R.BIJI Vs. STATE OF KERALA

JUDGEMENT

(1.) The above writ petition is filed challenging Exts.P3 to P5 orders and for a declaration that the petitioner is senior to the 6th respondent as per Rule 37 of Chapter XIVA of the Kerala Education Rules (hereinafter referred to as "KER") and therefore entitled to be promoted to the post of Headmaster in preference to the 6th respondent.

(2.) Petitioner entered service as HSA (Natural Science) in the school of the 5th respondent on 4/6/2007 and her appointment was approved with effect from that date. The 6th respondent was appointed as HSA (Mathematics) in the same school on the same day, viz. 4/6/2007. The 6th respondent is younger in age than the petitioner and the date of birth of the petitioner is 16/5/1973 and that of the 6th respondent is 28/5/1974. But when the provisional seniority list was drawn by the 5th respondent Manager, the petitioner was shown as junior to the 6th respondent. The petitioner submitted her objection to the provisional seniority list published by the Manager. Thereupon, she has preferred a complaint before the 4th respondent and by Ext.P2 order, the 4th respondent declared that the petitioner is senior to the 6th respondent. Challenging Ext.P2, the 6th respondent filed an appeal before the 3rd respondent and the 3rd respondent by Ext.P3 order allowed the appeal holding that the 6th respondent is senior to the petitioner. The reason stated in Ext.P3 was that the 6th respondent had worked in the UP Sec. from 23/11/1998 to 31/3/1999 in a maternity leave vacancy and therefore her first appointment was in 1998, before the appointment of the petitioner as HSA and hence she is senior. Aggrieved by Ext.P3, the petitioner challenged the same before the 2nd respondent and by Ext.P4 order, the Government confirmed the findings in Ext.P3 order. Petitioner again filed a revision before the 1st respondent which was also dismissed as per Ext.P5 order. Petitioner contended that the claim of the 6th respondent that she has previous service in Upper Primary school Sec. is doubtful inasmuch as the only document produced by her is the copy of the acquittance register. The 6th respondent did not produce the appointment letter or any evidence to show that the said appointment was approved and that the same is not entered in her service book. The specific contention of the petitioner is that there is no reliable evidence to show that the 6th respondent has previous service in the Upper Primary school Sec. . To substantiate her contentions, the petitioner has produced Ext.P6, a reply given under the Right to Information Act in which it is stated that the order of appointment and approval given to the 6th respondent is not available in the records. Even though the petitioner requested for a certified copy of the appointment order of the 6th respondent as UPSA and the consequential approval of the same, the petitioner was served with Ext.P7 reply informing that the service book of the 6th respondent could not be given without her consent and Ext.P7(A) certificate of service of the 6th respondent was given to the petitioner, but the order of appointment and the consequential approval was not served on the petitioner. Petitioner submits that none of the documents to substantiate the appointment of the 6th respondent as UPSA and the consequential approval of the same is not available in the school. Petitioner also relies on Ext.P7(D) document wherein the petitioner was informed by the Office of the District Educational Officer that the records sought for by the petitioner are not available in the office. Petitioner on the strength of Exts.P8(A) and P9(A) replies obtained under the provisions of the Right to Information Act submitted that no documents are forthcoming to prove that the 6th respondent has previous approved service as UPSA and therefore going by Rule 37 of Chapter XIVA KER, as both were appointed on the very same day, the petitioner being senior, should have been assigned seniority over the 6th respondent.

(3.) A counter affidavit has been filed on behalf of the 1st respondent wherein it is stated that the 6th respondent has acquired four months nine days service as UPSA from 23/11/1998 to 31/3/1999 in a leave vacancy, before her regular continuous service in the High School Sec. . It is the contention of the 1st respondent that as per Sub-rule (2) of Rule 37 of Chapter XIVA KER if the beginning of service of teachers of the same grade is on the same day, the seniority can be fixed on the basis of the first appointment. "First appointment" means an approved posting and it does not specify the claimant under Rule 43, 51A of Chapter XIVA KER and on the basis of the prior appointment as UPSA, the 6th respondent is senior to the petitioner and therefore the assignment of seniority to the 6 th respondent is perfectly legal and valid.