Abraham vs Director of Public Instructions

Hon''ble Mrs. Justice D. Sreedevi

The petitioner retired from service on 31.3.1995 while working as Head Master in V.V.M. Govt. L.P. School, Vengai. He commenced his service as P.D. teacher on 22.7.1962. He was selected and appointed as High School Assistant in January, 1972. But, according to him, his lien is retained in the cadre of P.D. teacher. Seniority list of P.D. teachers in Kollam district was published and the petitioner was ranked 3997. Based on the seniority in the list of P.D. teachers, the second respondent issued order dated 3.4.1990 promoting the petitioner as Head Master of Primary School. But, the order was never implemented. So, he filed a representation for implementation of the order on which Exhibit PI order was passed. Based on Ext.Pl,,2nd respondent issued Exibit P3. Later first respondent issued a notice directing the petitioner to attend for a hearing in a proceeding to cancel Exhibit PI under Exhibit P3. Petitioner submitted Exhibit P4 writtern representation, stating that his lien is retained as P.D. teacher and his entitlement for promotion is based on the provisions of Rule 8 of Kerala State and Subordinate Services Rules. Just two days prior to the date of his retirement, Ext. P5 order was issued reverting him from the post of Head Master V.V.M. Oovt. L.P. School and posting as High School Assistant. Aggrieved by the said order, this Original Petition has been filed for quashing Ext. P5 and not to give effect to the review of pay fixation order in Exhibit P5. First respondent filed a counter, contending that the petitioner has become an High School Assistant after relinquishing all rights as P.D. teacher. Therefore the petitioner cannot claim seniority in the cadre of P.D. teachers. Since the petitioner got selection as High School Assistant at his volition and risk and that too forfeiting all rights in the cadre of P.D. teacher, he cannot claim seniority in the cadre of P.D. teacher. As the petitioner got appointed as High School Assistant through Public Service Commission, his promotion was found erroneous and hence Exhibit P5 order was issued cancelling his promotion as Head Master.

Petitioner filed a reply affidavit, stating that he has informed the Department by Exibit P8 that he was appointed as H.S.A. by Public Service Commission on 17.1.1972. That was acknowledged by the Deputy Director of Education, Kollam. On selecton, he was ordered to be relieved as per order dated 11.1.1972. Last Pay Certificates issued by District Educational Officer and Assistant Educational Officer are produced as Exhibits P7 and P7 (a).

3 Admittedly the petitioner was working as P.D. Teacher. He was selected by the Public Service Commission as High School Assistant in January, 1972. According to the petitioner, he has retained his lien on the basis of Rule 8 of K.S. & S.S.R. Seniority list of P.D. teachers of the Kollam district was published, wherein his rank is shown as 3997. Based on the seniority in the seniority list of P.D. teacher, second respondent issued order promoting the petitioner as Head Master of Primary School. But as the same was not implemented, the petitioner filed Original Petition 2717/1994 and the same was disposed of directing the first respondent to consider and pass orders according to law. Accordingly, Exhibit P1 was passed. First respondent directed second respondent to give promotion as Head Master. Accordingly, Exhibit P2 was issued; but later the said order was cancelled by Exhibit P5. The petitioner has challenged this order on various grounds. The learned counsel for the petitioner submitted that the petitioner is entitled to continue in the seniority list as his lien is not cut off. It is submitted by the Government Pleader that as the petitioner was appointed as High School Assistant by the Public Service Commission, he is not entitled to promotion as Primary School Head Master. It is submitted that as this aspect was overlooked by the authorities and as the order granting promotion is in violation of Rule 8 of K.S. & S.S.R., the same was cancelled. On getting selected by Public Service Commission, the petitioner has not submitted his resignation; but he was relieved of his duties as P.D. teacher on 11.1.1972 as seen in Exhibit P3. The petitioner completed his probation in the cadre of P.D. teacher as provided under Rule 24 Part II K.S. & S.S.R. and acquired permanent lien. As per Rule 17 Chapter II, Part I K.S.R., the Government Officer holding substantively permanent post, retains a lien on that post unless his lien is suspended under Rule 18 or transferred under Rule 20. As per Rule 18, the Government shall suspend the lien of an officer on a permanent post which he holds substantively, if he is appointed in substantive capacity to a permanent post outside the cadre on which he is borne. As per Rule 19(a), an officer''s lien on a post in no circumstance be terminated even with his consent if the result will, be to leave him without a lien or suspended lien upon a permanent post. The petitioner was first appointed to a permanent post in the cadre of P.D. teacher. He completed probation and became a full member in the cadre of P.D. teacher and was subsequently relieved of his duties to join duty as High School Assistant as selected by Public Service Commission. High School Assistant is a post borne outside the cadre of PD. teacher. Petitioner was never regularised or confirmed in the cadre of High School Assistant. His name was retained in the seniority list of P.D. teachers and was finally promoted as Head Master. As he has not resigned from the post of P.D. teacher, he retains his lien in the cadre of P.D. teacher and maintains the seniority amongst the P.D. teachers and, accordingly, obtained promotion as per Exhibit P1. Therefore, the order cancelling his promotion is illegal and hence liable to be quashed.

In the result, the Original Petition is allowed and Exhibit P5 is quashed and it is ordered that the respondents shall not give effect to the review of pay fixation.ordered in Exhibit P5.