The Manager vs State Of Kerala
2024 Latest Caselaw 10798 Ker

Kerala High Court

The Manager vs State Of Kerala on 12 April, 2024

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
              THE HONOURABLE MR. JUSTICE EASWARAN S.
  FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
                      WP(C) NO. 23467 OF 2018
PETITIONERS:
    1     THE MANAGER
          KOTTATHALA SURENDRAN MEMORIAL VOCATIONAL HIGHER
          SECONDARY SCHOOL, EDAVATTOM, KARUVELIL P.O., KOLLAM
          DISTRICT, PIN - 691 505.
    2        S. RAJESH
             HIGH SCHOOL TEACHER (MALAYALAM), KSMVHSS,
             EDAVATTOM, KARUVELIL P.O., KOLLAM DISTRICT, PIN -
             691 505, RESIDING AT GIREESH BHAVAN, THOLICODU
             P.O., PUNALUR, KOLLAM - 691 333.
         BY ADVS.
         SMT.K.R.KRISHNAKUMARI
         SMT.SASHA KUMARI

RESPONDENTS:
    1     STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL
          EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM, PIN - 695 001.
    2        THE DIRECTOR OF PUBLIC INSTRUCTIONS
             THIRUVANANTHAPURAM, PIN - 695 014.
    3        THE DEPUTY DIRECTOR OF EDUCATION
             KOLLAM - 691 001.
    4        THE DISTRICT EDUCATIONAL OFFICER
             KOTTARAKKARA, KOLLAM DISTRICT, PIN - 691 506.
    5        SMT. INDIRAMMA
             PROTECTED H.S.T.(MALAYALAM), KSMVHSS, EDAVATTOM,
             KARUVELIL P.O., KOLLAM DISTRICT, PIN - 691 505.


         SRI.BIMAL.K.NATH, SR.G.P.

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) NO.23467 OF 2018

                               2


                         JUDGMENT

The present Writ Petition is filed by the petitioners

challenging the decision of the 2 nd respondent to deploy the

2nd petitioner from the 1st petitioner School, when there is a

division fall had occurred. The said order was affirmed in

appeal and revision petition was also dismissed.

2. The facts as narrated from the Writ Petition shows

that the 2nd petitioner was qualified to hold the post of HSA

(Malayalam) and was initially appointed on 31.03.2009. After

completion of series of litigation, the appointment of the 2nd

petitioner was approved. The 5th respondent, who was

working as H.S.A(Malayalam) in JJVHSS, Ambalthumbhagom

and as a BRC Trainer in Sasthamcotta was deployed to the 1 st

petitioner's School on 29.01.2010 as per Ext.P2. However,

during academic year 2017-18, when a staff fixation order

was issued to the 1st petitioner School, there was a division

fall. Consequently, Ext.P4 order was passed in which the 2 nd

petitioner was found to be in excess of the staff strength.

Accordingly, he was deployed under the protected category in WP(C) NO.23467 OF 2018

Malappuram and Kottayam District.

3. Aggrieved by Ext.P4, the 2nd petitioner came before

this Court in W.P.(C) No.23771/2017, which was disposed of

by this Court directing the Director of Public Instructions to

consider an appeal filed by the 2nd petitioner. Accordingly an

appeal was filed which did not result in favourable orders and

aggrieved by that, Ext.P6 revision was filed. While an appeal

was pending, the 2nd petitioner's annual increment and salary

was not released and accordingly, the 2 nd petitioner

approached this Court again and he was directed to file a

revision petition before the Government and accordingly

Ext.P6 was filed. It is also evident from Ext.P7 judgment in

W.P.(C) No.32454/2017 that, the petitioner was relegated to

file the revision before the Government. Thereafter, the 2 nd

petitioner filed W.A No. 2673/2017 aggrieved by the refusal

of this Court in Ext.P7 to grant interim protection till the

disposal of the revision petition before the Government. By

Ext.P8 interim order, the Division Bench granting interim

protection to the 2nd petitioner. Though I.A No. 89/2018 was

filed by the Government for vacating the interim order, by

Ext.P9 the same was refused. Thereafter by Ext.P10, a WP(C) NO.23467 OF 2018

hearing notice was also given to the 2nd petitioner. In the

meantime, it appears that he had approached this Court for

non-implementation of the interim order so passed under

Ext.P8. By Ext.11, a Division Bench of this Court took notice

of the submissions of parties and closed contempt petition as

the interim order was complied. Later by judgment dated

05.03.2018, the Division Bench disposed of the Writ Appeal

directing the 1st respondent to take a decision on the revision

petition. It is pursuant to the said direction, Ext.P15 has been

passed which is impugned in the Writ Petition.

4. I have heard Sri.K.R.Krishnakumari, learned

counsel appearing for the petitioners and Sri.Bimal K Nath,

the learned Senior Government Pleader appearing for the

respondents 1 to 4.

5. The learned counsel for the petitioner reference to

Rule 37 of Chapter XIV A KER, which provides for seniority of

a teacher in any unit to be decided with reference to the

length of continuous service in that grade in the unit provided

is duly qualified. The learned counsel further submitted that

while the 2nd petitioner was appointed as HSA (Malayalam)

and his appointment was approved with effect from WP(C) NO.23467 OF 2018

01.09.2009 and whereas the 5th respondent was appointed in

1st respondent School only on 29.01.2010. The seniority has

to be reckoned in terms of Rule 37 of Chapter XIV A KER from

the date of respective appointment.

6. On the other hand, learned Senior Government

Pleader contends with reference to the averments contained

in the counter affidavit and submits that there is nothing

illegal in the 1st respondent's decision under Ext.P15. The 5 th

respondent, who is having an approved service with effect

from 17.07.1989 and being a protected teacher from another

School seniority of two teachers cannot be determined as per

Rule 37 of Chapter XIV A KER . It is further contended that

with reference to the seniority of the 2 nd petitioner established

the 5th respondent cannot be determined in terms of Rule 37

of Chapter XIV A KER. Therefore, it is prayed that Ext.P15

order may be sustained.

7. On a consideration of rival submission at Bar, this

Court find that there is force in the contention of the

petitioner. When Rule 37 of Chapter XIV A KER provides the

method of reckoning of seniority, the 1st respondent cannot

take a decision contrary to the statutory rules. It may be true WP(C) NO.23467 OF 2018

that the 5th respondent may be a protected teacher who was

deployed from a parent school. But fact remains that the

seniority has to be reckoned in terms of Rule 37 of Chapter

XIV A KER. This principle is affirmed by the Full Bench of this

Court in Abraham v. State of Kerala [2009 (3) KLT 659]

Going by the indisputed facts on record, the 5th respondent

joined in the 1st petitioner School in the year 2010, whereas,

the 2nd petitioner was already working in the School from

2009 onwards. The 1st respondent cannot recognize the claim

of the 5th respondent as in better terms that of the 2 nd

petitioner contrary to the statutory rules. The learned counsel

for the petitioners also points out that during the pendency of

the writ petition the 5th respondent was re-deployed to the

parent school and he retired from service and whereas the

2nd petitioner is still continuing in service of the 1 st petitioner

school.

Considering the above facts and circumstances and also

especially evaluating the contentions with reference to Rule

37 of Chapter XIV A KER, this Court comes into the conclusion

that the findings recorded in Ext.P15 cannot be sustained.

Accordingly, Exts.P3, P4, P12 and P15 orders are quashed and WP(C) NO.23467 OF 2018

Writ Petition is allowed. The 2nd petitioner is entitle to be

retained in the 1st petitioner School with all consequential

benefits.

Sd/-EASWARAN.S, JUDGE lsn WP(C) NO.23467 OF 2018

APPENDIX OF WP(C) 23467/2018

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 29.05.2013 IN W.P.(C)NO. 30593/2009.

EXHIBIT P2 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT BEARING NO. B4/1666/2010 K.DIS.DATED 29.01.2010.

EXHIBIT P3 TRUE COPY OF THE STAFF FIXATION ORDER OF THE 1ST PETITIONER'S SCHOOL FOR THE ACADEMIC YEAR 2017-18 DATED 12.07.2017.

EXHIBIT P4 TRUE COPY OF ORDER B1/12328/2017 DATED 14.07.2017 ISSUED BY THE THIRD RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 18.07.2017 IN W.P. (C)NO. 23771/2017.

EXHIBIT P6               TRUE COPY OF THE REVISION PETITION
                         DATED    31.10.2017   SENT    BY   THE
                         PETITIONERS TO THE 1ST RESPONDENT.
EXHIBIT P7               TRUE COPY OF THE JUDGMENT OF THIS

HON'BLE COURT DATED 13.12.2017 IN W.P. (C)NO. 32454/2017.

EXHIBIT P8 TRUE COPY OF THE ORDER OF A DIVISION BENCH OF THIS HON'BLE COURT DATED 21.12.2017 IN I.A.NO. 1596/17 IN W.A.NO. 2673/17.

EXHIBIT P9 TRUE COPY OF THE ORDER DIVISION BENCH OF THIS HON'BLE COURT DATED 22.01.2018 IN I.A.NO. 89/18 IN W.A.NO.2673/17.

EXHIBIT P10 TRUE COPY OF THE HEARING NOTICE DATED 10.01.2018 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P11 TRUE COPY OF THE ORDER OF A DIVISION BENCH OF THIS HON'BLE COURT DATED WP(C) NO.23467 OF 2018

14.02.2018 IN CON.CASE (C)NO. 90/18 IN W.A.NO.2673/17.

EXHIBIT P12 TRUE COPY OF THE STAFF FIXATION ORDER OF THE 1ST PETITIONER'S SCHOOL FOR THE ACADEMIC YEAR 2018-19 DATED 02.07.2018.

EXHIBIT P13 TRUE COPY OF THE STAFF FIXATION ORDER OF THE 1ST PETITIONER'S SCHOOL FOR THE ACADEMIC YEAR 2013-14 DATED 09.05.2014.

EXHIBIT P14 TRUE COPY OF THE RELEVANT PAGES OF THE STAFF FIXATION ORDER OF THE 1ST PETITIONER'S SCHOOL FOR THE ACADEMIC YEAR 2014-15 DATED 15.07.2014.

RESPONDENTS EXHIBITS: NIL TRUE COPY

P.A TO JUDGE LSN