Kerala High Court
Valsalakumari Devi vs State Of Kerala on 22 February, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 30TH DAY OF JULY 2014/8TH SRAVANA, 1936
WP(C).No. 6376 of 2014 (V)
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PETITIONER:
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VALSALAKUMARI DEVI,AGED 52 YEARS,
D/O P.NARAYANAN NAIR, "SREEVALSAM", CHATTANCHAL PO.,
THEKKIL, CHANGALA, KASARAGOD,
WORKING AS HSST (HIGHER SECONDARY SCHOOL TEACHER)-
HISTORY, BAR HIGHER SECONDARY SCHOOL, BOVIKAN,
MULIYAR PO., KASARAGOD DISTRICT.
BY ADV. SRI.SHOBY K.FRANCIS
RESPONDENTS:
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1. STATE OF KERALA,
REPRESENTED BY ITS PRINCIPAL SECRETARY TO
GOVT. HIGHER EDUCATION DEPARTMENT,
GOVT. SECRETARIATE, TRIVANDRUM, 679 001.
2. DIRECTOR OF HIGHER SECONDARY EDUCATION,
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM-679 001.
3. REGIONAL DEPUTY DIRECTOR,
HIGHER SECONDARY EDUCATION, REGIONAL OFFICE,
KOZHIKODE - 673 001.
4. MANAGER,
BAR HIGHER SECONDARY SCHOOL, BOVIKAN, MULIYAR PO.,
KASARAGOD DISTRICT,
(RESIDING AT VALAYIL HOUSE, BOVIKAN, MULIYAR PO.,
KASARAGOD DISTRICT), 671 542.
5. PRINCIPAL,
BAR HIGHER SECONDARY SCHOOL, BOVIKAN, MULIYAR PO.,
KASARAGOD DISTRICT-671 542.
R1 TO R3 BY GOVERNMENT PLEADER SRI.SOJAN JAMES
R4 BY ADV. SRI.MAHESH V. RAMAKRISHNAN
R5 BY ADV. SRI.MURALI PALLATH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 30-07-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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WP(C).No. 6376 of 2014 (V)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXHIBIT P1: COPY OF THE JUDGMENT IN WPC NO.9508/2009 DATED 22.2.2011
PASSED BY THIS HON'BLE COURT.
EXHIBIT P2: COPY OF THE JUDGMENT IN W.A.NO.421/2011 DATED 23.6.2011
PASSED BY THE DIVISION BENCH.
EXHIBIT P3: COPY OF THE ORDER DATED 24.11.2011 PASSED BY THE IST
RESPONDENT IN GO(RT)NO.5238/2011/G.EDN.
EXHIBIT P4: COPY OF THE LETTER DATED 4.1.2012 ISSUED BY THE 2ND
RESPONDENT TO THE 3RD RESPONDENT.
EXHIBIT P5: COPY OF THE LETTER DATED 23.7.2012 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P6: COPY OF THE JUDGMENT IN COC NO.984/2012 DATED 17.8.12 OF
THIS HON'BLE COURT.
EXHIBIT P7: COPY OF THE RERESENTATION DATED 22.9.12 SUBMITTED BY THE
PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P8: COPY OF THE LETTER DATED 8.10.12 ISSUED BY THE 2ND
RESPONDENT TO THE 3RD RESPONDENT.
EXHIBIT P9: COPY OF THE ORDER/DIRECTION ISSUED BY THE 3RD
RESPONDENT TO THE 4TH RESPONDENT DATED 22.1.2013.
EXHIBIT P10: COPY OF THE ORDER/DIRECTION ISSUED BY THE 3RD
RESPONDENT TO THE 4TH RESPONDENT DATED 31.1.2013.
EXHIBIT P11: COPY OF THE SHOW CAUSE NOTICE DATED 19.2.13 ISSUED BY
THE 3RD RESPONDENT TO THE 4TH RESPONDENT.
EXHIBIT P12: COPY OF THE ORDER DATED 30.4.2013 IN ORDER
NO.ACD.B3/9083/HSE/2009 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P13: COPY OF THE APPEAL DATED 30.5.2013 FILED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT.
EXHIBIT P14: COPY OF THE ORDER DATED 10.6.2013 PASSED BY THE 3RD
RESPONDENT IN A3/2864/13.
EXHIBTI P15: COPY OF THE ORDER IN IA NO.395/13 IN COC NO.984/12 DATED
31.5.2013.
Kss ..2/-
..2....
WPC.NO.6376/2014 (V)
EXHIBIT P16: COPY OF THE COUNTER AFFIDAVIT IN IA NO.240/2013 DATED
26.7.2013
EXHIBIT P17: COPY OF THE ORDER DATED 13.1.2014 PASSED BY THE 2ND
RESPONDENT IN ACD. B3/10856/HSE/13.
RESPONDENT(S)' EXHIBITS:
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EXHIBIT R2(A): TRUE COPY OF THE JUDGMENT IN WPC.NO.26937(N)/2013.
EXHIBIT R2(B): TRUE COPY OF THE STOP MEMO OF THE GOVERNMENT.
EXHIBIT R4(A): TRUE COPY OF ORDER NO.3/2013 DATED 23/03/2013 ISSUED BY
THE 4TH RESPONDENT.
EXHIBIT R4(B): TRUE COPY OF ORDER NO.ACD.B3/9083/HSE 2009 DATED
30/04/2013.
EXHIBIT R4(C): TRUE COPY OF APPEAL PETITION DATED 23/05/2013 SUBMITTED
BY THE 4TH RESPONDENT.
EXHIBIT R4(D): TRUE COPY OF ORDER DATED 13/01/2014 ISSUED BY THE 2ND
RESPONDENT.
EXHIBIT R4(E): TRUE COPY OF ORDER NO.A3/2864/2013 DATED 10/06/2013.
EXHIBIT R4(F): TRUE COPY OF LETTER DATED 10/06/2013 SUBMITTED BY THE
PETITIONER.
EXHIBIT R4(G): TRUE COPY OF LETTER NO.ACD.B3/10856/HSE/13 DATED
25/03/2014.
EXHIBIT R5(A): TRUE COPY OF THE ARGUMENT NOTES SUBMITTED BY THE 5TH
RESPONDENT.
EXHIBIT R5(B): TRUE COPY OF THE ORDER NO.3/2013 DATED 23/03/2013.
EXHIBIT R5(C): TRUE COPY OF ORDER DATED 30/04/2013.
EXHIBIT R5(D): TRUE COPY OF ORDER DATED 13/01/2014.
EXHIBIT R5(E): TRUE COPY OF THE 5TH RESPONDENT'S PETITION DATED
12/03/2013.
EXHIBIT R5(F): TRUE COPY OF THE 5TH RESPONDENT'S PETITION DATED
12/03/2013 SUBMITTED TO THE 3RD RESPONDENT.
Kss ..3/-
..3.....
WPC.NO.6376/2014 (V)
EXHIBIT R5(G): TRUE COPY OF THE 5TH RESPONDENT'S PETITION DATED
12/03/2013 SUBMITTED TO THE 2ND RESPONDENT.
EXHIBIT R5(G): TRUE COPY OF THE 5TH RESPONDENT'S PETITION DATED
12/03/2013 SUBMITTED TO THE 2ND RESPONDENT.
EXHIBIT R5(H): TRUE COPY OF RELIEVING ORDER FORGED BY THE
PETITIONER.
EXHIBIT R5(I): TRUE COPY OF THE LETTER DATED 10/06/2013 SUBMITTED BY
THE PETITIONER TO THE 4TH RESPONDENT.
/TRUE COPY/
P.A.TO JUDGE
Kss
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).No.6376 of 2014
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Dated this the 30th day of July, 2014
J U D G M E N T
The petitioner is working as Higher Secondary School Teacher (HSST) (History) in the School under the management of the 4th respondent. The petitioner was initially appointed as HSA (Social Science) with effect from 13.07.1990. That appointment was approved by the respondent authority. Thereafter, for a vacancy that arose in the post of HSST in the School in the year 2000, the petitioner preferred an application for consideration to the post. Ignoring her claim, another person was appointed with effect from 01.08.2000. That appointment was challenged by the petitioner through O.P.No.22902 of 2000 which was dismissed by upholding the appointment already made. A writ Appeal preferred against the said judgment also proved unsuccessful. Thereafter the petitioner approached the Supreme Court through Civil Appeal No.4480 of 2007. The said appeal was allowed by the Supreme Court and the judgments of this Court in the Writ Appeal and the Original Petition were set aside after upholding the claim of the petitioner with regard to her right to be appointed to the post of HSST. Pursuant to the judgment of the Supreme Court, the petitioner was appointed as HSST in the BAR Higher Secondary School, Kasaragod with effect from 16.02.2008. The said W.P.(C).No.6376 of 2014 2 appointment was also approved by the educational authority. The petitioner however preferred a claim for approval with effect from 01.08.2000 since that was the date on which the vacancy arose to the post of HSST and to which vacancy, according to the petitioner, she should have been appointed in the first place. The claim of the petitioner was rejected by the 3rd respondent and this prompted the petitioner to prefer W.P.(C).No.9508 of 2009. The said writ petition was allowed by Ext.P1 judgment whereby the educational authorities were directed to pass appropriate orders appointing the petitioner as HSST (History) with retrospective effect from 01.08.2000 notionally and to grant fixation in the scale of pay as HSST accordingly. It was also made clear in the said judgment that arrears consequent on the same less the amount received as salary as HSA, will also be disbursed to the petitioner. Although appeals were filed against the said judgment by the Manager of the School as also the State Government, the said appeals were dismissed by Ext.P2 judgment. A separate appeal filed by the petitioner against Ext.P1 judgment, to the extent it did not consider the claim of the petitioner for reckoning seniority with effect from 01.08.2000, was however allowed by the Division Bench through Ext.P2 judgment. Accordingly, the educational authorities were directed to reckon the petitioner's seniority with effect from W.P.(C).No.6376 of 2014 3 01.08.2000 along with notional promotion and other benefits granted with effect from that date.
2. Consequent to Ext.P2 judgment of the Division Bench the 1st respondent vide Ext.P3 order dated 24.11.2011 fixed the seniority of the petitioner in the post of HSST with effect from 01.08.2000 and clarified that the period for which she was notionally promoted would be reckoned for all service benefits. By the same order, the Director of Higher Secondary Education was also directed to take necessary steps to recover excess pay, disbursed to the persons who had been erroneously appointed, from the Manager and also to initiate disciplinary action against the officials in the department who had approved those irregular appointments. As no action was taken by the respondents consequent to Ext.P3 order of the 1st respondent, the petitioner moved this Court through a contempt of court petition. The said petition was later closed after recording the submission of the learned Government Pleader that the petitioners seniority had already been approved with effect from 01.08.2000. Thereafter the petitioner preferred Ext.P7 representation to the 2nd respondent seeking his indulgence in the matter of promotion of the petitioner as Principal of the School after extending the benefits envisaged W.P.(C).No.6376 of 2014 4 under Ext.P2 judgment. Essentially, the petitioner requested for her promotion as Principal of the School with effect from 01.04.2010 when, in accordance with her notional security, she could have aspired for the post in the normal course of events. By Ext.P8 communication dated 08.10.2012, the 2nd respondent directed the 3rd respondent to take necessary action for the promotion of the petitioner to the post of Principal in accordance with the rules of eligibility and the norms prescribed by the special rules. Pursuant to Ext.P8, the 3rd respondent addressed Ext.P9 communication to the 4th respondent Manager directing him to take necessary action for promotion of the petitioner to the post of Principal in accordance with the rules of eligibility and norms prescribed by the special rules. This was followed by the Ext.P10 reminder letter dated 31.01.2013. When Exts.P9 and P10 letters did not result in any action on the part of the 4th respondent Manager, the 3rd respondent issued Ext.P11 show cause notice to the 4th respondent Manager asking him to show cause as to why action should not be taken against him for not promoting the petitioner as the Principal of the School as directed in Exts.P9 and P10 letters. It would appear that on receipt of Ext.P11 show cause notice, the 4th respondent Manager considered the issue of promotion of the petitioner to the post of Principal and by an order W.P.(C).No.6376 of 2014 5 dated 23.03.2013, which is produced as Ext.R4(a) along with the counter affidavit filed by the 4th respondent Manager, found that the petitioner did not possess the necessary teaching experience that was required for appointment to the post of Principal. Accordingly, the 4th respondent was rejected the claim put forward by the petitioner for promotion to the post of Principal with effect from 01.04.2010. The said order of the 4th respondent was brought to the attention of the 2nd respondent who vide Ext.P12 order dated 30.04.2013 cancelled Ext.R4(a) proceedings of the 4th respondent Manager and directed him to consider the matter afresh and comply with the Government direction to appoint the petitioner as Principal of the School. Against Ext.P12 order of the 2nd respondent, the 4th respondent Manager has preferred an appeal before the 1st respondent (Ext.R4(c)) which is stated to be pending consideration by the 1st respondent.
3. Although it is apparent from the pleadings in this case that there are proceedings pending against the 4th respondent Manager with regard to non-compliance with the directions issued by the Government and the educational authorities, I do not think it necessary, for the purposes of this writ petition, to go into those aspects. As of today, the claim of the petitioner for consideration W.P.(C).No.6376 of 2014 6 to the post of principal in the School under the management of the 4th respondent with effect from 01.04.2010 has been rejected by the 4th respondent Manager on the ground that although she has been awarded a notional promotion as HSST with effect from 1.08.2000, she does not possess the necessary eligibility requirements for consideration to the post of Principal as on 01.04.2010. The stand of the 4th respondent Manager is based on the provisions of Rule 6 of Chapter XXXII of the Kerala Education Rules which prescribes the qualifications for the post of Principal in aided Higher Secondary Schools. The contention of the petitioner in this regard is that insofar as her seniority has been directed to be reckoned with effect from 01.08.2000 and her appointment to the post of HSST has been approved with effect from that date, as on 01.04.2010, she is to be deemed as having possessed the qualification which are mandated under the aforementioned rules.
4. I have heard Sri.Shoby K.Francis learned counsel for the petitioner and also the learned Government Pleader for the respondents 1 to 3 and Sri.Mahesh V.Ramakrishnan learned counsel appearing on behalf of the 4th respondent Manager.
5. On a consideration of the submissions made on either side, W.P.(C).No.6376 of 2014 7 I am of the view that insofar as the issue regarding eligibility of the petitioner for consideration for promotion to the post of Principal in the School with effect from 01.04.2010 is pending consideration before the 1st respondent in Ext.R4(c) appeal preferred by the 4th respondent Manager, it would not be proper for me to consider the same issue in the present writ petition. The 1st respondent will have to take a decision on the correctness of the stand of the 4th respondent Manager in Ext.R4(a) order dated 23.03.2013. Necessarily, that will entail a consideration of Rule 6 of Chapter XXXII of the KER. It is brought to my notice that the other prayers in the writ petition, with regard to disbursal of monetary benefits pursuant to the directions of the Division Bench in Ext.P2 judgment, no longer survive on the said payments have already been sanctioned to the petitioner. Hence, no further directions are required with respect to the disbursement of the monetary benefits. If the petitioner has any claim with regard to the quantum of the benefits already received, it is for him to approach the authorities with such a claim and for the authorities to attend to such claim, if preferred by the petitioner. As the only surviving dispute in this writ petition is with regard to the eligibility of the petitioner for promotion to the post of Principal with effect from 01.04.2010 and the said issue is pending consideration before the 1st respondent, I W.P.(C).No.6376 of 2014 8 dispose of the writ petition with a direction to the 1st respondent to consider and pass orders on Ext.R4(c) appeal pending before him within a period of two months from the date of receipt of copy of the judgment. Before passing orders in the appeal the 1st respondent shall afford personal hearing to the petitioner, 4th respondent, as also the 5th respondent who might be affected by the orders to be passed by the 1st respondent. No costs.
A.K.JAYASANKARAN NAMBIAR JUDGE mns/