High Court of KeralaSingle Judge2021-01-06Writ petition dismissed; petitioner’s prayers d...

Encily Pandaraparambil v. Director of Public Instructions, Government of Kerala and Others

Case / Petition Number:WP(C).No.13590 OF 2019(W)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2021-01-06
Court Decision / Holding: Writ petition dismissed. The court held that the petitioner did not meet the qualification criteria on the date of occurrence of the vacancy (1.4.2015) and that the 5th respondent, as a Rule 51B claimant, was correctly considered for the vacancy; Ext.P6 and Ext.P8 were upheld, and the petitioner's prayer for appointment was denied.
Final Disposition: Writ petition dismissed; petitioner’s prayers denied; 5th respondent’s appointment sustained as per Rule 51B considerations.

Parties to the Case

Appellants / Petitioners

Encily Pandaraparambil

Respondents

Director of Public Instructions, DPI, Thiruvananthapuram
Deputy Director of Education, Kannur
District Educational Officer, Thalassery, Kannur
Corporate Manager, All CSI Schools in Malabar and Wayanad
Beena James V.
State of Kerala, represented by the Secretary, Department of General Education

Legal Representation & Advocates

Counsels for Petitioners

• P. Jayaram

Counsels for Respondents

• Government Pleader (for R1–R3, R6)
• P.V. Kunhikrishnan (for R4)
• R.K. Muraleedharan (for R5)
• Amith Krishnan (for R5)

Case Synopsis & Summary

Encily Pandaraparambil v. Director of Public Instructions and Others concerns a writ petition filed by Encily Pandaraparambil, a part‑time Hindi teacher seeking appointment as a full‑time Junior Hindi Teacher at BEMP Higher Secondary School, Thalassery. The petitioner challenged the approval of the appointment of the 5th respondent (Beena James V) as Junior Hindi Teacher (Full Time) against a vacancy that arose in 2015, arguing that a Rule 51B claimant is not a teacher under the Kerala Education Rules and that the 2015 appointment was improperly approved, especially since the 5th respondent’s claim originated from compassionate/51B considerations and not traditional teaching eligibility. The respondents contended that the 5th respondent is indeed a Rule 51B claimant and was eligible to be considered for the vacancy, relying on prior orders and decisions to justify the appointment. The court traced Rule 51B, Rule 43, Rule 51A, and Note 1 to Rule 1(1) of Chapter XIV A KER, and cited earlier Kerala High Court decisions (Sreeja, Deepak, Sukumaran Nair) to support the proposition that a non‑teaching staff member with the prescribed qualifications can be considered for teaching posts when no eligible teacher is available. The judge ultimately held that the petitioner was not qualifying on the vacancy date (1.4.2015) and dismissed the petition, upholding the 5th respondent’s appointment and the related orders. The ruling reinforces the precedence for Rule 51B claimants in filling vacancies under the Kerala Education Rules.

Provisions of Law Cited

Rule 51B, Chapter XIV A KERRule 51A, Chapter XIV A KERRule 43, Chapter XIV A KERNote 1 to Rule 1(1) of Chapter XIV A KER

Legal Doctrines & Maxims

Compassionate appointment (as a welfare principle under KER)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that a Rule 51B claimant is not a teacher under the Rules; the 5th respondent’s claim is belated since the death of her mother occurred in 1983 and she became major in 1988; compassionate appointment concept is limited, and Rule 51B claimant cannot usurp a teaching post; the petitioner contends that the 5th respondent is not eligible as a teacher and that her appointment should not be considered against the vacancy, with emphasis on Note 1 to Rule 1(1) and the dates of qualification (30.4.2015) relative to the vacancy (1.4.2015).

Contentions of Respondents

The respondents contended that the 5th respondent is a Rule 51B claimant eligible for appointment as a teacher in a vacancy; Ext.P6 and Ext.P8 approvals were legally issued after considering the 51B claim; the 3rd respondent’s appointment to 5th respondent was in accordance with Rule 51B; the petitioner’s claim fails as she did not meet the qualification date on the vacancy; decisions in Sreeja, Deepak, Sukumaran Nair, etc., are cited for compassionate appointment and eligibility rules and were applied to justify the vacancy filling for 2015.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Sreeja v. Chief Postmaster General	2001 (1) KLT 356	Positive	Cited as authority that compassionate appointment can be considered to address family crisis and that Rule 51B claimants can be treated in a manner that gives weight to compassionate/51B claims when no eligible teachers exist.
Deepak v. Secretary, General Education Department	2002 (3) KLT 288	Positive	Used to support the principle that compassionate appointment procedures are to be applied to address sudden crises and that 51B/compassionate claims can be considered in teaching appointments.
Sukumaran Nair v. State of Kerala	2005 (1) KLT 430	Positive	Cited for the proposition that compassionate/51B type claims are a valid channel to address vacancy designations when teaching qualifications align with the rule, reinforcing the court’s approach in favor of 51B claimants.
Sathyanarayanan v. AEO	2000 (3) KLT SN 14	Positive	Cited as authority on eligibility considerations and the interaction of Rules under Chapter XIV A in filling vacancies with 51B/compassionate claims.
Reghu v. State of Kerala	2000 (2) KLT 29	Positive	Utilized to relate the eligibility framework and the interplay of compassionate appointments within the KER rules.

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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 MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942** ## **WP(C).No.13590 OF 2019(W)** ## **PETITIONER:** **ENCILY PANDARAPARAMBIL AGED 46 YEARS** **JUNIOR HINDI TEACHER (PART TIME), B.E.M.U.P. SCHOOL, ANCHARAKANDY, MATTANNUR, KANNUR DISTRICT.** ## **BY ADV. SRI.P.JAYARAM** ## **RESPONDENTS:** - **1 THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DPI, JAGATHI, THIRUVANANTHAPURAM- 695014.** - **2 THE DEPUTY DIRECTOR OF EDUCATION, KANNUR, KANNUR DISTRICT- 670001.** - **3 THE DISTRICT EDUCATIONAL OFFICER, THALASSERY, KANNUR DISTRICT- 670101.** - **4 THE CORPORATE MANAGER, ALL CSI SCHOOLS IN MALABAR AND WAYANAD, BANK ROAD, KOZHIKODE- 673001.** - **5 BEENA JAMES.V., JUNIOR HINDI TEACHER (FULL TIME), BEMP HSS THALASSERY, KANNUR DISTRICT- 670101.** - **6 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001.** **R1-3, R6 BY GOVERNMENT PLEADER R4 BY ADV. SRI.P.V.KUNHIKRISHNAN R5 BY ADV. SRI.R.K.MURALEEDHARAN R5 BY ADV. AMITH KRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-122020, THE COURT ON 06-01-2021 DELIVERED THE FOLLOWING:** **WP(C).No.13590 OF 2019** **2** ## **JUDGMENT** This writ petition is filed seeking the following reliefs :- - “i) Declare that the petitioner is legally entitled for appointment as junior Hindi teacher – full time at BEMP Higher Secondary School, Thalassery in the place of 5[th] respondent. - ii) Issue a writ of certiorari or other appropriate writ, direction or order quashing Exhibit.P6, P8 orders. - iii) Issue a writ of mandamus or other appropriate writ, direction or order directing the respondent educational authorities to appoint the petitioner as junior Hindi teacher – full time at BEMP Higher Secondary School, Thalassery in the place of 5[th] respondent with effect from 1/7/2015 with all consequential benefits including pay and allowances.” 2. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for respondents 4 and 5. 3. The petitioner is working as Part Time Hindi Teacher in one of the schools under the 4[th] respondent. He had joined service as Full Time Menial on 11.7.2012. He was promoted as peon on 2.6.2014. He became qualified for appointment as Lower Grade Hindi teacher on 30.4.2015 and the qualification was endorsed in his service book on 12.5.2015. It is stated that a full time vacancy of Hindi teacher arose in the BEMP HSS, Thalassery in the year 201516. The 5[th] respondent was appointed in the said vacancy. The **WP(C).No.13590 OF 2019** **3** approval for appointment of the 5[th] respondent was rejected by the educational authorities. However, by Ext.P6, the 1[st] respondent found that the vacancy which arose consequent to the retirement of Smt.Shyma, Junior Grade Hindi teacher, on 31.3.2015 was liable to be filled up by appointing the 5[th] respondent, who is a Rule 51B claimant. It was found that it is only when there are no claimants under Rules 51A, 51B or Rule 43 of Chapter XIV A KER that a non-teaching staff would be eligible to be considered for appointment against a teaching post. The appointment of the 5[th] respondent was, therefore, directed to be approved. The petitioner challenged Ext.P6 order before this Court and by Ext.P7 judgment, a revision petition preferred against Ext.P6 was directed to be considered. The Government, by Ext.P8 order, has upheld the view taken by the 1[st] respondent in Ext.P6 and found that the 5[th] respondent was eligible for appointment, being a claimant under Rule 51B of Chapter XIV A KER. 4. The learned counsel for the petitioner submits that a Rule 51B claimant is not a teacher for the purpose of the Rules. It is stated that the claim of the 5[th] respondent was clearly belated since the death was in 1983 and the 5[th] respondent admittedly became major in 1988. It is stated that the claim raised is only in the year 2006 and that the decisions of this Court in **Sreeja** v. **Chief Postmaster General** [2001 (1) KLT 356], **Deepak** v. **Secretary, General Education** **WP(C).No.13590 OF 2019** **4** ## **Department** [2002 (3) KLT 288] and **Sukumaran Nair** v. **State of** **Kerala** [2005 (1) KLT 430] are authority on the point that an application for compassionate appointment is to get over the sudden crisis which befalls the family due to the death of the sole breadwinner and must be proximate in time to the death. It is submitted that Note 1 to Rule 1(1) of Chapter XIV A KER specifically provides that a member of the non-teaching staff shall be eligible for appointment as teacher provided he has the prescribed qualifications and that there is no teacher eligible for promotion or for appointment to such post under the rules. It is contended by the learned counsel for the petitioner that the 5[th] respondent, who was only a Rule 51B claimant, is not a teacher for the purpose of the rules and therefore, her claim is not liable to be considered. 5. A counter affidavit has been placed on record by the 4[th] respondent. It is contended that all the contentions of the parties have been examined in full while passing Exts.P6 and P8 orders and that the said orders are perfectly legal and sustainable. 6. The 5[th] respondent has also placed a counter affidavit on record. It is stated therein that the application for compassionate employment was submitted by the 5[th] respondent immediately after he became major in the year 1988. It is submitted that the provision for compassionate employment had been introduced in the KER only **WP(C).No.13590 OF 2019** **5** on 30.3.1990. Thereafter also, the provision was under orders of stay, which was vacated only on 16.1.1997. It is contended that the 5[th] respondent's claim was not considered on the ground that a special order from the Government is required for considering the same. It is submitted that it was only by Ext.R5(a) communication dated 22.10.2007 that the 5[th] respondent was informed that the management could consider his claim without any directions from the Government. It is submitted that a writ petition had been filed thereafter and Ext.R5(b) interim order was passed directing consideration of the 5[th] respondent's claim. By Ext.R5(c) judgment, the writ petition was disposed of directing consideration of the claim against any of the vacancies which arise after 1.4.2010. It is stated that all appointments made in the educational agency after Ext.R5(b) interim order were questionable. It is stated that the petitioner in the writ petition was later appointed as Lower Grade Hindi Teacher – part time with effect from 19.11.2015. Relying on the decisions of this Court in **Sathyanarayanan** v. **AEO** [2000 (3) KLT SN 14] and **Reghu** v. **State of Kerala** [2000 (2) KLT 29], it is contended that a nonteaching staff is eligible for promotion and appointment as teacher only in the absence of claimants under the Rules. It is submitted that since the 5[th] respondent is clearly a claimant under Rule 51B, he is eligible for appointment to the vacancy which arose in 2014-15 in **WP(C).No.13590 OF 2019** **6** preference to the petitioner. It is further contended that the vacancy occurred due to a retirement on 31.3.2015 and that therefore, the vacancy arose on 1.4.2015. As on the date of occurrence of vacancy, the writ petitioner is admittedly not qualified since he claims to have acquired the qualification for appointment as Lower Grade Hindi Teacher only on 31.4.2015. 7. The 3[rd] respondent has also placed a counter affidavit on record. It is stated that the 5[th] respondent was appointed as Full Time Hindi Teacher in the BEMP HSS, Thalassery with effect from 1.7.2015 in the vacancy of Smt.Shyma, Hindi Teacher, who retired on 31.3.2015. It is contended that since the 5[th] respondent was a 51B claimant, who was available as on the date of occurrence of vacancy, the 5[th] respondent is liable to be appointed against the said vacancy. 8. The learned counsel for the petitioner thereafter produced Exts.P9 to P11 documents to show that though the certificates of the petitioner were dated 30.4.2015, the examination was conducted in March, 2015 and therefore, he should be deemed to have been qualified as on the date of occurrence of the vacancy. 9. I have considered the contentions advanced. It is true that the 5[th] respondent's mother had died in the year 1983 and the 5[th] respondent had become major in 1988. At that time, there was no rule providing for compassionate appointment in aided schools in the **WP(C).No.13590 OF 2019** **7** KER. It appears that the petitioner had raised a claim for appointment in the school. The said claim was returned on the ground that special orders from the Government are required for considering such a claim. The 5[th] respondent appears to have approached the Government in 2006. The 5[th] respondent was informed that no special order is required for a consideration of the request for compassionate appointment. This was in the year 2007. The 5[th] respondent approached this Court and Ext.R5(b) interim order was issued directing the 3[rd] respondent therein to consider his claim for appointment as Lower Grade Hindi Teacher or at least as Full Time Menial in any existing vacancy. Such consideration was not done. Ultimately, the writ petition was disposed of by Ext.R5(c). Taking note of the contention of the Manager that no vacancy of a Full Time Menial or Junior Hindi Teacher was available on any of the schools to appoint the 5[th] respondent, this Court directed the 3[rd] respondent to consider the claim of the 5[th] respondent for appointment in any of the schools under the corporate management against any of the vacancies which occurred with effect from 1.4.2010. It was made clear that the 3[rd] respondent shall not effect any further appointment without considering the claim of the 5[th] respondent under Rule 51B as recognised by the 3[rd] respondent in Ext.P4. This judgment has long become final. The facts pleaded in **WP(C).No.13590 OF 2019** **8** the writ petition would show that it was only on 11.7.2012 that the petitioner was appointed as Full Time Menial in the CMS High School, Arapetta. If that be so, even the said appointment was against the directions issued by this Court. The writ petitioner cannot, at this distance of time, challenge the concluded findings that the 5[th] respondent is a Rule 51B claimant. It is too late in the day, in the light of Ext.R5(b) order and Ext.R5(c) judgment to contend that the claim of the 5[th] respondent was belated and ought not to have been considered by the 4[th] respondent. 10. Therefore, the only further question which arises for consideration is whether the petitioner has a better claim for appointment against the post of Full Time Junior Language Teacher against which the petitioner was appointed. Note 1 to Rule 1(1) of Chapter XIV A KER reads as follows :- “ **Note:-** (1) A member of the non-teaching staff under the category of Clerks, Peons, Sweepers and other staff shall also be eligible for appointment as teacher provided he has the prescribed qualifications and that there is no teacher eligible for promotion or for appointment to such post under these rules.” The contention of the petitioner is that it is only the claim of a teacher which is liable to be considered and that therefore, only a Rule 43 claimant would be entitled to preference as against a member of the non-teaching staff, who claims the appointment as teacher. However, **WP(C).No.13590 OF 2019** **9** this Court, in the decisions relied on by the learned counsel for the 5[th] respondent, has specifically held that a member of the non-teaching staff with prescribed qualification can claim appointment as a teacher only when there is no teacher eligible for promotion or for appointment. It was held that a claimant under Rule 51A is also a teacher for the purpose of the Note. The language of the Note 1 would make it clear that the reference is not only to existing teachers, but also to claimants for appointment under the Rules. If that be so, a claimant for compassionate appointment would also be liable to be considered before a non-teaching staff is given appointment as teacher. Moreover, it is the specific case of the petitioner that he became qualified for appointment as Junior Grade Hindi Teacher on 30.4.2015. It is clear that since the vacancy arose on account of a retirement on 31.3.2015, the date of occurrence of vacancy was 1.4.2015. The vacancy could be filled up only on the reopening day on account of the restrictions contained in the rules. Therefore, even going by the petitioner's own showing, his certificates being dated 30.4.2015, he was not qualified as on the date of occurrence of vacancy for appointment as Hindi Teacher. For these reasons and in view of the fact that the contentions raised have been properly considered in Exts.P6 and P8 orders, I am of the opinion that the prayers sought for in the writ petition cannot be granted. **WP(C).No.13590 OF 2019** **==> picture [13 x 8] intentionally omitted <==** The writ petition fails and the same is, accordingly, dismissed. Sd/- **ANU SIVARAMAN JUDGE** Jvt/18.12.2020 **WP(C).No.13590 OF 2019** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE ORDER NO.CM/CSI/521/15**| |---|---| ||**DATED 19.11.2015 APPOINTING THE PETITIONER**| ||**AS HINDI TEACHER-PART TIME AT BEM UP**| ||**SCHOOL, ANCHARAKANDY.**| |**EXHIBIT P2**|**TRUE COPY OF THE ORDER NO.B1/5320/15 DATED**| ||**28.09.2016 ISSUED BY THE DISTRICT**| ||**EDUCATIONAL OFFICER, THALASSERY, REJECTING**| ||**THE APPROVAL OF THE APPOINTMENT OF 5TH**| ||**RESPONDENT AS JUNIOR HINDI TEACHER (FULL**| ||**TIME) AT BEMP H.S.S. THALASSERY.**| |**EXHIBIT P3**|**TRUE COPY OF THE ORDER**| ||**NO.B1/24194/2016/K.DIS DATED 19.05.2017**| ||**ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION,**| ||**KANNUR, REJECTING THE APPROVAL OF THE**| ||**APPOINTMENT OF 5TH RESPONDENT AS JUNIOR**| ||**HINDI TEACHER (FULL TIME) AT BEMP H.S.S.**| ||**TALASSERY.**| |**EXHIBIT P4**|**TRUE COPY OF THE ORDER NO.E.M**| ||**(4)/45821/2017/DPI/K.DIS DATED 19.01.2018,**| ||**ISSUED BY GENERAL EDUCATION ADDL.DIRECTOR**| ||**(GENERAL), REJECTING THE APPROVAL OF THE**| ||**APPOINTMENT OF 5TH RESPONDENT AS JUNIOR**| ||**HINDI TEACHER (FULL TIME) AT BEMP H.S.S.**| ||**THALASSERY.**| |**EXHIBIT P5**|**TRUE COPY OF THE JUDGMENT DATED 05.04.2018**| ||**IN W.P(C)NO.8063/2018, HIGH COURT OF**| ||**KERALA.**| |**EXHIBIT P6**|**TRUE COPY OF THE ORDER NO.E.M 4-**| ||**19683/2018/DPI DATED 21.06.2018 ISSUED BY**| ||**GENERAL EDUCATION ADDL.DIRECTOR (GENERAL),**| ||**APPROVING THE APPOINTMENT OF 5TH RESPONDENT**| ||**AS JUNIOR HINDI TEACHER (FULL TIME) AT BEMP**| ||**H.S.S. THALASSERY.**| |**EXHIBIT P7**|**TRUE COPY OF THE JUDGMENT DATED 30.07.2018**| ||**IN W.P.(C)NO.23596 OF 2018, HIGH COURT OF**| ||**KERALA.**| **WP(C).No.13590 OF 2019** **12** **EXHIBIT P8** **TRUE COPY OF THE G.O.(ORD.)NO.1165/2019 /GEN.EDN.DEPT. DATED 25.03.2019 ISSUED BY THE STATE GOVERNMENT.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R5 A A TRUE COPY OF THE COMMUNICATION DATED 22.10.2007 BY THE 6THE RESPONDENT/GOVERNMENT EXHIBIT R5 B A TRUE COPY OF THE INTERIM ORDER IN WP(C) NO-11844/2009 DATED 9.10.2009** **EXHIBIT R5 C A TRUE COPY OF THE JUDGMENT IN WP(C) NO11844/2009 DATED 1.6.2010**