Lisha Joseph v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY ,THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940** ## **WP(C).No.6954 of 2015** ## **PETITIONER:** **LISHA JOSEPH M. AGED 38 YEARS LOWER GRADE HINDI TEACHER, ST. MARY'S HIGH SCHOOL, KANNAMALY, KOCHI - 682 008, RESIDING AT MADAMBAGATH KALATHIL, VALAMANGALAM, THURAVOOR P.O, ALAPPUZHA DISTRICT-688 532.** **BY ADVS. SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.P.A.RINUSA** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY TO GOVERNMENT,**| ||**GENERAL EDUCATION DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM.**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTION**| ||**THIRUVANANTHAPURAM -695001**| |**3**|**THE DEPUTY DIRECTOR OF EDUCATION**| ||**CIVIL STATION, KAKKANAD, ERNAKULAM - 682 030.**| |**4**|**THE DISTRICT EDUCATIONAL OFFICER**| ||**ERNAKULAM - 682 030.**| |**5**|**THE MANAGER**| ||**ST. MARY'S HIGH SCHOOL,**| ||**KANNAMALY, KOCHI - 682 008.**| **WP(C).No.6954 of 2015** **2** **6 SOPHIA SHINNY DEVASY KONIKARA UPPER PRIMARY SCHOOL ASSISTANT, ST. MARY'S HIGH SCHOOL, KANNAMAY, KOCHI - 682 008. 7 THE CONTROLLER OF EXAMINATIONS MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILL, KOTTAYAM- 686 560.** **BY ADVS. GOVERNMENT PLEADER SRI B. JAYASURYA SRI.B.JAYASANKAR SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY SRI.S.RAJ MOHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.01.2019, THE COURT ON 15.03.2019 DELIVERED THE FOLLOWING:** **WP(C).No.6954 of 2015** **3** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner has filed this writ petition seeking to direct respondents 1 to 4 to approve the appointment of the petitioner as L.G. (Hindi) Teacher in the 5[th] respondent-School in the leave vacancy from 01.06.2010 to 31.03.2011. The petitioner also seeks certain incidental reliefs. 2. The petitioner states that she was appointed as Lower Grade (Hindi) Teacher in the 5[th] respondent-School against a leave vacancy of Smt.Philo K.G. from 01.06.2010 to 31.03.2011, as per Ext.P1 appointment order. Later she was accommodated in a retirement vacancy of L.G. (Hindi) Teacher from 01.06.2010 and she is continuing in that post. The request for approval of appointment of the petitioner in the leave vacancy was objected to by the 6[th] respondent claiming that she is a **WP(C).No.6954 of 2015** **4** Rule 51A claimant to that post. According to the petitioner, the 6[th] respondent was working as UPSA in the very same school in another leave vacancy which arose during the period from 13.01.2010 to 26.07.2010, when the vacancy of L.G. (Hindi) Teacher arose. The appointment of the 6[th] respondent against the said UPSA vacancy was approved and she had drawn salary also for that period. 3. The petitioner states that her claim for approval of appointment in the vacancy of L.G. (Hindi) Teacher was considered by the 4[th] respondent and the 4[th] respondent, as per Ext.P3 order, directed the Manager to appoint the 6[th] respondent. An appeal filed by the petitioner against Ext.P3 was dismissed by the 3[rd] respondent on 25.01.2012 as per Ext.P4. The petitioner as well as 5[th] respondent filed revision petitions against Ext.P4. The 2[nd] respondent passed Exts.P5 and P6 orders rejecting the revision petitions filed by the petitioner and the 5[th] respondent. 4. The petitioner challenged Ext.P5 order before **WP(C).No.6954 of 2015** **5** the 1[st] respondent by filing Ext.P7 revision petition dated 15.05.2013. The petitioner stated that the 6[th] respondent was undergoing B.Ed course in Avila College of Education, Edakochi, from 21.09.2009. She had undergone the B.Ed course, at the same time working as UPSA. The 6[th] respondent attended the University examination on 30.10.2009, at a time when she had been on duty as UPSA. Though the petitioner filed a complaint in this regard before the 7[th] respondent-Controller of Examinations, the complaint was rejected as per Ext.P11. In her Ext.P7 revision petition, the petitioner pointed out the above facts and requested for an enquiry in this regard. Finally, the petitioner's request for enquiry into the misconduct of the 6[th] respondent was rejected as per Ext.P15. The petitioner challenges Exts.P3 to P6, P10 and P15 orders. 5. The 6[th] respondent contested the writ petition filing counter affidavit. According to the 6[th] respondent, the **WP(C).No.6954 of 2015** **6** appointment of the petitioner as L.G. (Hindi) Teacher was overlooking the Rule 51A claim of the 6[th] respondent. The DEO rejected approval of appointment of the petitioner from 01.06.2010 to 31.03.2011, taking into consideration the fact that the 6[th] respondent had several periods of approved service as UPSA in the very same school. According to the 6[th] respondent, a Rule 51A claimant has a right to get appointment to future vacancies in the same or lower category of teaching courses. The 6[th] respondent had B.Sc N.S., M.A. Hindi, B.Ed Hindi and B.Ed N.S. during the relevant time and hence, she was fully qualified for the post of Lower Grade (Hindi) Teacher. 6. The 6[th] respondent further stated that the Deputy Director of Education, who considered the appeal filed by the petitioner, noted that the petitioner had no prior approved service, whereas the 6[th] respondent had approved service for different spells from 15.06.1998. Therefore, the Deputy Director found that the 6[th] **WP(C).No.6954 of 2015** **7** respondent has a superior right for appointment as L.G. (Hindi) Teacher in the vacancy arose on 01.06.2010. In the appeal filed by the Manager, the Additional Director of Public Instructions passed Ext.P5 order finding that the 6[th] respondent has every right to be appointed as and when a regular vacancy arises in the same School. The DEO, DD and DPI have conclusively found the eligibility and claim of the 6[th] respondent for appointment against the vacancy of L.G. (Hindi) Teacher which arose on 01.06.2010. The writ petition is, therefore, without any merits and is only to be dismissed, contended the 6[th] respondent. 7. The 1[st] respondent also filed a counter affidavit. As regards the allegation of genuineness of B.Ed Degree obtained by the 6[th] respondent, the 1[st] respondent found that there is no irregularity in the 6[th] respondent passing B.Ed Degree. As regards the 6[th] respondent marking attendance in the school attendance register on 30.10.2009 and appearing for University examination on **WP(C).No.6954 of 2015** **8** the same day, the 1[st] respondent found that the former Headmaster of the School had submitted a statement in that regard and the Government found that there is no need to order any vigilance enquiry against the 6[th] respondent. 8. The learned counsel appearing for the petitioner argued that rejection of the petitioner's claim for approval of her appointment as L.G. (Hindi) Teacher against the leave vacancy from 01.06.2010 to 31.03.2011 cannot be sustained for two reasons. Firstly, B.Ed Degree was fraudulently obtained by the 6[th] respondent, in as much as the 6[th] respondent is seen to have attended the B.Ed course, without availing leave while she was working as UPSA. Such a Degree cannot be taken into account for consideration of the claim for appointment as L.G. (Hindi) Teacher. Therefore, citing the claim made by the 6[th] respondent, the petitioner's rightful claim cannot be rejected. **WP(C).No.6954 of 2015** **9** 9. Secondly, the counsel contended, the 6[th] respondent was working as UPSA during the period when the vacancy of L.G. (Hindi) Teacher arose. Therefore, when the said vacancy arose on 01.06.2010, the 6[th] respondent cannot be treated as a Rule 51A claimant. The learned counsel relied on the judgments of a learned Single Judge of this Court in _**Mini Antony v. District Educational Officer** [2012 (1) KLT 927]_ and _**Fasalu Rahiman v. Manager, B.T.M. Higher Secondary School**_ _[2013 (4 ) KLT SN 8]._ In the said judgments, this Court found that claim under Rule 51A would be available only if, on account of termination of vacancy held by the concerned teacher, he/she is relieved from the school and if he/she continues in the school, the question of claiming right under Rule 51A would not arise. Having accepted the leave vacancy as UPSA and having drawn salary as UPSA during the period in question, the 6[th] respondent cannot now claim that she should have been appointed **WP(C).No.6954 of 2015** **10** against the vacancy of L.G. (Hindi) Teacher, which arose on 01.06.2010. Exts.P3 and P6, therefore, cannot be sustained, contended the counsel for the petitioner. 10. The learned counsel for the 6[th] respondent argued that the petitioner was a fresh hand as on 01.06.2010, whereas the 6[th] respondent had long spells of approved service prior to that. The 6[th] respondent had, in fact, submitted an application also to the Manager before 01.06.2010 seeking appointment against the vacancy of L.G. (Hindi) Teacher. Therefore, the Manager ought to have preferred the 6[th] respondent for appointment against the vacancy of L.G. (Hindi) Teacher which arose on 01.06.2010. According to the petitioner, apart from Rule 51A, the petitioner has a right under Rule 49 of Chapter XIV of KER also. Rule 49 mandates that teachers having not less than eight months service should be retained. By appointing the petitioner against the vacancy of L.G. (Hindi) Teacher which arose on 01.06.2010, the Manager **WP(C).No.6954 of 2015** **11** of the School has disregarded the superior claim of the 6[th] respondent, contended the counsel for the 6[th] respondent. 11. Heard the counsel for the petitioner, counsel for the 6[th] respondent and learned Government Pleader representing respondents 1 to 5. 12. The major contention of the petitioner is that the B.Ed Degree obtained by the 6[th] respondent is by fraudulent means and hence the said qualification cannot be taken into account for deciding the eligibility of the 6[th] respondent for appointment as L.G. (Hindi) Teacher. The allegation is that the 6[th] respondent joined a regular B.Ed course at a time when she was working as UPSA. This allegation is a question of fact. The petitioner had made complaints in this regard. The 7[th] respondent, Controller of Examinations of Mahatma Gandhi University, verified the course details and found that the allegation against the 6[th] respondent is baseless. The 2[nd] respondent-DPI made a fact finding enquiry on the petition filed by the petitioner **WP(C).No.6954 of 2015** **12** and held that the allegation is baseless and there is no need to order vigilance enquiry. There is no reason to disbelieve the factual findings of the two independent authorities in this regard. The allegation of the petitioner in this regard, made in this writ petition, is therefore only to be repelled. 13. The scheme of Chapter XIV A of the KER as deducible from the rules contained therein amended from time to time, would make it clear that Teachers who are in service, Teachers who have a claim under Rule 51A, Protected Teachers and even Non-teaching staff have been given superior rights in appointments and promotions, comparing to open candidates aspiring for direct recruitment. Note (1) to Rule 1 of Chapter XIV A KER provides that a member of non-teaching staff shall be eligible for appointment as Teacher provided he has the prescribed qualification and that there is no teacher eligible for promotion. Rule 5A mandates that qualified teachers **WP(C).No.6954 of 2015** **13** who are retrenched by the opening of new schools or consequent on Government Orders or due to withdrawal of recognition of school, shall be given preference to future vacancies. Rule 43 provides that vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available. Rule 49 provides for retention of Teachers appointed against non-permanent vacancies, during vacation period. 14. Rule 51A requires that qualified teachers, who are relieved on account of termination of vacancies in certain exigencies, shall have preference for appointment to future vacancies in the same or higher or lower category of teaching posts, for which he is qualified. Note 1A to Rule 51A requires that fresh appointments to vacancies arising in the same or higher or lower category of teaching posts under the educational agency shall be made only after providing re-appointment to such teachers thrown out **WP(C).No.6954 of 2015** **14** from service and protected teachers available under the educational agency. 15. The petitioner is a fresh appointee whereas the 6[th] respondent is a Rule 51A claimant who has past approved service. The contention of the petitioner is that the 6[th] respondent was working in a short duration vacancy of UPSA when the vacancy of L.G. (Hindi) Teacher arose and since the 6[th] respondent was working, she cannot have a claim under Rule 51A. The petitioner relies on the judgment of this Court in _**Fasalu Rahiman v. Manager,**_ . _**B.T.M. Higher Secondary School** [2013 (4) KLT SN 8]_ The said judgment dealt with a case where the claimant was working and there was no termination of his service at any point of time. Therefore, the claimant therein could not have staked a claim under Rule 51A. The learned Single Judge in that case held that to make a claim under Rule 51A, “the service of the concerned claimant at one point of time must have been terminated”. In the present case, **WP(C).No.6954 of 2015** **15** admittedly the 6[th] respondent's service was terminated prior to her subsequent working in the short duration UPSA vacancy in the year 2010. Therefore, the said judgment cannot be of avail to the petitioner. The judgment in _**Mini Antony v. District Educational Officer** [2012 (1) KLT 927]_ dealt with two rival claims under Rule 51A. 16. In this case, the petitioner has no previous service in the school and the 6[th] respondent has. In the judgment in _**Subhashchandran v. State of Kerala** [2013 (2) KLT 502]_ , this Court held that a Manager cannot make fresh appointment overlooking the right of a teacher continuing in leave vacancy. A Division Bench of this Court upheld the said decision in W.A. No.926/2013. The petitioner is a fresh recruit and the 6[th] respondent is a Rule 51A claimant. The right of a Rule 51A claimant will not be extinguished merely because the claimant has been appointed against a short duration temporary vacancy. In the facts and circumstances of the case, I find **WP(C).No.6954 of 2015** **16** that stand taken by respondents 1 to 4 in Exts.P3 to P6, P10 and P15 is just and proper. The said impugned orders do not warrant any interference by this Court. The writ petition fails and it is accordingly dismissed. Sd/- **N. NAGARESH, JUDGE** aks/13.03.2019 **WP(C).No.6954 of 2015** **17** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT-P1- TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 01/06/2010** **EXHIBIT-P2- TRUE COPY OF THE APPOINTMENT ORDER OF THE 6TH RESPONDENT DATED 13/01/2010** **EXHIBIT-P3- TRUE COPY OF THE ORDER BEARING NO. B26113/2010/K.DIS DATED 04/01/2011 REJECTING THE APPROVAL OF APPOINTMENT OF THE PETITIONER.** **EXHIBIT-P4- TRUE COPY OF THE ORDER BEARING NO. B21917/2011/K.DIS DATED 25/01/2012.** **EXHIBIT-P5- TRUE COPY OF THE ORDER DATED 17/04/2013 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT-P6- TRUE COPY OF THE ORDER DATED 06/06/2013 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT-P7- TRUE COPY OF THE REVISION PETITION DATED 15/05/2013 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT.** **EXHIBIT-P8- TRUE COPY OF THE RELEVANT PAGES OF THE ATTENDANCE REGISTER IN THE 5TH RESPONDENT SCHOOL** **EXHIBIT-P9- TRUE COPY OF THE RELEVANT PAGES OF THE ATTENDANCE REGISTER MAINTAINED IN AVILA COLLEGE OF EDUCATION OBTAINED UNDER THE RTI ACT** **EXHIBIT-P10- TRUE COPY OF THE INFORMATION ISSUED BY THE 7TH RESPONDENT BY LETTER DATED 16/12/2011.** **EXHIBIT-P11- TRUE COPY OF THE ORDER DATED 26/07/2013 ISSUED BY THE 7TH RESPONDENT.** **WP(C).No.6954 of 2015** **18** **EXHIBIT-P12- TRUE COPY OF THE PETITION FILED BY THE PETITIONER DATED 28/05/2013 BEFORE THE IST RESPONDENT. EXHIBIT-P13- TRUE COPY OF THE NOTICE DATED 18/12/2013 ISSUED BY THE 2ND RESPONDENT. EXHIBIT-P14- TRUE COPY OF THE NOTICE DATED 08/07/2014 ISSUED BY THE 2ND RESPONDENT. EXHIBIT-P15- TRUE COPY OF THE ORDER DATED 20/12/2014 ISSUED BY THE IST RESPONDENT.**