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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V.KUNHIKRISHNAN, J.
Rajeswari Devi S., Wife of V.S. Rajesh – Appellant
Versus
The State Of Kerala – Respondent
W.P.(C) Nos. 7070 and 9671 of 2022
Decided on : 03-03-2023
Kerala Education Act, 1958 - Kerala Education Rules, 1959 - Rule 36 of Chapter XIV(A), 37, (2), 6 - Appointment - Not approved due to a seniority dispute - Grievance of petitioner is that her appointment as Principal is not approved due to a seniority dispute between petitioner and 5th respondent – It is to be noted that there is no clear provision in Chapter XXXII of KER about manner in which seniority is to be decided if commencement of service of two rival teachers are on same date. (Para 22)
Finding of the Court :
Jurisprudence for determining inter-se seniority of members of same service is to be followed - If date of appointment of two rival candidates are same, seniority has to be decided based on age of rival candidates - There is no clear provision in Chapter XXXII of KER about manner in which seniority is to be decided if commencement of service of two rival teachers are on same date - Rule making authority has to think about same - There is a vacuum in XXXII of KER on this aspect - Rule making authority has to decide whether Rule 37 Chapter XIV(A) KER is to be made applicable to teachers in Higher Secondary Wing in such situation or a separate set of rules is to be framed to overcome situation - W.P.(C). is to be allowed by directing Department to implement orders of appointing petitioner as the Principal.
Result: W.P dismissed.
JUDGMENT :
These two writ petitions are connected therefore, I am disposing of these writ petitions by a common judgment.
2. I will narrate the facts in W.P.(C)No.7070/2022. Exhibits in W.P.(C)No.7070/2022 is referred throughout this judgment unless specifically mentioned otherwise. This is a dispute between two rival claimants for the post of Principal in the Kandamangalam Higher Secondary School (for short, “School”), which is an aided School in terms of the Kerala Education Act and Rules. The petitioner in W.P. (C)No.7070/2022, Smt. Rajeswari Devi.S, was appointed as the Principal of the School from 29.05.2019 onwards against a retirement vacancy in the School by the 4th respondent, The Manager. The grievance of the petitioner is that her appointment as Principal from 29.05.2019 is not approved due to a seniority dispute between the petitioner and the 5th respondent herein. The 5th respondent, Smt.Sangeetha R. Nair, herein is the petitioner in W.P.(C) No.9671/2022. It is submitted that, before her regular service started, the petitioner, Smt. Rajeswari Devi.S, entered service as High School Assistant (Maths) (for short, “HSA”) from 28.06.1999 to 13.10.1999 in the High School section of the school in a short vacancy and this appointment was approved on regular scale of pay basis as evident by Ext.P1 order of the District Educational Officer, Cherthala. Thereafter, the petitioner commenced her continuous service as Higher Secondary School Teacher (Maths) (for short, “HSST”) from 03.10.2000 in the School and her appointment was approved by the 2nd respondent, the Director of General Education, as evident by Ext.P2 order. It is the further case of the petitioner that, she was appointed by the 4th respondent as the Principal-in-charge from 01.04.2019 against the vacancy that arose due to the retirement of Smt.T.Usha, on 31.03.2019 and Ext.P3 is the approval order. It is the case of the petitioner that the seniority list of Higher Secondary School Teachers of the School as on 01.07.2018 was approved provisionally by the 3rd respondent, the Regional Deputy Director of Higher Secondary Education, Alappuzha, as per the order dated 06.05.2019. Ext.P4 is the approval of the seniority list. According to the petitioner, Ext.P4 list was not circulated as provided in Rule 36 of Chapter XIV(A) of Kerala Education Rules(For short ‘KER’) and she has not signed the seniority list in acknowledgement of having seen the list. Subsequent to Ext.P4, the petitioner made a representation before the Manager and submitted the eligibility of her seniority over the 5th respondent as she was appointed first, that is, earlier than the 5th respondent and hence as per Rule 37(2) of Chapter XIV(A) of KER, she is senior to the 5th respondent. Thereafter, the Manager revised the seniority list as on 01.01.2019 assigning seniority to the petitioner over the 5th respondent and the same was submitted before the 3rd respondent, the Regional Deputy Director of Higher Secondary Education. Ext.P5 is the letter of the Manager with the provisional seniority list as on 01.01.2019. It is the further case of the petitioner that the 3rd respondent vide order dated 06.05.2019 cancelled Ext.P3 order on the ground that, as per Ext.P4 seniority list, the 5th respondent is senior to the petitioner and hence she is eligible to be promoted as the Principal. Ext.P6 is the order passed by the 3rd respondent. It is the case of the petitioner that she was appointed as the Principal from 29.05.2019 onwards against a retirement vacancy and the Manager had submitted the appointment proposals to the 3rd respondent for approving the appointment of the petitioner as Principal from 29.05.2019. Exts.P7 and P7(a) are the letter together with the appointment order of the 4th respondent Manager appointing the petitioner as the Principal. Aggrieved by Ext.P7(a) appointment order of the petitio
As per Rule 37 of Chapter XIV(A) of KER seniority of a teacher in any grade/in any unit shall be decided with reference to length of continuous service in that grade/in that unit provided he is duly ....
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Point of Law : Rule 8 of Chapter XIVA KER which deals with procedure with respect to approval of appointments.
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The appointment of a Principal in Higher Secondary Schools under Chapter XXXII KER depends on existing subject availability and qualification, not solely on seniority.
Amendment to seniority rules does not retroactively affect previously approved appointments, reinforcing the principle that seniority is determined by first appointment date.
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financial Liability to the State is not a reigning consideration while interpreting statutory rules and notifications.
Rule 44 reads as appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared.
The court affirmed teachers over 50 years are exempt from qualification tests, ruling the denial of a qualified candidate's appointment as Headmaster was illegal and mandated payment of owed salary a....
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