Kerala High Court
A.Abida Beevi vs State Of Kerala on 28 February, 2001
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 19TH DAY OF NOVEMBER 2015/28TH KARTHIKA, 1937
WP(C).No. 21870 of 2009 (C)
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PETITIONER(S):
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A.ABIDA BEEVI,
HEADMISTRESS (RETIRED FROM AKM HS & VHS THADIKAD)
RESIDING AT KETTIDATHIL, THADIKKADU PO, ANCHAL VIA,
KOLLAM DISTRICT.
BY ADVS.SRI.M.V.THAMBAN
SRI.R.REJI
SMT.THARA THAMBAN
SRI.V.K.SATHYANATHAN
SRI.B.BIPIN
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE SCRETARY TO THE GOVT.,
DEPARTMENT OF GENERAL EDUCATION, GOVT.SECRETARIAT,
THIRUVANANTHAPURAM.
2. THE DIRECTOR OF PUBLIC INSTRUCTION,
THIRUVANANTHAPURAM.
3. THE DEPUTY DIRECTOR (EDUCATION),
KOLLAM.
4. THE DISTRICT EDUCATIONAL OFFICER,
PUNALUR.
5. THE HEADMASTER,
A.K.M.HIGH SCHOOL, THADIKKADU PO, ANCHAL (VIA),
KOLLAM DISTRICT.
R BY GOVERNMENT PLEADER SMT.M.J.RAJASREE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 21870 of 2009 (C)
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APPENDIX
PETITIONER'S EXHIBITS
EXT.P1 TRUE COPY OF THE APPELLATE ORDER NO.B6-10148/2000/K.DIS
DATED 28.2.2001.
EXT.P2 TRUE COPY OF THE APPELLATE ORDER NO.B6-19474/2001/K.DIS
DATED 9.7.2002.
EXT.P3 TRUE COPY OF THE APPOINTMENT ORDER DT. 26.6.1999.
EXT.P4 TRUE COPY OF THE JUDGMENT IN WA NO.3249/2001 DATED
15.11.2002.
EXT.P5 TRUE COPY OF THE PETITIONER FILED A DETAILED
REPRESENTATION BEFORE THE GOVERNMENT ON 1.12.2006.
EXT.P6 TRUE COPY OF THE LETTER NO.4187/A3/09/G.EDN. DATED
6.2.2009.
EXT.P7 TRUE COPY OF THE ORDER DATED 18.6.2001 IN
O.P.NO.17959/01.
EXT.P8 TRUE COPY OF THE JUDGMENT DATED 23.5.2005 IN O.P.
NO.17959/01.
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
P. A. TO JUDGE
Pn
K.VINOD CHANDRAN, J.
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W.P.(C) No.21870 of 2009
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Dated this the 19th day of November, 2015
J U D G M E N T
The petitioner was appointed as UPSA on 14.09.1982 in the 5th respondent's school and was later promoted as HSA on 08.06.1984. On the incumbent Headmistress taking leave, the petitioner was appointed as Headmistress-in-charge for three spells viz; between 26.10.1998 to 23.01.1999, 24.01.1999 to 25.06.1999 and 26.06.1999 to 20.09.1999. The first spell was approved by the District Educational Officer as is indicated at Ext.P2, in appeal. The third spell which is evidenced by Ext.P3 is also said to have been approved by the District Educational Officer.
2. On the leave vacancy expiring, the earlier incumbent Headmistress joined back, as a teacher on 23.09.1999. This was because, the incumbent Headmistress, had applied for reversion on 23.10.1998 itself and while the application was pending, she went on leave on 26.10.1998 till 20.09.1999. Pending leave, the Manager allowed the reversion of the Headmistress by order dated 01.07.1999. The same was cancelled by the Government as per order No.G.O.(Rt.) W.P.(C) No.21870 of 2009 2 No.4820/2000/G.Edn. dated 27.11.2000, which was challenged before this Court. The cancellation of reversion was stayed as per interim order (Ext.P7) dated 18.06.2001 and the original petition itself was allowed, upholding the claim for reversion by Ext.P8 judgment. In the meanwhile, the Manager having allowed the reversion w.e.f. 01.07.1999, the reverted teacher joined on 23.09.1999; after the expiry of the leave on 20.09.1999. Hence at least on 21.09.1999, there was an established vacancy of Headmistress in which one another teacher Smt.D.Madhuri Latha was appointed.
3. When Madhuri Latha was appointed to the vacancy of Headmistress, there arose a seniority dispute between the petitioner and the said teacher. Both joined as HSAs on the very same date being 08.06.1984. Madhuri Latha claimed seniority over the petitioner on account of, she being older to the petitioner. However, this Court in the writ petition and in the Writ Appeal found that, the seniority of teachers who joined on the same date has to be determined on the basis of the date of first joining in the same school. The petitioner having been found to have joined the school on 13.09.1982 as UPSA, was found to be senior and eligible to be appointed as W.P.(C) No.21870 of 2009 3 Headmistress over and above the other teacher.
4. The petitioner in the above writ petition was aggrieved by the fact that, the petitioner had been regularised and approved in the post of Headmistress only w.e.f. 24.05.2001, as per Ext.P6. A reading of Ext.P6 would indicate that, the Government proceeded on the premise that, the reversion of Smt.Elsyamma Mathew (the Headmistress who went on leave) has not acquired finality. In fact, the same had acquired finality by Ext.P8 long before Ext.P6 order was passed.
5. The learned Government Pleader further submits that, there was no established vacancy in which the petitioner could have been confirmed as on 01.07.1999. The said contention is raised on the ground that, the incumbent Headmistress, before proceeding on leave, had made an application for reversion and the same though considered by the Manager on 01.07.1999, that was in the tenure of the leave period itself. In any event, the techer, who went on leave and who had given the application for reversion, is said to have joined as on 23.09.1999. At least on that date the established vacancy arises, to which the petitioner is entitled to be posted, since the rival claimant has been found to be junior to the petitioner by a W.P.(C) No.21870 of 2009 4 Division Bench of this Court in Ext.P4.
6. The learned Government Pleader would then submit that, Madhuri Latha who was appointed by the Manager, had been granted the pay and allowances. Going by Rule 7 Chapter III of KER, definitely, if a person entitled to a post is kept away from it illegally, the Government could take proceedings against the Manager for recovery of any pay and allowances due to such teacher.
7. In such circumstances, Ext.P6 would be set aside. The Government is directed to regularise the services of the petitioner as a Headmistress from 23.09.1999 and to pay the difference in salary and allowances due to a Headmistress for the period; in which she was denied such appointment. The petitioner's higher grade has to be considered on the basis of her appointment as on 23.09.1999 as a Headmistress and the difference in pay and allowances due to her as per the higher grade grant, also has to be disbursed. The 4th respondent shall pass orders within a period of three months from the date of receipt of a certified copy of the judgment, regularising the petitioner's appointment as Headmistress from 23.09.1999 and deciding on the eligible date on which the petitioner is to be W.P.(C) No.21870 of 2009 5 granted the higher grade.
8. The Government would be left the remedy of recovering the difference in pay and allowances, paid to the petitioner for the period, in which she was denied appointment as Headmistress, from the Manager after issuing notice and following the procedure under Rule 7 Chapter III of KER.
The writ petition would stand allowed with the above directions. No costs.
Sd/-
K.VINOD CHANDRAN, JUDGE AV/23/11