Ruby George v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933** **WP(C).No. 15684 of 2011(I)** **-------------------------------------** ## **PETITIONER(S):** - **---------------------** **RUBY GEORGE, W/O.MICHAEAL, L.P.S.A ST.JOHNS U.P.S, KALLOOR, MOOVATTUPUZHA, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF KOTHAMANGALAM,RESIDING AT PADAVIL, KALOOR PO KALLOORKAD, MOOVATTUPUZHA, ERNAKULAM DISTRICT.** **BY ADVS. SRI.B.MOHANLAL SMT.P.S.PREETHA SRI.SAIJU S. SRI.T.PRASAD** ## **RESPONDENT(S):** **------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM PIN - 695 001.** **2. THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA, ERNAKULAM DISTRICT PIN- 686 661.** **3. THE DISTRICT EDUCATIONAL OFFICER, THODUPUZHA, IDUKKI DISTRICT, PIN- 685 584.** **4. THE ASSISTANT EDUCATIONAL OFFICER, KALLOORKAD PO, MOOVATTUPUZHA, ERNAKULAM PIN- 686 668.** **5. THE ASSISTANT EDUCATIONAL OFFICER, THODUPUZHA, ERNAKULAM DISTRICT PIN- 685 584.** **6. THE MANAGER, CORPORATE EDUCATIONAL AGENCY DIOCESE OF KOTHAMANGALAM BISHOPS HOUSE, KOTHAMANGALAM P.O,ERNAKULAM DISTRICT PIN- 686 691.** - **R1 TO R5 BY GOVT. PLEADER SMT.NISHA BOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AV** ## **WPC.NO.15684/2011** ## **APPENDIX** - **P1 : COPY OF THE APPOINTMENT ORDER DATED 20.09.2004 ISSUED BY THE 6TH RESPONDENT.** - **P2 : COPY OF THE APPROVAL ORDER NO.C/2395/2005/K.DIS. DATED 07.12.2005 ISSUED BY THE 4TH RESPONDENT.** - **P3 : COPY OF THE APPROVAL ORDER NO.C/1508/05/K.DIS. DATED 05.12.2005 ISSUED BY THE 4TH RESPONDENT.** - **P4 : COPY OF THE APPOINTMENT AND ITS APPROVAL ORDER NO.K.DIS.5633/05/F. DATED 19.12.2005 ISSUED BY THE 5TH RESPONDENT.** - **P5 : COPY OF THE APPOINTMENT AND ITS APPROVAL ORDER NO.K.DIS.534/06/F. DATED 04.03.2006 ISSUED BY THE 5TH RESPONDENT.** - **P6 : COPY OF THE APPOINTMENT AND ITS APPROVAL ORDER NO.K.DIS.3086/06/F. DATED 23.08.2006 ISSUED BY THE 5TH RESPONDENT.** - **P7 : COPY OF THE APPOINTMENT AND ITS APPROVAL ORDER NO.F/1182/09/K.DIS DATED 06.03.2009 ISSUED BY THE 5TH RESPONDENT.** - **P8 : COPY OF THE APPOINTMENT AND ITS APPROVAL ORDER NO.K.DIS./483/07/C DATED 02.02.2007 ISSUED BY THE 5TH RESPONDENT.** - **P9 : COPY OF THE G.O.(P)NO.169/2004/G.EDN. DATED 15.06.2004 ISSUED BY THE 1ST RESPONDENT.** - **P10 : COPY OF THE G.O.(P)NO.1/2005/G.EDN. DATED 01.01.2005 ISSUED BY THE 1ST RESPONDENT.** - **P11 : COPY OF THE CIRCULAR NO.H2/91954/2005 DATED 31.08.2005 ISSUED BY THE D.P.I.** - **P12 : COPY OF THE REPRESENTATION DATED 29.10.2007 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** - **P13 : COPY OF THE ORDER NO.C-2772/07/L.DIS. DATED 15.05.2008 ISSUED BY THE A.E.O., KALLOORKKAD.** - **P14 : COPY OF THE ORDER NO.B6.1620/09/K.DIS. DATED 05.09.2009 OF THE 2ND RESPONDENT.** - **P15 : COPY OF THE ORDER NO.K.DIS./F5/9398/2010/DPI DATED 10.03.2010 OF THE D.P.I., THIRUVANANTHAPURAM.** - **P16 : COPY OF THE ORDER NO.B6/535/10 DATED 31.03.2011 OF THE 2ND RESPONDENT.** - **P17 : COPY OF THE ORDER NO.B1/451/11 DATED 19.04.2011 OF THE 3RD RESPONDENT.** - **P18 : COPY OF THE JUDGMENT IN W.P.(C)NO.35341/2007 DATED 04.06.2009 OF THE HON'BLE HIGH COURT.** ## **AV** ## **WPC.NO.15684/2011** ## **RESPONDENT'S EXHIBITS :** **R5(a) : COPY OF THE APPOINTMENT ORDER DATED 06.06.2006.** **/TRUE COPY/** **P.A TO JUDGE** ## **AV** ``` T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.15684/2011-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ th Dated this the 14 day of November, 2011 ``` ``` J U D G M E N T ``` ``` The petitioner who is working as Lower Primary School Assistant in St.Johns U.P. School, Kalloor, Moovattupuzha is aggrieved by various orders, namely, Exts.P2 to P8 and P13 to P17 concerning the approval of appointments during different spells on daily wage basis only. ``` ``` 2.The learned counsel for the petitioner submitted that the petitioner's case is covered in the light of the decision of a Division Bench of this Court in Abdurahimanv. Government of Kerala[2009(2) KLT 105 which was relied upon by this Court, in Ext.P18 Judgment in W.P.(C).No.35341/2007, in the case of a teacher who is senior to the petitioner in the same school. The first appointment of the petitioner is for the period from 20/09/2004 to 23/03/2005 covered by Ext.P1 appointment order. The said appointment was approved by Ext.P2 order dated 07/12/2005 on daily wage basis and on condition that the appointee has no claim ``` ## **W.P.(C). No.15684/2011** ## **-:2:-** ``` for future appointment under Rule 51A of Chapter XIV A Kerala Education Rules. The petitioner was again appointed in L.F.L.P.S., Thazhuvamkunnu by the same management for the period from 09/06/2005 to 05/09/2005 and Ext.P3 is the order granting approval. Ext.P4 is the order granting approval for the appointment during the period from 06/10/2005 to 06/12/2005. The details of the subsequent appointments as well as the orders, granted by the authorities, have been produced by the petitioner as Exts.P5 to P8. Exts.P9 and P10 are copies of Government Orders dated 15/06/2004 and 01/01/2005 and, Ext.P11 is a Circular issued by the Director of Public Instruction dated 31/08/2005. ``` ``` 3.The only question therefore, arising for consideration is whether the restriction put in the order of approval Ext.P2 can be sustained in the light of the dictum laid down in Abdurahiman's case [2009(2) KLT 105]. This Court therein has considered various aspects and has held thus in para.14:- ``` **“14. .............. Up to 25.6.2005, it** **was possible to appoint persons to vacancies** ## **W.P.(C). No.15684/2011** ## **-:3:-** **having a duration not less than two months. Such appointees, on being relieved, were treated as 51A claimants also. Even in the absence of any such rule, it is a well recognised principle in Industrial Jurisprudence that a person retrenched from service should be preferred, when vacancy arises in future. Earlier, it was thought that the said benefit flowing from Chap. VA of the Industrial Disputes Act in favour of the workmen was available only if retrenchment is made after working for 240 days. The said concept has been knocked down by the judgment of the Division Bench of this Court in** _**Prabhakaran v. General Manager, K.S.R.T.C.**_ **(1981 KLT 164). So, in industries, persons appointed for one or two months, if retrenched, were entitled to get reappointments when vacancies arise in future. In the case of Educational institutions, the minimum incumbency period was fixed as two** ## **W.P.(C). No.15684/2011** ## **-:4:-** **months. That is because a valid appointment can be made only if the vacancy extends beyond that period. Now, it is provided that appointments can be made, if only the duration of the vacancy is one academic year and only such incumbents are to be given preference in future appointments. But, the said amendment can in no way affect the rights accrued to persons, on the strength of their appointment to short duration vacancies exceeding two months, made earlier to the amendment. The right of them to get re-appointment was always recognised by R.51A. But, after 25.6.2005, one can be appointed if only the vacancy has a duration of one academic year. Therefore, naturally, such persons alone can get the right to re-appointment also. So, the interpretation sought to be advanced by the respondents that the writ petitioner has no right for re-appointment under R.51A, in view** ## **W.P.(C). No.15684/2011** ## **-:5:-** **of the introduction of the first proviso to the said rule, cannot be accepted. .....”** ``` 4.In Ext.P18 Judgment, this Court, after relying upon the decision in Abdurahiman's case[2009(2) KLT 105], directed the authorities to consider the grant of approval and it is stated by the learned counsel for the petitioner that the said teacher has already been granted approval. ``` ``` 5.Ext.P16 is the order by which the District Educational Officer rejected the request for grant of approval on regular basis from 20/09/2004 to 23/03/2005. Evidently, in the light of the principles stated by this Court in Abdurahiman's case[2009(2) KLT 105], the appointment of the petitioner had to be approved on regular basis for the initial period, namely, from 20/09/2004 to 23/03/2005 consequent upon which the petitioner will be entitled for the benefit under Rule 51A of Chapter XIV A K.E.R. Subsequent appointments will therefore have to be approved on regular basis based on the said aspect. In that view of the matter, the impugned orders Exts.P2 to P8 and ``` ## **W.P.(C). No.15684/2011** ## **-:6:-** ``` P13 to P17 are quashed. There will be a direction to respondent Nos.2 and 3 to pass appropriate orders with regard to the approval of appointment of the petitioner for the different periods and consequent upon which the petitioner will be granted the monetary benefits also. Appropriate orders will be passed within a period of two months from the date of receipt of a copy of this Judgment. The writ petition is allowed. No costs. ``` ``` (T.R. Ramachandran Nair, Judge.) ``` ## **`ms`**