Shirly Daniel W/o Robert Mathew Jaison vs State of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **WEDNESDAY, THE 19TH DAY OF SEPTEMBER 2012/28TH BHADRA 1934** **WP(C).No. 26437 of 2011 (D)** **--------------------------------------** ## **PETITIONER(S):** **-----------------------SHIRLY DANIEL W/O ROBERT MATHEW JAISON VILLA, KOLLAKADAVU, CHENGANNUR FROM CHAWEKAYIL CHERIYANADU, KOLLAKADAVU, CHENGANNUR (UPPER PRIMARY SCHOOL ASSISTANT, APNM CMS UPPER PRIMARY SCHOOL, KULATHUPUZHA).** **BY ADVS.SRI.S.SUBHASH CHAND SMT.V.AJITHA** ## **RESPONDENT(S):** - **-------------------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATIONAL DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-695001.** **3. THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION PATHANAMTHITTA AT THIRUVALLA-689101.** **4. THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER THIRUVALLA-689101.** **5. THE CORPORATE MANAGER, CMS SCHOOLS, DIOCESE OF MADHYA KERALA DIOCESAN OFFICE, BISHOP GIL MEMORIAL BUILDING CATHEDRAL ROAD, KOTTAYAM-686001.** **R1 TO R4 BY GOVERNMENT PLEADER SMT. K.A. LOWSY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DCS** **WP(C).No. 26437 of 2011 (D)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :-** **EXT.P1: COPY OF THE ORDER OF APPOINTMENT DATED 22/8/2005 ISSUED BY RESPONDENT NO.5 EXT.P2: COPY OF THE ORDER DATED 13/8/2007 ISSUED BY ` RESPONDENT NO.5 EXT.P3: COPY OF THE GOVERNMENT ORDER BEARING GO(P)259/2006/G.EDN. DATED 12/10/2006.** **EXT.P4: COPY OF THE ORDER BEARING NO.29625/L2/08/G.EDN.DATED 24/1/2009 ISSUED BY RESPONDENT NO.1. EXT.P5: COPY OF THE REVISION PETITION DATED 9/2/2010 SUBMITTED BY RESPONDENT NO.5 UNDER RULE 8A CHAPTER XIVA KER BEFORE RESPONDENT NO.2 EXT.P6: COPY OF THE CIRCULAR DATED 18/5/2007 ISSUED BY RESPONDENT NO.1. EXT.P7: COPY OF THE REVISION PETITION/REPRESENTATION DATED 6/5/2011 SUBMITTED BEFORE RESPONDENT NO.2. EXT.P8: TRUE COPY OF THE JUDGMENT DATED 27/5/2011 IN WP(C) NO.14260/2011 PASSED BY THIS HON'BLE COURT. EXT.P9: COPY OF THE ORDER DATED 11/8/2011 PASSED BY RESPONDENT NO.2. EXT.P10: COPY OF THE COMMUNICATION DATED 29/8/2011 ISSUED BY RESPONDENT NO.2.** ## **RESPONDENTS' EXHIBITS :- NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE** **DCS** ## **P.R.RAMACHANDRA MENON, J ---------------------------------------** ## **W.P.(C) NO. 26437 of 2011(D)** **----------------------------------------** Dated this the 19[th] day of September, 2012 ## **JUDGMENT** The rights and liberties of the petitioner, who is a Rule 51A claimant, to have the appointment approved, form the subject matter of challenge. 2. The petitioner was originally appointed against a leave vacancy in the 5[th] respondent school, for the period from 22.08.2005 to 16.08.2007, pursuant to the long leave without allowance granted to one Smt. Bright P Varghese. The said appointment was approved by the 4[th] respondent and the petitioner was disbursed all the salary and such other benefits. In the meanwhile, the Government passed Ext. P3 G.O. Dated 12.10.2006, stipulating that, in 'uneconomic schools' (like the 5[th] respondent) no new appointment should be effected in respect of the vacancies which occurred after 12.10.2006, but for filling up such vacancies by giving placement to 'protected hands'. Subsequently, this was clarified by the Government by issuing Ext. P6 Circular, making it clear that the teachers who were continuing in service prior to the date of Ext. P3 G.O. ie. W.P.(C) NO. 26437 of 2011(D) 2 12.10.2006 could continue, though it is an uneconomic school. 3. While so, the teacher by name Bright P. Varghese sought for further extension of the leave by three years from 17.08.2007 to 16.08.2010, which was granted and in the resulting vacancy the petitioner was appointed again as per Ext.P2 order dated 13.08.2007. By virtue of said placement given to the petitioner, she was made to continue in the post, but Ext. P2 appointment was never approved referring to the mandate under Ext. P3 G.O., and holding that it was a fresh appointment. The case of the petitioner is that the idea and understanding of the concerned respondent is thoroughly wrong and misconceived. The learned counsel submits that the rights and liberties of the petitioner who is a Rule 51A claimant, as against that of a 'protected teacher', stands well settled in view of the decision rendered by this Court reported in **Ciji P. Jose v. State of Kerala [2012(1) KLT 867]** 4. The learned Government Pleader however submits that the issue with regard to disputed rights between a Rule 43 claimant and a 'protected teacher' came to be agitated before a division bench of this Court in W.A.No. 1267/2012' wherein an W.P.(C) NO. 26437 of 2011(D) 3 interim order has been passed on 06.08.2012, containing certain observations, by virtue of which, the case as projected by the writ petitioner cannot be taken as it is. Primarily, this Court finds that the appeal is not against the verdict which is reported in 2012(1) KLT 867 (cited supra) and further that the above order is only an interim order, which does not declare the law and the matter has to be adjudicated in the due course after hearing the writ appeal. The petitioner also seeks to rely on the law declared by the Division Bench of this Court as per the decision reported in **Abdu Rahiman vs. District Collector, Malappuram & Another [2009 (4) KHC 283 (DB)].** 5. The nature of appointment given to the petitioner and the and the continued discharging of duty are sought to be considered, in the light of Ext. P4 order passed by the 1[st] respondent, whereby, under exactly similar circumstance, the appointment given to the person concerned who was continuing in the post without any break, was permitted to continue and the appointment was approved, which course is sought to be pursued in the case of the petitioner as well. W.P.(C) NO. 26437 of 2011(D) 4 6. Even after passing the impugned order vide Ext. P9 dated 11.08.2011, the second respondent, as per Ext. P10 dated 29.08.2011, has asked the petitioner to furnish a copy of the revision petition mentioned in Ext. P8 judgment, virtually suggesting that the said revision petition is still to be considered. On going through the contents of Ext. P9, it is seen that only the revision petition preferred by the Manager on 09.02.2010 was cited as referred to, though the petitioner was also heard, along with the Manager, in connection with the proceedings. The revision petition preferred by the petitioner as directed by this Court to be considered, vide Ext. P8, is also referred to in the 3[rd] paragraph of Ext. P9. As such, issuance of Ext. P10 cannot be of any re-significance and it presumably is out of way mistake. In any view of the matter, this Court finds that the question of approval in the case of the petitioner in respect of second spell, by virtue of Ext. P2 appointment, requires to be reconsidered by the Government in the light of Ext. P6 Circular, Ext. P4 order passed by the Government under similar circumstances and also in the light of the law declared by this Court in 2012 (1) KLT 867 (cited supra). W.P.(C) NO. 26437 of 2011(D) 5 7. In the above facts and circumstances, Ext. P9 is set aside and the 2[nd] respondent is directed to reconsider the matter after giving a fresh opportunity of hearing to the petitioner and so also to the 5[th] respondent Manager. The proceedings shall be finalised, in accordance with law, as expeditiously as possible, at any rate, within 'two' months from the date of receipt of a copy of this judgment. The writ petition is disposed as above. SD/- **P.R.RAMACHANDRA MENON,** //TRUE COPY// **JUDGE** P.A. TO JUDGE **DCS**