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B.Retnamma vs State Of Kerala on 24 June, 2009

Kerala High Court
B.Retnamma vs State Of Kerala on 24 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 12830 of 2009(W)


1. B.RETNAMMA, AGED 53 YEARS,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

2. THE DEPUTY DIRECTOR OF EDUCATION,

3. THE DISTRICT EDUCATIONAL OFFICER,

4. THE MANAGER,

5. SRI.P.R.MADANAN,

                For Petitioner  :SRI.P.GOPINATH

                For Respondent  :SRI.V.A.MUHAMMED

The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :24/06/2009

 O R D E R
                     T.R. Ramachandran Nair, J.
                  - - - - - - - - - - - - - - - - - - - - - - - -
                    W.P.(C) No.12830 of 2009-W
                  - - - - -- - - - - - - - - - - - - - - - - - - - -
                Dated this the 24th day of June, 2009.

                                JUDGMENT

The petitioner is aggrieved by Ext.P6 order passed by the District

Educational Officer whereby the seniority list in respect of the school was

finalized and going by the said seniority list, the 5th respondent is shown as

senior in the post of H.S.A. The petitioner had been working as High

School Assistant (Physical Science) in the school from 31.7.1979 onwards.

The petitioner remained as a protected teacher during the period from

1.12.1988 to 29.1.2004. In Ext.P6 the view taken by the District

Educational Officer is that the service rendered by the petitioner consequent

on the reduction of post cannot be reckoned for seniority, as per Rule 37 (i)

of Chapter XIV-A K.E.R., as seniority has to be reckoned with reference to

the length of continuous service in the particular unit.

2. The Headmaster of the school retired from service on 31.3.2009

and the 5th respondent was given charge as Headmaster. That was objected

to by the petitioner by filing Ext.P3 and in the meanwhile, the District

Educational Officer conducted a hearing on the finalisation of the seniority

list. Ext.P5 is the argument note submitted by the petitioner before the

wpc 12830/2009 2

District Educational Officer.

3. It is mainly contended by the learned counsel for the petitioner that

the 5th respondent, at this distance of time, cannot challenge her seniority in

the light of the sit back theory which is a well accepted one. Reliance is

placed on Ext.P8 judgment of a Division Bench of this court. Learned

counsel for the respondents relied upon the decision of a Division Bench of

this court in Aleyamma v. Kunjammal Jacob (2007 (1) KLT 1049) to

contend for the position that the period under which the petitioner remained

as a protected teacher, cannot be counted for the purpose of seniority.

4. Going by the proceedings issued by the District Educational

Officer it does not appear that the question as now posed by the petitioner

was raised in the proper form. Learned counsel for the petitioner submitted

that in Ext.P2 mention has been made about the fact that the petitioner was

treated as senior in the seniority lists of previous years. The District

Educational Officer cannot be faulted for not considering the present

contention, in these circumstances. The seniority position has been settled

clearly in the light of the power conferred under Rule 38 of Chapter XIV-A

K.E.R. It is submitted by the learned counsel appearing for the respondents

that in the light of the clear exposition of law rendered by the Division

wpc 12830/2009 3

Bench in Aleyamma’s case (2007 (1) KLT 1049), the petitioner is not

entitled to get seniority. It is also pointed out that the seniority lists are

being published every year and therefore the petitioner is not entitled to

object to the assignment of seniority and the sit back theory will not apply in

such a case.

5. Be that as it may, since the petitioner has got a remedy to

challenge the said order in appeal before the Deputy Director of Education

as is clear from Rule 38 itself, if the petitioner files an appeal within a

period of three weeks from today, the same will be considered and

appropriate orders will be passed in accordance with law, by the Deputy

Director of Education after hearing the petitioner and respondents 4 and 5,

within a further period of two months.

6. It is pointed out by the learned counsel appearing for the 5th

respondent that in the light of the pendency of the writ petition, the

appointment of the 5th respondent as Headmaster has not been approved so

far and presently the approval is restricted as teacher in charge. It is

therefore submitted that the 5th respondent is not getting salary that is

admissible to the post of Headmaster. The third respondent is free to pass

appropriate orders regarding the grant of approval of the appointment of

Headmaster. Any approval granted will be subject to further orders to be

wpc 12830/2009 4

passed in the appeal.

The writ petition is disposed of as above. No costs.

(T.R. Ramachandran Nair, Judge.)

kav/

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