Kerala High Court
Priyanka.R.Prasad vs The State Of Kerala on 12 January, 2023
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
WP(C) NO. 14725 OF 2012
PETITIONER:
PRIYANKA.R.PRASAD
AGED 24 YEARS
WIFE OF S.SREEKUMAR, LOWER PRIMARY SCHOOL ASSISTANT,
LUTHERAN HIGH SCHOOL, SOUTH ARYAD-688006, ALAPPUZHA
DISTRICT.
BY ADVS.
SRI.V.A.MUHAMMED
SRI.K.E.HAMZA
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS
JAGATHY, THIRUVANANTHAPURAM-695014.
3 THE DEPUTY DIRECTOR OF EDUCATION
ALAPPUZHA DISTRICT-688001.
4 THE DISTRICT EDUCATIONAL OFFICER
ALAPPUZHA DISTRICT-688011.
5 THE MANAGER
LUTHERAN SCHOOL, PEROORKADA,
THIRUVANANTHAPURAM-695005.
6 SRI. M.SAJIRAJ
MUZHAKKOLKUNNU, VADAKKARIKU VEEDU,
P.O.KANJIRAMKULAM-695524, THIRUVANANTHAPURAM.
7 SRI. B.SHANAVAS
LOWER PRIMARY SCHOOL ASSISTANT,
ARIVARIKKUZHY LUTHERAN LOWER PRIMARY SCHOOL,
KILIMANOOR, THIRUVANANTHAPURAM-695501.
WP(C) NO. 14725 OF 2012
2
BY ADVS.
SRI.RENJITH T.R., SENIOR GOVERNMENT PLEADER
SRI.B.BIPIN
SRI.P.K.MANOJKUMAR - R6
SRI.R.REJI
SRI.M.V.THAMBAN
SMT.THARA THAMBAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 12.01.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 14725 OF 2012
3
P.V.KUNHIKRISHNAN, J.
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W.P.(C).No. 14725 of 2012
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Dated this the 12th day of January, 2023
JUDGMENT
The above Writ Petition is filed with the following prayers:
"(i) call for the records relating to Exhibits P-
5 and P-6 and quash the originals of the same by the issue of a writ of certiorari or other appropriate writ or order.
(ii) issue a writ of mandamus or other appropriate writ order or direction commanding the Respondents 1 to 5 to allow the Petitioner to continue in Lutheran High School, South Aryad again the regular promotion vacancy.
(iii) declare that the Petitioner is senior to the 6th and 7th Respondents.
(iv) pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case."[SIC]
2. It is the case of the petitioner that, she has got approved appointment from 1.6.2011 in Lutheran WP(C) NO. 14725 OF 2012 4 High School, South Aryad as per Exhibit P-1 order whereas the 6th respondent has not got any approval and hence the 6th respondent is not senior to the petitioner. It is the further case of the petitioner that the 6th respondent is not entitled for approval as he was ousted from Lutheran High School, South Aryad during 2010-2011. It is stated that the 6th respondent was ousted from Lutheran High School, South Aryad during 2010-11 due to abolition of additional post sanctioned during 2009-2010 in which he was appointed from 1.6.2009. In Exhibit P-5 order the Government ordered to include Sri. Sajiraj, the 6th respondent in Educational Package provided, there should be a vacancy to accommodate him from the date of retrenchment after division fall. It is submitted by the petitioner that there was no vacancy during 2010-2011 in Lutheran High School, South Aryad. It is the further case of the petitioner that, the Director of Public Instruction has not conducted any verification WP(C) NO. 14725 OF 2012 5 about the veracity of the list of Educational Package in respect of Lutheran Schools before issuing Exhibit P-6 order. It is further stated that Exhibit P-6 order is only a rubber stamp order emulating Exhibit P-5 order. It is also submitted that, it is not a speaking order. The submission of the petitioner is that, she is entitled for approval from 1.6.2009 itself as approved in Exhibit P- 1 order as the petitioner was appointed against a regular promotion vacancy and not against an additional division vacancy during the ban period. It is also submitted that, in Exhibit P-5 order it has been categorically stated that the 7th respondent Sri. Shanavas is the junior-most and hence even according to Exhibit P-5 order petitioner is entitled to continue in service in preference to the 7th respondent. This has not been looked into by the Director of Public Instruction, is the submission. Aggrieved by Exts.P5 and P6 order, this Writ Petition is filed.
3. Heard counsel appearing for the petitioner WP(C) NO. 14725 OF 2012 6 and the counsel appearing for the 6th respondent. I also heard the learned Government Pleader.
4. Counsel for the petitioner reiterated the contentions raised in this writ petition. On the other hand, the counsel appearing for the 6 th respondent submitted that, after Exts.P5 and P6, the 6 th respondent was appointed in the School and subsequently the petitioner was also accommodated in 2012. This Court perused Ext.P5 Government Order. It will be better to extract the relevant portion of Ext.P5 order.
"3. The matter was examined in detail. As per the report of District Educational Officer, Alappuzha Sri.Sajiraj.S.M was senior to Smt. Priyanka R.Prasad. Hence as and when a division fall happened the junior has to be retrenched. Here a senior hand is retrenched and the junior is restored. This is against the provisions in KER. Moreover it is stated that the petitioner is working in L.M.L.P.S, Muhamma under Assistant Educational Officer, Cherthala. At the time of hearing, the counsel for Smt.Priyanka.R.Prasad also opined that the senior is Sri SajiRaj.S.M and he has to be restored. Though he is restored, there is sufficient vacancy to WP(C) NO. 14725 OF 2012 7 provide Smt. Priyanka.R.Prasad and the inclusion of her name in the package is not erroneous. The reason for non-inclusion of the name of the petitioner as explained by the District Educational Officer is that the appointment of petitioner is not yet approved and he is not in service at the time of preparing the list. The list of package is verified. The name of Smt.Priyanka.A.Prasad is included in the list. And also seen that a junior to Sri.Sajiraj.S.M viz., Sri.Shanavas is also included in the list.
4. On examining the case, it is found that the senior is to be restored in service irrespective of his appointment viz. in additional vacancy or in promotion vacancy etc. Here the petitioner is senior and he has not to be retrenched. During the hearing the Manager also informed that he has not issued any communication to Sri.Sajiraj.S.M for the retrenchment. He assured that the junior has to be retrenched and the retrenchment of Shri.Sajiraj.S.M is not proper.
5. Government have examined the matter in detail and are pleased to order the following:-
(a) Sri. Sajiraj.S.M will be included in the Educational Package, as he is eligible to continue in service as per his seniority, provided there should be a vacancy to accommodate him from the date of retrenchment, after the division fall.
(b) Smt. Priyanka.R.Prasad can be included in the package if there is a vacancy to accommodate her after restoring Sri.Sajiraj.S.M. WP(C) NO. 14725 OF 2012 8
(c) The Director of Public Instruction will strictly verify the veracity of list of education Package in respect of Lutheran Schools before regularizing their appointments from 1/06/11.
(d) As per the provisional seniority list, Sri.Shanavas is the junior most. Here it is seen that he is included in the package and senior is excluded. Hence, the Director of Public Instruction is directed to review the case of Sri.Shanavas for his eligibility to be included in the list.
6. The directions contained in the judgment read as 4th paper above is complied with accordingly."
5. I see no reason to interfere with the above order. All the contention raised by the petitioner is considered by the Government in detail in Ext.P5 order. Moreover, the Government also recorded that at the time of hearing, the counsel for the petitioner also opined that the 6th respondent is the senior. It is true that, simply because the counsel concede, the rights of the petitioner can not be denied. But from a reading of the entire order passed by the Government, it is clear that there is nothing to interfere with the same. WP(C) NO. 14725 OF 2012 9 Now the petitioner and the 6th respondent are accommodated in the School. At this distance of time, according to me, there is nothing to interfere with Exts.P5 and P6 Accordingly, this writ petition is dismissed.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
WP(C) NO. 14725 OF 2012
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APPENDIX OF WP(C) 14725/2012
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER
OF THE PETITIONER DATED 01.06.2009.
EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER
OF SRI. SAJIRAJ S.M. DATED
01.06.2009.
EXHIBIT P3 TRUE COPY OF THE ORDER NO.B3-
887/10/D.DIS. DATED 13.08.2010 OF
THE DISTRICT EDUCATIONAL OFFICER.
EXHIBIT P4 TRUE COPY OF THE ORDER NO.D.DIS. B3-
5158/2010 OF THE DISTRICT
EDUCATIONAL OFFICER DATED
13.08.2010.
EXHIBIT P5 TRUE COPY OF THE G.O.(RT.)NO.
1808/2012/G.EDN. OF THE GOVERNMENT DATED 17.04.2012.
EXHIBIT P6 TRUE COPY OF THE ORDER NO.H(2) / 5725/2012/DPI OF THE 2ND RESPONDENT DATED 13.06.2012.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE