Writ Appeals Nos.1781/2015, 1977/2015 and 2417/2015 v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MRS. JUSTICE SHIRCY V. FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938 W.A.No.1977 of 2015 IN WP(C).32339/2014 AGAINST THE JUDGMENT IN WP(C)32339/2014 of HIGH COURT OF KERALA DATED 27.7.2015 ## APPELLANT/5TH RESPONDENT: THE MANAGER CMM HIGHER SECONDARY SCHOOL, THALAKKULATHUR, KOZHIKODE 673 317 BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA ## RESPONDENTS/PETITIONER/RESPONDENT 1 TO 4 AND 6 AND 7: 1.SMT. BEEBA K. NATH HSA (ENGLISH), CMM HIGHER SECONDARY SCHOOL, THALAKKULATHUR, KOZHIKODE 673 317 2.THE STATE OF KERALA, REPRSENTED BY ITS SECRETARY, GENERAL EDUCATIONAL DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001 3.THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, THIRUVANANTHAPURAM 695 014. 4. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE, KOZHIKODE 673 001 5. THE DISTRICT EDUCATIONAL OFFICER KOZHIKODE, KOZHIKODE 673 001 6. P. SMITHA, W/O ANEESH, ANASWARA,NADUVANNUR P O, KOZHIKODE DISTRICT - 673 317 7. THE HEADMASTER CMM HIGHER SECONDARY SCHOOL, THALAKKULATHUR, KOZHIKODE 673 317 R.BY ADV. GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL R BY SRI.V.A.MUHAMMED R BY SRI.R.K.MURALEEDHARAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-10-2016, ALONG WITH WA. 1781/2015 & WA. 2417/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & SHIRCY.V, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** **Writ Appeal Nos.1781, 1977 & 2417 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of October, 2016** ## **JUDGMENT** ## _**Antony Dominic, J.**_ These writ appeals are filed by the petitioner and the party respondents in W.P.(C)No.32339/14, which was disposed of by the learned Single Judge by judgment dated 27[th] July 2015. By the said judgment, the learned Single Judge upheld Ext.P7 order impugned in the writ petition to the extent of upholding the right of the appellant in W.A.2417/15, to be appointed as HSA (English) and it was ordered that her appointment shall be approved notionally with effect from 17.11.11 and that she shall be treated senior to the appellant in W.A.1781/15. Learned Single Judge also ordered that the appellant in W.A.2417/15 shall be paid salary only from 1.8.2015. It was also ordered that the appellant in W.A.1781/15 shall be retrenched from service with effect from 31.7.15 and that she shall be paid salary till that date. It is this judgment, which is under challenge before us. W.A.Nos.1781, 1977 & 2417/15 : 2 : 2. We heard the counsel for the appellants and the learned Government Pleader appearing for the official respondents. 3. For convenience, we shall refer to the parties as they are arrayed in the writ petition. The CMM Higher Secondary School in Kozhikode district is an aided school, whose Manager is the 5[th] respondent. Consequent on the promotion of a teacher named Fathima as HSST, the petitioner, Smt.Beeba.K.Nath was appointed as HSA (English) with effect from 31.8.2010. By Ext.P3 order dated 28.11.2013, the said appointment was approved with effect from 17.11.11. Before that, with effect from 1.6.2010, the 6[th] respondent in the writ petition Smt.P.Smitha was also appointed as HSA (English), in the vacancy of Smt.Sheelamma who was promoted as Headmistress. However, that appointment was not approved by the educational authorities. 4. Consequent on the higher level verification conducted in the academic year 2010-2011, there was reduction of the post of HSA (Mathematics) as a result of division fall and this resulted in a W.A.Nos.1781, 1977 & 2417/15 : 3 : teacher by name Sri.Rupesh, HSA (Maths) being rendered surplus. However, Sri.Rupesh was accommodated against the post of HSA (English) and consequently, Smt.Smitha mentioned above, was retrenched. Seeking approval of the appointment of the petitioner with effect from the date of her appointment Manager had filed an appeal and Smt.Smitha too had filed an appeal against non approval of her appointment. These appeals were considered by the Deputy Director, and by Ext.P2 order, the appeal of the Manager regarding the approval of the appointment of the petitioner was allowed and at the same time, the appeal filed by Smt.Smitha was rejected. Apparently, in the aforesaid circumstances, by Ext.P4 order, the Manager withdrew the appointment of Smt.Smitha and appointed her with effect from 1.6.2011. 5. Smt.Smitha preferred further appeal against Ext.P1 order which was also rejected by Ext.P5. In the meantime against Ext.P1 order, Smt.Smitha filed revision before the Director of Public Instruction which was rejected by Ext.P6. Further, revision was W.A.Nos.1781, 1977 & 2417/15 : 4 : filed before the Government which was disposed of by Ext.P7 order. In Ext.P7, the Government ordered thus: _“4. Government have examined the matter in detail with the relevant provisions in KER and the facts and arguments presented during hearing. The dispute in this case is between two unapproved teachers regarding their seniority. The seniority as per Rule 51 is related to approved hands. Since the seniority dispute of unapproved teachers is not covered by KER, Government can rely upon the judgments of the division bench in similar cases, wherein the court ordered that the Manager could have made appointments/retrenchments only in accordance with Rule 51 of Chapter XIV A KER. Manager cannot deny promotion/reappointment for the reason that original appointment was not yet approved. In the instant case, the action of the Manager in terminating the service of a teacher who was appointed first, after extracting the work tendered by her, for giving approval to a teacher who was appointed later is not justifiable and is illegal. Since Smt.Beeba.K.Nath's appointment has been approved from 17.11.2011 and she has been receiving salary from the date of approval, Smt.Smitha's appointment can be approved notionally with effect from 17.11.2011 to avoid double payment by way of salary in the same post._ _5. In the circumstances the District Educational Officer, Kozhikode is hereby ordered to shift Smt.Smitha P to the post of Smt.Beeba K.Nath and to approve her appointment notionally with effect from 17.11.2011 as HSA (English) in CM HSS Thalakulathur, Kozhikode if she is otherwise eligible.”_ W.A.Nos.1781, 1977 & 2417/15 : 5 : 6. It was challenging Ext.P7, Smt.Beeba.K.Nath filed the writ petition and the same was disposed of by the learned Single Judge ordering thus: _“i. The impugned order is upheld to the extent upholding the right of the sixth respondent._ _ii. The sixth respondent shall be given approval notionally with effect from 17/11/2011 and shall be treated as a senior to the petitioner for the purpose of service benefits._ _iii. The Manager shall retrench the petitioner with effect from 31/07/2015._ _iv. The petitioner will be entitled to salary till 31/07/2015._ _v. The sixth respondent will be entitled to salary only from 01/08/2015 onwards._ _vi. The petitioner is entitled to claim for any vacancy which might have or may occur. No costs.”_ 7. It is in these circumstances, W.A.Nos.1781/15, 1977/15 and 2417/15 have been filed by Smt.Beeba.K.Nath, Manager and Smt.Smitha respectively. 8. The contentions raised before us are mainly that in Ext.P7, the Government have relied heavily on G.O.(MS)No.11/02/G.Edn. W.A.Nos.1781, 1977 & 2417/15 : 6 : dated 7.1.2002 and Circular No.67679/02/G.Edn. dated 26.2.2003 and Rule 51 of Chapter XIV A KER. According to the counsel, the Government Order and the Circular were no longer of relevance at the relevant time, consequent on the incorporation of Rule 6 (i) of Chapter XXIII KER. It was also contended that reading of the judgment under appeal and Ext.P7 shows that the Government and the learned Single Judge preceded on the assumption that the dispute was between two unapproved teachers. According to the counsel, the fact that the writ petitioner's appointment was approved with effect from 17.11.11, was omitted to be taken into account both by the Government and the learned Single Judge. Counsel also placed reliance in the judgments of this court in _**Deepa Augustine v. Geetha Alex [2008 (2) KLT 771]**_ , _**State of Kerala and others v. Minimole C and Another [2012 (2) KHC 750]**_ and _**Minimole C. v. State of Kerala [2012 (4) KLT 442]**_ , _**Soman v. Manager 2013 (2) KLT 215 (FB)**_ and contended that only qualified persons could be appointed to the vacant post and on that basis W.A.Nos.1781, 1977 & 2417/15 : 7 : argued that Sri.Rupesh should not have been accommodated against the post of HSA (English). He also placed reliance on the Government Order dated 29.1.2016 and contended that this Government Order also was not taken into account. 9. Although all these contentions were strongly refuted by the counsel appearing for Smt.Smitha and the Government Pleader and according to them, Smt.Smitha was entitled to be appointed as ordered by the learned Single Judge, having regard to the facts of the case and the nature of the order passed by the learned Single Judge, we feel that it is a matter which requires reconsideration by the Government. This is especially so because the Government have not taken into account the judgments and also the Government Order dated 1.6.2016 which have been referred to us and relied on by the counsel for the appellant in W.A.1781/15. 10. In such circumstances, we set aside the judgment under appeal and Ext.P7 and direct that the Government shall reconsider the revision petition dated 11.11.2013 filed by Smt.Smitha before W.A.Nos.1781, 1977 & 2417/15 : 8 : the Government, with notice to the Manager, Smt.Smitha, Smt.Beeba.K.Nath/the writ petitioner and Sri.K.G.Rupesh. It is made clear that this court has not expressed anything on the merits of the controversy and it will be entirely upto the Government to consider the merits of the rival claims and come to a decision in accordance with law. It is directed that the Government shall take a decision as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. It is directed that in the meanwhile, the status quo as on today so far as the parties are concerned shall be maintained. Writ appeals are disposed of. _Sd/-_ **ANTONY DOMINIC JUDGE** _Sd/-_ **SHIRCY.V JUDGE** _jes_