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.)