.(C) No.27387 of 2016 4** time teacher, even if the periods are less than 15 periods per week. The Government as per G.O. (Ms.)No.351/2004/G. Edn. dated 20.11.2004 have extended the benefit to the Aided School teachers as well. Accordingly, petitioner was granted the consequential benefits including increment and grade. However, when the seniority list was prepared by the Manager, seniority in the cadre of HSST with effect from the date of promotion is denied. It was being aggrieved by the said action, petitioner has approached the educational authorities and finally the Government as per Ext.P6 declined the reliefs sought for by the petitioner. 3. A detailed counter affidavit is filed by respondents 5 to 7, refuting the claims and demands raised by the petitioner that she is entitled to get seniority in the post of HSST against the said respondents. According to the 5[th] respondent, himself and the 7[th] respondent viz., Smt. S.Shylaja joined service as HSST by direct recruitment on 01.09.1998. Petitioner and the 6[th] respondent were promoted from H.S.A to HSST (Jr.) on the very same date. Therefore, even if the date of appointment of the petitioner is to be reckoned from 01.09.1998, in the light of Exts.P1 **5** ## **W.P.(C) No.27387 of 2016** and P2 Government Orders, petitioner could not claim seniority over them. It is also pointed out that, the date of birth of respondents 5 to 7 is before the date of birth of the petitioner and, therefore, by virtue of Rule 37 sub-rules (1) and (2) of Chapter XIV K.E.R., the 5[th] respondent would be the seniormost HSST followed by 6[th] and 7[th] respondents, since the date of appointment to the post of HSST is the same. Other contentions are also raised, justifying the stand adopted by the State Government in Ext.P6. 4. The Regional Deputy Director of Higher Secondary Education has also filed a counter affidavit, justifying its stand and the stand adopted by the Government. 5. I have heard learned counsel for the petitioner, learned Senior Government Pleader and the learned counsel appearing for respondents 5 to 7, and perused the pleadings and the documents on record. 6. The discussion made above would make it clear that the issue basically revolves around Ext.P3 seniority list prepared by the Manager of the school. The details of seniority provided to HSST as on 1[st] January, 2015 among the petitioner and respondents 5 to 7 is reflected in Sl.Nos.5 and 2 to 4 respectively. **W.P.(C) No.27387 of 2016 6** 7. On a reading of the seniority list, it is clear that the 5[th] respondent viz., Sri. N.Venugopalan was appointed provisionally as HSST on 01.09.1998. The 6[th] respondent viz., Smt. A. Raji was appointed as H.S.A on 08.08.1996 and promoted as HSST (Part-time) on 01.09.1998 and HSST (Full-time) on 15.07.2000. The 7[th] respondent viz., Smt. S.Shylaja was appointed as HSST on 01.09.1998 and the petitioner was appointed as H.S.A on 08.09.1994, HSST (Part-time) on 01.09.1998 and HSST (Full-time) on 15.07.1999. Therefore, it can be seen that, petitioner is not having any claim over respondents 5 and 7 respectively. However, the 6[th] respondent viz., Smt. Raji A. was appointed as U.P.S.A on 07.06.1993 and H.S.A on 08.08.1996, whereas petitioner was appointed as H.S.A on 08.09.1994. Therefore, it is clear that, even though petitioner's claim against respondents 5 and 7 cannot be sustained, the claim of the petitioner against the 6[th] respondent is sustainable, in view of the fact that petitioner was appointed as H.S.A on 08.09.1994 and the 6[th] respondent was appointed as H.S.A only on 08.08.1996. 8. Therefore, even though petitioner and the 6[th] respondent were promoted and appointed as Part-time HSST on 01.09.1998, in view of the seniority of the ## **W.P.(C) No.27387 of 2016** **7** petitioner in the lower cadre as H.S.A will have to be taken into account for fixing the seniority. The said issue was considered by this Court in ' _**Raveendran Nair v. State of Kerala**_ ' [2001 KHC 508 : 2001 (2) KLT 809] and basically held that the promotees should carry along their seniority in the lower cadre when promotion to the higher post is effected. The said issue was again considered by this Court in ' _**Lilly V.A. v. State of Kerala and Others**_ ' [2016 KHC 414 : 2016 (2) KLT 649], and held that, Chapter 14A and the provisions thereunder would not apply to Chapter 32 and the determination of seniority under Chapter 32 would have to be made on the general principles. 9. In view of the said legal position, I do not think Ext.P6 order passed by the State Government dated 26.07.2016 is correct to the extent of seniority by and between the petitioner and the 6[th] respondent viz., Smt. A. Raji. In fact the Government examined the matter taking into account the fact that the petitioner was granted full time benefit of HSST from 01.09.1998 but the post remained as HSST (Jr.) throughout the academic year 1998-99 and the post was upgraded from the academic year 1999-2000 and the petitioner was appointed as HSST with effect from 15.07.1999. **W.P.(C) No.27387 of 2016 8** However, the issue with respect to Part-time HSST was considered by this Court in the judgment in ' _**Meenakshikutty v. State of Kerala**_ ' [2011 (1) KLT 1032] taking into account G.O.(MS.)No.62/73/G. Edn. dated 02.05.1973, and held that the object of the Government Order is to treat the teacher as a full time teacher for all intents and purposes including consideration for appointment as Headmaster. 10. In that view of the matter, I am of the considered opinion that, petitioner is entitled to succeed in this writ petition so far as the seniority by and between the petitioner and the 6[th] respondent is concerned. Therefore, the writ petition is allowed partly, and there will be a direction to the 4[th] respondent Manager to re-arrange the seniority of the petitioner above Smt. Raji A., and pass appropriate orders, at the earliest, and at any rate, within one month from the date of receipt of a copy of this judgment. ## **Sd/-** ## **SHAJI P.CHALY** **St/-14.11.2019** ## **JUDGE** **W.P.(C) No.27387 of 2016** **9** ## **APPENDIX OF WP(C) 27387/2016** ## **PETITIONER'S/S EXHIBITS:** |**P1**|**TRUE COPY OF THE GO(MS) NO.162/1998/G.EDN**| |---|---| ||**DT. 13.5.1998.**| |**P2**|**TRUE COPY OF THE GO(MS) NO.351/2004/G.EDN.**| ||**DT. 20.11.2004.**| |**P3**|**TRUE COPY OF THE SENIORITY LIST DT.**| ||**15.1.2015.**| |**P4**|**TRUE COPY OF THE COMMUNICATION LETTER DT.**| ||**22.2.2016.**| |**P5**|**TRUE COPY OF THE REVISION PETITION DT.**| ||**04.3.2016.**| |**P6**|**TRUE COPY OF THE GO(RT.) NO.**| ||**2432/2016/G.EDN. DT. 26.7.2016 OF THE**| ||**GOVERNMENT.**| |**P7**|**TRUE COPY OF THE ORDER IN IA NO.3013/2016**| ||**IN WPC NO.28008/2015-A DT. 23.3.2016.**| |**P8**|**TRUE COPY OF THE JUDGMENT IN W.P.**| ||**(C)NO.33223/2002 DATED 28.08.2003.**| |**P9**|**TRUE COPY OF THE LIST OF TEACHERS LIKELY TO**| ||**BE POSTED AS CAMP DUTY STAFF FOR THE HS**| ||**VALUATION MARCH, 2017 ISSUED BY THE**| ||**DIRECTOR OF HIGHER SECONDARY EDUCATION.**| |**RESPONDENTS'**|| |**EXHIBITS:**|| |**EXHIBIT R5(A)**|**A TRUE COPY OF THE ORDER**| ||**NO.VBHSS/HSE/02/2015 DATED 31.03.2015**| ||**PASSED BY THE 4TH RESPONDENT.**| |**EXHIBIT R5(B)**|**A TRUE COPY OF THE ORDER**| ||**NO.A2/3671/RDDE/HSE/2015 DATED 01.04.2015**| ||**PASSED BY THE 3RD RESPONDENT.**| **W.P.(C) No.27387 of 2016 10**