GIRIJA KUMAR Vs. RAJITHA

JUDGEMENT

(1.) The appellants are two teachers, who claimed seniority over the 1st respondent. The learned counsel for the appellants submits that the judgment impugned in W.A. No. 1603 of 2017 specifically looks at the observations in the earlier judgment and also finds that the 2nd respondent has attempted to overrule the judgment passed earlier. We hence consider both the Appeals together since the issue is identical.

(2.) The 1st respondent herein and the appellants, who were respondents 4 and 5 in the Writ Petitions, were appointed respectively on 04.09.1991, 09.09.1991 and 23.09.1991 on Consolidated pay. They continued uninterruptedly till 07.04.1992, on which date they were made Higher Secondary School Teacher (Junior). Again they continued in that post till 15.7.1992, on which date they became Higher Secondary School Teachers (H.S.S.T.), The bone of contention between them is as to seniority in the cadre of H.S.S.T. The Regional Deputy Director (R.D.D.) found that it has to be fixed on the basis of age. The respondents 4 and 5 being older, they were assigned seniority at 1 and 2 positions while the writ petitioner was assigned seniority at position No. 3. The R.D.D. relied on Rule 37 of Chapter XIVA, which speaks of determining the seniority on the basis of age, when the appointment date is identical.

(3.) The learned counsel for the appellants has two contentions against the judgment; one is that the service spent on consolidated pay is not qualifying service and hence there can be no seniority determined on the basis of the first appointment, on consolidated pay. Further contention is that the service of the petitioner between 04.9.1991 to 07.4.1992 was on consolidated pay, not reckoned for qualifying service and if the petitioner had a different claim, it should have been challenged at that point. For the first time, the challenge was made only in the year 2016. The Manager supports the appellants and seeks to uphold seniority as determined by him, which stands approved by the R.D.D. The appellants rely on the judgment of a Division Bench of this Court in Nanminda Higher Secondary School v. Director of Higher Secondary Education (2015 (3) KLT 307). For advancing the ground of the writ petitioner being estopped from raising a stale claim on the principles of theory of sit back, the appellants rely on Pavithran v. State of Kerala (2009 (4) KLT 20 (F.B.)). The learned Government Pleader refers to Rule 7 of Chapter XXXII to contend that probation commences only from the date of first appointment as an H.S.S.T. (Junior) and the appointment on consolidated pay cannot be reckoned at all.