Kerala High Court
R.Biji vs State Of Kerala on 8 July, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
1
WA No.1459 of 2023 2025:KER:49660
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE MURALEE KRISHNA S.
TUESDAY, THE 8TH DAY OF JULY 2025 / 17TH ASHADHA, 1947
WA NO. 1459 OF 2023
AGAINST THE JUDGMENT DATED 10.07.2023 IN WP(C) NO.19703 OF
2019 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
R.BIJI,AGED 50 YEARS
W/O.RADHAKRISHNAN M.S., KARTHIKEYAM, WEST GATE,
HARIPAD, MANNARASALA P.O., ALAPPUZHA, , (HSA, HIGH
SCHOOL, EDAPPON), NOW DEPLOYED ON PROTECTION AT SNDP
HS MAHADEVIKAD, ALAPPUZHA
BY ADVS.
SRI.D.JOTHIKUMAR
SHRI.T.N.JAYADEVAN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL
EDUCATION DEPARTMENT, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM-, PIN - 695001
2 DIRECTOR OF PUBLIC INSTRUCTIONS,
OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS,
JAGATHI, THIRUVANANTHAPURAM, PIN - 695014
3 THE DEPUTY DIRECTOR OF EDUCATION,
OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KODIVEEDU,
ALAPPUZHA, PIN - 688001
4 THE DISTRICT EDUCATION OFFICER,
OFFICE OF THE DISTRICT EDUCATION OFFICER, MAVELIKKARA,
2
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ALAPPUZHA, PIN - 690101
5 THE MANAGER, HIGH SCHOOL,
HIGH SCHOOL, EDAPPON P.O., AYARANIKUDI, MAVELIKARA
ALAPPUZHA DISTRICT, PIN - 690558
6 RAJI S.SINDHU,
AGED 49 YEARS
HSA, HIGH SCHOOL, EDAPPON P.O., AYARANIKUDI,
MAVELIKARA ,ALAPPUZHA DISTRICT, PIN - 690558
BY ADVS.
SRI.K.SHAJ
SRI.P.MOHANDAS (ERNAKULAM)
SRI.K.SUDHINKUMAR
SRI.SABU PULLAN
SRI.GOKUL D. SUDHAKARAN
SHRI.R.BHASKARA KRISHNAN
SHRI.BHARATH MOHAN
DR.K.P.SATHEESAN (SR.)
SRI.C.IJLAL
SRI.ARUN CHAND
SHRI.BHARAT VIJAY P.
SHRI.MAJID MUHAMMED K.
SMT.MINU VITTORRIA PAULSON
OTHER PRESENT:
SMT. NISHA BOSE, SR. GP
THIS WRIT APPEAL WAS FINALLY HEARD ON 30.06.2025, THE COURT
ON 08.07.2025 PASSED THE FOLLOWING:
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"CR"
JUDGMENT
Muralee Krishna, J.
The petitioner in W.P.(C)No.19703 of 2019 filed this intra
court appeal under Section 5(i) of the Kerala High Court Act, 1958,
challenging the judgment dated 10.07.2023, whereby the learned
Single Judge dismissed the writ petition filed by the appellant/writ
petitioner under Article 226 of the Constitution of India seeking a
writ of certiorari to quash Exts.P3 to P5 orders and to declare that
the appellant is senior to the 6 th respondent as per Rule 37 of
Chapter XIVA of the Kerala Education Rules, 1959 ('KER' for
short), and therefore entitled to be promoted to the post of
Headmaster in preference to the 6 th respondent.
2. The appellant entered service as a High School
Assistant ('HSA' for short) (Natural science) in the school of the
5th respondent on 04.06.2007. The 6th respondent was also
appointed as HSA (Mathematics) in the same school on the same
date. The date of birth of the appellant is 16.05.1973, and that of
the 6th respondent is 28.05.1974. According to the appellant, since
the 6th respondent is younger than the appellant, she is to be
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th
treated as senior to the 6 respondent as stipulated in Rule 37(2)
of Chapter XIVA of the KER. When the 5 th respondent prepared a
provisional seniority list showing the appellant as Junior to the 6 th
respondent, the appellant submitted objections to the provisional
seniority list. She has also filed a complaint before the 4 th
respondent. By Ext.P2 order dated 17.04.2017, the 4 th respondent
declared the appellant as Senior to the 6 th respondent. Challenging
Ext.P2 order, the 6th respondent filed an appeal before the 3 rd
respondent Deputy Director of Education. By Ext.P3 order dated
27.06.2017, the 3rd respondent allowed the appeal holding that
the 6th respondent is Senior to the appellant, stating the reason
that the 6th respondent had worked in the U.P Section of the school
from 23.11.1998 to 31.03.1999 in a leave vacancy and hence her
first appointment was prior to the appointment of the appellant.
The appellant challenged Ext.P3 order before the 2 nd respondent
Director of Public Instructions and by Ext.P4 order dated
16.09.2017, the 2nd respondent confirmed the finding in Ext.P3
order. The appellant again filed a revision before the 1 st
respondent under Rule 92 of Chapter XIVA of the KER. However,
the revision was dismissed by Ext.P5 order dated 29.03.2019.
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Thereafter, the appellant approached this Court with the writ
petition.
3. Respondents 1, 4, and 6 filed separate counter
affidavits dated 20.01.2020, 19.09.2022, and 06.10.2021,
respectively, in the writ petition opposing the reliefs sought in the
writ petition. Along with the respective counter affidavits, the
fourth respondent produced Ext.R4(a), and the 6th respondent
produced Exts.R6(a) to R6(c) documents. With an affidavit dated
26.10.2021, the 5th respondent produced Exts.R5(A) to R5(C)
documents.
4. To the counter affidavit filed by the 1 st and 4th
respondents, the appellant filed reply affidavits dated 25.03.2022
and 05.10.2022 respectively.
5. To the documents filed by the 5 th respondent, the
appellant filed a counter affidavit dated 25.03.2022, producing
therewith Exts.P6 to P9(A) documents.
6. After hearing the learned counsel on both sides and
appreciating the materials on record, the learned Single Judge
dismissed the writ petition.
7. Heard the learned counsel for the appellant, the
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learned Senior Government Pleader, the learned counsel for the
5th respondent, and also the learned counsel for the 6 th
respondent.
8. The learned counsel for the appellant would argue that
the 6th respondent was granted seniority over the appellant for the
reason that she had worked temporarily in the school for the
period 23.11.1998 to 31.03.1999. By way of amendment to Rule
7A(3) of Chapter XIVA of KER, the vacancies, the duration of which
is less than one academic year shall not be filled up with temporary
hands. As per Section 6 of the General Clauses Act, the said
amendment is retrospective in operation, unless there is a Saving
Clause. Therefore, the previous service of the 6 th respondent,
which is less than one academic year, cannot be reckoned for
calculating seniority. The learned counsel relied on the judgment
of the Apex Court in Manager, VKNM Vocational Higher
Secondary School v. State of Kerala and others [(2016) 4
SCC 216] and that of this Court in Johny v. State of Kerala
[1980 KLT 734] in support of his contention regarding the
retrospective operation of amendment to Rule 7A(3) of Chapter
XIVA of the K.E.R. According to the learned counsel, in the
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th
absence of prior service to be reckoned, the 6 respondent will be
junior to the appellant by virtue of Rule 37(2) of Chapter XIVA of
KER.
9. The learned Senior Government Pleader would argue that
the 6th respondent had got approval as a UPSA (leave substitute)
for the period from 23.11.1998 to 19.02.1999 and from
20.02.1999 to 31.03. 1999. As per Rule 37(2) of Chapter XIVA of
KER, the seniority has to be decided with reference to the date of
first appointment. Only if the date of the first appointment is the
same, seniority shall be decided with reference to age, the older
being the senior. Since the 6th respondent was appointed prior to
the appellant, the 2nd limb of Rule 37(2) will not be applicable to
the instant case.
10. The learned counsel for the 5th respondent would argue
that from Ext.R5(B), it is clear that the 6 th respondent was
appointed in the leave vacancy from 23.11.1998 to 19.02.1999
and then from 20.02.1999 to 31.03.1999. This appointment was
approved by the District Educational Officer, Mavelikkara, vide
orders dated 23.11.1998 and 20.02.1999, as evident from the
endorsement in those documents. In such circumstances, now,
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by relying on the amendment to Rule 7A(3), the appellant cannot
contend that the previous service of the 6 th respondent cannot be
considered for fixing the seniority.
11. The learned counsel for the 6 th respondent also relied
on Ext.R6(a) document, which is produced as Ext.R5(B) by the 5 th
respondent and addressed the very same argument as that of the
5th respondent.
12. The appellant, as well as the 6 th respondent, were
appointed on a regular basis in the school of the 5 th respondent
with effect from 04.06.2007. However, the 6 th respondent was
working on leave vacancy from 23.11.1998 to 31.03.1999. This
appointment was approved by the District Educational Officer as
early as in the year 1999, as evident from the endorsement made
in Exts. R5(B) appointment orders.
13. Rule 37 of Chapter XIVA of KER reads thus:
(1) Seniority of a teacher in any grade in any unit shall be
decided with reference to the length of continuous service
in that grade in that unit provided he is duly qualified for
the post.
Provided that the period of service rendered in the parent
school or in another school by a teacher who is relieved
under Rule 52, shall be reckoned for seniority on his
reappointment to the parent school.
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(2) In the case of teachers in the same grade in the same
unit whose date of commencement of continuous service
is the same, seniority shall be decided with reference to
the date of first appointment. If the date of first
appointment is also the same, seniority shall be decided
with reference to the age, the older being the senior".
14. A reading of Rule 37(2) makes it clear that in the case
of teachers in the same grade who commence continuous service
on the same date, seniority shall be decided with reference to the
date of first appointment. If the date of first appointment is also
the same, the seniority shall be decided with reference to age, the
older being the senior. Pointing out that by virtue of the
amendment dated 16.04.2005, Rule 7A(3) was amended to the
effect that vacancies, duration of which is less than one academic
year shall not be filled up by any appointment, the learned counsel
for the appellant would contend that the previous service below
one year on leave vacancy by the 6 th respondent cannot be
considered to decide that she was appointed before the appellant.
15. Section 6 of the General Clauses Act relied on by the
learned counsel for the appellant to argue that the amendment to
Rule 7A(3) of Chapter XIVA of the KER has retrospective
operation, reads thus:
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"6. Effect of repeal
Where this Act, or any, Central Act or Regulation made after
the commencement of this Act, repeals any enactment
hitherto made or hereafter to be made, then, unless a
different intention appears, the repeal shall not -
(a) Revive anything not in force or existing at the time at
which the repeal takes effect; or
(b) Affect the previous operation of any enactment so
repealed or anything duly done or suffered thereunder; or
(c) Affect any right, privilege, obligation or liability acquired,
accrued or incurred under any enactment so repealed; or
(d) Affect any penalty, forfeiture or punishment incurred in
respect of any offence committed against any enactment so
repealed; or
(e) Affect any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid; any such
investigation, legal proceeding or remedy may be instituted,
continued or enforced, and any such penalty, forfeiture,
liability or punishment may be imposed as if the repealing
Act or Regulation had not been passed."
16. It is pertinent to note that the appointments of the 6 th
respondent was approved prior to the amendment to Rule 7A(3)
of Chapter XIVA of the KER. At the time of approval of the
appointment of the 6th respondent, the restriction in Rule 7A(3)
was against the appointment, if the duration of the vacancy is two
months or less. It is clear from Section 6 of the General Clauses
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Act, 1897, that a right already acquired will not be affected by the
subsequent amendment in the statute or regulation, unless a
different intention is shown or appears from the amended
provision. Since no such intention can be gathered from the
amendment effected to Rule 7A(3), it is only to be held that the
approval of the first appointment of 6 th respondent will not be
affected by the amendment to Rule 7A(3). The 6 th respondent is
therefore entitled to claim seniority over the appellant based on
the date of her first appointment, which was approved by
Ext.R5(B) appointment order.
17. The contention of the appellant based on the judgment
of the Apex Court in VKNM Vocational Higher Secondary
School [(2016) 4 SCC 216] was taken before the learned Single
Judge also as evident from the impugned judgment. It was based
on Rule 51A of Chapter XIVA of the KER, the appellant contented
that the engagement of a teacher should have lasted for one clear
academic year. But as rightly found by the learned Single Judge,
the 6th respondent is not claiming the benefit of Rule 51A, but
claiming the benefit of Rule 37 of Chapter XIVA of the K.E.R. For
the very same reason, the judgment in Johny [1980 KLT 734]
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is also not applicable to the facts of the instant case.
Having considered the pleadings and materials on record and
the submissions made at the Bar, we find that the learned Single
Judge has considered all the contentions raised by the parties on
merit and arrived at the right conclusion. The appellant failed to
make out any sufficient ground to interfere with the impugned
judgment passed by the learned Single Judge.
In the result, writ appeal stands dismissed.
Sd/-
ANIL K.NARENDRAN, JUDGE
Sd/-
sks MURALEE KRISHNA S., JUDGE
