RAJESWARI DEVI Vs. STATE OF KERALA

JUDGEMENT

(1.) These two writ petitions are connected therefore, I am disposing of these writ petitions by a common judgment.

(2.) I will narrate the facts in W.P.(C)No.7070/2022. Exhibits in W.P.(C)No.7070/2022 is referred throughout this judgment unless specifically mentioned otherwise. This is a dispute between two rival claimants for the post of Principal in the Kandamangalam Higher Secondary School (for short, 'School'), which is an aided School in terms of the Kerala Education Act and Rules. The petitioner in W.P. (C)No.7070/2022, Smt. Rajeswari Devi.S, was appointed as the Principal of the School from 29/5/2019 onwards against a retirement vacancy in the School by the 4th respondent, The Manager. The grievance of the petitioner is that her appointment as Principal from 29/5/2019 is not approved due to a seniority dispute between the petitioner and the 5th respondent herein. The 5th respondent, Smt.Sangeetha R. Nair, herein is the petitioner in W.P.(C)No.9671/2022. It is submitted that, before her regular service started, the petitioner, Smt. Rajeswari Devi.S, entered service as High School Assistant (Maths) (for short, 'HSA') from 28/6/1999 to 13/10/1999 in the High School sec. of the school in a short vacancy and this appointment was approved on regular scale of pay basis as evident by Ext.P1 order of the District Educational Officer, Cherthala. Thereafter, the petitioner commenced her continuous service as Higher Secondary School Teacher (Maths) (for short, 'HSST') from 3/10/2000 in the School and her appointment was approved by the 2nd respondent, the Director of General Education, as evident by Ext.P2 order. It is the further case of the petitioner that, she was appointed by the 4th respondent as the Principal-in-charge from 1/4/2019 against the vacancy that arose due to the retirement of Smt.T.Usha, on 31/3/2019 and Ext.P3 is the approval order. It is the case of the petitioner that the seniority list of Higher Secondary School Teachers of the School as on 1/7/2018 was approved provisionally by the 3rd respondent, the Regional Deputy Director of Higher Secondary Education, Alappuzha, as per the order dtd. 6/5/2019. Ext.P4 is the approval of the seniority list. According to the petitioner, Ext.P4 list was not circulated as provided in Rule 36 of Chapter XIV(A) of Kerala Education Rules(For short 'KER') and she has not signed the seniority list in acknowledgement of having seen the list. Subsequent to Ext.P4, the petitioner made a representation before the Manager and submitted the eligibility of her seniority over the 5th respondent as she was appointed first, that is, earlier than the 5th respondent and hence as per Rule 37(2) of Chapter XIV(A) of KER, she is senior to the 5th respondent. Thereafter, the Manager revised the seniority list as on 1/1/2019 assigning seniority to the petitioner over the 5th respondent and the same was submitted before the 3rd respondent, the Regional Deputy Director of Higher Secondary Education. Ext.P5 is the letter of the Manager with the provisional seniority list as on 1/1/2019. It is the further case of the petitioner that the 3rd respondent vide order dtd. 6/5/2019 cancelled Ext.P3 order on the ground that, as per Ext.P4 seniority list, the 5th respondent is senior to the petitioner and hence she is eligible to be promoted as the Principal. Ext.P6 is the order passed by the 3rd respondent. It is the case of the petitioner that she was appointed as the Principal from 29/5/2019 onwards against a retirement vacancy and the Manager had submitted the appointment proposals to the 3rd respondent for approving the appointment of the petitioner as Principal from 29/5/2019. Exts.P7 and P7(a) are the letter together with the appointment order of the 4th respondent Manager appointing the petitioner as the Principal. Aggrieved by Ext.P7(a) appointment order of the petitioner as Principal from 29/5/2019, the 5th respondent moved before this Court by filing W.P.(C)No.16026/2019 to promote her as Principal with effect from 1/4/2019 and further to restrain the 3rd respondent from approving the seniority list as on 1/1/2019 as per Ext.P5. As per Ext.P8 judgment, this Court directed the Director to take up the representation of the 5th respondent for promoting her as Principal and dispose of the same after affording a hearing to the affected parties. Accordingly, Ext.P9 order was passed by the 2nd respondent declaring that the 5th respondent is senior to the petitioner as both of them commenced continuous service on the same date and the 5th respondent is elder than the petitioner. According to the petitioner, Ext.P9 is unsustainable. The petitioner also relied on Ext.P10 judgment of the Division Bench of this Court in Girija Kumar S. and Another v. Rajitha K.G. and Others [2019 KHC 711]. The petitioner also relied on Ext.P11 Government Order which says that the seniority for being promoted as Principal will be determined with reference to the date from which the candidates are continuously working as HSST. It is also stated that, when there are more than one HSST with the same date of appointment in the HSST cadre, seniority will be fixed reckoning the seniority as HSA. Relying on the above Government Order, the petitioner contented that the petitioner is senior and her first appointment as HSA in the same School is to be reckoned. The petitioner also relied on Ext.P12 judgment of this Court which ratify Ext.P11 Government Order. Aggrieved by Ext.P9, the 4th respondent - Manager and the petitioner moved a revision petition before the 1st respondent ' The Government, State of Kerala. Ext.P13 is the revision petition filed by the Manager and the petitioner. This Court as per the judgment in W.P.(C)No.11616/2021 directed the Government to consider the revision petition within a time frame. Thereafter the Government considered the matter and dismissed the revision petition as per Ext.P14 order. Aggrieved by Ext.P14, the petitioner filed W.P. (C)No.7070/2022 with following prayers:

(3.) W.P.(C)No.9671/2022 is filed by the 5th respondent in W.P.(C)No.7070/2022 to implement Ext.P3, P9 and P14 in W.P.(C)No.7070/2022 which are marked as Exts.P2, P3 and P4 respectively in W.P.(C)No.9671/2022. The prayers in W.P. (C)No.9671/2022 is extracted hereunder: