Ratheesh K.R. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 8TH DAY OF NOVEMBER 2017/17TH KARTHIKA, 1939** ## **WP(C).No. 20617 of 2017 (B)** **-----------------------------------------** **PETITIONER(S) : -------------------------** **RATHEESH K.R.,** **S/O.K.R.RADHAKRISHNAN NAIR, KIZHAKKEDATHU HOUSE, T.P.PURAM, VAZHOOR, KOTTAYAM- 686 505, (UPPER PRIMARY SCHOOL ASSISTANT, PRINCE MARTHANDA VARMA (PMV) HIGH SCHOOL, PERINGARA).** ## **BY ADV. SRI.S.SUBHASH CHAND** **RESPONDENT(S) :** - **----------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM- 695 001.** **3. THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, PATHANAMTHITTA AT THIRUVALLA- 689 101.** **4. THE DISTRICT EDUCATION OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA- 689 101.** **5. THE MANAGER, PRINCE MARTHANDA VARMA HIGH SCHOOL, PERINGARA, THIRUVALLA- 689 108 (V.K.PARAMESWARAN NAMBOODIRI, ELAMAN MANA, THIRUVALLA).** **6. B.C.SOORYA, ELAMAN MANA, PERINGARA, THIRUVALLA.** **..2/-** **..2..** **WP(C).No. 20617 of 2017 (B)** **-----------------------------------------** **7. S.SUDHA KUMARI, PRINCE MARTHANDA VARMA HIGH SCHOOL, PERINGARA, THIRUVALLA- 689 108.** **R1 TO R4 BY SR.GOVERNMENT PLEADER SMT. MARY BEENA JOSEPH R5 & R6 BY ADVS. SRI.V.A.MUHAMMED** **SRI.V.RAJASEKHARAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-11-2017, ALONG WITH W.P(C).NO. 22709 OF 2017 AND W.P(C).NO. 23786 OF 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** ## **WP(C).No. 20617 of 2017 (B)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT-P1 TRUE COPY OF THE SAID APPOINTMENT ORDER DATED 01/06/2016 THUS ISSUED BY RESPONDENT NO.5.** **EXHIBIT-P2 TRUE COPY OF THE ORDER DATED 21/01/2017 THUS PASSED BY RESPONDENT NO.4.** **EXHIBIT-P3 TRUE COPY OF THE SAID APPROVED APPOINTMENT ORDER DATED 04/10/1999 OF RESPONDENT NO.6.** **EXHIBIT-P4 TRUE COPY OF THE RULING IN MANAGER, VKNM VOCATIONAL HIGHER SECONDARY SCHOOL VS. STATE OF KERALA AN OTHERS 2016(1) KHC 430-2016 (1) KLT 489) EXHIBIT-P5 TRUE COPY OF THE STATUTORY APPEAL DATED 14/02/2017 SUBMITTED BY RESPONDENT NO.5.** **EXHIBIT-P6 TRUE COPY OF THE APPEAL DATED 01/03/2017 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.3 UNDER RULE 8 (5) CHAPTER XIVA K.E.R. EXHIBIT-P7 TRUE COPY OF THE JUDGMENT DATED 05/04/2017 PASSED BY THIS HON'BLE COURT IN W.P(C).NO. 12048 OF 2017(E).** **EXHIBIT-P8 TRUE COPY OF THE ORDER DATED 17/06/2017 ISSUED BY RESPONDENT NO.7.** **EXHIBIT-P9 TRUE COPY OF THE JUDGMENT DATED 12/06/2017 PASSED BY THIS HON'BLE COURT IN W.P(C).NO. 19358 OF 2017(T).** **EXHIBIT-P10 TRUE COPY OF THE ORDER DATED 24.06.2017 THUS ISSUED BY RESPONDENT NO.4.** ## **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R5(A) TRUE COPY OF THE ORDER NO.B3/2041/17/K.DIS. DATED 30.06.2017 OF THE DEPUTY DIRECTOR.** **EXHIBIT R6(A): TRUE COPY OF THE JUDGMENT IN W.P(C).NO. 16819/2014-B DATED 01.07.2015.** **//TRUE COPY//** **P.A.TO JUDGE.** **Msd.** ## **P.V.ASHA J.** **-----------------------------------W.P.(C).Nos.20617, 22709 & 23786 of 2017 -------------------------------------** Dated this the 8[th] day of November, 2017 ## **J U D G M E N T** W.P.(C).Nos.20617 and 22709 of 2017 are filed by the very same petitioner challenging the denial of approval to his appointment as UPSA. W.P.(C).No 23786 of 2017 is filed by the Manager seeking a declaration that the orders passed by the educational authorities denying approval to the appointment of petitioner are valid. As the issue arising for consideration is common, these writ petitions are heard together. The parties and documents referred to in this judgment are as described in W.P.(C) No.20617 of 2017. 2. The petitioner was appointed as UPSA under the 5[th] respondent School, as per Ext.P1 order on 01.06.2016, against a vacancy which arose on retirement of one Smt.K.C.Pushpakumari on 31.03.2015. The order Ext.P1 was forwarded for approval. As per Ext.P2 order, the District Educational Officer rejected the proposal for approval, on the ground that appointment was made overlooking the claim W.P.(C).No.20617 of 2017 & conn. cases 2 of 6[th] respondent who worked in the School for the period from 04.10.1999 to 10.12.1999. The Manager took up the matter in appeal before the Deputy Director of Education. When the appeal was pending a new Manager took charge and she appointed the 6[th] respondent withdrawing the appointment of the petitioner as per Ext.P8. Consequent to this, petitioner was not permitted to mark his attendance. W.P.(C) No. 20617 of 2017 was filed at that stage challenging Ext.P2 order declining approval and Ext.P8 order of the Manager. The reason for denial of approval was that the 6[th] respondent, a 51A claimant was awaiting appointment. 3. The 6[th] respondent was appointed in the School as per Ext.P3 order dated 04.10.1999 for the period from 04.10.1999 to 10.12.1999 against a vacancy which arose when the regular incumbent, had taken commuted leave for 68 days. The said appointment was approved as per endorsement in Ext.P3 itself. It was on the basis of her claim that approval was rejected to petitioner's appointment. 4. The Manager had filed an appeal against Ext.P2 order. When that appeal was pending the 7[th] respondent-a W.P.(C).No.20617 of 2017 & conn. cases 3 new Manager took charge and that Manager issued proceedings dated 17.06.2017, re-appointing the 6[th] respondent, as UPSA w.e.f. 19.06.2017 onwards against the retirement vacancy of Smt.K.C.Pushpakumari which arose on 01.04.2015 by relieving the petitioner, saying that approval was already declined by the DEO to his appointment, as it was made overlooking the claim of the 6[th] respondent and saying that 6[th] respondent is a Rule 51 A claimant. Petitioner has produced this order as Ext.P8 in W.P.(C).No.20617 of 2017. 5. The new Manager appointed the 6[th] respondent on the basis of her prior approved service rendered based on the appointment as per Ext.P3. While so, the appeal against Ext.P2 order rejected. W.P.(C) No. 22709 of 2017 was filed at that stage challenging the orders denying approval, which are produced as Exts.P2 and P8 in that writ petition. Against the orders of rejection, the petitioner had approached the Director of Public Instructions in a revision petition which resulted in Ext.P9 order produced along with I.A.No.14765 of 2017 in W.P.(C) No.22709 of 2017. 6. The respondents 6 and 7 have filed counter W.P.(C).No.20617 of 2017 & conn. cases 4 affidavits. 7. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondents and the learned Government Pleader. 8. The learned Counsel for the petitioner points out that by virtue of the amendment carried out to the provisions contained in Rule 7A (3) as well as under Rule 51 A of Chapter 14 A KER and as held in the judgment of the Apex Court, which is produced as Ext.P4 reported in **Manager, VKNM Vocational Higher Secondary School v. State of Kerala and others** [2016 (1) KHC 430], the 6[th ] respondent ceased to have any statutory right under Rule 51A and therefore the denial of approval to the appointment of petitioner as well as the re-appointment of the 6[th] respondent are illegal. The action of the Manager in cancelling the appointment of the petitioner as well as her replacement by 6[th] respondent who has got approved service for a period of only two months is therefore illegal. Subsequent to the amendment in 2005, a teacher with approved service for a period less than one year will not have any right for re-appointment under Rule 51 A. This position is laid down by the Apex Court while W.P.(C).No.20617 of 2017 & conn. cases 5 reversing the decision of the Full Bench judgment of this Court in **Jayasree K. v. State of Kerala and Others** [2014 (4) KHC 280] 9. The contention of the learned Counsel for the Manager as well as the 6[th] respondent is that the 6[th] respondent is entitled to appointment against the future vacancy arising in the school, in preference to any other candidate who has not worked under the 6[th] respondent. The learned Counsel for the 6[th] respondent argued that Manager has got a moral obligation towards the teacher he appointed earlier, though it was for a lesser duration. The 6[th] respondent relies on the judgment of this Court in W.P.(C).No.12048 of 2017 dated 05.04.2017, the judgment dated 01.07.2015 in W.P.(C).No.16819 of 2014, judgment of this Court in **Geetha S. v. Geo Thomas K. and Others** [2009 (4) KHC 296] and the Division Bench judgment in **Joshi v. Krishna P. Rajan** [2006 (4) KLT SN 63], in which it was held that the Manager has a commitment to the earlier appointments made by him when the next vacancy arises. 10. Having considered the contentions, I find that in view of Ext.P4 judgment of the Apex Court in which it is categorically held that in order to have a claim under W.P.(C).No.20617 of 2017 & conn. cases 6 Rule 51 A, the teacher should have approved service for not less than one academic year, in tune with the amended provisions contained in Rule 7 A(3) and Rule 51 A. The 6[th] respondent, who was appointed for a period of two months, though it was approved in accordance with the rules then in force and though was entitled to statutory claim under Rule 51 A till the amendment, is no longer having any statutory right under Rule 51 A for any appointment against a future vacancy in the School and at any rate against which arose in the year 2015, much after the amendment carried out to Rules 7 A (3) and 51 A of Chapter XIVA. The judgments relied on by the learned Counsel for the 6[th] respondent were rendered before the Apex Court interpreted the effect of the amendment to Rule 51A in the judgment Ext P4. In VKNM Vocational Higher Secondary School's case (supra) the Apex Court considered a similar case where also the Manager ignored the pre-amendment claimant appointing a fresh hand. It was held that the prior appointee had no right to re-appointment. In the above circumstances, the proceedings of the Manager in the order dated 17.06.2017 produced as Ext.P8 in W.P.(C).No.20617 of 2017 and the orders-Exts.P2 and P8 W.P.(C).No.20617 of 2017 & conn. cases **==> picture [7 x 9] intentionally omitted <==** in W.P.(C).No.22709 of 2017 are quashed. There shall be a direction to the District Educational Officer-4[th] respondent to pass orders on approval of the appointment of the petitioner within a period of 'six weeks' from the date of receipt of a copy of the judgment. In the result W.P.(C) No.20617 of 2017 and 22709 of 2017 are allowed and W.P.(C) No.23786 of 2017 is dismissed. Sd/- **P.V.ASHA, JUDGE.** AS