Kerala High Court
Preetha Pandurangu vs State Of Kerala on 13 July, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 13TH DAY OF JULY 2023 / 22ND ASHADHA, 1945
WP(C) NO. 32801 OF 2015
PETITIONER:
PREETHA PANDURANGU,
THIRUMALA DEVASWOM HIGH SCHOOL,
MATTANCHERRY, ERNAKULAM,KOCHI-682 002.
BY ADV SRI.KALEESWARAM RAJ
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF GENERAL EDUCATION,
KERALA GOVERENMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS
THIRUVANANTHAPURAM-695 001.
3 THE DEPUTY DIRECTOR OF EDUCATION
ERNAKULAM-682 001.
4 THE DISTRICT EDUCATIONAL OFFICER
ERNAKULAM-682 001.
5 THE MANAGER
T.D.CORPORATE EDUCATIONAL AGENCY,
COCHIN THIRUMALA DEVASWOM, GOSRIPURAM,
KOCHI-682 002.
6 THE HEADMISTRESS
T.D.CORPORATE EDUCATIONAL AGENCY,
COCHIN THIRUMALA DEVASWOM,
GOSRIPURAM, KOCHI-682 002.
7 A.N.RAJASREE,H.S.A, (MATHEMATICS)
THIRUMALA DEVASWOM HIGH SCHOOL,
KOCHI-682 002.
WP(C)Nos.32801 of 2015 & con. Case 2
R7 BY ADV.G.KRISHNAKUMAR
OTHER PRESENT:
R1 TO R4 BY GP - SUNILKUMAR KURIAKOSE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.07.2023, ALONG WITH WP(C).19246/2016, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C)Nos.32801 of 2015 & con. Case 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 13TH DAY OF JULY 2023 / 22ND ASHADHA, 1945
WP(C) NO. 19246 OF 2016
PETITIONER:
PREETHA PANDURANGU, HSA (MATHEMATICS),
THIRUMALA DEVASWOM HIGH SCHOOL,MATTANCHERRY,
ERNAKULAM-682 002.
BY ADVS.
SRI.KALEESWARAM RAJ
KUM.A.ARUNA
SRI.VARUN C.VIJAY
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION,
KERALA GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 DIRECTOR OF PUBLIC INSTRUCTIONS
THIRUVANANTHAPURAM-695 001.
3 DEPUTY DIRECTOR OF EDUCATION
ERNAKULAM-682 001.
4 DISTRICT EDUCATIONAL OFFICER
ERNAKULAM-682 001.
5 ASSISTANT EDUCATIONAL OFFICER
MATTANCHERRY-682 002.
6 THE MANAGER
T.D.CORPORATE EDUCATIONAL AGENCY,
COCHIN THIRUMALA DEVASWOM, GOSRIPURAM,
KOCHI-682 002.
7 A.N.RAJASREE,HSA (MATHEMATICS),
WP(C)Nos.32801 of 2015 & con. Case 4
THIRUMALA DEVASWOM HIGH SCHOOL, MATTANCHERRY,
KOCHI-682 002.
R1 TO R5 BY GP SRI.SYNILKUMAR KURIAKOSE
R6 BY ADVS.SRI.S.B.PREMACHANDRA PRABHU
R7 BY ADV.G.KRISHNAKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13.07.2023, ALONG WITH WP(C).32801/2015, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WP(C)Nos.32801 of 2015 & con. Case 5
VIJU ABRAHAM, J.
.................................................................
W.P.(C) Nos.32801 of 2015 & 19246 of 2016
.................................................................
Dated this the 13th day of July, 2023
JUDGMENT
Petitioner in both the writ petitions is same. W.P.(C)
No.32801 of 2015 was filed challenging Exts.P5, P10 and P12 orders
whereas W.P.(C) No.19246 of 2016 was filed challenging Exts.P13 and
P14 orders. Since the issue involved in both the writ petitions are
interconnected, I am disposing of both the writ petitions by a common
judgment.
2. I will advert to the facts stated in W.P.(C) No.19246 of 2016 in this
judgment. The petitioner was presently working as H.S.A (Mathematics)
at Thirumala Devaswom High School, Mattancherry in Ernakulam
district. She was initially appointed in the abovesaid post as per Ext.P1
order for the period from 04.12.2000 to 29.03.2001 and the said
appointment was duly approved by the 4 th respondent.
Subsequently, the petitioner was appointed as UPSA in the very same
school in a regular vacancy on 04.06.2004 as per Ext.P2 and the said
appointment was also duly approved by the 4th respondent. While
WP(C)Nos.32801 of 2015 & con. Case 6
continuing so, she was promoted to the post of H.S.A (Mathematics)
w.e.f. 15.07.2009 as per Ext.P3 order in a leave vacancy for the period
from 15.07.2009 to 30.06.2014 and the appointment was also duly
approved. While so petitioner was appointed in the regular vacancy of
H.S.A(Mathematics) w.e.f. 15.07.2013 in a death vacancy of one
Smt.V.G.Raji, H.S.A(Mathematics) as per Ext.P4 order. Approval of said
appointment was declined by 4th respondent as per Ext.P5. In Ext.P5
the stand taken by the 4th respondent is that during the staff fixation
2013-2014 one post of HSA core subjects was reduced for want of
sufficient student strength. Accordingly the teacher working against the
post of HSA (Physical Science) was rendered surplus and on verification
of the approved seniority list of the educational agency one senior Rule
43 claimant Smt.A.N.Rajasree, who is the 7th respondent in this writ
petition, was found to be fully qualified to be promoted to the post of HSA
(Mathematics). In Ext.P5 the 4th respondent entered a finding that instant
appointment of the petitioner was made overlooking the legitimate claim
of a senior Rule 43 claimant and rejected Ext.P4 appointment granted to
the petitioner. Aggrieved by the same petitioner preferred Ext.P6 revision
petition before the Government. The specific case of the petitioner is
that though the 7th respondent was appointed as LPSA on 01.06.2004
she was retrenched/thrown out due to division fall in the year 2010. This
Court in Praveena V.Kammath and others v. State of Kerala and
WP(C)Nos.32801 of 2015 & con. Case 7
others 2011(2) KHC 550, a copy of which is produced as Ext.P7,
declared that the 7th respondent is liable to be retrenched holding that
the post of LPSA and UPSA are different in nature and duties are also
different and therefore the same should be treated as a separate
category and therefore retrenchment can also be effected only in terms
of the separate seniority. Pursuant to the direction in Ext.P9 judgment of
this Court in W.P(C) No.3449 of 2015, Ext.P6 revision petition submitted
by the petitioner was considered by the Government and rejected as per
Ext.P10 order. As per Ext.P10 order the Government recorded the
submissions of both sides but rejected the request of the petitioner on
the ground that as on date there is no specific Government orders that
can be relied upon so as to protect the senior hand against the vacancy
that arose during 2013-2014 since G.O(P) No.213/2015/G.Edn dated
06.08.2015 is also under stay by an order of this Court. The petitioner as
well as the 7th respondent contended that they are senior to the other
and they are entitled for retention as HSA (Mathematics). Eventhough
rival contentions were raised none of them were considered in Ext.P10,
but the same was rejected essentially for the reason that GO(P)
No.213/2015/G.Edn dated 06.08.2015 is under a stay by this Court. A
perusal of Ext.P10 would reveal that the 1st Government has not decided
the question as to who is to be appointed as HSA (Mathematics) w.e.f.
15.07.2013. On the basis of Ext.P10 consequential order was passed as
WP(C)Nos.32801 of 2015 & con. Case 8
Ext.P12 whereby shifting the appointment of the petitioner with effect
from 15.07.2013 in the death vacancy to the post of HSA (Mathematics)
w.e.f. 02.06.2014 and appointing the 7th respondent as
H.S.A(Mathematics) w.e.f 15.07.2013. It is those orders, ie. Exts.P10
and P12 which are under challenge in W.P(C) No.32801 of 2015.
Thereafter the 1st respondent issued Ext.P13 order whereby a direction
was issued to the 2nd respondent to pass orders approving the
appointment of the 7th respondent for the academic year 2010-2011 by
applying the ratio of 1:40. Consequent to issuance of Ext.P13, the 2nd
respondent issued Ext.P14 letter communicating the same to the 5 th
respondent for necessary action. Petitioner submits that the reason for
rejection of her claim was based on a stay granted by this Court.
Petitioner would submit that subsequently this Court has considered the
question and upheld the validity of Ext.P11 Government order. Therefore
the only impediment in considering the claim as stated in Ext.P10 no
longer exist.
3. A counter affidavit has been filed by the 4th respondent wherein it
is stated that Ext.P10 itself is a self-explanatory while making the
position clear that the 7th respondent is the legitimate claimant to be
promoted as HSA (Mathematics) as she is the seniormost Rule 43
claimant on rolls and is on the basis of the same the 7 th respondent was
appointed as HSA (Mathematics) w.e.f.15.07.2013. But there is no
WP(C)Nos.32801 of 2015 & con. Case 9
finding to that effect in Ext.P10 and it is settled law that the reasoning in
the order impugned cannot be supplemented by way of a counter
affidavit.
4. The stand of the 7th respondent is that she was initially appointed
as LPSA under the 6th respondent Manager on leave vacancy from
09.07.2003 to 29.09.2003 and from 11.11.2003 to 23.03.2004 and later
she was appointed in a regular retirement vacancy as LPSA w.e.f.
02.06.2004 and on the basis of same the contention of the 7 th
respondent is that she is senior to the petitioner and therefore have a
claim under Rule 43A KER to be promoted as HSA in preference to the
petitioner. Though the petitioner was thrown out from LPSA post as per
staff fixation order 2010-2011 due to division fall the Government has by
Ext.P3 letter ordered that the benefit of 1:40 teacher-student ratio should
be extended to the academic year 2010-2011 also in the schools
affected by the special problem of division fall for the limited purpose of
accommodating teachers rendered surplus and accordingly as per
Ext.R7(a) order the Assistant Educational Officer accorded sanction to
retain the 7th respondent as LPSA in the 6th respondent's school for the
academic year 2010-2011. Both the petitioner and 7th respondent raised
a contention that though they were paid salary in the lower post now
their payment of salary has been stopped.
WP(C)Nos.32801 of 2015 & con. Case 10
5. The learned Government Pleader referring to Ext.P15 submits that
the said situation occurred due to the intervening circumstances later
that there is no vacancy available in the lower scale as per the staff
fixation order for the year 2022-2023 and therefore the petitioner as well
as the 7th respondent is not being paid salary.
6. After hearing the learned counsel appearing for the petitioner and
the respondents as well as the the learned Government Pleader, I am of
the opinion that the issue could be resolved only on a specific finding as
to whether who is entitled for the post of HSA (Mathematics) which arose
on 15.07.2009 and that the Government while issuing Ext.P10 order did
not consider any of the contentions raised by the petitioner as well as the
7th respondent. Therefore, the matter requires reconsideration by the 1 st
respondent Government. Ext.P10 order is set aside with a consequential
direction to the 1st respondent to reconsider the matter after affording an
opportunity of being heard to the petitioner and respondents 6 and 7 in
W.P.(C) No.19246 of 2016 and any other affected persons. Petitioner as
well as the 7th respondent will be free to submit their notes of argument
and produce documents in support of their claim. The 1st respondent
shall pass a considered and reasoned order after averting to the various
contentions raised by both sides and a decision in this regard shall be
taken within a period of two months from the date of receipt of a copy of
this judgment. Since the petitioner as well as the 7 th respondent
WP(C)Nos.32801 of 2015 & con. Case 11
complained that they have not been paid salary, the said aspect shall
also be taken into consideration and appropriate orders shall be passed
by the Government in this regard while taking a decision as directed
above.
Both the writ petitions are accordingly disposed of.
Sd/-
VIJU ABRAHAM
JUDGE
cks
WP(C)Nos.32801 of 2015 & con. Case 12
APPENDIX OF WP(C) 32801/2015
PETITIONER EXHIBITS
EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER
DATED 4/12/2000 ISSUED BY THE 4TH
RESPONDENT
EXT.P2 TRUE COPY OF THE APPOINTMENT ORDER
DATED 4/6/2014 ISSUED BY THE 4TH
RESPONDENT
EXT.P3 TRUE COPY OF THE APPOINTMENT ORDER
DATED 15/7/2009
EXT.P4 TRUE COPY OF THE APPOINTMENT ORDER
DATED 19/7/2013
EXT.P5 TRUE COPY OF THE ORDER DATED 28/11/2014
ISSUED BY THE 4TH RESPONDENT
EXT.P6 TRUE COPY OF THE RP SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT
EXT.P7 TRUE COPY OF THE JUDGMENT DATED
29/3/2011 IN WPC NO.28516/2010.
EXT.P8 TRUE COPY OF THE CIRCULAR DATED
1/8/2012.
EXT.P9 TRUE COPY OF THE JUDGMENT DATED
3/2/2015 IN WPC NO.3449/2015.
EXT.P10 TRUE COPY OF THE G.O.(RT)
NO.4133/2015/G.EDN DATED 17/9/2015.
EXT.P11 TRUE COPY OF THE G.O.(P) NO.213/2015
DATED 6/8/2015.
EXT.P12 TRUE COPY OF THE ORDER DATED
14/10/2015.
WP(C)Nos.32801 of 2015 & con. Case 13
RESPONDENTS' EXHIBITS
EXT.R7(a) A TRUE COPY OF THE ORDER DATED
13.05.2016 OF THE ASSISTANT EDUCATIONAL
OFFICER, MATTANCHERRY
EXT.R7(b) A TRUE COPY OF THE ORDER OF THE 4TH
RESPONDENT DEO DATED 12.08.2016
EXT.R7(c) A TRUE COPY OF THE SALARY BILL DATED
06.06.2016 FOR THE PRIOD FROM
15.07.2010 TO 01.02.2014
EXT.R7(d) A TRUE COPY OF THE ORDER
NO.E.C3/24341/2017/DPI/K.Dis., DATED
26.08.2017 OF ADDITIONAL DIRECTOR
(GENERAL) OF PUBLIC INSTRUCTIONS
WP(C)Nos.32801 of 2015 & con. Case 14
APPENDIX OF WP(C) 19246/2016
PETITIONER EXHIBITS
EXT.P1 COPY OF THE APPOINTMENT ORDER
DTD.4.12.2000 ISSUED BY THE 4TH
RESPONDENT.
EXT.P2 COPY OF THE APPOINTMENT ORDER
DTD.4.6.2004 ISSUED BY THE 4TH
RESPONDENT.
EXT.P3 COPY OF THE APPOINTMENT ORDER
DTD.15.7.2009.
EXT.P4 COPY OF THE APPOINTMENT ORDER
DTD.19.7.2013.
EXT.P5 COPY OF THE ORDER DTD.28.11.2014 ISSUED
BY THE 4TH RESPONDENT.
EXT.P6 COPY OF THE REVISION PETITION SUBMITTED
BY THE PETITIONER BEFORE THE 1ST
RESPONDENT.
EXT.P7 COPY OF THE JUDGMENT DTD.29.3.2011 IN
WPC NO.28516/2010.
EXT.P8 COPY OF THE CIRCULAR DTD.1.8.2012.
EXT.P9 COPY OF THE JUDGMENT DTD.3.2.2015 IN
WPC NO.3449/2015.
EXT.P10 COPY OF GO(RT)O.4133/2015/G.EDN.
DTD.17.9.2015.
EXT.P12 COPY OF ORDER DTD.14.10.2015.
EXT.P13 TRUE COPY OF THE LETTER DATED
08.03.2016
EXT.P14 TRUE COPY OF THE LETTER DATED
31.03.2016
Exhibit P15 TRUE COPY OF THE ORDER NO.
DEOEKM/1226/2023-86 DATED 04.05.2023
ISSUED BY THE OFFICE OF THE DISTRICT
WP(C)Nos.32801 of 2015 & con. Case 15
EDUCATION OFFICER, ERNAKULAM.
Exhibit 16 TRUE COPY OF THE REVISION PETITION
DATED 06.06.2023 SUBMITTED BEFORE THE
GOVERNMENT
