VALSALAKUMARI DEVI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is working as Higher Secondary School Teacher (HSST) (History) in the School under the management of the 4th respondent. The petitioner was initially appointed as HSA (Social Science) with effect from 13.07.1990. That appointment was approved by the respondent authority. Thereafter, for a vacancy that arose in the post of HSST in the School in the year 2000, the petitioner preferred an application for consideration to the post. Ignoring her claim, another person was appointed with effect from 01.08.2000. That appointment was challenged by the petitioner through O.P. No. 22902 of 2000 which was dismissed by upholding the appointment already made. A writ Appeal preferred against the said judgment also proved unsuccessful. Thereafter the petitioner approached the Supreme Court through Civil Appeal No. 4480 of 2007. The said appeal was allowed by the Supreme Court and the judgments of this Court in the Writ Appeal and the Original Petition were set aside after upholding the claim of the petitioner with regard to her right to be appointed to the post of HSST. Pursuant to the judgment of the Supreme Court, the petitioner was appointed as HSST in the BAR Higher Secondary School, Kasaragod with effect from 16.02.2008. The said appointment was also approved by the educational authority. The petitioner however preferred a claim for approval with effect from 01.08.2000 since that was the date on which the vacancy arose to the post of HSST and to which vacancy, according to the petitioner, she should have been appointed in the first place. The claim of the petitioner was rejected by the 3rd respondent and this prompted the petitioner to prefer W.P.(C).No. 9508 of 2009. The said writ petition was allowed by Ext. P1 judgment whereby the educational authorities were directed to pass appropriate orders appointing the petitioner as HSST (History) with retrospective effect from 01.08.2000 notionally and to grant fixation in the scale of pay as HSST accordingly. It was also made clear in the said judgment that arrears consequent on the same less the amount received as salary as HSA, will also be disbursed to the petitioner. Although appeals were filed against the said judgment by the Manager of the School as also the State Government, the said appeals were dismissed by Ext. P2 judgment. A separate appeal filed by the petitioner against Ext. P1 judgment, to the extent it did not consider the claim of the petitioner for reckoning seniority with effect from 01.08.2000, was however allowed by the Division Bench through Ext. P2 judgment. Accordingly, the educational authorities were directed to reckon the petitioner's seniority with effect from 01.08.2000 along with notional promotion and other benefits granted with effect from that date.

(2.) CONSEQUENT to Ext. P2 judgment of the Division Bench the 1st respondent vide Ext. P3 order dated 24.11.2011 fixed the seniority of the petitioner in the post of HSST with effect from 01.08.2000 and clarified that the period for which she was notionally promoted would be reckoned for all service benefits. By the same order, the Director of Higher Secondary Education was also directed to take necessary steps to recover excess pay, disbursed to the persons who had been erroneously appointed, from the Manager and also to initiate disciplinary action against the officials in the department who had approved those irregular appointments. As no action was taken by the respondents consequent to Ext. P3 order of the 1st respondent, the petitioner moved this Court through a contempt of court petition. The said petition was later closed after recording the submission of the learned Government Pleader that the petitioners seniority had already been approved with effect from 01.08.2000. Thereafter the petitioner preferred Ext. P7 representation to the 2nd respondent seeking his indulgence in the matter of promotion of the petitioner as Principal of the School after extending the benefits envisaged under Ext. P2 judgment. Essentially, the petitioner requested for her promotion as Principal of the School with effect from 01.04.2010 when, in accordance with her notional security, she could have aspired for the post in the normal course of events. By Ext. P8 communication dated 08.10.2012, the 2nd respondent directed the 3rd respondent to take necessary action for the promotion of the petitioner to the post of Principal in accordance with the rules of eligibility and the norms prescribed by the special rules. Pursuant to Ext. P8, the 3rd respondent addressed Ext. P9 communication to the 4th respondent Manager directing him to take necessary action for promotion of the petitioner to the post of Principal in accordance with the rules of eligibility and norms prescribed by the special rules. This was followed by the Ext. P10 reminder letter dated 31.01.2013. When Exts. P9 and P10 letters did not result in any action on the part of the 4th respondent Manager, the 3rd respondent issued Ext. P11 show cause notice to the 4th respondent Manager asking him to show cause as to why action should not be taken against him for not promoting the petitioner as the Principal of the School as directed in Exts. P9 and P10 letters. It would appear that on receipt of Ext. P11 show cause notice, the 4th respondent Manager considered the issue of promotion of the petitioner to the post of Principal and by an order dated 23.03.2013, which is produced as Ext. R4(a) along with the counter affidavit filed by the 4th respondent Manager, found that the petitioner did not possess the necessary teaching experience that was required for appointment to the post of Principal. Accordingly, the 4th respondent was rejected the claim put forward by the petitioner for promotion to the post of Principal with effect from 01.04.2010. The said order of the 4th respondent was brought to the attention of the 2nd respondent who vide Ext. P12 order dated 30.04.2013 cancelled Ext. R4(a) proceedings of the 4th respondent Manager and directed him to consider the matter afresh and comply with the Government direction to appoint the petitioner as Principal of the School. Against Ext. P12 order of the 2nd respondent, the 4th respondent Manager has preferred an appeal before the 1st respondent (Ext. R4(c)) which is stated to be pending consideration by the 1st respondent.

(3.) I have heard Sri. Shoby K. Francis learned counsel for the petitioner and also the learned Government Pleader for the respondents 1 to 3 and Sri. Mahesh V. Ramakrishnan learned counsel appearing on behalf of the 4th respondent Manager.