Kerala High Court
Priyanka.R.Prasad vs The State Of Kerala on 12 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
WP(C) NO. 14725 OF 2012
PETITIONER:
PRIYANKA.R.PRASAD
AGED 24 YEARS
WIFE OF S.SREEKUMAR, LOWER PRIMARY SCHOOL ASSISTANT,
LUTHERAN HIGH SCHOOL, SOUTH ARYAD-688006, ALAPPUZHA
DISTRICT.
BY ADVS.
SRI.V.A.MUHAMMED
SRI.K.E.HAMZA
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS
JAGATHY, THIRUVANANTHAPURAM-695014.
3 THE DEPUTY DIRECTOR OF EDUCATION
ALAPPUZHA DISTRICT-688001.
4 THE DISTRICT EDUCATIONAL OFFICER
ALAPPUZHA DISTRICT-688011.
5 THE MANAGER
LUTHERAN SCHOOL, PEROORKADA,
THIRUVANANTHAPURAM-695005.
6 SRI. M.SAJIRAJ
MUZHAKKOLKUNNU, VADAKKARIKU VEEDU,
P.O.KANJIRAMKULAM-695524, THIRUVANANTHAPURAM.
7 SRI. B.SHANAVAS
LOWER PRIMARY SCHOOL ASSISTANT,
ARIVARIKKUZHY LUTHERAN LOWER PRIMARY SCHOOL,
KILIMANOOR, THIRUVANANTHAPURAM-695501.
WP(C) NO. 14725 OF 2012
2
BY ADVS.
SRI.RENJITH T.R., SENIOR GOVERNMENT PLEADER
SRI.B.BIPIN
SRI.P.K.MANOJKUMAR - R6
SRI.R.REJI
SRI.M.V.THAMBAN
SMT.THARA THAMBAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 12.01.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 14725 OF 2012
3
P.V.KUNHIKRISHNAN, J.
------------------------------
W.P.(C).No. 14725 of 2012
----------------------------------------------
Dated this the 12th day of January, 2023
JUDGMENT
The above Writ Petition is filed with the following
prayers:
"(i) call for the records relating to Exhibits P-
5 and P-6 and quash the originals of the same by
the issue of a writ of certiorari or other appropriate
writ or order.
(ii) issue a writ of mandamus or other
appropriate writ order or direction commanding the
Respondents 1 to 5 to allow the Petitioner to
continue in Lutheran High School, South Aryad
again the regular promotion vacancy.
(iii) declare that the Petitioner is senior to
the 6th and 7th Respondents.
(iv) pass such other order or direction which
this Hon'ble Court may deem fit and proper to grant
in the circumstances of the case."[SIC]
2. It is the case of the petitioner that, she has
got approved appointment from 1.6.2011 in Lutheran
WP(C) NO. 14725 OF 2012
High School, South Aryad as per Exhibit P-1 order
whereas the 6th respondent has not got any approval
and hence the 6th respondent is not senior to the
petitioner. It is the further case of the petitioner that
the 6th respondent is not entitled for approval as he
was ousted from Lutheran High School, South Aryad
during 2010-2011. It is stated that the 6th respondent
was ousted from Lutheran High School, South Aryad
during 2010-11 due to abolition of additional post
sanctioned during 2009-2010 in which he was
appointed from 1.6.2009. In Exhibit P-5 order the
Government ordered to include Sri. Sajiraj, the 6th
respondent in Educational Package provided, there
should be a vacancy to accommodate him from the
date of retrenchment after division fall. It is submitted
by the petitioner that there was no vacancy during
2010-2011 in Lutheran High School, South Aryad. It is
the further case of the petitioner that, the Director of
Public Instruction has not conducted any verification
WP(C) NO. 14725 OF 2012
about the veracity of the list of Educational Package in
respect of Lutheran Schools before issuing Exhibit P-6
order. It is further stated that Exhibit P-6 order is only
a rubber stamp order emulating Exhibit P-5 order. It is
also submitted that, it is not a speaking order. The
submission of the petitioner is that, she is entitled for
approval from 1.6.2009 itself as approved in Exhibit P-
1 order as the petitioner was appointed against a
regular promotion vacancy and not against an
additional division vacancy during the ban period. It is
also submitted that, in Exhibit P-5 order it has been
categorically stated that the 7th respondent Sri.
Shanavas is the junior-most and hence even according
to Exhibit P-5 order petitioner is entitled to continue in
service in preference to the 7th respondent. This has
not been looked into by the Director of Public
Instruction, is the submission. Aggrieved by Exts.P5
and P6 order, this Writ Petition is filed.
3. Heard counsel appearing for the petitioner
WP(C) NO. 14725 OF 2012
and the counsel appearing for the 6th respondent. I
also heard the learned Government Pleader.
4. Counsel for the petitioner reiterated the
contentions raised in this writ petition. On the other
hand, the counsel appearing for the 6 th respondent
submitted that, after Exts.P5 and P6, the 6 th
respondent was appointed in the School and
subsequently the petitioner was also accommodated in
2012. This Court perused Ext.P5 Government Order.
It will be better to extract the relevant portion of
Ext.P5 order.
"3. The matter was examined in detail. As per
the report of District Educational Officer, Alappuzha
Sri.Sajiraj.S.M was senior to Smt. Priyanka R.Prasad.
Hence as and when a division fall happened the junior
has to be retrenched. Here a senior hand is retrenched
and the junior is restored. This is against the provisions
in KER. Moreover it is stated that the petitioner is
working in L.M.L.P.S, Muhamma under Assistant
Educational Officer, Cherthala. At the time of hearing,
the counsel for Smt.Priyanka.R.Prasad also opined that
the senior is Sri SajiRaj.S.M and he has to be restored.
Though he is restored, there is sufficient vacancy to
WP(C) NO. 14725 OF 2012
provide Smt. Priyanka.R.Prasad and the inclusion of her
name in the package is not erroneous. The reason for
non-inclusion of the name of the petitioner as explained
by the District Educational Officer is that the
appointment of petitioner is not yet approved and he is
not in service at the time of preparing the list. The list
of package is verified. The name of
Smt.Priyanka.A.Prasad is included in the list. And also
seen that a junior to Sri.Sajiraj.S.M viz., Sri.Shanavas is
also included in the list.
4. On examining the case, it is found that the
senior is to be restored in service irrespective of his
appointment viz. in additional vacancy or in promotion
vacancy etc. Here the petitioner is senior and he has
not to be retrenched. During the hearing the Manager
also informed that he has not issued any
communication to Sri.Sajiraj.S.M for the retrenchment.
He assured that the junior has to be retrenched and the
retrenchment of Shri.Sajiraj.S.M is not proper.
5. Government have examined the matter in
detail and are pleased to order the following:-
(a) Sri. Sajiraj.S.M will be included in the
Educational Package, as he is eligible to continue in
service as per his seniority, provided there should
be a vacancy to accommodate him from the date of
retrenchment, after the division fall.
(b) Smt. Priyanka.R.Prasad can be included in the
package if there is a vacancy to accommodate her
after restoring Sri.Sajiraj.S.M.
WP(C) NO. 14725 OF 2012
(c) The Director of Public Instruction will strictly
verify the veracity of list of education Package in
respect of Lutheran Schools before regularizing
their appointments from 1/06/11.
(d) As per the provisional seniority list,
Sri.Shanavas is the junior most. Here it is seen
that he is included in the package and senior is
excluded. Hence, the Director of Public Instruction
is directed to review the case of Sri.Shanavas for
his eligibility to be included in the list.
6. The directions contained in the judgment read
as 4th paper above is complied with accordingly."
5. I see no reason to interfere with the above
order. All the contention raised by the petitioner is
considered by the Government in detail in Ext.P5
order. Moreover, the Government also recorded that at
the time of hearing, the counsel for the petitioner also
opined that the 6th respondent is the senior. It is true
that, simply because the counsel concede, the rights of
the petitioner can not be denied. But from a reading
of the entire order passed by the Government, it is
clear that there is nothing to interfere with the same.
WP(C) NO. 14725 OF 2012
Now the petitioner and the 6th respondent are
accommodated in the School. At this distance of time,
according to me, there is nothing to interfere with
Exts.P5 and P6
Accordingly, this writ petition is dismissed.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
WP(C) NO. 14725 OF 2012
APPENDIX OF WP(C) 14725/2012
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER
OF THE PETITIONER DATED 01.06.2009.
EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER
OF SRI. SAJIRAJ S.M. DATED
01.06.2009.
EXHIBIT P3 TRUE COPY OF THE ORDER NO.B3-
887/10/D.DIS. DATED 13.08.2010 OF
THE DISTRICT EDUCATIONAL OFFICER.
EXHIBIT P4 TRUE COPY OF THE ORDER NO.D.DIS. B3-
5158/2010 OF THE DISTRICT
EDUCATIONAL OFFICER DATED
13.08.2010.
EXHIBIT P5 TRUE COPY OF THE G.O.(RT.)NO.
1808/2012/G.EDN. OF THE GOVERNMENT
DATED 17.04.2012.
EXHIBIT P6 TRUE COPY OF THE ORDER NO.H(2) /
5725/2012/DPI OF THE 2ND RESPONDENT
DATED 13.06.2012.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
