Ruby Georg v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932** **WP(C).No. 4681 of 2010(I)** **-----------------------------------** **PETITIONER(S):** **----------------------** **RUBY GEORG, W/O. MICHAEL, L.P.S.A., ST.JOHNS U.P.S., KALLOOR, MOOVATTUPUZHA, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF KOTHAMANGALAM, RESIDING AT PAADAVIL, KALLOOR.P.O., KALLOORKAD, MOOVATTUPUZHA, ERNAKULAM DISTRICT.** **BY ADV. SRI.B.MOHANLAL** **RESPONDENT(S):** - **-------------------------** **1. STATE OF KERALA, REPSENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE ASSISTANT EDUCATIONAL OFFICER, KALLOORKAD, MOOVATTUPUZHA, ERNAKULAM.** **3. THE ASSISTANT EDUCATIONAL OFFICER, THODUPUZHA.** **4. THE MANAGER, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF KOTHAMANGALAM, BISHOPS HOUSE, KOTHAMANGALAM.** **R1 TO R3 BY GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/6/2010, THE COURT ON 1/11/2010, THE DELIVERED THE FOLLOWING:** **sts** ## **C.T.RAVIKUMAR, J.** --------------------------------------W.P(C)No.4681 of 2010 ---------------------------------------Dated 1[st] November, 2010 ## **JUDGMENT** This writ petition is filed challenging Exts.P2 to P11 and P13 orders and praying for consequential reliefs. The petitioner who possessed the prescribed qualification for appointment to the post of Lower Primary School Assistant (for short `LPSA') was appointed, as such, under the fourth respondent Corporate Educational Agency as per Ext.P1. The said appointment was against a leave vacancy for the period from 20.9.2004 to 23.3.2005. The second respondent approved the said appointment as per Ext.P2 order dated 7.12.2005 on daily wage basis. Thereafter, the petitioner was appointed for different spells in different schools under the fourth respondent Corporate Educational Agency and those appointments were also approved on daily wage basis as per Exts.P3 to P8 orders. It was in terms of Exts.P9 and P10 Government orders and Ext.P11 circular by the Director of Public Instruction dated 31.8.2005 issued in terms of Exts.P9 and P10 that those appointments came to be approved only on daily wage basis. The last of such appointments covered as per Ext.P8 was for the period from 15.1.2007 to 22.3.2007. Exts.P9 and P10 orders and P11 circular were issued WP(C).No.4681/2010 2 respectively on 15.6.2004, 1.1.2005 and 31.8.2005. Later, the petitioner filed Ext.P12 representation dated 29.10.2007 before the Assistant Educational Officer, Kalloorkad - the second respondent requesting to approve the appointment made as per Ext.P1 from 20.9.2004 to 23.3.2005 which was approved as per Ext.P2 on daily wage basis, as one on regular basis and in the scale of pay attached to the post of Lower Primary School Assistant and further to declare, based on such approval, that the petitioner is entitled to claim the benefit under Rule 51A of Chapter XIV-A of the Kerala Education Rules. It was stated thereunder that the amendment was brought into the relevant provisions under Chapter XIV-A of the Kerala Education Rules only as per G.O.(P) No.121/05/G.Edn. dated 16.4.2005 and since her appointment as per Ext.P1 was effected prior to the said Government order her appointment should have been approved on regular basis on the scale of pay attached to the post of LPSA. However, Ext.P12 representation was rejected by the second respondent - Assistant Educational Officer as per Ext.P13 order dated 15.5.2008. This writ petition has been filed in the said circumstances challenging Exts.P2 to P11 and P13 relying on the decision of this Court in _**Abdurahiman**_ v. _**Government of Kerala**_ (2009 (2) KLT 105). WP(C).No.4681/2010 3 2. Exts.P2 P11 and P13 are assailed on several grounds. Firstly, on the ground that the said orders and circular are unsustainable in the light of the decision of this Court in _**Abdurahiman**_ 's case (supra). According to the petitioner, she is similarly situated to the petitioner in the said writ petition. The contention of the petitioner is that it will be a futile exercise to file appeal challenging the aforesaid orders especially in the light of the judgment in W.P.(C)No.31924 of 2005 dated 12.10.2006. It is further contended that based on the said decision, as per Ext.P14 judgment this Court has disposed of W.P.(C)No.35341 of 2007 directing the concerned Educational Officer to pass fresh orders. 3. Essentially, the contention of the petitioner is that the amendment brought into Rule 7A and Rule 51A of Chapter XIV-A of the Kerala Education Rules (for short `KER') could not be pressed into service with retrospective effect. In other words, according to the petitioner, all appointments effected prior to the said amendments cannot be affected at all by the aforesaid amendments. In other words, the right accrued to persons on the strength of unamended provisions could not have been and should not have been taken away by subsequent amendments which do have only prospective effect. It is, in fact, to drive home the said point that the petitioner has placed reliance on the judgment of this Court WP(C).No.4681/2010 4 in _**Abdurahiman**_ 's case (supra). To canvass the point that the petitioner shall not be relegated to the statutory remedy in view of the factual background of the case she has placed reliance on the decision of this Court in _**Sunu**_ v. _**Union of India**_ (2000 (2) KLT 747). 4. The sum and substance of the contentions of the petitioner is that as her initial appointment as per Ext.P1 which was approved by Ext.P2 was for a period from 20.9.2004 to 23.3.2005 and as Rule 7A and Rule 51A of Chapter XIV-A of the KER were amended only subsequently, that too, only with prospective effect, there is no reason for refusing to recognize Rule 51-A claim under Chapter XIV-A of the KER of the petitioner. It is contended that in the light of the decision in _**Abdurahiman**_ 's case (supra) she is entitled to be treated as a Rule 51A claimant and eligible for consequential benefits. True that, this Court in _**Abdurahiman**_ 's case (supra) after considering the unamended and amended provisions under Rule 51A of Chapter XIV-A of the KER held that appointments made prior to the amendments would not be affected by such amendments and the rights accrued under the unamended provisions would be protected under Rule 51A. In that context, it is to be noted that prior to the amendment to Rule 7A appointments could have been made against vacancies having duration of at least two months. 5 WP(C).No.4681/2010 However, as per the amended provisions under Rule 7A appointments could be effected only if vacancies arise for at least one academic year. As noticed earlier, the initial appointment of the petitioner made as per Ext.P1 and approved as per Ext.P2 was for a period in excess of two months but below one academic year. In short, the contention of the petitioner is that the said appointment made as per Ext.P1 should have been approved as a regular one and it should have been effected in the time scale attached to the post of LPSA. According to the petitioner, Exts.P2 to P11 and P13 are unsustainable. 5. At the first instant it would appear that the case of the petitioner is squarely covered by the decision of this Court in _**Abdurahiman**_ 's case (supra). A perusal of the said judgment would reveal that the petitioner thereunder had been diligently prosecuting his case. He had taken up grievances before the statutory authorities and after exhausting of all such remedies he had approached this Court without any delay or laches. In this context, it is to be noted that when this matter came up before this Court for admission on 15.2.2010, a learned Judge of this Court passed an order as hereunder:- _“The petitioner challenges Exts.P2, P8 and P13 orders in this writ petition. Ext.P13 final order is dated 15.5.2008. The petitioner has not offered any explanation for the long delay of almost two years in_ WP(C).No.4681/2010 6 _challenging Ext.P13. The petitioner seeks time to file an affidavit explaining the delay.”_ I may hasten to add in this context that the petitioner is also liable to explain delay for not diligently pursuing the grievance, if any, based on the appointment made as per Ext.P1 which was approved only on daily wage basis as per Ext.P2 order dated 7.12.2005. This is because, admittedly, the petitioner is now, relying on the appointment made as per Ext.P1 for the period from 20.9.2004 to 23.3.2005 as the basis for the present claim. Ext.P1 is dated 20.9.2004. 6. Evidently, the prayer of the petitioner is that the appointment made as per Ext.P1 for a period from 20.9.2004 to 23.3.2005 should not have been approved only on daily wage basis and instead it should have been approved as on regular basis, that too in the time scale attached to the post of LPSA. The contention is that such an approval would have fetched him a claim under Rule 51A of Chapter XIVA of the KER for appointment against the future vacancies occur/occurred under any of the schools belonging to the fourth respondent Corporate Educational Agency. However, by making the approval only on daily wage basis against the provisions under Rule 7A and Rule 51A of Chapter XIVA the second respondent has committed an illegality and therefore, the said order passed in terms of Exts.P9 to P12 is liable to be set aside, WP(C).No.4681/2010 7 it is contended. Ext.P13 is also liable to be interfered with. 7. As already noticed, evidently, the petitioner in _**Abdurahiman**_ 's case (supra) was diligently prosecuting his case. A person who is diligently prosecuting his case and a person who deliberately failed to prosecute his case have to be distinguished. Persons belonging to the latter category are not legally entitled to claim the benefit of the previous judgment and such claims are liable to be declined on the ground of delay and laches (See the decision in _**State of Kerala**_ v. _**Thirumeni**_ (2007 (4) KLT 938)). In the decision in _**Ajayan**_ v. _**State of Kerala**_ (2006 (3) KLT 854) this Court held that those who have not challenged the impugned action even if similarly placed, will not be entitled to the benefits as they have slept over their rights. In this case, by virtue of the order dated 15.2.2010, referred above, I am bound to consider those aspects. In this case, the initial appointment for the period from 20.9.2004 to 23.3.2005, based on which the petitioner raised the present claim, was made as per Ext.P1 order dated 20.9.2004 and the same was approved on daily wage basis as per Ext.P2 order dated 7.12.2005. The petitioner did not have a case that appointments approved only on daily wage basis would confer the benefit of a claim under Rule 51A of Chapter XIVA of the KER. In fact, he is indirectly WP(C).No.4681/2010 8 admitting the said position lest he would not have made the prayer to quash Exts.P1 to P8 and P13 to the extent it approved the appointment of the petitioner on daily wage basis and to quash Exts.P8 to P11 orders. In fact, the petitioner did not raise any grievance against the same till the date of Ext.P12. Ext.P12 is dated 29.10.2007. It was in the said context the petitioner is liable to explain the delay as ordered on 15.2.2010. In fact, the order on Ext.P12 viz., Ext.P13 was issued on 15.5.2008. Even then the petitioner has chosen to challenge the same only in 2010. Subsequently, the petitioner has filed affidavits on 16.5.2010 and then on 27.5.2010. I do not propose to consider the question as to whether the delay was sufficiently explained or not for the reason that the orders impugned herein are appealable. Of course, to sustain the appeal the petitioner has to explain the delay and it could be entertained only in case the delay could be condoned in accordance with the provisions of the Act and Rules. The petitioner cannot bypass the statutory provisions and also get over the period of limitation by relying on the decision and straight away seeking reliefs from this Court. On account of the lapses on the part of the petitioner in challenging the orders in Ext.P2 and on account of the efflux of time some others must have accrued certain rights. Without looking into such aspects merely because the petitioner is having a WP(C).No.4681/2010 9 similar grievance as that of the petitioner in the decision in _**Abdurahiman**_ 's case (supra) this Court cannot entertain this writ petition accepting the contention of the petitioner that in the light of the said decision and by virtue of Exts.P2 to P8 and P9 to P11 it would be a futile exercise to prefer an appeal against the impugned order approving the appointment of the petitioner on daily wage basis. In view of the above discussion, I am of the view that this Court should decline jurisdiction at this stage on account of the fact that statutory remedies are available against the impugned orders. Therefore, this writ petition is disposed of with the observation that the petitioner has to avail the statutory remedy to assail the impugned orders, in accordance with law. C.T.RAVIKUMAR Judge TKS