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K.K. MALLIKA, W/O. T.K. BHASKARAN versus STATE OF KERALA, REPRESENTED BY

High Court of Kerala

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K.K. MALLIKA, W/O. T.K. BHASKARAN v. STATE OF KERALA, REPRESENTED BY - OP No. 21587 of 2002(T) [2007] RD-KL 13252 (17 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP No. 21587 of 2002(T)

1. K.K. MALLIKA, W/O. T.K. BHASKARAN,
... Petitioner

Vs

1. STATE OF KERALA, REPRESENTED BY
... Respondent

2. THE DISTRICT EDUCATIONAL OFFICER,

3. THE MANAGER, SREE NARAYANA BOYS

4. SRI.SIVARAMAN, H/O. LASTE UNNIBHAMINI,

For Petitioner :SRI.N.P.SAMUEL

For Respondent :SRI.M.S.RADHAKRISHNAN NAIR

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN

Dated :17/07/2007

O R D E R

THOTTATHIL B.RADHAKRISHNAN, J.

O.P.No.21587 OF 2002

Dated this the 17th day of July, 2007



JUDGMENT

Petitioner and the deceased wife of the 4th respondent, hereinafter referred to as the '4th respondent', were High School Assistants under a corporate management, the third respondent. The date of their commencement of continuous service is 3.6.1968. The 4th respondent was first appointed under that management on 4.7.1967 while the petitioner was first appointed on 22.11.1967. The 4th respondent is elder to the petitioner. There is also an uncontroverted statement in the reply affidavit of the petitioner that the 4th respondent did not utilise one of her opportunities referable to Rule 51 A in Chapter XIV A K.E.R. before commencement of continuous service. That factor is not of much relevance to decide the issue in hand.

2. The question arising for decision is as to whether it was the 4th respondent or the petitioner who was entitled to be appointed OP.21587/02 Page numbers as the Headmaster of the school on the retirement of the previous incumbent in the afternoon of 31.5.1996.

3. In terms of Rule 37 in Chapter XIV A K.E.R., the 4th respondent has to be held as senior to the petitioner applying Sub Rule 2 thereof, since, both of them have continuous length of service from the same date while the 4th respondent was first appointed in the service. This issue is covered against the petitioner also by the judgment of the Division Bench of this Court in Balakrishnan v. A.E.O., Vadakara [2005 (4) KLT 64].

4. But the fact remains that Ext.P1 common seniority list of High School Teachers under the corporate management as on 1.1.1968 was issued showing the 4th respondent at Sl.No.13 and the petitioner at Sl.No.12, thereby placing the petitioner as senior to the 4th respondent. The publication of a staff list, otherwise called a seniority list, is the statutory obligation of a management in terms of Rule 34 in Chapter XIV A K.E.R. That seniority list, as between the 4th respondent and the petitioner, was left as final and without any challenge. After a long lapse of OP.21587/02 Page numbers time, it is impermissible to deviate from that list because the 4th respondent ought to be taken as having sat back on any right to challenge Ext.P1. This obviously finds support of a plethora of decisions, including that of the Division Bench of this Court in Usha Devi v. State of Kerala [2002 (1) KLT 615], which is also a case which relates to school teachers. Sreedharan Pillai v. State of Kerala [1973 KLT 151 FB] and Sowmini v. State of Kerala [2000 (1) KLT 599] could also be profitably referred to in support of this proposition.

5. Therefore, in so far as the rights of parties to this case are concerned, it has to be decided by taking that Ext.P1 has become final. If that be so, the petitioner ought to have been appointed as Headmaster in preference to the 4th respondent.

6. With the passage of time, the petitioner retired without discharging the duties and responsibilities as the Headmaster and the 4th respondent, who enjoyed promotion, worked as such and later retired, is now no more. To mould the relief in such situation, it has to be declared that the petitioner was entitled to OP.21587/02 Page numbers be appointed as Headmaster of the school in the vacancy that arose on the afternoon on 31.5.1996. But she will not be entitled to any emoluments and such placing would be relevant only for re-fixing her retiral benefits in accordance with law. In the result, this writ petition is allowed in part quashing Exts.P5 and P7 and declaring that the petitioner, being senior to the 4th respondent, was entitled to be appointed as Headmaster in the vacancy that arose on 1.6.1996 in S.N.Boys High School, Kanimangalam. However, she will not have any claim for pay and allowances, but with all retiral benefits, to be fixed in terms of this declaration. Let the re-calculation of the retiral benefits of the petitioner in terms of the above be done and arrears, if any, released within an outer limit of three months from the date of receipt of a copy of this judgment. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb. OP.21587/02 Page numbers
=======================

THOTTATHIL B. RADHAKRISHNAN, J

O.P.NO. 21587 OF 2002

JUDGMENT

17TH JULY, 2007.
=======================


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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