High Court of KeralaSingle Judge2011-11-29Petition disposed of with directions to impleme...

Augusta Vimala Vincent v. State of Kerala and Others

Case / Petition Number:WP(C).No. 8647 of 2006(D)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. Siri Jagan
Judgment Date: 2011-11-29
Court Decision / Holding: The petition is disposed of with directions: the 5th respondent shall issue a fresh appointment order appointing the petitioner from 14.09.1998 to the 4th respondent within two weeks; the 4th respondent shall ensure compliance within two weeks thereafter; arrears of salary shall be disbursed within one month thereafter, all in accordance with Ext.P6.
Final Disposition: Petition disposed of with directions to implement Ext.P6 from 14.09.1998, issue fresh appointment order, ensure compliance, and pay arrears; Ext.P7 deemed not in accordance with Ext.P6; arrears to be paid within specified period, subject to compliance by authorities.

Parties to the Case

Appellants / Petitioners

Augusta Vimala Vincent

Respondents

State of Kerala, represented by Secretary to Government, General Education Department, Government Secretariat, Thiruvananthapuram
Director of Public Instructions, Jagathy, Thiruvananthapuram-14
Dy. Director of Education, Ernakulam, Cochin-30
District Educational Officer, Ernakulam
The Corporate Educational Agency, Diocese of Kottappuram, P.O. Kottappuram, Kodungallur
Headmaster, St. Mary’s High School, Pallipport, Ernakulam District
Jolly Raphel, HSA (NS) St. Mary’s High School, Pallipport, Ernakulam District

Legal Representation & Advocates

Counsels for Petitioners

• V. A. Muhammed
• K. E. Hamza

Counsels for Respondents

• Noble Mathew

Case Synopsis & Summary

Augusta Vimala Vincent, the petitioner in W.P.C. No.8647/2006, challenges Ext.P6, a Government order cancelling the appointment of Smt. Helen Joys and upholding Vincent as a 51A claimant with effect from 14.09.1998 for the post of H.S.A. (Social Studies) in St. Mary’s High School, Pallipport. Ext.P6 would thus entitle Vincent to appointment from 14.09.1998 and to salary arrears from that date. The Government later issued Ext.P7 appointing her only from 05.06.2002, which the petitioner contends is contrary to Ext.P6, and seeks mandamus to implement Ext.P6 in its entirety. The Respondents argue that there exists a superior claim by the 7th respondent and that Ext.P6 cannot be implemented to pre-date the vacancy; consequently, the appointment can only be from a date when a vacancy arises, as reflected in Ext.P7. The Court notes that Ext.P6 has not been challenged by any party and that Ext.P7 is inconsistent with Ext.P6. Accordingly, the Court disposes of the petition by directing the 5th respondent to issue a fresh appointment order in terms of Ext.P6 appointing the petitioner from 14.09.1998 to the 4th respondent within two weeks, the 4th respondent to ensure compliance within a further two weeks, and arrears to be paid within one month thereafter.

Provisions of Law Cited

Kerala Education Rules (KER)Section 51A (as a claimant)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends Ext.P6 has attained finality and must be implemented, entitling her to appointment from 14.09.1998 as a 51A claimant and to salary arrears from that date. She challenges Ext.P7 (02.06.2002) which limits her appointment from a later date, arguing there is no valid challenge to Ext.P6 and that the 7th respondent has no superior claim sufficient to override Ext.P6. The petitioner seeks mandamus to appoint her to the H.S.A. (SS) vacancy that arose on 14.09.1998, and requests quashing of Exhibits P7, P9, P12, P13, P14, and related reliefs including seniority and vacancy allocations.

Contentions of Respondents

The Government Pleader contends a superior claim exists in respect of the 7th respondent and Ext.P6 cannot be implemented to pre-date the vacancy; appointment can occur only from the date a vacancy arises, which is reflected in Ext.P7. It is argued Ext.P6 is not to be given effect in isolation and that the vacancy from 1998 could not be unilaterally allocated to the petitioner without considering other claimants and KER rules.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
K.Subadhra v. State of Kerala	W.A No 1218/91	Positive	Cited to support the principle that government/educational orders may be implemented in terms of Kerala Education Rules (KER) and consistent judgments; used as authority for directing relief in terms of KER.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933** **WP(C).No. 8647 of 2006(D)** **-------------------------** **PETITIONER(S):** - **----------------------** **AUGUSTA VIMALA VINCENT, W/O.WILSON GEORGE, AGED 43 YEARS, HSA (ENG) ST.MARY'S HIGH SCHOOL, PALLIPORT, ERNAKULAM DISTRICT.** **BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA** **RESPONDENT(S):** - **-----------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM-14.** **3. DY.DIRECTOR OF EDUCATION, ERNAKULAM, COCHIN-30.** **4. DISTRICT EDUCATIONAL OFFICER, ERNAKULAM.** **5. THE CORPORATE EDUCATIONAL AGENCY, DIOCESE OF KOTTAPPURAM, P.O.KOTTAPPURAM, KODUNGALLUR.** **6. HEADMASTER, ST.MARY'S HIGH SCHOOL, PALLIPORT, ERNAKULAM DISTRICT.** **7. JOLLY RAPHEL, HSA (NS) ST.MARY'S HIGH SCHOOL, PALLIPORT, ERNAKULAM DISTRICT.** **R1 TO R4 BY GOVERNMENT PLEADER SRI. NOBLE MATHEW** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SD** ## **WPC NO. 8647/2006** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** - **P1 COPY OF THE APPOINTMENT ORDERS AND THE APPROVAL THEREOF (DATED 18.09.1995 (Endt.B1./12046/95/D.Dis DATED 18.01.1996) 3-1-1996 (Endt.B1.474/96/ D.Dis. DATED 30-4-1996) 9-9-1996 (Endt.B1.10447/96/D.Dis. D.Dis DATED 3-2-1997 AND 23-7-1998 (Endt.B1. 6854/96/D.Dis. DATED 28-11-1998)** - **P2 COPY OF THE ORDER NO. 8689/98/B1 OF THE DIST. Edl. OFFICER, ERNAKULAM** - **P3 COPY OF THE ORDER NO. B2-8102/99 OF THE Dy. DIRECTOR OF Edn., ERNAKULAM** - **P4 COPY OF THE ORDER NO. ET4/92482/99/K.Dis. OF THE 2ND RESPONDENT** - **P5 COPY OF THE ORDER OF APPOINTMENT ALONG WITH THE APPROVAL THEREOF** - **P6 COPY OF THE G.O. (Rt) No. 897/2002/G.Edn. OF THE GOVERNMENT** - **P7 COPY OF THE ORDER OF APPOINTMENT ALONG WITH THE APPROVAL THEREOF** - **P8 COPY OF THE INTERIM ORDER OF THIS HONOURABLE COURT IN C.M.P. No. 11952/2003 IN O.P. No. 14016/2002** - **P9 COPY OF THE LETTER No. B1/12337/02 OF THE Dist. Edl. OFFICER** - **P10 COPY OF THE ORDER No. D.Dis.B1/9909/2001 OF THE Dist. Edl. OFFICER** - **P11 COPY OF THE LETTER OF THE PETITIONER** - **P12 COPY OF THE G.O. (Rt.) No. 4126/2003/Gl. Edn. OF THE GOVERNMENT** - **P13 COPY OF THE LETTER No. 58406/A2/2003/Gl.Edn. OF THE GOVERNMENT** - **P14 COPY OF THE ORDER NO. B2-10321/03 OF THE Dy. DIRECTOR OF Edn. ERNAKULAM** - **P15 COPY OF THE APPEAL PETITION FILED BEFORE THE 2ND RESPONDENT** - **P16 COPY OF THE NOTICE No. RA (2)/24870/04 OF THE 2ND RESPONDENTS** - **P17 COPY OF THE G.O. (P)No. 112/2001/G. Edn. OF THE GOVERNMENT** - **P18 COPY OF THE ORDER No. D.Dis.75340/2001/RA(2)/DPI OF THE 2ND RESPONDENT** - **P19 COPY OF THE G.O. (P) No.286/98/G.Edn. OF THE GOVERNMENT** ## **WPC NO. 8647/2006** **P20 COPY OF THE STAFF FIXATION ORDER NO. D.Dis.7541/B1/02 OF THE Dist. Edn. Or. P21 COPY OF THE ORDER OF APPOINTMENT ALONG WITH THE APPROVAL THEREOF P22 COPY OF THE ORDER OF APPOINTMENT P23 COPY OF THE COMMON SENIORITY LIST** **TRUE COPY** **P.S. TO JUDGE** ## **SD** ## **S. SIRI JAGAN, J.** ------------------------------------------- ## W.P.(C) No.8647 of 2006 ---------------------------------------------Dated this the 29[th] day of November, 2011 ## **JUDGMENT** In a dispute between Smt. Helen Joys and the petitioner for appointment to the post of HSA (Social Studies) in the Schools managed by the 5[th] respondent educational agency, the Government passed Ext.P6 order, the operative portion of which reads thus: “ In the circumstances, the order No.B1-5300/D.Dis dated 30.3.01 of the District Educational Officer, Ernakulam approving the appointment of Smt. Helen Joys is cancelled and the claim of Smt. Augusta Vimala Vincent for appointment with effect from 14.9.98 as a 51A claimant is upheld.” In implementation of the same, the Manager issued Ext.P7 order, whereby the petitioner was appointed only with effect from 5.6.2002, which was approved by the District Educational Officer. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “A. Issue a writ of mandamus or appropriate writ, order or direction directing the Respondents to give appointment in the vacancy of H.S.A. (SS) which had arisen on 14-9-98 in St.Mary's High School, Palliport with effect from the date of W.P.(C)No./10 2 occurrence of vacancy with full salary since then. B. Issue a writ of certiorari or appropriate writ, order or quashing Exhibit P7 order to the extent to which it limits the benefit from 2/7/2002. C. Issue a writ of certiorari or appropriate writ, order or quashing Exhibits P9, P12, P13 and P14. D. direct the respondents to sanction 16[th] division in St.Mary's High School, Palliport for the academic year 2001-2002 by applying 1:40 ratio. E direct the Respondents to accommodate the Petitioner in the 15[th] vacancy of H.S.A. (CORE) in St.Mary's High School, Palliport for the academic year 20012002. F direct the Respondents to sanction 16[th] division in St.Mary's High School, Palliport for the academic year 2002-2003 and also to accommodate the petitioner in the above vacancy. G direct the 2[nd] Respondent to consider and pass appropriate orders on Exhibit P15 in terms of KER and on the basis of the Judgment the division bench in K.Subadhra v. State of Kerala (W.A No 1218/91).” 2. The petitioner's contention is that Ext.P6 order has become final. As per that order, the petitioner is entitled to appointment with effect from 14.9.1998 as a 51A claimant. Therefore, the petitioner is entitled to be appointed with effect from 14.9.1998 and salary disbursed to her with effect from that date is the submission made. 3. The contention of the learned Government Pleader is that there is another teacher, namely, the 7[th] respondent, W.P.(C)No./10 3 who has superior claim over the petitioner and therefore, Ext.P6 order cannot be implemented as such. The appointment of the petitioner can only be with effect from a subsequent date when a vacancy to accommodate the petitioner arose, which only has been done by Ext.P7 is the contention of the learned Government Pleader. 4. I have considered the rival contentions in detail. Nobody has a case that Ext.P6 has been subjected to challenge either by the 7[th] respondent or the 5[th] respondent. As such, Ext.P6 order has to be implemented as such. In fact even in this writ petition, the 7[th] respondent has not filed any counter affidavit putting forward any contention as raised by the leaned Government Pleader. In Ext.P7 appointment order, the petitioner has been appointed only with effect from 5.6.2002. That is not in accordance with Ext.P6. 5. In the above circumstances, the writ petition is disposed of with the following directions: The 5[th] respondent shall forward a fresh appointment order appointing the petitioner with effect from 14.9.1998 to the 4[th] respondent within two weeks and the 4[th] respondent shall ensure that the 5[th] respondent complies with the said 4 W.P.(C)No./10 direction within two weeks from the date of receipt of a copy of this judgment. On receipt of the appointment order, the 4[th] respondent shall take appropriate action thereon in accordance with Ext.P6 judgment within a further period of one month therefrom. Arrears of salary due to the petitioner on that basis shall be disbursed to the petitioner within a further period of one month. ## **S. SIRI JAGAN, JUDGE** acd W.P.(C)No./10 5