Shimna M.P. v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN TUESDAY, THE 28TH DAY OF OCTOBER 2014/6TH KARTHIKA, 1936 WP(C).No. 36004 of 2008 (J) ---------------------------- ## PETITIONER(S): --------------------- SHIMNA.M.P., W/O.T.RADHAN, 'SHINOY NIVAS', PARADANCHAL, P.O.P.R.NAGAR 670702 KANNUR DISTRICT.(PART TIME HINDI TEACHER (RETRENCHED), PORORA U.P.SCHOOL, P.O.PORORA KANNUR DISTRICT 670702. BY ADVS.SRI.POOVAMULLE PARAMBIL ABDULKAREEM SRI.M.VARGHESE VARGHESE RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.14. 3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR-2. 4. THE ASSISTANT EDUCATIONAL OFFICER, MATTANNUR, KANNUR DISTRICT 670702. 5. THE MANAGER, PORORA.U.P.SCHOOL, P.O.PORORA, KANNUR DISTRICT 670702. 6. JITHESH, PEON, PORORA.U.P.SCHOOL, P.O.PORORA, KANNUR 670702. 7. SOUMYA.M.P, SANSKRIT TEACHER PORORA. U.P.SCHOOL, PO.PORORA, KANNUR. 8. UMAIBA.P., ARABIC TEACHER PORORA.U.P. SCHOOL, P.O.PORORA, KANNUR. W.P.(C) NO.36004/2008 ## ADDL.R9 IMPLEADED : 9. NISHA.K. (PROTECTED TEACHER OF PAZHASSI WEST U.P.SCHOOL) NOW WORKING IN PORORA U.P. SCHOOL AS - PART TIME HINDI TEACHER (WORK ARRANGEMENT), KANNUR DISTRICT. IS IMPLEADED AS PER ORDER DATED 17.9.2009 IN I.A.NO.10846/09. R,R6-8 BY ADV. SRI.S.SUJIN R,R5 BY ADV. SRI.MAHESH V RAMAKRISHNAN R1 TO 4 BY ADV. GOVERNMENT PLEADER SRI.P.K.ABDUL RAHIMAN R,R9 BY ADV. SRI.N.N.SUGUNAPALAN (SR.) R,R9 BY ADV. SMT.T.K.SREEKALA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.36004/2008 ## APPENDIX ## PETITIONER'S EXHIBITS : EXT.P1: TRUE COPY OF THE ORDER NO.F/6034/03 DATED 22.2.2004 OF THE FOURTH RESPONDENT. - EXT.P2: TRUE COPY OF THE ORDER NO.K.DIS/78161/05/G4/DPI DATED 6.1.2006. EXT.P3: TRUE COPY OF THE ORDER NO.K.DIS/2398/05/F DATED 24.4.2006. EXT.P4: TRUE COPY OF THE ORDER NO.K.DIS/5100/06 DATED 21.12.2006. - EXT.P5: TRUE COPY OF THE JUDGMENT DATED 1.6.2007 OF THIS HON'BLE COURT IN W.P.(C) NO.4654/2007. EXT.P6: TRUE COPY OF THE LETTER NO.D5/20001/07 DATED 10.9.2007. EXT.P7: TRUE COPY OF THE G.O.(RT) NO.45/08/G.EDN. DATED 2.1.2008. EXT.P8: TRUE COPY OF THE LETTER NO.A3/2128/2008 DATED 1.2.2008. EXT.P9: TRUE COPY OF THE REPRESENTATION DATED 4.2.2008. EXT.P10: TRUE COPY OF THE RELY DATED 14.2.2008 SENT BY THE FIFTH RESPONDENT. - EXT.P11: TRUE COPY OF THE ORDER NO.F/1276/07 DATED 20.2.2008 ISSUED BY THE FOURTH RESPONDENT. - EXT.P12: TRUE COPY OF THE JUDGMENT DATED 4.4.2008 OF THIS HON'BLE COURT IN W.P.(C) NO.9639/08. - EXT.P13: TRUE COPY OF THE ORDER BEARING G.O.(RT) NO.378/2009/G.EDN. DATED 23.1.2009. EXT.P14: TRUE COPY OF THE G.O.(MS) NO.20/82/G.EDN. DATED 15.2.82. - EXT.P15: TRUE COPY OF THE JUDGMENT DATED 26.3.1987 IN O.P.NO.2149/1986. ## RESPONDENTS' EXHIBITS: EXT.R5(a) : TRUE COPY OF THE REQUEST DATED 10.5.2007 MADE BY THE FIFTH RESPONDENT BEFORE THE THIRD RESPONDENT. - EXT.R5(b) : TRUE COPY OF THE LETTER NO.184/20685/06 DATED 31.7.2007 RECEIVED FROM THE THIRD RESPONDENT. - EXT.R5(c) : TRUE COPY OF THE G.O.(RT) NO.178/02 G.EDN. DATED 28.6.2002. - EXT.R5(d): TRUE COPY OF THE G.O.(M.S.) NO.80/86/GEN.EDN. DATED 20.5.1986. W.P.(C) NO.36004/2008 EXT.R5(e) : TRUE COPY OF THE INFORMATION RECEIVED FROM THE FOURTH RESPONDENT'S OFFICE. EXT.R5(f) : TRUE COPY OF THE APPOINTMENT ORDER OF RESPONDENT NO.6 DATED 2.5.2008. - EXT.R5(g): TRUE COPY OF THE APPOINTMENT ORDER OF RESPONDENT NO.7 DATED 2.6.2008. - EXT.R5(h): TRUE COPY OF THE APPOINTMENT ORDER OF RESPONDENT NO.8 DATED 2.6.2008. - EXT.R9(a) : TRUE COPY OF THE INFORMATION FURNISHED BY THE PUBLIC INFORMATION OFFICER, AEO, MATTANNUR ON 9.10.2007. - EXT.R9(b): TRUE COPY OF THE REQUEST DATED 21.2.2007 MADE BY THE MANAGER TO THE DY. DIRECTOR OF EDUCATION, KANNUR. - EXT.R9(c): TRUE COPY OF THE DIRECTION NO.B4/20685/06 DATED 31.7.2007 ISSUED BY THE DY. DIRECTOR OF EDUCATION, KANNUR TO THE MANAGER TO THE PORORA U.P. SCHOOL. - EXT.R9(d) : TRUE COPY OF THE APPOINTMENT ORDER NO.1/2007 DATED 8.8.2007 ISSUED BY THE MANAGER, PORORA U.P. SCHOOL. - EXT.R9(e) : TRUE COPY OF THE RELIEVING ORDER DATED 10.10.2007 ISSUED BY THE HEADMASTER, PAZHASSI WEST U.P. SCOOL. - EXT.R9(f) : TRUE COPY OF THE RELEVANT PAGES OF SERVICE BOOK OF THIS RESPONDENT. - EXT.R9(g) : TRUE COPY OF THE G.O.(Rt) NO.178/2002/G/ EDN. DATED 28.6.2002. EXT.R9(h): TRUE COPY OF G.O.(P) NO.46/2006/G.EDN. DATED 1.2.2006. EXT.R9(i) : TRUE COPY OF G.O.(MS) NO.80/86/G.EDN. DATED 20.5.1986. //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN, J.** -------------------------------------W.P.(C) No.36004 of 2008 -------------------------------------Dated this the 28[th] day of October, 2014 ## _**JUDGMENT**_ The petitioner was appointed as Part-time Hindi teacher in Porora U.P. School, Kannur, in a leave vacancy of one Sreedevi for the period from 19.11.2003 to 19.1.2004. The Assistant Educational Officer, Mattannur, rejected the proposal for approval of the appointment of the petitioner as per Exhibit P1 order dated 22.2.2004 on the ground that “there are no relevant rules for approving the appointments in the leave vacancies”. Though an appeal was filed against Exhibit P1 order, the District Educational Officer rejected the appeal. On further appeal by the Manager, the Director of Public Instructions allowed the appeal by Exhibit P2 order dated W.P.(C) No.36004/2008 2 6.1.2006 and directed the Assistant Educational Officer to approve the appointment of the petitioner as Part-time Hindi teacher from 19.11.2003 to 19.1.2004. In compliance of Exhibit P2 order, the Assistant Educational Officer approved the appointment of the petitioner in the aforesaid vacancy, as per Exhibit P3 order dated 24.4.2006. 2. Strangely enough, the Assistant Educational Officer, Mattannur, nullified and declared invalid approval of appointment of the petitioner, as per Exhibit P4 order dated 21.12.2006. Though the Assistant Educational officer noticed in Exhibit P4 that she had no power to review an earlier order, she exercised that power under the guise of correcting errors. 3. Exhibit P4 order was challenged by the petitioner in W.P.(C) No.4654 of 2007. A learned Single Judge of this Court W.P.(C) No.36004/2008 3 set aside the order dated 21.12.2006 passed by the Assistant Educational Officer and directed the Assistant Educational Officer to refer the matter to the Director of Public Instructions for the purpose of placing the matter before the Government, as per Exhibit P5 judgment dated 1.6.2007. It was held that it would be open to the Government to exercise its revisional power under Rule 92 of Chapter XIV A of KER, if so advised. 4. After Exhibit P5 order and before the Government considered the matter, the Manager appointed the ninth respondent in the retirement vacancy of V.E.Sreedevi and issued Exhibit R9(d) appointment order dated 8.8.2007. 5. After the disposal of W.P.(C) No.4654 of 2007, the Government issued Exhibit P7 order dated 2.1.2008 (G.O.Rt.No.45/08/Gen.Edn. dated 2.1.2008) and directed the W.P.(C) No.36004/2008 4 Educational Officer to take steps to approve the appointment of the petitioner as Part-time Hindi teacher from 19.11.2003 to 19.1.2004. There was also a direction to absorb a protected teacher in the vacancy which arose in the school on 5.6.2007. 6. The petitioner submitted Exhibit P9 representation dated 4.2.2008 to the Manager requesting to re-appoint her as Part-time Hindi teacher in the retirement vacancy. In Exhibit P9 representation, reference was made to Exhibit P7 Government Order as well as Exhibit P8 letter dated 1.2.2008 issued by the Public Information Officer of the office of the Deputy Director of Eduction, Kannur, stating that there was no Part time Junior Hindi Teacher as protected teacher in the year 2007 in Kannur District. The Manager sent Exhibit P10 reply dated 14.2.2008 to the petitioner stating that the retirement vacancy of V.E.Sreedevi was filled up by absorbing W.P.(C) No.36004/2008 5 the ninth respondent and therefore, there was no vacancy of Part-time Hindi teacher in which the petitioner could be reappointed. It was also mentioned in Exhibit P10 that in between a protected teacher and a Rule 51A claimant, the claim of the protected teacher has preference as per the amendment to Rule 51A with effect from 16.4.2005. 7. On 20.2.2008, the Assistant Educational Officer, Mattannur, issued Exhibit P11 order approving the appointment of the petitioner, in compliance of Exhibit P7 Government Order dated 2.1.2008. 8. Exhibit P10 order issued by the Manager was challenged by the petitioner in W.P.(C) No.9639 of 2008, which was disposed of as per Exhibit P12 judgment dated 4[th] April 2008, directing the Government to dispose of the representation W.P.(C) No.36004/2008 6 submitted by the petitioner. As per the direction in W.P.(C) No.9639 of 2008, the Government considered the matter afresh and issued Exhibit P13 Government Order dated 23.1.2009 (G.O.Rt.No.378/2009/G.Edn. dated 23.1.2009) holding that the petitioner, who is a claimant under Rule 51A of Chapter XIV A, will not get any preference in appointment to the vacancy which arose on 5.6.2007 in preference to a protected teacher, in view of the amendment to Rule 51A of Chapter XIV A KER. The Government also relied on the judgment of a learned Single Judge in W.P.(C)No.15291 of 2007 (which is reported in **Saleena vs. State of Kerala : 2008(1) KLT 437** . Exhibit P13 order is under challenge in this Writ Petition. 9. The learned counsel for the petitioner submitted that a Division Bench of this Court in **Abdurahiman v.** W.P.(C) No.36004/2008 7 **Government of Kerala : 2009(2) KLT 105** overruled the decision in **Saleena v. State of Kerala : 2008(1) KLT 437** . It is also submitted that the Division Bench decision in **Abdurahiman v. Government of Kerala : 2009(2)KLT 105** was affirmed by the Full Bench in **Soman v. Manager, A.K.M. High School : 2013(2) KLT 215** . 10. The counsel on either side cited several decisions most of which are quite irrelevant to the matter in issue in this Writ Petition. 11. Rule 51A of Chapter XIV A of the Kerala Education Act was amended by G.O.(P) No.121/2005 Gen. Edn. Dated 16.4.2005 which was published in the gazette dated 27.4.2005 inserting second proviso to Rule 51A. The second proviso is W.P.(C) No.36004/2008 8 to the following effect: “provided further that the first preference under this Rule shall be given to protected teachers.” 12. The second proviso was further amended by G.O. (P).No.192/12/G.Edn. dated 16.6.2012 published in the gazette of 5.7.2012 adding the following words at the end of the second proviso, namely, “belonging to the same Educational Agency”. In the present case, the ninth respondent was appointed on 10.10.2007 in the retirement vacancy of V.E.Sreedevi which arose on 5.6.2007. At that time, the amendment to the second proviso as per G.O.(P) No.192/12/G.Edn. dated 16.6.2012 was not in force. The learned counsel for the ninth respondent submitted that the amendment of 2012 makes the position clear that the appointment of the ninth respondent is liable to be approved even if she is not a protected teacher under the same educational agency. In answer, the learned counsel for W.P.(C) No.36004/2008 9 the petitioner cited two decisions of this Court, namely, **Ciji.P.Jose v. State of Kerala : (2012(1) KLT 867)** and **Linsy Augustine v. State of Kerala (** in W.P.(C) No.29569 of 2009 **)** . It was also submitted that the decision in Linsy Augustine's case was confirmed by a Division Bench. 13. In **Ciji P.Jose v. State of Kerala** : **(2012(1) KLT 867)** , the retirement vacancy arose on 31.3.2007. The Manager appointed the petitioner therein recognizing her claim under Rule 51A. The approval was declined on the ground that vacancy in an uneconomic school should be filled up only by a protected teacher. Allowing the Writ Petition, the learned Single Judge held thus: “6.All these matters cannot be given a preference by a circular issued by the Government, in the light of the specific provisions of Chap.XIV-A K.E.R., especially R.51 A. The amendment made to R.51A by including the second proviso and the Explanation therein protects only the right of a protected teacher under the same educational agency. Herein, W.P.(C) No.36004/2008 10 there is no plea that a protected hand is available under the same educational agency. Therefore, the said amendment cannot also defeat the right of the petitioner and the rejection of approval of appointment of the petitioner cannot thus be supported.” ## 14. The same learned Single Judge in Linsy Augustine's case (W.P.(C) No.29659 of 2009) held thus: “6. Evidently, the petitioner is a Rule 51A claimant. The said claim being statutory, the question is whether executive orders could be enforced against the claimant under Rule 51A of Chapter XIV-A of Kerala Education Rules. In this context, learned counsel for the petitioner relied upon the decision of a Division Bench of this Court in Rev. Kuriakose v. State of Kerala (1981 KLT SN 103) wherein while considering the relevant rules under Chapter V Rule 6 and the agreement executed by the Manager, it was held as follows : “The teachers who are entitled to the benefit of R.51A would be entitled to be absorbed in the vacancies in preference to the teachers contemplated by the agreements and that notwithstanding the agreements executed.” 7. Therefore, protected teachers from other schools cannot have a preference over the claimants under Rule 51A of Chapter XIV-A of Kerala Education Rules. Evidently, there is no protected teacher available under the Corporate Management for absorption. Therefore, the amendment of Rule 51A introducing the second proviso giving first preference to a protected teacher cannot also go against the claim of the petitioner.” W.P.(C) No.36004/2008 11 15. In view of the decisions in Ciji.P.Jose v. State of Kerala : 2012(1) KLT 867 and Linsy Augustine v. State of Kerala (W.P.(C) No.29659 of 2009), the view taken in Exhibit P13 order passed by the Government is unsustainable. Even otherwise, Exhibit P13 order is unsustainable on the ground that the decision relied on by the Government in W.P.(C) No.15291 of 2007 (Saleena v. State of Kerala : 2008(1) KLT 437) was overruled by a Division Bench in **Abdurahiman v. Government of Kerala : (2009(2) KLT 105)** . The decision in Abdurahiman v. Government of Kerala : (2009(2) KLT 105) was affirmed by a Full Bench in **Soman v. Manager, A.K.M. High School : 2013 (2) KLT 215** . 16. The learned Single Judge in Ciji.P.Jose v. State of Kerala : 2012(1) KLT 867 and in Linsy Augustine's case (W.P. W.P.(C) No.36004/2008 12 (C) No.29659 of 2009), rendered the judgments before the date of amendment to the second proviso as per G.O.(P) No.192/12/G.Edn. dated 16.6.2012 introducing the words “belonging to the same Educational Agency”. Even before introduction of those words, this Court interpreted the second proviso to Rule 51A of Chapter XIV A KER as giving preferential right to protect teachers belonging to the same Educational Agency alone. The ninth respondent does not satisfy that requirement. Therefore, the position even before the insertion of the words “belonging to the same Educational Agency” was the same, in view of the interpretation made by this Court in Ciji.P.Jose v. State of Kerala : 2012(1) KLT 867 and Linsy Augustine v. State of Kerala (in W.P.(C) No.29659 of 2009). 17. The learned counsel for the ninth respondent W.P.(C) No.36004/2008 13 submitted that Exhibit P7 order dated 2.1.2008 has become final and therefore, the contention raised by the petitioner is unsustainable. In Exhibit P7, it was held that the petitioner had acquired a preferential claim under Rule 51A, if her appointment was approved. It was also held that she will not get any preference in appointment to the vacancy which arose on 5.6.2007 and that as between a protected teacher and a Rule 51A claimant, the claim of the former will prevail with effect from 16.4.2005, that is, after the introduction of the second proviso in Rule 51A. It is to be noted that subsequently, the appointment of the petitioner was approved as per Exhibit P11 order dated 20.2.2008. In fact, the appointment of the petitioner was approved as per Exhibit P3 order dated 24.4.2006 and it was as per the direction of the Director of Public Instructions in Exhibit P2 order dated 6.1.2006. Later, the Assistant Educational Officer passed Exhibit P4 order dated W.P.(C) No.36004/2008 14 21.12.2006, cancelling Exhibit P3 order of approval, which was set aside in W.P.(C) No.4654 of 2007 and the Government was directed to exercise the revisional power under Rule 92. Thereafter, Exhibit P7 order was passed. Exhibit P7 order originated from Exhibit P4 order passed by the Assistant Educational Officer, declaring the appointment of the petitioner as invalid. The Assistant Educational Officer had no power to review his own order (Exhibit P3) dated 24.4.2006 and on that ground it was set aside by the High Court in W.P.(C) No.4654 of 2007. The Government was directed to consider the matter afresh, and Exhibit P7 order was passed by the Government directing the Educational Officer to approve the appointment of the petitioner. Any observation in Exhibit P7 order about any preferential claim by a protected teacher will not be binding on the petitioner since she was challenging the jurisdiction of the Assistant Educational Officer to review his own order. The W.P.(C) No.36004/2008 15 respective rights of the petitioner and the ninth respondent was not in issue in Exhibit P7 proceedings and therefore, it cannot be said that Exhibit P7 order would be a bar to the petitioner in raising the contention as now raised in the Writ Petition. Moreover, the interpretation of the second proviso to Rule 51A was a pure question of law and that question was decided by this Court in Ciji.P.Jose v. State of Kerala : (2012(1) KLT 867) and in W.P.(C) No.29659 of 2009. 18. The learned counsel for the ninth respondent submitted that the appointment of the petitioner was approved as per Exhibit P11 order dated 20.2.2008 while the ninth respondent was appointed on 10.10.2007 and therefore, the ninth respondent will have a preferential right. In other words, the contention of the ninth respondent is that so long as the appointment of the petitioner was not approved on the date of W.P.(C) No.36004/2008 16 the appointment of the ninth respondent, the petitioner would have no preferential right under Rule 51A of Chapter XIV A KER. This question is covered by the Full Bench decision of this Court in **Soman v. Manager, AKM High School : 2013** ## **(2) KLT 215,** wherein the Full Bench held thus : “16. Rule 8 of Chapter XIV A of the KER deals with the matters concerning approval of appointment and the required documents. R.8(2) stipulates that approval may be given as expeditiously as possible, at any rate, not later than 30 days from the date of receipt of appointment order and other documents by the Educational Officer. There can be so many reasons for occurring delay in granting approval of appointment by the Educational Officer such as delay in sending the required documents by the Manager, administrative reasons in the office of the Educational Officer etc. etc. That the period within which the appointment has to be approved is not within the control of the teacher who is appointed. If a claim under R.51A will be defeated for the reason that the original appointment is remaining unapproved by the time the next vacancy arises, chances are high for a Manager or an Educational Officer to delay the approval of the original appointment in order to prevent that person from claiming preferential appointment under R.51A and to appoint another person to that vacancy on that ground. A right which is accrued under a provision of law cannot be so dependent upon the volition of a Manager or an Educational Officer. When a person is appointed, complying with R.7A of Chapter XIV A of the KER, in a short term vacancy shall be entitled to raise a claim for preference for appointment as provided under R.51A if the conditions under that Rule are satisfied. If such a right under R.51A is dependent upon the approval of the original appointment which may lead to arbitrary exercise of power by a Manager or an Educational Officer or by both preventing the legitimate claimants from exercising their claim under R.51A. This shall not be W.P.(C) No.36004/2008 17 permitted to happen. The right to raise a claim under R.51A shall not be dependent upon the factum of approval of the original appointment. But, it should be based on the appointment made complying with R.7A. Therefore, we overrule the view taken by the learned Judge in the judgment in O.P.No. 17698 of 1995 ( _C.L. Francis v. State of Kerala_ ) and the view taken by the Division Bench in the judgment in Writ Appeal No.254 of 1972 ( _K.V. Mary v. Regional Deputy Director of Public Instructions_ ) and we uphold the view taken by the learned Judges in _Ponnamma v. Manager, K.A.M.U.P. School, Muthukulam_ (ILR 1972 (2) Ker 176) and in _Poornima v. Director of Public Instructions_ (2005 (3) KLT 502) and by the Division Bench in _Geetha v. Geo Thomas_ (2009 (4) KLT 514) as legally correct.” 19. The petitioner was appointed as leave substitute for the period from 19.11.2003 to 10.1.2004. That the appointment of the petitioner was approved much later would not defeat her rights for preferential claim under Rule 51A. As on 10.1.2004, the second proviso to Rule 51A was not in the statute. For the aforesaid reasons, the Writ Petition is allowed and Exhibit P13 order dated 23.1.2009 passed by the Government is quashed. The petitioner would have preferential claim for appointment in the retirement vacancy of V.E.Sreedevi against W.P.(C) No.36004/2008 18 the claim of the ninth respondent. The Assistant Educational Officer, Mattannur, shall pass consequential orders, as expeditiously as possible. **K.T.SANKARAN JUDGE** csl