NIYAS K. Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) Since the issue involved in both these writ petitions is the same they are taken up for consideration together and disposed by this common judgment. For the sake of convenience, the reference to the facts and the exhibits is from W.P.(C).No.4572 of 2012.

(2.) The petitioner was appointed as UPSA in the School under the management of the 4th respondent. It would appear that the mother of the petitioner was an Arabic teacher in the same School and she died while in service on 03.06.1997. The petitioner, therefore, became entitled to claim appointment under the School by virtue of Rule 51B of Chapter XIV A of KER. Accordingly, the petitioner applied for an appointment before the 3rd respondent District Educational Officer. The 3rd respondent, in turn, directed the 4th respondent Manager to consider the claim of the petitioner. This was by Ext.P1 order dated 16.08.2005. Consequent to the said direction, the 4th respondent Manager by Ext.P2 order dated 01.06.2009 appointed the petitioner as UPSA in the leave in a vacancy that arose for the period from 01.06.2009 to 31.03.2010. Apparently, the 5th respondent was also appointed as UPSA in another leave vacancy which arose during the same period namely 01.06.2009 to 31.03.2010. Thereafter, by Ext.P3 order dated 01.06.2011, the petitioner was again appointed as UPSA in a promotion vacancy that arose in the said post in the School with effect from 01.06.2011. To another promotion vacancy that arose on the same date, the 5th respondent was also appointed as UPSA in the School. The educational authorities, however, noticed that pursuant to a staff fixation of 2010-2011, there where only four posts sanctioned in the cadre of H.S.A, and against these four posts there were five persons working as H.S.As. This resulted in a situation where one of the teachers in the School was found to be in excess and liable to be retrenched. The issue then boiled down to which among the two UPSA's namely, the petitioner or the 5th respondent, would have to be retrenched as the junior most teacher in the School. Based on the principles of seniority mentioned in Rule 37 of Chapter XIV A KER, the 3rd respondent recommended the cancellation of the petitioner's appointment by Ext.P4 order dated 24.05.2012. In Ext.P4 order, the reason given by the 3rd respondent is that, both the petitioner and the 5th respondent had the same length of continuous service which commenced from the same date, and therefore, when the inter se seniority was determined as per age, the 5th respondent was Senior to the petitioner. It was, therefore, that the 3rd respondent found that, when it came to deciding which teacher had to be retrenched, the petitioner had to be retrenched as the Junior most teacher in the School. The said findings of the 3rd respondent were confirmed by the 2nd respondent by Ext.P7 order dated 22.04.2014. In a further revision petition preferred by the petitioner before the 1st respondent, however, the 1st respondent by Ext.P9 order dated 11.12.2014 found that, although the petitioner and the 5th respondent were appointed on the same date, and both of them had the same length of continuous service commencing from 01.06.2009, the petitioner was a person who obtained initial appointment by virtue of his claim under Rule 51 B of Chapter XIV A of KER, and therefore, his right under Rule 51 A accrued earlier in point of time than that of the 5th respondent while considering their service with effect from 01.06.2011. On that reasoning, it was found that the appointment given to the 5th respondent had to be cancelled. In W.P.(C).No.4572 of 2015, the petitioner seeks an implementation of Ext.P9 order that was issued in his favour by the 1st respondent. In W.P.(C).No.15087 of 2015, that is filed by the 5th respondent in W.P.(C).No.4572 of 2015, Ext.P9 order (which is produced as Ext.P8 in that writ petition) is impugned, inter alia, on the ground that, the said order ignores the principles for determining seniority as laid down in Rule 37 of Chapter XIVA of KER. The 5th respondent also assails Ext.P9 order dated 25.03.2015 and Ext.P10 order dated 16.04.2015 in that writ petition which are consequential orders passed by the 3rd respondent based on Ext.P9 order dated 11.12.2014 of the 1st respondent in W.P.(C).No.4572 of 2015. In W.P.(C).No.15087 of 2015, a counter affidavit has been filed on behalf of the 5th respondent on similar lines as the averments in the W.P.(C).No.4572 of 2015. A reply affidavit has also been filed by the petitioner in the said writ petition.

(3.) I have heard Sri.S.P.Aravindakshan Pillai, the learned counsel for the petitioner in W.P.(C).No.4572 of 2015 and the 5th respondent in W.P.(C).No.15087 of 2015 as also Sri.Kaleeswaram Raj, the learned counsel for the petitioner in W.P.(C).No.15087 of 2015 and the 5th respondent in W.P.(C).No.4572 of 2015 and also the learned Government Pleader for the official respondents in both these writ petitions.