Latha V v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 6TH DAY OF APRIL 2017/16TH CHAITHRA, 1939** ## **WP(C).No. 39291 of 2016 (J)** **----------------------------** ## **PETITIONER:** ## **----------** **LATHA V,** **W/O GOPAKUMAR, U.P.S.A, C.N.P.U.P.S, MADAVOOR, PALLICKAL P.O, THIRUVANANTHAPURAM DISTRICT, NOW RESIDING AT KRISHNASREE, KATTATHALA P.O, KOTTARAKKARA, KOLLAM (FROM J.L. SDANAM, THUMBODE, MADAVOOR, PALLICKAL P.O, THIRUVANANTHAPURAM DISTRICT).** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA,** **REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM 695 014** **3. THE DEPUTY DIRECTOR OF EDUCATION, KARAMANA, THIRUVANANTHAPURAM 695 002.** **4. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA, KOTTARAKKARA P.O, KOLLAM 691 506.** **5. THE ASSISTANT EDUCATIONAL OFFICER, KILLIMANOOR, KILLIMANOOR P.O, THIRUVANANTHAPURAM DISTRICT 695 601.** **6. THE MANAGER,** - **C.N.P.S.U.P.S. MADAVOOR, PALLICKAL P.O, THIRUVANANTHAPURAM DISTRICT 695 604.** **7. SMT. MANJU.S, RAJENDRA VILASOM, ANAKKUNNAM, PALLICKAL P.O, THIRUVANANTHAPURAM 695 604.** **8. SMT. VEENA S.U, VEENA MALAKKAL, PANAPPAMKUNNU, MADAVOOR, PALLICKAL P.O, THIRUVANANTHAPURAM 695 604.** **-2-** **-2WPC 39291 OF 2016:** **-----------------** **9. SMT. LYGA L. GOPAL, SANKARALAYAM, POOVATHOOR, PULIYOORKONAM P.O, MADAVOOR, THIRUVANANTHAPURAM 6954 604.** **R1 TO R5 BY GOVERNMENT PLEADER SMT MABLE C KURIAN R7 TO R9 BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 39291 of 2016 (J)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 THE TRUE COPY OF THE APPOINTMENT ORDER** **DATED 13-07-2001 ISSUED BY THE 6TH RESPONDENT AND ITS APPROVAL ORDER NO C/1537/2002/D. DIS DATED 03-06-2002 OF THE 5TH RESPONDENT TO THE PETITIONER.** **EXHIBIT P2 THE TRUE COPY OF THE APPOINTMENT ORDER** **DATED 15-07-2008 ISSUED BY THE 6TH RESPONDENT AND ITS APPROVAL ORDER OF THE 4TH RESPONDENT DATED 11-05-2016 ISSUED TO THE PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 6TH RESPONDENT AND ITS APPROVAL ORDER OF THE 4TH RESPONDENT DATED 16-08-2011 ISSUED TO THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 6TH RESPONDENT AND ITS APPROVAL ORDER OF THE 4TH RESPONDENT DATED 24-12-2011 ISSUED TO THE PETITIONER. EXHIBIT P5 THE TRUE COPY OF THE APPOINTMENT ORDER DATED 01-10-2012 ISSUED BY THE 6TH RESPONDENT AND ITS APPROVAL ORDER OF THE 4TH RESPONDENT DATED 12-12-2012 ISSUED TO THE PETITIONER.** **EXHIBIT P6 THE TRUE COPY OF THE APPOINTMENT ORDER DATED 01-12-2012 ISSUED BY THE 6TH RESPONDENT AND ITS APPROVAL ORDER OF THE 4TH RESPONDENT DATED 01-08-2013 ISSUED TO THE PETITIONER.** **EXHIBIT P7 THE TRUE COPY OF THE JUDGMENT DATED 27-10-2014 IN WP(C)NO 26706/2014 OF THIS HON'BLE COURT EXHIBIT P8 THE TRUE COPY OF THE G.O (RT) NO 1978/2015/G.EDN DATED 23-05-2015 ISSUED BY THE GOVERNMENT EXHIBIT P9 THE TRUE COPY OF THE APPLICATION DATED 19-08-2016 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P10 THE TRUE COPY OF THE JUDGMENT DATED 09-09-2016 IN WP(C) NO 30348/2010 OF THIS HON'BLE COURT. EXHIBIT P11 THE TRUE COPY OF THE ORDER NO B(4) 20567/2016/DDE/K. DIS DATED 29-11-2016 ISSUED BY THE 3RD RESPONDENT. RESPONDENT(S)' EXHIBITS ----------------------R3(A) A TRUE COPY OF GOVERNMENT ORDER DATED 23/5/2015.** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## **CR** ## Devan Ramachandran, J. ----------------------------------------------- W.P.(C)No.39291 of 2016 J ----------------------------------------------- Dated this the 6[th] day of April, 2017 ## **JUDGMENT** Disputes relating to relinquishment and satisfaction of claims of teachers under Chapter XIVA Rule 51A of the Kerala Education Rules (KER) seem unending and incessant. Several instances have already been presented before courts in the past and several judgments have already spoken on this earlier. However, disputes in its various nuances and shades keep emerging constraining this Court to restate the law over and over again. 2. This is again one such case. 3. The petitioner assails Exhibits P8 and P11 orders to the extent to which it has rejected her claim for appointment to the post of Upper Primary School Assistant (UPSA) in the C.N.P.S.U.P. School, Madavoor WPC 39291/16 2 for the stated ground that her claim under Rule 51A has been extinguished or deemed to be relinquished for certain reasons as I will say presently. 4. The petitioner claims that she had worked in the school for various periods from 1995 to 1999. Thereafter, she was appointed to the post of UPSA with effect from 13.07.2001 against an additional post sanctioned for the year 2001-02. The order of approval of this appointment of the petitioner has been appended to this writ petition as Exhibit P1. While she was so continuing, she was retrenched on account of a division fall with effect from 15.07.2008. The petitioner claims that, therefore, she is entitled to re-appointment to the post of UPSA under the provisions of Chapter XIVA Rule 51A of KER in the subsequent substantive vacancies. 5. The petitioner says that a vacancy in the post of UPSA arose on 01.06.2016 in the school under the management of the sixth respondent and since she had continuous service for more than one year in the school WPC 39291/16 3 between 2001 and 2008 and since she was retrenched from service on account of a division fall, she asserts that she is entitled to be appointed in that vacancy under the provisions of Chapter XIVA Rule 51A of KER. 6. For this purpose, she submitted an application before the third respondent-the Deputy Director of Education requesting to issue appropriate directions to the Manager of the school. This representation has been produced in this writ petition as Exhibit P9. When the third respondent did not issue orders on Exhibit P9, the petitioner approached this Court by filing W.P.(C)No. 30348/2010, which was disposed of by this Court by judgment dated 09.09.2016 directing the third respondent to consider and pass orders on Exhibit P9. A copy of the said judgment has been appended to this writ petition as Exhibit P10. However, the petitioner pleads, the third respondent thereafter issued Exhibit P11 order holding inter alia that she is deemed to have relinquished her Rule 51A claim since she had refused to participate in WPC 39291/16 4 a training programme for protected teachers in spite of specific official directions to do so and also for the further reason that she has lost her claim under Rule 51A since she had been appointed in another educational agency and thereafter regularised in a vacancy. The petitioner has assailed this order along with Exhibit P8, which is an order issued by the Government declining her earlier request for being retained as a retrenched teacher in the Thiruvananthapuram District. 7. I have heard Sri.B.Mohanlal, the learned counsel for the petitioner and the learned Government Pleader for the official respondents. 8. I see that a counter affidavit has been placed on record by the official respondents, wherein in paragraphs 5 and 8 it is averred as follows: “It is submitted that the petitioner was included in the list of retrenched teachers in Thiruvananthapuram district as per Sl.No.23 of retrenched list vide G.O.(P) No.102/2012/Gen.Edn. dated 29.03.2012. Government have ordered to impart training to retrenched teachers who were included in the list to be deployed as CRC co-ordinators. But the petitioners has not WPC 39291/16 5 participated in the scheduled training for retrenched teachers as ordered by 3[rd] respondent based on the Government directions. The petitioner neither attended the training nor submitted any reason as to why she could not attend the training as ordered by Government. Then the petitioner filed W.P.(C)No. 26706/2014 before the Honourable High Court for including her name in the Teachers Package. As per the judgment dated 27.10.2014 in W.P.(C)No. 260706/2014, the Honourable High Court directed Government to consider Exhibit P3 representation of the petitioners in accordance with law and pass appropriate orders there on as expeditiously as possible at any rate within a period of four months from the date of receipt of a copy of the judgment. It is submitted that Exhibit P11 order, the third respondent has rejected the applicant's request on a consideration that second proviso to Rule 51A of Chapter XIVA KER gives first preference of reappointment under Rule 51A to protected teachers of same educational agency. In CNPSUPS, Madavoor three teachers were working as protected teachers and they have the priority to be appointed as UPSA as per Rule 51A. The request of petitioner include under teachers package in Thiruvananthapuram district has rejected by Government order vide G.O.(Rt)No.1978/ 2015/G.Edn. dated 23.05.2015 stating that she did not participate in the training programme for CRC Co-ordinators as ordered by the Department as per G.O.(P)No.177/2012/G.Edn. dated 05.06.2012. Due to non-inclusion in Teachers' Package she lost the right to include in protected teachers list as per G.O.(P)No. 29/2016 dated 29.01.2016.” 9. Respondents 7 to 9 have also filed a counter affidavit where they contend almost in the same lines as WPC 39291/16 6 the official respondents that the petitioner cannot claim the benefit under Rule 51A since she was appointed in a regular promotion vacancy without break in S.K.V. V.H.S. School, Thrikkanamangal, Kottarakkara. They also maintain that since she did not report for the training programme imparted by the department to protected teachers, she should be deemed to have relinquished her claim under Rule 51A. 10. The questions as to how and in what manner a teacher can be said to have relinquished the right under Chapter XIVA Rule 51A of KER has been decided by this Court in several judgments prior. The judgment of a Division Bench of this Court in **Vinayaraj K. v. State of Kerala and Others** (2014 (1) KHC 205) has clearly defined the contours of the provisions which deal with relinquishment of a teacher under Rule 51A in the following manner: “The statutory rules oblige the manager to issue an offer for appointment and wait for the teacher to report within fourteen days. If such reporting does WPC 39291/16 7 not occur, the manager has to issue yet another letter indicating that if in another seven days the teacher does not report for duty, it will be taken that the teacher has relinquished the right under Rule 51A and that another person will be appointed. It is only by following the statutorily prescribed sequence of events and actions, would the relinquishment, deprivation or abandonment of the statutory right under Rule 51A get dissolved by operation of law on a particular fact situation.” 11. The provisions of Note 2 to Rule 51A is very clear and perspicuous. In view of the affirmative declaration by this Court, extracted above, it is obvious that the stand of the official respondents that the petitioner has lost her status as a Rule 51A claimant because she did not participate in the training programme for CRC Co-ordinators or because she was appointed in short duration vacancies for the periods between 2008 and 2014, as is discernible from Exhibits P2 to P6, cannot find sustenance in law. I say this because, as is evident from Exhibits P2 to P6 and contrary to the assertions of respondents 7 to 9, the petitioner was not appointed under such orders to WPC 39291/16 8 substantive vacancies. She was appointed every time for short duration as is specifically mentioned in Exhibits P2 to P6 orders itself and to vacancies for fixed periods. Therefore, it cannot be construed that under the provisions of Rule 51A she would loose her claim for reappointment. The provisions of KER are clear that a teacher holding a claim under Rule 51A would loose such claim only if she is appointed to a substantive post subsequently or if he/ she is appointed under another educational agency. In the case at hand, it is ineluctable that the petitioner was appointed between 2008 and 2014 not in substantive vacancies but only in short period vacancies and that too for short durations of time. This would not in any manner extinguish the rigor of Rule 51A and the petitioner would continue to hold the claim under that Rule until such time as she was appointed into a substantive vacancy. The stand of the official respondents that she has relinquished the claim on account of her unwillingness to participate in the training programme WPC 39291/16 9 would also not suffice since it is statutorily mandated that the Manager has to first offer an appointment and that the teacher would be deemed to have relinquished the claim only if he/she refuses to report for duty in the manner prescribed to Note 2 to Rule 51A. 12. Concededly, no appointment was ever offered by the Manager in a substantive vacancy nor she refused to take up such appointment. The official respondents did not have a case of this nature but they merely say that relinquishment of the claim is on account of her unwillingness to take part in the training programme. This stand is completely impermissible in law and cannot be sustained. As I have already indicated above, since the petitioner was never appointed in a substantive vacancy subsequent to her obtaining a claim under Rule 51A, the orders of appointment evidenced by Exhibits P2 to P6 would not take away her claim since such appointments were only for short durations as specifically ordered therein to fill up the vacancies that arose due to leave or such other. WPC 39291/16 10 13. In a summation of what I have stated above, I have no hesitation to hold that Exhibits P8 and P11 orders cannot find sustenance in law and, therefore, I quash them to the extent to which it declines the claim of the petitioner for appointment to the post of UPSA in the substantive vacancy that arose on 01.06.2016. 14. That having been said, I notice the stand of the official respondents in the counter affidavit that first preference will have to be given for appointment under Rule 51A to protected teachers belonging to the same educational agency. The official respondents maintain that respondents 7 to 9 are protected teachers and hence, they have preference for re-appointment over the petitioner. They say that the petitioner should wait till respondents 7 to 9 are appointed in regular vacancies in the school under the management of the sixth respondent, since the petitioner has lost her claim as a protected teacher. In view of my affirmative finding recorded above that the petitioner's claim under Chapter WPC 39291/16 11 XIVA Rule 51A of KER cannot be construed to have been relinquished or lost, it is only apposite that her claim for appointment to the vacancy that arose on 01.06.2016 be ordered. 15. Consequently, I direct respondents 1 to 6 to grant appointment and approval to the petitioner to the post of UPSA in the vacancy that arose in C.N.P.S.U.P. School, Madavoor with effect from 01.06.2016 under the provisions of Chapter XIVA Rule 51A of KER in strict conformity with and in compliance of due procedure as are mandated under the provisions of the said Rule. This writ petition is thus ordered. Devan Ramachandran, Judge tkv