REENAMMA W. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** ## **THURSDAY, THE 16TH DAY OF FEBRUARY 2012/27TH MAGHA 1933** ## **WP(C).No. 15144 of 2009 (K)** **---------------------------** ## **PETITIONER:** ## **-------------** **REENAMMA.W,AGED 41 YRS,W/O.JOHNSON DAVID VELLAMATTEL THEKKATHIL PUTHEN VEEDU, KODUVILA.PO SINKARAPPALLY,EAST KALLADA (VIA),KOLLAM.** **BY ADV. SRI.T.M.ABDUL LATHEEF** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT EDUCATION DEPARTMENT THIRUVANANTHAPURAM** **2. DISTRICT EDUCATIONAL OFFICER KOLLAM** **3. THE CORPORATE MANAGER OF CATHOLIC SCHOOLS, BISHOP'S OFFICE, KOLLAM-691007.** **R1 & R2 BY GOVERNMENT PLEADER SRI.BIJU MEENATTOOR R3 BY ADV. SRI.JOHN JOSEPH VETTIKAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1602-2012, ALONG WITH WPC. 25436/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **STK** ## **WP(C).No. 15144 of 2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: TRUE COPY OF THE APPOINTMENT ORDER NO.1372/2007/ EDN. DATED 11-62007 ISSUED BY THE 3RD RESPONDENT.** - **P2: TRUE COPY OF THE APPOINTMENT ORDER NO.1372/2007/EDN. DATED 12-012007 ISSUED BY THE 3RD RESPONDENT.** - **P3: TRUE COPY OF THE LETTER DATED 15-01-2007 ISSUED BY THE GENERAL ` CORRESPONDENT OF THE 3RD RESPONDENT.** - **P4: TRUE COPY OF THE RELIEVING ORDER DATED 12-03-2007 ISSUED BY THE HEADMISTRESS, ST.ALOYSIUS'S HIGHER SECONDARY SCHOOL, KOLLAM.** - **P5: TRUE COPY KOF THE LETTER DATED 17-09-2007 OF THE 3RD RESPONDENT.** - **P6: TRUE COPY OF THE NOTIFICATION DATED NIL PUBLISHED BY THE 3RD RESPONDENT.** - **P7: TRUE COPY OF THE LIST OF TEACHERS PUBLISHED BY THE 3RD RESPONDENT DATED NIL.** - **P8: TRUE COPY OF THE PETITION DATED 24-05-2009 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **P9: TRUE COPY OF THE G.O.(P) NO.169/04/G.EDN. DATED 15-06-2004.** - **P10: TRUE COPY OF THE G.O.(p) NO.104/2008/G.EDN. DATED 10-06-2008.** - **P11: TRUE COPY OF THE LETTER NO.4-3813/09 DATED 26-06-2009 OF THE 2ND RESPONDENT.** - **P12: TRUE COPY OF G.O.() NO.10/10/G. EDN. DEPT. DATED 12.01.2010.** - **P13: TRUE COPY OF THE GOVERNMENT ORDER G.O.(P) NO.56/11/G.EDN. DPT. DATED 26-02-2011.** **ANNEXURE A: TRUE COPY OF LETTER NO.B3/3841/09 DATED 30-12-2009.** - **ANNEXURE A1:TRUE COPY OF THE ORDER DATED 15-03-2010 PASSED BY THIS HONOURABLE COURT IN IA.2685/2010 IN WP(C)NO.15144/2009.** - **ANNEXURE A2:TRUE COPY OF THE LETTER NO.A4-3530/2011 DATED 25-05-2011 OF THE DISTRICT EDUCATIONAL OFFICER, KOLLAM ALONG WITH ENCLOSURES.** - **ANNEXURE A3:TRUE COPY OF THE GOVERNMENT ORDER G.O.(P)NO.199/2011/G.EDN. DATED 01.10.2011.** **(...2)** ## **WP(C).No. 15144/2009** ## **:: 2 ::** ## **RESPONDENTS' EXHIBITS:** |**R3(A):**|**TRUE COPY OF THE APPOINTMENT ORDER ALONG WITH STATEMENT OF**| |---|---| ||**CHANGE OF STAFF DATED 9-1-2007 OF THE 3RD RESPONDENT AND**| ||**ORDER OF APPROVAL BY THE D E O, KOLLAM.**| |**R3(B):**|**TRUE COPY OF THE APPOINTMENT ORDER ALONG WITH STATEMENT OF**| ||**CHANGE OF STAFF DATED 11-06-2007 OF THE 3RD RESPONDENT AND**| ||**ORDER OF APPROVAL BY THE D E O, KOLLAM.**| |**R3(C):**|**TRUE COPY OF THE APPOINTMENT ORDER ALONG WITH STATEMENT OF**| ||**CHANGE OF STAFF DATED 17-09-2007 OF THE 3RD RESPONDENT AND**| ||**ORDER OF APPROVAL BY THE D E O, KOLLAM.**| |**R3(D):**|**TRUE COPY OF THE APPOINTMENT ORDER ALONG WITH STATEMENT OF**| ||**CHANGE OF STAFF DATED 12-01-2009 OF THE 3RD RESPONDENT AND**| ||**ORDER OF APPROVAL BY THE D E O, KOLLAM.**| **//TRUE COPY//** **P A TO JUDGE** **STK** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos. 15144/2009 & 25436/2009** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 16th day of February, 2012** ## **JUDGMENT** Both these writ petitions are filed by the same petitioner. The petitioner is seeking the benefit of Rule 51A of Chapter XIV-A K.E.R. based on the appointments made by the Manager in different leave vacancies. The appointments have been approved on daily wage basis. What stands in the way of getting the benefit of Rule 51A is the specific condition provided in Exts.P9 and P10 Government Orders. Therefore, the petitioner is challenging those orders also. 2. Heard learned counsel for the petitioner, learned counsel for the Manager and learned Government Pleader. 3. The petitioner's appointment as H.S.A. Social Science starts with the first spell of appointment from 9.1.2007 to 12.3.2007 (63 days), the second appointment from 11.6.2007 to 16.8.2007 (67 days), the third appointment as U.P.S.A. from 19.9.2007 to 2.11.2007 and the fourth appointment as H.S.A. Social Science from 12.1.2009 to 19.3.2009 (67 days). 4. Shri T.M. Abdul Latheef, learned counsel for the petitioner WPC.15144 & 25436 of 2009 2 submitted that a reading of Rule 51A will show that the same is not subject to Rule 7A(3) of the same Chapter. It is pointed out that the first proviso therein which requires a minimum continuous period of appointment of one year is applicable only as far as teachers relieved under Rules 49 and 52 are concerned and in respect of persons relieved on termination of vacancies, the first proviso will not apply. It is also submitted that the conditions provided under Exts.P9 and P10 Government Orders will directly go against the main part of Rule 51A of Chapter XIV-A K.E.R. In that context, learned counsel for the petitioner also invited my attention to the judgment of a Division Bench of this Court in W.A. No.140/2007, produced as Ext.P5 in W.P.(C) No.25436/2009. 5. Even though learned counsel for the petitioner heavily relied upon the judgment in W.A. No.140/2007, the circumstances therein are totally different. Therein, the appointment claimed was in the post of HSST. The petitioner was appointed during different spells of leave vacancies. Even though Rule 51A of Chapter XIV-A K.E.R. was not specifically made applicable to Higher Secondary School Teachers, this Court was of the view that the said principle could be adopted as far as the appointment in Higher Secondary Schools is concerned. This Court drew analogy as far as the relevant principles under the Kerala Education Rules and accordingly it WPC.15144 & 25436 of 2009 3 was held that if a person is thrown out from a post, owing to termination of vacancy, as soon as a vacancy arises, the said incumbent is entitled to be reappointed. This observation was heavily relied upon by Shri Latheef, learned counsel for the petitioner. Actually, the said judgment turned on the special facts of the case which have been discussed in paragraphs 1 to 3 therein. The petitioner therein had two spells of appointment as Higher Secondary School Teacher Junior (Sociology) and she was included in the select list prepared by the Management. According to the petitioner, to deny appointment to her, the Management delayed the filling up of the vacancy for enabling another candidate to become eligible. This was the circumstance under which this Court considered those aspects. The appointments made were on scales of pay. Herein, we are concerned with a case where Rule 7A(3) does not permit filling up of vacancy beyond a period of one year. This provision was introduced by amendment to the rule which is effective from 27.4.2005. The rule reads as follows: “(3) Vacancies, the duration of which is less than one academic year, shall not be filled up.” When in different schools vacancies arose for a period less than one academic year, to cater to the needs of the student community and to tide over the situation, the Government incorporated certain provisions in WPC.15144 & 25436 of 2009 4 Exts.P9 and P10 permitting appointment on daily wage basis. In fact, in paragraph 6 of Ext.P9 it was specifically made clear that “hereinafter the claim for re-appointment under rule 51A of the KER will be limited to those who have been appointed against regular/leave vacancies having a duration of not less than one academic year. The vacancies having duration of less than one academic year will be filled up on daily wage basis.” In the subsequent order, Ext.P10, para 6 reads as follows: “The claim under Rule 51A Chapter XIVA KER will not be admissible to those teachers appointed on daily wage basis.” There cannot be any dispute that daily wage appointment of the petitioner was also made relying upon this permission granted as per Exts.P9 and P10 and but for the permission, the appointment could not have been made since Rule 7A(3) acts as a prohibition to fill up those vacancies also. 6. It is the contention of the learned counsel for the petitioner that even if the petitioner is a beneficiary of Exts.P9 and P10 for getting the appointment, when Rule 51A only mentions about the relief on termination of vacancy, it is not specifically made in Rule 51A that daily wage appointee cannot get preference. By issuing such a circular, a restriction could not have been made. Therefore, the argument is that Exts.P9 and P10 Government Orders go directly against the main part of Rule 51A. WPC.15144 & 25436 of 2009 5 7. Learned counsel for the Manager, Shri John Joseph Vettikkad submitted that the issue is covered against the petitioner in the light of two Division Bench decisions of this Court, viz. **Abdurahiman v. Government of Kerala** (2009 (2) KLT 105) and **Bindu v. Joby Thomas** (2009 (2) KLT 178). Even though learned counsel for the petitioner Shri Latheef submitted that the issues were not considered therein, as the arguments were not specifically raised with regard to the right of daily wage appointees are concerned, a reading of the judgment in **Abdurahiman's case** (2009 (2) KLT 178) will show that the very same argument was raised therein also. In fact, the claimant therein was also a person appointed on daily wage basis. The argument was that there is nothing in the Act and the Rules which stands in the way of raising a claim under Rule 51A of Chapter XIV-A K.E.R. This was answered in para 7 of the judgment thus: “A valid appointment can be made only if the duration of the vacancy is one academic year. Sub-r.(3) of R.7A specifically states that a vacancy, duration of which is less than one academic year, shall not be filled up. So, the appointment of the appellant is not an appointment in terms of the K.E.R. But, the executive directions issued by the Director of Public Instruction permit appointment in short term vacancies in the interest of students, on daily wages basis and its approval for the limited purpose of WPC.15144 & 25436 of 2009 6 payment of salary to the incumbent concerned. But, such appointments do not have any statutory backing. Ext.P9 is a Circular issued by the Director of Public Instruction, concerning appointment of teachers on daily wage basis to short term vacancies. If the benefit of R.51A is to be claimed, the appointment should be one in accordance with the provisions in the K.E.R. In this case, the appointment being to a short term vacancy, which does not have the duration of one academic year, the appellant cannot claim any benefit under the K.E.R. for reappointment. Though R.51A does not mention about any duration of the previous appointment, what should be the minimum duration for claiming the benefit of R.51A is evident from R.7A. Therefore, the contention of the appellant that daily wage teachers are entitled to get preference in the matter of appointment cannot be accepted.” Reliance was placed on the earlier Bench decision in **Abdurahiman's case** (2009 (2) KLT 105). In fact in the said decision in para 14, it was held as follows: “Upto 25.6.2005, it was possible to appoint persons to vacancies having a duration not less than two months. Such appointees, on being relieved, were treated as 51A claimants also.” This finding also will go in a long way to address the argument raised by the learned counsel for the petitioner. After Rule 7A(3) was amended alone, the appointments herein were made by which the petitioner was WPC.15144 & 25436 of 2009 7 benefited. Therefore, whatever appointment gained by her are only because of the salutary provisions in Exts.P9 and P10. In fact, learned counsel for the petitioner submitted that in a later Government Order produced as Ext.P13, the Government has also scaled down the duration of appointment for the purpose of approval. In Ext.P13 it is stated that “the vacancies, the duration of which is 8 months or more, could also get approval on regular basis (on scale of pay).” For the purpose of deciding this case, I need not go into the details of the said Government Order, since the issue raised herein is covered against the petitioner in the light of the two decisions relied upon by the learned counsel for the Manager. 8. The Government also, in their counter counter affidavit has supported the interpretation placed by the Manager that daily wage appointment will not be covered under Rule 51A of Chapter XIV-A K.E.R. If at all they have to claim such a benefit, an amendment of Rule 51A is required. In the absence of any amendment, this Court cannot read into the rule, the benefit that is claimed by the learned counsel for the petitioner. For all these reasons, the contentions raised by the learned counsel for the petitioner cannot be accepted and therefore the writ petitions do not deserve any merit. Learned counsel for the petitioner submitted that the petitioner has already filed a representation to get the benefit of Annexure WPC.15144 & 25436 of 2009 8 A3, viz.G.O.(P) No.199/2011/G.Edn. dated 1.10.2011 (Teachers Package Order) and the dismissal of the writ petitions may not stand in the way of the competent authority considering her claim. Since it is a scheme framed by the Government, the petitioner will have to move the Government itself for claiming such a benefit. The writ petitions are dismissed. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**