Vijayamma v. State of Kerala — 1998 DIGILAW 119 (KER)

Judgment :- A.R. Lakshmanan, J. The above Writ Petition has been filed to quash the proceedings under Exts. P3, P4 and the order of the second respondent approving the appointment of the 5th respondent as Headmaster and for a direction directing the respondents 1 to 3 to consider the claim of the petitioner for seniority over respondent 5 and for appointment as Headmaster. The petitioner was working as High School Assistant in Mahatma High School for Girls under the management of the 3rd respondent. According to the petitioner she was fully qualified and was having training qualification with effect from 18.6.1962. When the petitioner made a representation before the 3rd respondent District Educational Officer on 30.6.1989 requesting to appoint the petitioner to the post' of Headmaster cancelling the appointment of the 5th respondent, the representation was not properly responded to. The petitioner came to know that the third respondent approved the appointment of the 5th respondent by order No. D.D is. 4696/89 dated 27.5.1989 as Headmaster during the last week of June, 1989. Thereupon, the petitioner filed an appeal on 4.8.1989 before the second respondent Deputy Director of Education which was rejected by the second respondent on 29.6.1990 under Ext. P3. In the meanwhile, the 4th respondent appointed the 6th respondent to the post of Headmaster on 1.4.1990 again overlooking the claim of the petitioner. The petitioner's revision before the Government filed on 17.7.1990 under Ext. P4 was also rejected. In passing Exts. P3 and P5, the Deputy Director of Education and the Government have placed reliance on the fact that the date of first appointment can be decided with reference to appointment as unqualified teacher. According to the petitioner the impugned orders, Ext. P3 and P5 are wrong and illegal and are liable to be quashed. The petitioner relies on R.37 of Chapter XIV-A of the Kerala Education Rules (for short 'the rules') as it stood on the date providing that seniority of a teacher in any grade in any unit shall be decided with reference to the date of first appointment in that grade in that unit, provided he is duly qualified for that post. According to the petitioner, she, being the eldest, has to be considered the senior most amongst the three (petitioner and respondents 5 and 6). According to the petitioner, she, being the eldest, has to be considered the senior most amongst the three (petitioner and respondents 5 and 6). The date of birth of the petitioner is 4.11.1936, that of the 5th respondent is 8.12.1938 and that of the 6th respondent is 6.4.1940. However, Ext. P3 proceeded on the basis that respondents 5 and 6 have earlier dates of first appointment as unqualified teachers and hence they are seniors applying R.37(2) of Chapter XIV-A of the Rules. It is submitted by learned counsel for the petitioner that R.37(1) as it stood before the amendment on 28.8.1962 as well as R.37(2), the teachers, whose seniority is so be decided should have been working in the same grade in the same unit and, therefore, periods of their service as unqualified teachers cannot be taken into account at all. It Is submitted that the words "date of appointment" in R.37(2), if at all R.37(2) is to be applied, can have reference only to the service in the same grade by all the teachers whose inter se seniority is being considered. It is submitted that the seniority list prepared in 1973 was not in accordance with either R.35 or 37 of Chapter XIV-A of the Rules and cannot estop the petitioner from claiming seniority legitimately due to him. 2. I have perused Exts. P1 to P5 and the counter affidavit filed by the State and respondents 5 and 6 and the reply affidavit filed by the petitioner and heard the arguments of respective counsel. 3. In this case, one Chandran Pillai was promoted as Headmaster of M.H.S. for Boys, Chennithala from 12.4.1988 and his appointment was approved by the Government as he was the senior most claimant according to the seniority list and as nobody raised complaint against the promotion. He retired on 31.2.1990. He was senior to the petitioner in age and also in service. His continuous service (untrained) commenced from 15.7.1961. The petitioner also did not challenge the seniority of Chandran Pillai. Sri. A. Balakrishna Pillai, the 5th respondent, was promoted as Headmaster of Mahatma High School for Girls, Chennithala from 1.4.1989. His appointment was approved as per order No. D. Dis. B6/4695/89 dated 27.5.1989 of the District Educational Officer, Mavelikkara. Petitioner herein had not submitted any objection against the appointment before 27.5.1989. However, the complaint submitted by the petitioner under Ext. Sri. A. Balakrishna Pillai, the 5th respondent, was promoted as Headmaster of Mahatma High School for Girls, Chennithala from 1.4.1989. His appointment was approved as per order No. D. Dis. B6/4695/89 dated 27.5.1989 of the District Educational Officer, Mavelikkara. Petitioner herein had not submitted any objection against the appointment before 27.5.1989. However, the complaint submitted by the petitioner under Ext. P1, though dated 30.6.1989, was received by the District Educational Officer on 5.7.1989 and by that time the promotion of the 5th respondent had been approved on 27.5.1989. The petitioner's appeal under Ext. P2 before the 2nd respondent requesting to cancel the appointment by promotion of Sri. A. Balakrishna Pillai, the 5th respondent, was also rejected. 4. I have perused R.37(1) Chapter XIV-A of the rules wherein it is clearly stated that the service should be qualified and hence the meaning of appointment in R.37(2) of Chapter XIV-A of the rules must have been approved qualified appointment. Hence, the petitioner argues that the under qualified service cannot be reckoned for seniority. However, it was argued on behalf of the others that they are seniors to the petitioner herein since they have got untrained prior service than the petitioner. They produced a copy of the judgment in O.P. No. 8970 of 1988 of this Court and order No. K. Dis. 67154/DPI. dated 12.1.1990 in support of their argument that the appointment referred to in R.37(2) includes untrained appointment also. "6. In this context, it is useful to note the service details of the petitioner and the 5th respondent. A. Balakrishna Pillai P.L. Vijayamma Date of Birth 8.12.1938 4.11.1936 Date of commencement of untrained service 13.9.1960 to 26.6.1961 30.3.61 "to 2.8.1961 Date of commencement of qualified continuous service 18.6.62 18.6.62 5. R.37(1) of Chapter XTV-A of the Rules provides .that seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post. Sub-r.(3) says that in the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment and if the date of first appointment is also the same, seniority shall be decided with reference to age, the elder being the senior. In this case, the date of commencement of qualified service of the petitioner and the 5th respondent is the same. Sri. A. Balakrishna Pillai, the 5th respondent herein, is senior among them under R.37(1) and (2) of Chapter XIV-A of the Rules. Hence Ext. P3 is rightly issued. The 6th respondent P.K. Annamma was promoted and appointed as Headmistress, M.H.S. for Boys. Chennithala from 1.4.1990. The petitioner filed a revision petition before the Government on 17.7.1990 under Ext. P4. The Government after considering all the relevant records and after hearing the parties, rejected the revision petition of the petitioner under Ext. P5. After receipt of the Government order, Ext. P5, the appointment of Annamma as Headmistress was approved by the District Educational Officer, Mavelikkara by order No. K. Dis. B6-5364/90 dated 17.7.1991. The service details of the petitioner and respondents 5 and 6 are as follows: Smt. P.L. Vijayamma, the Petitioner: Date of Birth Commencement of continuous service as fully qualified H.S. A. 4.11.1936 18.6.1962 2. Sri. A. Balakrishna Pillai, Respondent No. 5 Date of Birth - 8.12.1938 High School Assistant (Untrained) - 13.9.1960 to 30.3,1961 & 26.6.1961 to 2.8.1961 B. Ed. Course - 3.8.1961 to 27.3.1962 High School Assistant (Untrained) High School Assistant (Fully Qualified) - 4.6.1962 to 17.6.1962 3. P.K. Annamma, Respondent No. 6. Date of Birth - 6.4.1940 High School Assistant (Untrained) - 16.9.1960 to 30.3.1961 B.Ed. Course - 18.7.1961 to 18.4.1962 High School Assistant (Untrained) - 4.6.1962 to 17.6.1962 High School Assistant (Fully Qualified) - 18.6.1992 onwards According to R.37 of Chapter XIV-A of the Rules, as it stood earlier, seniority of a teacher in any grade in any unit shall be decided with reference to the date of first appointment in that grade in that unit provided he is qualified for the post. If the two persons have the same date of appointment, seniority will be given to the older in age. This rule was subsequently amended by the Government. The petitioner in this case claim seniority above respondents 5 and 6 for the reason that she is older in age. This stand cannot be accepted. As per R.37(1) Chapter XIV-A of the Rules seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified, for the post. This stand cannot be accepted. As per R.37(1) Chapter XIV-A of the Rules seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified, for the post. In the case of teachers, in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. If the date of appointment is also the same, seniority shall be decided with reference to age, the older being the senior. 6. In this case, the -petitioner had no service before 18.6.1962, whereas respondents 5 and 6 have prior approved service, and, as such, they are seniors to the petitioner. Learned counsel for the petitioner contended that the petitioner is entitled to seniority over respondents 5 and 6 in view of the judgment of this Court in O.P. No. 5079 of 1974 dated 11.9.1975, conveniently for getting the judgments in Writ Appeal 376 of 1988 and O.P. No. 8970 of 1988-P. The applicability of these judgments have been discussed by the Government and Ext. P3 order issued on the basis of R.37(1) and (2) of Chapter XIV-A of the rules. 7. We have already noticed, the details of service of the three teachers which are extracted above. Though the teachers commenced service prior to 28.8.1962, the seniority list came up for consideration and approval only in 1973. As such, the list was to be examined and decided based on the orders then in force. Of the two persons, one with prior approved service as untrained teacher and the other without any prior approved service was considered for appointment against the vacancy, the person having prior approved service will have preference as per R.5 Chapter XIV-A of the rules. The three teachers, the petitioner and respondents 5 and 6 were to be appointed on 18.6.1962. The first respondent came first by virtue of his first appointment from 13.9.1960, and Smt. Annamma, the 6th respondent came 2nd by virtue of her prior approved service from 16.9.1960 because of the implication of R.5 of Chapter XIV-A of the Rules. The three teachers, the petitioner and respondents 5 and 6 were to be appointed on 18.6.1962. The first respondent came first by virtue of his first appointment from 13.9.1960, and Smt. Annamma, the 6th respondent came 2nd by virtue of her prior approved service from 16.9.1960 because of the implication of R.5 of Chapter XIV-A of the Rules. Thus, though the three teachers started fully qualified service from the same date, R.5 makes the first two teachers better claimants for the post and this confers them relative seniority also. In the Judgment in O.P. 8970 of 1988-P the position has been illustrated explicitly. In this case also the petitioner commenced service prior to 28.8.1962. The judgment dated 6.4.1989 overrules the judgment dated 11.9.1975. Seniority list of the staff of the schools under the management was finally approved in 1973. In this list also the petitioner was junior to Sri. A. Balakrishna Pillai and Smt. Annamma. She had not raised any objections against her ranking in the list till 30.6.1989. Her objection, as already noticed, was rejected by the Government. As such the first appointment, even if untrained, has not to be considered for seniority under R.37(2) of Chapter XIV-A of the Rules. The judgment in O.P.No. 8970 of 1988 also has taken this view. Thus, it is seen that the seniority list was finally approved in 1973 after completing all the requisites of the rules. Therefore, I am of the view that the petitioner has no right to question it after a period of more than 15 years. 8. I have also perused the counter affidavit of respondents 5 and 6. They have clearly repudiated the contentions of the petitioner in all aspects Of the matter. As rightly pointed out in their counter affidavit, the date of commencement of qualified continuous service of she petitioner and respondents 5 and 6 being the same, their inter se seniority has to be determined with reference to the date of first respondent as provided in sub-r.(2) of R.37 of Chapter XIV-A of the Rules. In this case, the date of first appointment of respondents 5 and 6 being earlier than that of the petitioner, they are entitled to seniority over the petitioner. 9.It is represented at the time of hearing that both the petitioner and the contesting respondents have retired from service on superannuation. 10. In this case, the date of first appointment of respondents 5 and 6 being earlier than that of the petitioner, they are entitled to seniority over the petitioner. 9.It is represented at the time of hearing that both the petitioner and the contesting respondents have retired from service on superannuation. 10. For all the foregoing reasons, I am of the view that there is no merit in the Original Petition and the same is, therefore, liable to be dismissed. The Original Petition; therefore, fails and is hereby dismissed. There will be no order as to costs.