Bindu C. Nair v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY, THE 26TH DAY OF AUGUST 2014/4TH BHADRA, 1936** ## **WP(C).No. 1223 of 2012 (C)** ## **---------------------------** ## **PETITIONER:** ## **-------------------** **BINDU C.NAIR, HIGH SCHOOL ASSISTANT (PHYSICAL SCIENCE) VISWABHARATHI SREE NARAYANA HIGHER SECONDARY SCHOOL , NEEZHOOR, KOTTAYAM.** **BY ADV. SRI.P.K.MANOJKUMAR** ## **RESPONDENT(S): ------------------------** ## **1. THE STATE OF KERALA,** - **REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (A) DEPARTMENT, SECRETRIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DISTRICT EDUCATIONAL OFFICER, KADUTHURUTHY, KOTTAYAM-686 604.** ## **3. V.N.RADHAMONY,** - **UPPER PRIMARY SCHOOL ASSISTANT, VISWABHARATHI SREE NARAYANA HIGHER SECONDARY SCHOOL, NEEZHOOR, KOTTAYAM-686 001.** **4. THE MANAGER, VISWABHARATHI SREE NARAYANA HIGHER SECONDARY SCHOOL NEEZHOOR, KOTTAYAM-686 001.** **R1 & R2 BY GOVERNMENT PLEADER SMT.LOWSY.A R3 BY ADVS. SRI.S.P. ARAVINDAKSHAN PILLAY** **SMT.N. SANTHA SRI.S.A. ANAND SRI.K.A. BALAN SRI. PETER JOSE CHRISTO R4 BY ADVS. SRI.C.P.SAJI SMT.M.V.SREELAKSHMI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MBR/** ## **WP(C).No. 1223 of 2012 (C) -------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** ## **-------------------------------------** **EXHIBIT P1 : THE PHOTOSTAT COPY OF THE ORDER NO.B6-6230/92/K.DIS. DATED 1.6.1992 ISSUED BY THE 4TH RESPONDENT, TO THE PETITIONER.** **EXHIBIT P2 : THE PHOTOSTAT COPY OF THE REPRESENTATION DATED 5.5.2010 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT.** **EXHIBIT P3 : THE PHOTOSTAT COPY OF THE ORDER OF APPOINTMENT DATED 1.6.2010 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** **EXHIBIT P4 : THE PHOTOSTAT COPY OF THE REPRESENTATION DATED 10.11.2010 SUBMITTED BY THE PETITIONER TO THE D.E.O, KADUDTHURUTHY.** **EXHIBIT P5 : THE PHOTOSTAT COPY OF THE ORDER NO.B3/1937/2010/K.DIS. DATED 25.11.2010 ISSUED BY THE D.E.O. KADUTHURUTHY, TO THE HEADMASTER VISWABHARATHI S.N.H.S.S. NEEZHOOR.** **EXHIBIT P6 : THE PHOTOSTAT COPY OF THE REVISION MEMO DATED 20.12.2010 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY TO GOVERNMENT, TRIVANDRUM. EXHIBIT P7 : THE PHOTOSTAT COPY OF THE ORDER G.O(RT)NO.2039/2011/G.EDN. DATED 1.6.2011 ISSUED BY THE GOVERNMENT.** **EXHIBIT P8 : THE PHOTOSTAT COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA DATED 13.7.2011 IN WP(C)NO.15956/2011.** **EXHIBIT P9 : THE PHOTOSTAT COPY OF THE ORDER G.O(RT)NO.126/2012/G.EDN. DATED 7.1.2012 ISSUED BY THE GOVERNMENT.** **RESPONDENT(S)' EXHIBITS:** **-** **NIL** **---------------------------------------** **/TRUE COPY/** **P.A. TO JUDGE** **MBR/** ## **P.R. RAMACHANDRA MENON, J.** ======================== W.P.(C). No. 1223 of 2012 -------------------------------------------Dated this the 26[th] day of August, 2014 ## **JUDGMENT** The question to be considered in this writ petition is as to whether the claim of an 'H.S.A' under Rule 51A of Chapter XIV A KER, by virtue of the earlier spell of appointment in a particular School, will stand defeated by virtue of the subsequent appointment in a regular vacancy of 'UPSA' and whether the claim put forth by another UPSA to have preferential placement to the post of H.S.A by virtue of Rule 43 of Chapter XIV A could be entertained. 2. The petitioner was appointed originally as 'H.S.A', against a temporary vacancy for the period from 30.09.1991 to 31.03.1992 and for another spell during 1.06.1992 to 4.09.1996. These appointments stand approved by the educational authorities, as borne by Ext.P1. 3. Subsequently, there arose a vacancy of 'UPSA' in the 4[th] respondent School and the petitioner was appointed there against a 'temporary vacancy' which was in existence during the period from 25.11.1996 to 21.02.1997. Later, there arose W.P.C No. 1223 of 2012 **==> picture [20 x 9] intentionally omitted <==** a regular vacancy of 'UPSA' and the petitioner was accommodated against the said regular vacancy. Subsequently, there arose a vacancy of 'H.S.A' (Physical Science) on retirement of a teacher by name Komalakumari in the very same School. Then the petitioner put forth her application to be appointed against the said vacancy, by virtue of her status as a Rule 51 A Claimant. The claim was considered and the Manager gave appointment to the petitioner as per Ext.P3 order dated 1.6.2010 and it was forwarded for approval of the AEO. In this juncture, the 3[rd] respondent intervened, stating that she was working as 'UPSA' and was having better claim, by virtue of Rule 43, to be promoted to the post of H.S.A. Since the proceedings were kept pending, the petitioner filed Ext.P4 representation before the DEO. After considering the matter, the DEO rejected the approval as per Ext.P5. Though the petitioner approached the Government by way of Ext.P6 revision petition, the same came to be dismissed as per Ext.P7, that too, without notice of hearing, which was the subject matter challenge before this Court in W.P.(C). No. 15956/2011. W.P.C No. 1223 of 2012 ..3.. 4. After hearing, Ext.P8 judgment was passed by this Court in W.P.(C). No. 15956/11, whereby Ext.P7 was set aside and the Government was directed to give an opportunity of hearing to both the sides and pass final orders afresh. By virtue of the interim order passed in the said case, the petitioner was permitted to continue as H.S.A, based on Ext.P3 order given by the Manager. Pursuant to Ext.P8 judgment, the matter was considered by the Government and it was finalized as per Ext.P9 order dated 7.1.2012, whereby approval was rejected, which in turn is under challenge in this writ petition. 5. A counter affidavit has been filed on behalf of the first respondent seeking to sustain the course and events pursued by the departmental authorities/State. Heard the learned counsel for the petitioner, the learned counsel appearing for the party respondents and the learned Government Pleader appearing for the Departmental authorities/State. 6. During the course of hearing, it is brought to the notice of this Court that, the question whether Rule 51A claim will prevail over Rule 43 claim; in other words, whether claim of the applicant under Rule 43 will be subject to the rights of a W.P.C No. 1223 of 2012 ..4.. Rule 51A claimant, had come up for consideration before this Court. A Division Bench of this Court as per the decision reported in **Elizabath Oommen v. Beena Mariam George** 2000 (2) KLT S.N. 47 (Case No. 55) held (after considering both the Rules) that, in the absence of material to show that a teacher had relinquished his claim, his earlier approved service as H.S.A would prevail over the latter claim and the former is entitled for preference in appointment. 7. The position was further made clear by another Division Bench of this Court as per the decision reported in **Sandhya T.N. V. Jalaja Kumari and Others** ILR 2008 (3) Ker. 175. The factual position therein is almost similar to the one as involved in the present case. Paragraph '18' deals with the issue in exhaustive terms, which hence is reproduced for convenience of reference. “18. We also notice that there is no provision in the Kerala Education Act, 1958 or in the K.E.R which interdicts a rule 43 claimant from claiming appointment to the higher post under Rule 51A as well, where such a claim also exists. A Division Bench of this Court in W.A No. 658 of 1998, **Elizabath Oommen v. Benna Mariam George** had recognized such a situation and directed the Manager to consider the claim of the appellant therein either under W.P.C No. 1223 of 2012 ..5.. Rule 51A or Rule 43 as and when vacancies arise in the school. Such a direction was issued evidently on the premise that a teacher can claim appointment to the higher post either under Rule 43 or under rule 51A of chapter XIV A of the K.E.R. The appellant in W.A. No. 658 of 1998 ( **Elizabath Oommen's** case) had approved service as H.S.A from 7.8.1978 to 7.10.1978. Thereafter, she had approved service as U.P.S.A during the period from 6.6.1979 to 14.7.1980 and from 15.7.1980 to 22.8.1980. She was thereafter appointed as Clerk on 28.4.1982 and held that post till 12.8.1983. She was again appointed as U.P.S.A from 13.6.1984 to 13.8.1984 and as Clerk on 1.12.1987. She was on leave from 17.9.1990 to 2.6.1995 and on expiry of the leave she was reappointed as U.P.S.A on 5.6.1995 and held that post till 9.7.1995. The first respondent therein was appointed as U.P.S.A on 2.1.1989 and was promoted as H.S.A from 28.6.1990 to 31.8.1990 and again from 2.1.1995 to 30.3.1995. She was reverted as U.P.S.A thereafter. When a vacancy of H.S.A. arose in the school on 10.7.1995, the Manager appointed the appellant. The District Educational Officer declined to approve the appointment on the ground that the first respondent in the Writ Appeal had a claim under Rule 43 for promotion while appellant had only a claim under Rule 51A for appointment as U.P.S.A. The Director of Public Instruction upheld the claim of the appellant on the ground that she had a claim under rule 43 to be promoted to the post of H.S.A which arose on 10.7.1995. The first respondent in the Writ Appeal thereupon filed O.P. No. 7500 of 1997 in this Court. The learned Single Judge held that the first respondent in W.A. No. 658 of 1998 had a vested right under Rule 51A of W.P.C No. 1223 of 2012 ..6.. Chapter XIV A of the K.E.R by virtue of her appointment as H.S.A in the year 1990 for reappointment in the vacancy which arose on 10.7.1995. The learned Single Judge also held that the first respondent in the Writ Appeal had a preferential right under Rule 43 for promotion to the post of H.S.A for the reason that she was working as U.P.S.A when the vacancy arose. On appeal, reversing the decision of the learned Single Judge a Division Bench of this Court held that the appellant is a senior claimant by virtue of her earlier approved service as U.P.S.A and as H.S.A and that the Manager ought to have considered her claim either under Rule 51A or Rule 43 as and when vacancies arose in the school. It was held that as the appellant had not relinquished her claim, her earlier approved service as H.S.A would prevail over that of the first respondent and that the appellant was the rightful claimant for the post of H.S.A which arose on 10.7.1995. The decision in **Elizabath Oommen v. Beena Mariam George** (supra) is an authority for the proposition that a teacher who is a Rule 43 claimant can also have and seek to enforce a claim under Rule 51A as well. We therefore hold that besides and de hors the right under rule 43 of chapter XIV A of the K.E.R., the earlier approved spells of service which the writ petitioner had as H.S.A (Malayalam) and H.S.A (Physical Science) in the first respondent's school undoubtedly confers on her a preferential claim under Rule 51A thereof for appointment to the post of H.S.A (Malayalam) which fell vacant on 1.7.2007 and that her claim is superior to the claim that the fifth respondent has under Rule 51A.” 8. Coming to the case in hand, the factual position with W.P.C No. 1223 of 2012 ..7.. regard to the appointment of the petitioner as H.S.A for different spells and approval of the same as borne by Ext.P1, is not disputed. By virtue of the credentials of the petitioner, she is having a rightful claim under Rule 51 A of Chapter XIV A KER. Merely for the reason that she got appointed as 'UPSA' in a regular vacancy subsequently, cannot defeat her right to aspire for the post of 'H.S.A' as and when a vacancy arose in the said post. The said right supersedes the right of a Rule 43 claimant, in view of the law declared by the Division Bench of this Court as referred to hereinbefore. 9. It is true, that the legal position has undergone substantial change in the year 2012, whereby the right of a Rule 43 claimant has been placed atop the right of a Rule 51 A claimant. But this cannot tilt the balance, in so far as the petitioner is concerned, as the amendment does not have any retrospective effect. 10. In the said circumstance, this Court finds that the petitioner is entitled to succeed. Accordingly, Exts. P5 and P9 are set aside and the concerned respondents are directed to give approval to appointment of the petitioner vide Ext.P3 W.P.C No. 1223 of 2012 **==> picture [20 x 9] intentionally omitted <==** issued by the Manager and to disburse all consequential benefits. The proceedings as above shall be finalized at the earliest, at any rate, within 'three months' from the date of receipt of a copy of this judgment. Writ petition stands allowed. No costs. **P.R. RAMACHANDRA MENON, JUDGE.** kp/-