Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 18TH DAY OF JULY 2022 / 27TH ASHADHA, 1944 WP(C) NO. 22075 OF 2022 PETITIONER/S: THE MANAGER, KODIYERI JUNIOR BASIC & PRE-BASIC SCHOOL, MOOZHIKKARA P.O. THALASSERY, KANNUR (DT)-670103. BY ADVS. T.T.MUHAMOOD A.RENJIT V.E.ABDUL GAFOOR A.MOHAMMED SAVAD NAZEER HUZAIN.H T.R.VISHNU RESPONDENT/S:
1 THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION JAGATHY, THIRUVANANTHAPURAM-695001. 3 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DEO, THALASSERY KANNUR DT-679532. 4 THE ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE AEO, THALASSERY SOUTH KANNUR DT-679532. 5 SMT.BINI.SN ., HM IN CHARGE, KODIYERI JR BASIC & PRE-BASIC SCHOOL MOOZHIKKARA P.O. THALASSERY, KANNUR (DT)-670103.
6 SMT.ROSHNA.K.R., LPST, KODIYERI JUNIOR. BASIC & PRE-BASIC SCHOOL MOOZHIKKARA P.O. THALASSERY, KANNUR (DT)-670103. SMT NISHA BOSE SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.07.2022, ALONG WITH WP(C).20113/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 18TH DAY OF JULY 2022 / 27TH ASHADHA, 1944 WP(C) NO. 20113 OF 2022 PETITIONER/S: ROSHNA K R AGED 32 YEARS LPST, KODIYERI JUNIOR BASIC & PRE-BASIC SCHOOL, MOOZHIKARA POST, THALASSERY SOUTH, KANNUR DISTRICT. -670 631. BY ADVS. POOVAMULLE PARAMBIL ABDULKAREEM K.N.KUMARASWAMY SARMA RESPONDENT/S:
1 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THALASSERY, KANNUR DISTRICT-670101 2 ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, THALASSERY SOUTH, KANNUR DISTRICT-670101 3 MANAGER, KODIYERI JUNIOR BASIC & PRE-BASIC SCHOOL, MOOZHIKARA POST, THALASSERY SOUTH, KANNUR DISTRICT. PIN-670 631. 4 BINI.S.N., LPST, KODIYERI JUNIOR BASIC & PRE-BASIC SCHOOL, MOOZHIKARA POST, THALASSERY SOUTH, KANNUR DISTRICT, PIN-670 631. BY ADVS.
T.T.MUHAMOOD A.RENJITH V.E.ABDUL GAFOOR A.MOHAMMED SAVAD NAZEER HUZAIN.H THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.07.2022, ALONG WITH WP(C).22075/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
W.P. (C.) No. 20113 of 2022 is filed by Smt. Roshna K. R., a Teacher
working in the Kodiyeri Junior Basic & Pre-Basic School as a Lower Primary School Teacher (LPST). She has approached this Court seeking a direction to the 3rd respondent to implement Exhibit P6 proceedings issued by the 2nd respondent and to appoint her as Head Mistress of the School with effect from the date of occurrence of the vacancy, i.e., 01.06.2021 and also to declare that the appointment of the 4th respondent as Headmistress in charge of the School as illegal and arbitrary and in violation to the provisions of the KER.
2. W.P.(C.) No. 22075 of 2022 is filed by the Manager, impugning
Exhibits P1, P3 and P5 orders and also for a direction to the respondents to approve the appointment of Smt. Bini S.N. as Head Mistress in Charge of the school and also for incidental reliefs.
3. As common issues are involved, both these writ petitions are taken up and disposed of by a common judgment. The parties and exhibits shall be described as in W.P.(C.) No. 20113/2022.
4. Smt. Roshna K.R., the petitioner in W.P.(C.) No. 20113/2022 contends that she was appointed as LPST in a retirement vacancy that arose
on 31.05.2018 with effect from 12.06.2018 on a scale of pay basis. However, by Exhibit P1, approval was granted on a daily wage basis as the school was an uneconomic one. During the academic year 2019-2020, when the school became economic, the appointment was reviewed by the 2nd respondent and the same was approved on a scale of pay basis with effect from 06.06.2019 as per Exhibit P2 order. Petitioner asserts by referring to Exhibit P3 that she is having all the obligatory test qualifications to aspire for
the post. As she is the senior-most, she is qualified to be promoted as Headmistress in the vacancy which arose due to the retirement of Smt. Sheela T.P, who retired on 31.03.2021. However, ignoring the rights of the petitioner, the Manager appointed the 4th respondent, who is unqualified
and junior to the petitioner, as Headmistress in charge. The petitioner asserts that the 4th respondent was appointed only on 06.06.2019 in a retirement vacancy of Smt. Padmavathi, who retired on 31.03.2019, whereas the date of appointment of the petitioner is 12.06.2018. According to the petitioner, by Exhibit P5 order, the 2nd respondent rejected the proposal for approval of the 4th respondent on the ground that she has not passed the
Departmental Test. It is further stated that the Manager submitted a Seniority List before the 2nd respondent, which was considered by the 2nd
respondent, and after hearing the parties concerned, issued Exhibit P6 order
rejecting the contentions raised by the Manager. It is stated that Exhibit P6
order has been challenged by the 3rd respondent before the 1st respondent,
wherein it is contended that the 4th respondent is senior. However, the 1st respondent rejected the said request made by the Manager by relying on Rule 37 (1) and (2) of Chapter XIV A of the KER. The fact that the petitioner is having continuous service from 12.08.2018 onwards in the school was reckoned, though records reveal that both have regular service only from
06.06.2019. It is in the said circumstances that the petitioner submitted Exhibit P8 representation before the 3rd respondent, seeking to promote the petitioner as Headmistress of the School in the light of Exhibit P6 order. It is stated that when no action was taken, she submitted Exhibit P9 representation before the 2nd respondent, which is stated to be pending. Complaining of inaction on the part of the 2nd and 3rd respondents, she is before this Court.
5. The Manager, the 3rd respondent, has filed a counter affidavit
controverting the contentions advanced by the petitioner. It is stated that the vacancy of Headmistress occurred in the School on 01.04.2021 consequent to the retirement of Smt. Sheela T.P. It is stated that as per Rule 18 of Right of Children to Free and Compulsory Education Rules, the Head Teacher should be a person having minimum of twelve years of
teaching experience, over and above the qualifications prescribed in the Kerala Education Rules. It is stated that no teacher in the school is having twelve years of teaching experience. As there are no teachers fully qualified, the Manager appointed Smt. Bini S.N, the 5th respondent, the Senior most LPST in the School as Head Mistress in charge with effect from 01.04.2021. She was appointed as she is the senior by virtue of the age among all the teachers, including Smt. Roshna K.R., who had commenced continuous service only with effect from 06.06.2019. It is also stated that the probation of the petitioner has also not been declared at the relevant point of time. However, the 2nd respondent rejected the proposal submitted by the Manager on the ground that there was no approved seniority list. It was also
held that Smt. Bini had not passed the departmental test. Being aggrieved,
though an appeal was preferred by the 3rd respondent, the same was also
rejected. It is stated that against the orders passed by the educational authorities, the Manager has preferred Exhibit P7 revision petition before the 1st respondent, which is stated to be pending. Being aggrieved by the delay in considering the revision petition, the petitioner has approached this Court and filed W.P.(C.) 22075/2022. However, the same has not been taken up and disposed of to date.
6. I have heard Sri.P.P. Abdul Kareem, the learned counsel
appearing for the petitioner in W.P.(C.) 20113/2022, Sri. T.T. Muhamood, the learned counsel appearing for the petitioner in W.P.(C.) No.22075/2022 and the learned Government Pleader.
7. I find that challenging the order passed by the AEO and confirmed by the DEO, the Manager has already approached the Government and has preferred a revision petition, which is stated to be
pending. The only question at this particular point of time is pending consideration of the revision petition, which among the senior teachers should be appointed as Drawing and Disbursing Officer (DDO).
8. Sri. T.T. Muhamood, the learned counsel appearing for the
Manager, would vehemently contend that both Smt. Roshna as well as Smt. Bini had commenced continuous service only from 06.06.2019 and by virtue of the fact that Smt. Bini is older, she should be appointed. On the other hand, Sri. Abdul Kareem, the learned counsel, contends that Exhibit P1 would reveal that the petitioner was appointed in a regular post with effect from 12.06.2018, and in view of the orders passed by the AEO as well as the DEO, she can be appointed until the matter is finally heard and disposed of by the DGE/Government.
9. I have considered the submissions advanced and have perused the records.
10. I find that the 2nd respondent by Ext.P6 order has considered
the question of seniority and has ordered that Smt. Roshni K.R., the petitioner in W.P.(C) No. 20113/2022 is the seniormost teacher in the school and the said order stands confirmed in appeal. Challenging the said order, the Manager of the school has preferred a revision petition (Ext.P7 in W.P.(C) No.22075/2022) and the same is pending before the 1st respondent. I am of the view that it would be in the interest of justice to issue directions to the 1st respondent to consider the revision petition and expeditiously take a decision after hearing both sides. Until orders are passed, the petitioner in W.P.(C)
No. 20113/2022 Smt. Roshni K.R. can be permitted to provisionally discharge the duty as the Drawing and Disbursing Officer. Resultantly, this writ petition is disposed of by issuing the following directions: a) W.P.(C) No. 22075/2022 will stand disposed of, directing the 1st respondent to consider Exts.P6 and P7 revision petitions preferred by the Manager and to take a decision expeditiously, in any event, within a period of three months from the date of receipt of a copy of this judgment. Before passing orders, the 1st respondent shall afford an opportunity of hearing to the Manager and respondents 5 and 6 in the said writ petition.
b) W.P.(C) No. 20113/2022 will stand disposed of directing the competent among respondents to provisionally permit Smt. Roshni.K.R. to discharge the duty as Drawing and Disbursing Officer. It is made clear that the order is purely provisional and will not confer any advantage to the petitioner. She shall also not claim any equity based on this order.
c) In tune with the orders passed by the Government, monetary benefits shall be disbursed. Sd/- RAJA VIJAYARAGHAVAN V JUDGE avs APPENDIX OF WP(C) 20113/2022 PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER DATED Exhibit P2 TRUE COPY OF THE ORDER NO.C.13678/2019 DATED Exhibit P3 TRUE COPY OF THE CERTIFICATES SHOWING THE
QUALIFICATIONS OF THE PETITIONER Exhibit P4 TRUE COPY OF THE ORDER NO.C.7106/2019.K.DIS DATED 14/11/2019 ISSUED BY THE 2ND RESPONDENT
Exhibit P5 TRUE COPY OF THE ORDER NO.C/10002/2021 DATED Exhibit P6 TRUE COPY THE ORDER NO. C/2256/2021 DATED Exhibit P7 TRUE COPY OF THE ORDER NO.B5/4524/2021 K. DIS
DATED 05/04/2022 ISSUED BY THE 1ST RESPONDENT Exhibit P8 TRUE COPY OF THE REPRESENTATION DATED Exhibit P9 TRUE COPY OF THE REPRESENTATION DATED APPENDIX OF WP(C) 22075/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF ORDER NO.C/10002/21 DATED 24.09.2021 ISSUED BY THE 4TH RESPONDENT. Exhibit P1 A TRUE COPY OF APPEAL MEMORANDUM SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ON 19.10.2021. Exhibit P2 TRUE COPY OF SENIORITY LIST PROVISIONALLY
APPROVED BY THE 4TH RESPONDENT AS PER ORDER
NO.C-2256/2021 DATED 10.08.2021. Exhibit P3 TRUE COPY OF ORDER NO.C-2256/2021 DATED 29.10.2021. Exhibit P4 TRUE COPY OF APPEAL MEMORANDUM SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ON 22.11.2021. Exhibit P5 TRUE COPY OF ORDER NO.B5/4524/2021 DATED 05.04.2022 ISSUED BY THE 3RD RESPONDENT. Exhibit P6 TRUE COPY OF REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 15.05.2022. Exhibit P7 TRUE COPY OF REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 14.05.2022.