Sainaba Vellaram Para (V) v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **TUESDAY, THE 7TH DAY OF AUGUST 2012/16TH SRAVANA 1934** ## **WP(C).No. 1951 of 2008 (G)** **--------------------------** ## **PETITIONER :** **---------------------** **SAINABA VELLARAM PARA (V), W/O.MOIDU MUSLIYAR M.P. (LATE) MANGADAM PARAMBATH HOUSE, MANALAYA P.O. ANAMANGAD VIA., 679 357, MALAPPURAM DT.** ## **BY ADVS.SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.T.S.SHYAM PRASANTH** **RESPONDENT(S): --------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, TRIVANDRUM.** **2. THE ASSISTANT EDUCATIONAL OFFICER, PERINTHALMANNA.** **3. THE MANAGER, AIDED U.P.SCHOOL, PATHAIKKARA, PATHAIKKARA P.O., PERINTHALMANNA MALAPPURAM DISTRICT.** **4. SHRI.V.RAHIM, S/O.UMMER, UPSA, (ARABIC) AIDED U.P.SCHOOL, PATHAIKKARA, PATHAIKKARA P.O. PERINTHALMANNA, MALAPPURAM DISTRICT.** **R1 & R2 BY GOVT. PLEADER SRI. JOSE ADIYODI R3 & R4 BY ADVS. SRI.V.A.MUHAMMED** **SRI.K.E.HAMZA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 1951 of 2008 (G)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **EXT.P1 : COPY OF ORDER NO. L.DIS.C/1939/07 DATED 19.7.07 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P2 : COPY OF REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 3.9.07.** - **EXT.P3 : COPY OF ORDER DATED 1.1.08 VIDE G.O.(RT) NO. 4/08/G.EDN. ISSUED BY THE GOVERNMENT.** - **EXT.P4 : COPY OF G.O.(P) 377/01/G1/G.EDN. DATED 28.12.01 ISSUED BY THE GOVERNMENT.** - **EXT.P5 : COPY OF G.O.(P) NO. 317/05/G.EDN. DATED 17.8.05 ISSUED BY THE GOVERNMENT.** ## **RESPONDENT'S EXHIBITS :** - **EXT.R3(a) : COPY OF THE STAFF FIXATION ORDER NO. D.DIS. C/2040/07 OF THE ASST.EDL. OFFICER, PERINTALMANNA DATED 12-10-2007.** - **EXT.R3(b) COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO. 30657/2005-Y DATED 4-1-2006.** **EXT.R3(c) COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP NO. 11107 OF 1994-V DATED 14-3-1996.** **EXT.R3(d) COPY OF THE REPRESENTATION OF THE PARENTS OF THE STUDENTS OF SCHOOL DATED 22-06-2007.** **//TRUE COPY//** **P.A. TO JUDGE** **Mn** ## **A.M.SHAFFIQUE, J.** **= = = = = = = = = = = = = = W.P.(C) No.1951 of 2008** **= = = = = = = = = = = = = = = = = = Dated this the 7th day of August, 2012** ## **JUDGMENT** The matter arises in respect of the petitioner, who is admittedly a 51A of Chapter XIV A of KER claimant. According to her though a permanent vacancy had arisen in the L.P.Section of school on retirement of one Sri.Ummer on 31.03.2007, despite her claim under Rule 51A of Chapter XIV A of KER, she was not given appointment. The matter was taken up at different levels and by Ext.P1, the Assistant Educational Officer having found that the petitioner was the 51A claimant and entitled to be appointed, did not issue any direction in her favour on the basis that there was a proposal for staff fixation in the year 2007-2008 by which one full time post of Junior Arabic teacher might be sanctioned in the U.P.Section in terms of Rule 6(iii)(c) of Chapter XXIII of KER. The matter was carried in revision and by Ext.P3 order the Government having found the eligibility of the petitioner and having indicated that the Manager and Educational Officer had denied the legitimate claim of the **W.P.(C) No.1951 of 2008** -:2:- petitioner in anticipation of sanction of a higher post for which the claimant was not qualified, refused to interfere in the matter, since the staff fixation was already completed, whereby the post of Junior Arabic Teacher in the L.P section was converted to U.P. section and the petitioner was not qualified. 2. The learned counsel for the petitioner submits that even according to the Government there was a vacancy from 4.6.2007 to 14.7.2007 and when 51A claimant is available and that post was not filled up, on account of the subsequent staff fixation, whereby the L.P.Post had been converted to UP section the rights of the 51A claimant and her right to the said post as admitted by the Educational Authorities as well as the Government cannot be curtailed on account of a staff fixation on a subsequent date, that is 15.07.2007 3. The 2[nd] respondent has filed a counter affidavit supporting the orders passed in the matter. According to them, during the year 2007-2008 the post of Arabic teacher was sanctioned in U.P.Section w.e.f. 15.07.2007, since Shri.V.Ummer retired from service on 31.03.2007 and sufficient pupil strength was available for sanctioning the post in the U.P.Section. In regard to the claim of the petitioner, no specific reason is stated ## **W.P.(C) No.1951 of 2008** ## -:3:- to deny her the said appointment when the vacancy had arisen and when the school reopened on 4.6.2007. 4. The 3[rd] respondent has also filed a counter affidavit, inter alia, stating that since the petitioner is not qualified to be appointed in U.P.Section and the staff fixation had been in terms of Rule 6(iii)(c) of Chapter XXIII of KER after the coming into effect of the staff fixation on 15.06.2007, petitioner not being eligible to teach Arabic in the U.P.Section is not entitled for the relief claimed. 5. The question to be considered is whether the rights of the petitioner had in any way been affected on account of the proceedings which are produced as Exts.P1 and P3 in the case and on account of the staff fixation done by the department. 6. Rule 51A of Chapter XIV A of KER reads as under: “Qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies (in the same or higher or lower category of teaching posts, for which he is qualified that may arise) in schools under the same Educational Agency (or an Educational Agency to which the school may be subsequently transferred) provided they have not been appointed in permanent vacancies in schools under any other Educational Agency)” Hence there is no doubt about the question that as on 4.6.2007, the starting of the academic year there was a vacancy in ## **W.P.(C) No.1951 of 2008** ## -:4:- L.P.Section which ought to have been given to the petitioner at the relevant point of time. In fact the right of 51A claimant cannot even be denied on the ground that the teacher has not raised her claim as held in **Nalini V. State of Kerala (2001(2) KLT 273), Lily V. Secretary to Government, General Education Department and others (2003(2) KLJ 748).** In **Nalini v. State of Kerala** a division bench of this court held as follows: “We are of the view that the question raised in this case is no more res integra. This court in **Lakshmikutty Amma’s** case **(1992 (2) KLT 341)** elaborately considered the scope of Note II to R. 51-A and reminded Managers of schools the necessity of complying with the said procedure which the court has held as mandatory. This court took the view that R. 51-A and the Note thereunder are clearly based on public policy so as to defeat malpractices in employment in various aided schools.” 7. Therefore if such an appointment is not made, definitely the Manager and the Educational authorities are at fault, which ought to have been corrected by the educational **W.P.(C) No.1951 of 2008** ## -:5:- officers even when the petitioner had submitted a representation to the Assistant Educational Officer at the time of disposal of Ext.P1. The Government in fact found fault with the educational officer who denied the petitioner an opportunity for getting the appointment as a 51A claimant on an anticipated staff fixation order. In fact as on the relevant date when Ext.P1 was passed there was no such staff fixation order and the petitioner was entitled for getting the appointment in the L.P.Section. That right cannot be curtailed merely because the staff fixation order has come at a later stage as stated in Ext.P3. It is the contention of the respondent that the petitioner is not qualified to teach in U.P.section and that after the staff fixation order she is not entitled to claim any benefit as a 51A claimant in view of the fact that there is no vacancy in the L.P.Section. 8. The whole issue has arisen on account of the fact that there was a denial of employment by the respondent authorities and the Manager of the School as far as the petitioner is concerned. The clock has to be set back and therefore the petitioner should be deemed to have been appointed with effect from 4.6.2007 in the L.P Section. If subsequently the staff fixation order had come into effect from 15.06.2007, the law has ## **W.P.(C) No.1951 of 2008** ## -:6:- to take its own course and whatever adjustments are to be made in that regard is to be considered by the Manager as well as the educational authorities including the Government. I am not expressing any opinion on the staff fixation order as it is, but it is for the educational authorities to decide as to what action is to be taken in that regard. In that view of the matter, this writ petition is allowed as follows: i) Exts.P1 and P3 are quashed. ii) It is declared that the petitioner is entitled for getting appointed as Arabic teacher in the L.P.Section of 3[rd] respondent's school with effect from 4.6.2007 and necessary orders are to be passed in that regard by respondents 2 and 3. iii) Respondents shall pass appropriate orders with reference to the staff fixation order taking into account the appointment of petitioner in the L.P Section. ## A.M.Shaffique, Judge. sj # **W.P.(C) No.1951 of 2008** -:7:-