Ajitha Mambayil v. State of Kerala & Others

**WP(C) NO. 13090 OF 2021 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943** ## **WP(C) NO. 13090 OF 2021** ## **PETITIONER/S:** AJITHA MAMBAYIL, AGED 53 YEARS, W/O. SATHYAN, VELLACHALIL HOUSE, NUT STREET, VADAKARA - 673 104, KOZHIKODE DISTRICT (FORMER UPSA, KADATHANAD RAJA'S HIGHER SECONDARY SCHOOL, PURAMERI, KOZHIKODE - 673 503). BY ADVS. V.A.MUHAMMED M.SAJJAD ## **RESPONDENT/S:** |1|STATE OF KERALA| |---|---| ||REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL| ||EDUCATION DEPARTMENT, SECRETARIAT ANNEXE II,| ||THIRUVANANTHAPURAM - 695 001.| |2|THE DIRECTOR OF GENERAL EDUCATION,| ||JAGATHY, THIRUVANANTHAPURAM - 695 014.| |3|THE DEPUTY DIRECTOR OF EDUCATION,| ||CIVIL STATION, KOZHIKODE DISTRICT - 673 001.| |4|THE DISTRICT EDUCATIONAL OFFICER,| ||VADAKARA, KOZHIKODE DISTRICT - 673 101.| |5|THE MANAGER,| ||KADATHANAD RAJA'S HIGHER SECONDARY SCHOOL, PURAMERI,| ||KOZHIKODE - 673503.| ||BY ADV R.K.MURALEEDHARAN| **WP(C) NO. 13090 OF 2021** **2** SMT NISHA BOSE, SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 13090 OF 2021** **3** ## **JUDGMENT** The petitioner states that she had two spells of approved service as UPSA in the years 1995 and 1999-2000 in the Kadathanad Raja’s Higher Secondary School, Purameri, an aided school managed by the 5th respondent. According to the petitioner, in recognition of her Rule 51A claim, she approached the 5th respondent and requested for reappointment. The petitioner contends that the request was rejected by the Manager. Being aggrieved, the petitioner is stated to have preferred Ext.P17 revision petition before the 1st respondent. It is in the afore circumstances that the petitioner is before this Court seeking the following directions:- - (i) declare that the petitioner is a Rule 51A claimant in the Respondent School. - (ii) issue a writ of mandamus or other appropriate writ, order or direction commanding the 5th respondent Manager to appoint the petitioner as UPSA and disburse the attendant benefits forthwith. - (iii) issue a writ of mandamus or other appropriate writ, order or direction commanding the 1st respondent to consider and dispose of Ext.P17 in the light of Exts.P10 to P16 with notice to the petitioner and within a time limit. 2. A counter affidavit has been filed by the 5th respondent. It is contended that the petitioner was in fact appointed as a leave substitute teacher in the school for the period from 4.7.1995 to 31.8.1995 as is evident from Ext.P1. **WP(C) NO. 13090 OF 2021 4** During the academic year 2019-2020, one additional post of UPST and one additional post of Full Time Menial had arisen in the school due to an increase in students strength. Since there were no Rule 51A claimants or any other statutory claimant awaiting regular appointment, the Managing Committee decided to promote and appoint Sri. Ajeesh P.K., a clerk of the school who was qualified to be appointed as UPST. He was appointed with effect from 15.7.2019 against the additional post and Smt.Supriya E.K. in the resultant vacancy. It is also stated that a certain Smt.Syama Varma K.S was appointed as UPST with effect from 23.7.2019 against the promotion vacancy of Anil Kumar P.K. as HST (SS). The appointments were approved by the 4th respondent. 3 According to the 5th respondent, in view of the law laid down by the Apex Court, if one were to be brought under the category of qualified teacher relieved on account of termination of vacancies, the amended Rule 7A(3) required to be satisfied. It is contended that a teacher who was relieved from the service under Rules 49 and 53 of Chapter XIV A of the KER, is entitled to get preference for appointment under Rule 51A only if the teacher has a minimum prescribed continuous service in an academic year as on the date of relief. 4. I have considered the submissions advanced. 5. The petitioner has no case that she had a minimum prescribed continuous **WP(C) NO. 13090 OF 2021 5** service for one clear academic year. In **Manager, VKNM Vocational Higher Secondary School v. State of Kerala** [2016 (1) KLT 489], the Apex Court while reversing the Judgment of a Full Bench of this Court in **Jayasree V State of Kerala (** 2014 (4) KLT 612) had occasion to rely on the principles laid down earlier in **State of Kerala v Sneha Cherian and Others** [2013 (1) KLT 755] wherein it was held that in view of the amendment to Rule 7A(3), in order for a qualified teacher to claim preferential appointment under the category "on account of termination of vacancies" as mentioned in Rule 51A, earlier appointment in such vacancies should have been for a duration of one full academic year namely, from 1st June of the previous year till the last day of March of the subsequent year so as to satisfy Rule 7A(3) as amended. It was held as follows in paragraph No.21 of the Judgement: “21. Therefore, going by the interpretation of amended R.7A(3) read along with R.51A, if one were to be brought under the category of qualified teacher relieved on account of termination of vacancies, the amended R.7A(3) required to be satisfied, namely, such engagement was lasted for one clear academic year as stipulated under R.1 and R.2A of Chapter VII of the Kerala Education Rules. The 5th respondent not having satisfied the said requirement there was no scope to allow her to press her claim under R.51A for a preferential appointment. Having regard to the said legal consequence, the relief granted by the 1st respondent in order dated 26/11/2011 cannot be sustained and consequently the directions issued by the High Court in the impugned judgment cannot also be sustained. The answers to the questions made by the Full Bench are also liable to be set aside and in its place, it must be held that the interpretation made by this Court in Sneha Cheriyan (supra) **WP(C) NO. 13090 OF 2021** **6** would alone prevail.” 6. In **Sneha Cherian** (supra) it was emphatically held that a teacher, who was relieved from service under Rule 49 and Rule 53 of Chapter XIV A of the KER, is entitled to get preference for appointment under Rule 51A only if the teacher has a minimum prescribed continuous service in an academic year as on the date of relief. 7. In that view of the matter, I find that no purpose would be served in directing the respondents to consider the Revision Petition filed by the petitioners. The reliance placed by the petitioner on certain orders passed by the Government cannot come to her rescue as this Court will not be justified in issuing a futile writ to perpetuate an illegality. In that view of the matter, I am not persuaded to grant the relief sought for. This petition will stand dismissed. No costs. SD/- **RAJA VIJAYARAGHAVAN V JUDGE** sru **WP(C) NO. 13090 OF 2021 7** ## **APPENDIX OF WP(C) 13090/2021** PETITIONER (S) EXHIBITS: Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 04.07.1995 AND APPROVAL THEREON. Exhibit P2 TRUE COPY OF THE RELIEVING ORDER OF THE PETITIONER ISSUED BY THE HEADMISTRESS OF THE SCHOOL DATED 31.08.1995. Exhibit P3 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 14.10.1999 AND APPROVAL THEREON. Exhibit P4 TRUE COPY OF THE RELIEVING ORDER OF THE PETITIONER DATED 08.02.2000 ISSUED BY THE HEADMISTRESS OF THE SCHOOL ALONG WITH TYPED COPY. Exhibit P5 TRUE COPY OF THE RELIEVING ORDER ISSUED BY THE HEADMISTRESS DATED 10.12.1999 ALONG WITH TYPED COPY. Exhibit P6 TRUE COPY OF THE RELIEVING ORDER ISSUED BY THE HEADMISTRESS DATED 08.02.2000. Exhibit P7 TRUE COPY OF THE RELIEVING ORDER ISSUED BY THE HEADMISTRESS DATED 30.01.2001. Exhibit P8 TRUE COPY OF THE LETTER NO.B5/9287/2011 /K.DIS. DATED 15.12.2011 OF THE DEO. Exhibit P9 TRUE COPY OF THE LETTER NO.B4/15937/19 DATED 04.07.2019 OF THE DDE. Exhibit P10 TRUE COPY OF THE G.O.(P) NO.4/2021/G.EDN. DATED 06.02.2021 OF THE GOVERNMENT. Exhibit P11 TRUE COPY OF THE G.O.(RT.) NO.1817/2021 /G.EDN. DATED 20.02.2021 OF THE GOVERNMENT. **WP(C) NO. 13090 OF 2021 8** Exhibit P12 TRUE COPY OF THE G.O.(RT.) NO.1871/2021 /G.EDN. DATED 23.02.2021 OF THE GOVERNMENT. - Exhibit P13 TRUE COPY OF THE G.O.(RT.) NO.1867/2021 /G.EDN. DATED 23.02.2021 OF THE GOVERNMENT. - Exhibit P14 TRUE COPY OF THE LETTER NO.37431/J3/ 2000/G.EDN. DATED 9TH OCTOBER 2000 OF THE GOVT. - Exhibit P15 TRUE COPY OF THE G.O.(P) NO.31/2006/GE DATED 9TH JANUARY 2006 OF THE GOVERNMENT. - Exhibit P16 TRUE COPY OF THE G.O.(RT.) NO.486/2020 /G.EDN. DATED 24.01.2020 OF THE GOVERNMENT. - Exhibit P17 TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 09.04.2021. (WITHOUT EXHIBITS) - Exhibit P18 TRUE COPY OF THE G.O.(RT) NO 4066/2021/G.EDN DATED 15.9.2021 OF THE GOVERNMENT. RESPONDENT (S) EXHIBITS: NIL