Remanded

Sangeetha R Nair v. State of Kerala

Kerala HC22 Jan 2021WP(C)/16026/2019

Case brief

AI extract

What is this about?

The High Court refused to decide the validity of the revised seniority list or alter the Principal appointment directly. Order was remanded to the Director to conduct a de novo inquiry into the applicability of relevant Rules and approve/reject the lists. Status quo maintained pending final administrative order.

What did the court decide?

The petition is disposed of; the 2nd Respondent-Director is directed to dispose of the pending representation (Ext.P5) after hearing all parties within two months. Status quo of the Principal post con

Sangeetha R Nair Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2021)

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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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FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942

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WP(C).No.16026 OF 2019(C)

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PETITIONER:

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SANGEETHA R NAIR AGED 52 YEARS H.S.S.T CHEMISTRY, H.S.S KANDAMANGALAM, KADAKKARAPPALLY P.O, CHERTHALA-688529, W/O. P.REGHUNATHA KURUP, RESIDING AT THARAPADHAM, POLLATHAI, KALAVOOR P.O, ALAPPUZHA-688522.

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BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH

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RESPONDENTS:

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1 STATE OF KERALA

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REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695001.

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3 THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION DEPARTMENT, CHENGANNUR, ALAPPUZHA DISTRICT-689121

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4 THE MANAGER, H.S.S KANDAMANGALAM, KADAKKARAPPALLY P.O, CHERTHALA, ALAPPUZHA DISTRICT, PIN-688529.

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5 RAJESWARI DEVI S, H.S.S.T(MATHS), H.S.S. KANDAMANGALAM, KADAKKARAPPALLY P.O, CHERTHALA, ALAPPUZHA DISTRICT, PIN-688529

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BY ADV. DR.GEORGE ABRAHAM BY ADV. SRI.V.A.MUHAMMED BY ADV. SRI.V.RAJASEKHARAN NAIR

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OTHER PRESENT:

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SRI. P.M.MANOJ - SR.GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.16026 OF 2019(C)

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J U D G M E N T

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The petitioner, who is stated to be working as a Higher Secondary School Teacher in H.S.S, Kandamangalam, Cherthala, has filed this writ petition seeking a direction to respondents 2, 3 and 4 to promote her as Principal with effect from 01.04.2019; and further to restrain the 3 rd respondent for approving Ext.P3 seniority list, wherein the 5 th respondent has been assigned seniority above her.

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2 . Sri.Elvin Peter P.J., learned counsel appearing for the petitioner, submits that the original seniority list is Ext.P2, which was prepared by the Manager as on 01.07.2018, in which his client has been shown to be senior to the 5 th respondent; but that thereafter, the Manager unilaterally and without legal authority, revised the same through Ext.P3, interchanging their position, thus making her junior solely for the reason that 5 th respondent had prior approved service in the High School section of the School.

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3 . Sri.Elvin Peter says that, concededly, his client is senior in age and she and the 5 th respondent had been appointed on the same day, namely on 03.10.2000; and

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WP(C).No.16026 OF 2019(C)

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therefore, that going by the provisions of Chapter XXXII of the Kerala Education Rules and by the precedents covering the field, she ought to have been granted seniority, which had been correctly done in Ext.P2, which he asserts to be the only approved seniority list available for the School. Sri.Elvin Peter, therefore, prays that the 3 rd respondent be directed to reject Ext.P3 seniority list and to consequentially direct the 4 th respondent - Manager to promote his client as the Principal with effect from 01.04.2019 forthwith.

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4 . In response, Dr.George Abraham, learned counsel appearing for the 4 th respondent - Manager, submitted that a counter affidavit has been filed on record, wherein, it has been averred that 5 th respondent is having a better claim than the petitioner for seniority, since she has prior approved service as a High School Teacher in the School. He says that this right accrues to her on account of Rule 37(2) of Chapter XIVA of the Kerala Education Rules (KER for short) and therefore, that his client was completely without error in having reviewed and modified Ext.P2 seniority list through Ext.P3. He, therefore, prays that this writ petition be dismissed.

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WP(C).No.16026 OF 2019(C)

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5 . Sri.M.Sajjad, learned counsel appearing for the 5 th respondent, adopts the submissions of Dr.George Abraham and submitted that since his client had prior approved service as HSA in the School, the petitioner cannot seek to be senior to her, even though she may be older. He also relied on Rule 37(2) Chapter XIVA of the KER in substantiation of this plea.

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6 . The learned Senior Government Pleader, Sri.P.M.Manoj, however, submitted that the Department will only recognize Ext.P2 - which is the approved seniority list; and that any modification made thereto by the Manager will require to be sanctioned by the competent Authority before it can be put into operation. He submitted that going by Ext.P2, which is the sole approved seniority list as of now, the petitioner is senior to respondent No.5 and therefore, that the Manager could not have appointed the latter as the Headmistress of the School. He submitted that, in fact, the petitioner has already approached the 2 nd respondent - Director of Higher Secondary Education through Ext.P5 and that the said Authority is willing to consider the same, after hearing all sides, thus leading to appropriate orders thereon.

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WP(C).No.16026 OF 2019(C)

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7 . In reply, Sri.Elvin Peter P.J, submitted that the contentions of the 5 th respondent and that of the Manager, edificed on Rule 37 (2) Chapter XIVA of the KER are completely untenable, since those provisions are not applicable to the Higher Secondary School division. He contended that it is now well settled, through a catena of judgments of this Court and that of the Hon'ble Supreme Court, that the provisions of Chapter XIVA would apply to the Higher Secondary School division only if it is expressly adopted and that since there is no such adoption as of now, the provisions of Rule 37(2) cannot be pressed into strength by either of the aforementioned respondents. He thus reiteratinlgy, prayed that this writ petition be allowed.

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8 . When I consider the afore submissions, it is perspicuous that the rival contentions between the petitioner and the 5 th respondent are edificed on Rule 37(2) Chapter XIVA of the KER, with the former asserting that it is not applicable to the Higher Secondary School division, while the latter contending it to be so.

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9 . Prima facie, in the absence of any orders adopting

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WP(C).No.16026 OF 2019(C)

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the provisions of Chapter XIVA, particularly Rule 37(2), to the Higher Secondary School division, I am of the view that the contentions of the 5 th respondent and that of the 4 th respondent - Manager will require to be carefully scrutinized by the competent Authority of the Department, namely the Director. This is more so because, as seen above, the Government takes a stand that Ext.P2 is the only approved seniority list and therefore, the question whether Ext.P3 should be approved or otherwise will also have to be taken, at the first instance, by the Educational Authority and not by this Court, while acting under Article 226 of the Constitution of India.

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10. In the afore circumstances, I am firm in my mind that the 2 nd respondent - Director must take up Ext.P5 representation of the petitioner and dispose of the same after affording her, 5 th respondent and 4 th respondent - Manager an — opportunity of being heard either physically or through videoconferencing — thus culminating in an appropriate order on the aspects as to whether Ext.P2 seniority list deserves to be approved and whether the 5 th respondent can be appointed as the Principal of the School, taking note of Rule 37(2) Chapter

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WP(C).No.16026 OF 2019(C)

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XIVA of the KER.

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11. The afore exercise shall be completed as expeditiously as is possible by the Director but not later than two months from the date of receipt of a copy of this judgment and it is needless to say that until such time, the status quo with respect to the post of Principal as available today will continue; however, inuring no benefit on account of this alone to the incumbent, except as per the orders to be issued by the Director.

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This writ petition is thus disposed of.

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SD/-

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DEVAN RAMACHANDRAN

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JUDGE

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WP(C).No.16026 OF 2019(C)

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE ORDER NO.ACD.C3/HSE/2001 DATED 30.11.2002 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P2	TRUE COPY OF THE SENIORITY LIST OF HIGHER SECONDARY SCHOOL TEACHERS IN THE H.S.S KANDAMANGALAM AS ON 01.07.2018 PREPARED BY THE 4TH RESPONDENT AND APPROVED BY THE 3RD RESPONDENT.
EXHIBIT P3	TRUE COPY OF ANOTHER SENIORITY LIST OF HIGHER SECONDARY SCHOOL TEACHERS IN THE H.S.S. KANDAMANGALAM PREPARED BY THE 4TH RESPONDENT.
EXHIBIT P4	TRUE COPY OF THE REPRESENTATION DATED 29.03.2019 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.
EXHIBIT P5	TRUE COPY OF THE SAID REPRESENTATION DATED 07.06.2019 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS 2 AND 3.
EXHIBIT P6	TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS HUSBAND UNDER RIGHT TO INFORMATION ACT ON 17.05.2019 BEFORE THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 3RD RESPONDENT.
RESPONDENT'S/S EX	HIBITS:
EXHIBIT-R5(A)	TRUE COPY OF THE APPROVED APPOINTMENT ORDER OF SMT.RAJESWARI DEVI S DATED 28/06/1999
EXHIBIT-R5(B)	TRUE COPY OF THE COVERING LETTER OF THE MANAGER DATED 29/05/2019
EXHIBIT-R5(C)	TRUE COPY OF THE APPOINTMENT ORDER OF THE 5TH RESPONDENT AS PRINCIPAL DATED 29/05/2019
EXHIBIT R4(A)	A COPY OF THE APPOINTMENT ORDER ISSUED IN FAVOUR OF SMT. RAJESWARIDEVI.
EXHIBIT R4(B)	A COPY OF THE PROCEEDINGS OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION DATED 03/11/2002.
EXHIBIT R4(C)	A COPY OF THE RELEVANT PAGE OF SERVICE BOOK OF SMT. S. RAJESWARIDEVI SHOWING THE APPROVAL OF APPOINTMENT OF BOTH HSA AND HSST.

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WP(C).No.16026 OF 2019(C)

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EXHIBIT R4(D)	A COPY OF THE ORDER OF APPOINTMENT.
EXHIBIT R4(E)	A COPY OF THE COVERING LETTER DATED 29/05/2019 ISSUED BY THE MANAGER.
EXHIBIT R4(F)	A COPY OF THE SENIORITY LIST OF THE HIGHER SECONDARY SCHOOL.
EXHIBIT R3(A)	A TRUE COPY OF ORDER NO.10463/C7/2018/RDD/CNGR DATED 06/05/2019.
EXHIBIT R3(B)	A TRUE COPY OF ORDER NO.3209/C7/2019/RDD/CNGR DATED 12/04/2019.
EXHIBIT R3(C)	A TRUE COPY OF THE ORDER NO.3209/C7/2019/RDD/CNGR DATED 06/05/2019.
EXHIBIT R3(D)	A TRUE COPY OF LETTER NO.ACD A2/17862/DHSE/10 DATED 02/12/2010.

Sangeetha R Nair v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sangeetha R Nair v. State of Kerala

Case brief

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