Rekha Leela Lukose v. State of Kerala & Others; Richa Lambai v. State of Kerala & Others (WP(C).Nos.21743/17 & 3601/19)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 01ST DAY OF AUGUST 2019 / 10TH SRAVANA, 1941** ## **WP(C).No.21743 OF 2017(P)** ## **PETITIONER:** **REKHA LEELA LUKOSE AGED 34 YEARS, D/O LUKOSE, PUTHENKULAM HOUSE, NEYYASSERY P.O., THODUPUZHA, IDUKKI DISTRICT PIN-685581.** **BY ADVS. SRI.M.R.HARIRAJ SMT.G.BINDU SRI.M.V.BALAGOPAL SRI.P.A.KUMARAN SRI.K.RAJAGOPAL** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM 695001.** - **2 DIRECTOR OF HIGHER SECONDARY EDUCATION HOUSING BOARD BUILDINGS, SANTHINAGAR,THIRUVANANTHAPURAM 695001.** - **3 DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM 695001.** - **4 REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, KOTTAYAM. 686001.** **5 MANAGER CORPORATE EDUCATIONAL AGENCY OF KOTHAMANGALAM DIOCESE,BISHOP'S HOUSE, KOTHAMANGALAM P.O., KOTHAMANGALAM 686691.** W.P.(C).Nos.21743/17 & 3601/19 2 - **6 MANAGER CORPORATE EDUCATIONAL AGENCY OF IDUKKI DIOCESE,BISHOP'S HOUSE, KAIMBAN, IDUKKI DISTRICT-685602.** - **7 SIBI JOHN HSST JUNIOR (COMPUTER SCIENCE), ST.SEBASTINE HSS, VAZHITHALA, IDUKKI-685583.** **BY ADVS. GOVERNMENT PLEADER SRI.S.A.ANAND SMT.L.ANNAPOORNA SMT.B.ANANJANA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.K.N.REMYA SMT.N.SANTHA SRI.V.VARGHESE SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.S.P.ARAVINDAKSHAN PILLAY SRI.P.C.SASIDHARAN** ## **OTHER PRESENT:** ## **RON BASTIAN GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-06-2019, ALONG WITH WP(C).3601/2019(A), THE COURT ON 0108-2019 DELIVERED THE FOLLOWING:** W.P.(C).Nos.21743/17 & 3601/19 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 01ST DAY OF AUGUST 2019 / 10TH SRAVANA, 1941** ## **WP(C).No.3601 OF 2019(A)** ## **PETITIONER:** **RICHA LAMBAI, AGED 32 YEARS W/O.DEEPU SEBASTIAN, HSST (PHYSICS) ON GUEST BASIS, EMPLOYED AT ST.MARY'S HSS ARAKUZHA, RESIDING AT URUMBIL HOUSE, KAVAKADU P.O., KALLOORKAD, ERNAKULAM- 686668.** **BY ADVS. SRI.M.R.HARIRAJ SRI.K.RAJAGOPAL LAKSHMI OMANAKUTTAN** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM- 695001.** - **2 DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHINAGAR, THIRUVANANTHAPURAM- 695001.** - **3 DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM- 695001.** W.P.(C).Nos.21743/17 & 3601/19 4 - **4 REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, KOTTAYAM-686001.** - **5 MANAGER,** - **CORPORATE EDUCATIONAL AGENCY OF KOTHAMANGALAM DIOCESE, BISHOP'S HOUSE, KOTHAMANGALAM P.O., KOTHAMANGALAM- 686691.** - **6 MANAGER, CORPORATE EDUCATIONAL AGENCY OF IDUKKI DIOCESE, BISHOP'S HOUSE, KAIMBAN, IDUKKI DISTRICT685602.** - **7 JOHNSON JOSEPH HSST ST. THOMAS HSS THANKAMANI, IDUKKI.** - **8 REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, ERNAKULAM.** **BY ADVS. SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SHRI.VISHNU V.K. KUM.ABHIRAMI K. UDAY SRI.V.A.MUHAMMED SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2406-2019, ALONG WITH WP(C).21743/2017(P), THE COURT ON 0108-2019 DELIVERED THE FOLLOWING:** W.P.(C).Nos.21743/17 & 3601/19 5 ## **JUDGMENT** 1.Petitioners in these writ petitions, who are teachers appointed in short term vacancies in the schools under the Kothamangalam Diocese after the bifurcation of the erstwhile corporate management with effect from 07.01.2004, are before this Court challenging the transfers made by the management of teachers, who had submitted options in terms of the bifurcation order to come over to vacancies arisen in Higher Secondary Schools under the Kothamangalam diocese out of the posts that existed as on 7.01.2004. 2. The learned counsel for the petitioner submits that in the case of the petitioner in W.P.(C).No.21743 of 2017, the petitioner had worked from 2009 to 2011 and later from 2012 to 2017 against leave vacancies. It is stated that the said appointments of the petitioner had been duly approved. Relying on Exhibits P6 and P8 judgments, this Court in earlier writ petitions with regard to the claim of persons working under the Idukki Diocese for transfer to vacancies which arise in schools under W.P.(C).Nos.21743/17 & 3601/19 6 Kothamangalam diocese, the learned counsel for the petitioner would contend that this Court had held that such claim for transfer cannot operate in perpetuity. It is stated that this Court had held that teachers working under one management after bifurcation cannot assert their rights to seniority and an option to be considered against vacancies which arise under the other corporate educational agency in perpetuity. It is stated that the Government Order which had held that all vacancies arising in the Kothamangalam Diocese are liable to be filled up by transferees from the Idukki Diocese had been set aside by this Court and it had been held that such a provision cannot operate to the detriment of claimants under the Rules. 3. It is stated that the petitioners herein are persons who have a statutory claim which has been held to be in existence, at least in principle, in respect of Higher Secondary Schools as well. It is, therefore, contended that the respondents have erred in transferring teachers from the Diocese of Idukki to newly W.P.(C).Nos.21743/17 & 3601/19 7 existing vacancies under the Kothamangalam Diocese so as to deny the claims of the petitioners. 4. In W.P.(C).No.3601 of 2019, the petitioner is a person, who has worked against a leave vacancy from 2014 to 2018 and the said appointment was approved. It is stated that the petitioner had been thrown out when the teacher, who had availed leave, returned from leave. Immediately thereafter, the said teacher submitted a resignation which was accepted. However, the resultant vacancy was filled up not by appointing the petitioner, who is a Rule 51A claimant, but by appointing the 7[th] respondent, who was a teacher working under the Diocese of Idukki who had submitted an option for transfer to Kothamangalam Diocese. 5. A detailed counter affidavit has been placed on record in W.P. (C).No.21743/2017 by the Educational agency, the Kothamangalam Diocese. It is contended that the issue raised in this writ petition is clearly with regard to the validity of W.P.(C).Nos.21743/17 & 3601/19 8 Exhibit P4 order. It is stated that Exhibit P4 order dated 23.8.2012 had been specifically upheld in Exhibit P6 judgment. It is stated that it was Exhibit P5 Government Order, which was Exhibit P6 therein that had been set aside by this Court in Exhibit P6 judgment. Exhibit P4 order dated 238-2012 (Exhibit P4 herein as well) was found to be in consonance with Exhibit P1 order. The writ petitions were, therefore, allowed quashing the Government Order dated 30.08.2013. 6. It is further contended that the petitioner's claim had been duly considered by the Regional Deputy Director of Higher Secondary Education in Exhibit P17. The parties had been heard and their entire contentions had been considered in detail. It is stated that the claim raised by the petitioner under Rule 51A of Chapter XIVA KER is not sustainable in view of the fact that Chapter XXXII dealing with appointment and conditions of service of Higher Secondary School teachers specifically lacks such a provision. It is also contended that in W.P.(C).Nos.21743/17 & 3601/19 9 view of Exhibit P4 order of the Director of Higher Secondary Education, all vacancies that arise in Higher Secondary Schools under the Kothamangalam Diocese out of the posts created in the schools that existed as on 7.1.2004 due to death, resignation or retirement are to be filled up by transferring teachers from the schools in the Corporate Educational Agency, Idukki. It is stated that the optees are not eligible to claim transfer to the post that has been created in the schools in which additional batches are sanctioned after 7.1.2004. It is, therefore, contended that since admittedly the vacancies arising in both these cases are in posts, which existed as on 7.1.2004 and have arisen on death,retirement or resignation of incumbents holding such posts, the optees are entitled to such posts as is provided in Exhibit P4 itself. It is stated that this Court in Exhibits P6 and P8 judgments had specifically approved Exhibit P4 and had not interfered with the same, and as such, the petitioners can have no claim as against such post. It is stated that the petitioner in W.P. (C).No.21743 of 2017 has been accommodated against a fresh W.P.(C).Nos.21743/17 & 3601/19 10 division vacancy as HSST Junior (Computer Science) in the SGHSS, Muthalakodam from 18-12-2017 onwards. It is stated that the proposal for approval has been sent up to the Regional Deputy Director and the issue can be resolved if the said appointment is approved. - 7.It is stated that with respect to the petitioner in W.P. (C).No.3601 of 2019, the prayers sought for cannot be allowed and the petitioner at best would have a claim only against fresh division vacancy or a vacancy arising in schools in which additional batches are sanctioned after 7.1.2004. 8. The 6[th] respondent and the contesting party respondents have also placed counter affidavits on record reiterating the contentions raised by the 5[th] respondent Corporate Education Agency. 9. The learned counsel for the petitioner would place reliance on a decision of this Court in **Jayasree T v. Director of** W.P.(C).Nos.21743/17 & 3601/19 11 **Higher Secondary Education** [2009 (2) KLT 352] to contend that though Rule 51A Chapter XIVA KER has not been specifically made applicable in the case of Higher Secondary School teachers, this Court had declared that the absence of the express provision in Chapter XXXII concerning reappointment could not stand in the way of the principle being applied and reappointments being made in terms thereof. Relying on a decision of the Apex Court in **Ghaziabad Development Authority and others v. Sri.Vikram Chaudary and others** [AIR 1995 SC 2325], learned counsel would contend that the principle of granting reappointment to thrown out temporary employees or leave substitutes is consistent with the well- established principles of natural justice and equity, Justice and good conscious and such aspects should be borne in mind, while considering the claim of the petitioners. 10.The learned counsel appearing for the 5[th] respondent would place reliance on a decision of another Division Bench of this W.P.(C).Nos.21743/17 & 3601/19 12 Court in **Valsa P v. Sujamol S and others** [2017 (5) KHC 513] to contend that the proposition laid down in **T Jayasree's** case (supra) has been held to be not good law. It is contended that **T Jayasree's** case (supra) does not conclusively lay down the law and issue is still _res integra_ . 11.The learned counsel appearing for 7[th] respondent W.P.(C).No. 21743 of 2017 would contend that going by the provisions of Exhibit P4, the 7[th] respondent, who was an optee for Kothamangalam had been working in the Diocese of Idukki, is entitled to be appointed against resignation vacancy, since the vacancy arose in respect of a post which was in existence as on 7.1.2004. 12.The learned counsel for the 7[th] respondent in W.P. (C).No.3601/2019 also contends that the 7[th] respondent had been service from 1.9.1998 and was working in a school under the Idukki Diocese. It is stated that on the strength of an option submitted by him well in time, he had been posted by W.P.(C).Nos.21743/17 & 3601/19 13 transfer as against the resignation vacancy which is in terms of Exhibit P4. 13.I have considered the contentions advanced on all sides at considerable length. It is clear that Exhibit P4 order issued by the Director of Higher Secondary Education has been upheld by this Court in Exhibit P6 judgment. The order specifically provides that optees will have a right for transfer to vacancies arising by death, retirement or resignation in respect of posts which were in existence as on 7.1.2004. It is not in dispute before me that in the instant case the post to which the petitioner seeks reappointment by operation of the principle underlying Rule 51A of Chapter XIVA KER are posts which were in existence as on 7.1.2004. As such, the vacancies arising by death, resignation or retirement are liable to be filled up by optees in terms of Exhibit P6 order. The contention raised by the petitioners on the strength of their prior approved appointments cannot therefore militate as against the right of the optees which W.P.(C).Nos.21743/17 & 3601/19 14 has been confirmed by this Court in Exhibit P6 and P8 judgments. The writ petitions, accordingly, fail and the same stand dismissed. However, the claim of the petitioner in W.P. (C).No.21743/2017 for a consideration of the approval for appointment by Exhibit P18 order shall be taken up by the respondents and decided without delay. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).Nos.21743/17 & 3601/19 15 ## **APPENDIX OF WP(C) 21743/2017** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PROCEEDINGS NO.EM(4) 61419/2003/DPI DATED 7.1.2004.** **EXHIBIT P2 A TRUE COPY OF THE ORDER NO.A2/10099/RDDE/09 DATED 14.12.2009 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P3 A TRUE COPY OF THE ORDER NO.A5/11776/RDDE/HSE/2013 DATED 31.1.2013 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P4 A TRUE COPY OF THE ORDER NO.ACD.SPC.IV/22977/HSE/2012 DATED 23.8.2012 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE GO RT.NO.3589/2013/G.EDN. DATED 30.8.2013 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED 09.12.2015 IN WP(C)NO.27822/2013. EXHIBIT P7 A TRUE COPY OF THE MEMORANDUM OF WRIT APPEAL FILED BY THE 7TH RESPONDENT.** **EXHIBIT P8 A TRUE COPY OF JUDGMENT DATED 24.02.2016 IN W.A.NO. 359/2016 OF THIS HONOURABLE COURT.** **EXHIBIT P9 TRUE COPY OF ORDER NO.ACD.B1/51047/2016/HSE DATED 10.01.2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P10 A TRUE COPY OF APPOINTMENT ORDER DATED 01.02.2017 ALONG WITH THE STATEMENT OF CHANGE OF STAFF AND REQUEST FOR APPROVAL.** W.P.(C).Nos.21743/17 & 3601/19 16 - **EXHIBIT P11** - **A TRUE COPY OF THE REPRESENTATION DATED 02.03.2017 BEFORE THE FIFTH RESPONDENT.** - **EXHIBIT P12** **A TRUE COPY OF THE REPRESENTATION DATED 3.3.2017 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P13 A TRUE COPY OF THE REPRESENTATION DATED 09.03.2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P14 A TRUE COPY OF THE HEARING NOTICE NO.A3/2105/2017 DATED 19.4.2017 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT P15 A TRUE COPY OF THE PETITIONER SUBMITTED A DETAILED HEARING NOTE DATED 26.4.2017.** - **EXHIBIT P16 A TRUE COPY OF THE ORDER NO.ACD.B1/68921/2017/HSE DATED 5.5.2017.** - **EXHIBIT P17 A TRUE COPY OF THE ORDER NO.A3/2105/RDD/HSD/2017 DATED 15.5.2017.** - **EXHIBIT P18 TRUE COPY OF THE LETTER NO.CS/89/17/HSE DATED 18/12/2017.** - **EXHIBIT P19 TRUE COPY OF THE CIRCULAR NO.2028119/T1/2017/G.EDN. DATED 30/01/2018.** - **RESPONDENT'S EXHIBITS:** **EXHIBIT R6(A)** TRUE COPY OF THE ORDER NO. CS.33/2017/HSE DATED 28-02-2017 OF THE SECRETARY, CORPORATE EDUCATIONAL AGENCY OF THE DIOCESE OF KOTHAMANGALAM. **EXHIBIT R7(A)** TRUE COPY OF THE COMMUNICATION DATED 1407-2014 W.P.(C).Nos.21743/17 & 3601/19 17 ## **APPENDIX OF WP(C) 3601/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PROCEEDINGS NO.EM(4) 61419/2003/DPI DATED 07.01.2004. EXHIBIT P2 A TRUE COPY OF ORDER NO.B1/1387/14/RDD/HSE DATED 17.07.2015. EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED 19.12.2018 SUBMITTED BY THE APPLICANT. EXHIBIT P4 A TRUE COPY OF THE ORDER NO.ADC.SPC.IV/22977/HSE/2012 DATED 23.08.2012 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE GO RT.NO.3589/2013/G.EDN. DATED 30.08.2013 ISSUED BY THE FIRST RESPONDENT. EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED 09.12.2015 IN WP(C)NO.27822/2013. EXHIBIT P7 A TRUE COPY OF JUDGMENT DATED 24.02.2016 IN W.A.NO.359/2016 OF THIS HONOURABLE COURT. EXHIBIT P8 TRUE COPY OF ORDER NO.ACD.B1/51047/2016/HSE DATED 10.01.2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P9 A TRUE COPY OF THE ORDER NO.ACD.B1/68921/2017/HSE DATED 05.05.2017. EXHIBIT P10 A TRUE COPY NO.2028119/T1/2017/GED DATED 30.01.2018 ISSUED BY FIRST RESPONDENT.** W.P.(C).Nos.21743/17 & 3601/19 18 **RESPONDENT'S/S EXHIBITS: EXHIBIT R7 A TRUE COPY OF THE LETTER DATED 02.03.2013 EXHIBIT R7 (B) TRUE COPY OF THE REPORT DRAWN UP BY THE GOVERNMENT** **EXHIBIT R7(C) TRUE COPY OF THE OPTION STATEMENT DATED 15.09.2003** True copy PS to Judge