BINDU V.S v. STATE OF KERALA

SRI. PREMCHAND R. NAIR, SR.GOVT. PLEADER BY ADV BABU CHERUKARA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 16.01.2024, THE COURT ON 19.01.2024 DELIVERED THE FOLLOWING: W.P(C) No. 31031/23 3 MOHAMMED NIAS C.P., J. ............................................................ W.P(C) No.31031 of 2023 ............................................................. Dated this the 19th day of January, 2024 JUDGMENT The petitioner was appointed as a Junior Hindi Teacher (full-time) in a leave vacancy for two years with effect from 01.06.2009 under the 5th respondent Corporate Management.  The 4th respondent approved the said appointment as per Ext.P1 with effect from 01.06.2009 on a scale of pay.  The 6th respondent was appointed as a Junior Hindi Teacher (full-time) in an additional vacancy with effect from 31.07.2009.  The petitioner was also given a re-appointment with effect from 01.06.2011 to 31.05.2014 when the incumbent teacher extended the leave.  The petitioner challenged the appointment of the 6th respondent in the regular vacancy, overlooking her claim, before the 2nd respondent.  The 2nd respondent allowed the revision and directed the 5th respondent to shift the petitioner to the regular vacancy and the 6th respondent to the leave vacancy.  The 6th respondent challenged this before the 1st respondent.  However, the Government rejected the revision filed by the 6th respondent.  The 6th respondent challenged the said order by the 1st respondent by filing W.P(C) No.24325/2015.  After hearing both sides, this Court upheld the orders passed by the 1st and 2nd respondents and dismissed W.P(C) No. 31031/23 4 the challenge made by the 6th respondent vide Ext.P2 judgment.  The petitioner was placed above the 6th respondent in the seniority list of Hindi Teachers under the 5th respondent agency, as seen from Exts.P3 and P14. Later, as per the staff fixation order of 2023-2024, Ext.P5, one post of Junior Hindi Teacher became excess due to the reduction in student strength.  When that happened, the 3rd respondent ordered the deployment of the petitioner as a cluster co-ordinator overlooking her seniority and allowed the junior, the 6 th respondent, to continue under the management.  Later, by Ext.P11, the petitioner was posted at Perumbavoor, which is about 60 Km away from the petitioner’s residence.  It is Ext.P6 that the petitioner challenges.

2.  The 3rd respondent has filed a counter affidavit stating that the 2nd respondent had allowed the claim of the petitioner to be shifted to the regular vacancy from 01.06.2009, but the approval was granted only with effect from

01.06.2010. The 3rd respondent herself admitted that the 6th respondent, who was appointed as a Junior Hindi Full Time Teacher, was shifted as a Junior Hindi Part Time on 24.09.2017 and, thereafter, was again shifted to a Full Time teacher when a vacancy arose at CCPLM AIHS Perumanoor with effect from 03.09.2018.  The 3rd respondent also admits that when the Hindi (full- time) post was reduced earlier, the 6th respondent was again shifted to the Part-Time post vide Ext.P13 and Ext.R3(a) proceedings.  However, the 3rd respondent justifies Ext.P6 by contending that there are no Junior Hindi (full- time) under the 5th respondent management. W.P(C) No. 31031/23 5

3.  The 6th respondent has filed a counter affidavit stating that she was appointed as a Junior Hindi Teacher (full-time) with effect from 31.07.2009. The 6th respondent also relies on the second proviso to Rule 43 of Chapter XIV- A of KER and Ext.R6(a).

4.  I have heard Sri. M.A. Fayaz, the learned counsel for the petitioner, Sri. Babu Cherukara learned Counsel for the 6th respondent and Sri. Premchand R. Nair, the learned Senior Government Pleader.

5.  Having heard the learned counsel, Ext.P6 cannot be sustained at all for the reasons to follow.  The fact that the petitioner had earlier challenged the appointment of the 6th respondent in the regular vacancy overlooking her claim was allowed by the D.G.E. and the challenge made by the 6 th respondent before the Government had also failed. That apart, this Court, by Ext.P2 judgment, had upheld the orders of the educational authorities, and the petitioner was placed above the 5th respondent in the seniority list, which is evident from Exts.P3 and P14.  The judgment had become final and is binding on all the parties, viz., the educational authorities and private parties.  Under such circumstances, the respondents cannot be heard to contend that the petitioner was shifted to a regular vacancy from 01.06.2010.  Exts.P14 and P15 documents also would show that the respondents had reckoned the petitioner’s regular service from 01.06.2009 onwards, and on two earlier occasions, it was the 6th respondent who was shifted as Junior Hindi part-time teacher owing to the fluctuations in the staff fixation order.  The respondents W.P(C) No. 31031/23 6 cannot be allowed to act contrary to the judgment in Ext.P2 or the seniority list maintained throughout, which holds the petitioner to be senior. Under such circumstances, Ext.P6, to the extent it orders deployment of the petitioner as a cluster co-ordinator overlooking her seniority, is liable to be quashed, and I do so.  There will be a direction to respondents 3 and 4 to permit the petitioner to continue as LG (Hindi Teacher) at PVMM AI UP School, Edakochi, in place of the 6th respondent.  It is also declared that the petitioner, being senior to the 6th respondent, can continue as a teacher under the 5th respondent's management, and the 6th respondent, being junior to the petitioner, must be ordered to be deployed, if both of them cannot be accommodated in the Edakochi School. Orders, as directed above, shall be passed within a period of three weeks from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- MOHAMMED NIAS  C.P. JUDGE okb/ W.P(C) No. 31031/23 7 APPENDIX OF WP(C) 31031/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 Exhibit P11 TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2009 CONTAINING THE ENDORSEMENT OF APPROVAL BY THE 4TH RESPONDENT TRUE COPY OF THE JUDGMENT IN W.P(C)NO.24325/2015 DATED 18.10.2016 TRUE COPY OF THE SENIORITY LIST OF HINDI TEACHERS AS ON 2018-2019 UNDER THE 5TH RESPONDENT TRUE COPY OF THE STAFF FIXATION ORDER NO.D.DIS.B6/42907/2022 DATED 20.08.2022 ISSUED BY THE 4TH RESPONDENT TRUE COPY OF THE ORDER NO.D.DIS .B6/58005/2023 DATED 20.08.2023 ISSUED BY THE 4TH RESPONDENT TRUE COPY OF THE ORDER NO.DDE EKM 6996/2023-B5 DATED 23.08.2023 TRUE COPY OF G.O(MS)NO.62/73/S.EDN DATED 02.05.1973 TRUE COPY OF THE PAGE CONTAINING LETTER NO.5007/J2/81/G.EDN DATED 11.03.1982 AND G.O(MS)NO.189/82/GEDN DATED 14.12.1982 TRUE COPY OF THE APPOINTMENT ORDER ISSUED IN RESPECT OF RAKHI K.P DATED 08.09.2015 TRUE COPY OF THE LETTER ISSUED BY THE HEADMISTRESS CCPLM AIHSS PERUMANOOR DATED 23.08.2023 TRUE COPY OF THE ORDER RELIEVING THE APPLICANT HEREIN AS CRC COORDINATOR TO BE SHIFTED TO MGM HSS KURUPPAMPADY DATED 26.09.2023 Exhibit P12 TRUE COPY OF THE JOINING REPORT OF THE W.P(C) No. 31031/23 8 APPLICANT DATED 27.09.2023 Exhibit P13 TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT REVERTING THE 6TH RESPONDENT HEREIN AS PART TIME TEACHER DATED 15.02.2023 Exhibit P13(a) TYPED COPY OF EXHIBIT P13. RESPONDENT EXHIBITS EXHIBIT R3(a) PETITIONER EXHIBITS EXHIBIT P14 EXHIBIT P15 RESPONDENT EXHIBITS Exhibit-R6(a) Exhibit-R6(b) ANNEXURE 1 TRUE COPY OF THE ORDER NO.B1/8463/2022 DATED 15/02/2023 OF THE DEPUTY DIRECTOR OF EDUCATION ERNAKULAM TRUE COPY OF ORDER NO.B5/14128/18 DATED 03.10.2018 ISSUED BY THE 3RD RESPONDENT TRUE COPY OF THE STATEMENT OF FIXATION OF PAY IN RESPECT OF THE PETITIONER ISSUED AT THE TIME OF PETITIONER BECOMING ELIGIBLE FOR 1ST TIME BOUND HIGHER GRADE DATED 22.10.2019 TRUE COPY OF THE ORDER OF THE DIRECTOR OF PUBLIC INSTRUCTION NO. H2/35985/2016/D.P.I. DATED 19-08-2016. TRUE COPY OF THE MRI SCAN REPORT OF THE 6TH RESPONDENT DATED 20-01-2022 TRUE COPY OF THE RELEVANT PAGES OF SENIORITY LIST IN THE CADRE OF LG HINDI PREPARED BY THE 3RD RESPONDENT