VIJAYAMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE above Writ Petition has been filed to quash the proceedings under Exts. P3, P4 and the order of the second respondent approving the appointment of the 5th respondent as Headmaster and for a direction directing the respondents 1 to 3 to consider the claim of the petitioner for seniority over respondent 5 and for appointment as Headmaster. THE petitioner was working as High School Assistant in Mahatma High School for Girls under the management of the 3rd respondent. According to the petitioner she was fully qualified and was having training qualification with effect from 18. 6. 1962. When the petitioner made a representation before the 3rd respondent District Educational Officer on 30. 6. 1989 requesting to appoint the petitioner to the post' of Headmaster cancelling the appointment of the 5th respondent, the representation was not properly responded to. THE petitioner came to know that the third respondent approved the appointment of the 5th respondent by order No. D. D is. 4696/89 dated 27. 5. 1989 as Headmaster during the last week of June, 1989. THEreupon, the petitioner filed an appeal on 4. 8. 1989 before the second respondent Deputy Director of Education which was rejected by the second respondent on 29. 6. 1990 under Ext. P3. In the meanwhile, the 4th respondent appointed the 6th respondent to the post of Headmaster on 1. 4. 1990 again overlooking the claim of the petitioner. THE petitioner's revision before the Government filed on 17. 7. 1990 under Ext. P4 was also rejected. In passing Exts. P3 and P5, the Deputy Director of Education and the government have placed reliance on the fact that the date of first appointment can be decided with reference to appointment as unqualified teacher. According to the petitioner the impugned orders, Ext. P3 and P5 are wrong and illegal and are liable to be quashed. THE petitioner relies on R. 37 of Chapter XIV-A of the kerala Education Rules (for short 'the rules') as it stood on the date providing that seniority of a teacher in any grade in any unit shall be decided with reference to the date of first appointment in that grade in that unit, provided he is duly qualified for that post. According to the petitioner, she, being the eldest, has to be considered the senior most amongst the three (petitioner and respondents 5 and 6 ). THE date of birth of the petitioner is 4. 11. 1936, that of the 5th respondent is 8. 12. 1938 and that of the 6th respondent is 6. 4. 1940. However, Ext. P3 proceeded on the basis that respondents 5 and 6 have earlier dates of first appointment as unqualified teachers and hence they are seniors applying R. 37 (2) of Chapter XIV-A of the Rules. It is submitted by learned counsel for the petitioner that R. 37 (1) as it stood before the amendment on 28. 8. 1962 as well as R. 37 (2), the teachers, whose seniority is so be decided should have been working in the same grade in the same unit and, therefore, periods of their service as unqualified teachers cannot be taken into account at all. It Is submitted that the words "date of appointment" in R. 37 (2), if at all R. 37 (2) is to be applied, can have reference only to the service in the same grade by all the teachers whose inter se seniority is being considered. It is submitted that the seniority list prepared in 1973 was not in accordance with either R. 35 or 37 of Chapter XIV-A of the Rules and cannot estop the petitioner from claiming seniority legitimately due to him.

(2.) I have perused Exts. P1 to P5 and the counter affidavit filed by the State and respondents 5 and 6 and the reply affidavit filed by the petitioner and heard the arguments of respective counsel.

(3.) R. 37 (1) of Chapter XTV-A of the Rules provides. that seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post. Sub-r. (3) says that in the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment and if the date of first appointment is also the same, seniority shall be decided with reference to age, the elder being the senior. In this case, the date of commencement of qualified service of the petitioner and the 5th respondent is the same. Sri. A. Balakrishna Pillai, the 5th respondent herein, is senior among them under R. 37 (1) and (2) of Chapter XIV-A of the rules. Hence Ext. P3 is rightly issued. The 6th respondent P. K. Annamma was promoted and appointed as Headmistress, M. H. S. for Boys. Chennithala from 1. 4. 1990. The petitioner filed a revision petition before the Government on 17. 7. 1990 under Ext. P4. The Government after considering all the relevant records and after hearing the parties, rejected the revision petition of the petitioner under Ext. P5. After receipt of the Government order, Ext. P5, the appointment of Annamma as Headmistress was approved by the District Educational officer, Mavelikkara by order No. K. Dis. B6-5364/90 dated 17. 7. 1991. The service details of the petitioner and respondents 5 and 6 are as follows: Smt. P. L. Vijayamma, the Petitioner: Date of Birth Commencement of continuous service as fully qualified h. S. A.4. 11. 1936 18. 6. 1962 2. Sri. A. Balakrishna Pillai, Respondent No. 5 Date of Birth - 8. 12. 1938 High School Assistant (Untrained) - 13. 9. 1960 to 30. 3,1961 & 26. 6. 1961 to 2. 8. 1961 B. Ed. Course - 3. 8. 1961 to 27. 3. 1962 High School assistant (Untrained) High School Assistant (Fully Qualified) - 4. 6. 1962 to 17. 6. 1962 3. P. K. Annamma, Respondent No. 6. Date of Birth -6. 4. 1940 High School Assistant (Untrained) - 16. 9. 1960 to 30. 3. 1961 B. Ed. Course - 18. 7. 1961 to 18. 4. 1962 High School Assistant (Untrained) - 4. 6. 1962 to 17. 6. 1962 High School Assistant (Fully Qualified) - 18. 6. 1992 onwards According to R. 37 of Chapter XIV-A of the Rules, as it stood earlier, seniority of a teacher in any grade in any unit shall be decided with reference to the date of first appointment in that grade in that unit provided he is qualified for the post. If the two persons have the same date of appointment, seniority will be given to the older in age. This rule was subsequently amended by the Government. The petitioner in this case claim seniority above respondents 5 and 6 for the reason that she is older in age. This stand cannot be accepted. As per R. 37 (1) Chapter XIV-A of the Rules seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified, for the post. In the case of teachers, in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. If the date of appointment is also the same, seniority shall be decided with reference to age, the older being the senior.