Allowed

Smt. Jenany J.R. v. State of Kerala & Ors.

Kerala HC7 Mar 2018WP(C)/11945/2011

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition challenging orders that retrospectively restored another candidate's appointment. While the petitioner's initial 2003 appointment was validated, the Court held she is entitled to service approval and notional benefits but denied actual arrears of pay for the interim period when the ineligible candidate held the post.

What did the court decide?

Petitioner entitled to service approval from date of original appointment with notional benefits, but actual arrears of pay for interim period denied; quashing of consequential orders.

Smt. Jenany J.R. Vs State of Kerala & Ors. — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939

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WP(C).No. 11945 of 2011

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PETITIONER(S)

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SMT. JENANY J.R., HIGH SCHOOL ASSISTANT (HINDI),, GUHANANDAPURAM HIGHER SECONDARY SCHOOL,, CHAVARA SOUTH, KOLLAM.

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BY ADVS.SRI.R.RAJASEKHARAN PILLAI

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SMT.SABINA JAYAN

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RESPONDENT(S):

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

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2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-695 001.

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3. THE DISTRICT EDUCATION OFFICER, KOLLAM-691 001.

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4. THE MANAGER,

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GUHANANDAPURAM HIGHER SECONDARY SCHOOL,, CHAVARA SOUTH, KOLLAM-691 584.

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ADDL.R5 TO R7 IMPLEADED

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5. RAJEEVAN,

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S/O.K.P.SUKUMARAN, KOUSTHUBHAM, KALLELIBHAGAM, KARUNAGAPALLY, KOLLAM DISTRICT, PIN - 690 518.

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6. JESSY.M.J., MALETHUTHARAYIL, IYANIVELIKULANGARA SOUTH, S.V.MARKET (PO), KARUNAGAPPALLY,

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KOLLAM DISTRICT, PIN -690 573.

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7. M.VINOD,

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S/O.MURALEEDHARAN, RESIDING AT BINDU BHAVANAM, NADUVATUCHERRY, CHAVARA SOUTH (PO), KOLLAM DISTRICT, PIN - 691 584.

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*ADDL.R5 TO R7 IMPLEADED AS PER ORDER DATED 11.9.2012 IN IA.NO.11888/2012.

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R1 TO R3 BY GOVERNMENT PLEADER SRI.JESTIN MATHEW

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R4 TO R7,BY ADV. SRI.M.V.THAMBAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 11945 of 2011

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1:- TRUE COPY OF THE ORDER OF APPOINTMENT DATED 23.10.2003. EXHIBIT P2:- TRUE COPY OF THE JUDGMENT DATED 03.5.2010 IN CIVIL APPEAL NO.4046/2010 BEFORE THE HONOURABLE SUPREME COURT, EXHIBIT P3:- TRUE COPY OF THE ORDER NO.B6/4715/2010 DATED 19.8.2010 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P4:- TRUE COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT. EXHIBIT P5:- TRUE COPY OF THE ORDER NO.ETI/55332/2010 DPI/K.DIS DATED 22.3.2011 ISSUED BY 2ND RESPONDENT.

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RESPONDENT(S)' EXHIBITS - NIL

/TRUE COPY/

PS TO JUDGE

TS 12/03/2018

Devan Ramachandran, J.

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W.P.(C)No.11945 of 2011 P

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Dated this the 7^th day of March, 2018

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JUDGMENT

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The petitioner says that she is presently working as a High School Assistant (Hindi) in Guhanandapuram Higher Secondary School, Chavara. According to her, even though she was appointed on 23.10.2003 against a valid retirement vacancy that arose on 01.07.2003, the third respondent - District Educational Officer, Kollam issued Exhibit P3 order approving her appointment only with effect from 01.06.2010. She further says that she moved a revision petition before the second respondent - Director of Public Instructions, who also, however, by Exhibit P5 order rejected her claim for approval with effect from 23.10.2003, instead of 01.06.2010. The petitioner has filed this writ petition challenging Exhibits P3 and P5 orders.

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WPC 11945/11

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The facts on record would show that there arose a vacancy in the School, consequent to the retirement of a teacher in the post of HSA (Hindi), with effect from 01.07.2003 and that the said vacancy was notified through paper publication by the Manager. The petitioner was one of the applicants to the post and after finalising the selection proceedings, she was appointed as HSA (Hindi) by order dated 11.09.2003. She says that at the time when the appointment order was issued, she was under medical rest in connection with the birth of her child and that she made an application before the management for fifteen days' joining time. According to her, this request was granted allowing time to join duty till 29.11.2003 and that she reported within such time before the Manager for joining duty, as is clear from the order dated 23.10.2003. She has produced on record her appointment order dated 23.10.2003 as Exhibit P1. She says that she joined and thereafter continued in service

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WPC 11945/11

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and her allegation is that soon after she joined the service, the fifth respondent, who was then working as a Lower Primary School Assistant (LPSA) in the School, obstructed her from discharging the duties and that she was, therefore, constrained to file a criminal case against him.

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The averments in the writ petition would indicate that the fifth respondent was a person who had also staked a claim to the vacancy to which the petitioner was appointed on the assertion that he was a Rule 43 claimant. When the Manager did not accede to his request, the fifth respondent appears to have filed W.P. (C)No.4948/2005 before this Court seeking appointment to the post of HSA (Hindi), which culminated in a judgment dated 09.11.2005. A copy of the said judgment is not on record. But, I have obtained a copy from the Registry and have gone through the same. In the said judgment, this Court found that the claim of the fifth

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WPC 11945/11

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respondent is untenable and that the appointment of the petitioner was valid and correct in law. This Court found, from the materials on record, that the fifth respondent could not have staked a claim to the post, since he was concededly not qualified on the day when the vacancy arose. On such conclusion, this Court declared in the said judgment that the fifth respondent is not entitled to hold the post of HSA (Hindi) that arose on 01.07.2003. It appears that this judgment was taken in appeal by the fifth respondent, by filing W.A.No.2425/2005, which was allowed, reversing the judgment of the learned Single Judge. The records would show that on the basis of the said Division Bench judgment, the fifth respondent was promoted and appointed as HSA (Hindi) with effect from 06.09.2003.

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The petitioner challenged this judgment of the Division Bench before the Hon'ble Supreme Court by filing SLP(C)No.23777/2008, which was granted and Civil

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WPC 11945/11

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Appeal No.4046/2010 was registered by the Hon'ble Court. This Civil Appeal, as is discernible from Exhibit P2 judgment, was allowed by the Hon'ble Supreme Court, wherein the conclusion of the court is available in paragraph 23, which is as under:

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“Thus, looking to the matter from all angles, we are of the considered view that the impugned order passed by Division Bench cannot be sustained. The same is hereby set aside and quashed, instead the order passed by learned Single Judge is restored meaning thereby that the writ petition preferred by respondent No.1 stands dismissed.”

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The Educational Authorities, thereafter, issued orders reverting the fifth respondent and appointing the petitioner immediately on 01.06.2010. Based on this, the petitioner requested the authorities that her appointment as HSA (Hindi) be approved with effect from the date of Exhibit P1, namely 23.10.2003, since, according to her, the Hon'ble Supreme Court has declared in Exhibit P2 that she was the rightful claimant to the post. This was, however, rejected by the DEO through Exhibit P3, approving her appointment only with effect from

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WPC 11945/11

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01.06.2010, the date on which the fifth respondent was reverted. The petitioner's assertion against Exhibit P3 is that the promotion and appointment of the fifth respondent as HSA (Hindi) itself was wrong and therefore, that his reversion, consequent to the judgment of the Hon'ble Supreme Court, cannot be deemed to be a 'reversion vacancy', since dislodging of the fifth respondent from the post was not on account of a reversion but because the Hon'ble Supreme Court having found that his appointment itself is illegal. The second respondent DPI, however, rejected her revision through Exhibit P5. As stated above, the petitioner challenges both Exhibits P3 and P5 orders and she prays that her appointment be approved with effect from 23.10.2003 with all consequential benefits, including arrears of pay from 23.10.2003 to 31.05.2010.

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I have heard Smt.Sabina Jayan, learned counsel appearing for the petitioner, Sri.M.V.Thamban, learned

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WPC 11945/11

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counsel appearing for respondents 5 to 7 and the learned Government Pleader appearing for respondents 1 to 3.

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The point of controversy in this case is very limited. The only question is whether the petitioner is entitled to be granted approval of her service from 23.10.2003, being the date of her initial appointment through Exhibit P1 order and whether she is entitled to the arrears of pay from the period during which she was unfairly and illegally kept out of service. The facts, as narrated above, would make it clear that appointment of the petitioner was validly done by the Manager. This appointment has been approved by the Hon'ble Supreme Court in Exhibit P2 judgment. However, the fact also remains that the fifth respondent's promotion and appointment to the said post with effect from 06.09.2003 was only on account of the Division Bench judgment in W.A.No.2425/2005. Once the Division Bench had found that the fifth respondent was entitled to such promotion

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WPC 11945/11 8

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and appointment, the authorities obviously had no option but to so promote and appoint him. It is only subsequently, when the Hon'ble Supreme Court through Exhibit P2 judgment, set aside the judgment of the Division Bench, thus restoring the findings of the learned Single Judge, that the petitioner obtained the right to be appointed to the post.

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That being so, however, once the Hon'ble Supreme Court has declared that the fifth respondent was not eligible to be promoted or appointed to the post of HSA (Hindi) at any point of time, then the authorities were enjoined and obligated in law to consider the case of the petitioner as regards approval of her appointment on the basis of Exhibit P1 order issued by the Manager. Since she was validly appointed, as has been found by the courts in her favour, she was certainly entitled to get approval from 23.10.2003, being the date on which Exhibit P1 order was issued. The stand of respondents 2

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WPC 11945/11 9

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and 3 to the contrary is completely unsustainable. The appointment of the petitioner certainly deserves to be approved with effect from 23.10.2003, since the courts have found that the promotion and appointment of the fifth respondent is impermissible and illegal and therefore, void ab initio.

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The only surviving question, therefore, is whether all consequential benefits should go to the petitioner on account of such approval of her service. Since I have already noticed that the fifth respondent was promoted and allowed to work in the post of HSA (Hindi) on account of the directions in W.A.No.2425/2008 and since it is conceded that he had been paid salary and allowed in the post during the period from 06.09.2003 till he was reverted on 31.05.2010, it would not be justifiable for this Court to direct that the petitioner be paid the pay and allowances for that period. This is more so because, immediately after the Hon'ble Supreme Court delivered

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WPC 11945/11

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Exhibit P2 judgment dated 03.05.2010, the authorities appointed the petitioner on 01.06.2010 itself without any further delay. However, she would certainly be entitled to all other benefits, including notional fixation of pay, increments, seniority, etc. in the post from the date on which she was appointed through Exhibit P1. The impugned orders to the extent to which it has ordered otherwise are completely unsustainable in law and therefore, liable to be set aside.

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In such circumstances, I order this writ petition quashing Exhibits P3 and P5 orders and holding that the petitioner is entitled to be approved in service along with all benefits, except the actual arrears of pay in the post of HSA (Hindi) with effect from 23.10.2003. The competent authorities are directed to issue consequential orders approving her service, not in the reversion vacancy of the fifth respondent but on the basis of Exhibit P1 appointment order and to grant her all consequential

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WPC 11945/11

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benefits, except the actual arrears of pay for the period from 23.10.2003 to 31.05.2010. This shall be done by the authority as expeditiously as possible, but not later than two months from the date of receipt of a copy of this judgment.

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Sd/Devan Ramachandran, Judge

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tkv

Smt. Jenany J.R. v. State of Kerala & Ors.

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Smt. Jenany J.R. v. State of Kerala & Ors.

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