Kerala High Court
Malu S vs The State Of Kerala on 1 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 1ST DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945
WP(C) NO. 7436 OF 2022
PETITIONER:
MALU S, AGED 39 YEARS
W/O.SANTHOSH KUMAR.R, THAPASYA ,
KURUMANDAL, PARAVUR, KOLLAM-691 301,
HIGH SCHOOL ASSISTANT (ENGLISH) AT SNDP HIGHER
SECONDARY SCHOOL, UDAYAMPEROOR
BY ADVS.
R.SANJITH
C.S.SINDHU KRISHNAH
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE DEPUTY SECRETARY,
DEPARTMENT OF GENERAL EDUCATION,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS,
OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS,
THIRUVANANTHAPURAM-695 001
3 THE DEPUTY DIRECTOR ( EDUCATION),
OFFICE OF THE DEPUTY DIRECTOR (EDUCATION) ,
ERNAKULAM-682 035
4 THE DISTRICT EDUCATIONAL OFFICER,
OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
ALUVA-683 101
5 THE CORPORATE MANAGER,
SNDP YOGAM SCHOOLS,
OFFICE OF THE CORPORATE MANAGER,
THIRUVANANTHAPURAM-695 001
6 DHANYA.B.,
HIGH SCHOOL ASSISTANT, (ENGLISH) ,
SNDP HIGHER SECONDARY SCHOOL,
ALUVA-683 101.
-2-
WP(C)No.7436 of 2022
7 AMBILY RAGHAVAN,
HIGH SCHOOL ASSISTANT, (ENGLISH) ,
SNDP HIGHER SECONDARY SCHOOL,
ALUVA-683 101.
BY ADVS.
A.N.RAJAN BABU
V.A.MUHAMMED
M.SAJJAD
SMT.K.T.SAROJINI, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING
ON 31.01.2024, THE COURT ON 01.02.2024 DELIVERED THE FOLLOWING:
-3-
WP(C)No.7436 of 2022
MOHAMMED NIAS C.P., J.
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WP(C) No.7436 of 2022
---------------------------
Dated this the 1st day of February, 2024
JUDGMENT
The petitioner joined as HSA (English) on 4.6.20047 in the vacancy
of one Ajitha S Panicker, who availed Leave Without Allowance in one of
the schools of which the fifth respondent is the corporate manager. The
petitioner's appointment was approved as per Ext.P5 from 4.6.2007 to
31.8.2009. While continuing under Ext.P1, the fifth respondent issued an
order dated 28.05.2008 retrenching the petitioner with effect from
1.6.2008 for want of vacancy as per Ext.P2 order dated 28.5.2008. The
petitioner submits that she is entitled to the benefit of Rule 51A of Chapter
XIV-A KER and is eligible to be considered for appointment in future
vacancies arising in the schools under the management of the fifth
respondent.
2. The petitioner submits that an additional division vacancy of
HSA (English) had arisen in SNDP Higher Secondary School, Aluva, with
effect from 5.10.2007 and another additional division vacancy of Upper
Primary School Assistant had arisen in SNDP Higher Secondary School,
Venkurinji, Pathanamthitta with effect from 2.6.2008 and the third
additional vacancy of HSA(English) had arisen with effect from 1.7.2009 in
SNDP Higher secondary School, Udayamperoor. The petitioner claims that
going by Ext.P1 and by virtue of her superior preferential right, the
petitioner ought to have been appointed as HSA (English) or UPSA in one
of the above vacancies. The petitioner, however, in violation of the KER's
relevant provisions, was illegally retrenched from service by Ext.P2. The
petitioner came to know about the existence of the vacancies only in the
year 2018 when the fifth respondent issued orders in favour of respondents
6 and 7, conferring seniority on them above the petitioner.
3. The petitioner submits that as of 5.10.2007 when the vacancy
arose in SNDP Higher Secondary School, Aluva, the petitioner was working
as a High School Assistant (English) in the leave vacancy and as per G.O.
(MS)No.275/99/G. Edn dated 9.11.1999, Ext.P3, the petitioner's service
ought to have been regularised in the said vacancy. The petitioner also
submits that going by the judgment of this Court in Geetha S v. Geo
Thomas K & others [2009 (4) KLT 514), a leave substitute working in a
leave vacancy, whether approved or not had to be shifted to the next
arising regular vacancy and the appointment of a fresh hand overlooking
the said right of the leave substitute was held to be bad. The petitioner
submits that the appointments of respondents 6 and 7 in violation of the
above on 5.10.2007 and 2.06.2008 were clearly wrong.
4. The petitioner was later re-appointed as HSA (English) from
1.6.2009 in one of the schools in an additional division vacancy that arose
during the academic year 2009-2010, as seen from Ex.P4. The
appointment of the petitioner was approved under the Teachers Package
with effect from 1.6.2011. The petitioner submits that the sixth respondent,
along with other teachers, had filed WP(C)No.15219/2013 seeking approval
of their appointment from the dates of their appointment and by the
common judgment dated 18.2.2015, this Court directed the first
respondent to consider the grievances. The petitioner points out that she
was neither made a party to the said writ petition nor the sixth respondent,
and others disclose the preferential claim of the petitioner in the writ
petition.
5. The Government, pursuant to the said judgment, issued Ext.P5
order dated 9.7.2018, overlooking the claims of the petitioner without
notice to her. The petitioner's appointment is approved only with effect
from 1.6.2011 on the ground that the corporate manager did not submit
the requisite bond stipulated in G.O.No.10/10/ G.Edn. dated 12.01.2010
and not approving the period from 1.6.2009 to 31.05.2011. This, the
petitioner again submits, violates the orders of this Court that held that the
teachers should not be put to prejudice when the appointment is made in
an additional division vacancy on the ground that the manager had not
submitted the requisite bond. The petitioner also submits that similarly
situated were conferred with benefits in tune with G.O.(Rt)
No.410/2017/G.Edn. dated 16.2.2017, Ext.P12. The petitioner has
preferred Ext..P13 revision before the first respondent, pointing out all the
above, while making her claim, which was directed to be considered by
judgment dated 22.03.2021 in WP(C)No.33307/2018, Ext.P14. Pursuant to
that, the first respondent passed an order, Ext.P15, rejecting the revision
preferred by the petitioner mainly on the ground that it was belated.
6. The first respondent has filed a counter stating that the
petitioner was not a Rule 51A claimant as of 5.10.2007, on the day the
sixth respondent was appointed in that vacancy, and also submitted that
the petitioner's claim is belated.
7. The fifth respondent has also filed a counter pointing out that
the petitioner was earlier retrenched from service due to the abolishment
of the post in the category of HSA (English) with effect from 1.6.2008 and
that the petitioner was not a Rule 51A claimant as on 5.10.2007, the date
on which the sixth respondent was appointed. He also raised a contention
that the claim of the petitioner is belated.
8. The sixth respondent had filed a counter again, contending that
the petitioner was not a Rule 51A claimant as on the date of the arising of
the vacancy, namely 5.10.2007 and that her claim is belated. The seventh
respondent has not filed a counter.
9. Having considered the rival submissions with reference to
Ext.P3 order dated 9.1.1999 and the judgment of this Court in Geetha S
(supra), it has to be seen that while passing Ext.P5 order, the fact that the
petitioner was already working in the school was not considered and the
petitioner was not even heard. Likewise, in Ext.P15, the essential reason
for rejecting the revision was that the petitioner's claim was belated. While
considering Ext.P15, the first respondent has not considered the fact that
the petitioner was already in service under Ext.P1 from 4.6.2007, despite
the fact that her claim was not considered when a regular vacancy arose.
Even if the petitioner was not a 51A claimant as on the date of arising of
the first vacancy, namely, 5.10.2007, her claim ought to have been
considered after she was retrenched going by Rule 51A, Chapter XIV-A
KER, in the next arising vacancy. The claim of the petitioner has obviously
been overlooked, and teachers appointed and figuring in the seniority list
now furnished are shown as seniors to her. It is unknown whether the
manager disclosed that the petitioner was working in the school when the
vacancies arose. The impact of Ext.P3 Government Order and the
judgment of this Court in Geetha S (supra) has also not been considered
while passing Ext.P5 or Ext.P15 order. The petitioner's appointment has
been considered only with effect from 2011 on the ground that the
manager has not executed the bond, which is contrary to the judgment of
this Court, Exts.P7 to P11.
10. The respondent's contention that the petitioner's claim is
belated cannot be countenanced for more than one reason. Firstly, Ext.P5
has passed without notice to the petitioner. When a stark violation in the
provisions of the KER was brought out affecting the rights of the petitioner
and when the same was pointed out when it came to the knowledge of the
petitioner, rejection of such a claim as belated is certainly unjust and
giving undue advantage to the beneficiaries of those orders which are
allegedly illegal.
11. Under these circumstances, I quash Exts.P6 and P15 orders in
so far as they did not consider the claim of the petitioner for appointment.
The question of approval of the petitioner's appointment from 5.10.2007 to
31.5.2011 has to be specifically considered in the light of the above
observations. I direct the first respondent to re-consider Ext.P13 revision
preferred by the petitioner with notice to the petitioner and also to all
affected parties, including respondents 6 and 7 and consider the claim of
the petitioner in accordance with law, after affording an opportunity of
hearing to all the parties. If required, appropriate orders on the shifting of
the teachers and reworking of the seniority will also be passed. A decision
shall be taken as directed above within four months from the date of
receipt of a copy of this judgment. Consequential benefits, depending on
the decision as aforesaid, will also be paid within two months from the date
of the approval of the appointment.
The writ petition is allowed as above.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
dlk/30.1.2024
APPENDIX OF WP(C) 7436/2022
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE APPROVED APPOINTMENT ORDER
DATED 04.06.2007 ISSUED BY THE 5TH RESPONDENT
EXHIBIT P2 TRUE COPY OF THE ORDER NO.E305/08 DATED
28.05.2008 ISSUED BY THE 5TH RESPONDENT
EXHIBIT P3 TRUE COPY OF THE GOVERNMENT ORDER BEARING GO
(MS) NO.275/99/G.EDN DATED 09.11.1999
EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER NO.129/09
DATED 28.05.2009 ISSUED BY 5TH RESPONDENT
EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER BEARING GO
(RT) NO.2565/2018/G.EDN DATED 09.07.2018 PASSED
BY RESPONDENT NO 1 ALONG WITH A READABLE COPY
EXHIBIT P6 TRUE COPY OF THE ORDER NO.991/2018 DATED
21.08.2018 PASSED BY RESPONDENT NO.5 ALONG WITH
A READABLE COPY
EXHIBIT P7 TRUE COPY OF JUDGMENT IN WPC NO.6039 OF 2012
DATED 15.02.2015
EXHIBIT P8 TRUE COPY OF JUDGMENT IN WPC NO 15998 OF 2015
DATED 28.07.2015
EXHIBIT P9 TRUE COPY OF JUDGMENT IN WPC NO.3383 OF 2013
DATED 17.11.2016
EXHIBIT P10 TRUE COPY OF JUDGMENT IN WA NO.2290 OF 2015
DATED 25.07.2017
EXHIBIT P11 TRUE COPY OF JUDGMENT IN WPC NO.4938 OF 204
DATED 16.01.2018
EXHIBIT P12 TRUE COPY OF THE GOVERNMENT ORDER BEARING GO
(RT) NO.410/2017/G.EDN DATED 16.2.2017 PASSED BY
RESPONDENT NO.1
EXHIBIT P13 TRUE COPY OF THE REVISION PETITION PREFERRED BY
THE PETITIONER BEFORE THE 1ST RESPONDENT
EXHIBIT P14 TRUE COPY OF JUDGMENT DATED 22.03.2021 IN WPC
NO.33307 OF 2018
EXHIBIT P15 TRUE COPY OF THE ORDER DATED 20.01.2022 ISSUED
BY THE 1ST RESPONDENT
EXHIBIT P16 TRUE COPY OF TRANSFER ORDER NO.991/2018 DATED
10.07.2018 ISSUED BY THE 5TH RESPONDENT
RESPONDENTS EXHIBITS
EXHIBIT R-6 TRUE COPY OF THE JUDGMENT IN SREEJITH AND ORS
(A) VS. MANAGER AMUP SCHOOL PUNNATHALA AND ORS
REPORTED IN 2022 (5) KLT 388
EXHIBIT R-6 TRUE COPY OF THE JUDGMENT IN SUMANGALA DEVI.K
(B) VS. BINU P.N AND ORS REPORTED IN 2022 (4) KHC
EXHIBIT R-6 TRUE COPY OF THE ANNEXURE I OF EXHIBIT P-6,
(C) REVISED LIST OF HST ( ENGLISH) AS PER SENIORITY
ORDER VIDE COURT ORDER IN WP(C) NO. 15219/2013
FILED BY M.M.SREEDEVI
