ANIL K.NARENDRAN,J.
The appellant is the petitioner in W.P.(C)No.5632/2012. The said Writ Petition was filed seeking a writ of certiorari to quash Exhibit P5 order dated 10.2.2012 of the District Educational Officer, the 3rd respondent, and for other consequential reliefs. The learned Single Judge by judgment dated 12.11.2012 repelled the challenge against Exhibit P5 and also found that Exhibit P6 revision petition and Exhibit P6(a) petition for stay filed before the Government against Exhibit P5 are of no consequence by virtue of the said finding on merit. Therefore, the learned Single Judge dismissed the Writ Petition. It is aggrieved by the said judgment, the appellant is before us in this Writ Appeal.
2. We heard arguments of the learned counsel for the appellant, the learned Senior Government Pleader appearing for the official respondents and also the learned counsel for the 5th respondent. We have considered the rival submissions made at the Bar.
3. The appellant commenced service as UPSA in the Upper Primary School managed by the 6th respondent on 20.10.1982, vide Exhibit P1 order of appointment. At the time of appointment, the appellant was a Teacher's Certificate Holder (TCH) and he acquired Bachelor of Education (B.Ed.) on 1.6.1989. He also acquired Test qualification. On the other hand, the 5th respondent commenced service as UPSA in the very same school on 27.10.1984, vide Exhibit R5(a) order of appointment. As on the date of entry in service, she was having B.Ed. In Exhibit P2 seniority list as on 1.4.2010 the appellant is Sl.No.3 and the 5th respondent is Sl.No.5.
4. On 1.4.2011, there arose a vacancy of Headmaster in the School managed by the 6th respondent. According to the appellant, going by Exhibit P3 Government order dated 7.12.1978, untrained teachers can be treated as regular teachers with effect from the date of joining duty for the purpose of seniority and considering that seniority, he was appointed as Headmaster, with effect from 1.4.2011, vide Exhibit P4 order of appointment. The 5th respondent filed an appeal before the 4th respondent under Rule 44(2) of Chapter XIVA of the KER against the said appointment, claiming that she is the senior most hand to be appointed as Headmaster. But, the 4th respondent in Exhibit P4(a) order rejected the said appeal and granted approval for the appointment of the appellant as Headmaster.
5. The said order was under challenge in a second appeal filed by the 5th respondent before the 3rd respondent under Rule 44(3) of Chapter XIVA of the KER. Pursuant to the judgment of this Court in W.P.(C)No.31952/2011, the 3rd respondent by Exhibit P5 order allowed the said second appeal and cancelled Exhibit P4(a) order of the 4th respondent granting approval for the appointment of the appellant as Headmaster. The 3rd respondent has also directed the 6th respondent to appoint the 5th respondent as Headmaster of the School. Challenging the said order, the appellant approached the Government, the 1st respondent, in Exhibit P6 revision petition under Rule 92 of Chapter XIVA of the KER, accompanied with Exhibit R6(a) petition for stay. Immediately thereafter, the appellant filed W.P. (C)No.5632/2012 before this Court seeking a writ of certiorari to quash Exhibit P5 order and for other consequential reliefs.
6. It is not in dispute that, the initial service of the appellant for the period from 20.10.1982 to 1.6.1989 is only as an untrained teacher. The main contention raised by the appellant is that, going by Exhibit P3 Government Order, service of untrained teachers can be treated as that of regular teachers with effect from the date of joining duty for the purpose of seniority and it was considering that seniority, he was appointed as Headmaster, vide Exhibit P4 order of appointment. However, Exhibit R5(d) Government order dated 18.5.2011 would show that the appellant along with two others, namely P.K.Viswanathan and T.Unnikrishnan, had submitted representations before the Government in order to count their service from 20.10.1982 to 31.5.1989 for all service benefits including seniority.
7. As evident from Exhibit R5(d) Government order, the appellant and others had requested the Government to issue an order counting their service from 20.10.1982 to 31.5.1989 for the purpose of sanctioning notional increment, time bound grade, seniority and all other service benefits, considering it as a special case on humanitarian grounds. The main points mooted before the Government, as borne out from Exhibit R5(d) are as follows;
(i) the untrained service and period of training of the Leave Reserve Primary Teachers (Kannada) were reckoned as service for the purpose of sanction of time bound higher grade and for sanctioning notional increments, whereas, the appellant and others who had undergone in-service course in TCH (English) were given service benefits only after successful completion of such in-service course;
(ii) though the appellant was appointed with effect from 20.10.1982 he was deputed for in-service course only on 3.10.1988, otherwise he would have undergone the training earlier;
(iii) as the appellant and others were paid basic pay during the period from 20.10.1982 to 31.5.1989 the said period ought to have been reckoned for all service benefits and they lost service benefits and terminal benefits for over 6½ years, without counting for grade and other service benefits including seniority and as such sustained huge financial loss; and
(iv) the Government have without any ambiguity clarified that for the purpose such as seniority, pension, leave, weightage and all similar service matters other than probation and increment those untrained teachers will be treated as regular teachers with effect from the date of joining.
8. We notice that point No.(iv) mooted by the appellant before the Government is nothing but a reproduction of Clause (i) of Ext.P3 Government Order and the Government by Ext.R5(d) order rejected the requests made by the appellant and others as devoid of merit. The said Government order also refers to Message No.42120/J3/91.G.Edn. dated 6.6.1992, in which it has been specified that, the period of in-service course of TCH holders (English) will not be counted for any service benefits as they are required to undergo in-service course at their own expenses and that too as a concession, but the period of in-service course as such will not be regarded as a break, for those who have under qualified spells of service. The service prior to successful completion of the in-service course, if any, will be approved as under-qualified and the service after successful completion, i.e., date of passing of the in-service course will be approved as fully qualified. The Government also noticed that, there is no specific orders to reckon the under-qualified service of TCH holders (Kannada) for counting grade and other service benefits and that the appointment of Leave Reserve Primary Teachers (Kannada) in Kasaragod district, who were recruited by the Kerala Public Service Commission in 1969, 1973 and 1978 without training was approved later since there were dearth of trained teachers. It was in such circumstances, the Government rejected the request made by the appellant and others to reckon their service from 20.10.1982 to 31.5.1989 for the purpose of sanctioning notional increment, time bound grade, seniority and all other service benefits. Exhibit R5(d) Government order has attained finality, in the absence of any challenge made by the appellant.
9. Rule 37 of Chapter XIVA of the KER, which deals with the seniority of a teacher reads thus;
“37. (1) Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post.
Provided that the period of service rendered in the parent school or in another school by a teacher, who is relieved under rule 52, shall be reckoned for seniority on his re-appointment to the parent school.
(2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. If the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior.”
10. By virtue of Sub-rule (1) of Rule 37 of Chapter XIVA of the KER, the seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided, he is duly qualified for the post. In K.P. Mathiri v. State of Kerala and others (1973 KLT 284) a Division Bench of this Court held that, in view of the provisions in Sub-rule (1) of Rule 37, the continuous service that can be counted for reckoning seniority must be 'qualified service', which means that, it must be service after the acquisition by the teacher of the prescribed qualifications for the particular post. The relevant portion of paragraph 2 of the judgment reads thus;
“2. …..... In view of the provision in R.37 which we have extracted it has not been disputed before us that the continuous service that can be counted for reckoning seniority must be "qualified service". We understand this to mean that it must be service after the acquisition by the teacher of the prescribed qualifications for the particular post in the grade in any unit. ”
11. Going by the mandate of Sub-rule (1) of Rule 37 of Chapter XIVA of the KER, 'continuous service' contemplated under the said rule, which can be counted for reckoning seniority of a teacher in that grade in that unit can only be 'qualified service' of that teacher after acquisition of the qualifications prescribed for that post. Whereas, Sub-rule (2) of Rule 37, which prescribes the method of determining inter-se seniority in the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority can be decided with reference to the date of 'first appointment', which takes within its sweep any untrained or under-qualified earlier service of those teachers as well. Sub-rule (2) of Rule 37, make mention of the date of 'first appointment' as the criteria to reckon seniority among teachers whose date of commencement of continuous service is the same, without mentioning the word 'qualified'. On the other hand, Sub-Rule (1) of Rule 37 make specific mention of continuous 'qualified service' as the criteria to reckon seniority of a teacher in that grade in that unit. Therefore, continuous qualified service of a teacher alone can be counted for the purpose of seniority under Sub-rule (1) of Rule 37. If that is the mandate of Sub-rule (1) of Rule 37, the 5th respondent who has continuous qualified service as UPSA from 27.10.1984 has to be treated as senior to the appellant who has continuous qualified service as UPSA only from 1.6.1989. Therefore, the finding to that effect in Exhibit P5 order of the 3rd respondent can only be sustained.
12. According to the appellant, Exhibit P2 is a seniority list prepared in accordance with Rules 34, 36 and 37 of Chapter XIVA of the KER, which has not been objected to by the 5th respondent. However, the specific finding of the 3rd respondent in Exhibit P5 order is that, the 4th respondent has not finally approved the seniority list in terms of the rules, for the purpose to determine the person eligible to be appointed as the Headmaster in the vacancy which had arisen on 1.4.2011 and this aspect of the matter has not at all been taken into consideration by the 4th respondent while taking a decision on the approval of the appointment of the appellant as Headmaster. We notice that, there is no specific challenge in the Writ Petition against the said factual finding entered by the 3rd respondent in Exhibit P5 order; except a bald statement in Ground (b) of the Writ Petition that, Exhibit P2 seniority list is in accordance with the Rules 34, 35, 36 and 37 of Chapter XIVA of the KER.
13. As noticed by the learned Single Judge, the 5th respondent was all along disputing the seniority list by filing statutory appeal and also by filing W.P.(C)No.31952/2011 before this Court. It was pursuant to the direction of this Court in the said Writ Petition, Exhibit P5 order came to be passed by the 3rd respondent. The appellant has also not disputed the fact that, based on an objection filed by the 5th respondent the approval of Exhibit P2 seniority list was pending consideration before the 3rd respondent. His only contention in this regard in the Writ Appeal is that, so long as a provisional seniority list is available it has to be acted upon until it is modified. As we have already held, continuous qualified service of a teacher alone can be counted for the purpose of seniority under Sub-rule (1) of Rule 37. In all the documents relied on by the appellant, including those produced along with I.A.No.982/2014, the date of commencement of continuous service of the appellant is shown as 1.6.1989, whereas, the date of commencement of continuous service of the 5th respondent is shown as 27.10.1984 in all such documents. Therefore, for the purpose of seniority under Sub-rule (1) of Rule 37 the 5th respondent who has continuous qualified service as UPSA from 27.10.1984 is senior to the appellant who has continuous qualified service as UPSA only from 1.6.1989. Therefore, in our view, the learned Single Judge rightly repelled the contention raised by the appellant that, by Exhibit P5 order of the 3rd respondent, settled seniority is unsettled after a long lapse of time.
14. Neither the appellant nor the 6th respondent Manager has urged before us that, the appointment of the appellant as Headmaster of the school was in exercise of any right of the Management under Article 30(1) of the Constitution of India. By virtue of Sub-rule (1) of Rule 44 of Chapter XIVA of the KER, the appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under Clauses (a) and (b) as the case may be of Rule 34. Going by Clause (b) of Rule 34, every management shall subject to the provisions contained in Rule 37, prepare and maintain in Form 11A a staff list otherwise called the seniority list of teachers, which shall be, in the case of Upper Primary Schools and Lower Primary Schools, a combined seniority list of UPSAs, LPSAs, Junior Language Teachers and Specialist Teachers specified in Rules 3 and 4 of Chapter XXXI of the KER. The purpose of the seniority list will be only to determine the position of persons eligible for promotion as Primary School Headmaster by virtue of length of service and prescribed qualifications for promotion as Primary School Headmaster. When the continuous qualified service of a teacher alone can be counted for the purpose of seniority under Sub-rule (1) of Rule 37, by no stretch of imagination, the appellant who is having continuous qualified service only from 1.6.1989 can claim seniority over the 5th respondent who is having continuous qualified service from 27.10.1984. Therefore, in our view, the learned Single Judge rightly repelled the challenge made by the appellant against Exhibit P5 and concluded that the 5th respondent is entitled to succeed in her claim for appointment to the post of Headmaster.
15. We notice that, challenging Exhibit P5 order dated 10.2.2012 passed by the 3rd respondent, the appellant moved the 1st respondent in Exhibit P6 revision petition dated 16.2.2012, accompanied by Exhibit P6(a) petition for stay. Immediately thereafter, the appellant presented W.P.(C)No.5632/2012 before this Court on 6.3.2012, seeking a writ of certiorari to quash Exhibit P5 order and for other consequential reliefs, including a writ of mandamus commanding the 1st respondent to consider and pass appropriate orders on Exhibits P6 and P6(a) after affording an opportunity of being heard within a time limit, keeping in abeyance Exhibit P5 order, enabling him to continue as Headmaster of the School. In paragraph 7 of the Writ Petition the appellant has stated thus;
“It is apprehended that the Government may take some time so as to consider the Revision Petition with notice to the parties. In the meantime, the District Educational Officer might insist the Manager to implement Exhibit P5.”
16. In the Writ Petition the appellant has no case that, as a matter of fact, he had moved Exhibit P6(a) stay petition before the Government or was prevented by any sufficient cause from moving that stay petition. Further, the Government cannot be accused of the omission to discharge the statutory duty of disposing of the same even without giving some breathing time to the Government to dispose of the stay petition, especially when the appellant has absolutely no case that, the Educational Officer has already directed the Manager of the School to implement Exhibit P5 order. In such circumstances, in the absence of any failure of statutory duty on the part of the Government, the appellant should not have rushed to this Court for a writ of mandamus commanding the 1st respondent to consider and pass appropriate orders on the statutory revision and the petition for stay and also for keeping in abeyance Exhibit P5 order of the 3rd respondent.
17. We also notice that, the appellant filed W.P.(C) No.5632/2012 before this Court on 6.3.2012, i.e., much after the issuance of Exhibit R5(d) Government order dated 18.5.2011, suppressing the fact that his request to reckon untrained service from 20.10.1982 to 31.5.1989 for all service benefits including seniority had already been turned down as devoid of merit. Even a cursory reading of Exhibit R5(d) Government order makes it abundantly clear that, the question of reckoning the untrained service of the appellant for the period from 20.10.1982 to 31.5.1989 for the purpose of seniority was also a subject matter of consideration before the Government. The request made before the Government is also extracted in Exhibit R5(d) Government order which reads thus;
“Hence it is to issue an order counting their service from 20.10.1982 to 31.5.1989 for the purpose of sanctioning notional increment, time bound grade, seniority and all other service benefits, considering this as a special case on humanitarian grounds.”
Further, point No. (iv) mooted by the appellant before the Government, which we have already quoted in paragraph 7 of this judgment is nothing but reproduction of Clause (i) of Exhibit P3 Government order dated 7.12.1978. Clause (i) of Exhibit P3 Government order reads thus;
“For the purpose such as seniority, pension, leave, weightage and all similar service matters other than probation and increment those untrained teachers will be treated as regular teachers with effect from the date of joining.”
It was relying on the very same Government order, the appellant in Ground (c) of W.P.(C)No.5632/2012 contended as follows;
“Exhibit P5 is violative of Exhibit P3. Hence it may be interfered with.”
18. We also notice that, the counter affidavit filed in the Writ Petition by the 5th respondent makes specific reference to Exhibit R5(d) Government order in order to contend that, the said order having attained finality for want of challenge, no useful purpose will be served by directing the Government of take a decision on Exhibit P6 revision petition filed by the appellant challenging Exhibit P5 order or on Exhibit P6(a) stay petition. Though the appellant filed a reply affidavit dated 10.11.2012, no reason whatsoever has been stated therein for not disclosing in W.P.(C)No.5632/2012 the Government decision evidenced by Exhibit R5(d). On the other hand, it is contended in paragraph 4 of the reply affidavit as under;
“The petitioner's seniority ought to be counted as per G.O. (Ms.)No.170/78/G.Edn. dated 7.12.1978 along with Rule 37(1) of Chapter XIVA of Kerala Education Rules. The Government Order should be implemented , i.e., G.O.(Ms.) No.170/78/G.Edn. dated 7.12.1978, on its own. Exhibit R5 (d) cannot defeat the same.”
Further, it is contended in paragraph 5 of the reply affidavit as under;
“The under qualified service of TCH holders can be reckoned for the purpose of seniority even though it was treated as under-qualified service as per G.O.(Ms.) No.170/78/G.Edn. dated 7.12.1978. This order is not cancelled by the Government. The Government took decision in G.O.(Rt.)No.1816/2011/G.Edn. dated 18.5.2011 stating that there is no specific orders to reckon the under-qualified service for granting grade and other benefits. Nothing has been stated that about seniority.”
In the Writ Appeal also, not even a scrap of paper has been produced to show that, the question of seniority or the benefit under Exhibit P3 Government order was not an issue before the Government at that point of time. However, the appellant reiterated the very same contentions in the Writ Appeal also.
19. It is well settled that, exercise of jurisdiction under Article 226 of the Constitution of India is discretionary and a person approaching the Court with unclean hands is not entitled to get any discretionary relief. The Apex Court in Kishore Samrite V. State of U.P. And others (2013 (2) SCC 398) reiterated that, a litigant must approach the Court with clean hands and that, it is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed.
20. The facts and circumstances of the case lead us to an irresistible conclusion that, the appellant had approached this Court in W.P.(C)No.5632/2012 with unclean hands, suppressing material facts from the notice of this Court. On that ground as well the Writ Petition filed by the appellant is liable to be dismissed.
We find absolutely no grounds to interfere with the judgment of the learned Single Judge. In the result, the Writ Appeal fails and the same is dismissed. No order as to costs.
Sd/-
ANTONY DOMINIC, JUDGE dsn Sd/-
ANIL K.NARENDRAN, JUDGE