The S S V Higher Secondary School vs The State Of Kerala
2021 Latest Caselaw 23590 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
      THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
               TH
TUESDAY, THE 30   DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943

                   WP(C) NO. 10075 OF 2021


PETITIONER/S:

   CHITRA A.P
   AGED 36 YEARS
   HIGH SCHOOL ASSISTANT (ENGLISH),
   SSVGHS, CHIRAYINKEEZHU,
   THIRUVANANTHAPURAM.

   BY ADVS.
   BRIJESH MOHAN
   SMT.RESMI G. NAIR


RESPONDENT/S:

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

 2 THE DIRECTOR OF GENERAL EDUCATION,
   JAGATHY, THIRUVANANTHAPURAM-695 014.

 3 THE REGIONAL DEPUTY DIRECTOR OF
   HIGHER SECONDARY EDUCATION,
   4TH FLOOR, CORPORATION BUILDINGS,
   PALAYAM, THIRUVANANTHAPURAM-695 033

 4 THE MANAGER,
   SSVGHS, CHIRAYINKEEZHU,
   THIRUVANANTHAPURAM-695 304.

 5 SMT. MAHIMA S,
   HSST (JR.),
   SSVGHS, CHIRAYINKEEZHU,
   THIRUVANANTHAPURAM-695 304
   BY ADVS.
 WP(C) NOs. 10075 &
11561 OF 2021


                             2


   V.A.MUHAMMED
   V.RAJASEKHARAN NAIR
   SRI. BIJOY CHANDRAN. SR. GOVERNMENT PLEADER



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 30.11.2021, ALONG WITH WP(C).11561/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NOs. 10075 &
11561 OF 2021


                                3


          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
      THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
               TH
TUESDAY, THE 30   DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943

                     WP(C) NO. 11561 OF 2021


PETITIONER/S:

1 THE S S V HIGHER SECONDARY SCHOOL,
  CHIRAYINKEEZHU,
  THIRUVANANTHAPURAM-695 304,
  REPRESENTED BY ITS MANAGER.

2 S.MAHIMA,
  AGED 35 YEARS
  WIFE OF PRAMOD,
  HIGHER SECONDARY SCHOOL TEACHER (JUNIOR) ENGLISH,
  SS V HIGHER SECONDARY SCHOOL,
  CHIRAYINKEEZHU,
  THIRUVANANTHAPURAM-695 304.

   BY ADVS.
   V.A.MUHAMMED
   V.RAJASEKHARAN NAIR


RESPONDENT/S:

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

2 THE DIRECTOR OF GENERAL EDUCATION,
  (HIGHER SECONDARY SECTION),
  HOUSING BOARD BUILDINGS, SANTHI NAGAR,
  THIRUVANANTHAPURAM-695 001.
 WP(C) NOs. 10075 &
11561 OF 2021


                             4




3 THE REGIONAL DEPUTY DIRECTOR OF
  HIGHER SECONDARY EDUCATION,
  CORPORATION BUILDINGS,
  IVTH FLOOR, PALAYAM,
  THIRUVANANTHAPURAM-695 033.

4 SMT.CHITRA.A.P.,
  HIGH SCHOOL ASSISTANT (ENGLISH),
  SS V HIGHER SECONDARY SCHOOL,
  CHIRAYINKEEZHU,
  THIRUVANANTHAPURAM-695 304.


  BY ADVS.
  BRIJESH MOHAN
  RESMI G. NAIR
  NANDU S KUMAR
  SRI. BIJOY CHANDRAN. SR. GOVERNMENT PLEADER



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 30.11.2021, ALONG WITH WP(C).10075/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NOs. 10075 &
11561 OF 2021


                                      5


                            JUDGMENT

By order dated 18.2.2021, the Government has ordered to reconsider

the selection of Smt.S. Mahima, as HSST (Jr. English) at SSVGHSS,

Chirayinkeezhu and the approval of her appointment from 29.06.2017 and

has ordered the Manager to place the service particulars of Smt. S.Mahima

and Smt.Chitra A.P., the rival claimant, before the Selection Committee,

constituted under Chapter XXXII Rule 5 of the KER.

2. Smt. Chitra A.P. has filed W.P.(C) No.10075/2021 seeking to

implement the above order and to conduct selection to the post of HSST

(Jr.English) forthwith. The Manager of the SSVGHSS, Chirayinkeezhu, as well

as Smt. S. Mahima, impugn the very same order in W.P.(C) No.11561/2021

and they also seek for a declaration that the appointment of Smt. Mahima as

HSST (Jr.English) from 29.6.2017 is legal and valid.

3. Since common issues are raised in these writ petitions, both

these writ petitions are considered and disposed of by a common judgment.

The parties shall be referred to by their names and the exhibits shall be

referred to as described in W.P.(C) No.11561/2021, unless mentioned

otherwise.

WP(C) NOs. 10075 & 11561 OF 2021

4. The records would reveal that Smt.Chitra A.P. was appointed as

HSA (English) in the SSVGHS, Chirayinkeezhu with effect from 1.6.2011. The

appointment is seen to have been approved with effect from 1.6.2011 going

by order dated 26.7.2017 issued by the DEO. Smt. S. Mahima commenced

her service as HSA (English) on 13.6.2012 against a leave vacancy in SCV

BHS, Chirayinkeezhu, another school under the same management. The

appointment of Mahima was approved from 13.6.2012 to 30.3.2013 on daily

wages and from 3.6.2013 to 19.8.2018 on regular basis. By Ext.P2 order

dated 24.2.2020, the appointment of Smt.S. Mahima as HSA (English) was

approved by the DEO, Attingal. The records reveal that Smt. Mahima got

continuous service as HSA (English) from 3.6.2013 and her probation was

declared on the forenoon of 3.6.2014.

5. Ext.P2 in W.P.(C) No. 10075/2021 is the extract of the common

seniority list as on 1.1.2019 prepared in Form No.11A of schools under the

same management. The common seniority list would show that Smt.

A.P.Chitra comes under Serial No. 39 and Smt. Mahima comes under Serial

No. 42. Thus, there is no dispute that Chitra is senior to Smt. Mahima.

6. While so, Smt. Mahima was promoted and appointed by transfer

as HSST (Jr.) English, from 29.6.2017 in a regular vacancy which arose due WP(C) NOs. 10075 & 11561 OF 2021

to the promotion of a certain Smt. R.Deepa, HSST (Jr.) English as HSST

(English) from 1.6.2017. Complaining that Smt. Chitra was ignored, she

lodged a complaint before the Manager and thereafter approached the RDD.

By order dated 23.10.2019, produced as Ext.P5 in W.P.(C) No.10075/2019,

the RDD ordered that Smt. Chitra being the senior hand was entitled to the

post of HSST (Jr.). Armed with the said order, Smt.Chitra approached the

Manager and submitted a representation. When no action was taken,

Smt.Chitra approached this Court and filed W.P.(C) No. 10157/2020 seeking

directions. During the pendency of the writ petition, Smt.Chitra realized that

Smt. Mahima had approached the Government and by order dated 7.3.2020,

which is produced as Ext.P9, sanction was accorded to approve the

appointment of Smt. Mahima as HSST (Jr.) English from 28.1.2019 and that

the RDD, HSE, by Ext.P10 order dated 1.6.2020 granted approval to the

appointment of the 2nd petitioner as HSST (Jr.) English from 30.1.2019

onwards. Smt. Chitra in the writ petition filed by her contended that the

order was passed without hearing her and considering the fact that Chitra

was also adversely affected by the order, this Court, by Ext.P11 judgment

dated 26.11.2020, set aside the order passed by the Government and

directed reconsideration of the entire issue, after affording an opportunity of WP(C) NOs. 10075 & 11561 OF 2021

hearing to both sides. In tune with the directions so issued, by the order

impugned in W.P.(C) No. 11561/2021, the Government has directed the

Manager to place the service particulars of Smt. Mahima as well as Smt.

Chitra before the Selection Committee and to reconsider the decision.

7. Sri. Brijesh Mohan, the learned counsel appearing for Smt.

Chitra submitted that Chitra has got approved service as HSA (English) from

1.6.2011 whereas, Smt. Mahima is having approved service, that too, against

a leave vacancy only from 2013. Placing reliance on the combined seniority

certificate, it is contended by the learned counsel that Smt. Chitra is senior to

Smt. Mahima. Relying on the judgment of this Court in V.C.Deepamol v.

State of Kerala and Ors. [2007 (4) KLT 173], it is contended by the

learned counsel that Smt. Mahima's appointment against a temporary

vacancy that occurred on account of a teacher proceeding on leave will only

entitle her to make a further claim under Rule 51A of the KER and nothing

more. She could not have been treated as a person in service. On the other

hand, Smt. Chitra was a regular teacher in the school with approved service

from 1.6.2011 onwards. According to the learned counsel, in that view of

the matter, there is no justification on the part of the 4th respondent in not

complying with the directions issued by the Government and in conduction WP(C) NOs. 10075 & 11561 OF 2021

selection to the post of HSST (Jr.). The learned counsel would also contend

that the solitary reason given by the 4th respondent for denying the

appointment is that Smt. Chitra had no approved appointment as on

1.6.2017 as her appointment was approved by the DEO only on 26.7.2017.

The learned counsel would rely on the judgment of a Division Bench of this

Court in Joshy v. Krishna P. Rajan [ 2006 (4) KLT SN. 63 (Case No. 85) ]

and in Geetha S. v. Geo Thomas and Ors [2009 (4) KLT 514] and it is

argued that even if the appointment was not yet approved, the Manager

could not have denied promotion or reappointment. The learned counsel

would also refer to the order of the Government and it is submitted that the

Manager, with a view to deny appointment to Smt. Chitra had failed to

produce the service records before the selection committee which met on

28.1.2019 and it was in the said circumstances that the committee had

decided to grant approval to Smt. Mahima.

8. Sri. M. Sajjad, the learned counsel appearing for Smt. Mahima

submitted that there are no other qualified approved teachers in the lower

grade of HST/ UPST for the post of HSST (Jr.) English in the school having

approved appointment as on the date of occurrence of vacancy and on the

date of appointment of the 2nd petitioner as HSST (Jr.) from 29.6.2017. It is WP(C) NOs. 10075 & 11561 OF 2021

submitted that Smt. Mahima is duly qualified as she has got an approved

appointment as HSST (English) from 3.6.2013 onwards against a regular

vacancy, she is the only person who is entitled to a by-transfer appointment

as HSST (Jr.). It is further contended that Smt. Chitra had not applied for a

by-transfer appointment as HSST (Jr.) English even after her approval as

HST on 28.7.2017. On the other hand, a petition was preferred for a

by-transfer appointment as HSST (Jr.) English only on 3.11.2019 much after

the convening of the Selection Committee meeting on 28.11.2019.

9. I have considered the submissions advanced. I find from the

records that Smt. Chitra has got approved service as HSA (English) from

1.6.2011 whereas the 5th respondent is having approved service against a

leave vacancy from 2013. A perusal of Ext.P2 common seniority list would

reveal that Smt. Chitra is senior to Smt. Mahima. In V.C.Deepamol (supra), a

learned Single Judge of this Court had held that the appointment against a

temporary vacancy which occurred on account of a teacher proceeding on

leave may entitle the teacher to make a further claim under Rule 51A of

Chapter XIVA of the KER if a vacancy of the same category arises in that

school at a later point of time. Barring that preference, the quality of

appointment is to warm up that seat and to vacate when the period of WP(C) NOs. 10075 & 11561 OF 2021

appointment ends or on return of the teacher who has proceeded on leave

and nothing more. It was further held that the said teacher could not have

been treated as a person 'in service'.

10. I am unable to accept the contention of Mahima that it is not

necessary to evaluate the comparative merit of qualified teachers when there

is a qualified hand for appointment by transfer and hence the constitution of

a selection committee was not required. Of course, the Government in

Ext.P5 order produced in W.P.(C) No.11561/2021 has ordered that

comparative assessment of teachers would not be necessary and the said

appointment can be made without the recommendation of the selection

committee based on seniority. However, in such cases, it is the duty of the

Manager to conform to the statutory rules and regulations. In the instant

case, in view of the dispute raised as regards the seniority, the Manager

cannot rely on Ext.P5 and sideline Smt.Chitra. Furthermore, in Ext.P9 order,

it is stated that in the selection committee which met on 28.1.2019, the

service details of Smt. Chitra was not presented making it impossible for the

committee to make a comparative assessment of the teachers. I find that it

was taking note of all these aspects that Ext.P9 order was passed by the WP(C) NOs. 10075 & 11561 OF 2021

Government directing the Manager to reconsider the entire issue. In that

view of the matter, I find no reason to interfere with Exhibit P9.

WP (C) No. 10075 of 2021 will stand allowed and there will be a

direction to the 4th respondent to comply with the directions issued by the

1st respondent in Exhibit P9 and take a decision expeditiously, at any rate,

within a period of three months from the date of receipt of a copy of this

judgment. The 3rd respondent shall ensure that the 4th respondent

complies with the directions as ordered in Ext.P9.

W.P.(C) No.11561/2021 will stand dismissed.

Sd/-

RAJA VIJAYARAGHAVAN V,

JUDGE

PS/10/11/2021 WP(C) NOs. 10075 & 11561 OF 2021

APPENDIX OF WP(C) 11561/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER OF 2ND PETITIONER DATED 13.06.2012 AND APPROVAL RECORDED THEREON.

Exhibit P2 TRUE COPY OF THE ORDER NO.

B6/583/DEO/2020/D.DIS DATED 24.02.2020 OF THE DEO, ATTINGAL.

Exhibit P3 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 29.06.2017.

Exhibit P4 TRUE COPY OF THE LETTER NO.TRO-D6/4222/2018/HSE DATED 12.10.2018 OF THE 3RD RESPONDENT.

Exhibit P5      TRUE      COPY      OF      THE     GO(RT)
                NO.247/2019/G.EDN   DATED   21.01.2019 OF
                THE GOVT.

Exhibit P6      TRUE   COPY    OF   THE   STATEMENT  OF

RELINQUISHMENT OF SMT.P.S.LEKSHMY DATED 26.08.2019 AND APPROVED BY THE DEO.

Exhibit P7 TRUE COPY OF THE ORDER NO.

TRO-02/1973/HSE/2019 DATED 24.11.2020 OF THE RDD HSE, THIRUVANANTHAPURAM.

Exhibit P8 TRUE COPY OF THE REVISION PETITION SUBMITTED BEFORE THE GOVERNMENT DATED 19.10.2019.

Exhibit P9      TRUE     COPY     OF     THE     GO(RT)
                NO.1184/2020/G.EDN DATED 07.03.2020 OF
                THE GOVERNMENT.
 WP(C) NOs. 10075 &
11561 OF 2021





Exhibit P10     TRUE    COPY    OF    THE   ORDER    NO.

TRO-06/2076/2019/HSE DATED 01.06.2020 OF THE 3RD RESPONDENT.

Exhibit P11 TRUE COPY OF THE JUDGMENT IN WPC NO.

10157/2020 DATED 22.06.2020.

Exhibit P12     TRUE    COPY   OF    THE   GO(RT)   NO.
                1716/2021/G.EDN DATED 18.02.2021 OF THE
                GOVT.

Exhibit P13     TRUE COPY OF THE APPOINTMENT ORDER OF
                THE 4TH RESPONDENT DATED 01.06.2011 AND
                APPROVAL RECORDED THEREON.

Exhibit P14     TRUE COPY OF THE SENIORITY LIST OF THE
                SCHOOL DATED 12.07.2019.

Exhibit P15     TRUE COPY OF THE ORDER        IN   RP   NO.
                1122/2019 DATED 13.01.2020.

Exhibit P16     TRUE COPY OF THE NEWS ITEM PUBLISHED IN
                THE DESABHIMANI DAILY DATED 01.06.2017.

Exhibit P17     TRUE COPY OF THE NOTICE PUBLISHED IN THE
                NOTICE   BOARD  OF   THE  SCHOOL   DATED
                01.06.2017.
 WP(C) NOs. 10075 &
11561 OF 2021





                APPENDIX OF WP(C) 10075/2021



PETITIONER EXHIBITS

EXHIBIT P1      TRUE COPY OF THE APPOINTMENT ORDER
                DATED 01.06.2011 AND ORDER OF APPROVAL
                ISSUED IN RESPECT OF THE PETITIONER.

EXHIBIT P2      TRUE COPY OF THE RELEVANT EXTRACT OF
                SENIORITY LIST OF THE TEACHERS AND NON
                TEACHING STAFF OF THE SCHOOLS UNDER
                THE 4TH RESPONDENT.

EXHIBIT P3      TRUE COPY OF THE REPRESENTATION DATED
                26.07.2018 SUBMITTED BY THE PETITIONER
                BEFORE THE 3RD RESPONDENT.

EXHIBIT P4      TRUE COPY OF THE REPRESENTATION DATED
                29.07.2019 SUBMITTED BY THE PETITIONER
                BEFORE THE 3RD RESPONDENT.

EXHIBIT P5      TRUE   COPY   OF   ORDER    NO.   T.R.0
                06/6231/2019/HSE    DATED    23.10.2019
                ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P6      TRUE COPY OF REPRESENTATION DATED
                03.11.2019 SUBMITTED BY THE PETITIONER
                BEFORE THE 4TH RESPONDENT.

EXHIBIT P7      TRUE COPY OF G.O(RT)NO. 1184/20/G.EDN
                DATED 7.3.2020 ISSUED BY THE 1ST
                RESPONDENT.

EXHIBIT P8      TRUE COPY OF JUDGMENT DATED 22.06.2020
                IN   W.P.C  NO.  10157/2020 OF THIS
                HON'BLE COURT.
 WP(C) NOs. 10075 &
11561 OF 2021





EXHIBIT P9      TRUE     COPY    OF     G.O(RT)    NO.
                1716/2021/G.EDN DATED 18.2.2021 ISSUED
                BY THE 1ST RESPONDENT.