High Court of KeralaSingle Judge2021-07-29Writ petition allowed; Ext.P6 set aside to the ...

Nima Mohan v. State of Kerala and Others

Case / Petition Number:WP(C) NO. 33129 OF 2016

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2021-07-29
Court Decision / Holding: Writ petition allowed. Ext.P6 set aside to the extent it affects the petitioner. The competent Secretary is directed to reconsider the matter after affording an opportunity of hearing to the petitioner, the 6th respondent, and the Manager, either physically or via video conferencing, and to pass an appropriate order expeditiously, but not later than four months from receipt of a copy of this judgment. If the petitioner’s claim is found deserving, all service benefits including seniority shall be granted without delay thereafter.
Final Disposition: Writ petition allowed; Ext.P6 set aside to the extent it relates to the petitioner; Government to reconsider after hearing; four months.

Parties to the Case

Appellants / Petitioners

NIMA MOHAN

Respondents

The State of Kerala represented by Secretary, General Education Department, Thiruvananthapuram-695001
The Director of Public Instructions, Jagathy, Thiruvananthapuram-695014
The Deputy Director of Education, Malappuram-676505
The Assistant Educational Officer, Manjeri, Malappuram-676121
The Manager, AMAUP School, Kunduthode, Eranhiikode, Edavana, Manjeri, Malappuram-676541
Smt. V.P. Jasmine, AMAUP School, Kunduthode, Eranhiikode, Edavana, Manjeri, Malappuram-676541

Legal Representation & Advocates

Counsels for Petitioners

• Sri U. Balagangadharan

Counsels for Respondents

• Smt. P.A. Jenzia
• Sri P.M. Manoj
• Smt. Amrin Fathima
• Sri Babu Karukapadath

Case Synopsis & Summary

This writ petition (WP(C) No. 33129 of 2016) challenges the Government’s Ext.P6 order Canceling the petitioner’s 16.07.2007 appointment as Upper Primary School Assistant at AMAUP School, Edavana-Manjeri. The petitioner argues that the cancellation is improper because the 6th respondent allegedly has a better Rule 51A claim under Chapter XIVA of the Kerala Education Rules (KER). The amended Rule 51A, effective from 27.04.2005, requires a minimum continuous service of one academic year to make a claim under Rule 51A, a criterion the petitioner contends was not satisfied by the 6th respondent who had only 4 months and 22 days of service from 07.12.1998 to 29.04.1999. The petitioner relies on a Supreme Court decision in Manager, V.K.N.M Vocational Higher Secondary School v. State of Kerala (2016) 4 SCC 216 to support her interpretation. The Government, through Ext.P6, concluded there is a better 51A claimant, thus precluding the petitioner’s appointment. The court heard the petitioner and respondents and observed that Ext.P6’s reasoning requires reconsideration, particularly in view of the Supreme Court precedent cited. Consequently, the court allowed the writ petition, set aside Ext.P6 to the extent it affected the petitioner, and directed the competent Secretary to reopen the matter after due hearing with the 6th respondent and the school, within four months, so that appropriate service benefits, including seniority and pay, may be restored if warranted.

Provisions of Law Cited

Kerala Education Rules (KER)Rule 51A, Chapter XIVA of the KERAmendment to Rule 51A on 27.04.2005

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P6 cancels her valid appointment by invoking Rule 51A only to prefer the 6th respondent’s claim, but the 6th respondent had insufficient continuous service at the time the vacancy arose in 2007. Relying on the amendment to Rule 51A (27.04.2005) and the Supreme Court decision in Manager, V.K.N.M Vocational Higher Secondary School v. State of Kerala, the petitioner asserts that eligibility requires one academic year of continuous service. She seeks set aside of Exts.P2, P3, and P6 and restoration of service benefits, seniority, pay, and allowances.

Contentions of Respondents

The respondents’ counsel maintain that Ext.P6 identified a superior 51A claimant and that the decision should stand; however, they conceded that Ext.P6’s implications, especially in light of the cited Supreme Court decision, require reconsideration. The Government agrees to reconsider after hearing the petitioner and the 6th respondent.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Manager, V.K.N.M Vocational Higher Secondary School v. State of Kerala	(2016) 4 SCC 216	Positive	The Supreme Court decision is cited to support the proposition that Rule 51A eligibility must consider a minimum period of continuous service; the petitioner relies on this precedent to challenge the 6th respondent’s claim and to argue the need for reconsideration of Ext.P6.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 29[TH] DAY OF JULY 2021 / 7TH SRAVANA, 1943** ## **WP(C) NO. 33129 OF 2016** ## **PETITIONER:** **NIMA MOHAN, AGED 28 YEARS D/O MOHAN S.T.,UPPER PRIMARY SCHOOL ASSISTANT, AMAUP SCHOOL, EDAVANA, MANJERI, MALAPPURAM DISTRICT-676541, RESIDE AT MOHAN VILLA, XXXVII/2, NARUKARA PO, MANJERI, MALAPPURAM, PH.9142345882.** ## **BY ADV SRI.U.BALAGANGADHARAN** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY,GENERAL EDUCATION**| ||**DEPARTMENT,THIRUVANANTHAPURAM-695001.**| |**2**|**THE DIRECTOR OF PUBLIC INSTRUCTIONS**| ||**JAGATHY, THIRUVANANTHAPURAM-695014.**| |**3**|**THE DEPUTY DIRECTOR OF EDUCATION**| ||**MALAPPURAM-676505.**| |**4**|**THE ASSISTANT EDUCATIONAL OFFICER**| ||**MANJERI, MALAPPURAM-676121.**| |**5**|**THE MANAGER, AMAUP SCHOOL, KUNDUTHODE,**| ||**ERANHIKODE,EDAVANA, MANJERI, MALAPPURAM-676541.**| |**6**|**SMT.V.P.JASMINE, AMAUP SCHOOL, KUNDUTHODE,**| ||**ERANHIKODE,EDVANA, MANJERI, MALAPPURAM-676541.**| ||**BY ADVS.**| ||**SMT.AMRIN FATHIMA**| ||**SRI.BABU KARUKAPADATH**| WPC 33129/16 2 **SRI.V.A.MUHAMMED SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR SRI.M.SAJJAD SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR** **SRI. P.M.MANOJ - SR .GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 33129/16 3 ## **JUDGMENT** The petitioner says that her appointment as an Upper Primary School Teacher (UPSA) in 'A.M.A.U.P School' on 16.07.2007 – which was approved on 04.02.2016 - has been now sought to be cancelled by the Government through Ext.P6, on the ground that there is a 51A claimant, namely the 6th respondent, with a better claim. She says that this opinion has been arrived at by the Government, ignoring the fact that, on the date of occurrence of the vacancy, the Kerala Education Rules (KER for short), through its amendments, required a minimum period of one academic year for any such person to make a claim under Rule 51A, Chapter XIVA of the KER. 2. The petitioner says that this issue has been affirmatively considered by the Honourable Supreme Court in **Manager, V.K.N.M Vocational** WPC 33129/16 4 ## **Higher Secondary School v. State of Kerala** [(2016) 4 SCC 216] and asserts that 6th respondent had only 4 months and 22 days of service from 07.12.1998 to 29.04.1999, but that she claimed the benefit of Rule 51A as against a vacancy which arose on 16.07.2007. She says that this could not have been possible because, by then, Rule 51A had been amended with effect from 27.04.2005, stipulating the minimum eligibility of continuous service of one academic year for making such a claim. 3. The petitioner contends that it is without considering any of these aspects that Government has now issued Ext.P6 order, cancelling her appointment granted validly on 04.02.2016, as is evident from Ext.P1, merely saying that 6th respondent has a better claim than her under the ambit of Rule 51A Chapter XIVA of the KER. She, therefore, prays that Exts.P2, P3 and P6 be set aside and the competent Authority be directed to grant her all service benefits, including WPC 33129/16 5 seniority, along with eligible pay and allowances forthwith. 4. I have heard Sri.U.Balagangadharan – learned counsel for the petitioner; Smt.P.A.Jenzia – learned counsel for the 5th respondent, Manager and Sri.P.M.Manoj – learned Senior Government Pleader appearing on behalf of the official respondents. 5. The learned Senior Government Pleader began his submissions by pointing out that, in Ext.P6, it has been found clearly that there is a better 51A claimant who obtained preference to be appointed to the vacancy in question, than the petitioner. He, however, conceded, to a pointed query from this Court, that the impact of the **Manager, V.K.N.M Vocational Higher Secondary** **School** (supra), has not been considered in Ext.P6, with particular reference to the petitioner's contention that 6th respondent could not have impelled a Rule 51A claim because she had less WPC 33129/16 6 than one year of continuous service at the time when the vacancy arose on 16.07.2007. He submitted that if this Court is so inclined, Government is willing to reconsider the matter, after hearing the petitioner and the 6th respondent also. 6. I am sure that the afore course now suggested by the learned Senior Government Pleader is the best available because the petitioner's th contention - that the 6 respondent cannot maintain a Rule 51A claim after the amendment of the KER on 27.04.2005 – certainly requires to be considered by the Government appropriately, before a decision as recorded in Ext.P6 can be enforced against her. In the afore circumstances, I allow this Writ Petition and set aside Ext.P6 to the extent to which it relates to the petitioner; and consequently, direct the competent Secretary of the Government to reconsider the matter after affording an opportunity of being heard to the WPC 33129/16 7 petitioner, the 6th respondent, as also the Manager of the School – either physically or through video conferencing – thus culminating in an appropriate order thereon as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment. Needless to say, if after the afore exercise, the petitioner's approval is found to be deserving, then all eligible benefits including seniority, shall be granted and restored to her without any avoidable delay thereafter. **Sd/-** RR **DEVAN RAMACHANDRAN** **JUDGE** WPC 33129/16 8 ## **APPENDIX OF WP(C) 33129/2016** PETITIONER EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER DATED 16.7.2007 WITH ENDORSEMENT OF AEO DATED 4.2.2016. EXHIBIT P2 A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 1.12.2010. EXHIBIT P3 A TRUE COPY OF THE GOVERNMENT ORDER DATED 23.1.2013. EXHIBIT P4 A TRUE COPY OF THE GOVERNMENT LETTER DATED 1.6.2013. EXHIBIT P5 A TRUE COPY OF THE GOVERNMENT ORDER DATED 5.11.2014. EXHIBIT P6 A TRUE COPY OF THE GOVERNMENT ORDER DATED 3.6.2016. RESPONDENT EXHIBITS: Exhibit R5(A) A TRUE COPY OF THE ORDER DATED 27.5.2013 OF THE 2ND RESPONDENT, DIRECTING THIS RESPONDENT TO REGULARIZE THE 6TH RESPONDENT. Exhibit R5(B) A TRUE COPY OF THE ORDER DATED 15.10.2013 OF THIS RESPONDENT, REGULARIZING THE APPOINTMENT OF THE 6TH RESPONDENT. Exhibit R6(A) TRUE COPY OF THE JUDGMENT IN WP(C) NO.20350/2010 DATED 30.6.2010. Exhibit R6(B) TRUE COPY OF THE ORDER NO.D/3308/10 DATED 31.5.2011. Exhibit R6(C) TRUE COPY OF THE G.O.(RT) WPC 33129/16 9 NO.1613/11/G.EDN. DATED 28.4.2011. Exhibit R6(D) TRUE COPY OF THE LETTER NO.38134/B1/2011/G.EDN. DATED 22.7.2011. Exhibit R6(E) TRUE COPY OF THE INTERIM ORDER IN WP(C) NO.23436/2011 DATED 29.8.2011. Exhibit R6(F) TRUE COPY OF THE INTERIM ORDER IN WP(C) NO.23436/2011 DATED 14.10.2011.