Sony P.Alex vs State Of Kerala
2021 Latest Caselaw 2719 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

              MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942

                            WP(C).No.28047 OF 2019(E)


PETITIONER:

                  SONY P.ALEX,
                  AGED 46 YEARS
                  HIGH SCHOOL TEACHER (MATHS), ST.AUGUSTINES HIGH SCHOOL,
                  ERNAKULAM, ERNAKULAM DISTRICT, PIN - 682 017, RESIDING AT
                  MANJALI HOUSE, HGC ROAD -I, THOTTAKKATTUKARA,
                  ALUVA, PIN - 683 108.

                  BY ADV. SRI.PETER JOSE CHRISTO

RESPONDENTS:

       1          STATE OF KERALA,
                  REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION
                  DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.

       2          DEPUTY DIRECTOR OF EDUCATION,
                  ERNAKULAM, CIVIL STATION, KAKKANAD, ERNAKULAM, PIN - 682 030.

       3          DISTRICT EDUCATIONAL OFFICER,
                  ERNAKULAM, PIN - 682 011.

       4          DISTRICT EDUCATIONAL OFFICER,
                  CHERTHALA, PIN- 688 524.

       5          DISTRICT EDUCATIONAL OFFICER,
                  ALUVA, PIN - 683 101.

       6          DISTRICT EDUCATIONAL OFFICER,
                  IRINJALAKUDA, PIN - 680 121.

       7          ARCHDIOCESAN CORPORATE EDUCATIONAL AGENCY,
                  ARCHDIOCESA OF ERNAKULAM ANGAMALY, REPRESENTED BY ITS
                  CORPORATE MANAGER, RENEWAL CENTRE, KALOOR, KOCHI, PIN - 682
                  017.

       8          SHIBY ABRAHAM,
                  HIGH SCHOOL TEACHER (MATHS), ST.MICHAELS HIGH SCHOOL, KAVIL,
                  CHERTHALA, PIN - 688 524.

       9          JENNY E.A.,
                  HIGH SCHOOL TEACHER (MATHS), CARDINAL HIGH SCHOOL,
                  THRIKKAKARA, ERNAKULAM, PIN - 682021.

       10         SHINY PAUL,
                  HIGH SCHOOL TEACHER (MATHS), P.S.HIGH SCHOOL, THIRUMUDIKUNNU,
                  IRINJALAKUDA, PIN - 680 121.
 WP(C).No.28047 OF 2019(E)

                                          2



                 BY   ADV.   SRI.MATHEW B. KURIAN
                 BY   ADV.   SRI.K.T.THOMAS
                 BY   ADV.   SRI.V.A.MUHAMMED
                 BY   ADV.   SRI.M.H.SHAJAHAN RAWTHER

OTHER PRESENT:

                 SRI. SUNIL KUMAR KURIAKOSE (GP)

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.28047 OF 2019(E)

                                       3




                              JUDGMENT

The petitioner effectively challenges her transfer to

St.Augustine's High School, Ernakulam, through Ext.P2

proceedings of the 7th respondent - Corporate Manager,

asserting that there are teachers junior to her under the

Management, who ought to have been subjected to such

transfer; and further that she is being put to irreparable

detriment because, on account of her transfer, the approval has

been held up for the reason that the vacancy in the transferred

school is not an establishment one.

2. The petitioner, at the time when this writ petition was

filed, also alleged that her salary from June, 2019 had not been

paid, but when this matter was called today, her learned counsel

- Sri.Peter Jose Christo, submitted that the petitioner has been

appointed to another regular vacancy, as is evident from Ext.P9

and that she is now getting salary from 19.11.2019.

3. The petitioner, resultantly, says that the period

between June 2019 and 19.11.2019 remains unapproved and

therefore, that the Manager ought to adjust her lien against one WP(C).No.28047 OF 2019(E)

of the posts available, which are now being occupied by Junior

Teachers. The petitioner thus prays that she be declared to be

entitled to be posted in one of the established vacancies of HST

(Maths) in any of the Schools under the Corporate Management,

by retrenching or deploying or transferring any of her junior

teachers, namely respondents 8 to 10.

4. In response, the learned counsel appearing for

respondents 8 to 10 - Sri.M.Sajjad, submitted that a counter

affidavit has been filed on record, wherein, it is stated

affirmatively that they are not the junior - most HSTs in Maths

under the Management and therefore, that no reliefs can be

sought against them.

5. The learned Government Pleader - Sri.Sunil Kumar

Kuriakose, submitted that the decision at the first instance in

these matters will have to be taken by the Manager since, as is

evident from Ext.P7, the District Educational Officer (DEO) had

already informed him that the action of having transferred the

petitioner to St.Augustine's School is untenable and therefore,

that she will have to be accommodated to an established vacancy

forthwith. The learned Government Pleader, therefore, prayed WP(C).No.28047 OF 2019(E)

that the Manager be directed to issue appropriate orders in

terms of the claim of the petitioner, conceding that the

petitioner's contentions have merit in law.

6. I have considered the afore submissions and have

examined the materials available on record.

7. It is indubitable that if the petitioner is not the junior

most HST in Maths under the management, then her transfer to

St.Augustine's High School, Ernakulam, a post which was not

established, is inequitable and unlawful. In fact, this is exactly

what has been found by the DEO in Ext.P7 order, wherein, the

Manager has been directed to accommodate the petitioner to an

established vacancy immediately. The Manager appears to have,

thereafter, done so, as is manifest from Ext.P9, but the petitioner

now says that when she was so, accommodated, her service

remains unapproved with effect from June, 2019, consequent to

Ext.P2 transfer order.

8. Obviously, therefore, if there are other junior HSTs

(Maths) under the management, the petitioner is entitled to the

reliefs sought for in this writ petition, but this is essentially a

question of fact, which will have to be first assessed by the WP(C).No.28047 OF 2019(E)

Manager himself before this Court can pass any affirmative

orders.

9. I am, therefore, of the firm opinion that the Manager

must act, taking into account the claims of the petitioner, as also

the contra claims of respondents 8 to 10 and to issue an

appropriate proceedings in terms of law, adverting to the

findings of the DEO in Ext.P7 order.

Resultantly, this writ petition is ordered, with a direction to

the 7th respondent - Corporate Manager to hear the petitioner, as

well as respondents 8 to 10, and to take a decision on the claims

made by the former in this writ petition, particularly deciding

whether respondents 8 to 10 are the junior most HSTs in Maths

under the management or if there are any other teacher, who is

junior to them also.

Needless to say, after the afore enquiry, the Manager will

issue necessary orders, adverting to Ext.P7 observations of the

DEO, Ernakulam, as expeditiously as is possible but not later

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

judgment.

It, of course, goes without saying that if the Manager finds WP(C).No.28047 OF 2019(E)

in favour of the petitioner through the afore exercise, all

consequential and corollary orders shall be issued by him and

necessary concurrences shall also be granted by the Educational

Authorities without any avoidable delay.

SD/-

                                         DEVAN RAMACHANDRAN

rp                                              JUDGE
 WP(C).No.28047 OF 2019(E)






                                   APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1                 TRUE COPY OF THE APPOINTMENT ORDER DATED
                           02/06/2008.

EXHIBIT P2                 TRUE COPY OF THE ORDER NO.ESTT./TRS-HSAS-01/2019

DATED 01/06/2019 OF THE 7TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 18/09/2019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 04/09/2019 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 04/09/2019 SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 04/09/2019 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE LETTER NO.B6/4504/2019 DATED 27/09/2019 OF THE 3RD RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE GOVERNMENT CIRCULAR NO.23323/J1/89/G.EDN. DATED 06/11/1989.

EXHIBIT P9 TRUE COPY OF THE ORDER NO.ESTT./TRS-HSA S-02/2019 DATED 19.11.2019 OF THE 7TH RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE JOINING REPORT DATED 19.11.2019.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R8(A) TRUE COPY OF THE SENIORITY LIST OF HSAs AS ON 01.01.2019 UNDER THE 7TH RESPONDENT.