Hema M vs R.P.Subash Shylaja

P.B.Suresh Kumar, J.

This appeal is directed against the judgment dated 03.03.2022 in W.P.(C) No.6969 of 2022. The appellant is not a party to the writ petition and the appeal is preferred with the leave of the court.

The first respondent was appointed as Higher Secondary School Teacher (HSST) in Physics in B.E.M. Girls Higher Secondary School, an aided school on 17.09.2001. Ext.P1(a) is the order of appointment. The said appointment was not approved by the competent authority viz, the fourth respondent, the Director of Higher Secondary Education on the ground that the B.Ed. Degree obtained by her is not one issued after a regular course of study. Ext.P2(b) is the communication issued by the fourth respondent to the Manager of the school in this regard. The first respondent did not challenge Ext.P2(b) decision. Instead, she underwent M.Ed. course and thereupon approached the Government for orders approving her appointment as HSST on the strength of the M.Ed degree obtained by her. On the said representation, the Government directed the fourth respondent to approve the appointment of the first respondent with effect from the date of publication of the result of the M.Ed course undertaken by her. Ext.P4(a) is the communication issued by the Government in this regard. Based on Ext.P4(a) communication and the clarification given by the management that the appellant who was appointed in the meanwhile as HSST junior in Physics in the school and who was entitled to be promoted to the post of HSST in the vacancy in which the first respondent was initially appointed has relinquished her claim, the fourth respondent approved the appointment of the first respondent as HSST in Physics in the school with effect from 22.06.2005. Ext.P5 is the order issued by the fourth respondent in this regard. After about 15 years, on 29.09.2020, the first respondent preferred a representation to the fourth respondent seeking orders to approve her appointment with effect from 17.09.2001 itself, modifying Ext.P2(b) decision. Ext.P10(a) is the said representation. Ext.P10(a) was not considered by the fourth respondent. The first respondent, in the circumstances, approached this court in the above writ petition and the same was disposed of directing the fourth respondent to consider and pass orders on Ext.P10(a) representation, after affording the first respondent an opportunity of hearing. It is aggrieved by the said judgment that the appellant has come up with this appeal.

Heard the learned counsel for the appellant as also the learned counsel for the first respondent.

The learned counsel for the appellant submitted that the appellant was entitled to be promoted to the vacancy in which the first respondent was accommodated and it was with a view to defeat the said claim of the appellant that it was stated in Ext.P5 order that the appellant has relinquished her claim for promotion to the post of HSST in Physics. It was also submitted by the learned counsel that the statement made in Ext.P5 that the appellant had relinquished her claim to the post is incorrect and that she had not relinquished her claim for promotion to the post. It was also submitted by the learned counsel that even though the appellant has challenged Ext.P5 order in revision before the Government, the same was dismissed by the Government and the order passed in this regard has been challenged by the appellant before this court in W.P.(C) No.19495 of 2015 arraying the first respondent also as a party to the proceedings and the said writ petition is pending. It was submitted by the learned counsel that on 03.03.2022, when W.P.(C) No.19495 of 2015 was taken up for orders, it was pointed out by the counsel for the first respondent about the impugned judgment and it was only then that the appellant came to know of such a judgment. According to the learned counsel, the claim of the first respondent that Ext.P1(a) order is valid is a stale one, insofar as the same was rejected by the fourth respondent as early as on 04.06.2005 in terms of Ext.P2(b) order and the first respondent has not challenged Ext.P2(b) order. It was also submitted by the learned counsel that in effect, what is sought in terms of Ext.P10(a) representation is a review of Ext.P2(b) order and the fourth respondent has no power to review the said order. According to the learned counsel, this Court in the circumstances, ought not have directed consideration of Ext.P10(a) representation. It was also argued by the learned counsel that the impugned order is one obtained suppressing the pendency of W.P(C) No.19495 of 2015 as also the facts and circumstances leading to the said writ petition. According to the appellant, the impugned judgment is therefore, liable to be interfered with.

Per contra, the learned counsel for the first respondent submitted that Ext.P10(a) representation preferred by the first respondent has nothing to do with the subject matter of W.P.(C) No.19495 of 2015 and the same was one preferred on an entirely different cause of action viz, that the fourth respondent ought to have approved Ext.P1(a) appointment of the first respondent. As regards the argument that the claim made by the first respondent in Ext.P10(a) representation is a stale one, according to the learned counsel, it is a matter to be examined by the fourth respondent. It was pointed out by the learned counsel that the appellant has in fact filed an application seeking review of the impugned judgment and the same was disposed of by this court directing the fourth respondent to hear the appellant also while complying with the direction contained in the impugned judgment. According to the learned counsel, in the circumstances, there is absolutely no reason for the appellant to be aggrieved by the impugned judgment.

We have examined the arguments advanced by the learned counsel for the parties on either side.

The materials on record indicate that the first respondent was accommodated as HSST in Physics in terms of Ext.P5 order with effect from 22.06.2005 in the very same vacancy in which she was initially appointed as HSST in Physics on 17.09.2001. It is beyond dispute that since the appellant was appointed as HSST Junior in Physics in the School before 22.06.2005, she had a preferential claim for appointment to the post of HSST in Physics in the vacancy in which the first respondent was accommodated. It is on account of the said reason that it is stated in Ext.P5 order that the appellant has relinquished the said claim. As noted, the appellant has disputed the said statement. The said dispute is one to be adjudicated upon by this court in W.P.(C) No.19495 of 2015. If the claim of the first respondent that she is entitled to get her appointment approved with effect from 17.09.2001 is accepted by the fourth respondent, the claim raised by the appellant for promotion to the post of HSST in Physics in the very same vacancy would be defeated. In the said circumstances, according to us, the appellant has certainly a right to be heard in the matter. The question is whether, in a case of this nature, it was obligatory on the part of the first respondent to disclose the pendency of W.P.(C) No.19495 of 2015 in the writ petition in which the impugned judgment was rendered. According to us, the relief claimed by the first respondent in Ext.P10(a) representation being one which defeats the claim of the appellant in W.P.(C) No.19495 of 2015, it was obligatory on the part of the first respondent to disclose the pendency of W.P.(C) No.19495 of 2015 in the writ petition and we have no doubt in our minds that the said fact has not been disclosed solely with a view to obtain an order on Ext.P10(a) representation behind the back of the appellant. We are not finding fault with the first respondent in preferring Ext.P10(a) representation seeking orders for approving her appointment with effect from 17.09.2001. But, when such a representation was filed during the pendency of W.P.(C) No.19495 of 2015 filed by the appellant before this court and when the prayer in the representation is one which would defeat the claim of the appellant in W.P.(C) No.19495 of 2015, in fairness, the first respondent ought to have disclosed the pendency of W.P.(C) No.19495 of 2015 as well as the facts leading to the dispute therein. We have no doubt that had the first respondent disclosed the said facts in the writ petition, the same would have certainly been posted along with W.P.(C) No.19495 of 2015. True, the appellant has sought a review of the impugned judgment and this court did not interfere with the judgment in the review jurisdiction, but only directed that the appellant shall also be heard while complying with the direction contained in the impugned judgment. That shall not, according to us, deter us from interfering with the impugned judgment as we are convinced that the writ petition in which the impugned judgment was rendered, was one which should have been considered along with W.P.(C) No.19495 of 2015.

In the result, the writ appeal is allowed, the impugned judgment is set aside and the registry is directed to list W.P.(C) No.6969 of 2022 along with W.P.(C) No.19495 of 2015.