Sheeja.K.Sathyan vs State Of Kerala
2024 Latest Caselaw 12813 Ker

Kerala High Court

Sheeja.K.Sathyan vs State Of Kerala on 22 May, 2024

Author: Sathish Ninan

Bench: Sathish Ninan

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR. JUSTICE SATHISH NINAN
     WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
                       WP(C) NO. 18279 OF 2017


PETITIONER:

          SHEEJA.K.SATHYAN
          AGED 43 YEARS, W/O. JAYAKUMAR,TEACHER-IN-
          CHARGE,LUTHERAN MISSION LPS.,THUMARICHAL,
          THIRUVANANTHAPURAM.

          BY ADVS.
          SRI.S.SREEKUMAR (SR.)
          SMT.MINI.V.A.
          SRI.C.P.PEETHAMBARAN



RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY ITS SECRETARY,GENERAL EDUCATION (H)
          DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM -
          695 001.

    2     THE DIRECTOR OF PUBLIC INSTRUCTIONS
          THIRUVANANTHAPURAM - 695 001.

    3     THE DISTRICT EDUCATIONAL OFFICER
          NEYYATTINKARA,THIRUVANANTHAPURAM - 695 121.

    4     THE ASSISTANT EDUCATIONAL OFFICER
          KATTAKADA,THIRUVANANTHAPURAM - 695 572.

    5     THE CORPORATE MANAGER OF LUTHERAN SCHOOL
          INDIA EVANGELICAL LUTHERN CHURCH,TRIVANDRUM SYNOD,
          CLHSS COMPOUND,PEROORKADA,
          THIRUVANANTHAPURAM - 695 005.

    6     MALINI JAYANTHI. D.
          LPSA., CLUPS PEROORKADA,THIRUVANANTHAPURAM - 695 005.
 WP(C) NO. 18279 OF 2017           -2-


          BY ADVS.
          BY SRI.BIJOY CHANDRAN, SR. GOVERNMENT PLEADER
          SRI.D.KISHORE
          SRI.R.MURALEEKRISHNAN (MALAKKARA)




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                      SATHISH NINAN, J.
            = = = = = = = = = = = = = = = = = =
                 W.P.(C) No.18279 of 2017
            = = = = = = = = = = = = = = = = = =
            Dated this the 22nd day of May, 2024

                        J U D G M E N T

Orders declining the approval of appointment of the

petitioner as Headmistress and reverting her to the

previous post, are under challenge in this writ

petition.

2. On 05.10.1994, the petitioner was appointed as

LPSA by the 5th respondent Corporate Manager in a leave

vacancy. She got regular appointment on 09.06.1999. The

appointment was approved by the educational authorities.

3. On 10.07.2006, as per Ext.P1, the petitioner was

appointed as teacher-in-charge of a school under the

management. The appointment was approved. Subsequently

there occurred a vacancy of Headmistress at the

Mandikkalam School under the management. The petitioner

was promoted and posted as the Headmistress with effect

from 20.06.2014. However, the 4 th respondent AEO

declined to approve the promotion. The approval was

declined for non-compliance with the Government Circular

dated 13.06.2014 requiring obtaining of prior sanction

for appointment. The Manager filed an appeal before the

DEO. As per Ext.P7, the appeal was returned. The Manager

filed Ext.P9 appeal before the second respondent.

4. Pending the appeal before the second respondent,

the then Manager in office issued Ext.P10 order

reverting the petitioner as teacher-in-charge.

Subsequently as per Ext.P9 order, the appeal preferred

by the Manager was dismissed. Challenging the order the

petitioner filed Revision before the Government. The

Revision was dismissed as per Ext.P18 order. It is

accordingly that the petitioner is before this Court.

5. I have heard learned Senior Counsel

Sri.S.Sreekumar on behalf of the petitioner and

Sri.Bijoy Chandran, the learned Senior Government

Pleader.

6. Ext.P18 order indicates that the Revision was

dismissed for the reason that the sixth respondent was

senior to the petitioner and that the seniority list is

liable to be revised. Here it is to be noticed that, the

appointment of the petitioner as Headmistress was

refused to be approved by the authorities for a totally

different reason viz., non-obtaining of prior sanction

as was required under Ext.P8 Government Circular dated

13.06.2014. The issue regarding violation of the

Circular does not find a place in Ext.P18 order in

revision as a reason for rejection. This could be for

the reason that Ext.P8 Circular was subsequently

withdrawn by the Government as per Ext.P29 order dated

13.07.2022. Anyhow, the Revision preferred by the

petitioner was dismissed under Ext.P18 by the Government

solely on the reason of "seniority".

7. Here it is to be noticed that, the petitioner

was promoted and appointed as Headmistress as per Ext.P3

dated 20.06.2014. Ext.P4 is the seniority list as on

01.01.2011 which was approved by the authorities on

25.03.2013. There was no challenge against Ext.P4

seniority list and it had become final in terms of Rule

38 of Chapter XIVA of the KER. As per Ext.P4 seniority

list, the petitioner was serial No.57 and the rival

claimant-sixth respondent was serial No.72. There is no

case that at the time of appointment of the petitioner

as Headmistress on 20.06.2014, there was any other

seniority list in force at variance from Ext.P4. The

consequence of the finality of Ext.P8 seniority list in

terms of Rule 38 Chapter XIVA KER was not considered in

Ext.P18 order. This Court in Jayalekshmi v. State of Kerala 2024

(3) KLT 46 held that non-raising of objection to the

seniority list amounts to waiver of rights. It is

without considering the above that Ext.P18 held that the

petitioner was not the senior most. In the

circumstances, Ext.P18 order cannot be sustained. In the

light of the above, fresh orders are liable to be passed

on the Revision Petition.

8. It is brought to the notice of this Court that,

pending the writ petition, the successor in office of

the Manager has cancelled Ext.P10 order of reversion of

the petitioner. At any rate, the issue regarding

approval of promotion of the petitioner is to be

considered in the Revision preferred by the petitioner

before the Government.

Resultantly, Ext.P18 order dated 23.05.2017 is

quashed. The first respondent shall pass fresh orders on

the revision petition with due notice to the fifth

respondent Corporate Manager and the sixth respondent.

It is clarified that the issue is left open for

adjudication in the revision. Let the proceedings be

taken to a logical conclusion within a period of four

months from the date of receipt of a copy of this

judgment.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge APPENDIX OF WP(C) 18279/2017

PETITIONER EXHIBITS

Exhibit P26 TRUE COPY OF THE CIRCULAR NO.

11/H2/2016/G.EDN. DATED 16.11.2016 OF THE 1ST RESPONDENT

Exhibit P27 TRUE COPY OF THE ORDER DATED 1/6/2022 ISSUED BY THE 5TH RESPONDENT

Exhibit P28 TRUE COPY OF THE ORDER DATED 13/7/2022 OF THE JOINT DIRECTOR (ACADEMIC) ATTACHED TO THE OFFICE OF THE 2ND RESPONDENT

Exhibit P29 TRUE COPY OF THE PROCEEDINGS DATED 22.5.2023 OF THE 5TH RESPONDENT

Exhibit P30 TRUE COPY OF THE ORDER NO. 169/LSCM/2023 DATED 31/10/2023 ISSUED BY THE 5TH RESPONDENT

EXHIBIT P6 TRUE COPY OF THE APPEAL FILED BY THE MANAGER BEFORE THE 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 10.11.204.

EXHIBIT P8              TRUE COPY OF THE CIRCULAR DATED 13.06.2014 OF
                        THE   1ST    RESPONDENT   ALONG    WITH   ITS

CLARIFICATORY ORDER DATED 11.05.2015.

EXHIBIT P9 TRUE COPY OF THE APPEAL DATED 23.12.2014 FILED BY THE MANAGER BEFORE THE 2ND RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 13.06.2017 OF THE MANAGER OF THE SCHOOL.

EXHIBIT P11 TRUE COPY OF THE ORDER DATED 22.07.2016 IN W.P(C) NO. 24495/2016 OF THIS HON'BLE COURT.

EXHIBIT P12 TRUE COPY OF THE ORDER DATED 19.05.2015 OF THE 2ND RESPONDENT DPI.

EXHIBIT P13 TRUE COPY OF THE PROCEEDINGS DATED 29.08.2016 OF THE 5TH RESPONDENT MANAGER.

APPENDIX-WP(C) 18279/2017

EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 5TH RESPONDENT DATED 02.06.2014.

EXHIBIT P15 TRUE COPY OF THE JUDGMENT DATED 09.11.2016 IN W.P.(C)NO. 24495/2016 OF THIS HON'BLE COURT.

EXHIBIT P16 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER BEFORE THE UNDER SECRETARY TO GOVERNMENT.

EXHIBIT P17 TRUE COPY OF THE EXTENTION APPLICATION FILED BY THE 1ST RESPONDENT BEFORE THIS HON'BLE COURT IN W.P.(C)NO. 24495/2016.

EXHIBIT P18 TRUE COPY OF THE ORDER DATED 23.05.2017 OF THE 1ST RESPONDENT.

EXHIBIT P19 TRUE COPY OF THE APPLICATION DATED 11-12-17 OF S.JAYAKUMAR AND ITS REPLY DATED 27-12-2017 GIVEN FROM THE OFFICE OF AEO NEDUMANGAD.

EXHIBIT P20 TRUE COPY OF THE REPLY DATED 16-01-2018 ISSUED FROM THE OFFICE OF THE 4TH RESPONDENT UNDER RIGHT TO INFORMATION ACT.

EXHIBIT P21 TRUE COPY OF THE ORDER DATED 27-06-2018 IN APPEAL NO.AP 2067(1)/2017/SIC COMMISSION, THIRUVANANTHAPURAM.

EXHIBIT P14 TRUE COPY OF THE INFORMATION SUPPLIED BY THE HEADMISTRESS, CONCORDIA LUTHERN U.P.SCHOOL, PEROORKADA DATED 07.04.3017 WITH COPY OF THE ATTENDANCE BOOK OF TEACHERS.

EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 10.07.2006 ISSUED BY THE THEN MANAGER OF THE SCHOOL.

ECHIBIT P2 TRUE COPY OF THE ORDER DATED 04.11.2010 OF THE 1ST RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE APPROVED SENIORITY LIST OF THE SCHOOLS UNDER THE 5TH RESPONDENT. APPENDIX-WP(C) 18279/2017

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 15.07.2014 OF THE 4TH RESPONDENT.

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