Leeja Napoleon v. State of Kerala and others (W.A. No.1337 of 2021)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 24[TH] DAY OF JUNE 2022 / 3RD ASHADHA, 1944** **WA NO. 1337 OF 2021** **AGAINST THE JUDGMENT DTD.8.4.2021 IN WP(C) 33186/2019 OF HIGH COURT** ## **OF KERALA** ## **APPELLANT/5TH RESPONDENT:** **LEEJA NAPOLEON, AGED 37 YEARS W/O. JOSE PRAKASH, RESIDING AT JOSE VILLA, ARTHUNKAL P.O., CHERTHALA SOUTH VILLAGE, ALAPPUZHA DISTRICT 688 530, HIGHER SECONDARY SCHOOL TEACHER PHYSICS (JUNIOR), HOLY FAMILY HIGHER SECONDARY SCHOOL, KATTOOR, ALAPPUZHA DISTRICT, PIN – 688 521.** **BY ADVS.V.N.SANKARJEE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K. C.PURUSHOTHAMAN NAIR NITHEESH.M** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 4:** **1 JOSEPH K.G., AGED 38 YEARS S/O.GEORGE K.P., HIGHER SECONDARY SCHOOL TEACHER PHYSICS, (JUNIOR), LEO XIII HIGHER SECONDARY SCHOOL, ALAPPUZHA. ALAPPUZHA DISTRICT 688 006.** **2 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT - 695 001.** 2 **W.A.No.1337 of 2021** - **3 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM, PIN - 695 014.** - **4 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, KOTTAYAM, KOTTAYAM DISTRICT, PIN -680 002.** - **5 THE CORPORATE MANAGER, HIGHER SECONDARY SCHOOLS, DIOCESE OF ALAPPUZHA, P.B.NO.404, ALAPPUZHA, PIN - 688 001.** **BY ADVS.SRI.K.T.SHYAM KUMAR (B/O) SHYAM KUMAR K.T. K.N.ABHA(K/281/1996)** **THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **W.A.No.1337 of 2021** ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **--------------------------------------------------** ## **W.A.No.1337 of 2021** **------------------------------------------Dated this the 24[th] day of June, 2022** ## **J U D G M E N T** ## **C.S.Sudha, J.** This writ appeal is against the judgment dated 08/04/2021 in W.P. (C)No.33186/2019. The appellant is the fifth respondent and the respondents herein are the petitioner and respondents 1 to 4 respectively in the writ petition. The parties and documents will be referred to as described in the writ petition. 2. The writ petition was filed by the petitioner, a Higher Secondary School Teacher (Jr.) [HSST (Jr.)] in Physics in the “Leo Thirteen Higher Secondary School”, Alappuzha. As per Ext.P10 order, the fifth respondent was found to be an eligible candidate under Rule 51A of the Kerala Education Rules, 1959 (the Rules) and consequentially appointed to a vacancy which arose on account of newly sanctioned courses in the Corporate Management of the fourth respondent. According to the writ petitioner, he was 4 ## **W.A.No.1337 of 2021** working as HSST Jr. in Physics in the Leo-XIIIth Higher Secondary School, Alappuzha, a School under the Corporate Management of the fourth respondent. The school was sanctioned an additional batch during the academic year 2011-2012. Towards the anticipated vacancy, the petitioner was appointed as per Ext.P1 order dated 01/02/2012 pursuant to the recommendation of the Selection Committee, constituted by the fourth respondent Manager. He was thereafter permanently appointed by the fourth respondent by Ext.P2 order dated 27/06/2012. 2.1. The fifth respondent was appointed as HSST Physics Jr. on 13/09/2010 as per Ext.P3 order against a leave vacancy in another School under the Corporate Management of the fourth respondent for the period from 13/09/2010 to 18/08/2013. While so, the Government as per G.O. (MS)No.202/2015/Gen.Edn. Dated 28/07/2015, created posts of HSST Jr. in Physics, Chemistry, Mathematics and Computer Science subjects with effect from 15/07/2013 in the Schools under the Corporate Management of the fourth respondent. The petitioner who was working in the anticipated vacancy, which arose consequent to the sanctioning of the additional batch, was approved in the newly created post w.e.f. 14/08/2013 as per Ext.P6 order 5 ## **W.A.No.1337 of 2021** dated 17/09/2015. The petitioner was thereafter continuing in the said post. From 01/02/2012 to 17/09/2015, the date on which the appointment was approved, the petitioner was working without salary. On the other hand, the fifth respondent who was appointed against a leave vacancy, was drawing salary during the said period as all her appointments were approved from 13/09/2010. At that point of time, she had never raised any claim to the post to which the petitioner was appointed. However, on 20/06/2018, the fifth respondent filed an appeal before the Director of Higher Secondary School Education claiming that she was entitled to be appointed to the said post. The Director of Higher Secondary School Education by a reasoned order rejected the claim by Ext.P8 order. The fifth respondent then filed a revision before the Government challenging Ext.P8 order. The Government on a totally erroneous appreciation of the facts and circumstances of the case, allowed the revision petition as per Ext.P10 order. Ext.P10 order is arbitrary, illegal and unsustainable and so challenging the same, the writ petition was filed. 3. The learned Single Judge by the impugned judgment, allowed the writ petition and Ext.P10 order was set aside. It was noticed that Ext.P10 order was passed by the Government under the mistaken assumption 6 ## **W.A.No.1337 of 2021** that the fifth respondent had a valid claim under Section 51A of the KER. This was done without taking into account the fact that the fifth respondent was continuing in the post without being relieved. As the said aspect had not been considered in Ext.P10, the learned Single Judge directed the Government to reconsider the whole matter after considering the rival contentions of the parties. Aggrieved, the fifth respondent has come up in appeal. 4. Heard Sri.Dr.V.N.Sankarjee, the learned counsel for the appellant and Sri.K.T.Shyamkumar, the learned counsel for the first respondent and Sri.A.J.Varghese, the learned Senior Government Pleader for respondents 1 to 4. 5. A reading of Rule 51A would reveal that a claim under the Rule can be put forth only by a teacher who has been relieved from the service of the concerned educational authority either by virtue of Rule 49 or Rule 52 or on account of termination of vacancies. In other words, in order to become a Rule 51A claimant, there must be a termination/relieve from service and the service put in must have been an approved service. ( **Mini Antony vs. District Educational Officer (2012 KHC 192)** ; **Fasalu Rahiman V. vs. Manager, BTM Higher Secondary School, Thurayur, 2013(3) KHC 675** ). 7 ## **W.A.No.1337 of 2021** 6. The petitioner alleges that the fifth respondent/appellant had not been relieved from her post at that relevant time. It was submitted on behalf of the fifth respondent that she had never admitted that she was continuing in the post and had not relieved at the relevant time. However, in the impugned order, it has been incorrectly recorded that this fact has been admitted by the fifth respondent. In the appeal, the fifth respondent does not say in so many words, that she had been relieved but only says - “ _9. …. The appellant was made to believe by the 5[th] respondent that she would be appointed against the sanctioned post by Ext.R5(b) on completion of her period of appointment to a leave vacancy.”_ The question whether the fifth respondent had been relieved or not, is a question of fact which could not have been decided in the writ proceedings. The learned Single Judge was then right in setting aside Ext.P10 order and relegating the matter to the Government to reconsider the same. We make it clear that the question whether the fifth respondent had been relieved from the post or not during the relevant time, shall be considered afresh by the Government when the matter is being considered, untrammelled by the observations made by the learned Single Judge in the impugned judgment. We find no infirmity in the order of 8 ## **W.A.No.1337 of 2021** the learned Single Judge, warranting an interference. In the result, the writ appeal is found to be without any merits and the same is hence dismissed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/