Kerala High Court
A.K.Jayasree vs The State Of Kerala on 11 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
WP(C).No.11803 OF 2018(A)
PETITIONER:
A.K.JAYASREE, W/O.K.SREEKUMAR, SREESAILAM, VALLIKODU
P.O., PATHANAMTHITTA-689648 (HIGH SCHOOL ASSISTANT
(HINDI),ST.GEORGE'S MOUNT HIGH SCHOOL, KAIPATTOOR,
PATHANAMTHITTA)
BY ADV. SRI.S.SUBHASH CHAND
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE DISTRICT EDUCATIONAL OFFICER
OFFICE OF THE DISTRICT EDUCATIONAL
OFFICER,PATHANAMTHITTA-689645.
3 THE MANAGER ST.GEORGES MOUNT HIGH SCHOOL
KAIPATTOOR, PATHANAMTHITTA-689648.
4 KAVITHA V.KURUP, AGED 46 YEARS
HIGH SCHOOL ASSISTANT (MALAYALAM), ST.GEORGE'S MOUNT
HIGH SCHOOL, KAIPATTOOR, PATHANAMTHITTA, RESIDING AT
PALANIKKUNNATHIL, KAIPATTOOR P.O., PATHANAMTHITTA.
(ADDL R4 IS IMPLEADED AS PER ORDER DATED 11.07.2018
IN I.A.NO.12167/18 IN WPC NO.11803/2018)
R3 BY ADV. SHRI.MANMOHAN C.B.
R4 BY ADV. SRI.MANU RAMACHANDRAN
R4 BY ADV. SRI.M.KIRANLAL
R4 BY ADV. SRI.R.RAJESH (VARKALA)
R4 BY ADV. SRI.T.S.SARATH
SRI. P.M.MANOJ - GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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2
JUDGMENT
The petitioner says that she has been
working as a High School Assistant in Hindi
(initially appointed as a Lower Grade Hindi
Teacher) in the St.George's Mount High School,
Pathanamthitta, managed by the 3rd respondent-
Manager and that she has been constrained to
approach this Court impugning Exts.P7 and P10,
to the extent to which she has been denied
promotion to the said post with effect from
01.06.1998.
2. The petitioner says that while she was
working as a High School Teacher, which
appointment has been approved with effect from
07.10.1996, there occurred a vacancy on account
of the leave taken by certain Sri.Purushothaman
Pillai on 01.06.1998, which was followed by a
regular retirement vacancy on 01.07.1998 when
he retired.
WPC 11803/18
3. The petitioner says that instead of
appointing her on 01.06.1998, the Manager
offered her appointment only with effect from
01.07.1998, even though she is entitled to be
appointed from the former date, as per Rule 43
Chapter XIV A of the Kerala Education Rules
(KER for short). She, therefore, prays that
Exts.P7 and P10 be set aside and the
Authorities be directed to reckon her service
from 01.06.1998 in the leave vacancy of
Sri.Purushothaman Pillai.
4. In response to the afore submissions
made on behalf of the petitioner made by her
learned counsel - Sri.S.Subhash Chand, the
learned Government Pleader - Sri.P.M.Manoj,
submitted that the facts as stated by the
petitioner are not accurate, since
Sri.Purushothaman Pillai was to retire on
attaining the age of superannuation on
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30.06.1998. He submitted that Sri.Purushothaman
Pillai was entitled to leave, preparatory to
retirement, with effect from 01.06.1998 and
that he thereafter retired only on 30.06.1998,
thus making it clear that the actual date of
occurrence of vacancy due to his superannuation
was only with effect from 01.07.1998. He
submitted that, therefore, the Educational
Authorities are without error in having
reckoned the petitioner's appointment to be
effective only from 01.07.1998 and that the
Manager has also so done correctly. He,
therefore, prayed that this Writ Petition be
dismissed, particularly because, the petitioner
has not served as a High School Teacher with
effect from 01.06.1998, during the period when
Sri.Purushothaman Pillai was on leave.
5. Sri.Manu Ramachandran, learned counsel
appearing for the 4th respondent-Smt.Kavitha V.
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Kurup, who impleaded herself into these
proceedings subsequently, submitted that his
client is senior to the petitioner and
therefore, that the claim in this Writ
Petition, that the petitioner should be
construed to have been appointed with effect
from 01.06.1998 is completely untenable. He
submitted that, going by the various judgments
of this Court in Viswanadhan v. Director of
Public Instruction [1993(2) KLT 381], Bhaskaran
v. Viswanathan [2000(2) KLT 64] and Boban Lal
V and Others v. Bharat Sanchar Nigam Ltd and
Others [2012(2) KHC 591], the claim made by the
petitioner are untenable and cannot be granted.
He, therefore, prayed that this Writ Petition
be dismissed.
6. In reply, Sri.Subhash Chand submitted
that the facts involved in the afore cited
judgments are clearly distinguishable from that
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in this case and that it has no bearing to the
issues projected herein. As regards the
contentions of the learned Government Pleader
is concerned, he submitted that it may be true
that Sri.Purushothaman Pillai was on leave from
01.06.1998 and that he superannuated only in
01.07.1998; but that even during the time when
he was on leave, the petitioner - being a Rule
43 claimant - was entitled to be appointed to
such vacancy with effect from 01.06.1998
itself. He, therefore, prayed that this Writ
Petition be allowed.
7. When I consider the afore submissions,
it is indubitable that Exts.P7 and P10 orders
have been issued by the Government without
hearing the 4th respondent. All that the
Government considered was the petitioner's
claim for being appointed with effect from
01.06.1998 and not with effect from 01.07.1998.
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the contention of the 4th respondent had not
seized their attention, but in spite of it, the
Educational Authorities found that the
petitioner is not entitled to the relief as
sought for. While arriving at such a
conclusion, the view adopted by the Educational
Authorities is that since Sri.Purushothaman
Pillai was on leave with effect from
01.06.1998, preparatory to his superannuation
on 01.07.1998, the petitioner could not have
staked claim to be appointed to such vacancy.
They also say that since the Manager has not
appointed the petitioner with effect from
01.06.1998 and since she had not worked in such
capacity from that date, she is not entitled to
any relief.
8. However, the question really is not
whether the petitioner was appointed with
effect from 01.06.1998 or whether she was
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allowed to work from that date, but whether she
was entitled to be appointed from the date on
which the leave of Sri.Purushothaman Pillai
began. This particular issue has not been
considered by the Educational Authorities in
the impugned orders and as I have already said
above.
9. In any event of the matter, no
decision could have been taken without hearing
the 4th respondent also particularly when she
claims to be senior to the petitioner.
10. At this time, Sri.Subhash Chand
submitted that if this Court is so inclined,
his client is willing to give up her claim for
salary with effect from 01.06.1998 to
01.07.1998, provided the other benefits are
reckoned from the former date. I am afraid that
I cannot accede to this request at this time
either, since I am of the view that this matter
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requires to be reconsidered by the competent
Educational Authorities after hearing the 4th
respondent also.
In the afore circumstances, I order this
writ petition and set aside Ext.P10, not
because I have found against it affirmatively,
but so as to pave way for a fresh consideration
of the claim of the petitioner after hearing
the 4th respondent also.
Resultantly, the competent Secretary of
the 1st respondent will reconsider the matter,
after affording an opportunity of being heard
to the petitioner, the 3rd respondent-Manager as
also the 4th respondent - either physically or
through video-conferencing - thus culminating
in an appropriate order thereon as
expeditiously as is possible, but not later
than two months from the date of receipt of a
copy of this judgment.
WPC 11803/18
Needless to say, since I have not
considered the merits of the dialectical
contentions of the parties at this stage, it
will be up to the competent Secretary of the
Government to consider all of them, including
the ratio in the afore cited judgments relied
upon by the 4th respondent, carefully, while
completing the afore exercise.
Sd/-
DEVAN RAMACHANDRAN
RR JUDGE
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPROVED
APPOINTMENT ORDER DATED 7-10-1996
ISSUED BY RESPONDENT NO.3 AND
APPROVED BY RESPONDENT NO.2.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 1-7-
1998.
EXHIBIT P3 TRUE COPY OF THE REVISION PETITION
DATED 10-6-2013 SUBMITTED BY THE
PETITIONER BEFORE RESPONDENT NO.1.
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION
BEARING NO.B6/10306/16 DATED 23-9-
2016 ISSUED BY RESPONDENT NO.2 TO
RESPONDENT NO.3 SEEKING A REPORT ON
THE ISSUE.
EXHIBIT P5 TRUE COPY OF THE REPORT DATED 7-10-
2016 SUBMITTED BY RESPONDENT NO.3
BEFORE RESPONDENT NO.2.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 15-
12-2016 PASSED BY THIS HON'BLE COURT
IN WP(C)NO.39863 OF 2016 (G).
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 13-3-
2017 PASSED BY RESPONDENT NO.1.
EXHIBIT P8 TRUE COPY OF THE GOVERNMENT ORDER
BEARING NO.63678/A3/2014/G.EDN.
DATED 26-10-2015 PASSED BY
RESPONDENT NO.1 IN THE CASE OF ONE
SMT.MARY A.P., HEAD MISTRESS,
ST.MARY'S HIGHER SECONDARY SCHOOL,
MULLANKOLLY.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 12-4-
2016 PASSED BY THE DISTRICT
EDUCATIONAL OFFICER, WAYANAD
IMPLEMENTING EXT.P8 ORDER.
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EXHIBIT P10 TRUE COPY OF THE ORDER DATED 28-2-
2018 PASSED BY RESPONDENT NO.1.
EXHIBIT P11 TRUE COPY OF RELEVANT PORTION OF THE
ATTENDANCE REGISTER PERTAINING TO
JUNE 1998 ISSUED BY THE HEADMASTER,
ST.GEORGE'S MOUNT HIGH SCHOOL,
KAIPATTOOR UNDER THE RIGHT TO
INFORMATION ACT TO SRI.K.SREEKUMAR
ALONG WITH THE COVERING LETTER DATED
20/03/2017.
RESPONDENTS' EXTS:
EXT R4(A) TRUE COPY OF APPOINTMENT LETTER
16.06.1998 ISSUED BY 3RD RESPONDENT
EXT R4(B) TRUE COPY OF THE SENIORITY LIST OF
ST.GEORGE'S MOUNT HIGH SCHOOL,
KAIPATTOOR AS ON 01.01.2012
EXT R4(C) TRUE COPY OF THE RECEIPT DATED
06.07.1998 WHEREBY MR.PURUSHOTHAMAN
NAIR RECEIVED THE SALARY FOR THE
MONTH OF JUNE 1998
