K.Sree Devi v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 4[TH] DAY OF JANUARY 2024 / 14TH POUSHA, 1945 WP(C) NO. 29269 OF 2014`** ## **`PETITIONER:`** ## **`K.SREEDEVI`** ``` AGED 36 YEARS, W/O.UNNIKRISHNAN, PULIYATH HOUSE, CHETHALLUR P.O. (VIA)MANNARKKAD, PALAKKAD DISTRICT. ``` ``` BY ADV DR.GEORGE ABRAHAM ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REP.BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001`** - **`2 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM - 695 001`** - **`3 THE DEPUTY DIRECTOR OF EDUCATION PALAKKAD - 678 001`** - **`4 THE DISTRICT EDUCATIONAL OFFICER PALAKKAD - 678 001`** - **`BY ADVS. SRI BIJOY CHANDRAN, SR GP SRI. RIYAL DEVASSY, GP SRI.K.A.JALEEL`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.29269 OF 2014 ``` 2 # **P.V.KUNHIKRISHNAN, J. -----------------------------------W.P.(C)No.29269 of 2014 ------------------------------------Dated this the 04[th ] day of January, 2024** # **JUDGMENT** The above writ petition is filed with the following prayers: “i.) To declare that Exhibit P4 is unconstitutional and therefore illegal and the same is therefore liable to be declared as void ab initio. ii.) To issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to prepare a fresh list of teachers who have worked for considerably long period and were retrenched for want of vacancies and include them in the ‘teachers package’ in addition to those teachers who are already included in Exhibit P3; iii.) To grant such other and further reliefs to the petitioner as the Hon’ble Court may consider just and proper in the facts and circumstances of the case. ”[SIC] ## 2. When this writ petition came up for ``` WP(C) NO.29269 OF 2014 ``` 3 ## consideration, this Court passed an interim order on 06.11.2014. The same is extracted hereunder; “Admit. Notice. Since on an earlier occasion in a batch of writ petitions this Court issued interim direction making it clear that Ext.P4 amendment shall be only prospective subject to the outcome of the writ petition. Any claim of the petitioner under Rule 57A Chapter XIVA KER shall not be affected by Ext.P4 amendment.” 3. Subsequently, this Court in **Kerala Aided L.P. and U.P. School, Kollam v. State of Kerala and Another (2016 KHC 118),** considered the matter in detail. It will be better to extract paragraph No.59 of the aforesaid judgment; “59. It is in this context the effect of the present proviso has to be considered. R.51A of Chap.XIVA KER creates three categories of persons who have a claim to be appointed to a future vacancy subject only to a claim under Rule 43 of the very same Chapter. The first proviso makes a condition insofar as a teacher who stakes his/her claim under R.49 or ``` WP(C) NO.29269 OF 2014 ``` 4 52 being entitled to make such claim only if his/her earlier appointment had a minimum continuous service of one academic year as on the date of relief. This is a condition provided, which is permissible by the proviso and carves out something which was always there. The second proviso also creates first preference, among the three categories, to those who are protected. This is a qualification, which also could be validly made in a proviso. As was noticed above, a protected teacher would always be a R.51A claimant but a R.51A claimant need not be a protected teacher. Hence, a protected teacher, who has claim under R.51A, by the second proviso itself has a better claim than a claimant under R.51A who is not a protected teacher. What is intended by the third proviso brought in by the amendment, is to provide for a still better claim to persons who were not included in R.51A. To illustrate, if 'A' has a claim under R.51A to be appointed to future vacancies in 'X' school, 'B', who is a protected teacher and not having a claim under R.51A with respect to 'Y' school, is granted preference by the third proviso to be appointed to 'X' school if he/she is included in the protected teachers' list. Obviously this is to prevent an excess teacher being continued in a school, by virtue of protection orders and be deployed in another School were a temporary vacancy arises. This cannot be ``` WP(C) NO.29269 OF 2014 ``` 5 sustained, since it creates a right which is not available in the Statute or the rule itself. As per the rule, even a R.51A claimant with reference to a school, cannot have a better claim as against another R.51A claimant in another school, even if the former claimant sources such claim to an antecedent point of time than the later. A protected teacher or one who is included in a package, having been thrown out after a valid tenure in a school can be deployed in another school, even in temporary vacancies, only if there are no statutory claimants in that school, remaining out of the rolls of the school. The prohibition or preference can be only applied against a fresh appointment. The proviso introduced, hence, has to be set at naught and the same is declared invalid.” In the light of the same, the same directions will apply to the petitioner also. 4. The learned counsel appearing for the petitioner submitted that there is a further grievance to the petitioner which relates to the second prayer in this writ petition. The petitioner is free to file a representation narrating that grievance to the 3[rd] ``` WP(C) NO.29269 OF 2014 ``` 6 respondent and there can be a direction to consider the same, within a time frame. Therefore, this writ petition is disposed of with the following directions; i. The directions in **Kerala Aided L.P. and U.P. School’s** case (supra) will govern the case of the petitioner also. ii. The petitioner is free to submit appropriate representation regarding her surviving grievance to the 3[rd] respondent, within a period of two weeks from the date of receipt of a copy of this judgment. iii. Once, such a representation is received, the 3[rd] respondent will consider the same and pass appropriate orders in it, after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within a period of three months from the date of receipt ``` WP(C) NO.29269 OF 2014 ``` 7 of the representation. iv. I make it clear that, I have not considered the grievance of the petitioner as far as the second relief in the writ petition is concerned and the 3[rd] respondent is free to pass appropriate orders, in accordance with law. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE** ``` WP(C) NO.29269 OF 2014 ``` 8 ## **`APPENDIX OF WP(C) 29269/2014`** ``` PETITIONER EXHIBITS ``` ``` EXT.P1 - TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER WITH APPROVAL OF SERVICE DATED 29-10-2001 ``` ``` EXT.P2 - TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 18-12-2003 SHOWING APPROVAL OF THE DISTRICT EDUCATIONAL OFFICER ``` ``` EXT.P3 - TRUE COPY OF THE GOVERNMENT ORDER, G.O.(P) 199/11/G.EDN. DATED 1-10-2011 ``` ``` EXT.P4 - TRUE COPY OF GOVERNMENT ISSUED G.O. (P)154/2014/G.EDN DATED 11-8-2014 ``` ## RESPONDENTS EXHIBITS : NIL // TRUE COPY// PA TO JUDGE