W.P.(C) Nos.4632/09 & 12278/11

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **FRIDAY, THE 6TH DAY OF JANUARY 2012/16TH POUSHA 1933** ## **WPC.No. 4632 of 2009 (B)** **========================** - **PETITIONER(S) =============** **1. R.KRISHNAVENI, DEVASWOM BOARD HIGH SCHOOL, THRIKKARIYOOR, KOTHAMANGALM.** **BY ADV.SRI.ALEXANDER JOSEPH** ## **RESPONDENT(S)** - **==============** **1. STATE OF KERALA, REP. BY SECRETARY, GENERAL EDUCATION DEPARTMENT, STATE SECRETARIAT,THIRUVANANTHAPURAM.PIN-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.PIN-695 001** **3. THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM.PIN-686 691** **4. THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, OFFICE OF THE TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM.PIN-695 001** **5. THE HEADMASTER, DEVASWOM BOARD HIGH SCHOOL, THRIKKARIYOOR,KOTHAMANGALAM.PIN-686 691.** **6. K.VINOD KUMAR, CLERK,D.B.H.S.S. PARUMALA,PIN-689 101 THIRUVALLA(IMPLEADED AS PER ORDER DATED 1/10/2010 IN IA NO.13462/2010).** **R1 TO R3 BY GOVERNMENT PLEADER SMT.LOWCY.A. R4 & R5 BY ADV. SRI.K.N.VENUGOPALA PANICKER, SC, TDB SRI.G.BIJU** **SRI.T.NIKLAVU R6 BY ADV.SRI.S.SUBHASH CHAND** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-01-2012 , ALONG WITH WPC. 12278/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.4632/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE JUDGMENT DATED 7/11/02 IN O.P.16714/2000 OF THIS HON'BLE COURT.** - **P2 COPY OF THE ORDER DATED 15/3/2002 OF THE 4TH RESPONDENT.** - **P3 COPY OF THE PROCEEDINGS DATED 30/7/2003 OF THE 4TH RESPONDENT.** - **P4 COPY OF THE APPOINTMENT ORDER DATED 1/12/97 OF THE 4TH RESPONDENT.** - **P5 COPY OF THE ORDER DATED 5/3/2005 OF THE DY.DIRECTOR OF EDUCATION, ERNAKULAM.** - **P6 COPY OF THE ORDER DATED 11/5/04 ISSUED BY 3RD RESPONDENT.** - **P7 COPY OF THE REVISION PETITION DATED 19/5/05 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **P8 COPY OF THE ORDER DATED 20/11/08 OF THE 1ST RESPONDENT.** - **P9 COPY OF THE JUDGMENT DATED 12/6/08 IN WP(C)NO.27908/07 OF THIS HON'BLE COURT.** - **P10 COPY OF THE SUSPENSION ORDER DATED 29/9/08 ISSUED BY 4TH RESPONDENT.** - **P11 COPY OF THE ORDER DATED 28/5/2009.** - **P12 COPY OF THE SENIORITY LIST.** ## **RESPONDENT'S EXHIBITS:** - **R6(A) COPY OF THE APPOINTMENT ORDER DATED 01/2/2003 AND ORDER OF APPROVAL DATED 12/11/2004 ENDORSED ON THE SAME.** - **R6(B) COPY OF THE APPOINTMENT ORDER DATED 01/3/2005 ISSUED TO THE PETITIONER.** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** **T.R. RAMACHANDRAN NAIR, J. --------------------------------------W.P.(C) Nos.4632 OF 2009 & 12278 OF 2011** **--------------------------------------Dated this the 6[th] day of January, 2012.** ## **J U D G M E N T** The petitioners in both the writ petitions are working in the school under the Management of the Travancore Devaswom Board. The 6[th] respondent in W.P.(C) No.4632/2009 is working as Clerk and the order passed by the Management as per Ext.P11 promoting him as Clerk is also under challenge in that writ petition. In W.P.(C) No.12278/2011, the 6[th] respondent in W.P.(C) No.4632/2009 is the 3[rd] petitioner and all the petitioners are challenging the orders refusing approval of their appointments. 2. I shall first refer to the facts of W.P.(C) No.4632/2009. The petitioner therein is mainly aggrieved by Ext.P8 order passed by the Government whereby the period of absence from 10.02.1998 to 23.03.2003 has been directed to be regularised as Leave Without Allowance under Rule 88 Part I K.S.R on condition **W.P.(C) Nos.4632/09 & 12278/11** **2** that the leave period will not count for increment, higher grade, pension or accumulation of earned leave. The prior history of the same shows that the petitioner was initially appointed as Full Time Menial on 01.12.1997 as dependant of her father, under the dying in harness scheme. From 09.02.1998 onwards, she had availed maternity leave. It appears that she was expelled/terminated from service by withdrawing the proposal for appointment etc. A Division Bench of this Court in Ext.P1 judgment interfered with the same on finding that there is gross violation of the principles of natural justice as no enquiry was conducted in the matter. Consequential directions were also issued. The petitioner was thereafter reinstated after exonerating her from the charges and the Management forwarded the appointment order Ext.P4 for approval and the petitioner's appointment as Full Time Menial was approved from 24.03.2003. 3. The Management in the meanwhile had passed Exts.P2 and P3 orders and by Ext.P2, after directing reinstatement, it was observed that the regularisation of the period for which the petitioner was out of service will be decided later and by Ext.P3, **W.P.(C) Nos.4632/09 & 12278/11** **3** it was ordered that the period of absence of the petitioner from duty as Full Time Menial is regularised as she is deemed to have been retrenched from service with permission to allow her as Full Time Menial with effect from the date of reinstatement in service. 4. The petitioner challenged the order of the District Educational Officer Ext.P4 confining approval from 24.03.2003 and the Deputy Director of Education passed an order as per Ext.P6 directing to treat the period of retrenchment from 10.02.1998 to 23.03.2003 as Leave Without Allowance. It was also ordered that the appointment of the petitioner for the period from 01.12.1997 to 09.02.1998 will also be approved. This was confirmed by the Director of Public Instruction as per Ext.P5. Finally, the Government passed Ext.P8 order. Ext.P9 is the judgment of this Court in W.P.(C) No.27908/2007 filed by the petitioner wherein the relief sought for was for a direction to approve the promotion granted to the petitioner as Peon with effect from 01.03.2005. It appears that the petitioner was later placed under suspension. It is now submitted that the petitioner has been reinstated already. **W.P.(C) Nos.4632/09 & 12278/11** **4** 5. In W.P.(C) No.12278/2011, consequent on the promotion of the 3[rd] petitioner as Clerk, in the resultant vacancies the petitioners 1 and 2 have been appointed. Exts.P9 to P9(b) are the appellate orders confirming rejection of approval of appointments and Exts.P10 to P10(b) are the orders passed by the Director of Public Instruction in the revision petitions filed by the Manager. Two grounds mainly have been taken to reject the approval; one is that the approved final seniority list has not been forwarded and in Ext.P10(b), another ground taken is that the DBHS, Parumala is one coming under the category of newly upgraded one and the Manager has not appointed any protected teacher. In fact, learned counsel for the petitioner submitted that this Court had occasion to consider the grant of approval on the basis of the provisional seniority list as per Ext.P5 judgment along with the declaration filed by the Manager. That was taken up in appeal before the Division Bench and the Bench also directed grant of approval based on the provisional seniority list as evident from Ext.P6 judgment. Following the same, by Ext.P7 also, directions were issued to the District Educational Officer with regard to the approval of appointment based on the **W.P.(C) Nos.4632/09 & 12278/11** **5** provisional seniority list and the declarations filed by the Manager. With regard to the remaining objection taken in Ext.P10(b), it is pointed out that no protected non teaching staff was there in the educational district as evident from Ext.P11 reply given by the Public Information Officer attached to the office of the Deputy Director of Education. 6. Learned counsel for the petitioner submitted that in the light of the judgment of this Court in _**Moosakutty** vs._ _**D.E.O, Wandoor**_ (2009 (3) KLT 863), the above objection will not survive. Reliance is also placed on the judgment in W.P.(C) No. 19185/2011 concerning the very same school namely, D.B.H.S Parumala. It is pointed out that pursuant to the said judgment, the approval of the appointment to the petitioner therein has been granted by the District Educational Officer. 7. As far as W.P.(C) No.4632/2009 is concerned, learned counsel for the petitioner submitted that termination from service was found illegal by the Division Bench in Ext.P1 judgment and the Management has also recognised the right of the petitioner to retain the period of absence to be regularised going by Ext.P3 order, and the Government also in the main body of the order **W.P.(C) Nos.4632/09 & 12278/11** **6** has found that the termination was not justified. It is, therefore, pointed out that the direction finally issued by the Government in Ext.P8 that the period from 10.02.1998 to 23.03.2003 will be regularised with certain conditions but depriving various service benefits cannot be supported. 8. The Government relied on Rule 88 of Part I K.S.R while imposing the above condition. It is a case where the petitioner initially availed maternity leave and subsequently a termination was effected by the Management. It is true that in Ext.P1 judgment, reinstatement with backwages and reckoning the period for regularisation was not considered. The Management in Ext.P3 ordered that the petitioner will be entitled for such benefits. In such a case, whether the period can be treated as Leave Without Allowance is the question raised by the learned counsel for the petitioner. 9. In fact, a Division Bench of this Court in _**State of Kerala** vs._ _**Dr.V.M. Kurshid**_ (ILR 2000 (1) Kerala 535) has considered the question whether under Rule 88 when leave is granted, the above condition could be imposed. The view taken by the Bench is that Rule 88 expressly doesn't provide for **W.P.(C) Nos.4632/09 & 12278/11** **7** imposition of such a condition. If that be so, the condition provided that too without considering the legal right of the petitioner could not have been imposed, learned counsel for the petitioner submits. 10. Learned Government Pleader submitted that it is a case where the Management had withdrawn the proposal and without any enquiry, terminated the petitioner and finally she joined duty on 24.03.2003. But considering various aspects including Ext.P3, I am of the view that the Government ought to have considered whether notional benefit could be granted for the period from the date of termination till reinstatement and grant of approval as well as to treat the period for increment and for pension along with salary for the period covered by maternity leave. In Circular No.72/2005/Fin. dated 30.12.2005 wherein in the Annexure as against serial No.3 namely, LWA under Rule 88 otherwise than on medical certificate i.e. private/personal/domestic and for regularising the unauthorised absence/suspension, it is mentioned that service benefits for which L.W.A will not count are increment, higher grade, pension or accumulation of earned leave. Petitioners' was not a case of unauthorised absence, but **W.P.(C) Nos.4632/09 & 12278/11** **8** illegal termination, as held by this Court in Ext.P1 judgment. It does not appear whether the Government has considered the effect of Ext.P1 judgment while passing Ext.P8 order. Therefore, the matter requires reconsideration by the Government and the limited question whether the period can be counted for the purpose of increment, maternity leave benefits and for pension will be considered by the Government as this is not a case of unauthorised absence but termination from service which was found illegal by Ext.P1 and in the later enquiry petitioner was exonerated of the charges leading to her reinstatement. 11. The challenge against Ext.P11 is on the plea that the petitioner in W.P.(C) No.4632/2009 is senior to the 6[th] respondent. As far as the said issue is concerned, going by the provisional seniority list, the 6[th] respondent is shown as senior. From Ext.P9 judgment, it can be seen that the petitioner agreed before this Court that the approval of appointment as Peon can be from 01.11.2005 and Ext.R6(b) order produced by the 6[th] respondent will show that approval has been granted from 01.11.2005. **W.P.(C) Nos.4632/09 & 12278/11** **9** 12. As far as the 6[th] respondent is concerned, he was posted as Peon on 01.02.2003. Learned counsel for the petitioner in W.P.(C) No.4632/2009 submitted that the petitioner may be given liberty to file objections to the provisional seniority list and the learned counsel for the Management submitted that the list has not been finalised so far in view of the objections submitted by various persons. Therefore, it is open to the petitioner to submit objections to the provisional seniority list of Full Time Menial which will be duly considered by the Management. 13. As regards W.P.(C) No.12278/2011 is concerned, it can be seen that the stand taken by the Department is that a proper approved seniority list has not been forwarded for considering the grant of approval. Their plea is that as per Rule 35 of Chapter XIV-A K.E.R, the Manager has to prepare the seniority list and got it approved. 14. With regard to the obligation of the Management to appoint a protected hand, in paragraph 20 of the counter affidavit filed by the 4[th] respondent in W.P.(C) No.12278/2011, the stand taken is that the judgment of this Court in _**Moosakutty** vs._ **W.P.(C) Nos.4632/09 & 12278/11** **10** _**D.E.O, Wandoor**_ (2009 (3) KLT 863) cannot be considered in other cases and hence the list of protected hands in the Educational District alone is not sufficient for approval of appointment of the petitioner. It is also mentioned that if there is no protected hand in the Revenue District, then the availability of protected hand from other nearby districts are also to be verified and if available they will be deployed to such schools. 15. I shall first deal with the contention regarding the availability of protected hands. Evidently, going by Ext.P11 produced by the petitioners in W.P.(C) No.12278/2011, it can be seen that no protected hands are available in the Educational District. Therefore, the dictum laid down in _Moosakutty's_ case (supra) squarely applies to this case. The wrong understanding of the dictum laid down therein as projected in paragraph 20 of the counter affidavit cannot be accepted at all. When this Court lays down the legal position, it is binding on the Department and the Department cannot take a stand that the view taken by this Court is only in respect of a one particular school and the parties therein and that cannot be accepted in the other cases. The dictum laid down by this Court is on interpretation of the **W.P.(C) Nos.4632/09 & 12278/11** **11** statutory provisions which therefore binds all concerned. Evidently, even going by paragraph 20 of the counter affidavit, it can be seen that the Department is only of the view that there will be protected hands in other nearby districts. In _Moosakutty's_ case, the legal position was explained by this Court in paragraphs 6, 8 and 9 thus: “Going by R.6(viii), the Manager will have to execute an agreement that he is prepared to absorb qualified teachers/non teaching staff who have been retrenched from any of the aided high schools in Education district or aided primary school in the Education Sub-District in which the applicant proposes to open/upgrade the school. Since the school in question is only an Upper Primary School, prior to 1990, the obligation as such is confined to the prescriptions of the said paragraph. Under R.9 of Chap.III the Manager will have to abide by the orders that will be issued from time to time by the Government and the Department “inconformity with the provisions of the Act and the Rules issued thereunder”. Here, the Manager has executed Ext.P6 agreement whereby, he has obliged himself to appoint a protected Teacher from any one of the Aided Primary School in Wandoor Educational SubDistrict. This is in terms of sub-r.(viii) of R.6 of **W.P.(C) Nos.4632/09 & 12278/11** **12** Chap.V K.E.R. Therefore, in terms of sub-r.(1) of R.9 of Chap.III K.E.R, Ext.P6 can be enforced against the Manager. The scope of the same cannot be widened as proposed now by relying upon Government Order, G.O.(P) No.83/88/G.Edn., dated 18.04.1988. An executive order cannot go against and override the express statutory prescriptions. Unless the Rules are amended in terms of the executive order, by appropriate means, the same cannot be sought to be enforced”. 16. Therefore, the availability of any protected hand in other Revenue District cannot be a ground to reject the proposal for approval of the petitioners. Regarding the absence of seniority list also, the position as on today is that the Management has published a provisional seniority list. They have forwarded the declarations also as evident from Exts.P8 to P8(b). The very question whether those can be acted upon was considered by this Court in Ext.P5 judgment which stands confirmed by Ext.P6 by the Division Bench. The Division Bench, in paragraph 2, has held as follows: “........We do not find any justification for the appellants to decline approval of his promotion as Peon and that of the appointment of the Menial in the **W.P.(C) Nos.4632/09 & 12278/11** **13** vacancy arising on account of the promotion of the 1[st] respondent as Peon on the technicality stated by them i.e. want of proper seniority list. Therefore, we direct the appellants to treat Ext.P8 as a valid seniority list and approve the appointment of the 1[st] respondent as Peon with effect from 01/01/2008 and release him arrears of salary without any delay. If any other claimant stakes a claim and is found to be entitled to be appointed in preference to the 1[st] respondent, then all costs consequential thereto shall be recovered by the Government from the management i.e. the Devaswom Board, and the Devaswom Board in turn from the Secretary, if he is found responsible”. This judgment is in respect of the schools under the same Management. 17. The judgment of the Division Bench is subsequent to the impugned orders passed herein. It is also clear that in a later judgment in W.P.(C) No.19185/2011, this Court directed consideration of approval of appointment of one Sri.S.V. Anil (the petitioner therein), Peon, Devaswom Board Higher Secondary School, Parumala, the same school wherein the 3[rd] petitioner in W.P.(C) No.12278/2011 has been appointed as Clerk. Therein, this Court after relying upon the judgment in _Moosakutty's_ case **W.P.(C) Nos.4632/09 & 12278/11** **14** has directed grant of approval of appointment and it is submitted by the learned counsel that approval has already been granted. Therefore, on that premise also, the objections by the Department cannot survive. Therefore, the impugned orders in W.P.(C) No.12278/2011 are quashed. The writ petitions are disposed of with the following directions: 18. The petitioner in W.P.(C) No.4632/2009, if aggrieved by the provisional seniority list of Full Time Menials, can submit her objections if any within a period of three weeks which will be duly considered by the Management. The Government will reconsider the plea of the petitioner with regard to the grant of maternity leave benefits, and the request for treating the period as regularised for grant of increment and pension will also be considered and appropriate orders will be passed, after hearing the petitioner and the Management, within a period of five months from the date of receipt of a copy of this judgment. Ext.P8 order to the extent to which such benefits are denied, is therefore quashed. As far as W.P.(C) No.12278/2011 is concerned, there will be a direction to the District Educational Officer to grant approval of **W.P.(C) Nos.4632/09 & 12278/11** **15** appointment of the petitioners by relying upon the provisional seniority list as well as the declarations submitted by the Manager. Appropriate orders will be passed within a period of six weeks from the date of receipt of a copy of this judgment. There will be a direction to the Management to finalise the seniority list within a period of five months after considering the objections raised by various parties and also after taking various steps in terms of the Rules. It is made clear that the approval granted in terms of the directions issued in W.P.(C) No.12278/2011 will be subject to the approval of the final seniority list. No costs. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp