P. Subhashchandran (Manager, S.S.V.H.S.S., Chirayinkēzhu) v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY, THE 19TH DAY OF JULY 2013/28TH ASHADHA, 1935 ## **W.A.No.926 of 2013** ------------------------------------- AGAINST THE JUDGMENT IN W.P.(C).No.5048/2013, DATED 27-02-2013 OF HIGH COURT OF KERALA. --------------------- ## **APPELLANT/** PETITIONER:- --------------------------------------- P.SUBHASHCHANDRAN MANAGER, S.S.V.H.S.S., CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT. BY ADVS.SRI.ELVIN PETER P.J., SRI.T.G.SUNIL (PRANAVAM), SRI.K.R.GANESH. ## **RESPONDENTS/** RESPONDENTS:- ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER , ATTINGAL - 695 101. 4. SMT. SREEPADMAM G.L., H.S.A. (ENGLISH), S.C.V.B.H.S., CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT. R1 TO R3 BY SPECIAL GOVERNMENT PLEADER SMT.GIRIJA GOPAL. R4 BY ADVS.SRI.S.SUBHASH CHAND, SRI.SHINDO VARGHESE. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Manjula Chellur, C.J. & K.Vinod Chandran, J. -----------------------------------------W.A No.926 of 2013 -------------------------------------------Dated this, the 19th day of July, 2013 ## J U D G M E N T ## K.Vinod Chandran, J.: The manager of an individual educational agency having two schools under it; is before us challenging the judgment of the learned Single Judge. According to the appellant, the learned Single Judge by upholding the order of the Government to appoint the 4th respondent who was working in SCV Boys High School, in a leave vacancy, to the post of HSA(English) which arose in the other school namely SSV Girls High School, restricts the Manager's right to appoint a fresh hand to a vacancy, extending to one whole academic year; as provided under Rule 7A(3) of Chapter XIV-A of the Kerala Education Rules 1959 (for short “the KER”). The order of the Government upheld by the learned Single Judge was on a proceeding initiated by the 4th respondent. W.A.No.926 of 2013 - 2 - 2. Shorn of the procedural details, suffice it to say that the 4th respondent was continuing in a leave vacancy for a period from 20.8.2008 to 19.8.2013 which also stood approved by the District Educational Officer, Attingal as per order dated 29.11.2008 for the period 21.8.2008 to 19.8.2013. While the 4th respondent was continuing in one of the schools of the appellant allegedly on an anticipated vacancy in the other school the appellant Manager appointed a fresh hand with effect from 1.6.2011 against an anticipated additional post for the academic year 2011-12. This triggered the representation of the 4th respondent to be appointed to the said post. 3. The facts also disclose that later in one of the schools, an HSA (English) resigned from service to take up employment in Government. The proceedings initiated by the 4th respondent eventually culminated in affirmation of the District Educational Officer's order shifting the 4th respondent to the regular vacancy which arose consequent to the resignation of a teacher, with effect from13.6.2012. The learned Single Judge upheld the order of the Government on the ground that the same was perfectly in order, since, what the Government, sought do is to protect the rights of the W.A.No.926 of 2013 - 3 - teacher appointed earlier in the leave vacancy; who obviously would have a claim under Rule 51A of Chapter XIV-A of KER. The learned Single Judge also noticed that the liability to pay a staff appointed in an aided school, is on the Government. The Manager of the school; being not the pay master, cannot assert any right to fill up the vacancy with a fresh hand in terms of Rule 7A of Chapter XIV A; when already a person is continued on a leave vacancy whose claim under Section 51 A of Chapter XIV A would crystallize on such leave vacancy being extinguished. 4. The learned counsel for the appellant, before us also, asserted the right of the Manager to make fresh appointment in view of the provisions of sub-rule (3) of Rule 7A of Chapter XIV-A and contended that on resignation of the teacher there could be no appointment made since the duration of the vacancy would be less than one academic year and the children would suffer for want of a teacher in a sanctioned post. We are of the opinion that there is a primary fallacy in the said contention. On resignation, the vacancy would be one, the duration of which was less than one year. It is a vacancy in a regular sanctioned post. The attempt of the manager is to contend that on an anticipation of the resignation, a fresh hand - 4 - W.A.No.926 of 2013 was appointed in the beginning of the academic year itself that is 1.6.2011. The said anticipation is only the possibility of a resignation coming within the wake of the said academic year and not the possibility of a sanction for an additional post. 5. From the facts enumerated above, it is clear that the 4th respondent was appointed in a leave vacancy in the year 2008 and the same was also approved in the very same year. While she was continuing in the said leave vacancy a regular vacancy arose in the year 2011-12, by virtue of resignation of one teacher. The Manager cannot contend that he is entitled to anticipate the said vacancy and appoint a fresh hand in the beginning of the academic year and continue the fresh hand as such; since the leave vacancy in which the 4th respondent was appointed was likely to continue. The attempt obviously, is to make a fresh appointment while another teacher continued on a leave vacancy and the resultant claim under Rule 51A; looms large over the educational agency. 6. The learned counsel for the petitioner would urge before us, the decision of a Full Bench in _**Vijayan v. Dy.Director**_ **[1988 (2) KLT 413]** which elaborately considered Rules 51 and 55 of - 5 - W.A.No.926 of 2013 Chapter XIV-A of KER. It is the contention that the Full Bench has recognized the well entrenched principle of “last come first go” in the said decision with reference to the provisions of the KER and the 4th respondent would not be put in any difficulty. We are unable to understand the said contention based on the Full Bench decision. 7. The Full Bench decision was a case in which there were three posts of Full time Menials in an aided school wherein appointments were made on three different subsequent dates. The person who was appointed at the second instance proceeded on leave and the writ petitioner, fresh hand, was appointed to the said leave vacancy. Subsequently on reduction of the posts of Full Time menials from three to two, the person who was appointed in the leave vacancy claimed that, the 3rd person ought to be retrenched; since he steps into the shoes of the person who was appointed second in point of time. The decision relied on by the writ petitioner therein was overruled by the Full Bench, negating the contention of the writ petitioner therein. It was held that having regard to the context, Rule 51 deals with a situation where the post continues and only the vacancy in that post terminates for one reason or another, while Rule 55 comes into force when the post itself is to be abolished. Both the - 6 - W.A.No.926 of 2013 said rules according to the Full Bench incorporate the principle of “last come first go” and it was held in unequivocal terms that whether it be the result of termination of vacancy or as a result of reduction of the staff strength, whenever an occasion arises for terminating the teachers, then, it is trite that the junior most must be chosen to be sent out. 8. While the Full Bench covered a situation of Rule 55; in the present case, Rule 51 is applicable. In both the situations as held by the Full Bench the junior most has to be sent out and as a corollary, while retaining a person in a leave vacancy who would be conferred the entitlement of a claim under Rule 51 A; there cannot be any fresh appointment in a regular vacancy. This would, in effect create two protected teachers. 9. Taking this view, we are further fortified by a Division Bench of this Court in _**Geetha v. Geo Thomas**_ **[2009 (4) KLT 514];** placed before us by Smt.Girija Gopal, the learned Special Government Pleader. In the said decision the appellant was appointed as UPSA in a maternity leave vacancy. Even before the order of approval from the District Educational Officer,a regular vacancy arose as a result of the promotion of one of the HSAs; in - 7 - W.A.No.926 of 2013 which a fresh hand was appointed. The DEO took the view that the appointment of the appellant therein having been approved on a date later to the date in which the regular vacancy arose; the appellant cannot stake a claim under Rule 51-A. Only after the order of approval was issued, could such claim be raised, was the finding of the D.E.O. The same was consistently found against the appellant by the higher authorities, which was overturned by a learned Single Judge in a writ petition. The Division Bench however, set aside the judgment of the learned Single Judge relying on Rule 51. 10. Government Order dated 9.11.1999, which clarified that the services of such leave substitutes will be regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority, was also referred to. The said order was held to have explained and clarified Rule 51 of Chapter XIV A and specific reference was also made to Rule 9 which made the authority of the Manager to make appointments subservient to the provisions of KER. The Division Bench also held that the plea that the maternity leave vacancy was not approved when the regular vacancy arose cannot be sustained. The appellant therein, who was continuing in the maternity leave vacancy, ought to have been appointed in the - 8 - W.A.No.926 of 2013 regular vacancy and the fresh hand should have been appointed only in the remaining portion of the maternity leave vacancy, was the finding. Even though the duration of the maternity leave vacancy in that case, was found to be less than two months (as was the restriction at that point of time under Rule 7A(3) of Chapter XIV A), it was held that the person who was continuing in the maternity leave vacancy, having a future claim under Rule 51-A, has to be appointed in the regular vacancy. 11. In the instant case, the 4th respondent stands on a definitely better footing. The 4th respondent's appointment to the leave vacancy made in the year 2008 was approved in the said year itself. The regular vacancy arose in the year 2011-12 long after the approval of the appointment of the 4th respondent in a leave vacancy. The Manager's contention is that anticipating a resignation he ought to be permitted to appoint a fresh hand in the beginning of the academic year itself. This contention is on the very feeble premise that, on the resignation of the teacher, after the academic year commences, the vacancy cannot be filled up due to the restriction under Rule 7A(3) of Chapter XIV-A of the KER. Rule 7A(3), we notice is a restriction on the Manager and is not a right conferred to W.A.No.926 of 2013 - 9 - engineer anticipation and make appointments; which in effect overcomes such restrictions. The welfare of the children would be ably taken care of; if appointment is made on daily wages, which monetary liability also would be on the Government. That, however, would definitely save the Government of the liability of the service of fresh hands appointed in the regular vacancies, in the beginning of the academic year; anticipating a resignation, again intended at getting over the restriction under Rule 7A (3) of Chapter XIV A. We are of the opinion that the judgment of the learned Single Judge is not liable to be interfered with and we hence dismiss the appeal, however, without costs. Sd/Manjula Chellur, Chief Justice jma/200713. Sd/K.Vinod Chandran, Judge. ( true copy )