R. Kanakalatha v. T.O. Bhaskar and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 16TH DAY OF JULY 2014/25TH ASHADHA, 1936** **WA.No. 391 of 2010 ( ) IN WP(C).9067/2007 -------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 9067/2007 of HIGH COURT OF KERALA DATED 30-01-2010** **APPELLANT(S)/3RD RESPONDENT:: -----------------------------** **R.KANAKALATHA, CHELLENGATTU HOUSE, OPP.GOVT. L.P.SCHOOL, KALADY P.O., CHITTUR PALAKKAD DISTRICT.** **BY ADVS.SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SMT.K.P.GEETHA MANI SRI.M.R.ANISON SRI.P.N.APPUKUTTAN** **RESPONDENT(S)/PETITIONER AND RESPONDENTS:: ------------------------------------------** **1. T.O.BHASKAR, MANAGER, M.G.L.P.SCHOOL, M.PUDUR, GOVINDAPURAM P.O., PALAKKAD DISTRICT.** **2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION THIRUVANANTHAPURAM.** **3. THE ASSISTANT EDUCATIONAL OFFICER, KOLLENGODE, PALAKKAD DISTRICT.** **4. SHEEBA K., LPSA, M.G.L.P.SCHOOL, M.PADUR, GOVINDAPURAM P.O., PALAKKAD DISTRICT.** **R4 BY ADV. SRI.K.P.SUDHEER R1 BY ADV. SRI.P.K.SURESH KUMAR R2 AND R3 BY SR.GOVERNMENT PLEADER SRI.PADMARAJ** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ASHOK BHUSHAN & A.M. SHAFFIQUE, JJ ------------------------------------------** ## **W.A.No. 391 of 2010** ## **-------------------------------------------** ## **Dated this the 16[th] July, 2014 JUDGMENT** ## **Shaffique, J** Third respondent in the Writ Petition is the appellant. The Writ Petition was filed by the first respondent herein, who is the Manager of M.G.L.P.School, challenging Exhibit P6 order passed by the Government by which the appellant herein was directed to be appointed as a teacher in the first respondent School. In Exhibit P6 order the Government invoked Rule 3 of Chapter 1 of Kerala Education Rules (KER) and formed an opinion that the appellant should be appointed as per Rule 51A of Chapter XIVA of KER (hereinafter referred to as 'Rue 51A') claimant, as she was out of employment at the time of occurrence of vacancy in the first respondent School. 2. The short facts of the case as disclosed in the Writ Petition is that the appellant was appointed as LPSA 2 _**W.A.391/10**_ (Malayalam) for a certain period in a leave vacancy, which was approved by the educational authorities. She got appointment as LPSA (Malayalam) in another school against a regular vacancy. Due to division fall, she was retrenched from service with effect from 31.3.2000. She was thereafter out of employment. A vacancy had arisen in the first respondent school and they made another appointment. The appellant submitted a representation before the Assistant Educational Officer claiming right under Rule 51A. The same came to be rejected and ultimately by Exhibit P6 order, the Government directed the Manager to appoint the appellant by giving her benefit of Rule 51A claim and invoking Rule 3 of Chapter 1 of KER. 3. The learned Single Judge, after taking into consideration the aforesaid factual situation and arguments of learned counsel for the petitioner as well as respondents, set aside Exhibit P6 finding that the appellant was not entitled for the benefit of Rule 51A claim and that the Government ought not to have 3 _**W.A.391/10**_ exercised power under Rule 3 Chapter 1 KER. 4. Impugning the aforesaid judgment, the appellant is before us. We heard learned counsel for the appellant, learned counsel appearing for the first respondent and the learned Government Pleader. 5. The main contention urged by learned counsel for the appellant is based on Rule 51A. According to the appellant, she is entitled for the benefit of Rule 51A KER, as she was out of employment at the time when the vacancy had arisen in the first respondent school. Reference is also made to a Division Bench judgment of this Court in _**Vasantha v. State of Kerala**_ (2009(1) KLT 1008). Learned counsel for the appellant placed specific reference in the observation made by this Court as to what is the 'permanent vacancy' with reference to Rule 51A and contended that when a person is unemployed and thrown out of employment, though appointed in the regular vacancy in another school still the claim survives and therefore the appellant is entitled to claim the benefit 4 _**W.A.391/10**_ of Rule 51A. Reference is also made to Note 2 to Rule 51A to indicate that without complying with the provisions under Note 2 to Rule 51A, the Manager should not have appointed another person in the regular vacancy that had arisen in the first respondent school. 6. On the other hand, learned counsel for the first respondent would contend that even going by Exhibit P6, Government formed an opinion that the appellant was not entitled for benefit of Rule 51A and therefore, the Government had invoked Rule 3 of Chapter 1 KER for the purpose of giving benefit under Rule 51A claim to the appellant. The learned counsel also relied upon a Division Bench judgment of this Court in _**Esther v. State of Kerala**_ (1989(1) KLT 621) to contend that the benefit of Rule 3 of Chapter 1 KER is not available to a person, who is not in service and such provision cannot be invoked for giving any benefit, which is not available under the provisions of KER. 7. Having regard to these factual issues, the short question to be considered is whether the appellant is 5 _**W.A.391/10**_ entitled for Rule 51A claim and whether the Government was justified in invoking Rule 3 of Chapter 1 KER. Rule 51A of KER reads as under: _“_ _**51A** . Qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in the same or higher or lower category of teaching posts, for which he is qualified that may arise if there is no claimant under rule 43 in the lower category in schools under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided they have not been appointed in permanent vacancies in schools under any other Educational Agency._ _Provided that a teacher who was relieved under rule 49 or rule 52 shall not be entitled to preference for appointment under this rule unless such teacher has a minimum continuous service of one academic year as on the date of relief:_ 6 _**W.A.391/10**_ _Provided further that the first preference under this rule shall be given to protected teachers belonging to the same Educational Agency._ _**Note 1** . If there are more than one claimant under this rule the order of preference shall be according to the date of first appointment. If the date of first appointments is the same then preference shall be decided with reference to age, the older being given first preference. In making such appointments, due regard should be given to the requirement of subjects and to the instructions issued by the Director under sub-rule (4) of rule 1 as far as High schools are concerned._ _**Note 1A** :- Fresh appointments to vacancies arising in the same or higher or lower category of teaching posts under the Educational Agency shall be made only after providing re-appointment to such teachers thrownout from service and protected teachers available under the Educational Agency._ _**Explanation** :- For the purpose of this_ 7 _**W.A.391/10**_ _clause, “Protected teacher” means, a teacher who has been retrenched for want of vacancy after putting such length of regular service that may be specified by the Government or who is eligible for such Protection as per G.O.(Ms) No.104/69/Edn. dated 6-3-1969 or G.O.(Ms) No.231/84/G.Edn. dated 27-10-1984 or any other orders issued by Government from time to time._ _**Note 2** . Manager should issue an order of appointment to the teacher by Registered post acknowledgment due and give a period of 14 (fourteen) clear days to the teacher to join duty. If the teacher does not join duty in time the Manager should give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under this rule would be forfeited if not exercised within another 7 (seven) clear days. If nothing is heard during that time also, the preferential right under the rule will be regarded as forfeited.”_ 8. Of course, the benefit of Rule 51A is available to a person who is out of employment under certain circumstances. But the benefit of Rule 51A is not available 8 _**W.A.391/10**_ to a person, who has obtained appointment in a permanent vacancy in any other school. When persons who obtained another permanent employment is clearly exempted from making any claim under Rule 51A, we do not think that there is any illegality on the part of learned Single Judge to have formed such an opinion. The learned Single Judge has also considered _**Vasantha's case**_ (supra) and indicated that the said judgment does not lay down any proposition that a person, who had obtained permanent employment in permanent vacancy in another school, is entitled for the benefit of Rule 51A claim. The Division Bench in _**Vasantha's case**_ (supra) at paragraph 11 has observed as under: _“11. ....What is 'permanent vacancy' has not been defined or explained anywhere in the Act or the Rules. So, the ordinary meaning of those words has to be applied for interpreting them. We notice that the use of the word “permanent” as an adjective to the vacancy has some significance. It implies, the appointment he got must be_ 9 _**W.A.391/10**_ _regular and permanent and therefore, he is no longer in need of re-appointment. The right to re-appointment is preserved only to an unemployed person or who has not got regular appointment elsewhere. In schools, if appointment is made in a permanent vacancy, normally, it can be presumed that the incumbent no longer requires reappointment in his parent school. ....”_ 9. In _**Vasantha's case**_ (supra) the Division Bench was concerned with the question with reference to a person, who was appointed as HSST in another school. Her employment was terminated, as she failed to clear the State Eligibility Test. This Court found that her appointment was not approved and did not fructify into a valid appointment. It is under such peculiar circumstances that this Court extended the benefit of Rule 51A claim to the said person. Hence, the said judgment has no application to the case on hand. That apart, the Division Bench further observed that if appointment is made in a permanent vacancy, normally, it can be presumed that 10 _**W.A.391/10**_ the incumbent no longer requires re-appointment in her parent school. Appellant was in fact appointed in a permanent vacancy and she was discharged only due to division fall. In such circumstances, when the proviso to Rule 51A is very clear, we cannot take a view that the appellant is entitled for Rule 51A claim. Under such circumstances, the said finding cannot be challenged by the appellant. 10. As far as the invocation of power under Rule 3 of Chapter 1 KER is concerned, the matter is squarely covered the judgment of this Court in _**Esther's case**_ (supra), wherein at paragraph 4 it was held as under: _“4. The impugned order, Ext.R1(a) says that it has been made in relaxation of the rules in the Kerala Education Rules. The specific provision invoked for that purpose has not been stated either in the order or in the counter affidavits of the first respondent or the second respondent. But the stand taken by the counsel for respondents 1 and 2 before us is that the said order has been made in exercise_ 11 _**W.A.391/10**_ _of the power conferred by Rule 3 of Chapter 1 of the Kerala Education Rules. The said rule reads as follows:_ _“Where the Government are satisfied that the operation of any rule under these rules causes undue hardship in any particular case, the Government may dispense with or relax the requirements of that rule to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner.”_ _It is clear from this provision that the Government has been conferred the power to dispense with or relax the requirements of any of the Kerala Education Rules. Such a power can be exercised only when the Government is satisfied that the operation of the particular rule causes undue hardship. It is the hardship that is caused by the operation of a particular provision that is the condition precedent for exercise of the power of dispensation or relaxation. It follows that the beneficiary can only be a person who is governed by the rules. If he is not already governed by the rules, the question of hardship being caused by the operation of the rules does not arise. This court_ 12 _**W.A.391/10**_ _had occasion to examine the scope or Rule 3 in 1984 K.L.T. 75 between Gangadharan Nair and State of Kerala and others wherein it is stated that Rule 3 in Chapter I is, in a sense, a built-in safety valve to effectively protect the just claims of those in service, where the plain operation of the rules results in unjust hardship to them (underlining is ours). One of he essential requirements for invoking Rule 3 of Chapter I in favour of a particular person is that he should be in service and governed by the provisions of the Kerala Education Rules. If by the exercise of this power rights of other are likely to be affected it follows that it cannot be exercised without giving such persons an opportunity of showing cause.”_ 11. The learned Single Judge had followed and considered _**Vasantha's case**_ (supra) as well as _**Esther's case**_ (supra) and formed an opinion that the appellant is not entitled for the claim under Rule 51A and that the Government was not justified in invoking Rule 3 of Chapter 1 KER. Though learned counsel for the appellant tries to emphasise that the appellant was out of 13 _**W.A.391/10**_ employment and therefore, she is entitled for the benefit of Rule 51A claim, we do not think that the said contention has any basis. In the absence of any illegality or perversity in the judgment of the learned Single Judge, we are of the view that the appellant is not entitled to succeed in the appeal. Accordingly, the Writ Appeal is dismissed. ## **ASHOK BHUSHAN, JUDGE** ## **A.M. SHAFFIQUE, JUDGE** vgs17/7/14