Juley Alexander v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **TUESDAY, THE 9TH DAY OF JULY 2013/18TH ASHADHA, 1935** ## **WP(C).No. 11594 of 2009 (T)** ## **----------------------------** ## **PETITIONER :** - **--------------------------** **JULEY ALEXANDER, HIGHER SECONDARY SCHOOL TEACHER(MALAYALAM) ST. GREGARIOUS HIGHER SECONDARY SCHOOL, KOTTARAKKARA.** **BY ADV. SRI.M.V.THAMBAN** **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REP. BY THE SECRETARY TO THE GOVT. DEPARTMENT OF GENERAL EDUCATION, GOVT. SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR (EDUCATION), KOLLAM.** **4. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA, KOLLAM.** **5. THE MANAGER, M.M.C. CORPORATE MANAGEMENT SCHOOL, PULAMON, KOTTARAKKARA.** **6. SMT. AKKAMMA, H.S.A.(MALAYALAM), ST. GEORGE'S VOCATIONAL HIGHER SECONDARY SCHOOL, CHOVALLOOR (VIA), KUNDARA, KOLLMAM DISTRICT.** - **R1 TO R4 BY GOVERNMENT PLEADER SRI.EGY. N. ELIAS R6 BY ADV. SRI.S.SREEKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-07-2013, ALONG WITH WPC.NO. 34312/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.11594/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE ORDER NO.B.4/9247/2005/K.DIS DATED 21/12/2005** - **P2 COPY OF THE ORDER NO.ETI/30534/06/DPI/G.DIS DATED 1/11/08** - **P3 COPY OF THE REVISION PETITION DATED 24/11/2006** - **P4 COPY OF THE REVISION PETITION ON 30/11/2006 FILED BY THE PETITIONER BEFORE THE GOVT.** - **P5 COPY OF THE GO(P)NO.46/06/G.EDN DATED 01/2/2006** - **P6 COPY OF THE LETTER NO.27526/E3/07/G.EDN DATED 2/6/2007** - **P7 COPY OF THE LETTER NO.15478/E3/07/G.EDN DATED 23/6/2007** - **P8 COPY OF THE G.O.(RT)NO.4900/G.EDN DATED 23/11/2009** ## **RESPONDENT'S EXHIBITS:** - **R6(A) COPY OF THE ORDER DATED 31/03/2006 PASSED BY THE D.E.O** - **R6(B) COPY OF THE ORDER DATED 20/07/2007 ISSUED BY THE 3RD RESPONDENT.** - **R6(C) COPY OF THE ORDER DATED 25/06/2007 ISSUED BY THE 2ND RESPONDENT.** - **R6(D) COPY OF THE REVISION PETITION FILED BY THE 5TH RESPONDENT.** - **R6(E) COPY OF THE JUDGMENT IN WP(C)NO.10921 OF 2009 DATED 02/04/2009** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **C.K. ABDUL REHIM, J. -----------------------------------W.P.(C). Nos. 11594 & 34312 of 2009 --------------------------------------------------Dated this the 9[th] day of July, 2013** ## **JUDGMENT** Issue involved in both these cases are more or less identical. Hence they are disposed of through this common judgment. Petitioners are teachers working under the same corporate management, who is common respondent in both these cases. 2. The petitioner in WP(C) 11594/2009 is presently working as Higher Secondary School Teacher, Malayalam (HSST-Mal) in the Higher Secondary Section of St.Gregorious Higher Secondary School, Kottarakkara, with effect from 25.07.2007 onwards. Earlier she was appointed as H.S.A. (Mal) at the High School section of the very same School, with effect from 15.07.2004. The appointment was made against a regular vacancy which arose after re-verification of student strength by the Deputy Director. But the said appointment was not approved on the ground W.P.(C)Nos.11594 & 34312 of 2009 **-2-** that there was violation of the terms of Government Order, G.O. (P) No. 123/91/G.Edn, dated 05.08.1991 (G.O. 123/91 for short) insisting upon new schools opened or upgraded after 1979 to accommodate protected teachers thrown out from other managements. Appeal filed by the management against the rejection of approval was dismissed as per Ext.P1. Since the appointment was not approved the petitioner was not paid salary and other emoluments for the period from 15.7.2004 to 27.05.2007, till she was appointed as HSST. The petitioner had raised a claim under Rule 51A of Chapter XIVA, KER for appointment against a vacancy of H.S.A. (Mal) which arose in St. George's vocational H.S, Chovalloor under the same corporate management. But Smt.Accamma A.J., who is common respondent in both these writ petitions, was appointed against the said post with effect from 02.06.2005. The claim under Rule 51A was on the basis that the petitioner had worked in a temporary vacancy in another School at Bharanikavu, which is alleged to be under the same corporate management for 2 spells, W.P.(C)Nos.11594 & 34312 of 2009 **-3-** from 7.6.2001 to 18.10.2001 and from 19.10.2001 to 8.2.2002. Further claim of the petitioner is that, the appointment of Smt.Accamma was illegal because the petitioner had lien with respect to the said post since she was working under the same management from 15.7.2004 onwards. 3. Appointment of Smt.Accamma and two other teachers including the petitioner in WP(C) 34312/2008 were not approved because of the reason that approval of the appointment of the petitioner was pending. In the meanwhile the Manager had preferred appeal against Ext.P2 order before the Director of Public Instructions. The said appeal was also rejected for the very same reason that the school ought to have accommodated protected teachers. The Manager further filed Ext.P4 Revision before the Government. Meanwhile the Government issued Ext.P5 order, (G.O.(P) No. 46/2006/G.Edn dated 01.02.2006). Noticing that a large number of teachers are not getting approval of appointment on the basis of G.O. 123/91, it was W.P.(C)Nos.11594 & 34312 of 2009 **-4-** decided to approve appointment of 402 aided school teachers who were appointed prior to 31.12.2004. According to the petitioner, her name was omitted to be included in the said list, despite she was also similarly situated. Petitioner preferred a representation before the Government in this regard. Ext.P6 intimation was received to the effect that the said representation is under consideration. But no decision was taken on the issue. Meanwhile, appointment of Smt.Accamma was approved by the Government through Ext.P8 Revisional order issued on 23.11.2009. In WP(C) 11594/2009 the petitioner is seeking declaration of approval of her appointment as HSA on the basis of Ext.P5 Government Order and also on the basis that she was entitled to be appointed against the vacancy which arose on 2.6.2005 (against which Smt.Accamma was appointed). 4. The petitioner in WP(C) 34312/2009 is at present working as H.S.A. (Mal) in St.Gregorious High School, Kottarakkara under the very same corporate management. W.P.(C)Nos.11594 & 34312 of 2009 **-5-** Her appointment as H.S.A. (Mal) with effect from 27.06.2005 at Mar Augen Memorial High School, Chenganammadu, under the same corporate management, was not approved for the very same reason of noncompliance of G.O.123/91. She is also challenging appointment of Smt.Accamma at St.George's Vocational Higher Secondary School, Chovalloor as H.S.A. (Mal). According to the petitioner Smt.Accamma was younger and the petitioner ought to have been appointed against the said vacancy, which arose in an ancient school which will not come within the purview of G.O.123/91. She is challenging approval of appointment of Smt.Accamma on the basis that she is the senior claimant to the post and also on the basis that the petitioner in WP(C) 11594/2009 has got preference in the matter of appointment. The petitioner in this case is also seeking the benefit of Ext.P5 Government Order wherein appointment of 406 aided school teachers were approved. 5. In the counter affidavit of the 1[st] respondent in W.P.(C)Nos.11594 & 34312 of 2009 **-6-** W.P.(C) No.11594/2009 it is contended that, the rejection of approval has to be sustained because the manager had violated G.O.123/91. It is specifically mentioned that the petitioner is not a Rule 51 A claimant because the school wherein she had worked on temporary basis (at Bharanikavu) is not an school under the respondent - corporate management. At the time of appointment of the petitioner as H.S.A (Mal) on 15.07.2004 there was no protected teacher working at St. Gregorious H.S.S. Kottarakkara. Hence the requirement under G.O.123/91 remained unsatisfied. The appointment of Smt. Accamma at St. George V.H.S.S., Chowallur, does not come under the purview of G.O. 123/91, since it is not a newly opened school. Initially the approval of appointment of Smt. Accamma was rejected only on the reason that approval of appointment of the petitioner was pending. It is contended that the rejection of appointment of the petitioners in W.P.(C) No.34312/2009 is also to be sustained in view of the fact that there is violation of G.O.123/91. With W.P.(C)Nos.11594 & 34312 of 2009 **-7-** respect to claim of the petitioner in W.P.(C) No.11594/2009 for preference in appointment at St. George V.H.S.S. Chowallur, it is contended that the petitioner had no previous approved service under the respondent-corporate management and therefore she is not a statutory claimant either under Rule 51 A or under Rule 43. However, in the counter affidavit of the 1[st] respondent it is mentioned that the petitioner being a senior appointee, the manager ought to have preferred her for appointment at the Chowallur school. 6. With respect to the claim based on Ext.P5 Government Order, contention is that the Government had given the benefit only to teachers enlisted under that order who were working as on 31.12.2004, and the petitioners cannot claim benefit based on the said order. Government considered approval of appointment of Smt. Accamma in view of the direction issued by this court and the educational authorities were directed to approve the appointment if she is otherwise eligible as per KER. It is W.P.(C)Nos.11594 & 34312 of 2009 **-8-** further contended that the approval of appointment of Smt. Accamma was pending before the educational authority because of stay order granted by this court against operation of Ext.P8. 7. In the counter affidavit filed by Smt. Accamma it is contended that, approval of her appointment was rejected earlier only for the reason that approval of appointment of the petitioner in WP(C) No.11594/2009 was pending. When approval was rejected by the appellate authorities she had approached the Government in Revision. In Ext.R6(a) judgment this court directed the Government to consider the Revision. In compliance with the directions, Ext.P8 order was issued granting approval of appointment. According to Smt. Accamma her appointment at the Chowallur school was against a regular vacancy and it is not a newly opened or upgraded school and there was no claimant under Rule 43 or Rule 51A. Therefore the approval has to be sustained, is the contention. 8. In W.P.(C) No.34312/2009, the 2[nd] respondent had W.P.(C)Nos.11594 & 34312 of 2009 **-9-** filed counter affidavit raising more or less the same contentions as in the counter affidavit in the other case. Under a corporate management the schools have to be considered as single unit, and therefore instead of appointing Smt.Accamma the Manager ought to have appointed the petitioner in W.P.(C) No.11594/2009, she being a senior appointee, is the contention. So also it is mentioned that, with respect to a subsequent vacancy arose in Chowallur school, the petitioner in WP(C) No.34312 of 2009 ought to have been appointed instead Smt.Sudha Koshy, another teacher appointed. At the same time it is contended that the petitioner in W.P.(C) No.34312/2009 cannot be considered as a Rule 43 or Rule 51A claimant and hence the order issued by the Government directing approval of appointment of Smt. Accamma has to be sustained. It is specifically mentioned that, with respect to Mar Augen Memorial High School, Chengamanadu, wherein the petitioner in W.P.(C) No.34312/2009 was appointed, there was no protected W.P.(C)Nos.11594 & 34312 of 2009 **-10-** teacher working at the time of appointment. However it is conceded that protected teachers appointed by the Manager on earlier occasions have not joined duty. It is further contended that the lien adjustment claimed by the petitioners cannot be sustained as the petitioners had no approved service prior to the appointment. 9. Claim of the petitioner in WP(C) No.11594 of 2009 under Rule 51A based on temporary service put in by her at C.P. Eapen Memorial High School, Bharanikkavu, cannot be accepted because the said school is not under the management of the respondent-corporate management. No materials are produced before this court to show otherwise. 10. Next contention is with respect to lien adjustment. Claim is that, when Smt. A.J. Accamma was appointed at St. George V.H.S.S., Chowallur on 2.6.2005, the petitioner in W.P.(C) No.11594/2009 was working as H.S.A. (Mal) at the St. Gregorious H.S.S. Kottarakkara, without approval. The petitioner being a senior appointee should have been accommodated against the said vacancy, is the contention. ## W.P.(C)Nos.11594 & 34312 of 2009 **-11-** So also in W.P.(C).34312/2009 it is contended that, when the petitioner was working as H.S.A. (Mal) at Mar Augen Memorial High School, Chengamanadu, without approval, the corporate management appointed Smt. Accamma at the Chowallur school, without preferring the senior appointee. It is to be noticed that there is no case for both the petitioners that they had approved service entitling them to raise any claim either under Rule 43 or under Rule 51 or Rule 51A. Therefore appointment of a fresh hand made by the corporate management cannot be challenged successfully. But learned counsel for the petitioners contended that the claim under Rule 51A is not dependent upon the factum of approval. He placed reliance on the Full Bench decision of this Court in **Soman v. Manger, A.K.M. High School [2013 (2) KLT 215 (F.B)]** and on a Division Bench decision in **Geetha Vs. Geo Thomas [2009 (4) KLT 514]** . But the dicta contained in those decisions cannot be applied on the factual matrix of the case at hand. 11. Even though Government had taken a stand in W.P.(C)Nos.11594 & 34312 of 2009 **-12-** their counter affidavit that the Manager ought to have appointed the senior appointee, learned counsel for the petitioners is not in a position to point out any specific statutory provision obliging the Manager to make such appointment. Therefore this Court is not persuaded to set aside the approval of appointment of Smt. Accamma on the ground of lien adjustment, as claimed. 12. Learned counsel for the petitioners contended that appointment of the petitioners ought to have been approved with retrospectivity, on the basis that protected teachers were appointed subsequently in both the schools. He had placed much reliance on a decision of this court in **Nadeera v. State of Kerala [2011 (3) KLT 790]** . Question decided in the said case was that, when a Manager exercises his power and appoint a qualified teacher in terms of the staff fixation, can the approval be postponed stating the reason that it can be done only from the date of appointment of a protected hand. This court held that nothing contained in Ext.P5 G.O. prevents W.P.(C)Nos.11594 & 34312 of 2009 **-13-** approval of appointment till a protected hand is appointed by the Manager and the time factor for appointment of a protected teacher is not mentioned in the G.O. There may be cases where appointment of a protected hand is delayed due to non- availability of suitable persons. Therefore to compel a Manager to postpone appointment of a qualified teacher, even after the post is sanctioned through staff fixation order, will go against scheme of the Act and the Rules. As far as the grant of approval is concerned, normally it should conform to existence of a vacancy and sanction of post as per the staff fixation order and also on eligibility of the teacher to be appointed by fulfilling the requisite qualification. Once these conditions are satisfied, unless there is any other legal bar there cannot be any refusal to grant approval, normally. Therefore there is no enabling provision which allows the educational officer to postpone the approval till a protected hand is appointed, is the findings. Facts of the said case was that, appointment of a qualified teacher against a regular vacancy was not W.P.(C)Nos.11594 & 34312 of 2009 **-14-** approved till the date of appointment of a protected hand and subsequently it was approved only from the date of appointment of such protected hand. This court held that the approval granted restricting the date of appointment from the date of appointment of the protected hand is not sustainable. It is pointed out that the judgment in Nadeera's case (supra) was confirmed in appeal by a Division Bench, in W.A.No.178/2012. 13. But facts of the case at hand is distinct from Nadeera's case (supra). In Nadeera's case the teacher had continued in the same post and the appointment was approved subsequently. The dispute was only with respect to the date of approval. But here the petitioners have not continued in the posts and there is no case that any protected teacher was appointed during the period when the petitioners were continuing. However, question as to whether approval can be granted for the period during which the petitioners worked as H.S.A. (Mal) on the basis that protected teachers were appointed subsequently, W.P.(C)Nos.11594 & 34312 of 2009 **-15-** needs consideration. 14. Yet another point raised is on the basis of Ext.P5 G.O. through which Government directed approval of 402 aided school teachers appointed prior to 31.12.2004. According to the petitioners, they are entitled for a similar treatment because they were identically situated. Ext.P5 as such will not confer any right on the petitioners, because their appointments were after 31.12.2004. But question remains as to whether the same yardstick need be adopted in the case of the petitioners also. 15. This Court do not find any merit in the challenges raised against approval of the appointment of Smt. A.J. Accamma. As already observed, claim based on lien adjustment cannot be countenanced. So also it is not disputed that the school wherein Smt. Accamma was appointed is not a new school coming within the scope of G.O.123/91 or Ext.P5 G.O. The petitioners contended that the approval was granted without affording an opportunity of personal hearing to them, despite specific directions W.P.(C)Nos.11594 & 34312 of 2009 **-16-** issued by this court to hear the affected parties. But this Court is of the considered opinion that on merits of the contentions now raised the approval granted cannot be negatived. Therefore, challenge against Ext.P8 in W.P.(C) No.11594/2009 fails. On the basis of approval of appointment of Smt. Accamma she is entitled to all attendant benefits. 16. Considering the fact that the petitioner in W.P.(C) No.11594/2009 had already approached Government in Ext.P4 representation seeking the benefit of Ext.P5 G.O., this Court is the opinion that the Government can be directed to reconsider the issue based on the claim for a similar treatment. The Government should also consider claim for approval based on the factual situation regarding appointment of protected teachers in the school concerned, subsequently. Hence the matter need to be relegated for decision of the Government on the above aspects, especially in view of the dictum contained in Nadeera's case (supra) which is confirmed by the Division Bench. W.P.(C)Nos.11594 & 34312 of 2009 **-17-** 17. Learned counsel for the petitioners had raised another claim that, going by Ext.P5 G.O. the managements were permitted to appoint teachers on daily wage basis until appointment of protected teachers. On that basis it is contended that the period during which the petitioners have worked in the respective schools should have to be treated as daily wage appointments. However at no point of time permission was sought for treating the petitioners as daily waged teachers, nor any steps was taken in this regard either by the petitioners or by the Manager. Under the above mentioned circumstances these writ petitions are disposed of on the following terms; - (i) Challenge against Ext.P8 order through which appointment of Smt. Accamma was approved is declined. Necessary steps shall be taken by the educational authority to implement Ext.P8 and to make payment of salary and other benefits due to the said teacher. - (ii) With respect to approval of appointments of the ## W.P.(C)Nos.11594 & 34312 of 2009 **-18-** petitioner in W.P.(C) 11594/2009 for the period from 15.7.2004 to 25.7.2007 and the petitioner in W.P.(C) No.34312/2009 for the period from 27.6.2005 to 01.06.2011 (the date on which she was included in the teachers package and engaged otherwise) is directed to be reconsidered by the Government on the basis of Ext.P4 representation in W.P.(C) No.11594/2009 and on the basis of Ext.P5 in W.P.(C) No.34312/2009, taking note of the observations contained hereinabove and also taking note of the legal principles enumerated in Nadeera's case (supra). The petitioners will be at liberty to submit fresh representations/Notes of Arguments before the Government. The matter should be considered and disposed of by the Government after affording an opportunity of personal hearing to the petitioners as well as to the Manager concerned. A decision in this regard shall be W.P.(C)Nos.11594 & 34312 of 2009 **-19-** taken as early as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. Sd/- **C.K. ABDUL REHIM, JUDGE** pn/shg/