K.N. Kavitha v. State of Kerala & Others; T.G. Raji v. State of Kerala & Others; RavENDRANATHAN C v. State of Kerala & Others (WP(C).Nos.27026, 27570 & 29113 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942** ## **WP(C).No.27026 OF 2014(C)** ## **PETITIONER:** **K.N. KAVITHA AGED 38 YEARS W/O.K.ANIL, UPPER PRIMARY SCHOOL, THANIKUDAM, THRISSUR EAST (WORKING AS CLUSTER CO-ORDINATOR, URBAN RESOURCE CENTRE, GOVERNMENT MODEL VOCATIONAL HIGHER SECONDARY SCHOOL FOR GIRLS, THRISSUR (RESIDING AT ASWATHY, THANIKUDAM, KURICHIKKARA, THRISSUR DISTRICRT-680028)** **BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, THIRUVANANTHAPURAM-695014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR AT AYYANTHOLE-680003.** - **4 THE ASSISTANT EDUCATIONAL OFFICER THRISSUR EAST, THRISSUR DISTRICT-680020.** - **5 THE MANAGER UPPER PRIMARY SCHOOL, THANIKUDAM, THRISSUR EAST, THRISSUR DISTRICT-680020.** - **6 THE HEADMISTRESS UPPER PRIMARY SCHOOL, THANIKUDAM, THRISSUR EAST, THRISSUR DISTRICT-680020.** - **7 RAJI HINDI TEACHER (NOT APPROVED), UPPER PRIMARY SCHOOL, THANIKUDAM, THRISSUR EAST, THRISSUR DISTRICT-680020.** **WP(C).Nos.27026, 27570 & 29113 OF 2014** **2** **R1, R7 BY ADV. SRI.BRIJESH MOHAN R1, R4 BY GOVERNMENT PLEADER R1 BY ADV. SRI.K.JAJU BABU SR. R1, R5 BY ADV. SRI.KALEESWARAM RAJ R1 BY ADV. SMT.M.U.VIJAYALAKSHMI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.09.2020, ALONG WITH WP(C).27570/2014(U), WP(C).29113/2014(L) THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.27026, 27570 & 29113 OF 2014** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942** **WP(C).No.27570 OF 2014** ## **PETITIONER:** **T.G.RAJI JUNIOR LANGUAGE TEACHER (HINDI), U.P.SCHOOL, THANIKUDAM, KURICHIKKARA P.O., THRISSUR - 680 028.** **BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHI, THIRUVANANTHAPURAM - 695 014.** - **3 THE ASSISTANT EDUCATIONAL OFFICER THRISSUR (EAST), THRISSUR - 680 001.** - **4 THE MANAGER U.P.SCHOOL, THANIKUDAM, KURICHIKKARA P.O., THRISSUR - 680 028.** - **5 SMT.K.N.KAVITHA C.R.C.COORDINATOR IN U.R.C., MODEL BOYS' HIGHER SECONDARY SCHOOL CAMPUS, THRISSUR - 680 020.** - **R5 BY ADV. SRI.V.A.MUHAMMED GP - SRI. P.M.MANOJ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.09.2020, ALONG WITH WP(C).27026/2014(C), WP(C).29113/2014(L) THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.27026, 27570 & 29113 OF 2014** **4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942 WP(C).No.29113 OF 2014** ## **PETITIONER:** ## **RAVEENDRANATHAN C** **MANAGER, U.P.SCHOOL, THANIKUDAM, P.O.KURUCHIKKARA THRISSUR-680 028** **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695001.** - **3 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR - 680 001** - **4 THE DISTRICT EDUCATIONAL OFFICER THRISSUR - 680 001** - **5 THE ASSISTANT EDUCATIONAL OFFICER THRISSUR EAST, THRISSUR-680 001.** - **6 K.N. KAVITHA CLUSTER CO-ORDINATOR, URBAN RESOURCE CENTRE, GOVERNMENT MODEL VOCATIONAL HIGHER SECONDARY SCHOOL FOR GIRLS THRISSUR, RESIDING AT ASWATY, THANIKUDAM, KURICHIKKARA THRISSUR - 680 028** - **7 RAJI HINDI TEACHER, UPPER PRIMARY SCHOOL THANIKUDAM, P.O.KURUCHIKKARA, THRISSUR DISTRICT-680028.** **WP(C).Nos.27026, 27570 & 29113 OF 2014** **5** **R1, R6 BY ADV. SRI.V.A.MUHAMMED R1 BY ADV. SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.09.2020, ALONG WITH WP(C).27026/2014(C), WP(C).27570/2014(U) THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos.27026, 27570 & 29113 OF 2014** **6** ## **JUDGMENT** **Dated this the 30th day of September 2020** These writ petitions are with regard to the approval of appointment of a Junior Language Teacher with effect from 03.06.2013. 2. WP(C) No.27570 of 2014 is filed by the Teacher challenging the orders rejecting approval to her appointment as well as the orders passed in appeal and revision. WP(C) No.29113 of 2014 is filed by the Manager challenging the same orders. WP(C) No.27026 of 2014 is filed by a rival claimant to the post who got the benefit of the orders and who claims to be Rule 51A Chapter XIV A claimant in respect of this post. 3. The claim is with regard to a retirement vacancy of Junior Language Teacher which occurred on 30.04.2013. The Manager appointed the petitioner in WP(C) No.27570 of 2014 against the post from 03.06.2013 and send up the appointment for approval. It is stated that on the ground that there is a Rule 51 A claimant, the **WP(C).Nos.27026, 27570 & 29113 OF 2014** **7** appointment was not approved. The matter was taken in appeal and revision and the rejection of approval was confirmed. 4. The learned counsel for the petitioner in WP(C) No.27570 of 2014 submits that the rival claimant Smt.K.N Kavitha, who is the petitioner in WP(C) No.27026 of 2014 had earlier approved service as LPSA. It is stated that she was relieved in 2009 and she had admittedly acquired the qualification of Rashtra Basha Visarad only in the year 2012. It is stated that the said claimant became qualified for the post of Junior Language Teacher only on 16.07.2012. It is submitted that to have a valid Rule 51 A claim, it is well settled that the Teacher should be qualified at the time of relief from the post itself and that in view of the fact that the claimant was not qualified in 2009 when she was relieved from the post, the claim of the Teacher is not liable to be considered in Reliance is on a terms of Rule 51A Chapter XIV A KER. placed decision of a Division Bench of this Court in _**Kalavathy C v. State of Kerala and Others [2014 (3) KHC 253],**_ in support of his contention. 5. The learned counsel for the petitioner in WP(C) No.27026 of 2014 submits that the petitioner had been initially appointed on **WP(C).Nos.27026, 27570 & 29113 OF 2014** **8** 07.07.1997 and that her regular service as LPSA commenced on 06.06.2001. It is stated that in view of the amendment brought about to Rule 51A Chapter XIV A KER by G.O.(P) No.187/2005/G.Edn. dated 17.06.2005, the petitioner became eligible to claim preferential appointment in higher or lower post arising under the same management and that the petitioner's claim was liable to be considered. It is stated that the petitioner, being fully qualified for appointment as Junior Language Teacher was entitled for appointment in preference to any fresh appointee. 6. A counter affidavit has been placed on record in WP(C) No.27026 of 2014. It is submitted that Smt.K.N.Kavitha being a Rule 51A claimant is a rightful claimant to the post which was filled up by appointing Smt.Raji T.G on 03.06.2013. It is stated that all authorities including the Government have upheld the claim of the petitioner in WP(C) No.27026 of 2014. 7. I have considered the contentions advanced. It is not in dispute before me that the petitioner in WP(C) No.27026 of 2014 had been appointed as LPSA and had been relieved from service in the year 2009. She was admittedly not qualified for **WP(C).Nos.27026, 27570 & 29113 OF 2014** **9** appointment to the post of Junior Language Teacher (Hindi) as on the date when she was relieved. She had admittedly acquired the qualification of Rashtra Basha Visarad only in 2012. The vacancy of Junior Language Teacher arose on 30.04.2013. A Division Bench of this Court had considered the question whether the Teacher who claims preference in terms of Rule 51A is required to be qualified as on the date of being relieved from the post. After considering the provisions of Rule 51A prior to its amendment and post amendment in 2005, the Division Bench held thus: _“10. One cannot have a quarrel that the Rule in question extends the benefit of concession to teachers who are thrown out of employment. The legal position is trite that Rules or orders providing concessions should be construed strictly. If the Rule is so construed, from the opening part of the Rule itself, it is evident that the benefit of the Rule is applicable only to qualified teachers who are relieved in the circumstances mentioned in the Rule. Such a qualified teacher who is relieved from service can claim preference for appointment to future vacancies in the same or higher or_ **WP(C).Nos.27026, 27570 & 29113 OF 2014** **10** _lower category of teaching posts to which he is qualified. Therefore, for a teacher to claim preference as provided under R.51A as amended, the teacher should be qualified at the time of relief and there is nothing in the Rule suggesting that a R.51A claim can be sustained on the strength of qualifications acquired subsequent to relief from service. If it is otherwise, the words 'qualified teachers who are relieved' mentioned in the Rule will be otiose. It is such a teacher who is eligible to claim the preferential rights that are provided in the Rule.”_ It has been clearly held that for a teacher to claim preference as provided under Rule 51A as amended, the teacher should be qualified at the time of relief. 8. In the above view of the matter, the finding of the Educational Authorities and the Government in the impugned orders cannot be sustained. The Government had specifically found that the qualification of Smt.K.N Kavitha was one acquired in the year 2012. The provisional certificate produced by the teacher before the Manager dated 16.07.2012 has been specifically referred to. In view of the fact that the claim was on the basis of relief from service on 15.07.2009, it is beyond the pale of doubt that Smt.K.N Kavitha was not qualified for **WP(C).Nos.27026, 27570 & 29113 OF 2014** **11** appointment as Junior Hindi Teacher at the time of her relief on 15.07.2009. The Manager has also raised a contention that the provisional certificate evidencing the acquisition of the qualification had not been submitted in time. In any view of the matter, since the vacancy admittedly arose on 30.04.2013 and the petitioner in WP(C) No. 27570 of 2014 was appointed against the said vacancy with effect from 03.06.2013, I am of the opinion that in the light of the judgment of the Division Bench, the petitioner in WP(C) No.27026 of 2014, who admittedly acquired the qualification only in 2012 cannot have a preferential claim to the said post. In the above view of the matter, the orders impugned in WP(C) No.29113 of 2014 and WP(C) No.27570 of 2014 are set aside. There will be a direction to the respondents to approve the appointment of the petitioner in WP(C) No.27570 of 2014 with effect from 03.06.2013 in terms of the appointment order. Necessary shall be done within one month from the date of receipt of a copy of this judgment. Prospective salary shall be paid to the petitioner without delay, after the orders of **WP(C).Nos.27026, 27570 & 29113 OF 2014** **12** approval. Arrears of salary shall be calculated and released to the petitioner within three months from the date of receipt of a copy of this judgment. WP(C) No.27026 of 2014 is dismissed. **Sd/-** **ANU SIVARAMAN JUDGE** **SVP** **WP(C).Nos.27026, 27570 & 29113 OF 2014** **13** ## **APPENDIX OF WP(C) 27026/2014** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 P1: COPY OF THE ORDER NO.B5/13010/11 DATED 13.6.2012 OF THE DEPUTY DIRECTOR.** **EXHIBIT P2** **P2: COPY OF THE ORDER NO.B/2809/2013 DATED 9.10.2013 OF THE ASST.EDL.OFFICER.** **EXHIBIT P3** **P2(A): COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P2.** **EXHIBIT P4 P3: COPY OF THE ORDER NO.B/1634/2013 OF THE ASSISTANT EDUCATIONAL OFFICER DATED 28.10.2013.** **EXHIBIT P5 P4: COPY OF THE ORDER NO.B1/9815/13 OF THE DISTRICT EDUCATIONAL OFFICER DATED 18.02.2014.** **EXHIBIT P6 P4(A): COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P4.** **EXHIBIT P7 P5: COPY OF THE ORDER NO.F2/76509/2013/DPI/K.DIS. DATED 16.1.2014 OF THE 2ND RESPONDENT.** **EXHIBIT P8** **P6: COPY OF THE GO(RT)NO.3723/2014/G.EDN. DATED 23.09.2014.** **WP(C).Nos.27026, 27570 & 29113 OF 2014** **14** ## **APPENDIX OF WP(C) 27570/2014** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 P1: COPY OF THE ORDER NO.B/2809/2013 DATED 9/10/2013 PASSED BY THE 3RD RESPONDENT (WITH ENGLISH TRANSLATION)** **EXHIBIT P2 P2: COPY OF THE REVISION PETITION DATED 15/10/2013 FILED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT. EXHIBIT P3 P3: COPY OF THE ORDER NO.F2/76509/2013/DPI/K.DIS., DATED 16/1/2014 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 P4: COPY OF THE STATUTORY REVISION PETITION FILED BY THE 4TH RESPONDENT BEFORE THE GOVERNMENT UNDER RULE 92 OF CHAPTER XIVA OF THE KER (WITH ENGLISH TRANSLATION) EXHIBIT P5 P5: COPY OF G.O.(RT) NO.3723/2014/G.EDN., DATED 23/9/2014 ISSUED BY THE GOVERNMENT. EXHIBIT P6 P6: TRUE COPY OF THE ORDER NO.B5/8721/20128 DATED 7.7.2018 OF THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 13.7.2018 ISSUED BY THE JEADMISTRESS OF UPS THANIKKUTAM TO THE 3RD RESPONDENT EXHIBIT P8 TRUE COPY OF THE LIST OF EMPLOYEES OF UPS THANIKUDAM AS INCLUDED IN THE SPARK** **EXHIBIT P9 TRUE COPY OF THE APPOINTMENT ORDER VIDE REF.NO.B/1883/18/K.DIS DATED 11.7.2018 ISSUED IN FAVOUR OF PREMALATHA K EXHIBIT P10 TRUE COPY OF THE STAFF FIXATION ORDER NO.DT/B/2012/2018 DATED 30.6.2018 FOR THE YEAR 2018-2019** **WP(C).Nos.27026, 27570 & 29113 OF 2014** **15** ## **APPENDIX OF WP(C) 29113/2014** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXT.P1- TRUE COPY OF THE JUDGMENT DATED 257-2013 IN WPC.NO.14039/2013 EXHIBIT P2 EXT.P2 - TRUE COPY OF THE ORDER DATED 9-102013 ISSUED BY THE 5TH RESPONDENT EXHIBIT P3 EXT.P3 - TRUE COPY OF THE REVISION PETITION DATED 15-10-2013 FILED BY THE PETITIONER EXHIBIT P4 EXT.P4 - TRUE COPY OF THE JUDGMENT DATED 30-10-2013 IN WPC.NO.26610/2013 EXHIBIT P5 EXT.P5 - TRUE COPY OF THE ORDER DATED 16-12014 EXHIBIT P6 EXT.P6 - TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P7 EXT.P7 - TRUE COPY OF THE JUDGMENT DATED 13-3-2014 IN WPC.NO.7174/2014 EXHIBIT P8 EXT.P8 - TRUE COPY OF G.O(RT)NO.3723/2014/G.EDN DATED 23-9-2014 EXHIBIT P9 EXT.P9 - TRUE COPY OF THE LETTER DATED 123-2013**