Muralee Krishna S., J.

1. The 5th respondent in W.P.(C)No.18201 of 2022 filed W.A.No.2380 of 2025 and the petitioner in W.P.(C)No.12745 of 2021 filed W.A.No.2381 of 2025, under Section 5(i) of the Kerala High Court Act, 1958, challenging the common judgment dated 18.06.2025 passed by the learned Single Judge in those writ petitions. Since the issue involved in these writ appeals is the same, they are heard together and are being disposed of by this common judgment. For convenience of reference, the parties and documents in these writ appeals are referred to as in W.A.No.2381 of 2025 and in the corresponding writ petition, unless otherwise stated.

2. The facts which led to the filing of these writ appeals are as under;

                  2.1.    The appellant joined Sree Narayana Teachers Training Institute, Cheruthuruthy (the ‘School’ in short) as a Training School Assistant on 04.06.1990. Since she was convicted in a criminal case, the Manager of the School dismissed the appellant from service in terms of Rule 74 of Chapter XIV-A of Kerala Education Rules, 1959 (the ‘KER’ in short). Subsequently, the order of conviction of the appellant was set aside by this Court. Hence, the Deputy Director of Education passed an order directing the Manager to reinstate the appellant in service. When the Manager delayed taking action, stating that the Deputy Director of Education is not a competent authority to order reinstatement of the appellant, she approached this Court by filing W.P.(C)No.8640 of 2008. The Manager also approached this Court by filing W.P.(C)No.28764 of 2009, challenging the order of the Deputy Director of Education, contending that the vacancy was already filled up and hence the appellant cannot be accommodated. By Ext.P1 judgment dated 20.10.2017, this Court disposed of both the writ petitions, observing that since the Manager had made two appointments, the order of the Deputy Director of Education to reinstate the appellant could be implemented only by creating a supernumerary post. Ext.P1 judgment was affirmed by the Division Bench of this Court in Ext.P2 judgment dated 06.02.2020, passed in W.A.Nos.1362 and 1068 of 2018.

                  2.2.    Since no steps have been taken by the authorities to reinstate her, the appellant filed Con.Case(C)No.1312 of 2020 before this Court. The said contempt case was finally closed as per Ext.P3 judgment dated 24.11.2020. Thereafter, Ext.P4 order dated 09.11.2020 was issued by the Secretary, General Education Department, directing the Director, General Education, to initiate steps to appoint the appellant by creating a supernumerary post. In Ext.P4, there was a further direction to make good the resultant financial liability caused by the creation of the supernumerary post, by proportionately realising the costs from the Manager and the officers who approved the appointments of one Unni K. P. and another person, who was appointed in the vacancy of Unni K. P., ignoring the claim of the appellant.

                  2.3.    On the basis of Ext.P4 order, the Director, General Education issued Ext.P5 order dated 01.03.2021 directing the District Educational Officer, Chavakkad, reiterating the order of the Educational Secretary to take immediate steps to create a supernumerary post of Training School Assistant for reinstating the appellant from 2000-01. Pursuant to Ext.P5 order, the District Educational Officer issued Ext.P6 order dated 02.03.2021, creating a supernumerary post to retain the appellant in the service of the School from the year 2000-01. However, the Manager did not comply with the aforesaid order of the District Educational Officer. Therefore, the appellant sent Ext.P7 lawyer's notice dated 09.04.2021 to the Manager, seeking the implementation of Ext.P6 order of the District Educational Officer. Thereafter, the appellant approached this Court by filing W.P.(C)No.12745 of 2021 under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the Manager to implement Ext.P6 order of reinstatement and also seeking a direction against the District Educational Officer to take action against the Manager for dereliction of duty and his refusal to abide by the orders of the statutory authorities as well as the direction of this Court.

                  2.4.    In W.P.(C)No.12745 of 2021, the Deputy Director of Education filed a counter affidavit dated 15.07.2021, almost admitting all the pleadings in the writ petition. It is further pleaded in that counter affidavit that after Ext.P6 order dated 02.03.2021 passed by the District Educational Officer, the Manager filed W.P.(C)No.2164 of 2021, challenging Ext.P4 order dated 09.11.2020, and in that writ petition, this Court vide order dated 03.03.2021 directed to keep in abeyance the further proceedings against the Manager.

                  2.5.    To the counter affidavit filed by the Deputy Director of Education, the appellant filed a reply affidavit dated 10.03.2022, producing therewith Exts.P8 and P9 documents.

3. Meanwhile, the Manager of the School, along with the Headmaster, filed W.P.(C)No.18201 of 2022 before this Court. In that writ petition it is pleaded that after the interim stay granted by this Court in W.P.(C)No.2164 of 2021 against taking action against the Manager as directed in Ext.P4 order of the Government dated 09.11.2020, the Government without any notice and hearing issued order dated 24.05.2022, which is marked as Ext.P6 in W.P.(C)No.18201 of 2022 holding that there is no provision to create a supernumerary post in an aided school and that since there is no post of Training School Assistant available in the School and the appellant has the qualification of M.A. (Sociology) with B.Ed, she should be accommodated to the post of Headmistress of the School reverting the person who was appointed by the Manager and on failing to do so, the Manager shall be proceeded against.

                  3.1.    In W.P.(C)No.18201 of 2022, the Manager and the head Master further contended that the appellant was not in service right from 03.01.2000. After one year, the 2nd petitioner therein was appointed as the Headmaster. In Exts.P1 and P2 judgments, the only direction issued by this Court was to create a supernumerary post in the cadre of Training School Assistant. The seniority in the school depends upon the continuous service and not otherwise. This Court did not interfere with the appointment of the 2nd petitioner therein as the Headmaster, in Exts.P1 and P2 judgments. Ext.P6 order dated 24.05.2022 produced in W.P.(C)No.18201 of 2022 is issued in violation of the specific direction in Exts.P1 and P2 judgments, and the same was without hearing the Manager or the Headmaster, and hence it is illegal and arbitrary. The attempt made in Ext.P6 order dated 24.05.2022 produced in W.P.(C)No.18201 of 2022 is to overreach the direction in Exts.P1 and P2 judgments and hence unsustainable and illegal.

                  3.2.    The Government has subsequently issued Ext.P7 order dated 12.01.2023 produced in W.P.(C)No.18201 of 2022 ordering to revert Shri. Unni K. P., the 2nd petitioner in W.P.(C)No.18201 of 2022, from the post of Headmaster, and to appoint the appellant as the Headmistress in the School.

                  3.3.    The Manager and the Headmaster further contended in W.P.(C)No.18201 of 2022 that it is the duty of the Government to create a supernumerary post, if they desire to accommodate the appellant. But no supernumerary post has been created till now. Further, the 2nd petitioner therein is the senior-most teacher, going by the staff list, and he was promoted to the post of Headmaster on 01.04.2000, and the approval process is pending. According to the Manager and the Headmaster, the appellant was terminated from service in the year 2000, and she was gainfully employed in another Teachers Training Institute, i.e., MOTTI, Perimbilavu, Kunnamkulam, and in the teachers' list submitted by the institution, the appellant is shown as Principal, and she is actively working there. Without being in active service, she cannot claim any seniority, and the principle of reckoning seniority is the continuous service going by the provisions of KER. The appellant attained superannuation on 31.10.2022. A supernumerary post cannot be created to accommodate a person who has attained the age of superannuation. With these pleadings, the petitioners in W.P.(C)No.18201 of 2022 sought a writ of certiorari to quash Ext.P6 order dated 24.05.2022 produced therein; a declaration that the Government has no power, authority or jurisdiction to issue Ext.P6 order and it is non est in the eye of law, since it is issued in total violation of the principles of natural justice and also in derogation of Exts.P1 and P2 judgments of this Court; and a declaration that the appellant can be accommodated only if a supernumerary post is created, that too to the post of Training School Assistant and that she cannot appoint as a Headmistress or for that matter, the 2nd petitioner therein is not liable to be reverted.

                  3.4.    The Government has filed a counter affidavit dated 21.09.2023 in W.P.(C)No.18201 of 2022, opposing the reliefs sought therein. Along with I.A.No.4 of 2023, the petitioners therein have produced Exts.P8 and P9 documents.

4. After hearing both sides and on appreciation of materials on record, by the impugned judgment dated 18.06.2025, passed along with W.P.(C)No.2164 of 2021, the learned Single Judge disposed of the writ petitions setting aside Exts.P6 and P7 orders produced in W.P.(C)No.18201 of 2022. The learned Single Judge dismissed W.P.(C)No.12745 of 2021 and further held that the dismissal of the said writ petition will not stand in the way of the appellant to initiate proceedings to claim damages from the Government for the loss, if any, caused to her due to non-implementation of the directions in Exts.P1 and P2 judgments. Being aggrieved, the appellant filed the present writ appeals.

5. Heard the learned counsel for the appellant, the learned counsel for the Manager and Headmaster and the learned Senior Government Pleader.

6. The learned counsel for the appellant would submit that when Exts.P6 and P7 Government orders in W.P.(C)No.18201 of 2022 are set aside by the learned Single Judge, Ext.P4 produced in W.P.(C)No.12745 of 2021 will subsist and the appellant is entitled for the benefit of the directions issued in that order for creation of supernumerary post in view of Exts.P1 and P2 judgments of this Court. The learned Single Judge grossly erred in dismissing W.P.(C)No.12745 of 2021, and the learned Single Judge ought to have directed reinstatement of the appellant notionally in service with effect from 05.11.2007 and granted all consequential benefits, including arrears of salary, pension, DCRG and commuted value of pension.

7. On the other hand, the learned counsel for the Manager and the Headmaster submitted that Ext.P4 order produced in W.P.(C)No.12745 of 2021 is withdrawn by Ext.P6 order in W.P.(C)No.18201 of 2022, which was further modified by Ext.P7 order produced therein. Though in Exts.P1 and P2 judgments there was a direction to create a supernumerary post to accommodate the appellant, the Government had not created any supernumerary post. The appellant has already attained the age of superannuation, and hence she cannot be reinstated by creating a supernumerary post at present. Moreover, she was gainfully employed in another school, as evident from Exts.P8 and P9 documents in W.P.(C)No.18201 of 2022. In Exts.P1 and P2 judgments, it is made clear that the rights of the persons already appointed by the Manager will not be affected by that judgments and therefore, Exts.P6 and P7 orders produced in W.P.(C)No.18201 of 2022 have no legs to stand.

8. The learned Senior Government Pleader would submit that the Government has not created a supernumerary post, though it was directed in Exts.P1 and P2 judgments of this Court. Since the Secretary, General Education Department has no right to create such a post, by Exts.P6 and P7 orders produced in W.P.(C)No.18201 of 2022, the Government modified previous orders. While examining to create a supernumerary post to accommodate the appellant, it was found that there existed a vacancy since the Headmistress of the school retired on 31.03.2020, and the Manager made the appointment without considering the claim of the appellant. Therefore, without creating a supernumerary post, the Government issued a direction to the Manager to reinstate the appellant in the vacancy of Headmistress and revised the direction rectifying the factual errors in Ext.P6 order produced in W.P.(C)No.18201 of 2022 by Ext.P7 order. The learned Senior Government Pleader further submitted that it is as per Note 4 of Rule 56B of Chapter VII of Part I of Kerala Service Rules, the District Educational Officer issued the order dated 02.03.2021 creating a supernumerary post.

9. We have carefully verified the materials on record and appreciated the rival arguments addressed at the Bar. By Ext.P1 judgment dated 20.10.2017 in W.P.(C) Nos.8640 of 2008 and 28764 of 2009, this Court directed implementation of the order of the Deputy Director of Education to reinstate the appellant by creating a supernumerary post. The said judgment attained finality by Ext.P2 judgment dated 06.02.2020 in W.A.Nos.1068 of 2018 and 1362 of 2018. Thereafter, the Secretary, General Education Department issued Ext.P4 order dated 09.11.2020 to initiate steps to appoint the appellant by creating a supernumerary post. It is in pursuance of Ext.P4 order, Ext.P5 order dated 01.03.2021 was issued by the Director of General Education and a supernumerary post was created by the District Educational Officer by Ext.P6 order dated 02.03.2021. When Exts.P1 and P2 judgments have attained finality, the Government cannot issue Exts.P6 and P7 orders dated 24.05.2022 and 12.01.2023, respectively, produced in W.P.(C) No.18201 of 2022, deviating from the directions in those judgments. Therefore, the learned Single Judge is right in setting aside Exts.P6 and P7 orders produced in W.P.(C)No.18201 of 2022.

10. It is also gatherable from the materials on record that while passing Exts.P1 and P2 judgments, this Court refused to interfere with the appointments already made by the Manager in view of the fact that at the time of making those appointments, the appellant was out of service, being terminated. Moreover, a reading of Note 4 of Rule 56B of Chapter VII of Part I KSR also provides creation of such a supernumerary post. The said note read thus;

                  "Note 4.- A permanent post vacated by the dismissal, removal, compulsory retirement or reduction of a Government servant to a lower service, grade or post or to a lower time-scale should not be filled substantively until the expiry of the period of one year from the date of such dismissal, removal, compulsory retirement or reduction, as the case may be. Where on the expiry of the period of one year, the permanent post is filled and the original incumbent of the post is reinstated thereafter, he should be accommodated against any post which may be substantively vacant in the grade to which his previous substantive post, belonged. If there is no such vacant post, he should be accommodated against a supernumerary post which should be created in this grade with proper sanction and with the stipulation that it would be terminated on the occurrence of the first substantive vacancy in that grade."

(Underline supplied)

11. The learned Single Judge dismissed the prayer of the appellant for reinstatement on finding that Ext.P6 order of the District Educational Officer sought to be implemented was subsequently modified by Exts.P6 and P7 orders in W.P.(C)No.18201 of 2022. Moreover, the learned Single Judge found that even though this Court by Exts.P1 and P2 judgments directed the Government to create a supernumerary post to accommodate the appellant, she has not taken any action for violation of the orders when the Government failed to create a supernumerary post to accommodate her. But, when the pleadings in W.P.(C)No.12745 of 2021 would show that the appellant had even filed a Con.Case(C)No.1312 of 2020 before this Court for violation of Exts.P1 and P2 judgments, the learned Single Judge erred in holding that the appellant did not take any action for violation of the directions issued by this Court. Having found that the Government was duty-bound to create a supernumerary post as directed in Exts.P1 and P2 judgments, the learned Single Judge ought not to have relegated the appellant to a further litigation to claim damages for the loss, if any, caused to her due to the non- implementation of the directions in Exts.P1 and P2 judgments.

12. Having considered the entire pleadings and materials on record, we find that the Government has grossly erred in passing Exts.P6 and P7 orders produced in W.P.(C)No.18201 of 2022, contrary to the directions in Exts.P1 and P2 judgments which have attained finality. The Government ought to have created a supernumerary post as directed in Exts.P1 and P2 judgments to accommodate the appellant. If such a course had been adopted in time, the appellant would have worked in the post entitled to her in the school for a sufficiently lengthy period. The Manager of the School also contributed to the same by not appointing the appellant when the post of Headmistress fell vacant. The facts of the instant case would show that the respondents have shown gross disregard for the direction of this Court issued in the interparty dispute in Exts.P1 and P2 judgments.

13.    It is true that from Exts.P8 and P9 documents produced in W.P.(C)No.18201 of 2022, it can be gathered that the appellant was employed in some other school while she was out of service. But the said school, as gatherable from those documents themselves, is not an aided school. Doing duty in some other school to make a livelihood cannot be termed as gainful employment when compared to the benefits that the appellant would have accrued if Exts.P1 and P2 judgments were promptly complied with by the authorities concerned. In such circumstances, we are of the view that the impugned judgment passed by the learned Single Judge is liable to be set aside.

                  In the result, these writ appeals are disposed of by setting aside the impugned judgment dated 18.06.2025 passed by the learned Single Judge in W.P.(C)Nos.12745 of 2021 and 18201 of 2022 and the writ petitions are disposed of directing the competent among the respondents to take immediate steps to reinstate the appellant in service notionally with effect from 05.11.2007 and grant all consequential benefits to her expeditiously, at any rate, within a period of three months from the date of receipt of a copy of this judgment. It is made clear that the Government is entitled to pass further orders in view of Ext.P4 order dated 09.11.2020 to make good resultant financial liability by the aforesaid notional reinstatement of the appellant, in accordance with law.