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2009 DIGILAW 783 (KER)

V. K. M. Pavithran v. The State of Kerala

2009-08-19

K.BALAKRISHNAN NAIR, P.S.GOPINATHAN, V.GIRI

body2009
Judgment :- Balakrishnan Nair, J. The appellant is the writ petitioner. The dispute raised before the learned Single Judge for resolution was concerning the seniority of the appellant and the 6th respondent in the cadre of Assistant Teacher. Both of them are Lower Primary School Assistants working in M.L.P. School, Peringathur, Chokli. Both of them have continuous qualified service in the school with effect from 1.6.1982. Both of them have unqualified, but approved spells of service before the said date. If unqualified service is also reckoned, the 6th respondent is senior. If the continuous qualified service alone is taken into account, the appellant, being senior in age, will be senior. When the seniority list of the school was provisionally approved by the Assistant Educational Officer, the appellant was placed above the 6th respondent. So, the 6th respondent moved the Assistant Educational Officer objecting to the said seniority position. But, the same was rejected by Ext.P2 order dated 21.7.2006. Though, against that order, the 6th respondent filed an appeal before the District Educational Officer, the same was rejected on the ground of delay in preferring it. Thereafter, the 6th respondent did not take any steps to challenge the seniority assigned to the appellant. 2. A vacancy in the post of Headmaster arose on 1.10.2005 and the appellant was appointed in that post. In the meantime, the 6th respondent preferred a representation before the Assistant Educational Officer on 25.7.2005 requesting that he should be treated as senior to the appellant. The said application was rejected by the Assistant Educational Officer by making an endorsement on it to the effect that the seniority position has already been settled by him earlier. A copy of the representation along with the endorsement is produced as Annexure-II. The 6th respondent then preferred Annexure-III revision before the Government against the endorsement made by the Assistant Educational Officer in his representation. The Government, after hearing both sides, took the view that the 6th respondent should be treated as senior to the appellant by Ext.P2 order. Challenging the same, W.P. (C) No.24490 of 2006 was filed by the appellant. The learned Single Judge dismissed the Writ Petition. Hence this appeal. 3. The appellant mainly relied on the fact that the 6th respondent was guilty of delay and laches. Challenging the same, W.P. (C) No.24490 of 2006 was filed by the appellant. The learned Single Judge dismissed the Writ Petition. Hence this appeal. 3. The appellant mainly relied on the fact that the 6th respondent was guilty of delay and laches. Since, he has already suffered Exts.P2 and P3 orders, he cannot now demur, when the appellant was promoted as Headmaster on the strength of the settled seniority position, it is submitted. In support of that submission, learned counsel for the appellant relied on the decision of a Division Bench of this Court in Usha Devi v. State of Kerala (2002(I) K.L.T. 615). It was a case where a protected teacher, on her reappointment in the parent school was granted seniority from the date of her original appointment. Such grant of seniority was contrary to law. Still, this Court declined to interfere with the same for the reason that the said incumbent was enjoying the seniority position for quite sometime. The appellant, in this case, would point out that even assuming that the 6th respondent was entitled to get seniority by virtue of his longer approved and unqualified service, he cannot now raise that claim in view of Exts.P2 and P3. 4. The 6th respondent, on the other hand, would rely on Ext.R6(a) judgment in W.A. No.423 of 1989 dated 23.5.1989 in Devaki Amma v. State of Kerala (1989 (2) K.L.J. 256). That was a case where the seniority of the appellant in that case had become final long ago, in the absence of any challenge to it by the 6th respondent. But the Division Bench held that the application of seniority arises only when the question of promotion to the post of Headmaster arises and, therefore, even in the absence of any challenge earlier, the appellant can raise it when her turn arises for promotion as Headmistress. 5. Concerning the very same point, there are two conflicting Division Bench decisions. The Division Bench in Devaki Amma's Case ignores the delay and supports the claim of the incumbent who has got a legally valid claim for seniority. On the other hand, in Usha Devi's Case, the Division Bench held that even if the claim of seniority is legally valid, unless the same is raised within a reasonable time limit, such claim cannot be upheld. On the other hand, in Usha Devi's Case, the Division Bench held that even if the claim of seniority is legally valid, unless the same is raised within a reasonable time limit, such claim cannot be upheld. We feel that to resolve the apparently conflicting views in the above decisions, an authoritative pronouncement by the Full Bench is necessary. 6. Accordingly, we refer this appeal to be heard by a Full Bench. The Registry may place the papers before the Honourable Chief Justice for appropriate orders. The 6th respondent pointed out that there is an interim stay in this case which enables the appellant to continue as Headmaster. The 6th respondent may move the Honourable Chief Justice for early hearing of the matter. Since, the interim order was there for more than two years, we think it is not proper for us to consider vacating the same now. The reference order in W.A. No.327 of 2007 will govern this appeal also.