Saji John v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 8TH DAY OF JULY 2016/17TH ASHADHA, 1938** ## **WP(C).No. 20549 of 2015 (P)** **----------------------------** **PETITIONER(S):** - **----------------------** **SAJI JOHN, VOCATIONAL TEACHER IN DOMESTIC NURSING, ST. PETERS VOCATIONAL HIGHER SECONDARY SCHOOL, KOLENCHERRY, ERNAKULAM DISTRICT, PIN-682 311.** **BY ADVS.SRI.ELVIN PETER P.J., SRI.T.G.SUNIL (PRANAVAM), SRI.K.R.GANESH.** **RESPONDENT(S):** - **---------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM -695 001.** **2. THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION, DIRECTORATE OF VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM- 695 001.** **3. THE PRINCIPAL, ST. PETER'S VOCATIONAL HIGHER SECONDARY SCHOOL, KOLENCHERRY, ERNAKULAM DISTRICT -682 311.** - **R1 & R2 BY SRI.RANJITH THAMPAN, ADDL. ADVOCATE GENERAL. R3 BY ADV. SRI.ARAVINDA KUMAR BABU T.K.** - **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-07-2016, THE COURT ON THE SAME DAY DELIVERED HE FOLLOWING:** rs. ## **WP(C).No. 20549 of 2015 (P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXHIBIT P1: TRUE COPY OF THE JUDGMENT DATED 02/09/2014 IN WA NO.1679/2008 AND CONNECTED CASES OF THIS HON'BLE COURT.** - **EXHIBIT P2: TRUE COPY OF THE ORDER DATED 18.09.2014 OF THE HON'BLE SUPREME COURT.** - **EXHIBIT P3: TRUE COPY OF THE ORDER DATED 03.04.2007 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P4: TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 27.11.2010.** - **EXHIBIT P5: TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 25.03.2015.** - **EXHIBIT P6: TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 31.03.2015.** - **EXHIBIT P7: TRUE COPY OF THE COMMUNICATION DATED 31.03.2015 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.** - **EXHIBIT P8: TRUE COPY OF THE REPLY SENT BY THE 2ND RESPONDENT TO THE LAWYER NOTICE.** ## **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ALEXANDER THOMAS, J. ----------------------------- W.P.(C).No.20549 Of 2015 --------------------------------- Dated this the 8th day of July, 2016. ## J U D G M E N T The petitioner challenges the action of the 2[nd] respondentDirector of VHSC in not granting approval to the petitioner's appointment as Vocational Teacher in Domestic Nursing made as per Ext.P-6 appointment order dated 31.3.2015. The petitioner was initially appointed as Vocational Teacher in the 3[rd] respondent-School as referred to in Ext.P-3 after following the regular selection procedure prescribed in the Rules for regular selection and appointment of Vocational Teacher and this happened to be in a 5 year leave vacancy. It is not in dispute that the initial appointment was duly approved by the competent among the official respondents as per Ext.P-4. Later, the regular incumbent, who availed leave, to which leave vacancy, the petitioner was appointed as referred to in Ext.P-3, had again extended her leave and the petitioner was again appointed for yet another period of 5 years and the said appointment was also approved as per Ext.P-4. Later, the aforementioned regular teaching incumbent had submitted her resignation and the said resignation was accepted by the 2[nd] ::2:: W.P.(C).No.20549 Of 2015 respondent a sper Ext.P-5. Incidentally, it is pertinent to note that there was a dispute regarding the managership of the 3rd respondent-Aided VHSC School and the claim of one faction was upheld by the Division Bench of this Court in Ext.P-1 judgment dated 2.9.2014. The defeated faction took up the management dispute by filing S.L.P before the Apex Court which led to Ext.P-2 order dated 18.9.2014 of the Apex Court in which it was ordered to maintain status quo in the matter. Thereupon, a person who claimed to be the manager had objected to the action of the 3rd respondent-Principal in accepting the resignation of the regular teaching incumbent and this objection was overruled by the 2nd respondent-Director of VHSC as per Ext.P-8 proceedings dated 18.6.2015 and has held that the Government has already issued instructions as per Government Letter No.35626/SCI/10/G.Edn dated 3.7.2010 that such management disputes shall not affect the teachers and students of the school and had directed that the approval of appointment of such Teachers in the schools which are facing management disputes and that the teachers in such school cannot suffer on account of such disputes over managership. Accordingly, the 2nd respondent repelled the contention of the person who claimed to be the manager of the school holding that the acceptance of the resignation of ::3:: W.P.(C).No.20549 Of 2015 the regular incumbent is valid and proper, otherwise it will affect the teacher and students who are to be taught by an alternate teacher. In the said regular vacancy that has occurred due to the acceptance of resignation of earlier regular incumbent the petitioner was given appointment by the 3rd respondent as per Ext.P-6 dated 31.3.2015 and the same was forwarded to the 2nd respondent-Director for necessary approval so as to enable the petitioner to get the salary. However, the 2nd respondent-Director has not taken any decision on the same due to the pending management dispute and more so, particularly on the fact that the said appointment of the petitioner was not signed by the manager of the school. It is the stand of the petitioner that since there is management dispute there is none who can sign as manager of the school and the Division Bench ruling of this Court in Jayasree v. Director, Higher Secondary Education reported in 2009 (2) KLT 352 in para 6 has clearly held that an Aided Higher Secondary School Teacher, who secured temporary appointment by following the prescribed rules for regular selection and appointment of such teachers are entitled to be absorbed and appointed by importing the principles laid down as discernible from Rule 51A of Chapter XIVA of the KER though Chapter XXXII has not expressly adopted the said provision in Chapter XIVA ::4:: W.P.(C).No.20549 Of 2015 KER. It is in the light of these facts and circumstances that the petitioner has filed the instant Writ Petition seeking the following prayers: - “(i) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2nd respondent to approve the appointment of the petitioner made as per Ext.P-6 as Vocational Teacher in Domestic Nursing with effect from 27.11.2014 and grant her all consequential benefits; and - (ii) To grant such other and further reliefs as are just, proper and necessary in the facts and circumstances of the case.” 2. The 2[nd] respondent has filed a counter affidavit dated 10.12.2015 inter alia stating that Ext.P-6 appointment order is not proper inasmuch as it is not signed by the Manager of the School which facing management dispute and that the approval of appointment of the petitioner is pending consideration before the Government and the Government will take a considered decision, etc. There is no dispute by the official respondents in the claim made by the petitioner that she was duly selected and appointed in earlier two 5 year period leave vacancy totalling to 10 years as evident from Exts.P-3 and P-4 and the said appointments were made after following regular selection procedure prescribed in the rules which regulates the manner and method of regular selection and appointment of HSST/VHS Teachers. Therefore, prima facie going by the said averments of the petitioner she has the legal right to be appointed in the regular vacancy going by the legal principles laid down in the case Jayasree v. Director Higher ::5:: ## W.P.(C).No.20549 Of 2015 ## Secondary Education reported in 2009 (2) KLT 352 para 6 which reads ## as follows: '6. We considered the rival submissions made at the Bar and went through the materials and pleadings on record. The Kerala Education Rules, other than Chap.XXXII of it were prescribed to govern aided schools (Primary Schools and High Schools) in the State. Chap.XIV A of the K.E.R deals with the service conditions of teachers of aided schools. It deals with appointment, approval of appointment, retrenchment, reappointment, promotion, disciplinary action etc. As part of implementation of the national education policy, Plus Two Courses were introduced in the High Schools in Kerala and simultaneously, it was decided to abolish the Pre-degree course in the colleges. Steps in this direction were taken by the Government from 1991. The various aspects governing Higher Secondary Education were covered by executive orders issued by the Government from time to time. The qualifications and method of appointment to various posts in the Higher Secondary Wing were prescribed by the Government by executive orders and later by rules, invoking its rule making power under S.36 of the Kerala Education Act. Chap.XXXII containing those rules was added to the K.E.R., as per G.O.(P) No.331/2001/G.Edn. dated 9.11.2001, published in the Gazette dated 12.11.2001. It is not in dispute that the appellant alone was having the requisite qualification for appointment as H.S.S.T (Sociology) on the date of occurrence of the vacancy. The method of appointment is by transfer from H.S.A's and in their absence, from L.P.S.A's./U.P.S.A's. The second method is by direct recruitment. There is a ratio of 25% : 75% between the above two methods. It is not in dispute that there is a vacancy available for appointment by transfer, as per the ratio. But, when the vacancy arose on 16.1.2006, there was no qualified hand available in the High School for appointment by transfer. It is not in dispute that the 3rd respondent became eligible for transfer only after 7.6.2006, the date on which the results of the S.E.T examination taken by him were declared. Since the vacancy was a resignation vacancy without any time limit, the management should have filled up that vacancy which arose on 16.1.2006, to safeguard the interest of the students, from the open market, in the absence of any qualified hand in the feeder category. The Manager cannot wait till the teacher of his choice gets qualified (see the decision in Neema Rajan v. Jyothi Chandran (2001 (3) KLT SN 25 (C.No.No.35)). At the relevant time, the 3rd respondent was only a candidate, who intended to take the S.E.T examination or has actually taken the S.E.T examination. Promotion can be granted only to a candidate who has already cleared the S.E.T. The claimant under the 25% quota for transfer need be considered, if only he is qualified at the time of occurrence of the vacancy. If the appointment is made from the open market, the appellant was entitled to get preference, as a person who has served under the management for some time. It is not in dispute that if R.51A of Chap.XIV A is applicable to Higher Secondary Schools, in view of the recent decisions ::6:: ## W.P.(C).No.20549 Of 2015 this Court, the amendment introduced to the said Rule with effect from 25.6.2005 will not affect the claims acquired under the unamended Rule before the said date. We agree that R.51A is not made expressly applicable to the Higher Secondary Wing, though by an executive order, R.51B governing appointment under the dying-inharness scheme appears to have been made applicable. The appellant is a candidate selected by a duly constituted selection committee and she has two spells of approved service to her credit also. Therefore, even in the absence of any express provision in the rules, such a candidate is entitled to get preference, before a candidate from the open market without any prior service under the management is considered for appointment. If the vacancy in which the appellant was appointed continued as a result of taking leave by other teachers till the resignation vacancy arose on 16.1.2006, she would have continued in service. Only because of the termination of the vacancy in which she was working, the appellant was retrenched. It is a well recognized principle in service jurisprudence that if a person is thrown out from a post, owing to termination of vacancy, as soon as the vacancy arises, the said incumbent is entitled to be re-appointed. If it is conceded that the Manager can go for a fresh candidate from the open market, a teacherwho has been relieved on termination of the vacancy, even after serving 5 or 10 years, will not get protection. The Manager can ignore such a teacher's claim and go for a fresh hand from the open market. We think, the absence of an express provision in Chap.XXXII concerning re-appointment will bring forth such disastrous consequences. The general principle of service jurisprudence will mandate that the Manager should appoint a person with previous service in preference to a fresh hand from the open market. Further, the Manager, who is a statutory functionary, has a duty to act fairly and not to act capriciously. So, he has a duty to reappoint the retrenched teacher, in lieu of a new hand, if a vacancy arises. Therefore, we declare that the management was bound to appoint the appellant in the vacancy that arose on 16.1.2006. Accordingly, we hold that the subsequent appointment of the 3rd respondent in the said vacancy is illegal and unsustainable. The absence of an express provision in Chap.XXXII cannot be a ground to deny all service benefits to the employees of the Higher Secondary Wing. Even in the absence of any provision in Chap.XXXII, the staff of the Higher Secondary Wing are getting pay revision benefits, pensionary benefits etc. Disciplinary action can also be taken against them, even though there is no express provision regarding the same in Chap.XXXII. So, the absence of a provision in Chap.XXXII cannot be treated as the end of the world, as far as a teacher working in the Higher Secondary School is concerned. The decision in Krishnankutty v. State of Kerala (supra), relied on by the 3rd respondent, has no application to the facts of this case. The decision in Pathanapuram Taluk Samajam Corporate Management Schools v. Sreelatha (supra) deals with the claim for appointment in the Higher Secondary Wing, of an incumbent who has got a claim for appointment under R.51B of Chap.XIV A of the K.E.R. (compassionate appointment under the dying-in-harness scheme) in the High School Wing. The said decision has ::7:: W.P.(C).No.20549 Of 2015 also no application to the facts of this case. In J.Srinivasa Rao v. Govt. of A.P. (supra), the Apex Court held as follows: “It is well settled that construing a taxing statute, the court shall make an endeavour to give effect to the golden rule of interpretation i.e, principle of literal interpretation and would not supply casus omissus.” The said decision cited by the 3rd respondent also does not have any application to the facts of this case. The feeble contention of the respondents that on 16.1.2006, the appellant was over-aged, is untenable. The age limit applies only to initial appointment. It is settled by several decisions of this Court that age limit is not applicable to re-appointment. Even if there is delay in approving the relief of Sri.R.Shylendra Varma by the Director, once it is approved, it will take effect from 16.1.2006. In fact, the said person is working in Sree Guruvayurappan College since 16.1.2006. So, the contention of the respondents in this regard is also untenable.” Though the case dealt with by the Division Bench in Jayasree's case (supra) was in relation to an aided Higher Secondary School, the legal principles laid down therein are clearly importable in the case of an aided Vocational Higher Secondary School as well, as both are attached as part of the plus two stream after the completion of the Secondary Class. 3. Moreover it is even considered by the 2[nd] respondentDirector in Ext.P-8 that the Government has issued strict instructions as per the Government Letter No.35626/SCI/10/G.Edn dated 3.7.2010 that such managements disputes shall not mar the future of the students and teachers and other staff of the school and that the day to day affairs in the school shall not be affected in view of the dispute of managership of ::8:: W.P.(C).No.20549 Of 2015 the rival claims in that regard. It is also to be noted in this context, the Apex court has issued Ext.P-2 order dated 17.09.2014 in S.L.P.Nos.25733-25736/2014 wherein S.L.P. has been admitted and notice has been issued and it is reported therein that the matters could be disposed at the admission stage after service of notice. It is also ordered therein that until the disposal of the S.L.P., status quo as it exists today shall be maintained. Taking into consideration all aspects of the matter, this Court is not inclined to allow the main prayers in the petition for directing the official respondents to grant approval of the appointment of the petitioner as per Ext.P-6. At the same time, prima facie, the petitioner has made out a strong case that preferential right to be appointed as a regular teacher which led to Ext.P-6 appointment order on the basis of the ruling in Jayasree's case (supra) para 6. In that view of the matter, taking into consideration the crucial aspects of the matter that the school is mainly established for the welfare of the students and taking into account the fact that the students require a teacher, it is ordered in the interest of justice that the 2nd respondent will examine the papers and records in connection with Ext.P-6 appointment given in favour of the petitioner as well as looking into the papers in relation to previous approvals granted to her as per Exts.P3 ::9:: W.P.(C).No.20549 Of 2015 and P-4 and whether the petitioner's case is covered by the ruling of the Division Bench of this Court in Jayasree v. Director of HSE reported in 2009 (2) KLT 352 para 6 and if it is found that the case is otherwise covered by the said ruling, then the 2nd respondent will issue necessary orders to ensure that the petitioner is disbursed the pay and allowances for the post in question for which period she actually worked and she should also continue to get the salary. However, it is made clear that the approval of appointment of the petitioner need not be considered now and the said issue may be deferred until further orders, either till the outcome of Ext.P-2 S.L.P proceedings or until further appropriate orders are obtained in those proceedings. It is made clear that the question of approval may be decided only later as noted hereinabove and directions are issued in this judgment only in relation to the limited issue as to whether the petitioner is entitled atleast for the salary for the period she actually worked as otherwise such teaching incumbents appointed in such schools would have to bear serious injustice and injury. Necessary orders in that regard shall be rendered by the 2nd respondent-Director without much delay. The petitioner is at liberty to file a representation in that regard along with a certified copy of this judgment before the 2nd ::10:: W.P.(C).No.20549 Of 2015 respondent, within a period of one week from the date of receipt of a copy of this judgment. A decision shall be rendered by the 2nd respondent as directed above, within a period of six weeks from the date of submission of such representation along with a certified copy of this judgment. The petitioner shall also be granted a reasonable opportunity of being heard. With these observations and directions, this Writ Petition (Civil) stands finally disposed of. ALEXANDER THOMAS, Judge. bkn/-