Soorya Kumari.P v. Smt. M.V Susheela
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 2ND DAY OF DECEMBER 2015/11TH AGRAHAYANA, 1937 WP(C).No. 15854 of 2015 (F) ---------------------------- PETITIONER:
-------------------------- * (SOORYA KUMARI.P) SOORIYA KUMARI P.
W/O. SASIDHARAN MASTER, TEACHER, S.V.A.U.P SCHOOL, CHELAMBRA, NANDARATH HOUSE ARIYUR P.O., MALAPPURAM-676 312.
BY ADV. SMT.M.BINDUDAS RESPONDENTS:
----------------------------
1. SMT. M.V SUSHEELA PALLIPARAMB, MALAPPURAM-673 634.
2. THE DISTRICT EDUCATIONAL OFFICER,MALAPPURAM, ** (MALAPPURAM) DISTRICT, PIN-(676 504).
3. DEPUTY DIRECTOR OF EDUCATION, (PARAPPANANGADI), *** MALAPPURAM DISTRICT, PIN-676 504.
4. THE ASSISTANT EDUCATIONAL OFFICER,MALAPPURAM, **** (MALAPPURAM) DISTRICT, PIN-(676 504).
5. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695 001.
6. K.SUNIL KUMAR,TEACHER,S.A.V.U.P. SCHOOL,CHALAMBRA, PALLIPARAMB P.O., MALAPPURAM-673 634.
* THE NAME OF THE PETITIONER IS CORRECTED AS "SOORIYA KUMARI P." ** THE PLACE 'MALAPPURAM' AND THE PINCODE '676504' OCCURING IN THE ADDRESS OF 2ND RESPONDENT ARE DELETED AND SUBSTITUTED BY 'TIRURANGADI' AND '676 306' RESPECTIVELY *** THE PLACE 'PARAPPANANGADI' AND THE PINCODE '676504' OCCURING IN THE ADDRESS OF 3RD RESPONDENT ARE DELETED AND SUSTITUTED BY 'MALAPPURAM' AND '676505' RESPECTIVELY ...2
WP(C).No. 15854 of 2015 (F) -2- **** THE PLACE 'MALAPPURAM' OCCURING IN THE ADDRESS OF 4TH RESPONDENT IS DELETED AND SUBSTITUTED BY 'PARAPPANANGADI' THE AFORESAID CORRECTIONS ARE CARRIED OUT AS PER ORDER DATED 24.6.2015 IN I.A. NO. 7944/2015 R1-R6 BY ADV. SRI.JIJI THOMAS R1-R6 BY ADV. SRI.P.R.ASHOK KUMAR R1-R6 BY ADV. SMITHA JIJI PAMPACKAL R BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 15854 of 2015 (F) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1 : TRUE COPY OF THE APPOINTMENT ORDER DT.17-9-1982. EXT.P2 : TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE R1 DT.28-4-2015.
EXT.P3 : TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE R1 DT.5-52015.
EXT.P4 : TRUE COPY OF THE APPEAL MEMORANDUM SUBMITTED BEFORE A.E.O.PARAPPANANGADI DT.15-5-2015 RESPONDENT(S)' EXHIBITS --------------------------------------- R6(A) A COPY OF THE MINUTES OF STAFF MEETING OF THE PETITIONER'S SCHOOL DATED 19.3.2015 R6(B) COPIES OF THE RELINQUISHMENT LETTER DATED 1.5.2015 R6(C) A COPY OF THE RELINQUISHMENT LETTER DATED 1.5.2015 R6(D) A COPY OF THE RELINQUISHMENT LETTER DATED 1.5.2015 R6(E) A COPY OF THE RELINQUISHMENT LETTER DATED 1.5.2015 R6(F) A COPY OF THE RELINQUISHMENT LETTER DATED 1.5.2015 R6(G) A COPY OF THE SENIORITY LIST AS ON 1.1.2014 R6(H) A COPY OF THE LETTER DATED 28.4.2015 SEND BY THE PETITIONER R6(I) A COPY OF THE APPOINTMENT ORDER OF 6TH RESPONDENT DATED 1.6.2015 //TRUE COPY// P.A. TO JUDGE JJJ
K. VINOD CHANDRAN, J.
------------------------------------------ W.P.(C) No. 15854 of 2015 (F) ------------------------------------------ Dated this the 2nd day of December, 2015
J U D G M E N T
The petitioner is the senior most in the category of L.P.S.A.(Lower Primary School Assistant)/U.P.S.A. (Upper Primary School Assistant) in the first respondent's School, who was entitled to be posted as Headmistress, when a vacancy arose on 01.05.2015. The post of H.M. fell vacant in the School on retirement of the earlier incumbent. The Manager did not appoint the petitioner and appointed the 6th respondent, who is junior to the petitioner. Aggrieved by the same, the petitioner approached this Court.
2. The learned Government Pleader produced an order of the Assistant Educational Officer, Malapuram which reads as under :
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3. A reading of the order would indicate that there are also other teachers, who are senior to the 6th respondent and the Manager has appointed the 6th respondent, totally overlooking the seniority and the Provisions of the Kerala Education Rules, 1959(for brevity 'KER'). Rule 34(b) of Chapter XIV A of KER prescribes that there shall be a common seniority list for LPSA and UPSA, for promotion as Headmaster/Headmistress. The action of the first respondent Manager is in total violation of the provisions of the KER and in total disregard of the order issued by the Assistant Educational Officer, extracted herein above.
-44.
A counter affidavit has been filed by the Manager in which it is stated that the petitioner was unwilling to take up the responsibility of the Headmistress.
However, there is no document produced. The Manager relies on Ext.R6(a), a purported staff meeting carried on in the presence of the petitioner herein and the decision by the entire staff to select the 6th respondent as the Headmistress. There is no such provision for selection of the Headmaster/ Headmistress by holding a staff meeting.
5. The petitioner also denies any meeting having taken place and if at all, denies her presence thereat. In any event there being no such provision in the KER even her presence cannot be taken as a relinquishment. It is also to be noticed that in the case of the other
-5teachers, the manager has obtained written letters of relinquishment. The other senior teachers are said to have relinquished the post as evidenced by Exts.R6(b) to R6(f). That is no reason to find the petitioner having relinquished the higher post.
6.
The learned Government Pleader points out that though the petitioner had in fact relinquished the claim in the year 2009, that cannot operate for all time, since a relinquishment has to be made at the time when the vacancy arises, going by the Full Bench decision of this Court in Usha Thayyil v. State of Kerala - 2009
(4) KLT 1 (FB).
7.
The learned counsel would then rely on Ext.R6(h) to contend that though the vacancy arose on 1.5.2015, the communication demanding promotion,
-6was received only on 05.05.2015 and the petitioner had not gone to the school to take charge as on 1.5.2015. The said contention is only to be rejected since even according to the Manager, on 19.3.2015 a decision was taken to promote the 6th respondent to the post of Headmistress. If the Manager had an intention to appoint the petitioner, then definitely, the petitioner should have been informed of such promotion and asked to report in the school for taking charge.The 6th respondent also was appointed as in-charge Headmaster on 30.4.2015, as contended by the learned Government Pleader, looking at the records of the AEO. 8.
Considering the entire circumstances, this Court is unable to countenance the argument of the Manager. Hence the petitioner is deemed to be promoted as Headmistress on 01.05.2015, the entire
-7pay and allowances for one month shall be paid to the petitioner and the same shall be recovered from the Manager under Rule 7(4) of Chapter III of the Rules. The petitioner's promotion shall be regularised and approved and the petitioner shall be deemed to have retired as Headmistress.
The writ petition is allowed with the above direction. No costs Sd/- K.VINOD CHANDRAN, JUDGE jjj 4/12/15