P.R. Joseph and Sulabha Joy v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943** ## **WP(C).No.11688 OF 2019(I)** ## **PETITIONERS:** **1 P.R.JOSEPH, AGED 85 YEARS, SON OF LATE SHRI. ROBERT, PULIAMPILLIL HOUSE, MANAKODOM PATTAM, ANTHAKARANAZHI P.O., THURAVOOR, CHERTHALA TALUK OF ALAPUZHA DISTRICT, PRESENT MANAGER OF L.F.M L.P SCHOOL, MANAKODAM PATTAM.** - **2 SULABHA JOY, D/O. JOY, LPSA, L F M L.P SCHOOL, MANAKODOM PATTAM, ANTHAKARANAZHI P.O., THURAVOOR, CHERTHALA TALUK OF ALAPUZHA DISTRICT** **BY ADVS. SRI.JOHN JOSEPH(ROY) SRI.C.G.ANTU CHATHELY GEORGE** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DPI, JAGATHY, THIRUVANANTHAPURAM, PIN - 695 041.** - **3 THE DISTRICT EDUCATIONAL OFFICER, CHERTHALA, OFFICE OF THE DEO, CHERTHALA, ALAPUZHA DISTRICT, PIN - 688 524.** **4 THE ASST. EDUCATIONAL OFFICER THURAVOOR, OFFICE OF THE AEO, THURAVOOR, CHERTHALA, ALAPUZHA DISTRICT, PIN - 688 532** - **5 P.J. XAVIER, AGED 36 YEARS, S/O. JOSEPH, POLLAYIL HOUSE, PALLITHOD P.O., THURAVOOR, CHERTHALA TALUK, ALAPUZHA DISTRICT, PIN - 688 584.** **BY ADVS. SRI.JOSEPH RONY JOSE SRI.E.A.JOSE SRI.K.G.GOPAKUMAR SMT.K.N.NAZEERA SRI.P.M.MANOJ-SR.GP.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.11688 OF 2019(I)** **-2-** ## **JUDGMENT** ## **Dated this the 9th day of April 2021** The Manager of the 'L.F.M. L.P. School', Manakodam and a Lower Primary School Assistant (LPSA), appointed by him therein, are before this Court as the petitioners in this case. 2. The petitioners impugn Ext.P18 order, issued by the Government, through which, it has ordered appointment of the 5[th] respondent – P.J.Xavier, into a regular vacancy that arose in the School in the year 2016, holding that he has a valid claim under Rule 51A of Chapter XIVA of the Kerala Education Rules (KER). 3. The petitioners assert that even if the 5[th] respondent had any such claim, it had been lost on account of the fact that he obtained permanent appointment in another School under a different educational Agency, and also because, in spite of Exts.P3 and P4 notices issued to him by the first ## **WP(C).No.11688 OF 2019(I)** **-3-** petitioner – Manager, he did not choose to join the School in question. The petitioners say that the Government, however, has not considered any of these aspects; but has, in an automaton manner, allowed the 5[th] respondent's plea, even after noting that he was working in another School under a different educational Agency. The petitioners, therefore, pray that Ext.P18 be set aside. 4. I have heard Sri.John Joseph (Roy) – learned counsel appearing for the petitioners; Sri.Joseph Rony Jose – learned counsel appearing for the 5[th] respondent and the learned Senior Government Pleader – Sri.P.M.Manoj, appearing for the official respondents. 5. When I examine Ext.P18, it is clear that the Government has found that Exts.P3 and P4 notices do not satisfy the rigour of Note 2 of Rule 51A of Chapter XIVA of the KER, since the Manager had not issued an appointment order to the 5[th] respondent, as has been mandated therein. ## **WP(C).No.11688 OF 2019(I)** **-4-** After finding so, the Government has found favour with the 5[th] respondent, even though he was working in another School, for the reason that the vacancy into which he had been appointed therein was not a permanent one. 6. Sri.John Joseph (Roy) - learned counsel for the petitioners, asserted that Exts.P3 and P4 notices are strictly within the ambit of Note 2 to Rule 51A Chapter XIVA of the KER and therefore, that once the said notices had been accepted by the 5[th] respondent, he could not have claimed any further appointment under Rule 51A of Chapter XIVA of the KER, when, concededly, he had refused to report to the School ought to take up the employment. 7. In addition, Sri.John Joseph (Roy) submitted that since the 5[th] respondent was already working in another School under a different educational Agency, the Government was wholly in error in having issued Ext.P18, upholding his Rule ## **WP(C).No.11688 OF 2019(I)** **-5-** 51A claim and thus reiteratingly prayed that this writ petition be allowed. 8. In response, the learned counsel for the 5[th] respondent, Sri.Joseph Rony Jose, submitted that Exts.P3 and P4 are not appointment orders, but only a communication issued to his client by the Manager asking him to produce a conduct certificate for the purpose of considering him for appointment. The learned counsel submitted that this can never satisfy the imperative conditions of Note 2 to Rule 51A of Chapter XIVA of the KER, and thus contended that the Government was without fault in having issued Ext.P18 order. 9. On the question of the employment obtained by his client under a different educational Agency, the learned counsel submitted that, since the post to which he was appointed was not a permanent one, the rigor of Rule 51A of Chapter XIVA, to that extent, would not apply to him. He thus prayed that this writ petition be dismissed. ## **WP(C).No.11688 OF 2019(I)** **-6-** 10. The learned Senior Government Pleader – Sri.P.M.Manoj, adopted most of the submissions of Sri.Joseph Rony Jose, adding that, as long as the Manager has not discharged his obligations under Note 2 to Rule 51A of Chapter XIVA of the KER, the legitimate claim of the 5[th] respondent can never be deemed to have been discharged. He then added that since the 5[th] respondent was working only in a temporary vacancy in another School, the Government thought it fit that his claim be upheld, because Rule 51A of Chapter XIVA of the KER only speaks about relinquishing such rights, when teachers are appointed in permanent vacancies under other educational Agencies. 11. I have evaluated the afore rival submissions and also have examined the documents available on record. 12. There are broadly two issues involved in this case: **==> picture [263 x 13] intentionally omitted <==** ## **WP(C).No.11688 OF 2019(I)** **-7-** Manager of the School has discharged his obligations under Note 2 of Rule 51A of Chapter XIVA of the KER; **==> picture [263 x 11] intentionally omitted <==** respondent, having worked in a School under a different educational Agency, **==> picture [313 x 44] intentionally omitted <==** **==> picture [377 x 12] intentionally omitted <==** settled by this Court, through various judgments, including in **Vasantha v. State of Kerala** [2009(1) KLT 1008], **Nair Service Society, Ktym and Others** - **v. Government of Kerala and Others** [2015(2)KHC ## 725] and **Manager Eravannoor AUP School, Kozhikode** **and Others v. State of Kerala and Others** [ILR 2011 (2) Ker. 301] that the mandate of Note 2 to Rule 51A of Chapter XIVA of the KER is mandatory, and that requirement of the Manager to issue an appointment order and a subsequent notice to a ## **WP(C).No.11688 OF 2019(I)** **-8-** teacher claiming rights under Rule 51A, before such right can be treated to have been relinquished is inviolable. 14. However, when one examines Ext.P3 – which is the first notice issued by the Manager to the 5[th] respondent – it is clear that he has not enclosed the appointment letter therewith, but had only asked him to obtain a “ _conduct certificate from a reputed person_ ” and produce it before him, so as to enable him to consider his appointment. This has been followed by Ext.P4 letter, wherein, the Manager notified the 5[th] respondent that if he does not produce the conduct certificate as required in Ext.P3, his rights under Rule 51A would be extinguished and another teacher would be then appointed. 15. I am afraid that I cannot find favour with either Ext.P3 or Ext.P4, because, going by Note 2 of Rule 51A of Chapter XIVA of the KER, the 1[st] petitioner – Manager of the School, was ## **WP(C).No.11688 OF 2019(I)** **-9-** enjoined to issue an order of appointment to the 5th respondent by registered post, acknowledgment due and to have given him 14 clear days to join duty. If even after this, the 5[th] respondent had not joined, then he ought to have issued another notice with seven clear days, informing him that his preferential right under the Rule would be forfeited and another teacher will be appointed. 16. In the afore perspective, when one evaluates Ext.P3 closely, it becomes perspicuous that it is not an appointment order nor has it even said that the petitioner has been appointed, but has only ask him to produce a conduct certificate from a reputed person for being considered for appointment. Even though Sri.John Joseph (Roy) – learned counsel for the petitioners, assert that there are provisions in the Kerala Education Act and the KER which mandate the Manager to obtain a conduct certificate before an order of appointment is issued to a teacher who ## **WP(C).No.11688 OF 2019(I)** **-10-** has been out of service for six months, no such mandate has been shown to this Court by him, even though he was given time to do so. 17. On the contrary, the petitioners have produced Ext.P19 order, issued by the District Educational Officer, Cherthala, with respect to the 5[th] respondent - when he was earlier appointed on 25.05.2011, asking that a conduct certificate be obtained and produced. Even if Ext.P19 is taken to be valid in law, it does not mean that the 1[st] petitioner – Manager can circumvent the provisions of Note 2 of Rule 51A of Chapter XIVA of the KER, by requiring him to produce a conduct certificate, since it is clear from the said document that such certificate, even if required, is to be produced only after the appointment is made and at the time when the proposal for approval is forwarded to the competent educational Authority for approval. 18. I am, therefore, not impressed with the submissions of the petitioners that Exts.P3 ## **WP(C).No.11688 OF 2019(I)** **-11-** and P4 would discharge the 1[st] petitioner - Manager's obligations under Note 2, Rule 51A of Chapter XIVA of the KER. 19. That said, I find some force in the submissions of Sri.John Joseph (Roy), that the Government has not properly assessed the claim of the 5th respondent that he was working only in a temporary vacancy in another School under a different educational Agency. This is because, even when I inspect Ext.P18 closely, it only says that the 5[th] respondent was employed in another School, but that since he had not been approved, his right under Rule 51A cannot be taken to have been forfeited. Of course, the said order whisperingly says that the post to which the 5[th] respondent had been appointed was not a regular one; but there is absolutely nothing in Ext.P18 as to how the Government came to this conclusion, particularly when they say that the conduct of the 5[th] respondent in having taken up another ## **WP(C).No.11688 OF 2019(I)** **-12-** employment under another educational Agency is “immoral”. 20. I am, therefore, of the firm view that, even though Exts.P3 and P4 notices cannot operate to discharge the obligations of the Manager under Note 2 to Rule 51A of Chapter XIVA of the KER, the question whether the 5[th] respondent had been appointed to a permanent vacancy under another School owned by another educational Agency, will have to be specifically adverted to and answered by the Government before an order could have been issued to the Manager to appoint him substantively. 21. This is also because Ext.P18 order has been issued by the Government only on the Revision filed by the 2[nd] petitioner; while the Revision filed by the 1[st] petitioner – Manager does not appear to have been touched upon. **==> picture [377 x 12] intentionally omitted <==** writ petition in part and set aside Ext.P18 to the ## **WP(C).No.11688 OF 2019(I)** **-13-** extent to which it does not answer the petitioners’ plea that the 5[th] respondent was engaged in a permanent vacancy in another School under a different educational Agency; but affirming their conclusions as regards the notices issued by the Manager under Note 2 of Rule 51A of Chapter XIVA of the KER. Resultantly, there will be a direction to the Government to re-consider the matter from the singular angle above, after re-hearing the petitioners and the 5[th] respondent – either physically or through videoconferencing – thus culminating in an appropriate order, deciding whether the vacancy to which the 5[th] respondent had been appointed in another School under a different educational Agency was a permanent one or otherwise and assessing it from the touchstone of Rule 51A of Chapter XIVA of the KER. The afore exercise shall be completed by the Government as expeditiously as is possible, but ## **WP(C).No.11688 OF 2019(I)** **-14-** not later than four months from the date of receipt of a copy of this judgment; and it is needless to say, depending upon the decision be so taken, they will also deal with the claim of the 5[th] respondent for appointment in the School in question. **Sd/DEVAN RAMACHANDRAN JUDGE** akv **WP(C).No.11688 OF 2019(I)** **-15-** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE STAFF FIXATION ORDER OF THE SCHOOL FOR THE YEAR 2014-15** **EXHIBIT P2** **TRUE COPY OF THE STAFF FIXATION ORDER OF THE SCHOOL FOR THE YEAR 2015-16** - **EXHIBIT P3** **TRUE COPY OF THE LETTER DATED 22-082016 ISSUED BY THE 1ST RESPONDENT TO THE 5TH RESPONDENT** - **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 13-092016 ISSUED BY THE 1ST RESPONDENT TO THE 5TH RESPONDENT** **EXHIBIT P5 TRUE COPY OF THE LETTER DATED 19-092016 ISSUED BY THE 1ST RESPONDENT TO THE 4TH RESPONDENT** **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 04-102016 ISSUED BY THE 1ST PETITIONER TO THE 4TH RESPONDENT FOR APPROVAL OF APPOINTMENT OF THE 2ND PETITIONER** **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 04-102016 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT** **EXHIBIT P8 TRUE COPY OF THE OBJECTION FILED BY THE 5TH RESPONDENT BEFORE THE 4TH RESPONDENT DATED 26-11-2016** - **EXHIBIT P9 TRUE COPY OF THE LETTER DATED 16-022017 ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER** **EXHIBIT P10 TRUE COPY OF THE LETTER DATED 03-032017 ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT** - **EXHIBIT P11 TRUE COPY OF THE ORDER DATED 16-03-2017 OF THE R-4, REJECTING THE APPROVAL OF APPOINTMENT OF 2ND PETITIONER** - **EXHIBIT P12 TRUE COPY OF THE APPEAL MEMORANDUM DATED 10-04-2017 BEFORE THE 3RD RESPONDENT** **EXHIBIT P13 TRUE COPY OF THE ORDER DATED 19-06-2017 ISSUED BY THE 3RD RESPONDENT** **WP(C).No.11688 OF 2019(I)** ## **-16-** ## **EXHIBIT P14** **TRUE COPY OF THE REPLY DATED 19-04-2017 UNDER THE RIGHT TO INFORMATION ACT FROM DEO** - **EXHIBIT P15** - **TRUE COPY OF THE ORDER DATED 06-03-2018 OF THE D P I, REJECTING THE REVISION OF 1ST PETITIONER** - **EXHIBIT P16** - **TRUE COPY OF THE REVISION PETITION SUBMITTED TO THE 1ST RESPONDENT DATED 03-05-2018 AGAINST THE ORDER OF THE DIRECTOR OF PUBLIC INSTRUCTION** - **EXHIBIT P17** - **TRUE COPY OF THE LETTER DATED 13-082014 ISSUED BY THE 4TH RESPONDENT TO THE D.D.EDN, CLARIFYING THE POSTS IN THE SCHOOL** - **EXHIBIT P18 TRUE COPY OF THE GOVERNMENT ORDER DATED 15-03-2019 ISSUED BY THE SECRETARY TO THE GOVERNMENT OF KERALA, REJECTING THE REVISION OF THE 2ND PETITIONER** - **EXHIBIT P19** - **TRUE COPY OF THE LETTER DATED 25/5/2011 ISSUED BY THE DEO TO THE 1ST PETITIONER** - **EXHIBIT P20** - **TRUE COPY OF THE RELEVANT PAGE OF THE FORMAT OF THE LIST OF DOCUMENTS TO BE UPLOADED WITH SAMANUAYA WEBSITE FOR SUBMITTING APPLICATION FOR APPROVAL OF APPOINTMENT OF THE TEACHERS IN SCHOOL** **RESPONDENT'S/S EXHIBITS:** ## **EXHIBIT R5(a)** **THE PHOTOSTAT COPY OF REPRESENTATION FILED BEFORE THE 4TH RESPONDENT DATED 03.04.2021.** //TRUE COPY// PA TO JUDGE