Saritha V vs State of Kerala and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 10TH DAY OF APRIL 2018 / 20TH CHAITHRA, 1940** **WA.No. 219 of 2016** **(AGAINST THE JUDGMENT IN WP(C).NO. 1339/2009 DATED 9/10/2014)** **-------------** ## **APPELLANT/PETITIONER:** **SARITHA.V, AGED 38 YEARS, W/O.A.P.VISWANATHAN, UPSA, GOVINDAPURAM AUP SCHOOL, GOVINDAPURAM, CALICUT, RESIDING AT "NANDANAM", MANARIPARAMBU, GOVINDAPURAM, CALICUT.** **BY ADV.SRI.U.BALAGANGADHARAN** ## **RESPONDENT(S)/RESPONDENTS:** **1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695 001.** **3. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE-673 001.** **4. THE ASSISTANT EDUCATIONAL OFFICER, KOZHIKODE-673 001.** ## **5. THE MANAGER,** **GOVINDAPURAM AUP SCHOOL, GOVINDAPURAM(P.O), GOVINDAPURAM, KOZHIKODE-673 612.** **6. SMT.PRINCY, UPSA, GOVINDAPURAM AUP SCHOOL, GOVINDAPURAM(P.O), GOVINDAPURAM, KOZHIKODE-673 001.** **2/-** **-2-** **WA.No. 219 of 2016** **7. SMT.REENA P, W/O.MONY I,** **U.P.S.A, GOVINDAPURAM AUP SCHOOL, GOVINDAPURAM(P.O), GOVINDAPURAM, KOZHIKODE-673 001, RESIDING AT "KOOTTAKKIL HOUSE", KOKKALLUR.P.O., BALUSSERI VIA, KOZHIKKODE-673 612.** **R1 TO R4 BY SR GOVERNMENT PLEADER SRI.P.N.SANTHOSH R5 BY ADVS.SRI.K.M.JAMALUDHEEN SRI.JIJI THOMAS R6 BY ADV. SMT.SMITHA MATHEW R7 BY ADV. SRI.M.SASINDRAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10-04-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts 19/4/2018** ## **P.R.RAMACHANDRA MENON &** ## **DEVAN RAMACHANDRAN, JJ.** ============================ W.A.No.219 of 2016 ============================ Dated this the 10[th] day of April, 2018 ## **JUDGMENT** ## **Devan Ramachandran, J.** This appeal has been preferred by the petitioner in W.P.(C) No.1339/2009, impugning the judgment of the learned Single Judge dismissing the writ petition. 2. The writ petition was filed by the appellant herein challenging Exts.P2 and P7 orders which denied approval for her appointment as an Upper Primary School Assistant (UPSA) in the Govindapuram UP School, of which the 5[th] respondent is the Manager. We notice from the orders impugned in the writ petition, namely Exts.P2 and P7, that the only reason why the approval of the appellant's appointment has been denied by the educational Authorities is because there was a subsisting claim, under Rule 51A of Chapter XIV A of the Kerala Education Rules (for short, 'the KER'), projected by the 6[th] respondent - another teacher. 3. We notice from the pleadings on record that the 6[th] W.A.No.219 of 2016 2 respondent makes the claim under Rule 51A of Chapter XIV A of the Kerala Education Rules on the basis that she was appointed to a leave vacancy during the period from 05.06.2002 to 16.08.2002, which was validly approved. The educational Authorities, therefore, took the stand that since the 6[th] respondent has a subsisting Rule 51A claim to the vacancy that arose on 21.06.2004 and to which the appellant was appointed, such appointment cannot be granted approval in terms of the provisions of the KER. 4. The learned Single Judge accepted the stand of the educational Authorities and dismissed the writ petition finding that the 6[th] respondent has a right under Rule 51A of Chapter XIV A of the KER and therefore, that Exts.P2 and P7 orders cannot be found to be at fault at all. 5. The appellant has filed this appeal challenging the views and conclusions of the learned Single Judge on various grounds. 6. We have heard Sri.U.Balagangadharan, the learned counsel for the petitioner, Sri.Jiji Thomas, the learned counsel for the 5[th] respondent, Smt.Smitha Mathew, the learned counsel for the 6[th] respondent, Sri.M.Sasindran, the learned counsel for W.A.No.219 of 2016 3 the 7[th] respondent and the learned Government Pleader. 7. As we have already noticed above, the claim of the 6[th] respondent to the vacancy which arose on 21.06.2004, to which the appellant was appointed, was on the strength of her approved appointment during the period from 05.06.2002 to 16.08.2002. 8. As per the provisions of the KER, as it stood prior to its amendment in the year 2005, it is certain that the 6[th] respondent had obtained a right under Rule 51A of Chapter XIV A thereof, which provided that a teacher who is retrenched or removed from service on account of division fall, is entitled to be appointed to the next arising vacancy. In the case at hand, the first arising vacancy to which she could have staked her claim was the vacancy which arose on 21.06.2004, against which the appellant was appointed. It is, however, pertinent that even as on today, the 6[th] respondent has not made any stake for being appointed to that post. Even that being so, the Authorities have refused approval to the appointment of the appellant merely because the 6[th] respondent has a subsisting Rule 51A claim which, we see, has not been yet exercised by her. Obviously, W.A.No.219 of 2016 4 since the 6[th] respondent has not impelled any claim based on Rule 51A until the KER was amended in the year 2005, it is now settled law as declared in the judgment of the Hon'ble Supreme Court in **Manager, VKNM Vocational Higher Secondary School v. State of Kerala and others** [(2016) 4 SCC 216] that subsequent to the amendment to the relevant Statutes, a teacher cannot claim appointment, if the criterion and qualifications for such appointment are altered. In fact, this Court had an occasion to consider these issues in W.A.No.716 of 2018 and we have explained how by lapse of time and by not exercising the option to be appointed at the relevant time a teacher would lose opportunity as per the ratio in **Manager, VKNM Vocational Higher Secondary School (supra).** 9. It is indubitable that by the amendment of Rule 51A and several other provisions of the KER in the year 2005, the 6[th] respondent would not be entitled to be appointed to any post even if she were to stake claim under Rule 51A thereafter. The fact that she has not made any claim for being appointed to the vacancy that arose in 2004 even as on day would make it perspicuous that she does not require the said post and only, W.A.No.219 of 2016 5 therefore, that she has refrained from exercising such claim. 10. Further, from the peculiar facts of this case, we see that, as per Exts.P3 and R5(b), the 6[th] respondent has virtually relinquished her right to be appointed to subsequent vacancies, which can only led to a further inference that she is not interested in getting appointed to the vacancy to which the appellant was appointed. 11. In the factual circumstances above and being bound by the binding precedent of the Hon'ble Supreme Court in **Manager, VKNM Vocational Higher Secondary School** (supra), we cannot find any reason to sustain the views and conclusions of the learned Single Judge and we are, therefore, compelled to vacate the same, thus allowing this appeal. 12. Consequentially, Exts.P2 and P7 orders are quashed and the 4[th] respondent - Assistant Educational Officer is directed to consider the approval of the appointment of the appellant as per Ext.P1 appointment order, in terms of law and to issue orders of approval, if she is otherwise found eligible. This exercise shall be completed by the 4[th] respondent - AEO as expeditiously as possible but not later than two months from the W.A.No.219 of 2016 6 date of receipt of a copy of this judgment. This writ petition is thus ordered. ## **P.R.RAMACHANDRA MENON JUDGE** stu **DEVAN RAMACHANDRAN JUDGE**