Sreerekha R vs State Of Kerala

Mohammed Nias C.P., J

The petitioner, a teacher, commenced her continuous service as HST (English) from 13.07.2007 onwards in S.N.M.Higher Secondary School Purakkad, Alappuzha district, an aided School under the 5th respondent management. Her appointment was approved as per Ext. P1 dated 13/7/2007. She passed the departmental test in the K.E. Act and the Rules and Account Test (Lower) in July 2020, which is evidenced by Ext.P2. The certificate issued by the Public Service Commission showing that the petitioner has passed the test in the K.E.Act and Rules is produced as Ext.P3. She contends that she has more than 12 years of continuous graduate service and also a pass in the test in the K.E.Act and Rules and also a pass in the Account Test (Lower) therefore, she is fully qualified to be promoted as Headmistress on 1.6.2021 when the vacancy arose as per rule 44-A (1) of chapter 14 of K.E.R. The true copy of the approved seniority list of the school as of 01.01.2021 issued by the D.E.O., Alappuzha, is produced and marked as Ext.P4. The petitioner contends that when the regular vacancy of Headmistress arose on 01.06.2021 due to the retirement of then Headmistress Smt. Ambili, the petitioner was the senior-most and the fully qualified to be promoted as Headmistress. The petitioner had requested the Manager on 24.5.2021 to grant her promotion as Headmistress. However, the Manager did not consider the request of the petitioner and appointed one Ushas S. as Headmistress, who did not have the test qualification according to the petitioner. Being aggrieved, the petitioner moved the D.E.O., Alappuzha, vide her appeal dated 02.06.2021 and also to request the Manager to appoint her as the Headmistress by cancelling the promotion granted to the 6th respondent Ushas S. The D.E.O., Alappuzha, vide order dated 12.9.2021, declined the approval to the appointment of Ushas S. and held that the petitioner is the person to be appointed and considered for promotion, as she is test qualified and as per G.O(MS) No.157/2015/G.Edn. Dated 10.06.2015. The said order is marked as Ext.P5. The Manager had preferred an appeal against the order of the D.E.O. before the D.D.E., Alappuzha, which was also rejected as per Ext.P6 order dated 26.3.2022. The revision preferred by the Manager before the D.D.E. also rejected the D.G.E. by directing the Manager to appoint the petitioner as Headmistress from 01.06.2021. A true copy of the said order is produced as Ext.P7. The Manager had also preferred a revision against Ext. P7 before the Government, which was also rejected by Ext. P8 order dated 08.9.2023. Alleging that the Manager has not implemented Ext.P8 order, the teacher has preferred W.P(C) No.30636/2023.

W.P(C) No.30925/2023 is filed by the Manager and the teachers who were promoted as Headmistress, challenging the appointment of the petitioner herein, mainly on two grounds. One is that she did not have 12 years’ continuous service and that she did not commence her service on 30.6.2007 as contended by the petitioner and that the revised seniority list issued by the Manager shows that the petitioner commenced her regular service only in the year 2012.

The learned counsel for the petitioner in 30925/2023, Sri. M. K. Pradeep Kumar, arguing based on the seniority so assigned after the dispute started, submitted that the petitioner did not have 12 years of continuous service. He also relied on the judgment of this Court in Rajamma P.R. v. Manager, St.George High School and others [2012(3) KHC 27] to hold that only 12 years of her service after being regularly appointed can be considered within the meaning of Rule 44-A of Chapter 14A of K.E.R. The learned counsel for the teacher in W.P(C) No.30636/2023 argued that all the authorities had consistently and concurrently found the claim of the petitioner, and there is no justification for the Manager not to implement the said order.

I have heard both sides, and also Smt. K.G. Sarojini, the learned Government Pleader. The Government has also filed a counter affidavit supporting the pleadings of the teacher, the petitioner, in W.P(C) No.30636/2023. The learned counsel for the petitioner in W.P(C) No.30636/2023 argued that, in the instant case, the petitioner being the only test-qualified teacher, there cannot be any doubt about her claim and the claim of the other petitioners in the writ petition preferred by the Manager cannot be accepted at all.

Having considered the rival submissions, two aspects cannot be disputed by any side. The only dispute as against the teacher, the petitioner in W.P(C) No.30636/2023 raised by the Manager, is that she did not have 12 years of continuous graduate service as that of the 5th respondent as on the date of occurrence of vacancy. The Manager contends that the petitioner has commenced her service as H.S.A. against a leave vacancy with effect from 13.07.2007 and that she was appointed against a regular vacancy only with effect from 01.6.2012 and therefore, her service can be counted only from 01.6.2012. This is opposed by the learned counsel for the teacher submitting that she was appointed against a leave vacancy with effect from 13.7.2007 and continued without any break till the regular appointment on 01.6.2012. He also argues that the seniority list as on the date of the vacancy, as on 01.01.2019, 01.01.2020 and 01.01.2021, as evidenced by Exts.R5(d), R5(e) and R5(f) in W.P(C) No. 30925/2023 clearly showed her seniority. As against the judgment cited by the learned counsel for the Manager, Rajamma (supra), the learned counsel submits that it was a case where the petitioner had a broken service period that could not be reckoned for continuous graduate service. Rule 44-A does not use the word continuous service means all services rendered on being appointed as a graduate teacher on a regular basis. The word ‘regular’ is absent in Rule 44-A. In other words, a broken period of service rendered in the same school or in any other school in a leave vacancy or otherwise as a graduate teacher cannot be clubbed with regular service to make it part of continuous service to consider minimum service of 12 years as a qualification in the appointment of Headmaster. In the judgment in Rajamma (supra), the facts would reveal that the teacher therein had broken periods of service, and her request was to consider the same to tag along with the continuous service, which this Court found cannot be done. In so far as the rule does not use the word ‘regular’ in Rule 44-A, it cannot be imported into the statute. The judgment in Rajamma (supra) cannot be understood as one which holds that 12 years of continuous graduate service must be after a regular appointment. The educational authorities have correctly understood the said judgment, and there cannot be any fault in their reasoning.

The learned counsel for the Manager argues that the revised seniority list would show that the petitioner commenced continuous service only in the year 2012. It is to be noted that the said seniority list relied on by the Manager was one prepared after the dispute started and is not an approved seniority list within the meaning of K.E.Act and Rules. Under such circumstances, I am not inclined to accept the contention of the Manager.

True, as the Manager submits, the teachers who are appointed as Headmistresses are far senior to the petitioner. However, the Rule as it is, their claims cannot be considered as the petitioner was the only test-qualified candidate as on the date of occurrence of vacancy.

Under such circumstances, I am inclined to allow W.P(C) No.30636/2023. There will be a direction to the educational authorities to implement the Ext. P8 forthwith. W.P(C) No.30925/2023, in so far as it impugns Ext.P8, will stand dismissed.