Dismissed

P.B.Dhanya v. the State of Kerala

Kerala HC16 Jun 2015WP(C)/1853/2015

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition filed by a School Assistant challenging a Government order denying her appointment to a Lower Primary School Assistant vacancy. The Court held that a prior Government order finding the vacancy belonged to the LPSA cadre had attained finality and could not be collaterally challenged.

What did the court decide?

The writ petition was dismissed on the ground that the impugned order relied on findings from a prior order that had attained finality.

P.B.Dhanya Vs the State of Kerala — Pension and Retirement Benefits | Kerala HC (2015)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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TUESDAY, THE 16TH DAY OF JUNE 2015/26TH JYAISHTA, 1937

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WP(C).NO. 1853 OF 2015 (F)

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PETITIONER(S):

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P.B.DHANYA AGED 39 YEARS WIFE OF SUBHASH, UPPER PRIMARY SCHOOL ASSISTANT SREE NARAYANA KADAKSHAM UPPER PRIMARY SCHOOL P.VEMBALLUR PATTAZHAKKAD - 680 663 (RESIDING AT PINDIYATH PANANGAD, KODUNGALLUR, THRISSUR DISTRICT).

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BY ADVS.SRI.V.A.MUHAMMED

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SMT.P.A.JENZIA RESPONDENT(S):

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1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM - 695 001.

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2. THE DISTRICT EDUCATIONAL OFFICER IRINJALAKUDA, THRISSUR DISTRICT - 680 121. 3. ASSISTANT EDUCATIONAL OFFICER KODUNGALLUR, THRISSUR DISTRICT - 680 664. 4. THE MANAGER SREE NARAYANA KADAKSHAM UPPER PRIMARY SCHOOL P.VEMBALLUR, PATTAZHAKKAD - 680 663 KODUNGALLUR THRISSUR DISTRICT.

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5. THE HEADMISTRESS SREE NARAYANA KADAKSHAM UPPER PRIMARY SCHOOL P.VEMBALLUR, PATTAZHAKKAD - 680 663 KODUNGALLUR THRISSUR DISTRICT.

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6. SMT.A.K.RAGHI LOWER PRIMARY SCHOOL ASSISTANT SREE NARAYANA KADAKSHAM UPPER PRIMARY SCHOOL P.VEMBALUR, PATTAZHAKKAD - 680 663, KODUNGALUR THRISSUR DISTRICT.

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7. SRI.K.S.SAJEESH LOWER PRIMARY SCHOOL ASSISTANT SREE NARAYANA KADAKSHAM UPPER PRIMARY SCHOOL P.VEMBALLUR, PATTAZHAKAD - 680 663, KODUNGALLUR THRISSUR DISTRICT. R7 BY ADV. SRI.P.RAVINDRAN (SR.) R7 BY ADV. SRI.SREEDHAR RAVINDRAN BY GOVERNMENT PLEADER SRI.RINNY STEPHEN CHAMAPARAMBIL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-06-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).NO. 1853 OF 2015 (F) ---------------------------

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1: TRUE COPY OF THE STAFF FIXATION ORDER 2008 - 2009 OF THE SCHOOL DATED 08/09/2008

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EXT.P2: TRUE COPY OF THE SENIORITY LIST.

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EXT.P3: TRUE COPY OF THE PETITION FILED BEFORE THE GOVERNMENT DATED 30/11/2008.

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EXT.P4: TRUE COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER DATED 31/10/2013.

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EXT.P5: TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 02/01/2014.

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EXT.P6: TRUE COPY OF THE GO(RT) NO. 3104/2013.G,EDN. DATED 25/07/2013 OF THE GOVERNMENT.

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EXT.P7: TRUE COPY OF THE DECISION REPORTED IN 2004 (2) KLT 899 DATED 29/06/2004.

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EXT.P8: TRUE COPY OF THE INTERIM ORDER IN WPC.NO. 708/2014 DATED 02/07/2014.

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EXT.P9: TRUE COPY OF THE GO(RT) NO. 5731/2014/G.EDN. DATED 26/12/2014 OF THE GOVERNMENT.

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RESPONDENT(S)' EXHIBITS: ------------------------EXT.R7(A): TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2011

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EXT.R7(B):TRUE COPY OF THE ORDER OF THE DEO REJECTING THE APPEAL 04.06.2012

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EXT.R7(C): TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR DATED 29.12.2012

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EXT.R7(D): TRUE COPY OF THE JUDGMENT IN W.P(C) NO.708 OF 2014 DATED 11.08.2014

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//TRUE COPY//

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P.A TO JUDGE

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A.K.JAYASANKARAN NAMBIAR, J.

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............................................................. W.P.(C).No.1853 of 2015

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............................................................. Dated this the 16^th day of June, 2015

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J U D G M E N T

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The petitioner was appointed as UPSA in the Sree Narayana Kadaksham Upper Primary School, P.Vemballur with effect from 26.10.2004. The said appointment of the petitioner was duly approved by the educational authority. In the academic year 20082009, consequent to the staff fixation order, a post of LPSA stood reduced in the School. While the Junior most LPSA ought to have been retrenched consequent to the reduction in the posts, the Assistant Educational Officer, taking note of the seniority of the junior most LPSA, permitted him to be retained, and a UPSA who was Junior to the said LPSA in the common seniority list was retrenched. The facts in the writ petition would disclose that there was no challenge against the said decision of the Assistant Educational Officer. Thereafter, with effect from 31.03.2011, a vacancy arose to the post of Headmistress in the School consequent to the retirement of Smt.Subhashini, who was borne in the cadre of UPSA but had been appointed as Headmistress based on her seniority. It is the case of the petitioner that, consequent to the retirement of Smt.Subhashini, there also arose a vacancy in

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W.P.(C).No.1853 of 2015

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the post of UPSA to which the petitioner could have been accommodated, considering her previous approved appointment in the School. This, however, was not done. The 4^th respondent Manager promoted Smt.Sanila as Headmistress, to the vacancy that arose consequent to the retirement of Smt.Subhashini as Headmistress, insofar as Smt.Sanila was the senior most teacher in the School and due for promotion as Headmistress. No doubt, the consequent vacancy that arose, on the promotion of Smt.Sanila as Headmistress, could only have been a vacancy that arose in the post of UPSA since Smt.Sanila was effectively replacing Smt.Subhashini who was borne in the cadre of UPSA. The 4^th respondent Manager as well as the education authority, however, treated the resultant vacancy, consequent to the promotion of Smt.Sanila as Headmistress, as a vacancy in the cadre of LPSA, to which cadre Smt.Sanila belonged, prior to her promotion as Headmistress. The 4^th respondent Manager, therefore, appointed the 7^th respondent as the LPSA in the School in the vacancy that resulted pursuant to the promotion of Smt.Sanila as Headmistress.

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The petitioner, who had worked as a UPSA in the School, and was a Rule 51 A claimant to a future vacancy that arose in the School to the post of UPSA, preferred an appeal to the Deputy Director, against Ext.R7 (b) order dated 04.06.2012 of the District

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W.P.(C).No.1853 of 2015

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Educational Officer, which in turn rejected the appeal preferred by the petitioner against the dismissal of his claim for appointment as UPSA under Rule 51 A of Chapter XIV A KER. By Ext.R7(c) order dated 29.12.2012, the Deputy Director of Education found that the resultant vacancy, that arose consequent to the promotion of Smt.Sanila as Headmistress of the School, was one that arose in the cadre of LPSA and not UPSA. He therefore rejected the appeal preferred by the petitioner. Aggrieved by Ext.R7(c) order of the Deputy Director of Education, the petitioner preferred a representation dated 29.01.2013 before the Government. The Government, by Ext.P6 order dated 25.07.2013, rejected the claim of the petitioner, for appointment as UPSA on the strength of her claim under Rule 51 A, by holding that the petitioner was overqualified for the post of LPSA, in which post the vacancy had arisen in the School, and further, that her claim under Rule 51 A could not be of any assistance in a situation where she was not qualified for the post in question. It would appear that Ext.P6 order of the Government was challenged by the petitioner in W.P. (C).No.708 of 2014 before this Court. In the said writ petition, the petitioner also challenged Ext.P4 order dated 31.10.2013, which had by then been passed by the District Educational Officer, approving the appointment of the 7^th respondent by taking note of Ext.P6 order of the Government. At the time of filing the writ

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W.P.(C).No.1853 of 2015

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petition, the petitioner had also taken steps to prefer Ext.P5 revision before the Government, against Ext.P4 order of the District Educational Officer. While, by Ext.P8 order, there was a stay initially granted against the operation and implementation of Ext.P4 order dated 31.10.2013, the writ petition itself was subsequently disposed by Ext.R7(d) judgment whereby this Court directed the State Government to pass final orders on Ext.P5 representation, preferred by the petitioner, within three weeks from the date of receipt of a copy of the judgment. It was also made clear that, the payment of salary to the 7^th respondent would be subject to the order to be passed by the State Government. What is relevant to note at this stage, however, is that in Ext.R7(d) judgment, this Court did not specifically grant the relief sought for in the writ petition against Ext.P6 order; nor was there any consideration of the merits of Ext.P6 order in the said judgment. In the absence of any further proceedings against Ext. R7 (d) judgment, therefore, Ext.P6 order attained finality.

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Subsequent to Ext.R7(d) judgment, the Government passed Ext.P9 order, in Ext.P5 revision which was preferred by the petitioner. In Ext.P9 order, the Government considered the case of the petitioner and held against her on the ground that she did not have the necessary qualification for appointment to the post of

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W.P.(C).No.1853 of 2015

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LPSA, and further, that her claim under Rule 51 A would not be of any assistance to her under the said circumstances. There was also a direction in Ext.P9 that the petitioner could be included in the list of retrenched teachers for consideration for future appointments in the School in question. It is Ext.P9 order of the Government that is impugned in the present writ petition, wherein the petitioner contends that, inasmuch as the vacancy that resulted consequent to the promotion of Smt.Sanila as Headmistress, was a vacancy that arose in the cadre of UPSA, the 4^th respondent Manager should have appointed the petitioner, and not the 7^th respondent, to the said vacancy.

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A counter affidavit has been filed by the 7^th respondent wherein the sequence of events leading to the passing of the various orders namely, Exts.R7(b), R7(c), P6, P4 and P9 have been narrated in detail. The contention raised by the 7^th respondent is essentially that, inasmuch as Ext.P6 order, that found against the petitioner with regard to her claim for appointment to the vacancy that arose in the school consequent to the promotion of Smt.Sanila as Headmistress, had not been set aside in any proceedings, the same had become final and would operate to defeat the petitioner's attempt to agitate the same issue in these proceedings under Article 226 of the Constitution of India. It is pointed out that,

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W.P.(C).No.1853 of 2015

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Ext.P9 order was passed by the Government in Ext.P5 revision, that was preferred by the petitioner against Ext.P4 order of the District Educational Officer, which in turn approved the appointment of the 7^th respondent as UPSA in the school. Learned Senior counsel would emphasise that Ext.P4 order was passed by the District Educational Officer, after taking note of Ext.P6 order that was passed by the State Government, and inasmuch as there was no challenge to Ext.P6 order, the petitioner could not now mount a collateral challenge to Ext.P6 in a writ petition filed challenging Ext.P9 order.

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I have heard the learned counsel for the petitioner, the learned Senior counsel appearing for the 7^th respondent and also the learned Government Pleader for the official respondents.

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On a consideration of the facts and circumstances of the case and submissions made across the bar, I am of the view that, the challenge in the writ petition against Ext.P9 order of the Government must necessarily fail. The petitioner, who was appointed as UPSA in the School under the management of the 4^th respondent with effect from 26.10.2004, no doubt, had a claim under Rule 51 A for being considered to a subsequent vacancy that arose in the school in the post of UPSA. Although, it is the case of

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W.P.(C).No.1853 of 2015

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the petitioner that the resultant vacancy that arose in the School, consequent to the promotion of Smt.Sanila as Headmistress, was one that arose in the cadre of UPSA (since the earlier incumbent to the post of Headmistress, who had retired, was borne in the cadre of UPSA), the said claim of the petitioner stood rejected by Ext.R7 (b) order of the District Educational Officer. The further proceedings that were pursued by the petitioner against the said order culminated in Ext.P6 order of the Government which found against the petitioner with regard to her claim for the post in question. Although, the petitioner challenged Ext.P6 order in W.P (C).N0.708 of 2014, in Ext.R7(d) judgment of this Court in the said writ petition, the specific reliefs that were sought by the petitioner against Ext.P6 order were not granted by this Court. Instead, this Court relegated the petitioner to the revisionary remedy against Ext.P4 order of the District Educational Officer, before the Government. There is no direction in Ext.R7(d) judgment, to the Government, to go into the issue that was already decided by Ext.P6 order. In fact, since Ext.P6 order was itself an order passed by the Government, on a representation filed by the petitioner, this Court could not have directed the Government to consider any representation against Ext.P6 order, for to do so would have amounted to clothing the Government with a power to review its own orders - a power which it did not otherwise have. Inasmuch

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W.P.(C).No.1853 of 2015

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as Ext.P6 order attained finality consequent to Ext.R7 (d) judgment, I am constrained to hold that the claim of the petitioner for appointment, to the vacancy in the post of LPSA, by treating it as a vacancy in the post of UPSA, cannot be entertained at this distance of time. Resultantly, the challenge against Ext.P9 order of the Government must also fail, inasmuch as it is an order passed consequent to the findings of the Government in Ext.P6 order. Thus, the writ petition fails and is accordingly dismissed.

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A.K.JAYASANKARAN NAMBIAR JUDGE

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mns

P.B.Dhanya v. the State of Kerala

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P.B.Dhanya v. the State of Kerala

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