Dismissed

Bindu P.V. v. the Secretary to General Education Dept.

Kerala HC20 May 2016WP(C)/5169/2011

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition challenging orders that appointed the sixth respondent senior to the petitioner. The court held that once the respondent's appointment was approved with retroactive effect, the petitioner's claim for seniority based on her earlier leave vacancy service failed.

What did the court decide?

The writ petition challenging the impugned orders is dismissed with no merit.

Bindu P.V. Vs the Secretary to General… — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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FRIDAY, THE 20TH DAY OF MAY 2016/20TH VAISAKHA 1938

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WP(C).No. 5169 of 2011 (U)

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PETITIONER(S):

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BINDU.P.V., AGED 35 YEARS,W/O.SUDHEER.K, HIGH SCHOOL ASSISTANT (MATHEMATICS), C.P.P.H.M.H.S. OZHUR, VELLACHAL.P.O., OZHUR, MALAPPURAM DISTRICT, RESIDING AT KOLAVARA HOUSE (SUDHEE BHAVAN), SOUTH ANNARA, MALAPPURAM DISTRICT-676101.

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BY ADVS.SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE

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RESPONDENT(S):

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1. THE SECRETARY TO GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.

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2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695001.

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3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM-676505.

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4. THE DISTRICT EDUCATIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT-676101.

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5. THE MANAGER, C.P.P.H.M.H.S. OZHUR, VELLACHAL.P.O., OZHUR, MALAPPURAM DISTRICT. PIN-676106.

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6. SRI. MANOJ KUMAR.A.K., HIGH SCHOOL ASSISTANT, C.P.P.H.M.H.S. OZHUR, VELLACHAL.P.O., OZHUR, MALAPPURAM DISTRICT-676106.

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R6 BY ADVS. SMT.S.KARTHIKA

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SRI.M.S.UNNIKRISHNAN SRI.M.R.ANISON SMT.K.P.GEETHA MANI R1-4 BY GOVERNMENT PLEADER SRI.BABY THOMAS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 5169 of 2011 (U)

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APPENDIX

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PETITIONERS' EXHIBITS

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P1: COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 20/6/2001 DULY APPROVED

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P2: COPY OF THE APPOINTMENT ORDER OF THE PETITIONER TO A PERMANENT POST DATED 21/8/2001

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P3: COPY OF THE APPOINTMENT ORDER SHOWING THE OCCURRENCE OF VACANCY FROM 3/8/2001

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P4: COPY OF THE APPOINTMENT ORDER DATED 6/8/01 ISSUED TO THE R6

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P5: COPY OF THE ORDER DATED 28/7/2003 ISSUED BY R4.

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P6: COPY OF THE ORDER DATED 12/3/2004 PASSED BY R3

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P7: COPY OF JUDGMENT DATED 5/8/04 IN WPC.1775/2004

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P8: COPY OF THE ORDER DATED 1/10/04 PASSED BY R2

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P9: COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER BEFORE R1

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P10: COPY OF ORDER DATED 28/12/2010 PASSED BY R1.

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RESPONDENTS' EXHIBITS

NIL.

/ TRUE COPY /

P.S. TO JUDGE

P.V.ASHA J.

-------------------------------------------W.P.(C) No.5169 of 2011

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--------------------------------------------- Dated this the 20^th day of May, 2016

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J U D G M E N T

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The petitioner was appointed as High School Assistant (Mathematics) initially in a leave vacancy with effect from 20.06.2001 when one Smt.Lekha took maternity leave. While continuing in that post she was shifted to a permanent post with effect from 21.08.2001. Her appointment was approved with effect from 20.06.2001. In the staff fixation for the year 2003-2004 there was a division fall and the petitioner was retrenched. In the appeal filed by the Manager as against Ext.P5 staff fixation proceedings, the Deputy Director of Education found that the petitioner was senior to the 6^th respondent and by Ext.P6 order, directed DEO to pass revised order by retaining the petitioner. The 6^th respondent challenged this order in W.P.(C)No.17775 of 2004 and by Ext.P7 judgment this Court directed the 6^th respondent who was the petitioner therein to approach the Director of Public Instructions by filing a revision petition and directing the Director of Public Instruction to pass appropriate orders

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W.P.(C) No.5169 of 2011

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after hearing the parties concerned. Thereafter the Director of Public Instructions issued Ext.P8 order whereby it was found that the 6^th respondent was senior to petitioner, stating that petitioner's initial appointment was in a leave vacancy and she was shifted to a permanent vacancy only with effect from 21.08.2001. At the same time, the 6^th respondent was continuing in a regular vacancy with effect from 16.07.2001.

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The petitioner challenged Ext.P8 order passed

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by the Director of Public Instruction by filing revision petition. The Government after hearing the petitioner, 6^th respondent and the Manager, passed Ext.P10 order, again rejecting the claim of the petitioner. This writ petition is filed challenging orders, Exts.P5, P8 and P10 passed by the Educational Authorities by which the 6^th respondent is found senior to the petitioner. The petitioner also claimed that she is senior to the 6^th respondent in the category of High School Assistant.

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The 6^th respondent has filed a counter affidavit stating that he was initially appointed as High School Assistant (Social Science) in the 5^th respondent School

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W.P.(C) No.5169 of 2011

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initially in a leave vacancy from 15.11.1999 to 21.03.2000 and thereafter in another leave vacancy from 04.09.2000 to 23.03.2001. When he was regularly appointed as per Ext.P4 order, that appointment was approved by the 4^th respondent with effect from 16.07.2001. According to the 6^th respondent the service rendered by the petitioner is in a leave vacancy i.e., for the period from 20.06.2001 to 21.08.2001. According to him he is senior to the petitioner both in the leave vacancy as well as in the regular vacancy and he is entitled to seniority in the cadre of H.S.A.

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Referring to Rule 37 Chapter XIV A of the Kerala Education Rules, the petitioner points out that seniority has to be decided on the basis of length of continuous service in a grade and since petitioner continued as HSA with effect from 20.06.2001 and the 6^th respondent was appointed as HSA with effect from 16.07.2001 only, she is senior to the 6^th respondent

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Heard the learned counsel for the petitioner and

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learned counsel for the respondent.

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The petitioner is a High School Assistant in

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W.P.(C) No.5169 of 2011

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Mathematics and 6^th respondent is a High School Assistant in Social Science. Initial appointment of the petitioner was in a leave vacancy and the same was approved with effect from 20.06.2001. From Ext.P1 order, it is seen that petitioner's service as against a permanent vacancy commenced on 21.08.2001. Ext.P5 order, by which the 6^th respondent was appointed, shows that he was appointed with effect from 6.06.2001 as against the newly created post in the academic year 2001-2002. Ext.P6 further shows that that his appointment was approved from 16.07.2001. The Director of Public Instruction while considering the appeal found that the service rendered by the petitioner in a leave vacancy cannot be reckoned for seniority and found that 6^th respondent is senior to the petitioner. Government while considering the revision petition found that the 6^th respondent has got continuous service from 06.06.2001 and he was entitled to get approval of his appointment with effect from that date. It is seen that the Government called for the records relating to the appointment of 6^th respondent and found that his appointment was against the additional division vacancy

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W.P.(C) No.5169 of 2011

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and he has worked in the School from 06.06.2001. Seeing that claim of the 6^th respondent for approval with effect from the date of his appointment was rejected earlier by the Director of Public Instruction, the Government found that the approval of his appointment was liable to be granted with effect from the beginning of the academic year itself since his appointment was made in anticipation of sanction for additional post and accordingly it was found that the appointment of 6^th respondent should be approved with effect from 06.06.2001. Once the 6^th respondent's appointment is approved from 06.06.2001, the very basis of the contention of petitioner for seniority above the 6^th respondent falls, since petitioner's appointment was admittedly only on 20.06.2001. As against the approval granted to the 6^th respondent with effect from 06.06.2001, there is no challenge in the writ petition, even though Ext.P1 order as such is challenged. In this view of the matter even assuming that the service rendered against the leave vacancy can be recognized towards seniority under Rule 37, the decision with respect seniority in between the

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W.P.(C) No.5169 of 2011

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petitioner and the 6^th respondent cannot be said to be illegal.

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In these circumstances, I do not think it necessary to deal with the contentions of the petitioner that seniority has to be reckoned with effect from 20.6.2001, the date of commencement of her continuous service, though against a leave vacancy .

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In the above circumstances, the contentions raised by the petitioner as against the impugned orders are unsustainable. Therefore, I do not find any merit in this writ petition. Hence, the writ petition is dismissed.

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Sd/- P.V.ASHA, JUDGE.

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AS/24/5/16

Bindu P.V. v. the Secretary to General Education Dept.

Case brief

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Bindu P.V. v. the Secretary to General Education Dept.

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