Maya S. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR &** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931** **WP(C).No. 29608 of 2007(Y)** **---------------------------------------** **PETITIONER(S):** **------------------------** **MAYA S., W/O. SUDHEER, DEVI VILASAM, MATTAKARA P.O., KOTTAYAM. (FORMERLY WORKING AS UPSA).** **BY ADVS. MR.N.RAGHURAJ SMT.K.AMMINIKUTTY** ## **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM.** **3. THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM.** ## **4. THE MANAGER,** - **MATTAKARA HIGH SCHOOL, MATTAKARA, KOTTAYAM.** **5. SMT. GEETHA G.NAIR,** - **(LG) HINDI TEACHER, MATTAKKARA HIGH SCHOOL, KOTTAYAM.** **R1 TO R3 BY GOVERNMENT PLEADER SMT.R.BINDU R4 BY ADVS.MR.V.A.MUHAMMED,** **MR.K.E.HAMZA, MR.M.SAJJAD.** **R5 BY MR.P.K.SURESH KUMAR, SMT.PRIYA VIJAYAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/02/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.29608/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE APPOINTMENT ORDER DT. 29.6.05 ISSUED BY THE 4TH RESPONDENT.** ## **P2:- COPY OF THE STAFF FIXATION ORDER NO.B4/4640/06 DTD. 24.7.06.** ## **P3:- COPY OF THE ORDER NO.2/06-07 DTD. 28.8.06 ISSUED BY THE 4TH RESPONDENT.** **P4:- COPY OF THE REPRESENTATION DTD. 24.8.06 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **P5:- COPY OF THE INTERIM ORDER DTD. 12.10.06 IN WPC. 26872 OF 2006 OF THIS HON'BLE COURT.** **P6:- COPY OF THE ORDER NO.B4/13286/06 DTD. 12.10.06 ISSUED BY THE 2ND RESPONDENT.** **P7:- COPY OF THE PROCEEDINGS NO. 3/06-07 DTD. 20.10.06 ISSUED BY THE 4TH RESPONDENT.** **P8:- COPY OF THE JUDGMENT DTD. 15.12.06 IN WPC. 26872/06 OF THIS HON'BLE COURT.** **P9:- COPY OF THE REVIEW PETITION DTD. FILED BY THE PETITIONER BEFORE THE IST RESPONDENT.** ## **P10:- COPY OF THE GO(RT) NO.3941/2007/GEN. DTD. 22.8.07.** ## **RESPONDENT'S EXHIBITS** **R4(a):- COPY OF THE ORDER OF APPOINTMENT OF SMT.GEETHA G.NAIR DTD. 3.11.03.** **R4(b):- COPY OF THE GO(P) NO.187/05/G.EDN. OF THE GOVERNMENT DTD. 17.6.05.** **R4(c):- COPY OF THE DECISION REPORTED IN 1987 (1) K.L.T. 686 DTD. 25.2.87.** **R4(d):- COPY OF THE ORDER NO.B4/4651/06 OF THE DIST. EDL. OFFICER DTD. 21.9.06.** **R(e):- COPY OF THE APPOINTMENT ORDER OF THE 5TH RESPONDENT DTD. 20.10.06.** **R4(f):- COPY OF THE DECISION REPORTED IN 2001(2) K.L.T. 273 DTD. 11.4.01.** **R5(a):- COPY OF THE APPOINTMENT ORDER DTD. 3.11.03 ISSUED TO THE 5TH RESPONDENT.** **TRUE COPY** **P.A. TO JUDGE** **tss** ## K.BALAKRISHNAN NAIR, J & S.S.SATHEESACHANDRAN, J ------------------------------------W.P.C No.29608 OF 2007 -------------------------------Dated this the 15[th] day of February 2010 ## JUDGMENT Balakrishnan Nair, J The writ petition was referred to the Division Bench by a learned Single Judge, noticing the apparent conflict between two reported decisions of the Single Benches concerning the rights of an existing claimant under Rule 51A of Chapter XIVA of the Kerala Education Rules (KER) to the vacancies that arose after the amendment to the said Rule introduced on 17/06/2005. The brief facts of the case are the following. 2. The petitioner was appointed as an Upper Primary School Assistant (UPSA) in Mattakkara High School by its Manager on 29/06/2005 as per Ext.P1 order. The said appointment was in a regular vacancy and it was approved by the District Education Officer (DEO) as per order dated 13/01/2006. During the academic year 2006-2007, one post of High School Assistant(Maths) was abolished and a new post of Lower Grade Hindi Teacher was sanctioned. Ext.P2 is the staff fixation order for the year 2006-2007 dated 24/07/2006, which took effect from 15/07/2006. As a result of reduction of one division, one HSA became surplus and the said incumbent was appointed as UPSA. The petitioner being the junior ## W.P.C No.29608 OF 2007 ## Page numbers most UPSA, was retrenched. She moved the Manager, claiming the vacancy of Lower Grade Hindi Teacher, for which she is duly qualified. She also claimed that she filed Ext.P4 representation before the Deputy Director of Education on 24/08/2006, claiming that vacancy. While so, the Manager appointed the 5[th] respondent in that vacancy. The 5[th] respondent has worked in the school as High School Assistant (HSA) (Hindi) from 03.11.2003 to 17.03.2004. The said spell of service was approved by the DEO. So, she was a claimant under Rule 51A of Chapter XIVA of KER. The petitioner was retrenched from service on 28/08/2006 with retrospective effect from 15/07/2006 by the Manager by Ext.P3 order. While so, the DEO passed an order canceling the approval of appointment of the 5[th] respondent. The Manager was directed to appoint the senior-most thrown out/protected teacher as Lower Grade Hindi Teacher before considering fresh appointment. Pursuant to the said order, the Manager issued Ext.P7 proceedings, again appointing the 5[th] respondent, as Lower Grade Hindi Teacher, treating her as the senior-most thrown out teacher awaiting appointment. The petitioner challenged that order before this Court, by filing Writ Petition(C) No.26872/2006. Pursuant to Ext.P7, the appointment of 5[th] respondent was approved by the DEO. The Writ Petition was disposed of, directing the petitioner to invoke the revisional remedy Page numbers W.P.C No.29608 OF 2007 Page numbers available to her. Challenging Ext.P7, the petitioner preferred Ext.P9 revision before the Government. The Government, after hearing both sides, disposed of the revision by Ext.P10 order. It was held by the Government that the 5[th] respondent was the legitimate claimant for the post of language teacher(Hindi), which arose in the school with effect from 15/07/2006. The petitioner approached this Court, challenging Exts.P3, Ext.P7 and Ext.P10. The 1[st] respondent has filed a counter affidavit, supporting the impugned orders. The respondents 4 and 5 have filed separate counter affidavits, resisting the prayers in the Writ Petition. 3. We heard Sri.N.Raghuraj for the writ petitioner, Sri.P.K.Sureshkumar learned counsel for 5[th] respondent, Sri.M.Sajjad learned counsel for 4[th] respondent and learned Government Pleader Smt. R.Bindu for the official respondents. The learned counsel for the writ petitioner submitted that the petitioner was retrenched after the amendment to Rule 51A, which was introduced on 17/06/2005 and so, she is entitled to get any vacancy arising in any teaching post in the school. Going by the decision of this Court in **“Abdurahiman vs Govt. of Kerala and Others”(2009(1) KHC 950)** the rights of the 5[th] respondent under the unamended Rule 51A are not affected by the present amendment. That means, the 5[th] respondent is entitled to get preference only in the matter of appointment as W.P.C No.29608 OF 2007 Page numbers against a fresh candidate from the open market, if a vacancy in the post of HSA (Hindi) arises, as she has approved service as HSA(Hindi) from 03/11/2003 to 17/03/2004, it is submitted. The 5[th] respondent, on the other hand, submitted that once it is found that her claim under Rule 51A is intact even after the amendment, she is entitled to get full benefit of the amended Rule 51A. So, she being a senior claimant, is entitled to get preference in re-appointment. The learned counsel for the 4[th] respondent submitted that the petitioner can claim re-appointment only if a vacancy arises in the same category of teaching post and not in a different category like lower Grade Hindi Teacher. The learned Government Pleader supported the aforementioned contentions of respondents 4 and 5. 4. We considered the rival submissions made at the Bar and perused the materials on record. The main part of Rule 51A, as it stood before the amendment dated 25/06/2005 was carried out, reads as follows. “ _Qualified teachers who are relieved as per Rule 49 or 52 on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided they have not been appointed in permanent vacancies in schools under any other Educational Agency”._ 5. Interpreting the said rule, a Division Bench of this Court held that a person retrenched from a particular post can claim re- W.P.C No.29608 OF 2007 Page numbers appointment only in the same category of post, in **“Gopalakrishnan Nair v District Educational Officer” (1988(1) KLT 644)** . The said decision was affirmed in **“Sreekumari amma v State of Kerala” (1988(2) KLT 359)** . The Rule 51A, after the amendment introduced on 25/06/2005, reads thus: “ _Qualified teachers who are relieved as per Rule 49 or 52 on account of termination of vacancies shall have preference for appointment to future vacancies in the same or higher or lower category of teaching posts, for which he is qualified, that may arise in schools under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided that they have not been appointed in permanent vacancies in schools under any other Educational Agency._ _“Provided that a teacher who was relieved under rule 49 or rule 52 shall not be entitled to preference for appointment under this rule unless such teacher has a minimum continuous service of one academic year as on the date of relief:_ _Provided further that the first preference under this rule shall be given to protected teachers”._ 6. Corresponding amendments were introduced to Rule 7A of Chapter XIVA also, providing that appointment can be made only to vacancies having the duration of at least one academic year. So, a teacher appointed after the amendment to Rule 51A on 25/06/2005 is retrenched, after completing continuous service of one academic year, he is entitled to get reappointment in any category of teaching post arising in the school, provided he is qualified for the same. W.P.C No.29608 OF 2007 Page numbers 7. The 5[th] respondent was a teacher retrenched on termination of vacancy before the amendment to Rule 51A. If the amendment was not introduced, she could have claimed a vacancy in the post of HSA(Hindi), provided there was no claimant for promotion in that school under Rule 43. But, a claimant under the amended Rule 51A can claim any vacant teaching post in the school whether it is in a higher or lower category, provided he is qualified for the post. In this case, we notice that there is no vacancy in the post of HSA(Hindi) and therefore, the claim of the 5[th] respondent under Rule 51A is unsustainable. The contention of the learned counsel for the 5[th] respondent that the said respondent is entitled to get the benefit of the amended Rule 51A is plainly untenable. The Rule operates prospectively only. Persons retrenched earlier after working in short-term vacancies cannot get the benefit of the amended Rule. The interpretation sought to be placed by the learned counsel for the Manager that the petitioner cannot claim a vacancy in the post of Lower Grade Hindi Teacher is untenable. The said contention goes against the plain words of the Rule 51A “shall have preference for appointment to future vacancies in the same or higher or lower category of teaching posts, for which he is qualified”. In view of the amendment to the Rule, the petitioner who was retrenched from the post of UPSA is entitled to claim the post of W.P.C No.29608 OF 2007 Page numbers Lower Grade Hindi Teacher. Therefore, the impugned orders are quashed. The Manager is directed to appoint the writ petitioner as Lower Grade Hindi Teacher with retrospective effect from 15/07/2006. The DEO shall approve the said appointment, provided she is qualified for the post of Lower Grade Hindi Teacher. The Manager shall appoint her within two weeks from the date of production/receipt of a copy of this judgment. She shall be entitled to get salary with effect from the date of this judgment. The payment, if any, made to the 5[th] respondent by way of salary need not be recovered. Writ Petition is allowed as above. Sd/- K.BALAKRISHNAN NAIR JUDGE Sd/S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// vdv P.A TO JUDGE