Anithakumari K.S. v. Siji V. Sivaram and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 26TH DAY OF NOVEMBER 2014/5TH AGRAHAYANA, 1936 WA.No. 897 of 2013 () IN WP(C).34583/2010 ------------------------------------------- AGAINST THE JUDGMENT IN WP(C) 34583/2010 of HIGH COURT OF KERALA DATED 12-04-2013 ## APPELLANT/4TH RESPONDENT : ---------------------------------------------- ANITHAKUMARI K.S., AGED 45 YEARS, W/O. P.S.THULASIDHARAN PILLAI, H.S.A.MATHEMATICS S.N.VOCATIONAL HIGHER SECONDARY SCHOOL, NANKICITY KANJIKUZHI P.O., IDUKKI DISTRICT-685 602. BY ADVS.SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER ## RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3: ------------------------------------------------------------------------------ ## 1. SIJI V. SIVARAM H.S.A.MATHEMATICS S.N.VOCATIONAL HIGHER SECONDARY SCHOOL, NANKICITY KANJIKUZHY P.O., IDUKKI DISTRICT. ## 2. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT DEPARTMENT OF GENERAL EDUCATION GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3. DISTRICT EDUCATIONAL OFFICER THODUPUZHA-685 565. ## 4. THE MANAGER S.N.VOCATIONAL HIGHER SECONDARY SCHOOL, NANKICITY KANJIKUZHY P.O., IDUKKI DISTRICT-685 602. R1 BY SMT.I.SHEELA DEVI R2 & R3 BY SR.GOVERNMENT PLEADER SRI P.M.SANEER R4 BY ADV. SRI.A.N.RAJAN BABU THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 26-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **ANTONY DOMINIC & ANIL K.NARENDRAN, JJ. -------------------------------------------------Writ Appeal No.897 OF 2013 -------------------------------------------------DATED THIS THE 26[th] DAY OF NOVEMBER, 2014** ## **JUDGMENT** ## **ANIL K.NARENDRAN, J** . The appellant is the 4[th] respondent in W.P.(C)No.34583/2010 filed by the 1[st] respondent herein seeking a writ of certiorari to quash Ext.P12 Government Order dt.29.10.2010 and Ext.P13, proceedings dt.4.11.2010 of the 3[rd] respondent and seeking a writ of mandamus commanding the 3[rd] respondent to approve the appointment of the 1[st] respondent as HSA (Maths) with effect from 1.6.2009 in S.N.Vocational Higher Secondary School, a school managed by the 4[th] respondent, with all consequential benefits. The learned Single Judge by judgment dt.12.4.2013 allowed the Writ Petition setting aside Exts.P12 and P13 and the 3[rd] respondent was directed to approve the appointment of the 1[st] respondent as HSA (Maths), with effect from 29.6.2009, within a period of 2 months from the date of receipt of a copy of the judgment. It is aggrieved by the said judgment of the learned Single Judge, the appellant is before us in this Writ Appeal. 2. We heard arguments of the learned counsel for the appellant, W.A.No.897/13 -2- the learned counsel appearing for the 1[st] respondent-writ petitioner, the learned Senior Government Pleader appearing for respondents 2 and 3 and also the learned counsel appearing for the 4[th] respondent. 3. The 1[st] respondent joined service as HSA(Maths) in S.N.Vocational Higher Secondary School on 29.10.1998 against the vacancy which arose on account of the appointment of the appellant as HSST under the 25% quota earmarked for qualified HSAs. The appointment of the 1[st] respondent as HSA(Maths), was not initially approved by the 3[rd] respondent. Later, on an appeal filed by the 4[th] respondent before the Director of Public Instruction, the same was ordered to be approved vide Ext.P2 order dt.6.3.2000 and pursuant to that order, her appointment as HSA(Mathematics) was approved with effect from 29.10.1998 by order dt.12.4.2000 of the 3[rd] respondent and an endorsement to that effect was also made on Ext.P1 order of appointment. While working as HSA(Maths), the 1[st] respondent was retrenched from the service on 15.7.2003 due to division fall. Later, she was re-appointed as HSA(Maths) by Exhibit P4 order of appointment, with effect from 29.6.2009, in the vacancy of one Suresh N.C., HSA(Maths) who was promoted as the Headmaster of the school in a vacancy which had arisen on 5.1.2009. 4. On the other hand, the appellant was initially appointed as W.A.No.897/13 -3- HSA(Maths), in S.N.Vocational Higher Secondary School, on 14.9.1998, in a permanent vacancy. While continuing as such, she was given appointment as HSST(Mathematics) in the 25% quota earmarked for qualified HSAs, with effect from 29.10.1998. As on the date of such appointment, the appellant was having 41 days of service as HSA(Maths) and her appointment from 14.9.1998 to 28.10.1998 was later approved by the 3[rd] respondent by order dt.18.6.1999 and an endorsement to that effect was also made on Ext.P3 order of appointment. The appointment of the appellant as HSST(Mathematics) was under challenge by a rightful claimant before this Court and in the decision reported in **N.M. Gigimol** v. **Director of Higher Secondary Education and another (2008 (1) KLT 278)** this Court held that, since the appellant was not an approved teacher as on the date of occurrence of the vacancy of HSST(Mathematics), she had no right to claim that post. 5. A reading of the judgment of this Court in **Gigimol's case (supra)** would show that, the appellant herein who had put only 41 days of service as HSA(Maths) was appointed as HSST(Mathematics) through a selection process conducted by the Manager, overlooking the claim of Smt.N.M. Gigimol who had put more than 6 years' approved service as HSA(Maths). The said Teacher questioned the W.A.No.897/13 -4- action of the Manager and by the judgment in O.P.No.23610/1998, this Court ordered disposal of her representation by the Director of Higher Secondary Education. The Director by order dt. 14.6.1999 examined the rival contentions and held that, the Manager had, in effect, defeated the purpose of the Government order reserving 25% vacancies for HSAs and the attempt of the Manager was only to see that Smt.Gigimol was denied the post of HSST. The Director, therefore, cancelled the appointment of the appellant herein as HSST and directed the Manager to consider the representation submitted by Smt.Gigimol claiming the post of HSST(Mathematics) and issue appropriate orders. Aggrieved by the said order, the Manager preferred a review petition before the Government, which was allowed by an order dt. 11.11.1999, setting aside the order passed by the Director. The said order was under challenge in O.P.No.29517/1999 filed by Smt.Gigimol and this Court by judgment dt. 21.1.2000 set aside the said Government order and the Government was directed to consider the matter afresh. 6. Pursuant to the direction contained in the judgment dt. 21.1.2000, the Government issued Exhibit P8 order. In Exhibit P8, the Government found that, the appellant herein had only 41 days service as HSA(Maths) in the school. Her appointment as HSA(Maths) was not W.A.No.897/13 -5- approved at the time of selection. Hence she cannot claim appointment as HSST(Mathematics) in the 25% quota earmarked for qualified HSAs. However, considering the facts, the Government ordered that the post of HSST(Mathematics) in question will be notified forthwith and the selection process should be made afresh after observing all formalities and salary will be paid to appellant herein for the period she worked. Exhibit P8 Government order to the extent it orders fresh selection by the Manager, was under challenge in O.P.No.3515/2001 filed by Smt.Gigimol. A Division Bench of this Court in the judgment in **Gigimol's case (supra)** (judgment in W.A.Nos.797/2007 and connected cases arising out of O.P.No.3515/2001) set aside Exhibit P8 Government order holding that, it is not legal to go for a fresh selection, especially in the light of the principle laid down by the Apex Court in Valsala Kumari Devi v. Director, Higher Secondary Education (2007 (8) SCC 533) that, so far as 25% quota for appointment to the post of HSST is concerned, criterion is seniority and suitability. The Apex Court interpreted the words seniority and suitability to mean seniority and qualification and requisite experience and not the comparative assessment of suitability. If that be so, there is no question of a fresh selection since Smt.Gigimol was the senior most qualified HSA available in the school, when the vacancy of HSST arose W.A.No.897/13 -6- on 24.8.1998. The appellant herein was not in service on the date of occurrence of vacancy. Further, she did not have approved service of HSA. 7. The 1[st] respondent was re-appointed as HSA(Maths) by Exhibit P4 order of appointment, with effect from 29.6.2009, in the vacancy of one Suresh N.C., HSA(Maths) who was promoted as the Headmaster of the school. When the appointment of the 1[st] respondent as HSA(Maths) with effect from 29.6.2009 was not approved, she has submitted Ext.P5 representation before the Government claiming the benefit of 1:40 teacher-student ratio contemplated in Exhibit P6 Government order dt. 12.6.2009. It was further contended that, the appellant is not a Rule 51A claimant as she had worked only 41 days as HSA(Maths) prior to her appointment as HSST. 8. The Government by Exhibit P9 order dt.22.12.2009 directed the Manager to appoint the 1[st] respondent as HSA(Maths) in the vacancy of Sri.Suresh N.C., HSA(Maths), who was promoted as Headmaster from 1.6.2009, as per the staff fixation order for the academic year 2009-10, by extending the benefit of Exhibit P6 Government order dt.12.6.2009, as she became a Rule 51A claimant before 16.11.2002. The 4[th] respondent Manager appointed the appellant as HSA(Maths) with effect from 1.6.2009 in the vacancy of W.A.No.897/13 -7- Sri.Suresh N.C. who was promoted as the Headmaster of the school and sought approval for her appointment, which was rejected by the 3[rd] respondent and the said order was under challenge in an appeal filed by the 4[th] respondent before the Deputy Director of Education, which also ended in dismissal by Exhibit P10 order dt. 7.1.2010, holding that the appellant is not a Rule 51A claimant in the High School section. It was also noticed in Exhibit P10 order that, the 1[st] respondent, a Rule 51A claimant, was not given re-appointment till 1.6.2009 and in Exhibit P9 Government Order, the Government has held that she is entitled for appointment to that post. 9. Challenging Exhibits P9 and P10, the appellant approached this Court in W.P.(C)No.2837/2010 complaining violation of principles of natural justice and this Court by Exhibit P11 judgment set aside Exhibits P9 and P10 and directed the Government to pass fresh orders after affording an opportunity of being heard to all concerned. Pursuant to the said direction, the Government, after hearing both sides, issued Exhibit P12 order dt.29.10.2010 upholding the claim of the appellant. The conclusion made by the Government in Exhibit P12 order reads thus: _“The appointment order dated 14.9.1998 issued to Smt.Anithakumari (Ext.P1) states that she was_ W.A.No.897/13 -8- _appointed against a resignation vacancy w.e.f.14.9.1998 and it was an appointment without time limit. The span of approval was limited from 14.9.1998 to 28.10.1998, only on account of her transfer appointment as HSST and she had continued in that post upto 30.11.2008. She was ousted from the post as per the Court direction in favour of a better claimant. Smt.Siji V.Sivaram was appointed on 29.10.1998 against the transfer vacancy of Smt.Anithakumari and continued as such up to 15.7.2003. So the vacancy in which Smt.Siji V.Sivaram continued was virtually that of Smt.Anithakumari. So when the vacancy as on 1.6.2009 arose, the claim of Smt.Anithakumari under Rule 51A Chapter XIV A KER cannot be overlooked. The Rule 51A claim of Smt.Siji V.Sivaram, who was to be considered as a leave substitute is below Smt.Anithakumari. The whole aspect of the issue was not before Government while deciding the matter in GO(Rt.)No.5373/2009/G.Edn. dated 22.12.2009, which was quashed by the Hon'ble Court now.”_ In the said circumstances, the Government by Exhibit P12 ordered approval of the appointment of the appellant as HSA(Maths) with effect from 1.6.2009. Pursuant to the direction contained in Exhibit P12, the 3[rd] respondent by Exhibit P13 directed the Manager to recover the W.A.No.897/13 -9- salary and other benefits disbursed to the 1[st] respondent till date and remit it to the Government. The Manager was further directed to remove the 1[st] respondent from service with immediate effect as approval for her appointment was declined by the Government. It was aggrieved by Exhibits P12 and P13 orders, the 1[st] respondent had approached this Court in W.P.(C)No.34583/2010. During the pendency of the Writ Petition, by Ext.P15 proceedings of the 4[th] respondentmanager, the 1[st] respondent was allowed to continue from 1.6.2010 as HSA(Maths) in the vacancy of Sri Radhakrishna Pillai who has been promoted as Headmaster, subject to the approval of the 3[rd] respondent. 10. The learned Single Judge came to the conclusion that, on a bare reading of Rule 51A, it is abundantly clear that, the appellant would not fall in any of the categories of qualified thrown out teachers mentioned therein. The appellant was appointed as HSA(Maths) on 14.9.1998 and she was relieved from the said post and appointed as HSST(Maths) on 26.10.1998. Rule 51A claim can arise only in respect of qualified teachers who are relieved as per Rule 49 or Rule 52 or on account of termination of vacancies. None of these situations had arisen in respect of the appellant. Whereas, the 1[st] respondent was working as HSA(Maths) from 29.10.1993 till 15.7.2003, the date on W.A.No.897/13 -10- which she was retrenched due to division fall and being a qualified teacher having approved service, who was retrenched on account of termination of vacancy, has a preferential claim under Rule 51A in the subsequent vacancy which had arisen on account of promotion of one Suresh as Headmaster. Such being the situation, it is the 1[st] respondent who is entitled to be appointed in the vacancy of HSA (Maths) that had arisen on account of promotion of one Suresh as Headmaster, in recognition of her statutory claim under Rule 51A of Chapter XIVA KER. 11. As we have already noticed, the appellant was originally appointed as HSA(Maths), on 14.9.1998, in a permanent vacancy. While continuing as such, she was given appointment as HSST (Mathematics) in the 25% quota earmarked for qualified HSAs, with effect from 29.10.1998. As on that date, the appellant was having 41 days of service as HSA(Maths) and her appointment from 14.9.1998 to 28.9.1998 was later approved by the 3[rd] respondent by order dt.18.6.1999 and an endorsement to that effect was also made on Ext.P3 order of appointment. 12. But for her appointment as HSST(Mathematics) on 29.10.1998, the appellant would have continued as HSA(Maths) in that permanent vacancy till it was abolished due to division fall on W.A.No.897/13 -11- 15.7.2003. Going by Rule 7A(3) of Chapter XIVA KER, as it stood during the relevant time, vacancies, the duration of which is two months or less ,shall not be filled up by any appointment. As the initial appointment of the appellant was against a permanent vacancy of HSA (Maths), the prohibition contained in Rule 7A(3) has no application on such appointment made on 14.9.1998. 13. On the other hand, the 1[st] respondent was originally appointed as HSA(Maths) on 29.10.1998, against the vacancy which arose on account of the appointment of the appellant as HSST (Mathematics), under the 25% quota earmarked for qualified HSAs. Therefore, but for the appointment of the appellant as HSST (Mathematics), the 1[st] respondent would not have secured appointment as HSA(Maths) on 29.10.1998. As evident from Ext.P2 order of the DPI dated 6.3.2000, the 3[rd] respondent as well as the Deputy Director of Education, Idukki, declined approval for the initial appointment of the 1[st] respondent as HSA(Maths) with effect from 29.10.1998, as there was no approval for the appointment of the appellant as HSST(Mathematics) with effect from 29.10.1998. Aggrieved by the same, the 4[th] respondent-Manager filed appeal before the DPI. During the pendency of that appeal, the 3[rd] respondent by order dated 18.6.1999 granted approval for the appointment of the W.A.No.897/13 -12- appellant as HSA(Maths) for the period from 14.9.1998 to 28.10.1998, based on an order passed by the Deputy Director of Education, Idukki, and an endorsement to that effect is made by the 3[rd] respondent on Ext.P1 order of appointment. Further, as stated in Exhibit P2 order, the appointment of the appellant as HSST(Mathematics) with effect from 29.10.1998 was also approved by that time, by the Government, vide G.O.(Rt.)No.4996/99/G.Edn. dated 11.11.1999. It was only in such circumstances, the appointment of the 1[st] respondent as HSA(Maths) with effect from 29.10.1998 was ordered to be approved vide Ext.P2 order of the DPI. Therefore, the approval granted to the appointment of the 1[st] respondent as HSA(Maths) with effect from 29.10.1998 was dependent upon the approval for the appointment of the appellant as HSST(Mathematics) with effect from 29.10.1998. 14. Going by Rule 51A Chapter XIVA of KER, qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in the same or higher or lower category of teaching posts, for which he is qualified that may arise in schools under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred, provided they have not been appointed in the permanent vacancies in schools under any other Educational Agency. W.A.No.897/13 -13- 15. In the case on hand, the appellant was initially appointed as HSA(Maths), vide Ext.P3 order of appointment, with effect from 14.9.1998, in a permanent vacancy. The approval for her appointment as HSA(Maths) was limited for the period from 14.9.1998 to 28.10.1998, only on account of her subsequent appointment as HSST (Mathematics), with effect from 29.10.1998, in the 25% quota earmaked for qualified HSAs and she continued in that post till 30.11.2008, the date on which she was ousted from that post, in order to accommodate a rightful claimant. On the other hand, the appointment of the 1[st] respondent as HSA(Maths) was in a vacancy which had arisen on 29.10.1998, on account of the appointment of the appellant as HSST(Mathematics). The 1[st] respondent continued as such in that vacancy till 15.7.2003. The appellant, but for her appointment as HSST(Mathematics) on 29.10.1998, would have continued as HSA (Maths) in that vacancy, till it was abolished due to division fall on 15.7.2003. Therefore, the vacancy in which the 1[st] respondent continued HSA(Maths) till 15.7.2003 was virtually that of the appellant. 16. As we have already noticed, the approval granted to the appointment of the 1[st] respondent as HSA(Maths) with effect from 29.10.1998 was dependent upon the approval for the appointment of the appellant as HSST(Mathematics) with effect from that date. If that W.A.No.897/13 -14- be so, but for the abolition of the vacancy on 15.7.2003 due to division fall, the appellant would have been accommodated as HSA(Maths) in the vacancy in which the 1[st] respondent continued till 15.7.2003. In such circumstances, the appellant can treated as a qualified HSA (Maths) relieved on account of termination of vacancy, who is entitled for preferential right for appointment to future vacancies, in terms of Rule 51A of Chapter XIVA of KER. Further, the 1[st] respondent who was appointed as HSA(Maths) in a vacancy which had arisen on 29.10.1998, on account of the appointment of the appellant as HSST (Mathematics), cannot have any preference above the appellant who was initially appointed as HSA(Maths) on 14.9.1998, in the matter of preferential right under Rule 51A of Chapter XIVA of KER. This is for the reason that, as per Note 1 to Rule 51A,if there are more than one claimants under this rule, the order of preference shall be according to the date of first appointment. Therefore, in the vacancy of HSA(Maths) that has arisen on 1.6.2009, the appellant should have been given appointment and it was overlooking the preferential right of the appellant, the 4[th] respondent-Manager appointed the 1[st] respondent as HSA(Maths), with effect from 29.6.2009. Therefore, the Government rightly approved the appointment of the appellant as HSA(Maths) with effect from 1.6.2009, by Ext.P12 order. W.A.No.897/13 -15- 17. We find absolutely no illegality in Ext.P12 order and Ext.P13 consequential communication, warranting any interfere by this Court. Therefore, the judgment of the learned Single Judge in interfering with Exts.P12 and P13 and directing the Educational Officer to approve the appointment of the 1[st] respondent as evidenced by Ext.P4 cannot be sustained. In the result, the Writ Appeal is allowed. W.P.(C)No.34583/2010 is dismissed, setting aside the judgment of the learned Single Judge dated 12.4.2013. No order as to costs. Sd/- **ANTONY DOMINIC** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn