Pushpavathy Devi K. vs State of Kerala and Others

K. Vinod Chandran, J.—1. The petitioner is aggrieved with the denial of promotion as Head Mistress (HM) despite the petitioner being

senior. The incumbency details of the petitioner and the respondents are to be noticed. The petitioner was appointed as UPSA in the 3rd

respondent''s school on 01.08.1984 and promoted as per Ext. P1 on 15.07.1986, from which date the petitioner has been continuing as H.S.A.

(Physical Science). The 4th respondent was also appointed as H.S.A. (Maths) by Ext. P2, with approval from 15.07.1986. The appointment is

said to be from 02.06.1986 but the approval is from 15.07.1986, which was left unchallenged for a long period.

The dispute is with respect to the post of Head Mistress/Head Master (HM) which arose on 01.04.2015. Both the petitioner and the 4th

respondent being appointed on the same day as per Rule 37(2) of the Kerala Education Rules, the date of first appointment has to be first looked

at and that too being same; then the age of the incumbents have to be looked at to decide the seniority. The petitioner is admittedly older than the

4th respondent. The petitioner also contends that even going by Rule 37(2) the petitioner''s appointment as UPSA from 01.08.1984, being the first

appointment, is long prior to that of the 4th respondent''s appointment as H.S.A.

The learned Counsel for the respondent Manager has two contentions. One that the 4th respondent in fact was appointed on 02.06.1986 as per

Ext. P2 and this was to a regular vacancy which was continued thereafter and in such circumstance the 4th respondent is entitled to seniority above

the petitioner since in the same cadre the 4th respondent has the seniority. The argument is that, application of Rule 37(2) would occur only in

circumstances where the appointment is to the same cadre, on the very same date. The next contention is that the Government has, by the

impugned order considered the implication of the Right of Children to Free and Compulsory Education Act, 2009 and the rules framed thereunder

by the State in G.O.(P) 100/2011/G1 Edn. Dt. 30.04.2011 being the Right of Children to Free and Compulsory Education Act, 2009. Rule 18 is

specifically referred, to contend that the 4th respondent has the qualification in the Departmental test and test in Kerala Education Act and Rules

which gives an edge., insofar as the consideration to the post of H.M. The learned counsel for the 4th respondent submits that a revision is pending

as against Ext. P2 order, seeking approval from 02.06.1986 itself.

The submission made based on Rule 18 of the RTE Act is no more valid since a learned Single Judge of this Court has considered the issue in

W.P.(C) No. 14971/2014 by judgment dated 24.06.2014, to hold that as long as the qualification is not prescribed by way of a notification there

can be no rejection of seniority on the ground of absence of test qualification. The decision has also been approved by the Division Bench in

judgment dated 25.06.2015 in W.A. No. 1900/2014.

The further contention is with respect to the appointment from 02.06.1986 of the 4th respondent. Admittedly the approval is only from

15.07.1986. On a specific query as to when the revision was filed, the learned counsel for the 4th respondent would concede that the revision is

filed in the year 2015. Obviously, the revision was intended to defeat the claim of the petitioner herein. The approval as per Ext. P2 was granted

some time in February, 1987 as is evident from Ext. P2. Neither the Manager nor the teacher challenged the same in the last about 19 years. The

seniority of the petitioner hence cannot be upset by reason of any orders passed in the revision even if the approval of the 4th respondent is

permitted from 02.06.1986 onwards. Seniority is an incidence of service which has to have a certain amount of certainty at least with passage of

time as has been held by the Hon''ble Supreme Court in Shiba Shankar Mohapatra v. State of Orissa (, 2010 (12) SCC 471). Hence applying the

sit back theory it is declared that the petitioner''s seniority as on 15.07.1986, by virtue of her first appointment, as against the 4th respondent

would remain undisturbed. Both the petitioner and the 4th respondent have been granted approval of appointment on the same day. The petitioner

hence is entitled to be appointed as H.M. above the 4th respondent. Such appointment shall also be from 01.04.2015 onwards. The petitioner

shall be entitled to the entire benefits of pay and allowances due to the Headmaster/Headmistress from 01.04.2015 onwards.

In the circumstance of the Manager having kept out the petitioner illegally from such appointment the pay and allowances, though paid by the

Government till the date of appointment as HM would be recovered from the Manager, by virtue of Rule 7 of Chapter III KER.

Writ petition would stand allowed. No costs.