Daliya John v. State of Kerala and Others; Very Rev. Fr. Isaac Mattammel v. State of Kerala and Others

**1** **WP(C)Nos.15555 & 17831 OF 2021** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 26[TH] DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943** ## **WP(C) NO. 15555 OF 2021** ## **PETITIONER/S:** DALIYA JOHN, AGED 39 YEARS, H.S.A. (MATHEMATICS), ST. MARY'S HIGH SCHOOL, KANDANAD, ERNAKULAM-682305. BY ADVS. K.JAJU BABU (SR.) BRIJESH MOHAN(K/1851/1999)-12233 M.U.VIJAYALAKSHMI ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM-682001. 3 THE MANAGER, ST. MARY'S HIGH SCHOOL, KANDANAD, ERNAKULAM682305. **WP(C)Nos.15555 & 17831 OF 2021 2** 4 THE HEADMASTER, ST. MARY'S HIGH SCHOOL, KANDANAD, ERNAKULAM682305. BY ADV ELVIN PETER P.J. SRI BIJOY CHANDRAN, SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2021, ALONG WITH WP(C).17831/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **3** **WP(C)Nos.15555 & 17831 OF 2021** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 26[TH] DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943** ## **WP(C) NO. 17831 OF 2021** ## **PETITIONER/S:** VERY REV.FR. ISAAC MATTAMMEL, AGED 69 YEARS, S/O. MATHAI, MANAGER, ST MARY'S HIGH SCHOOL, KANDANADU, THIRUVAMKULAM, TRIPUNITHURA, ERNAKULAM 682 305, RESIDING AT MATTAMMEL HOUSE, MULAMTHURUTHY P.O. ERNAKULAM 682 314,. BY ADVS. ELVIN PETER P.J. K.R.GANESH SIDHARTH SUDHEER GOURI BALAGOPAL ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 THE DISTRICT EDCUATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM 682 011. 3 THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, ERNAKULAM 682 030. **WP(C)Nos.15555 & 17831 OF 2021 4** 4 SMT. DALIYA JOHN, H.S.A. (MATHS), ST. MARY'S HIGH SCHOOL, KANDANADU, THIRUVAMKULAM, TRIPUNITHURA, ERNAKULAM 682 314. BY ADVS. K.JAJU BABU (SR.) M.U.VIJAYALAKSHMI BRIJESH MOHAN SRI BIJOY CHANDRAN, SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2021, ALONG WITH WP(C).15555/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **5** **WP(C)Nos.15555 & 17831 OF 2021** ## **JUDGMENT** W.P.(C) No.15555 of 2021 is filed by Daliya John, an HSA (Mathematics) seeking implementation of Ext.P4 order passed by the Government directing the DEO, Ernakulam, the 2nd respondent in the writ petition, to approve the appointment of the petitioner from 1.6.2018, the date on which she was appointed against a promotion vacancy in the St.Mary’s High School, Kandanad. 2. W.P.(C) No.17831/2021 is filed by the Manager of the school challenging the Government Order, which is sought to be implemented by Daliya John. 3. Since common issues are involved, both these writ petitions are taken up and considered together. For clarity, the parties and exhibits shall be referred to as described in W.P.(C) No.15555/2021. 4. Daliya John, in her writ petition, contends that her appointment as HSA (Mathematics) in the St.Mary’s School was rejected by the DEO as well as the DDE on the ground that there are other claimants. However, the Government, after considering the entire aspects, have allowed the revision petition and have issued directions. There is absolutely no reason for the respondents to delay the implementation of the order. Her prayer in **WP(C)Nos.15555 & 17831 OF 2021 6** ## the Writ Petition is as follows: - (i) issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 2 to 4 to implement the direction in Ext-P4 and grant approval of appointment to the petitioner as H.S.A (Mathematics) from 1.6.2018 without delay - (ii) Direct the respondents 3 and 4 to forward the proposal for approval of appointment of the petitioner as HSA (Mathematics) from 1.6.2018 to the 2nd respondent forthwith and direct the 2nd respondent to approve the appointment of the petitioner without any further delay and grant all consequential benefits including arrears of salary; - (iii) issue such other and further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case; and - (iv) award costs to the petitioner. 5. The Manager contends that he was appointed as Manager of the school by order dated 12.05.2020 after nullifying the appointment of the former manager of the school. It was after taking charge that Ext.P2 notice of the hearing of the revision petition filed by Daliya John was served on him. The Manager was asked to appear virtually on 28.01.2021 for which purpose, he was asked to forward his mobile number and email, which was duly done. The link was however not sent to him and orders were passed without even affording an opportunity of being heard, thereby violating the principles of natural justice. The Manager contends that the action of the former Manager in appointing Daliya John as HSA (Maths) was illegal and in **7** **WP(C)Nos.15555 & 17831 OF 2021** clear violation of the provisions of the Kerala Education Act and the Rules framed thereunder. It is contended that one Sri. Jaise M Abraham, who was working in the school as UPST was deployed on protection when the post of UPST in which he was working was abolished. Sri. Jaise M Abraham was fully qualified to be appointed to the post of HSA (Maths) as he fell into the category of a Rule 51A claimant. Relying on Note 2 to Rule 51A, it is stated that the preferential right of Jaise M Abraham cannot be regarded as forfeited as the statutory provisions were not complied with. It is contended that it was in violation of the statutory provisions that directions were issued by the Government to approve the appointment of Smt. Daliya John. The following prayer is sought for in the writ petition. - (i) Issue a writ of certiorari, or any other writ, order or direction calling for the records leading to Ext.P8 and quash the same; - (ii) to declare that Ext.P8 order is one issued by the 1st respondent in violation of the principles of natural justice and is therefore void and non-est. 6. I have heard the submissions of Sri. Jaju Babu, the learned senior counsel appearing for Smt. Daliya John as instructed by Sri. Brijesh Mohan, the learned counsel, Sri.Elvin Peter P.J, the learned counsel appearing for the Manager and Sri. Bijoy Chandran, the learned Government Pleader. **WP(C)Nos.15555 & 17831 OF 2021 8** 7. A perusal of the impugned order will reveal that the Government had ordered to accept the relinquishment letter of Sri. Jaise M Abraham and to approve the appointment of Smt. Daliya John. Whether this order is in accordance with law is the question to be adjudged in this Writ petition. 8. In the impugned order, it is stated that a certain Binu Varghese and Sri. Jaise M Abraham were working as UPSTs in the school and they had been retrenched from service on the abolition of the post of UPSTs. The fact is that Sri. Jaise M Abraham was fully qualified to be appointed as HST (Maths). The question is whether the Manager could have ignored his claim and thereafter appointed Smt.Daliya John as HSA (Maths) in the vacancy which arose on 1.6.2018. 9. Sri.Elvin Peter, the learned counsel appearing for the Manager submitted that the action of the manager appointing Daliya John as HSA (Maths) was illegal as it was by overlooking the rights of Sri.Jaise M Abraham, who had been deployed on protection on abolition of the post of the UPST. The learned counsel would contend that Sri.Jaise would step into the shoes of a Rule 51 A claimant and being fully qualified to be appointed as HSA (Maths), he ought to have been appointed. The learned counsel would then refer to Note 2 to Rule 51 A and it was argued that unless there are materials to suggest that the Manager had scrupulously complied with **9** **WP(C)Nos.15555 & 17831 OF 2021** the stipulations in the Note, it cannot be said that Sri.Jaise had forfeited his rights. Even in the impugned order, the fact that the Manager had failed to comply with the mandatory provisions is stated in unequivocal terms. The learned counsel would rely on the law laid down in **Abdurahiman v. Government of Kerala** [2009 (2) KLT 105], **Vasantha v. State of Kerala** [2009 (1) KLT 1008], **Krishnakumar v. Kunhiraman** [2011 (2) KLT 457] and **Lakshmikutty Amma v. Vijayalakshmikutty** [1992 (2) KLT 341] to hammer home his contention that there is no provision for a claimant under Rule 51A to relinquish his right for appointment and the said right would be lost only after the manager complies with the mandatory provisions in terms of the Rule. 10. Sri.Jaju Babu, the learned senior Counsel submitted that the contention of the Manager that Sri Jaise would be a rule 51A claimant is without basis. According to the learned counsel, only if Sri.Jaise is a Rule 51A claimant, the question of compliance of Note 2 would arise. It is contended that as Jaise is working, he would not come within the ambit of Rule 51A and reliance is placed on **Lima A R V State of Kerala and Others** [2017 (2) KLT 572] to substantiate the said contention. The learned Senior Counsel would then contend that Sri Jaise was later impleaded as an additional 4th respondent in the writ petition filed by the teacher and the notice was served. He has not chosen to record his presence before this **10** **WP(C)Nos.15555 & 17831 OF 2021** Court. According to the learned senior counsel, that would only mean that Sri Jaise is not interested in the claim and the Manager could not have objected to the approval granted to Dalia John. 11. I have very carefully considered the submissions advanced and have perused the records. 12. Sri. Jaju Babu, the learned senior counsel has raised a contention that Sri. Jaise M.Abraham can, at the most, only be a Rule 43 claimant, and in that view of the matter, the claim of compliance with Note 2 to Rule 51 A may not possibly arise. I am unable to agree with the said submission. It is clear from the records that Sri. Jaise M.Abraham was deployed on protection when the post of UPST in the school was abolished. Rule 43 provides that vacancies in a higher grade or pay shall be filled up by promotion of qualified hands in the lower grade according to seniority. As Sri. Jaise M. Abraham had been deployed to work in another school under the scheme of protection given to teachers, by no stretch of imagination can it be said that the said teacher was in service of the school enabling him to raise a claim under Rule 43. In that view of the matter, the contention that Sri. Jaise M.Abraham would only be a Rule 43 claimant cannot be countenanced. The claim of the said teacher can only be under Rule 51A of the Rules. 13. The next question is with regard to non-compliance of Note 2 **11** **WP(C)Nos.15555 & 17831 OF 2021** to Rule 51A. It would be apposite to examine the breadth and scope of the right under Rule 51A of Chapter XIVA of the KER. The said provision as it stands now reads as follows: 51A 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 permanent vacancies in schools under any other Educational Agency. Provided that a teacher who was relieved under rule 49 or rule 52 shall not be entitled to preference for appointment under this rule unless such teacher has a minimum continuous service of one academic year as on the date of relief: Provided further that the first preference under this rule shall be given to protected teachers belonging to the same educational agency. Note 1. If there are more than one claimant under this rule the order of preference shall be according to the date of first appointment. If the date of first appointments is the same then preference shall be decided with reference to age, the older being given first preference. In making such appointments due regard should be given to the 108[requirement of subjects and to the instructions issued by the Director under sub-rule (4) of rule 1 as far as High Schools are concerned. Note 1A:- Fresh appointments to vacancies arising in the same or higher or lower category of teaching posts under the Educational Agency shall be made only after providing reappointment to such teachers thrown out from service and protected teachers available under the Educational Agency. **12** **WP(C)Nos.15555 & 17831 OF 2021** Explanation:- For the purpose of this clause, “Protected teacher” means, a teacher who has been retrenched for want of vacancy after putting such length of regular service that may be specified by the Government or who is eligible for such Protection as per G.O(MS)No.104/69/Edn. dated 6-3-1969 or G.O(MS)No. 231/84/G.Edn. dated 27-10-1984 or any other orders issued by Government from time to time. Note 2. Manager should issue an order of appointment to the teacher by Registered post acknowledgment due and give a period of 14 (fourteen) clear days to the teacher to join duty. If the teacher does not join duty in time the Manager should give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under this rule would be forfeited if not exercised within another 7 (seven) clear days. If nothing is heard during that time also, the preferential right under the rule will be regarded as forfeited. 14. It was by G.O.(P) No.187/05/G.Edn. dated 17.6.2005, preference for teachers for appointment to future vacancies in the same or higher or lower category of teaching post for which he/she is qualified was inserted in R.51A of Chapter XIV A KER. Prior to amendment in 2005, the provision was to the effect that qualified teachers who are relieved as per R.49 or 52 or on account of termination of vacancies shall have a preference for appointment to future vacancies. This Court has interpreted the provision to mean that the claim of a teacher, under R.51A, would continue until such time as he or she was appointed to a future vacancy in the same category of teaching posts from which he or she was relieved. In view of the amendment brought in the year 2005 as aforesaid, the words **13** **WP(C)Nos.15555 & 17831 OF 2021** "in the same or higher or lower category of teaching posts, for which he is qualified that may arise" was introduced. By such insertion, a person who has been relieved as HSA would be required to be considered for appointment in a lower or higher post if it becomes available. 15. In **Lakshmikutty Amma v. Vijayalakshmikutty** [1992 (2) KLT 341], a Division Bench of this Court through the words of Jagannadha Rao, CJ., (as His Lordship then was) had occasion to comment on the preferential right of a teacher under Rule 51A. It was held as follows: R.51A gives a preferential right to appointment to an approved teacher who had earlier worked in a school for the purpose of being appointed to the next vacancy in the school. The rule was obviously intended by the rule-making authority to put an end to certain evil practices which had come into existence in the educational system in several private schools. It was intended to prevent managers from arbitrarily appointing teachers of their choice ignoring those who had earlier worked in the same school. Secondly, employment has become very difficult in this State, and there are too many claimants for too small a number of posts. If the malpractices were to be permitted, it would result in serious injustice and arbitrariness. R.51A was therefore intended to prevent such a situation. Courts and the rule-making authority having already taken cognizance of such malpractices, Note 2 was incorporated under R.51A to prevent yet another malpractice of obtaining relinquishment letters in advance by the managers concerned even at the time of first temporary appointment in a short vacancy. There are also occasions where such relinquishment letters are **14** **WP(C)Nos.15555 & 17831 OF 2021** obtained as a condition for return of the certificates of the teacher, as is alleged in one of the cases before us. 16. The above Rule incorporates the salutary principle of industrial / service jurisprudence that an employee retrenched for want of vacancy, is entitled to get reappointment when a vacancy arises in that post in future. Where there is more than one claimant seeking reappointment, Note 1 to R.51A deals with preference in the matter of appointment. Note 2 deals with how the right under R.51A can be regarded as forfeited. When a vacancy arises in future, the Manager should issue an appointment order to the retrenched teacher by Registered post acknowledgement due, giving 14 clear days to him to join duty. If he does not join duty within the said time limit, the Manager should issue further notice to him, stating that another person will be appointed, if he does not join duty within seven clear days. Even thereafter, the claimant under R.51A does not join duty, it can be taken that his right under the Rule is forfeited and the Manager can proceed accordingly. The rulemaking authority has provided such stringent measures for the forfeiture of a right under R.51A, because of the distrust of private school Managers, who are often accused of indulging in irregularities, to deny appointment to legitimate claimants and go for candidates from the open market for obvious reasons. ( See **Vasantha A.K. v. State of Kerala and Others** [2009 (2) KLT 1008]. 17. In the case on hand, there is nothing to show that conditions in **WP(C)Nos.15555 & 17831 OF 2021 15** Note 2 to Rule 51A was complied with by the Manager. Even in the impugned order, it has been stated in unequivocal terms that the conditions have not been complied with by the Manager. The fact that Sri Jaise M Abraham has not chosen to appear before this Court is no reason to relieve the Manager of his obligation to comply with the mandate under Note 2 to Rule 51A. I am also not impressed with the contention advanced by the learned Senior Counsel appearing for Daliya John that the incumbent Manager cannot be said to be affected as Sri.Jaise M.Abraham has voluntarily relinquished his post and is working elsewhere. It would be the Manager who would be required to act according to the statutory provisions if a Rule 51A claimant raises a claim contending that he has not forfeited his claim. 18. There is yet another reason why Ext.P8 order cannot be sustained. The contention of the petitioner that the order was passed without affording him an opportunity of being heard has not been controverted by the respondent. If that be the case, interference is warranted for violation of the principles of natural justice as well. In the result, W.P. (C) No.17831/2021 will stand allowed. Exhibit P8 impugned in the order will stand quashed. The 1st respondent is directed to reconsider the revision petition filed by Daliya John with due notice to the Manager as well as the affected parties and pass fresh orders in accordance **WP(C)Nos.15555 & 17831 OF 2021 16** with law, as per procedure and in adherence to the provisions of law, expeditiously, in any event, within a period of two months from the date of receipt of a copy of this judgment. As the order sought to be implemented in W.P.(C) No.15555/2021 has been quashed, no further directions are required to be issued. The petitioner in W.P.(C) No.15555/2021 shall be free to raise all her contentions when the matter is reconsidered by the Government. However, there will be a direction to the concerned respondents not to fill up the vacancies until orders are passed as directed above. These Writ Petitions are disposed of. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** ps **WP(C)Nos.15555 & 17831 OF 2021 17** ## **APPENDIX OF WP(C) 15555/2021** - PETITIONER (S) EXHIBITS: Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2018 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. - Exhibit P2 TRUE COPY OF THE ORDER NO.B6/3813/2018 DATED 9.10.2018 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. - Exhibit P3 TRUE COPY OF THE ORDER NO.B2/27016/2018/ DDE/D.DIS. DATED 1.1.2020 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM TO THE 3RD RESPONDENT. - Exhibit P4 TRUE COPY OF THE GOVERNMENT ORDER G.O. (RT) NO.3169/2021/G.EDN. DATED 28.6.2021. - Exhibit P5 TRUE COPY OF THE REMINDER DATED 29.7.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. - Exhibit P6 TRUE COPY OF THE APPEAL DATED 12.11.2018 FILED BY THE MANAGER BEFORE THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM RESPONDENT (S) EXHIBITS: NIL **WP(C)Nos.15555 & 17831 OF 2021 18** ## **APPENDIX OF WP(C) 17831/2021** PETITIONER (S) EXHIBITS : - Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER NO. B6/8191/2019 DATED 12.05.2020 WITH EFFECT FROM 06.10.2019 FOR 3 YEARS. - Exhibit P2 TRUE COPY OF THE NOTICE NO. E2/121/2020/GEN.EDN. DATED 16/12/2020 ISSUED BY THE IST RESPONDENT. - Exhibit P3 TRUE COPY OF THE REPRESENTATION NO. M/01/2021 DATED 19.01.2021 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT. - Exhibit P4 TRUE COPY OF THE ORDER DATED 01.06.2018 ISSUED BY THE FORMER MANAGER APPOINTING THE 4TH RESPONDENT. - Exhibit P5 TRUE COPY OF THE ORDER NO. B6/3813/2018 DATED 09.10.2018 ISSUED BY THE 2ND RESPONDENT. - Exhibit P6 TRUE COPY OF THE ORDER NO. B2/27016/ 2018/DDE/ D.DIS DATED 01.01.2020 ISSUED BY THE 3RD RESPONDENT. - Exhibit P7 TRUE COPY OF THE ORDER NO. 9124/S3/05 /G.EDN. DATED 25.04.2005 ISSUED BY THE IST RESPONDENT. Exhibit P8 TRUE COPY OF THE ORDER G.O. (P) NO. 3169/2021/GEN.EDN. DATED 28.06.2021. RESOPONDENT (S) EXHIBITS : NIL