Sangeetha R Nair vs State Of Kerala
2021 Latest Caselaw 2549 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

              FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942

                            WP(C).No.16026 OF 2019(C)


PETITIONER:

                  SANGEETHA R NAIR
                  AGED 52 YEARS
                  H.S.S.T CHEMISTRY, H.S.S KANDAMANGALAM, KADAKKARAPPALLY P.O,
                  CHERTHALA-688529, W/O. P.REGHUNATHA KURUP, RESIDING AT
                  THARAPADHAM, POLLATHAI, KALAVOOR P.O, ALAPPUZHA-688522.

                  BY ADVS.
                  SRI.ELVIN PETER P.J.
                  SRI.K.R.GANESH

RESPONDENTS:

       1          STATE OF KERALA
                  REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT,
                  SECRETARIAT, THIRUVANANTHAPURAM-695001.

       2          THE DIRECTOR OF HIGHER SECONDARY EDUCATION
                  HOUSING BOARD BUILDINGS, SANTHI NAGAR,
                  THIRUVANANTHAPURAM-695001.

       3          THE REGIONAL DEPUTY DIRECTOR,
                  HIGHER SECONDARY EDUCATION DEPARTMENT,
                  CHENGANNUR, ALAPPUZHA DISTRICT-689121

       4          THE MANAGER,
                  H.S.S KANDAMANGALAM, KADAKKARAPPALLY P.O, CHERTHALA,
                  ALAPPUZHA DISTRICT, PIN-688529.

       5          RAJESWARI DEVI S,
                  H.S.S.T(MATHS), H.S.S. KANDAMANGALAM, KADAKKARAPPALLY P.O,
                  CHERTHALA, ALAPPUZHA DISTRICT, PIN-688529


                  BY ADV. DR.GEORGE ABRAHAM
                  BY ADV. SRI.V.A.MUHAMMED
                  BY ADV. SRI.V.RAJASEKHARAN NAIR

OTHER PRESENT:

                  SRI. P.M.MANOJ - SR.GP

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.16026 OF 2019(C)

                                      2




                             JUDGMENT

The petitioner, who is stated to be working as a Higher

Secondary School Teacher in H.S.S, Kandamangalam,

Cherthala, has filed this writ petition seeking a direction to

respondents 2, 3 and 4 to promote her as Principal with effect

from 01.04.2019; and further to restrain the 3 rd respondent for

approving Ext.P3 seniority list, wherein the 5 th respondent has

been assigned seniority above her.

2. Sri.Elvin Peter P.J., learned counsel appearing for the

petitioner, submits that the original seniority list is Ext.P2,

which was prepared by the Manager as on 01.07.2018, in which

his client has been shown to be senior to the 5 th respondent; but

that thereafter, the Manager unilaterally and without legal

authority, revised the same through Ext.P3, interchanging their

position, thus making her junior solely for the reason that 5 th

respondent had prior approved service in the High School

section of the School.

3. Sri.Elvin Peter says that, concededly, his client is

senior in age and she and the 5th respondent had been

appointed on the same day, namely on 03.10.2000; and WP(C).No.16026 OF 2019(C)

therefore, that going by the provisions of Chapter XXXII of the

Kerala Education Rules and by the precedents covering the

field, she ought to have been granted seniority, which had been

correctly done in Ext.P2, which he asserts to be the only

approved seniority list available for the School. Sri.Elvin Peter,

therefore, prays that the 3rd respondent be directed to reject

Ext.P3 seniority list and to consequentially direct the 4 th

respondent - Manager to promote his client as the Principal

with effect from 01.04.2019 forthwith.

4. In response, Dr.George Abraham, learned counsel

appearing for the 4th respondent - Manager, submitted that a

counter affidavit has been filed on record, wherein, it has been

averred that 5th respondent is having a better claim than the

petitioner for seniority, since she has prior approved service as

a High School Teacher in the School. He says that this right

accrues to her on account of Rule 37(2) of Chapter XIVA of the

Kerala Education Rules (KER for short) and therefore, that his

client was completely without error in having reviewed and

modified Ext.P2 seniority list through Ext.P3. He, therefore,

prays that this writ petition be dismissed. WP(C).No.16026 OF 2019(C)

5. Sri.M.Sajjad, learned counsel appearing for the 5 th

respondent, adopts the submissions of Dr.George Abraham and

submitted that since his client had prior approved service as

HSA in the School, the petitioner cannot seek to be senior to

her, even though she may be older. He also relied on Rule 37(2)

Chapter XIVA of the KER in substantiation of this plea.

6. The learned Senior Government Pleader,

Sri.P.M.Manoj, however, submitted that the Department will

only recognize Ext.P2 - which is the approved seniority list; and

that any modification made thereto by the Manager will require

to be sanctioned by the competent Authority before it can be

put into operation. He submitted that going by Ext.P2, which is

the sole approved seniority list as of now, the petitioner is

senior to respondent No.5 and therefore, that the Manager

could not have appointed the latter as the Headmistress of the

School. He submitted that, in fact, the petitioner has already

approached the 2nd respondent - Director of Higher Secondary

Education through Ext.P5 and that the said Authority is willing

to consider the same, after hearing all sides, thus leading to

appropriate orders thereon.

WP(C).No.16026 OF 2019(C)

7. In reply, Sri.Elvin Peter P.J, submitted that the

contentions of the 5th respondent and that of the Manager,

edificed on Rule 37 (2) Chapter XIVA of the KER are completely

untenable, since those provisions are not applicable to the

Higher Secondary School division. He contended that it is now

well settled, through a catena of judgments of this Court and

that of the Hon'ble Supreme Court, that the provisions of

Chapter XIVA would apply to the Higher Secondary School

division only if it is expressly adopted and that since there is no

such adoption as of now, the provisions of Rule 37(2) cannot be

pressed into strength by either of the aforementioned

respondents. He thus reiteratinlgy, prayed that this writ petition

be allowed.

8. When I consider the afore submissions, it is

perspicuous that the rival contentions between the petitioner

and the 5th respondent are edificed on Rule 37(2) Chapter

XIVA of the KER, with the former asserting that it is not

applicable to the Higher Secondary School division, while the

latter contending it to be so.

9. Prima facie, in the absence of any orders adopting WP(C).No.16026 OF 2019(C)

the provisions of Chapter XIVA, particularly Rule 37(2), to the

Higher Secondary School division, I am of the view that the

contentions of the 5th respondent and that of the 4 th respondent -

Manager will require to be carefully scrutinized by the

competent Authority of the Department, namely the Director.

This is more so because, as seen above, the Government takes a

stand that Ext.P2 is the only approved seniority list and

therefore, the question whether Ext.P3 should be approved or

otherwise will also have to be taken, at the first instance, by the

Educational Authority and not by this Court, while acting under

Article 226 of the Constitution of India.

10. In the afore circumstances, I am firm in my mind that

the 2nd respondent - Director must take up Ext.P5

representation of the petitioner and dispose of the same after

affording her, 5th respondent and 4th respondent - Manager an

opportunity of being heard -- either physically or through

videoconferencing -- thus culminating in an appropriate order

on the aspects as to whether Ext.P2 seniority list deserves to be

approved and whether the 5th respondent can be appointed as

the Principal of the School, taking note of Rule 37(2) Chapter WP(C).No.16026 OF 2019(C)

XIVA of the KER.

11. The afore exercise shall be completed as

expeditiously as is possible by the Director but not later than

two months from the date of receipt of a copy of this judgment

and it is needless to say that until such time, the status quo with

respect to the post of Principal as available today will continue;

however, inuring no benefit on account of this alone to the

incumbent, except as per the orders to be issued by the

Director.

This writ petition is thus disposed of.

SD/-

                                           DEVAN RAMACHANDRAN

rp                                                  JUDGE
 WP(C).No.16026 OF 2019(C)






                                   APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1                 TRUE COPY OF THE ORDER NO.ACD.C3/HSE/2001 DATED

30.11.2002 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE SENIORITY LIST OF HIGHER SECONDARY SCHOOL TEACHERS IN THE H.S.S KANDAMANGALAM AS ON 01.07.2018 PREPARED BY THE 4TH RESPONDENT AND APPROVED BY THE 3RD RESPONDENT.

EXHIBIT P3 TRUE COPY OF ANOTHER SENIORITY LIST OF HIGHER SECONDARY SCHOOL TEACHERS IN THE H.S.S.

KANDAMANGALAM PREPARED BY THE 4TH RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 29.03.2019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE SAID REPRESENTATION DATED 07.06.2019 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS 2 AND 3.

EXHIBIT P6 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS HUSBAND UNDER RIGHT TO INFORMATION ACT ON 17.05.2019 BEFORE THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 3RD RESPONDENT.

RESPONDENT'S/S EXHIBITS:

EXHIBIT-R5(A) TRUE COPY OF THE APPROVED APPOINTMENT ORDER OF SMT.RAJESWARI DEVI S DATED 28/06/1999

EXHIBIT-R5(B) TRUE COPY OF THE COVERING LETTER OF THE MANAGER DATED 29/05/2019

EXHIBIT-R5(C) TRUE COPY OF THE APPOINTMENT ORDER OF THE 5TH RESPONDENT AS PRINCIPAL DATED 29/05/2019

EXHIBIT R4(A) A COPY OF THE APPOINTMENT ORDER ISSUED IN FAVOUR OF SMT. RAJESWARIDEVI.

EXHIBIT R4(B) A COPY OF THE PROCEEDINGS OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION DATED 03/11/2002.

EXHIBIT R4(C) A COPY OF THE RELEVANT PAGE OF SERVICE BOOK OF SMT. S. RAJESWARIDEVI SHOWING THE APPROVAL OF APPOINTMENT OF BOTH HSA AND HSST.

WP(C).No.16026 OF 2019(C)

EXHIBIT R4(D) A COPY OF THE ORDER OF APPOINTMENT.

EXHIBIT R4(E) A COPY OF THE COVERING LETTER DATED 29/05/2019 ISSUED BY THE MANAGER.

EXHIBIT R4(F) A COPY OF THE SENIORITY LIST OF THE HIGHER SECONDARY SCHOOL.

EXHIBIT R3(A) A TRUE COPY OF ORDER NO.10463/C7/2018/RDD/CNGR DATED 06/05/2019.

EXHIBIT R3(B) A TRUE COPY OF ORDER NO.3209/C7/2019/RDD/CNGR DATED 12/04/2019.

EXHIBIT R3(C) A TRUE COPY OF THE ORDER NO.3209/C7/2019/RDD/CNGR DATED 06/05/2019.

EXHIBIT R3(D) A TRUE COPY OF LETTER NO.ACD A2/17862/DHSE/10 DATED 02/12/2010.