Kerala High Court
E.Sujatha vs Director Of Public Instructions on 22 May, 2019
Author: P.V.Asha
Bench: P.V.Asha
W.P(c).No.8141 & 8424 of 2019 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 22ND DAY OF MAY 2019 / 1ST JYAISHTA, 1941
WP(C).No. 8141 of 2019
PETITIONER:
E.SUJATHA,
AGED 52 YEARS,
W/O.SANALKUMAR, HEADMISTRESS, L.M.S.L.P. SCHOOL,
CHENKULAM, KOLLAM DISTRICT,
RESIDING AT : PAITHRUKAM, NALLOORVATTOM,
PLAMOOTTUKADA P.O.,
THIRUVANANTHAPURAM -695 122.
BY ADVS.
SRI.ELVIN PETER P.J.
SRI.K.R.GANESH
RESPONDENTS:
1 DIRECTOR OF PUBLIC INSTRUCTIONS
THIRUVANANTHAPURAM - 695 014.
2 THE ASSISTANT EDUCATIONAL OFFICER, VELIYAM,
KOLLAM 691 540.
3 THE ASSISTANT EDUCATIONAL OFFICER,
PARASSALA,
THIRUVANANTHAPURAM 695 502.
4 THE CORPROATE MANAGER,
CORPORATE EDUCATIONAL AGENCY,
CSI KOLLAM KOTTARAKKARA DIOCESE,
C.S.I. COMPOUND, KOLLAM 691 001.
5 THE CORPORATE MANAGER
L.M.S SCHOOLS CORPORATE EDUCATIONAL AGENCY,
CSI SOUTH KERALA DIOCESE,
THIRUVANANTHAPURAM 695 033.
BY ADV. SRI.R.T.PRADEEP (R4 & R5)
by GOVERNMENT PLEADER SRI JESTIN MATHEW (R1 TO R3)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.05.2019, ALONG WITH WP(C).8424/2019, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P(c).No.8141 & 8424 of 2019 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 22ND DAY OF MAY 2019 / 1ST JYAISHTA, 1941
WP(C).No. 8424 of 2019
PETITIONER:
SREEJA.M.S,
AGED 50 YEARS
W/O. PRINCE T, HEADMISTRESS, L.M.S.L.P SCHOOL,
VILANGARA, KOLLAM DISTRICT,
RESIDING AT : SREEJU BHAVAN, KOTTUKONAM,
ELLUVILA (P.O), THIRUVANANTHAPURAM 695 504.
BY ADVS.
SRI.ELVIN PETER P.J.
SRI.K.R.GANESH
RESPONDENTS:
1 DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM 695 014.
2 THE ASSISTANT EDUCATIONAL OFFICER,
VELIYAM (VILANGARA), KOLLAM 691 540.
3 THE ASSISTANT EDUCATIONAL OFFICER,
PARASSALA, THIRUVANANTHAPURAM 695 502.
4 THE CORPORATE MANAGER,
CORPORATE EDUCATIONAL AGENCY,
CSI KOLLAM-KOTTARAKKARA DIOCESE,
C.S.I COMPOUND, KOLLAM 691 001.
5 THE CORPORATE MANAGER,
L.M.S SCHOOLS CORPORATE EDUCATIONAL AGENCY,
CSI SOUTH KERALA DIOCESE,THIRUVANANTHAPURAM-695033.
BY ADVS.
SRI.R.T.PRADEEP
SMT.M.BINDUDAS
SRI.K.C.HARISH
SRI JESTIN MATHEW
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.05.2019, ALONG WITH WP(C).8141/2019, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P(c).No.8141 & 8424 of 2019 3
P.V.ASHA, J.
--------------------------
W.P(C) Nos.8141 of 2019-P
and
8424 of 2019-C
-------------------------------------------
Dated this the 22nd day of May, 2019
JUDGMENT
Both these Writ Petitions are filed by Headmistresses of L.P schools under the Corporate Educational Agency of CSI Kollam-Kottarakkara Diocese-the 4 th respondent, challenging the orders produced as Ext.P3, by which they were promoted from the post of LPSAs while they were working as LPSAs in the Thiruvananthapuram District and given posting in Schools at Vilangara and Chenkulam respectively in the revenue district Kollam under the 4 th respondent, to the extent they were transferred to schools under the 4 th respondent. They have also sought for directions to the respondents to give them transfer and posting as Headmistresses in the vacancies available under the 5th respondent and for a declaration that they are entitled to a transfer and posting as Headmistresses in one of the schools under the corporate management of the 5th respondent.
2. The petitioners in these cases were working as LP School Teachers in Schools under the Corporate Educational Agency of CSI South Kerala Diocese, Thiruvananthapuram. According to the petitioners, the corporate educational agency CSI South Kerala Diocese was bifurcated into Corporate Educational W.P(c).No.8141 & 8424 of 2019 4 Agency managed by CSI Kollam-Kottarakkara Diocese and by the Corporate Manager of LMS Schools, CSI South Kerala Diocese, Thiruvananthapuram. On bifurcation 21 L.P schools and 3 Special Schools were brought under the administration and management of the Corporate Manager of CSI Kollam- Kottarakkara Diocese and the remaining schools which were in the revenue District Thiruvananthapuram were brought under the management of the Corporate Manager of LMS Schools, CSI South Kerala Diocese, Thiruvananthapuram. It is stated that the Bishop of CSI Kollam-Kottarakkara Diocese took charge on 10.09.2017 and he submitted Ext.P1 letter on 12.04.2018 before the 2nd respondent along with the bye-laws framed for administration of the Schools under the 4th respondent requesting for its approval, under Rule 5A of Chapter III of Kerala Education Rules, (KER) 1958, furnishing the list of 21 L.P schools and 3 special schools, which were brought under it. The DPI thereafter approved the bye-laws as per Ext.P2 order on 16.08.2018.
3. In the meanwhile, Smt.Sreeja, the petitioner in W.P(c).No.8424 of 2019 was granted promotion as Headmistress and posted at LMS L.P.S, Vilangara, as per Ext.P3 order dated 27.03.2018, while she was working as LPSA in LMS L.P.S, Anchumaramkala. Smt. Sujatha-the petitioner in W.P(c).No.8141/2019, was granted promotion as Headmistress as per Ext.P3 order issued on 28.5.2018 and she was posted in their School at Chenkulam, while she was working as LPSA in LMS LPS, Maypuram, against a vacancy which arose on transfer. The contention of the petitioners is that they should not have been transferred after a decision was W.P(c).No.8141 & 8424 of 2019 5 taken for bifurcation to a school in another revenue district which came under the 4th respondent. According to the petitioners, on account of their postings in Schools which are 150 and 300 kms far away, have put them to severe hardship. Pointing out the hardship caused to the petitioners, they stated that they are entitled to be transferred to one of 5 vacancies of Headmistresses which were arising on 31.03.2019, under the 5th respondent in the revenue district Thiruvananthapuram. They have also pointed out that Ext.P1 bye-laws provide for transfer of those teachers transferred away from home districts to the parent district. The petitioners filed these Writ Petitions pointing out that they are entitled to get transfer to vacancies occurring in the schools coming under the Corporate Educational Agency, CSI South Kerala Diocese pointing out the hardship caused to them on account of posting in far away places.
4. It is pointed out that posting of the petitioners while they were working as LPSAs in the Revenue District, Thiruvananthapuram on promotion as Headmistresses in the schools which came under the jurisdiction of the 4 th respondent was made contrary to Rule 11 of Chapter XIVA of KER as it is without approval from the educational authorities and are hence void.
5. The 5th respondent- the Corporate Manager of LMS Schools Corporate Educational Agency has filed a counter affidavit. It is stated that the petitioners were appointed as LPSAs in the L.P schools under the Corporate Management of CSI South Kerala Diocese of Church of South India; on promotion they were posted in the respective schools w.e.f 1.6.2018 as per the orders Ext.P3; W.P(c).No.8141 & 8424 of 2019 6 Lower Primary Aided Schools under the South Kerala Diocese, which fall within the area earmarked for the new Diocese were brought under the 4th respondent and bye-laws for the functioning of the educational agency of the new Diocese were framed and approved by the educational authority; even though the new Diocese was brought into existence on 10.09.2017, the 2 nd respondent approved the bye- laws only as per Ext.P2 order on 16.8.2018 and therefore the new educational agency became operational from 16.8.2018. According to the 5 th respondent, the petitioners who had accepted Ext.P3 orders without any demur have chosen to challenge the orders Ext.P3 only after enjoying its fruits for about a year; it is their case that the parental education agency had every authority to make transfers and promotions till the new educational agency became operational on 16.8.2018. As per Ext.P1 bye-laws not more than 10% of the vacancies arising in the Schools under the parent diocese annually, can be utilised for accommodating the staff members who are working under the newly established educational agency and opted the parent educational agency; the petitioners are natives of parent educational agency and are entitled to be accommodated under it, as per the provision in the bye-law; but in Ext.R5(a) seniority list of Headmasters of Kollam-Kottarakkara Diocese, who are eligible for such transfers, the petitioners are Sl.Nos.13 and 9 respectively; only 5 vacancies of Headmasters arose under the 5th respondent and therefore there is no vacancy available for accommodating any of the teachers under the 10% quota. It is also their case that filling up of all the vacancies of Headmasters by transfer would affect the promotion prospects of the W.P(c).No.8141 & 8424 of 2019 7 Rule 43 claimants under the parent educational agency and hence the claim of the petitioners is unsustainable. According to them, not a single vacancy available for the optees under the 10% quota had arisen. The 5 th respondent has also pointed out that the petitioners have rushed to this Court without availing the statutory remedies and therefore the Writ Petitions are not maintainable.
6. In the reply affidavit the petitioners have stated that their transfer from one educational agency to another educational agency was made without prior approval of DEO and hence the same is contrary to Rule 11 of Chapter XIVA KER. It is stated that the orders to the extent the petitioners were posted in a different educational agency itself by way of Ext.P3 without the approval of respondents 1 to 3 are illegal. It is also their case that the seniority list Ext.R5(a) cannot have any relevance as long as transfer is made in violation of any Rules.
7. According to the petitioners, Ext.P2 is only a statutory recognition of bifurcation and the order granting approval would relate back to the date of bifurcation by the educational agency. It is further stated that the bifurcation would come into effect only after approved by the educational authority which would arise only in the case of change of management involving change of ownership under Rule 5A of Chapter III of KER. It is their case that in order to effect change of management involving change of ownership prior approval of the Director is necessary. The only provision which applies is Rule 5 and under Rule 5 change of management would take effect from the original date of bifurcation being granted and no prior approval is necessary. Therefore, according to the W.P(c).No.8141 & 8424 of 2019 8 petitioners, their transfer which is in violation of Rule 11 is contrary to law.
8. Heard Sri Elvin Peter the learned counsel for the petitioners, Sri R. T. Pradeep for respondents 4 and 5 and Sri. Justin Mathew, the learned Government Pleader. In the both the Writ Petitions, the reliefs sought are the same. The reliefs sought in Writ Petition No.8141 of 2019 are extracted below:
"i) Issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading to Ext.P3 and set aside the same to the extent it transfers the petitioner as Headmistress to L.M.S.L.P School, Chenkulam;
ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing respondents 4 and 5 to give a transfer and posting to the petitioner as Headmistress to one of the 5 vacancies of Headmistress in the schools administered and managed by the 5th respondent;
iii) Declare that the petitioner is entitled for a transfer and posting as Headmistress in one of the schools administered and managed by the 5 th respondent; and
iv) grant such other and further reliefs as are just, proper and necessary in the facts and circumstances of the case."
9. The petitioners do not have any complaint either over the bifurcation or over Ext.P1 bye-laws or its approval as per Ext.P2. Ext P2 order approving the bye-laws was issued on 16.08.2018. The promotion and posting of Sreeja is seen effected before the approval of Ext.P1 bye-laws and even before its submission for approval in April, 2018. In the case of Sujatha, Ext.P3 is seen ordered subsequent to the submission of Ext.P1 and before approval was granted by Ext.P2.
10. Though there is no contention in the Writ Petition with reference to Rule 5 or Rule 5A of Chapter III of KER in respect of transfer of the management as well as transfer of management along with ownership, the learned Counsel for the petitioners vehemently argued that the provision applicable in the case of the posting of the petitioners to schools under different management is Rule 5 and that there was no transfer of management along with ownership involved in the W.P(c).No.8141 & 8424 of 2019 9 bifurcation so as to be governed by Rule 5A. It was therefore argued that the action of the respondents in issuing Ext.P3 order posting them to schools under a different educational agency is contrary to Rule 11 of Chapter XIVA KER, in the absence of approval by the educational authorities. According to Sri. Elvin Peter, though the orders Ext.P3 were issued in March and April, 2018, the delay will not stand in the way of challenging the same as those orders are void and it can be challenged at any time. It was also argued that respondents 4 and 5 have not observed the formalities envisaged in Rule 5A required for change of management along with change of ownership and therefore the entire action of the respondents is unsustainable.
11. It is seen that the petitioners, who were working as LPSAs, were granted promotion as Headmistresses as per orders issued on 27.3.2018 and 28.4.2018 respectively. As far as Ext.P3 order issued in the case of Smt.Sreeja - the petitioner in W.P(c).No.8424/2019 is concerned, her promotion was ordered well before Ext.P2 order as well as before the submission of Ext.P1 letter. Therefore, she cannot have any case that prior approval was necessary for her transfer. Even in the case of Smt.Sujatha, her contention with reference to Rule 5 of Chapter XIVA KER is unsustainable because her promotion was much before Ext.P3 order of approval was granted. In case promotion was not ordered the petitioners would have continued as LPSAs. The petitioners did not and do not have any complaint as against their promotion or against the posting till this time. The stand of the respondents is that bifurcation of the Diocese was done for W.P(c).No.8141 & 8424 of 2019 10 administrative purposes and on bifurcation the Schools as well as administration over it come under the newly formed diocese and the bifurcation involved transfer of management along with ownership. I am of the considered view that it is unnecessary to deal with the contentions with respect to the question, whether the bifurcation involved transfer of management or transfer of management with ownership, etc, as long as the petitioners have not challenged either the bifurcation or the bye-laws or the approval granted in Ext.P2.
12. Moreover, it is relevant to note that the petitioners accepted the promotions granted in March and April, 2018 when they were posted in the Schools in the Revenue District Kollam from schools under the Revenue District, Thiruvananthapurm. They have sought to challenge the same after about a year of their posing. The petitioners have not stated that they are willing to be posted as LPSAs. If at all the orders Ext.P3 are interfered with, it will only result in their posting as LPSAs.
13. From Ext.R5(a) it is seen that there are 13 Headmasters/Headmistresses who are continuing under the 4 th respondent and opted for posting under the 5th respondent. Petitioners are not the seniormost. Therefore, the contention that they are entitled to be transferred against the 5 vacancies and, that too, when the bye-laws permit transfer to the Schools under 5 th respondent only against 10% of the vacancies, is without any merit. As pointed out by the learned Counsel for respondents 4 and 5 the vacancies are insufficient even for transfer of one optee in accordance with the provisions in Ext.P1 bye- W.P(c).No.8141 & 8424 of 2019 11 laws.
In the above circumstances of the case, I find that the claim of the petitioners in both these Writ Petitions is unsustainable. Accordingly, the Writ Petitions fail and are dismissed.
Sd/-
(P.V.ASHA, JUDGE) rtr/ W.P(c).No.8141 & 8424 of 2019 12 APPENDIX OF WP(C) 8141/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BYE-LAWS FRAMED FOR
ADMINISTRATION AND MANAGEMENT OF THE
SCHOOLS UNDER THE CSI KOLLAM-KOTTARAKKARA
DIOCESE EXECUTED ON 12.4.2018.
EXHIBIT P2 TRUE COPY OF THE ORDER NO. DPI/81647/2018-
ETI DATED 16.8.2018 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P3 TRUE COPY OF ORDER NO. B/509/18/CM DATED
28.5.2018 ISSUED BY THE 5TH RESPONDENT.
RESPONDENTS' EXHIBITS
EXHIBIT -R5(a) TRUE COPY OF THE SENIORITY LIST OF
HEADMASTER/HEADMISTRESS OF KOLLAM-KOTTARAKKARA
DIOCESE TO BE ACCOMMODATED UNDER SOUTH KERALA
DIOCESE.
W.P(c).No.8141 & 8424 of 2019 13
APPENDIX OF WP(C) 8424/2019
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BYE-LAWS FRAMED FOR
ADMINISTRATION AND MANAGEMENT OF THE
SCHOOLS UNDER THE CSI KOLLAM-KOTTARAKKARA
DIOCESE EXECUTED ON 12-4-2018.
EXHIBIT P2 TRUE COPY OF THE ORDER NO. DPI/81647/2018-
ETI DATED 16-08-2018 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P3 TRUE COPY OF ORDER NO.B/499/18/CM DATED
27-3-2018 ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED
TO THE PETITIONER BY DR. VIJAYADAS.
RESPONDENTS' EXHIBITS
EXHIBIT-R5(a) TRUE COPY OF THE SENIORITY LIST OF
HEADMASTER/HEADMISTRESS OF KOLLAM-KOTTARAKKARA
DIOCESE TO BE ACCOMMODATED UNDER SOUTH KERALA
DIOCESE.