Binu P.N. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 8TH DAY OF MARCH 2016/18TH PHALGUNA, 1937** ## **WP(C).No. 11177 of 2013 (V)** ## **----------------------------** ## **PETITIONER:** ## **-------------------** **BINU P.N., AGED 41 YEARS W/O, .P.P.RAJENDRAN, PLAVINAKUZHIYIL VETTOOR.P.O, PATHANAMTHITTA (HSA HINDI TEACHER, DBHS VAMANAPURAM).** **BY ADVS.SRI.K.JAJU BABU SRI.K.SHAJ** **RESPONDENTS:** **-----------------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THE DIRECTORATE OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-14.** **3. THE CORPORATE MANAGER, TRAVANCORE DEVASWOM BOARD SCHOOLS TRAVANCORE DEVASWOM BOARD BUILDING, NANDANKODE THIRUVANANTHAPURAM.** **4. K.SUMANAGALA DEVI, W/O.SATHISBOSS, RESIDING AT KOTTAYIL, THURUTHI.P.O KOTTAYAM.** **5. THE DISTRICT EDUCATION OFFICER, ATTINGAL.** **R4 BY ADV. SRI.M.V.THAMBAN R1, R2 & R5 BY SR. GOVERNMENT PLEADER SRI. M.A. FAYAZ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 11177 of 2013 (V)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **-------------------------------------** - **EXHIBIT-P1 THE TRUE COPY OF APPOINTMENT ORDER DATED 08/01/1992 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER** - **EXHIBIT-P2 THE TRUE COPY OF OFFICE DATD 22/11/1995 OF THE THIRD RESPONDENT** - **EXHIBI-P3 THE TRUE COPY OF THE APPOINTMENT ORDER DATED 15/10/2001 OF THE THIRD RESPONDENT ISSUED TO THE PETITIONER** - **EXHIBIT-P4 THE TRUE COPY OF THE APPOINTMENT ORDER DATD 05/06/2002 OF THE THIRD RESPONDENT ISSUED TO THE PETITIONER** - **EXHIBIT-P5 THE TRUE COPY OF THE ORDER DATD 23/02/2004 OF THE THIRD RESPONDENT** - **EXHIBIT-P6 THE TRUE COPY OF THE ORDER DATED 28/05/2011 OF THE THIRD RESPONDENT** - **EXHIBIT-P7 THE TRUE COPY OF THE ORDER DATED 28/05/2011 OF THE THIRD RESPONDENT** - **EXHIBIT-P8 THE TRUE COPY OF EXHIBIT P5 PRODUCED BY THE FOURTH RESPONDENT IN WP(C)21165/201 OF THIS HONOURABLE COURT.** - **EXHIBIT-P9 THE TRUE COPY OF THE G.O.(RT)3879/2012/G.EDN.DATED 09/08/2012 ISSUED BY THE FIRST RESPONDENT.** - **EXHIBIT-P10 THE TRUE COPY OF THE JUDGMENT DATED 20/09/2012 OF THE HON'BLE HIGH COURT IN WP(C)20489/2012.** - **EXHIBIT-P11 THE TRUE COPY OF G.O(RT)NO.1490/2013/G.EDN DATED 30/03/2013 OF THE FIRST RESPONDENT.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL** **//TRUE COPY//** ## **P.A. TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 11177 of 2013 (V) -----------------------------------------Dated this the 8[th] day of March, 2016 ## **J U D G M E N T** The petitioner by the above writ petition challenges Ext.P11 order of the Government, raising a conflicting claim to the post of HSA (Hindi) in which the 4[th] respondent was appointed. 2. Heard the learned Government Pleader and the learned Counsel appearing for the petitioner and the 4[th] respondent. 3. The facts are not in dispute. The petitioner joined the 3[rd] respondent School as a Lower Grade Hindi Teacher in a leave vacancy and continued there between 08.01.1992 to 22.11.1995. The petitioner was then appointed as an HSA from 15.10.2001 to 02.12.2001 and then to a regular post of HSA on ## **W.P.(C) No. 11177/2013** **-2-** 05.06.2002, which post stood abolished on 14.07.2003. The petitioner was then appointed as a Lower Grade Hindi Teacher, by virtue of her Rule 51A claim, on 15.07.2003 and she continued thereon. 4. The 4[th] respondent was appointed as an HSA between 21.12.1994 to 23.02.1995 and 03.06.1996 to 23.08.1996, both the tenures were also approved. There was a subsequent tenure also, which has not been approved till date. In any event, based on the earlier approved tenures, the 4[th] respondent was again appointed as HSA between 01.06.1998 to 28.08.1998, 01.09.1998 to 12.09.1998 and 13.12.1998 to 30.03.1998. The 4[th] respondent then was appointed as LG (PT) (Hindi) regularly on 02.06.2003 till 31.07.2005, when she was retrenched again. The 4[th] respondent also has a valid Rule 51A claim. ## **W.P.(C) No. 11177/2013** **-3-** 5. The dispute arose with respect to the post of HSA (Hindi) which arose on 01.06.2011. The question is as to who has a better claim. The petitioner claims appointment to the post on the basis of her Rule 51A claim, which, according to her, arose earlier in point of time by her appointment as a Lower Grade Hindi Teacher in the year 1992. The 4[th] respondent's claim under Rule 51A arose only by her appointment as a HSA on 21.12.1994. What is significant is that, the Rule 51A claim of the petitioner has crystallised into an appointment on 15.07.2003, when appointed as a Lower Grade Hindi Teacher, on being relieved from the post of HSA, when it was abolished on 14.07.2003. The claim, to arise under Rule 51A, the significant aspect, is the relieving of the teacher under Rule 49 or 52. Hence, the petitioner does not have a claim under Rule 51A since she has been continued as a Lower Grade ## **W.P.(C) No. 11177/2013** **-4-** Hindi Teacher and was still continuing when the vacancy arose on 01.06.2011, is the argument of the 4[th] respondent. 6. The other contention raised by the petitioner is that she has a Rule 43 claim to be considered for promotion to the post of HSA from Lower Grade Hindi Teacher. Earlier in point of time, the Rule 43 claimants had an edge over the Rule 51A claimants. By G.O.(P) No.187/2005/G.Edn. dated 17.06.2005, Rule 51A claimants were given preference over Rule 43 claimants. The said preference was again amended by G.O.(P) No.192/12/G.Edn. Dated 16.06.2012, restoring the preference to Rule 43 claimants. However, when the vacancy arose on 01.06.2011, G.O.(P) No.187/2005/G.Edn. dated 17.06.2005 was in force. Hence, as on that date, the Rule 51A claimant has a preference over the claim of a Rule 43 claimant. In ## **W.P.(C) No. 11177/2013** **-5-** such circumstance, the 4[th] respondent's claim under Rule 51A has to be considered above that of the Rule 43 claim available to the petitioner, argues learned Counsel for the 4[th] respondent. 7. The learned Senior Counsel appearing for the petitioner, however, would specifically refer to the decision in **Sandhya v. Jalaja Kumari - 2008 (3) KLT 655** wherein a Division Bench had considered almost a similar claim. Therein, also the writ petitioner was continued as a UPSA, after having some spells as an HSA. The 5[th] respondent therein was retrenched after being continued in the post of HSA when a vacancy arose on 01.07.2007. One of the claims raised was that the Rule 51A claimant had precedence over Rule 43 claimant by virtue of the Government Order of 2005. The Division Bench did not consider the aforesaid issue, since the rival Rule 51A claims of both the teachers ## **W.P.(C) No. 11177/2013** **-6-** were considered. Therein, the petitioner who had an earlier claim of Rule 51A, under the same school, was held to have a preference over the 5[th] respondent therein. The Division Bench specifically found that there is nothing in the KER indicating that a Rule 51A claim and Rule 43 claim cannot be raised alternatively. This is more so since by virtue of the amendment to Rule 51A, the claim survives to a higher or lower post, provided the claimant is qualified to be appointed to the vacancy arising. The principle laid down is justified since an HSA who gets retrenched, would have to assert the claim in the next arising vacancy of even a UPSA, since otherwise, the claimant would be deemed to have relinquished the claim. Then, the next arising vacancy of HSA would be even conceded to a subsequent Rule 51A claimant, whose claim arises only by virtue of her appointment as UPSA. ## **W.P.(C) No. 11177/2013** **-7-** 8. The aforesaid proposition has to be applied here specifically noticing the decision of the Hon'ble Supreme Court in **Manager, VKNM Vocational Higher Secondary School v. State of Kerala - 2016 (1) KLT 489 (SC)** . In the said decision it was held that Rule 51A claims, even those arising before the amendment to Rule 51A, would have to satisfy the minimum period of one Academic Year. Hence the broken period of service of both the petitioner and the 4[th] respondent are irrelevant. 9. The petitioner's service as an HSA in a regular appointment is made on 05.06.2002, continued till 14.07.2003, when the petitioner was retrenched on abolition of the post. This gave rise to a valid Rule 51A claim. True, the petitioner was then appointed as a Lower Grade Hindi Teacher from 15.07.2003, which is ## **W.P.(C) No. 11177/2013** **-8-** the basis of her claim under Rule 43. The respondent however, raises a Rule 51A claim specifically by her appointment as L.G.(P.T.) Hindi Teacher on permanent basis from 02.06.2003, which continued up to 31.07.2005, when she was thrown out. The aforesaid claims are to be considered on the basis of the judgment of this Court referred above. 10. Both the petitioner and the 4[th] respondent had such claims exceeding an Academic Year, as has been noticed above. But the petitioner's claim is prior, since it arose by reason of a regular appointment on 05.06.2002, while the respondent's claim is based on an appointment on 02.06.2003. In such circumstance, the claim to the post of HSA, which arose on 01.06.2011, would have to be conceded to the petitioner. Ext.P11 order is, hence, set aside. The petitioner's approval ## **W.P.(C) No. 11177/2013** **-9-** shall be considered within a period of three months from the date of receipt of the certified copy of this judgment. The writ petition is allowed. No costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 22/2/16