Kerala High Court
Valsala Kumari Devi M vs State Of Kerala on 23 August, 2011
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 29TH DAY OF FEBRUARY 2016/10TH PHALGUNA, 1937
WP(C).No. 3381 of 2015 (W)
---------------------------
PETITIONER(S):
----------------------
VALSALA KUMARI DEVI M., AGED 53 YEARS,
D/O. THE LATE P.NARAYANAN NAIR,
HIGHER SECONDARY SCHOOL TEACHER (HISTORY),
B.A.R HIGHER SECONDARY SCHOOL, BOVIKAN, MULIYAR POST,
KASARAGOD DISTRICT - 671 542. RESIDING AT 'SREEVALSAM',
CHATTANCHAL, P.O THEKKIL, CHANGALA,
KASARAGOD - 671 541.
BY ADVS.SRI.O.V.RADHAKRISHNAN (SR.)
SMT.K.RADHAMANI AMMA
SRI.ANTONY MUKKATH
SRI.K.R.RANJITH
SRI.C.P.ANIL RAJ
SRI.JOS LEO JOSE
RESPONDENT(S):
------------------------
1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. DIRECTOR OF HIGHER SECONDARY EDUCATION,
HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM - 695 001.
3. REGIONAL DEPUTY DIRECTOR,
HIGHER SECONDARY EDUCATION, REGIONAL OFFICE,
KOZHIKODE - 673 001.
4. MANAGER,
B.A.R HIGHER SECONDARY SCHOOL, BOVIKAN, P.O.MULIYAR,
KASARAGOD - 671 542.
5. PRINCIPAL,
B.A.R HIGHER SECONDARY SCHOOL, BOVIKAN, P.O.MULIYAR,
KASARAGOD - 671 542.
P.T.O.
WP(C).No. 3381 of 2015 (W) :-2-:
6. LATHAKUTTY K.S.,
PRINCIPAL, B.A.R HIGHER SECONDARY SCHOOL, BOVIKAN,
P.O.MULIYAR, KASARAGOD - 671 542.
R1 TO R3 BY GOVERNMENT PLEADER, SRI. EGGY N. ELIAS
R4 BY ADV. SRI.MAHESH V RAMAKRISHNAN
R6 BY ADV. SRI.MURALI PALLATH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-02-2016, THE
COURT ON 29.02.2016 DELIVERED THE FOLLOWING:
P.T.O.
WP(C).No. 3381 of 2015 (W)
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-------------------------------------
EXHIBIT P1 - PHOTOCOPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE
PETITIONER.
EXHIBIT P2 - PHOTOCOPY OF THE JUDGMENT DT. 25.9.2007 IN CIVIL APPEAL NO.
4480/2007 OF THE HON'BLE SUPREME COURT.
EXHIBIT P3 - PHOTOCOPY OF THE APPOINTING ORDER DT. 16.2.2008 OF THE 4TH
RESPONDENT.
EXHIBIT P4 - PHOTOCOPY OF THE ORDER NO. A3/1896/08/K DIS. DT. 25.9.2008 OF THE
3RD RESPONDENT.
EXHIBIT P5 - PHOTOCOPY OF THE JUDGMENT DT. 22.2.2011 IN WPC NO. 9508/09 OF
THIS HON'BLE COURT.
EXHIBIT P6 - PHOTOCOPY OF THE COMMON JUDGMENT DT. 23.6.2011 IN WA NO. 421/11
OF THIS HON'BLE COURT.
EXHIBIT P7 - PHTOCOPY OF THE G.O(RT) NO. 5238/2011/G.EDN. DT. 24.11.11 OF THE 1ST
RESPONDENT.
EXHIBIT P8 - PHOTOCOPY OF THE PROCEEDINGS NO. A3/8275/2012 DT. 23.7.12 OF THE
3RD RESPONDENT.
EXHIBIT P9 - PHOTOCOPY OF THE JUDGEMENT IN CONTEMPT OF COURT CASE NO.
984/2012 IN WA NO. 421/2011 OF THIS HON'BLE COURT.
EXHIBIT P10 - PHOTOCOPY OF THE REPRESENTATION DT. 22.3.2010 OF THE
PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P11 - PHOTOCOPY OF THE REPRESENTATION DT. 22.9.2012 OF THE
PETITIONER TO THE 2ND RESPONDENT.
EXHIBIT P12 - PHOTOCOPY OF THE LETTER NO. ACD B3/9083/HSE/2009 DT. 08.10.12 OF
THE 2ND RESPONDENT.
EXHIBIT P13- PHOTOCOPY OF THE LETTER NO. A3/14989/2012 DT. 22.1.13 OF THE 3RD
RESPONDENT.
EXHIBIT P14 - PHOTOCOPY OF THE REMINDER LETTER NO. A3/616/2013 DT. 31.1.2013
OF THE 3RD RESPONDENT.
EXHIBIT P15 - PHOTOCOPY OF THE SHOW-CAUSE NOTICE NO. A3/11125/2008 DT. 19.2.13
OF THE 3RD RESPONDENT.
EXHIBIT P16 - PHOTOCOPY OF THE ORDER NO. 3/2013 DT. 23.3.2013 OF THE 4TH
RESPONDENT.
P.T.O.
WP(C).No. 3381 of 2015 (W) :-2-:
EXHIBIT P17 - PHOTOCOPY OF THE ORDER NO. ACD B3/9083/HSE/2009 DT. 30.04.2013
OF THE 2ND RESPONDENT.
EXHIBIT P18 - PHOTOCOPY OF THE ORDER NO. ACD. B3/10856/HSE/13 DT. 13.1.14 OF
THE 2ND RESPONDENT.
EXHIBIT P19 - PHOTOCOPY OF THE JUDGMENT DT. 30.7.2014 IN WPC NO. 6376/2014 OF
THIS HON'BLE COURT.
EXHIBIT P20 - PHOTOCOPY OF THE JUDGMENT DT. 06.11.2013 IN WPC NO. 26937/2013
OF THIS HON'BLE COURT.
EXHIBIT P21 - PHOTOCOPY OF THE G.O(RT) NO. 3575/2014/G.EDN. DT. 10.9.2014 OF THE
1ST RESPONDENT.
EXHIBIT P22 - PHOTOCOPY OF THE LETTER NO. A4/3114/2014 DT. 20.12.2014 OF THE
3RD RESPONDENT ADDRESSED TO THE 5TH RESPONDENT.
EXHIBIT P23 - PHOTOCOPY OF THE GO(RT) NO. 5183/2014/G.EDN. DT. 21.11.2014 OF THE
1ST RESPONDENT.
EXHIBIT P24 - PHOTOCOPY OF THE REPRESENTATION DATED 23.08.2011 ADDRESSED
TO THE 4TH RESPONDENT.
EXHIBIT P25 - PHOTOCOPY OF THE REPRESENTATION DATED 15.09.2011 ADDRESSED
TO THE MANAGER BARHS SCHOOL.
EXHIBIT P26 - PHOTOCOPY OF THE REPRESENTATION DATED 15.09.2011 ADDRESSED
TO THE REGIONAL DEPUTY DIRECTOR.
EXHIBIT P27 - PHOTOCOPY OF THE REPRESENTATION DATED 14.09.2012 ADDRESSED
TO THE MANAGER BARHS SCHOOL.
EXHIBIT P28 - PHOTOCOPY OF THE ORDER NO.ACD.B3/5568/HSE/2015 DATED 24.06.2015
OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
THIRUVANANTHAPURAM.
RESPONDENT(S)' EXHIBITS
---------------------------------------
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 LETTER DATED 10.06.2013 SIGNED BY THE
PETITIONER BEFORE THE 3RD RESPONDENT.
EXHIBIT R4(C): TRUE COPY OF PETITION DATED 19.01.2015 SUBMITTED BY THE
4TH RESPONDENT.
P.T.O.
WP(C).No. 3381 of 2015 (W) :-3-:
EXHIBIT R6(A): TRUE COPY OF THE 6TH RESPONDENT'S PETITION DATED
12.03.2013.
EXHIBIT R6(B): TRUE COPY OF THE 6TH RESPONDENT'S PETITION DATED
12.03.2013 SUBMITTED TO THE 3RD RESPONDENT.
EXHIBIT R6(C): TRUE COPY OF THE 6TH RESPONDENT'S PETITION DATED
12.03.2013 SUBMITTED TO THE 2ND RESPONDENT.
EXHIBIT R6(D): TRUE COPY OF RELIEVING ORDER IN FORGED BY THE
PETITIONER.
EXHIBIT R6(E): TRUE COPY OF LETTER DATED SUBMITTED BY THE PETITIONER
TO THE 4TH RESPONDENT.
//TRUE COPY//
P.S. TO JUDGE
St/-
C.R.
SHAJI P. CHALY, J.
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W.P.(C) No.3381 of 2015
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Dated this the 29th day of February, 2016
JUDGMENT
This writ petition is filed by the petitioner seeking to declare that the petitioner is fully eligible and satisfies the eligibility condition of teaching experience required under Note to Rule 6 of Chapter XXXII of Kerala Education Rules (for short, "the KER") in respect of the category of Principal reckoning her teaching experience with effect from 13.07.1990 in the category of High School Assistant and with effect from 01.08.2000 in the category of Higher Secondary School Teacher (for short, "HSST") in the absence of qualified hands having approved teaching experience of 12 years in the category of Higher Secondary School Teacher in terms of Note under Rule 6 of Chapter XXXII of K.E.R. and for other related reliefs, including a declaration that the 6th respondent is not better qualified or better suitable for promotion to the category of Principal over the petitioner.
2. The case of the petitioner has a checkered history. However, I propose to narrate only the relevant facts that are W.P.(C) No.3381 of 2015 2 required to appreciate the reliefs sought for by the petitioner. The basic qualification of the petitioner is Master of Arts in History, pass in State Eligibility Test in History, and B.Ed. degree in English and History (Double Main), which are the qualifications prescribed for appointment to the post of HSST (History) in Humanities Group-History, Geography, Economics, Hindi/Malayalam. A vacancy arose in the 4th respondent's school during the academic year 2000-2001. Petitioner and one M.K. Aravindakshan Nambiar applied for the said post. The petitioner was senior to the rival contender. However, the 4th respondent by an order dated 01.08.2000 granted promotion to Sri. Aravindakshan Nambiar. After pursuing statutory remedies and lost in the same, petitioner preferred O.P.No.13710 of 2001 before this Court and the same was disposed of by a judgment dated 26.02.2003 directing the petitioner to pursue her remedies before the 2nd respondent and further direction was issued to consider and pass orders after hearing the petitioner and her rival contender.
3. Thereupon, after considering the representation and hearing the respective parties, 2nd respondent had passed an order dated 16.06.2003 declining relief to the petitioner. The W.P.(C) No.3381 of 2015 3 said order was challenged by the petitioner by filing W.P.(C) No.21069 of 2003 before this Court, which was heard along with W.P.(C) No.15674 of 2004 filed by her rival contender, seeking approval of his appointment and payment of salary. The writ petition filed by the petitioner was dismissed and thus upheld the appointment of Sri. Aravindakshan Nambiar. The writ petition filed by Sri. Aravindakshan Nambiar was allowed and appropriate directions were issued.
4. Being aggrieved by the judgment, petitioner filed W.A.No.1265 of 2004, which was dismissed in limine on 12.07.2004. Thereupon, petitioner filed S.L.P (C) No.19296 of 2004 before the Apex Court and numbered as Civil Appeal No.4480 of 2007. The said appeal was allowed by the Apex Court, setting aside the order passed by this Court in W.A.No.1265 of 2004 and further direction was issued to issue appropriate orders in favour of the petitioner within a period of four weeks from the date of receipt of a copy of that judgment, evident from Ext.P2. In spite of the said direction issued by the Apex Court, the 4th respondent did not take any action, pursuant to which, communications were issued by the 2nd respondent to the 4th respondent directing to comply with the W.P.(C) No.3381 of 2015 4 directions issued by the Apex Court. In spite of all the efforts, the 4th respondent did not comply with the directions of the Apex Court and the petitioner filed representations before the authority to comply with the directions, and finally when the petitioner submitted a representation dated 08.01.2008 informing that if Ext.P2 judgment is not implemented, contempt action will be initiated, 4th respondent issued order No.1/2008, which was served on the petitioner on 12.02.2008, directing her to produce her testimonials before the 5th respondent to join as HSST (History). By Ext.P3 order, petitioner was appointed as the HSST (History) on probation in the school of the 4th respondent at Kasaragod and thereupon petitioner joined duty in the F.N. of 16.02.2008 against the post vacated by her rival contender Sri. Aravindakshan Nambiar. Accordingly, 4th respondent forwarded the said appointment order to the 3rd respondent for approval and by Ext.P4 order dated 25.09.2008 appointment of the petitioner was approved as HSST (History) with effect from 16.02.2008.
5. Since approval was done only with effect from 16.02.2008, petitioner filed representation before the 4th respondent with copies to the 3rd and 5th respondents, W.P.(C) No.3381 of 2015 5 requesting to promote her with effect from 01.08.2000, the date on which her rival contender was promoted overlooking her rightful claims. Since no action was initiated, petitioner approached this court by filing W.P.(C) No.9508 of 2009, which was allowed by Ext.P5 judgment dated 22.02.2011, directing the respondents 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 of HSST accordingly. However, aggrieved by declining relief of seniority to the petitioner in the category of HSST with effect from 01.08.2000, petitioner filed W.A.No.421 of 2011. The State and the 4th respondent have also filed Writ Appeal Nos.621 & 463 of 2011, against the said judgment. All the above writ appeals were disposed of by Ext.P6 common judgment, by which the writ appeal filed by the petitioner was allowed and directed to reckon the petitioner's seniority with effect from 01.08.2000 along with notional promotion and other benefits granted with effect from that date. The judgment so rendered was implemented by Ext.P7 order and thereby the seniority of the petitioner was fixed with effect from 01.08.2000 in the category of HSST and reckoning the W.P.(C) No.3381 of 2015 6 period during which she was notionally promoted, for all service benefits. Since no orders were issued pursuant to Ext.P7, contempt proceedings were initiated and consequently Ext.P8 proceedings were issued approving the appointment of the petitioner with effect from 01.08.2000 and accordingly the contempt case was closed, evident from Ext.P9 order.
6. The real issue, that is agitated by the petitioner in this writ petition started when a vacancy in the post of Principal occurred on 31.03.2010 in the 4th respondent's school. It is submitted by the petitioner that, she has submitted Ext.P10 representation before the 4th respondent seeking to promote her as the Principal. But the 4th respondent had not appointed the petitioner. On the other hand, the 6th respondent was appointed as Principal with effect from 01.04.2010. Being aggrieved, petitioner had filed Ext.P11 representation dated 22.09.2012 before the 2nd respondent. By Ext.P12, 2nd respondent had forwarded the same to the 3rd respondent. Pursuant to Ext.P12, the 3rd respondent issued Ext.P13 letter to the 4th respondent to take necessary action for promoting the petitioner to the post of Principal in accordance with the rules. Since in spite of the W.P.(C) No.3381 of 2015 7 same, no action was taken by the 4th respondent, Ext.P14 reminder was issued by the 3rd respondent and still no action was initiated, consequent to which, Ext.P15 show cause notice was issued by the 3rd respondent to the 4th respondent.
7. Matters being so, petitioner filed I.A.No.240 of 2013 in Contempt Case No.984 of 2012 pertaining to Ext.P9 judgment. In the said I.A., notice was issued by this court and on receipt of the same, 4th respondent issued Ext.P16 order dated 23.03.2013, rejecting the claim of the petitioner to the post of Principal, stating that her promotion as HSST with effect from 01.08.2000 was only notional and she has not officiated in the post of HSST from 01.08.2000 and thus she has not acquired six years of teaching experience in the post of HSST as on 01.04.2010, which is mandatory as per Rule 6 of Chapter XXXIII of KER. It is the contention of the petitioner that no copy of Ext.P16 order was served on her but on receipt of Ext.P16, 2nd respondent issued order dated 30.04.2014 holding that the seniority of the petitioner is fixed in the post of HSST with effect from 01.08.2000 and the period during which she was notionally promoted will be reckoned for all service benefits and hence the action of the 4th respondent in W.P.(C) No.3381 of 2015 8 appointing 6th respondent as Principal, and issuing Ext.P16 order was irregular and was in defiance of the Government decision. Thereupon, 2nd respondent cancelled Ext.P16 and directed 4th respondent to consider the matter afresh by issuing Ext.P17 order.
8. While matters being so, the 4th respondent issued a show cause notice to the petitioner alleging that in contempt of court proceedings, petitioner has wilfully misled this Court by providing incorrect address of respondents 4 and 5 and received notice for them by impersonation and showing other reasons. It is the case of the petitioner that such show cause notice was issued to the petitioner to make her unfit. However, by filing I.A.No.395 of 2013, the residential address of 4th and 5th respondents were corrected. Anyhow, the disciplinary proceedings so initiated against the petitioner was finalized by the 4th respondent by imposing a major penalty of reduction to the lower rank as per order dated 27.09.2013. Since the major penalty of reduction in rank was imposed without securing sanction from competent authority, as provided under Rule 75 of Chapter XIV-A K.E.R, show cause notice was issued to the 4th respondent asking to show cause W.P.(C) No.3381 of 2015 9 why the 4th respondent should not be debarred from holding the post of Manager of the 4th respondent's school, evident from Ext.P18.
9. Thereafter, petitioner filed W.P.(C) No.6376 of 2014 before this Court seeking to appoint her as the Principal of the 4th respondent school with effect from 01.04.2010 and for other incidental and consequential reliefs. The above writ petition was finally heard and disposed of by Ext.P19 judgment dated 30.07.2014, directing the 1st respondent Government to consider and pass orders on Ext.R4(c) appeal submitted by the Manager to the Government against Ext.P17 order.
10. It is contended by the petitioner that 6th respondent is junior to her. He was initially appointed as H.S.A (Malayalam) on 28.07.1994 in the 4th respondent's school. Thereafter petitioner was promoted to the post of HSST (Junior), Category 3, under the Table given in Rule 4 of Chapter XXXII relating to method of appointment and qualification of teachers etc. etc. with effect from 04.08.2000 by the 4th respondent. The 6th respondent was later appointed as HSST from the post of HSST (Junior). Therefore, the 6th respondent is junior to the petitioner in the post of HSST and W.P.(C) No.3381 of 2015 10 therefore the 6th respondent cannot make any claim for promotion to the post of Principal in preference to the petitioner, as the method of appointment to the category of Principal is by promotion, is the contention of the petitioner. While so, 6th respondent filed W.P.(C) No.26937 of 2013 before this court seeking to quash Exts.P7 and P17 herein [Exts.P4 and P7 in W.P.(C) No.26937/2013] and for other consequential reliefs. The said writ petition was dismissed by this Court in limine by Ext.P20 judgment and the 6th respondent has not pursued any remedy against the same and therefore the said judgment has become final and conclusive.
11. Be that as it may, while so, in the representation made by 4th respondent dated 03.02.2014 before the 1st respondent, Ext.P21 order dated 10.09.2014 was passed holding that the action of the 4th respondent imposing major penalty on the petitioner, is violative of Rule 75 of Chapter XIV of K.E.R. Thereupon, 3rd respondent issued Ext.P22 to the 5th respondent directing regularization of the period of suspension of the petitioner and to order her leave period from 01.06.2013 to 10.06.2013 as half pay leave.
W.P.(C) No.3381 of 2015 11
12. Thereafter, the 1st respondent had issued Ext.P23 order dated 21.11.2014 in compliance with the directions issued by this Court in Ext.P19 judgment, holding that the petitioner does not possess the essential teaching experience in Higher Secondary School level under the same educational agency as on 01.04.2010, and hence the request for promotion to the post of Principal does not deserve merit and hence it was rejected. Therefore, it is contended that Ext.P23 order passed by the 1st respondent cannot be sustained and the same is passed misreading the relevant rules and Government Orders. It is thus aggrieved by the said order, this writ petition is filed mainly contending that the action of the 1st respondent is violative of Note 3 to Rule 6 of Chapter XXXII K.E.R.
13. 2nd respondent has filed a counter affidavit justifying Ext.P23, contending that in order to secure promotion to the post of Principal, minimum approved teaching experience of 12 years in Higher Secondary School level under the same educational agency is the required qualification. It is also contended that in the absence of persons having such qualification, approved teaching experience at High W.P.(C) No.3381 of 2015 12 School/Upper Primary/Lower Primary schools under the same educational agency only shall be considered, that the petitioner does not possess the essential teaching experience in Higher Secondary School level under the same educational agency as on 01.04.2010, and therefore justified Ext.P23 order passed by the Government declining promotion to the petitioner to the post of Principal.
14. It is further contended by 2nd respondent that in the absence of qualification prescribed above, teaching experience in High School/Upper Primary/Lower Primary schools under the same educational agency shall be considered and that, such experience shall be reckoned only for qualifying service and shall not be reckoned for seniority, that such persons must possess a minimum service of six years as HSST (Senior or Junior) and that, petitioner was only notionally promoted as HSST (History) with retrospective effect from 01.08.2000 and there is no minimum service of six years for her. Therefore, it is contended that the relevant rules for promotion to the post of Principal is six years of teaching experience in the post of HSST, HSST (Junior), as on the date of occurrence of vacancy is mandatory for promotion as Principal. Therefore, it is W.P.(C) No.3381 of 2015 13 contended that petitioner has worked in the post of HSST with effect from 16.01.2008 and she has acquired six years of teaching experience as HSST only on 16.01.2014. Moreover, as per the provisions of KS&SSR, when the benefit of notional promotion consequent on reduction of rank and seniority etc. is granted, she is treated as on duty and therefore the claim put forth by the petitioner to the post of Principal could not be sustained in any manner.
15. The 4th respondent has filed a counter affidavit almost on similar lines and specifically contending that petitioner has not acquired six years of teaching experience in the post of HSST as on 01.04.2010 and her promotion to the post of HSST with retrospective effect from 01.08.2000 was only notional while the 6th respondent has officiated in the post of HSST from 01.08.2000 onwards. It is also contended that there was no direction issued by this Court in Ext.P19 judgment to promote the petitioner by reverting the 6th respondent. That apart, it is also contended that the petitioner has not raised any claim for promotion to the post of Principal when the post arose on 01.04.2010 and hence her claim is highly belated. One of the prime contentions advanced by the W.P.(C) No.3381 of 2015 14 4th respondent is that 4th respondent has not received Ext.P10 representation submitted by the petitioner and it is only during 2013, the petitioner has raised a claim for the post of Principal for the first time before the 4th respondent and therefore the claim raised by the petitioner is highly belated and stale. It is also contended that Ext.P10 letter is bogus and purposefully fabricated for misleading this Court. Therefore, it is contended that 4th respondent is not bound to appoint the petitioner as Principal. That apart, it is contended that disciplinary action was initiated against the petitioner pursuant to forgery committed by the petitioner and therefore the Management has no confidence in her, even though the disciplinary action was set aside by the Government for want of necessary sanction as provided under the K.E.R. Therefore, it is contended that all these aspects were taken into account by the Government while passing Ext.P23 impugned order and the same is passed in accordance with law and no interference on the same is called for. That apart, it is also contended that petitioner has not acquired the qualification as on 01.04.2010 and further that there is no rule under Chapter XXXII K.E.R to make appointment to the cadre of Principal by observing W.P.(C) No.3381 of 2015 15 seniority.
16. The 6th respondent has filed a counter affidavit by raising similar contentions as that of the 4th respondent including the stale claim raised in the year 2013, and the disqualification suffered by the petitioner pursuant to the disciplinary action initiated against her, evident from Ext.R6(a) to Ext.R6(d).
17. Petitioner has filed reply to the counter affidavits filed by respondents 4 and 6, reiterating the contentions and denying the issues raised by the said respondents with regard to non-receipt of Ext.P10 and also contending that petitioner has raised the claim at the earliest opportunity.
18. Heard learned Senior Counsel appearing for the petitioner, learned Government Pleader and learned counsel appearing for 4th and 6th respondents.
19. The question to be considered in this case centers around two questions: (1) Whether the retrospective promotion granted to the petitioner with effect from 01.08.2000 notionally as HSST can be reckoned for the purpose of seniority to count the period of service as provided under Note 3 of Rule 6 of Chapter XXXII K.E.R? and (2) W.P.(C) No.3381 of 2015 16 whether the notional promotion granted to the petitioner with effect from 01.08.2000 can be reckoned for counting six years minimum service experience as provided under the said Note for the purpose of counting the seniority of the petitioner in the post of HSST?
20. In order to evaluate the said questions, I think it is only appropriate that Rule 6 of Chapter XXXII of K.E.R is extracted:
"6. Qualifications:- No person shall be eligible for appointment to the category in column (2) in the table below under the method specified in column (3) unless he possesses the Qualifications prescribed in the corresponding entry in column (4) thereof.
Sl. Category Method of Qualifications
No. Appointment
(1) (2) (3) (4)
1. Principal By promotion (1) Master's Degree with not less than
50% marks from any Universities in
Kerala or a qualification recognized
as equivalent thereto by any
University in Kerala.
(2) B.Ed. Degree from any
Universities in Kerala or a
qualification recognised as
equivalent thereto by any University
in Kerala.
(3) [Minimum approved teaching
experience of 12 years at Higher
Secondary Level under the same
Educational Agency.
Note-1. In the absence of persons having qualifications as specified above, approved teaching experience at High School/Upper Primary/Lower Primary School's under the same Educational Agency shall be considered.
W.P.(C) No.3381 of 2015 17
2. Such experience shall be reckoned only for qualifying Service and shall not be reckoned for Seniority.
3. Such persons must possess a minimum Service of Six years as Higher Secondary School Teacher (Senior/Junior)] By transfer (i) Master's Degree with not less than 50% marks from any of the Universities in Kerala or a Qualification recognised as equivalent thereto by any University in Kerala.
(2) B.Ed. Degree from any of the Universities in Kerala or qualification recognised as equivalent thereto by any University in Kerala.
(3) [Minimum approved teaching experience of 12 years under the same Educational Agency]".
21. It is beneficial to note that neither the petitioner nor the 6th respondent are having the qualification prescribed under Rule 6 of Chapter XXXII to occupy the post of Principal. But at the same time, no qualified hands were available with the 4th respondent Management and therefore the 4th respondent was entitled to make appointment by resorting to the special rules prescribed under the Note. If the notional seniority is taken into account for the purpose of Note (3), it is a fact that petitioner is senior to the 6th respondent in all other respects.
W.P.(C) No.3381 of 2015 18
22. Learned Senior Counsel for the petitioner contended that when notional promotion is granted to the petitioner as HSST with effect from 01.08.2000 and seniority is fixed in accordance with the same, as per Government Order, the petitioner is deemed to be in service from that date and therefore the service from 01.08.2000 is to be taken into account for reckoning minimum service prescribed under Note (3) to Rule 6 of Chapter XXXII. In order to substantiate the said contention raised by the petitioner, my attention was drawn to a Division Bench judgment of this Court in 'Rajappan Nair v. State of Kerala & others' [1984 KLT 141]. There, this Court held that if no fault of the incumbent in office, promotion is delayed and later given to him with retrospective effect from the date on which it was due, the Government servant is naturally entitled to restoration of the benefits which he has lost not on account of his conduct or laches. It was further held that it was only proper that Government should restore to him all that is lost by way of salary or other emoluments. It was also held that quite often the State takes a stand that even if a person is retrospectively promoted in recognition of his rights since the person so W.P.(C) No.3381 of 2015 19 promoted had not actually worked in that post he is not entitled to the emoluments of that post. That apart, it is held that the court was not shown the support of any rule or logic to deny the benefit of the salary to the person so promoted. It may be that such delayed promotion was not on account of any fault of the Government, but on account of conduct of the party himself. But in the normal run of cases where no such conduct can be attributed to the person who has lost the benefit of his appointment at the proper time when that is restored to him such restoration would be effective only if whatever would accompany that office would go to him. Otherwise it will only be a partial restoration resulting in loss to the person, a loss which he is not bound to bear (emphasis supplied).
23. So also, the judgment of this Court in 'Gopinath v. State of Kerala & others' [1998 (2) KLT 181] was pressed into service and invited my attention to paragraphs 9 and 10, wherein it is held as follows:
"9. In this case, it can be seen that the petitioner, though actually promoted only on 25.1.1986 was entitled to be promoted as Assistant Commandant with effect from 8.3.1983. He was also entitled to be confirmed with effect from 8.3.1984 in a vacancy which occurred on 13.9.1983. The petitioner cannot be held responsible for the delay of W.P.(C) No.3381 of 2015 20 almost a decade for passing orders in the matter of regularization of promotion and confirmation. Had the authorities taken prompt steps to promote the petitioner as and when the vacancy arose and to confirm the petitioner immediately on completion of the period of probation, the petitioner would have been actually promoted in 1983 itself. To put the delay in ordering the promotion and confirmation of the petitioner as a shield or denying the rightful promotion of the petitioner to the Indian Police Service is really arbitrary and discriminatory. The petitioner need not suffer for the lethargy on the part of the authorities.
10. Therefore, the Original Petition is allowed. The petitioner is entitled to treat the date of his regular promotion as ordered in Ext.P1 for the purpose of counting the qualifying service as Assistant Commandant for the purpose of appointment to the Indian Police Service."
24. So also, the judgment of the Apex Court in 'K. Madhavan and another v. Union of India and others' [(1987) 4 SCC 566] was brought to my attention in order to canvass the proposition that when a person is appointed to a post against a permanent vacancy on probation, his appointment is on a regular basis, but when a person is appointed to a post on a purely temporary or on an ad hoc basis, the appointment is not on a regular basis. It is therefore contended by the learned Senior Counsel for the petitioner that petitioner was appointed with effect from 01.08.2000 to a permanent vacancy and therefore the W.P.(C) No.3381 of 2015 21 petitioner is entitled to get all consequential benefits thereunder, treating the petitioner as Higher Secondary School Teacher from the said date onwards.
25. On the other hand, learned Government Pleader contended that the minimum service of six years prescribed under Note (3) to Rule 6 of Chapter XXXII K.E.R, is an exception to the main rule and therefore six years minimum period of service prescribed meant thereunder, is actual six years service put in by a Higher Secondary School teacher in order to secure a promotion as Principal. Respondents 4 and 6 also advanced similar contention and contended that the petitioner is not having actual qualifying service for a period of six years in order to enable her to be appointed as Principal.
26. Taking into account the arguments advanced by the rival parties and the principles of law laid down in the above referred judgments, the point that is to be appreciated is whether the appointment of the petitioner notionally to the post of HSST with retrospective effect as per Ext.P7 can be treated as the service rendered by the petitioner enabling her to qualify as provided under Note (3) to Rule 6 of Chapter XXXII K.E.R. On assimilation of facts and circumstances W.P.(C) No.3381 of 2015 22 involved in this case and taking into account the principles of law laid down by the Apex Court and this Court, the service of the petitioner with effect from 01.08.2000 as Higher Secondary School teacher are factors indicative to arrive at a conclusion that, the petitioner is entitled to secure all the service benefits from the said date including the seniority notionally fixed for counting service. I also take note of the fact that as per Ext.P6 judgment of a Division Bench of this Court, it was held that the petitioner is entitled to seniority with effect from 01.08.2000 and the statutory authorities were directed to reckon the seniority of the petitioner with effect from the said date. Going by the principles of law laid down by the Apex Court in the judgment cited above, merely because the appointment was notional in nature, the post to which the petitioner was appointed after replacing the incumbent in the office, with effect from 01.08.2000 is a permanent one. It is true that petitioner has not actually worked from 01.08.2000 but by legal fiction, petitioner was occupying the post of HSST with effect from an anterior date viz. 01.08.2000. Therefore, for all practical purposes, the said date will have to be adopted to reckon the service of the petitioner. In my view, the W.P.(C) No.3381 of 2015 23 petitioner is thus entitled to get seniority with effect from the said date treating the same as actual service rendered by the petitioner.
27. I also take note of the fact that, even though under Rule 6 (3) approved teaching experience of 12 years at Higher Secondary School level is prescribed, under Note (3) to the said rule, the qualification prescribed is only minimum service of six years and therefore when the petitioner is deemed to be in service from 01.08.2000, the same can be counted for reckoning 6 years minimum service. Moreover, Exts.P7 and P17 orders passed by the statutory authorities reckoning the seniority of the petitioner for all service benefits from the aforesaid date and upheld by Ext.P20 judgment have become final and conclusive. Viewed in any angle, I am of the considered opinion that the petitioner has qualifying minimum service of six years as provided under Note (3) to Rule 6 so as to enable her to be appointed as the Principal of the 4th respondent's school. The other qualifications of the petitioner, prescribed thereunder is not in dispute.
W.P.(C) No.3381 of 2015 24
28. The next contention advanced by the learned counsel for the 4th respondent is that the claim raised by the petitioner to the post of Principal which became vacant on 01.04.2010 has become stale since for the first time a claim was raised only in the year 2013. It is the specific contention of the 4th respondent that the 4th respondent has not received Ext.P10 representation seeking appointment to the post of Principal by the petitioner. This is refuted by the petitioner in her reply. So far as that aspect of the matter is concerned, respondents 1 to 3 does not have a case that Ext.P10 is not received but however it is not admitted that Ext.P10 is received. Therefore, I am bound to consider the same by appreciating the rival contentions made by the respective parties. On a perusal of Ext.P10 dated 22.03.2010, I gather that petitioner has addressed the same to the 3rd respondent with a copy to the 4th respondent. Petitioner has made a specific contention that when the vacancy to the post of Principal arose, she has submitted Ext.P10 to the 3rd respondent with copy to the 4th respondent. The 3rd respondent has not denied receipt of the same. But however, there is no whisper about receipt of the same by the 3rd W.P.(C) No.3381 of 2015 25 respondent in the counter affidavit filed by the 2nd respondent. That apart, learned counsel for the 4th respondent submitted that since a specific counter is not filed by the 3rd respondent, the absence of any statement with regard to the receipt of Ext.P10 in the counter affidavit filed by the 2nd respondent, cannot be treated as receipt of the same by the 3rd respondent. However, I find that Ext.P11 is seen filed by the petitioner dated 22.09.2012 before the 2nd respondent and on receipt of the same, 2nd respondent had forwarded the same to the 4th respondent by Ext.P12 dated 08.10.2012. Neither the 4th respondent nor the 6th respondent have a claim that Ext.P12 and the consequential order Ext.P13 are not received by 4th respondent. Therefore, even assuming that Ext.P10 is not received, in the absence of proof with regard to receipt of the same, it is discernible that Exts.P12 and P13 were received by the 4th respondent. That apart, Ext.P14 was also a letter addressed by 3rd respondent to the 4th respondent dated 31.01.2013 which is not disputed. Therefore, in such circumstances, in the light of Exts.P11 and P14, it can be seen that the petitioner has taken, steps with regard to her claim for appointment as Principal of the 4th respondent at least within a W.P.(C) No.3381 of 2015 26 period of two years. The principles of 'sit back theory' or stale claim, in that circumstances may not strictly apply since within a reasonable time the petitioner had taken steps. It is well settled that, a reasonable period under service jurisprudence can be any period less than 3 years, in order to disturb a settled position of a person holding a post. Therefore, I am of the considered opinion that the petitioner cannot be non-suited on the grounds of principles of 'sit back theory' or that the claim of the petitioner has become stale. That apart, I find from the records that it is after a prolonged litigation that the petitioner could settle the seniority with effect from 01.08.2000.
29. It is also contended by learned Government Pleader as well as learned counsel for the respondents that disciplinary action was initiated against the petitioner for forgery and major punishment was imposed by demoting her to an inferior post. But I find from the records that the same was set aside by the statutory authority holding that no prior approval was secured to impose a major punishment. Therefore, no consequence or legal infirmities can be presumed to exist and that the order of imposition of penalty pursuant to the W.P.(C) No.3381 of 2015 27 interference of the statutory authority has become redundant, in-operative and inconsequential. In such circumstances, no disqualification on that account can be attributed against the petitioner.
30. In the light of the discussions made above, I am of the considered opinion that Ext.P23 by which the petitioner was declined appointment by the 1st respondent cannot be sustained under law. In such circumstances, I hold that the petitioner is entitled to be appointed as Principal of the 4th respondent's school in preference to the 6th respondent with effect from 01.04.2010, when the vacancy arose in the school and when the 6th respondent was appointed to that post. It is declared so. Therefore, Ext.P23 is set aside and direct the 1st respondent to issue fresh orders taking into account the directions contained above, within a period of two months from the date of receipt of a copy of this judgment.
The writ petition is allowed accordingly.
Sd/-
SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-
29.02.2016