R. Lathakumari v. State of Kerala and Others (W.P.(C) No. 13786 of 2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 10TH DAY OF JUNE 2014/20TH JYAISHTA, 1936** ## **WP(C).No. 13786 of 2013 (W)** **----------------------------** ## **PETITIONER:** **-------------------** **R. LATHAKUMARI, W/O.SREERAJ, HIGH SCHOOL ASSISTANT (MALAYALAM), DEVASWOM BOARD HIGH SCHOOL, THRIKKARIYUR, ERNAKULAM DISTRICT.** **RESIDING AT: KODIYATTHU PUTHAN VEEDU, KUNNIKKODE P.O., KOLLAM DISTRICT.** **BY ADVS. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN** ## **RESPONDENTS:** **----------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GENERAL SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM, PIN - 695 001.** **3. THE DISTRICT EDUCATIONAL OFFICER, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686 691.** **4. THE CORPORATE MANAGER, TRAVANCORE DEVASWOM BOARD SCHOOLS, (THE SECRETARY TRAVANCORE DEVASWOM BOARD) DEVASOM BUILDING, NANATHANCODE, THIRUVANANTHAPURAM - PIN 695 001.** **..2/-** **Kss** **..2....** ## **WPC.NO.13786/2013 (W)** **5. SMT.SREELEKHA S.KURUP, W/O.M.K.VINOD KURUP, UPPER PRIMARY SCHOOL ASSISTANT, DEVASWOM BOARD HIGH SCHOOL, ERUMELI - 686 509.** **RESIDING AT ATTUPURAM HOUSE, VELIYANADU P.O., CHANGANASSERY, KOTTYAM DISTRICT - PIN 689 590.** ## **6. SMT.LEKHA P.NAIR,** **W/O.DEEPAK.G., UPPER PRIMARY SCHOOL ASSISTANT, DEVASWOM BOARD HIGH SCHOOL, ERUMELI, 686 509.** **RESIDING AT EDAKKALLIL HOUSE, THIRUVANDOOR, THIRUVALLA, PIN 689 109.** ## **R1 TO R3 BY GOVERNMENT PLEADER SRI.P.V.ELIAS** **R4 BY ADV. SRI.M.V.S.NAMBOOTHIRI,SC,TRAVANCORE DEVASWOM BOARD R5 BY ADVS. SRI.N.SUGATHAN** **SRI.S.PRASANTH (AYYAPPANKAVU) SMT.VARSHA BHASKAR R6 BY ADVS. SRI.S.SUBHASH CHAND SRI.SHINDI VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WP(C).No. 13786 of 2013 (W)** **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **---------------------------------------** **EXHIBIT P1: TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 4TH RESPONDENT CORPORATE MANAGER DATED 26/6/2012.** **EXHIBIT P2: TRUE COPY OF THE JUDGENT DATED 13/12/2012 IN WPC NO.29783/2012 (W).** **EXHIBIT P3: TRUE COPY OF THE HEARING NOTE DATED 6/4/2013 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P4: TRUE COPY OF THE ORDER NO.ET3/15338/2013/DPI/K.DIS. DT. 4/5/2013 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P5: TRUE COPY OF THE GO(P) NO.192/2012/G.EDN. DATED 16/6/2012.** **EXHIBIT P6: TRUE COPY OF THE G.O.(P)NO.169/04/G.EDN. DATED 125/06/2004.** **EXHIBIT P7: TRUE COPY OF THE G.O.(P) NO.104/2008/G.EDN. DATAED 10/06/2008.** ## **RESPONDENT(S)' EXHIBITS:** **------------------------------------------** **EXHIBIT R5(A): TRUE COPY OF THE PROVISIONAL LIST OF 51A CLAIMANTS UNDER THE 4TH RESPONDENT EDUCATIONAL AGENCY AS ON 01/06/2008.** **EXHIBIT R5(B): TRUE COPY OF THE ORDER NO.ROC.159/13/EDN. DATED 1/06/2013 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT R6(A): TRUE COPY OF THE APPROVED ORDER OF APPOINTMENT DATED 24/07/2003 ISSUED BY RESPONDENT NO.4.** **EXHIBIT R6(B): TRUE COPY OF THE LIST OF RULE 51A CLAIMANTS UNDER RESPONDENT NO.4 AS ON 1/06/2008.** **EXHIBIT R6(C): TRUE COPY OF THE REVISION PETITION DATED 6/12/2012 SUBMITTED BEFORE RESPONDENT NO.2.** **EXHIBIT R6(D): TRUE COPY OF THE ORDER OF APPOINTMENT DATED 6/06/2012 ISSUED BY RESPONDENT NO.4.** **EXHIBIT R6(E): TRUE COPY OF THE ORDER NO.ROC.5818/12/RA/EDN. DTD. 7/10/2013 ISSUED BY RESPONDENT NO.4.** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** **A.V. RAMAKRISHNA PILLAI, J. -------------------------------------------------W.P.(C) No. 13786 of 2013 -------------------------------------------------Dated this the 10[th] day of June, 2014** ## **J U D G M E N T** Ext.P4 order, by which the 2[nd] respondent allowed the request of respondents 5 and 6 to cancel the appointment of the petitioner as HSA (Malayalam), is under challenge in this writ petition. 2. The petitioner alleges that she stood promoted from the post of Full Time Menial as HSA (Malayalam) with effect from 26.06.2012 in the Devaswom Board High School, Thrikkariyur. She was originally working as Full Time Menial in the Travancore Devaswom Board School at Vamanapuram. The petitioner alleges that her appointment was objected to by respondents 5 and 6 claiming that they are entitled to promotion to the said post; and the 2[nd] respondent, the Director of Public Instructions, has issued Ext.P4 in favour of respondents 5 and 6 erroneously. The petitioner alleges that W.P.(C) No. 13786 of 2013 **==> picture [20 x 8] intentionally omitted <==** respondents 5 and 6 had approved service as UPSAs for two months from 17.07.2003 to 24.09.2003 and from 24.07.2003 to 30.09.2003 respectively. The petitioner points out that thereafter, though they were appointed on 06.06.2012, later, their appointments stood rejected. She further alleges that even if their appointments can be approved, for any reason, they will not be entitled to promotion under Rule 43 taking the benefit of Ext.P5 Government Order. It was also alleged that promotion under Rule 43 can be claimed only by those teachers continuing on regular basis in the lower post. 3. The 3[rd] respondent State filed a counter affidavit, wherein they have admitted that the Manager appointed the petitioner, who belongs to the category of non-teaching staff, as HSA (Malayalam) in the Devaswom Board High School, Thrikkariyoor, against a regular vacancy. They contended that there was no post of HSA (Malayalam) in the school to make an appointment. Aggrieved by the appointment of the petitioner, W.P.(C) No. 13786 of 2013 **==> picture [20 x 8] intentionally omitted <==** respondents 5 and 6 filed WP(C) No.29783/2012; and in the light of the decision of this Court, the Director of Public Instructions considered the matter and issued Ext.P4. It was contended that respondents 5 and 6 were teachers and fully qualified for the post of HSA (Malayalam) and they are claimants under Rule 51A. 4. In the counter affidavit filed by the 5[th] respondent, it was contended that the petitioner has a statutory remedy of priority under Rule 92 Chapter XIVA KER against the impugned order. According to her, she was appointed as UPSA from 22.07.2003 to 24.09.2003 in Devaswom Board High School, Thiruvalla; and her service was approved; and the she is senior to the 6[th] respondent in the list of 51A claimants. The petitioner was appointed as HSA (Malayalam) as per Ext.P1 against the vacancy arose due to the refixed staff strength for the academic year 2011-12. The 5[th] respondent was eligible to be appointed as HSA (Malayalam) as she is a 51A claimant. The petitioner is a non-teaching staff and in the W.P.(C) No. 13786 of 2013 **==> picture [20 x 8] intentionally omitted <==** matter of appointment as teacher, a teacher has preference over non-teaching staff as per Note 1 to sub-rule 1 of Rule 1 of Chapter XIVA of KER. It was further pointed out that a member of non-teaching staff like the petitioner would get entitlement for appointment as a teacher only in the absence of a teacher eligible for promotion or appointment. 5. The 6[th] respondent also filed a counter affidavit almost along the same lines and prayed for a dismissal of the writ petition. 6. Arguments have been heard. 7. It was argued by the learned counsel for the petitioner that at the time of consideration of the petitioner for promotion, there was no qualified teacher under the management with a claim under Rule 43 or Rule 51 A Chapter XIVA KER. It was argued that the Staff Fixation for 2010-2011 was made applicable for the academic year 2012-2013 in view of the directions contained in GO(P) No.199/2011/G.Edn. dated W.P.(C) No. 13786 of 2013 **==> picture [20 x 8] intentionally omitted <==** 01.10.2012. According to the petitioner, there were two posts of HSA (Malayalam) in the Devaswom Board High School, Thrikkariyur and the second post was to continue in view of the continuance of the Staff Fixation. However, the District Educational Officer has erroneously abolished the second post of HSA (Malayalam). But, in an appeal by the Management, the said post was restored; and therefore, according to the petitioner, the second post was available from 2011-2012 onwards and she was promoted and posted against that vacancy. 8. Regarding the eligibility of respondents 5 and 6 to be promoted as HSA (Malayalam), it was argued by the learned counsel for the petitioner that respondents 5 and 6 were appointed as UPSAs on 06.06.2012 in the Devaswom Board High School, Erumeli and those appointments stood rejected; and therefore, they cannot claim promotion under Rule 43 or Rule 43B. It was argued that respondents 5 and 6 are not entitled to appointment as HSA (Malayalam) for the post existing W.P.(C) No. 13786 of 2013 **==> picture [20 x 8] intentionally omitted <==** from 01.06.2012 either under Rule 43 or under Rule 51A KER. It was argued that for promotion under Rule 43, there should have been teachers continuing on regular basis. It was also argued that they were not having approved service for one academic year to claim the benefit under Rule 51A. 9. The 5[th] respondent was appointed as UPSA from 22.07.2003 to 24.09.2003 in Devaswom Board High School, Thiruvalla and her service was approved. The 6[th] respondent was appointed as UPSA in Hindu Upper Primary School, Eramellikkara from 24.07.2003 to 30.09.2003 and the said appointment was also approved. These all are admitted facts. In view of the said approved appointments, both these respondents have become qualified claimants under Rule 51A Chapter XIVA KER, and thus, became entitled to have preference for appointment to future vacancies for which they are qualified. A true copy of the list of Rule 51A claimants as on 01.06.2008 evidencing the above fact is produced by W.P.(C) No. 13786 of 2013 **==> picture [20 x 8] intentionally omitted <==** the 6[th] respondent as Ext.R6(b). In Ext.R6(b), the name of the 6[th] respondent figures as Sl. No.14. As per provisions contained in Rule 51A, they are entitled to have preference for appointment to future vacancies in the same or higher or lower category of teaching post, for which they are qualified. So much so, overlooking Rule 51A claim, the petitioner ought not to have been appointed as HSA (Malayalam), for which respondents 5 and 6 were also qualified. However, the 4[th] respondent has preferred the petitioner and appointed her in the vacancy of HSA (Malayalam) that had arisen in the Devaswom Board High School, Thrikkariyur. It is relevant to note that the petitioner, who was a Full Time Menial and a member of non-teaching staff, would get entitlement for appointment as a teacher only in the absence of a teacher eligible for promotion or appointment. 10. The right of a member of non-teaching staff for appointment as teacher has been provided under Note (1) W.P.(C) No. 13786 of 2013 ..8.. ## Rule 1(1) of Chapter XIVA KER, which reads as follows; “Note (1) - A member of the non-teaching staff under the category of Clerks/Peons/Sweepers and other staff shall also be eligible for appointment as teacher provided he has the prescribed qualifications and that there is no teacher eligible for promotion or for appointment to such post under these rules.” 11. If there are teachers under the educational agency, who are entitled to Rule 43 promotion or Rule 51A appointment, they have to be preferred to a member of the non-teaching staff with the prescribed qualification. The law on the point is no longer res integra as per the decisions of this Court. As clearly evidenced by Ext.R6(b) list, Rule 51A claimants like respondents 5 and 6 were available when the petitioner was appointed as HSA (Malayalam). Therefore, Ext.P1 order appointing the petitioner is wholly unsustainable in law. By Ext.P2 judgment, this Court directed the 2[nd] respondent to consider Ext.P5 revision petition and pass appropriate orders on the same. It was thereafter, Ext.P4 order was issued within the parameters of Note 1 Rule 1 Chapter XIVA KER. It is also relevant to note that the appointments of respondents 5 and 6 as UPSA under W.P.(C) No. 13786 of 2013 **==> picture [20 x 8] intentionally omitted <==** the respondent Board has become non-est on account of the subsequent lien adjustment; and therefore, the reasoning based on the same is absolutely unsustainable in law. 12. The alleged requirement that respondents 5 and 6 are not having one academic year of service is not applicable to the present case in view of the decision of the Full Bench of this Court in **Soman P.S.** vs. **Manager, A.K.M. High School, Poyya and Others** [2013 (2) KLT 215], where it was held that teachers, who were relieved on account of the termination of vacancies, need not have a minimum continuous service of one academic year as on the date of relief even after the introduction of first proviso to Rule 51A for claiming preference for appointment. They are still entitled to claim preference for appointment under Rule 51A. Amendments to Rule 51A came into force only on 21.07.2005; and therefore, respondents 5 and 6, who became Rule 51A claimants prior to the amendment, will not become dis-entitled to W.P.(C) No. 13786 of 2013 **==> picture [26 x 8] intentionally omitted <==** claim preference over the petitioner as a Rule 51A claimant. On a consideration of the entire facts and circumstances of this case, this Court is of the definite view that there is no scope for interference with Ext.P4. Therefore, the writ petition is dismissed. No costs. It is hereby ordered that the respondent concerned shall issue formal orders appointing respondents 5 and 6 on the basis of Ext.R5(b) within a period of one month from today. Needless to say that the aforesaid respondents are entitled to the consequential benefits also. Sd/- **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/-