Merlin Rajan v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM MONDAY, THE 1ST DAY OF APRIL 2013/11TH CHAITHRA 1935 WP(C).No. 5591 of 2008 (N) ------------------------------------------ PETITIONER(S): -------------------------- MERLIN RAJAN, U.P.S.A., AMAYANNOOR HIGH SCHOOL, AMAYANNOOR P.O., KOTTAYAM DISTRICT. BY ADV. SRI.SURIN GEORGE IPE RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, PALA, KOTTAYAM DISTRICT. 3. MANAGER, - AMAYANNOOR HIGH SCHOOL, AMAYANNOOR P.O. KOTTAYAM DISTRICT. 4. SMT. SREEJA KRISHNAN, U.P.S.A., AMAYANNOOR HIGH SCHOOL, AMAYANNOOR P.O. KOTTAYAM DISTRICT. R1 & R2 BY SR. GOVERNMENT PLEADER SRI. JAMES MATHEW KADAVAN R3 BY ADV. SRI.P.I.GEORGEKUTTY R4 BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WP(C).No. 5591 of 2008 (N) ## APPENDIX ## PETITIONER'S EXHIBITS: - P1 COPY OF THE ORDER DATED 03.10.2005 ISSUED BY THE 3RD RESPONDENT. - P2 COPY OF THE ORDER NO.B3.5263/2005 DATED 27.12.2006 ISSUED BY THE 2ND RESPONDENT. - P3 COPY OF THE ORDER DATED 01.07.2003 OF THE 3RD RESPONDENT. - P4 COPY OF THE COMMON JUDGMENT DATED 29.08.2005 OF THIS HONOURABLE COURT IN W.P(C)NO.16922 OF 2005 & OTHERS. - P5 COPY OF THE ORDER NO. B3/3715/2005 DATED 05.10.2005 ISSUED BY THE 2ND RESPONDENT. - P6 COPY OF THE REVISION PETITION DATED 26.06.2006 FILED BY THE 4TH RESPONDENT BEFORE THE 1ST RESPONDENT. - P7 COPY OF THE ORDER NO.45/05 DATED 06.01.2007 ISSUED BY THE 3RD RESPONDENT. - P8 COPY OF THE REVISION PETITION DATED 03.12.2007 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - P9 COPY OF THE ORDER DATED 04.06.2007 ISSUED BY THE 3RD RESPONDENT. - P10 COPY OF THE JUDGMENT DATED 19.12.2007 OF THIS HON'BLE COURT IN W.P(C)NO.37730 OF 2007. - P11 COPY OF THE ORDER G.O.(Rt)NO.261/08/Gl..Edn DATED 11.01.2008 ISSUED BY THE 1ST RESPONDENT. - P12 COPY OF THE ORDER G.O.(Rt)NO.4233/2008/G.EDN DATED 22.09.2008 ISSUED BY THE 1ST RESPONDENT. - P13 COPY OF THE GOVERNMENT ORDER G.O.(P)NO.10/10/G.EDN. DEPT. DATED 12.01.2010. ## WP(C).No. 5591 of 2008 (N) ## RESPONDENTS' EXHIBITS: - R4(A) COPY OF THE APPEAL PETITION FILED BEFORE DIRECTOR OF PUBLIC INSTRUCTION, WITHOUT ANNEXURES. DATED 28.02.2006. - R4(B) COPY OF THE ORDER NO.D.DIS.12873/06/RA2/DPI OF THE -DODATED 11.05.2006. - R4(C) COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P(C) NO.15711 OF 2006(U) DT.09.11.2006. - R4(D) COPY OF THE ORDER NO.B3-5352/2006/K.DIS. OF THE DIST.EDL. OFFICER 30.12.2006. - R4(E) COPY OF THE APPT.ORDER ALONG WITH ORDER - NO.B3/275/2007/K. DIS. OF -DO- DATED 26.07.2006/17.01.2007. - R4(F) COPY OF THE ORDER NO.B3.275/2007 OF -DO- DATED 25.01.2007. - R4(G) COPY OF THE ORDER NO.B3-3717/07 OF THE DY. DIRECTOR OF EDUCATION, KOTTAYAM DATED 01.09.2007. - R4(H) COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C) NO.19155/2005-E DATED 15.10.2005. - R4(I) COPY OF THE ORDER OF THIS HONOURABLE COURT IN W.P.(C) NO.19776/2007-D DATED 17.12.2007. - R4(J) COPY OF THE DECISION REPORTED IN 2006 (3) K.L.T. 435 DATED 27.06.2006. // TRUE COPY // P.A. TO JUDGE DSV/- ## **C.K. ABDUL REHIM, J.** **---------------------------------------W.P.(C)NO. 5591 OF 2008 ---------------------------------------Dated this the 1[st] day of April, 2013** ## **JUDGMENT** Challenge is against Exhibits P11 and P12 orders issued by the Government while disposing the revision petitions filed by the 4[th] respondent and the petitioner. leave vacancy of H.S.A. (Natural Science) arose in 3[rd] respondent’s school, against which the 4[th] respondent was appointed form 01.07.2003 to 02.09.2003. Her appointment was approved. Subsequently the 4[th] respondent was appointed as H.S.A. (Natural Science) in a permanent vacancy which arose on the retirement of an H.S.A., Smt. Saramma, with effect from 01.06.2005. The said appointment was made considering the fact that the 4[th] respondent is having a valid claim under Rule 51A of Chapter XIV A, K.E.R. But the 4[th] respondent was not permitted to joint duty because there existed no existing vacancy during the academic year concerned by virtue of the staff fixation. The 4[th] respondent challenged the denial W.P.(C)NO. 5591 OF 2008 2 of appointment before this Court in a writ petition. In Exhibit P4 judgment, this court dismissed her claim observing that there existed no vacancy. In the writ appeal filed by the 4[th] respondent against Exhibit P4 as W.A.No.2035 of 2005, judgment was pronounced on 15.12.2005 making it clear that the 4[th] respondent will be at liberty to approach the Appellate Authority. She was permitted to continue on duty subject to decision in the appeal. A revision petition filed by the 4[th] respondent consequent to the judgment in the writ appeal was allowed by the Government under Exhibit P11. 2. In the meanwhile, the petitioner herein was appointed against the leave vacancy of U.P.S.A. in the very same school from 03.10.2005 to 22.10.2008, which appointment was approved by the Educational Authority. Subsequently, the petitioner was appointed against the regular vacancy of U.P.S.A. with effect from 05.06.2006. But that appointment was not approved by the Educational W.P.(C)NO. 5591 OF 2008 3 Authority observing that the 4[th] respondent is a Rule 51A claimant. Against denial of approval, the petitioner also preferred revision before the Government. Through Exhibit P12 the said revision was dismissed. 3. Petitioner is challenging Exhibits P11 and P12 orders of the Government. In Exhibit P11 the Government found that as on the date of appointment of the petitioner as U.P.S.A. against the leave vacancy which arose on 03.10.2005, the 4[th] respondent was a valid Rule 51A claimant and that she ought to have been appointed against the said vacancy. Therefore, the 4[th] respondent being a valid claimant under Rule 51A, appointment given to the petitioner as U.P.S.A. from 03.10.2005 cannot be sustained. Hence it was ordered that the 4[th] respondent will be deemed to have been appointed as U.P.S.A. with effect from 03.10.2005 and the appointment already given to the petitioner is set aside. However, it was made clear that the 4[th] respondent will not be entitled to get any arrears of W.P.(C)NO. 5591 OF 2008 4 wages for the period from 03.10.2005 to 25.07.2006 ( which is stated to have been corrected as 05.06.2005, ie., the date on which the 4[th] respondent was appointed against the regular vacancy). By virtue of Exhibit P12, the revision petition filed by the petitioner herein was dismissed confirming rejection of approval with respect to his appointment as U.P.S.A. 4. Admittedly, the 4[th] respondent had worked in the leave vacancy only for a period of 64 days from 01.07.2003 to 02.09.2003. Contention of the petitioner is that, prior to amendment brought into Rule 51A with effect from 25.06.2005, the 4[th] respondent was entitled to claim appointment only in the post of H.S.A. Vested right accrued on the 4[th] respondent by virtue of the unamended provisions of Rule 51A cannot make her entitled to claim appointment against the vacancy of U.P.S.A., which arose subsequent to the amendment. It is further contended that even assuming that by virtue of operation of the amendment W.P.(C)NO. 5591 OF 2008 5 the claim can be made against a post of U.P.S.A., the same cannot be accepted by virtue of the first proviso to Rule 51A introduced with effect from 27.04.2005, because the 4[th] respondent has no minimum continuous service of one academic year. Per contra, contention of the 4[th] respondent is that, conditions insisted in the proviso need not be fulfilled in the case of a person who had accrued with a vested right under Rule 51A prior to the introduction of the proviso. 5. The issue does not remain res integra. This court had occasion to consider the scope of the amendments brought to Rule 51A which enabled the claimants to seek preference in appointment in higher or lower category of teaching posts for which they are qualified. There are also decisions considering the effect of introduction of the first proviso to Rule 51A. In the decision in **Jannet Varghese v. State of Kerala [2006 (3) KLT 435]** , this Court held that, after the amendment the right of the claimant under W.P.(C)NO. 5591 OF 2008 6 Rule 51A is not limited to the same post which he was holding previously. He has a right to claim a vacancy either in a lower or in a higher post also. The 4[th] respondent had produced another judgment of this Court in W.P.(C) No. 19155 of 2005, dated 15.10.2005 [Exhibit R4(h)], in which it is held that the proviso to Rule 51A insisting on one academic year's accrued service was introduced only with effect from 27.04.2005. But the amendment will not take away the rights which have become vested and to that extend the amendment will operate only prospectively. The right to get appointed under Rule 51A had become vested at the time when the teacher concerned was terminated from the previous service. So the vested right in this regard which accrued prior to notification of the amendment has not been and cannot be taken away by virtue of the amendment. 6. An identical issue has been dealt with by a learned Judge of this Court in **Saleena v. State of Kerala [2008** W.P.(C)NO. 5591 OF 2008 7 **(1) KLT 437]** . It was held therein that the first proviso to Rule 51A is not retrospective. The right under Rule 51A crystallizes only when a vacancy arises. The law as obtaining on the date of occurrence of vacancy is the one to be applied for filling up of the vacancy. Therefore right to appointment to a vacancy which arose subsequent to introduction of the proviso should be considered on the basis of the amended provisions of Rule 51A. A right which had arisen under unamended Rule 51A, is of no significance, because the vacancy which arose subsequent to introduction of the proviso in Rule 51A can be filed up only in accordance with the amended provision. It is held that a right under Rule 51A is not an absolute right and it is only a right of preference. The occasion for exercising that right arises only on the date of occurrence of vacancy. Therefore, it is held that the preferential right crystallizes only when the vacancy arises. 7. But the above preposition has been overruled by a W.P.(C)NO. 5591 OF 2008 8 Devision Bench in the decision in **Abdurahiman v. Government of Kerala [2009 (2) KLT 105]** . It is held therein that the amendment to first proviso cannot affect rights accrued to persons on the strength of their appointment to short duration vacancies exceeding two months, made earlier to the amendment. The said amendment can in no way affect the rights accrued to persons. The right to get reappointment, arising under Rule 51A, will not be affected by introduction of the first proviso to the said Rule. By virtue of the above said decision which had overruled the decision in **Saleena's Case** (cited above) the positions stands clear. The learned counsel for the petitioner attempted a further distinction to the effect that, even assuming that the vested right can be exercised with respect to any lower post, such exercise should be limited only with respect to person who qualifies the condition incorporated by virtue of the proviso. But I find no merit in such a contention, in view of the settled legal position which W.P.(C)NO. 5591 OF 2008 9 had already reversed the view taken in **Saleena's Case** . 8. Under the above mentioned circumstance, I find no justifiable ground to interfere with the decision taken by the Government in Exhibits P11 and P12. Consequently, the Writ Petition fails and the same is hereby dismissed. However, it is made clear that the above judgment will not stand in the way of considering approval of appointment of the petitioner against any future vacancies which had arisen. Sd/- **C.K. ABDUL REHIM, JUDGE.** DSV/- # W.P.(C)NO. 5591 OF 2008 10 # W.P.(C)NO. 5591 OF 2008 11