High Court of KeralaSingle Judge2016-01-18W.P.(C).No.25792 of 2005 dismissed; W.P.(C).No....

N. Rajendran v. State of Kerala and others

Case / Petition Number:W.P.(C).No.25792 of 2005-U

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2016-01-18
Court Decision / Holding: W.P.(C).No.25792 of 2005 would stand dismissed and W.P.(C).No.27362 of 2009 would stand allowed. The court directs that the consideration of Ker. Anithamol’s appointment in W.P.(C).No.27362 of 2009 be done under the rules in force at the date of Exhibit P3 and within three months of certified copy of the judgment; the earlier case (25792/2005) is dismissed with costs to be borne by the petitioner, while 27362/2009 is allowed with costs to be determined.
Final Disposition: W.P.(C).No.25792 of 2005 dismissed; W.P.(C).No.27362 of 2009 allowed; directions issued for reconsideration under the then-existing rules within three months; costs may follow.

Parties to the Case

Appellants / Petitioners

N. Rajendran

Respondents

State of Kerala, represented by Secretary to Government, General Education Department, Secretariat, Thiruvananthapuram
Director of Higher Secondary Education, Thiruvananthapuram
Director of Public Instructions, Thiruvananthapuram
D.E.O., Kanjirappally
Manager, C. Kesavan Memorial Higher Secondary School, Koruthodu P.O., Koruthodu, Kottayam
Ms. Sheela, Upper Primary School Assistant, C. Kesavan Memorial High School, Koruthodu P.O., Koruthodu, Kottayam
Ancy George, High School Assistant (S.S), C. Kesavan Memorial High School, Koruthode, Kottayam
Addl.R8. K.K.Anithamol, Principal, C.Kesavan Memorial H.S.S., Koruthode, Kottayam District

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Benoy Thomas

Counsels for Respondents

• Smitha Vinod (Government Pleader) for R1-R4
• Smt. S. Easwaran (Adv.) for R5
• Sri. P. Gopinath (Adv.) for R6 & R7
• Sri. B. Unnikrishna Kaimal (Adv.) for Addl.R8
• Sri. Josy Antony (Adv.)

Case Synopsis & Summary

This judgment of the Kerala High Court deals with two connected writ petitions challenging the denial or denial-linked approval of appointments under the Kerala Education Rules, 1959 (KER). The petitioner, N. Rajendran, challenges the denial of his Rule 51A claim under the KER with respect to appointments as High School Assistant (HSA) and Upper Primary School Assistant (UPSA) in the early 1990s and the subsequent vacancies in 1992–1993. He contends that after short-term/leave vacancies were approved, he acquired a vested right to be considered for regular vacancies as and when they arose; the vacancies in UPSA (1992) and HSA (1993) were filled by others, and the petition argues that his prior approvals should trigger a seniority/right-of-consideration under Rule 51A. The respondents dispute that any valid vacancy or Rule 51A claim existed at the relevant times, noting that approvals came after the fact and vacancies were shifted within the same school. The Court traces the history through earlier petitions (O.P. 9940/1996 and W.A. 1949/1997) directing reconsideration, and examines documentary exhibits showing the timing of appointments and approvals. Ultimately, the Court holds that the Rule 51A claim cannot be sustained for the vacancies in 1992–1993, dismissing W.P.(C).No.25792 of 2005, while allowing W.P.(C).No.27362 of 2009 with directions to reconsider Anithamol’s appointment under the rules in force at the time of Exhibit P3, within three months of judgment. The cases are linked and decided together with due regard to vested rights and prospective rules.

Provisions of Law Cited

Rule 51A of the Kerala Education Rules, 1959 (KER)

Legal Doctrines & Maxims

Vested rights doctrine in public appointments
Non-retroactivity of amendments affecting vested rights

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that once his short-term appointments were approved, he acquired a statutory right under Rule 51A of the Kerala Education Rules to be considered for regular UPSA/HSA posts as and when vacancies arose. He argues that vacancies in UPSA (15.06.1992) and HSA (07.06.1993) were created after his leave appointments, and that the approvals already granted should have ensured his placement rather than the later incumbents. He relies on prior directions (Division Bench) to reconsider the matter and on the principle that a valid claim exists at the time vacancies arise under Rule 51A. He also challenges the later amendments on the ground that these cannot nullify a vested right.

Contentions of Respondents

The respondents argue there was no valid vacancy or eligible claim under Rule 51A at the time the regular vacancies arose. Approvals for the earlier posts were granted after the fact, and in some cases no vacancy existed when Rajendran’s earlier appointments were made. The department shifted appointments within the same school, and the later rules/amendments cannot create a retroactive entitlement in the petitioner. The case hinges on whether a vesting right accrued on those dates and whether Rule 51A could be invoked to supersede the actual vacancy reality at the time those vacancies arose.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Kerala Panchayat Executive Officers Association v. State of Kerala	2000 (3) KLT 701	Positive	Cited as support for the vested-rights doctrine in public appointments; the court states the view is supported by this decision.
O.P. No. 9940 of 1996	O.P. No. 9940 of 1996	Mentioned Only	Referenced as part of the earlier procedural history and not as a binding ratio in the present decision.
W.A.No.1949 of 1997	W.A.No.1949 of 1997	Mentioned Only	Division Bench order directing reconsideration is cited for background, not for direct ratio.
W.P.(C).No.26000 of 2003	W.P.(C).No.26000 of 2003	Mentioned Only	Exhibit P9 references a prior judgment; cited as part of the record and history.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against N. Rajendran v. State of Kerala and others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 18TH DAY OF JANUARY 2016/28TH POUSHA, 1937 ## W.P.(C).No.25792 of 2005 (U) --------------------------------------------------- PETITIONER(S):- -------------------------- ## N. RAJENDRAN, NOW WORKING AS HSST (POLITICAL SCIENCE) BY TRANSFER, C. KESAVAN MEMORIAL HIGHER SECONDARY SCHOOL, KORUTHODU P.O., KORUTHODU, KOTTAYAM DISTRICT. BY ADV. SRI.BENOY THOMAS. ## RESPONDENT(S):- - ---------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 4. D.E.O., KANJIRAPPALLY. 5. MANAGER, C. KESAVAN MEMORIAL HIGHER SECONDARY SCHOOL, KORUTHODU P.O., KORUTHODU, KOTTAYAM. 6. MS. SHEELA, UPPER PRIMARY SCHOOL ASSISTANT, C. KESAVAN MEMORIAL HIGHER SECONDARY SCHOOL, KORUTHODU P.O., KORUTHODU, KOTTAYAM. 7. ANCY GEORGE, HIGH SCHOOL ASSISTANT (S.S), C. KESAVAN, MEMORIAL HIGHER SECONDARY SCHOOL, KORUTHODU P.O., KORUTHODU, KOTTAYAM. W.P.(C). NO.25792 OF 2005-U **- 2 -** ADDITIONAL 8TH RESPONDENT IMPLEADED: ADDL.R8. K.K.ANITHAMOL, PRINCIPAL, C.KESAVAN MEMORIAL H.S.S., KORUTHODE, KOTTAYAM DISTRICT. [ADDITIONAL 8TH RESPONDENT IS IMPLEADED AS PER ORDER ON I.A.NO.15870 OF 2008 DATED 17.12.2008] R1 TO R4 BY GOVERNMENT PLEADER SMT.SMITHA VINOD. R5 BY ADV. SRI.S.EASWARAN R6 & R7 BY ADV. SRI.P.GOPINATH ADDL.R8 BY ADVS.SRI.B.UNNIKRISHNA KAIMAL SRI.JOSY ANTONY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-01-2016, ALONG WITH WPC. 27362/2009-M, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- ## W.P.(C). NO.25792 OF 2005-U ## **APPENDIX** PETITIONER'S EXHIBITS:------------------------------------EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER AS LECTURER IN POLITICAL SCIENCE DATED 26.8.98. EXT.P2 TRUE COPY OF THE APPROVAL ORDER OF THE PETITIONER AS HSST (PART TIME) POLITICAL SCIENCE ISSUED BY 2ND RESPONDENT DATED 31.8.99. EXT.P2(a) TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 4.8.99. EXT.P3 TRUE COPY OF THE APPROVAL ORDER ISSUED BY THE 2ND RESPONDENT OF THE PETITIONER AS HSST (FULL TIME) DATED 8.8.2001. EXT.P4 TRUE COPY OF G.O.(MS) NO.351/2004/G.EDN. DT.20.11.2004. EXT.P5 TRUE COPY OF THE APPROVAL ORDER OF THE PETITIONER AS UPSA AND HSA ISSUED BY DEO DATED 9.9.91. EXT.P6 TRUE COPY OF G.O.(RT) NO.4600/95/G.EDN. DT.28.12.95. EXT.P7 TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN W.A.NO.1949/97 DATED 25.2.2004. EXT.P8 TRUE COPY OF THE IMPUGNED ORDER ISSUED BY THE 1ST RESPONDENT, I.E. G.O.(RT) NO.3803/2005.G.EDN. DATED 1.8.2005. EXT.P9 TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.26000 OF 2003 DT.4.11.2004. ## RESPONDENT'S EXHIBITS:- ------------------------------------------ NIL. Vku/- [ true copy ] ## K. Vinod Chandran, J ----------------------------------------------------------------W.P.(C).Nos.25792 of 2005-U & 27362 of 2009-M ------------------------------------------------------------------ Dated this the 18[th] day of January, 2016. ## **JUDGMENT** Both the writ petitions are connected, in a way. W.P. (C).No.27362 of 2009 filed against the denial of approval of appointment as Principal of Higher Secondary School would depend upon the disposal of W.P.(C).No.25792 of 2005, where the Rule 51A claim under the Kerala Education Rules, 1959 [for brevity “KER”] is urged; the latter of which is taken up for decision first. 2. The petitioner in W.P.(C).No.25792 of 2005 is said to have been appointed in a leave vacancy of High School Assistant [for brevity “HSA”] between 08.06.1990 to 27.03.1991. Subsequently, the petitioner was also appointed in a leave vacancy of Upper Primary School Assistant [for brevity “UPSA”] between 09.09.1991 to 13.12.1991. The approval of the first appointment as such was declined by the department for want of vacancy. The approval of appointment as UPSA was not considered, since neither the Manager nor the teacher produced WP(C) No.25792 of 2005 & - 2 - 27362 of 2009 the certificate proving the qualification of the petitioner. The said appointment also stood rejected by the District Educational Officer [for brevity “DEO”]. The petitioner had been before the statutory authorities with respect to both the said leave vacancy appointments. 3. The controversy arose when a vacancy of UPSA and HSA arose respectively on 15.06.1992 and 07.06.1993, to which respondents 6 and 7 respectively were appointed. The petitioner's contention is that, subsequently the petitioner's short-term appointments were approved and in such circumstance the petitioner had a claim under Rule 51A of the KER, to be appointed as UPSA or HSA when the vacancies arose; since both the said vacancies arose after the short-term appointments in leave vacancies. The petitioner was before this Court earlier with a writ petition [O.P.No.9940 of 1996], which was dismissed by the learned Single Judge and by Exhibit P7, the Division Bench, disposed of the appeal [W.A.No.1949 of 1997] directing re-consideration. It was specifically directed that the question as to whether as on the date of arising of the regular WP(C) No.25792 of 2005 & - 3 - 27362 of 2009 vacancy the petitioner's approval stood rejected or not should be considered. Exhibit P8 order, passed pursuant to Exhibit P7, is challenged herein. 4. A reading of Exhibit P8 would indicate that in fact there was no vacancy for appointment as HSA between 08.06.1990 and 27.03.1991. However, the Government, taking a lenient view, shifted the petitioner's appointment to another leave vacancy which occurred between 12.09.1990 to 07.12.1990. This is also evident from Exhibit P6 order. In such circumstance, the petitioner's claim to the vacancy of HSA on the arising of the vacancy of HSA, on 07.06.1993 cannot be said to be one wherein a valid claim under Rule 51A could have been raised. The Government had approved a portion of the period spent on duty; only taking a lenient view and shifting the appointment to another leave vacancy available in the same school. The appointment made by the Manager hence was not approved and as on the date of vacancy, there was no valid claim under Rule 51A. 5. With respect to the appointment in the leave vacancy as UPSA between 09.09.1991 to 13.12.1991, the same WP(C) No.25792 of 2005 & - 4 - 27362 of 2009 was rejected initially for want of certificate for proving the qualification. The same was allowed only by Exhibit P5 on 03.03.1994, pursuant to the directions of the Director of Public Instructions [for brevity “DPI”] in an order dated 26.10.1993. Hence, the said approval also occurred after the appointment of the 6[th] respondent as UPSA on 15.06.1992. 6. Hence, when the vacancies arose in the regular post of UPSA and HSA, the petitioner did not have a valid claim under Rule 51A. It is pertinent that the petitioner did not agitate the cause before this Court when the 6[th] and 7[th] respondents were appointed to the said regular posts. The respondents 6 and 7 continued without interruption in the regular post and on subsequent approval of the petitioner's appointment, the petitioner sought to challenge the same. For all the above reasons, the petitioner's claim under Rule 51A cannot be sustained on the date when the vacancies arose on 15.06.1992 and 07.06.1993, to which vacancies the respondents 6 and 7 were appointed. Hence, W.P.(C) No.25792 of 2005 would stand dismissed. WP(C) No.25792 of 2005 & - 5 - 27362 of 2009 7. W.P.(C).No.27362 of 2009 is in the circumstance of the pendency of W.P.(C).No.25792 of 2005. The petitioner in W.P.(C) No.27362 of 2009, one K.K.Anithamol, was appointed as Principal of Higher Secondary School on 07.05.2008 as per Exhibit P3. The same was not approved since the other writ petition [W.P.(C).25792 of 2005] was pending and N.Rajendran, the petitioner therein, had a claim for seniority from the date on which the alleged Rule 51A claim arose; reckoning of which would put Rajendran above K.K.Anithamol in the claim for the post of Principal. The writ petition of Rajendran [W.P.(C). No.25792 of 2005] having been dismissed, it is only proper that Exhibit P6 in W.P.(C) No.27362 of 2009 be set aside and K.K.Anithamol's approval be considered by the Regional Deputy Director, Higher Secondary Education. 8. In this context, it is to be noticed that when Exhibit P3 appointment order in W.P.(C) No.27362 of 2009 was made, admittedly the regulations then existing enabled K.K.Anithamol to be appointed, since she had 12 years service reckoning the Higher Secondary and High School service together. WP(C) No.25792 of 2005 & - 6 - 27362 of 2009 Subsequently, in the year 2009, the Rules were amended and only a person having 12 years service in Higher Secondary section could be appointed as Principal. By the amendment, an alternate experience was also prescribed, insofar as reckoning the 12 year period as 6 years in the Higher Secondary section and 6 years in the High School section. K.K.Anithamol does not have either of the said experience. However, the fact remains that if at the time of Exhibit P3 appointment, Anithamol's approval was considered, she would have been entitled to be considered on the basis of the existing rules. If on the basis of the existing rules a person had been appointed/promoted, then the subsequent amendment to the rules, cannot take away the vested right acquired to continue in the said higher post. This view is supported by the decision of a Division Bench in _**Kerala Panchayat Executive Officers Association v. State of Kerala**_ **[2000 (3) KLT 701].** 9. In the above circumstance, the approval of the petitioner in W.P.(C).No.27362 of 2009 will have to be considered as per the rules existing at that point of time, i.e., on the date of WP(C) No.25792 of 2005 & - 7 - 27362 of 2009 Exhibit P3 appointment, without taking into account the retrospective amendments made in 2009. It is directed that the said consideration shall be made, by respondents 2 and 3, within three months from the date of receipt of a certified copy of this judgment. W.P.(C).No.25792 of 2005 would stand dismissed and W.P.(C) No.27362 of 2009 would stand allowed. Parties are left to suffer their respective costs. Sd/K.Vinod Chandran Judge. vku/- [ true copy ]