Jusna Ashraf v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942** ## **WP(C).No.23618 OF 2020(B)** ## **PETITIONER:** **JUSNA ASHRAF AGED 36 YEARS** **W/O.UMMER FAROOK, HSA (ENGLISH), CALICUT GIRLS HIGHER SECONDARY SCHOOL, KOZHIKODE-673003.** ## **BY ADV. SRI.R.K.MURALEEDHARAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF GENERAL EDUCATION, OFFICE OF THE DIRECTORATE, JAGATHI, THIRUVANANTHAPURAM695014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE, KOZHIKODE DISTRICT-673001.** - **4 THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE, KOZHIKODE DISTRICT-673001.** ## **OTHER PRESENT:** ## **SMT. NISHA BOSED -SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.23618 OF 2020(B)** **2** ## **J U D G M E N T** The petitioner says that she was appointed as a High School Teacher in English in the Calicut Girls Higher Secondary School, Kozhikode, in a leave vacancy for two spells from 01.08.2011 to 31.12.2014 and from 16.09.2015 to 31.12.2017; both spells being approved with effect from 01.08.2011 to 21.12.2014 and from 16.09.2015 to 31.12.2017 respectively. She says that though she was again appointed to a leave vacancy from 01.01.2018 to 31.12.2022, a regular vacancy arose from 04.02.2019 and she was shifted to the said vacancy. 2. The petitioner says that, however, the 4th respondent has now rejected her appointment in the leave substitute vacancy from 01.01.2018 as also in the regular vacancy from 04.02.2019, solely saying that since the appointments of two other teachers were ordered to be approved from 2008, giving them the benefit of the deeming provision that the Manager has executed a bond as per G.O.(P)No.10/10/G.Edn dated 12.01.2010; that the vacancy to which she has been appointed **WP(C).No.23618 OF 2020(B)** **3** could have filled only by protected teachers. 3. The petitioner contends that since she is enjoying a statutory right under Rule 51A of the KER, her approval to the appointment could not have been rejected for the reason that protected teachers had to be appointed in her place. The petitioner relies on a judgment of this Court in **Latha v. State of Kerala [2017 (3) KLT 84],** a copy of which has also been produced on record as Ext.P11; and thus prays that Exts.P6, P6(a) and P7 orders be set aside and the respondents be directed to approve her appointment in the leave vacancy with effect from 01.01.2018 and in the regular vacancy from 04.02.2019, at the earliest. 4. In response to the submissions made on behalf of the petitioner by his learned counsel, Sri.R.K.Muralidharan, as afore, the learned Senior Government Pleader, Smt.Nisha Bose, submitted that the petitioner's approval has been rejected expressly on account of Clause 5 of G.O.(P)No.10/10/G.Edn dated 12.01.2010, a copy of which has been produced on record as Ext.P6(b). The learned Senior Government Pleader submitted **WP(C).No.23618 OF 2020(B)** **4** that the above mentioned Clause clearly mandate that when a regular vacancy arises consequent to the ban of appointment ordered by the Government, the Manager can appoint only teachers from among protected teachers and cannot fill it up from in any other manner. The learned Senior Government Pleader continued to submit that, in fact, what has been sought to be done through Ext.P6(b) Government Order is to validate an illegal action of the Manager, by granting approvals to the teachers who had been appointed in spite of the appointment ban as ordered by the Government, deeming that he has executed a bond to the effect that he will effect appointments to future vacancies only from among the protected teachers. 5. The learned Government Pleader further submitted that the afore Government Order has already been approved by a Division Bench of this Court in **Nair Service Society v. Government of Kerala [2015 (2) KLT 625]** and submitted that since, in this case, the Manager had made two appointments earlier - which had been validated solely under the beneficial Clauses of Ext.P6(b) Government Order - he could not have **WP(C).No.23618 OF 2020(B)** **5** appointed the petitioner to the next arising vacancy in the School and should have filled it up only by a protected teacher. She thus prayed that this writ petition be dismissed. 6. When I assess the above submissions, there cannot be any doubt that the terms of the Government Order, bearing No. G.O.(P)No.10/10/G.Edn dated 12.01.2010, has already approved by a Division Bench of this Court in **Nair Service Society** (supra). 7. However, the question herein really is not whether the Government Order would permit the validation of certain illegal acts of a Manager consequent to the ban of appointment as ordered by the Government; but whether the rights of a teacher, accrued on account of a statutory provision like Rule 51A, can be snached away by under its rigour. 8. As rightly contended by the learned Senior Government Pleader, Ext.P6 Government Order certainly was issued to ensure that the appointments made by the Manager in spite of the ban of appointments ordered by the Government could be approved, if he agreed that he will fill up the next arising vacancies through protected teachers. In fact, for this **WP(C).No.23618 OF 2020(B)** **6** purpose, this Court has also declared the law that the competent Educational Authorities are at liberty to even deem that the Manager has executed a bond, to such effect, if the circumstances, so warrant. 9. Needless to say, in the present case, two appointments were made by the Manager in violation of the appointment ban and these two have been validated by the Educational Authorities in terms of the above mentioned Government Order. Normally, therefore, the next arising vacancy should have been filled up only by a protected teacher, because the Manager is bound in law to do so, on account of the bond executed by him. However, what has been done in this case is that the Manager appointed by the petitioner to the next vacancy, recognizing her statutory vested right under Rule 51A of the KER and this has been now objected to by the Educational Authorities. 10. As this Court has already declared in various judgments including in **Latha** (supra), the provisions of the KER is perspicuous that a teacher holding a claim under Rule 51A would lose it only if she is appointed to a substantive post **WP(C).No.23618 OF 2020(B)** **7** subsequently, or if, he/she is appointed under another Education Agency. The right of the teacher being so sacrosanct, it is ineluctable that had the petitioner not been appointed to the next arising vacancy, she would have had to be retrenched and she would have continued to hold the claim under Rule 51A - which is to mean that she would have to be appointed to the vacancies that arose later. 11. The anachronism that I notice in this case is that, even when the petitioner holds a statutory right under Rule 51A, the Educational Authorities, adverting technically to the terms of the Government order afore, maintains that she should not have been appointed, but only a protected teacher, which is to mean that she will have to be retrenched and she will have to await for the next arising vacancy for appointment. 12. This is thus a classic age where there is a conflict between the rights of Rule 51A claimant and that of a protected teacher and this has been in fact occasioned only on account of various Government Orders creating the ban of appointment and then validating it through the afore mentioned Government Order No.10/10/G.Edn, thus ensuring that the protected teachers **WP(C).No.23618 OF 2020(B)** **8** on the payroll are accommodated to an available vacancy, so that they can be paid salary thereafter. 13. However, while ensuring this, the causality becomes the rights of teachers who are holding vested rights under Rule 51A and in fact, this issue has not been specifically adverted to and, answered in any manner by the Division Bench in **Nair Service Society** (supra). 14. Since the petitioner is concededly a Rule 51A claimant and since if she had not been appointed to the next arising vacancy, she should have faced retrenchment **,** I am certainly of the view that it would brook no justice to keep her out of service, so as to provide placement to a protected teacher, who was also earlier thrown out on account of various factors as provided under the KER. 15. I cannot, therefore, find favour with the impugned orders namely, Exts.P6, P6(a) and P7 and am of the firm view that the matter will have to be reconsidered in the light of my observations above by the 3rd respondent - Deputy Director of Education, Kozhikode. **WP(C).No.23618 OF 2020(B)** **9** Resultantly, this writ petition is ordered, setting aside Exts.P6, P6(a), and P7; with a consequential direction to the DEO to reconsider the proposal for approval of the petitioner's appointment in terms of my observations above and after affording an opportunity of being heard to him and to the Manager of the School - either physically or through videoconferencing - culminating in an appropriate order thereon, as expeditiously as is possible but not later than three months from the date of receipt of a copy of this judgment. After I dictated this part of this judgment, Sri.R.K.Muralidharan, learned counsel for the petitioner submitted that the claim of the two teachers of the School, who were given the benefit of the afore mentioned Government Order, arose only on 31.03.2019 and that had the petitioner's approval been considered by the competent Authorities within the statutory time limit fixed by the KER, such conflicting claims would have arisen at all. He submitted that this may also be considered by the DEO when the afore exercise is completed. It is needless to say that any lawfully acceptable contention of the parties will have to be considered by the DEO **WP(C).No.23618 OF 2020(B)** **10** and it does not require this Court to specify the areas of consideration of the said Authority, who shall complete the afore exercise as per law and after following due procedure. This writ petition is thus ordered. **Sd/-** rp **DEVAN RAMACHANDRAN JUDGE** **WP(C).No.23618 OF 2020(B)** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER DATED 01.08.2011 AND THE ORDER OF APPROVAL DATED 22.08.2016. EXHIBIT P2 A TRUE COPY OF THE APPOINTMENT ORDER DATED 16.09.2015 AND THE PROCEEDINGS OF APPROVAL DATED 23.02.2017. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 12.01.2018 OF THE 2ND RESPONDENT. EXHIBIT P3(A) TRUE COPY OF THE APPOINTMENT ORDER DATED 01.01.2018 OF THE PETITIONER. EXHIBIT P4 A TRUE COPY OF THE APPOINTMENT ORDER DATED 04.02.2019. EXHIBIT P5 A TRUE COPY OF THE GO(MS)NO.275/99/G.EDN DATED 09.11.1999. EXHIBIT P6 TRUE COPY OF THE ORDER NO.B1/282/2018/K.DIS DATED 17.02.2020. EXHIBIT P6(A) TRUE COPY OF THE ORDER NO.B1/1051/2019/K.DIS DATED 17.02.2020. EXHIBIT P6(B) A TRUE COPY OF GO(P)NO.10/10/G.EDN DATED 12.01.2010. EXHIBIT P7 A TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 15.09.2020. EXHIBIT P8 A TRUE COPY OF THE ORDER OF THE REGIONAL DEPUTY DIRECTOR, KOZHIKODE DATED 29.05.2020. EXHIBIT P9 A TRUE COPY OF THE JUDGMENT IN WP(C)NO.11951/2019 DATED 12.04.2019. EXHIBIT P10 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE HEADMISTRESS OF THE SCHOOL. EXHIBIT P11 TRUE COPY OF THE JUDGMENT REPORTED IN 2017(3)KLT 84.**