Sindhu T.M. v. State of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 11TH DAY OF APRIL 2014/21ST CHAITHRA, 1936** ## **WP(C).No. 24242 of 2012 (E)** **----------------------------** ## **PETITIONER :** **--------------------------** **SINDHU T.M., THAZHE, MAYICHERRI HOUSE, P.O.PERAMBRA, KOZHIKODE DISTRICT. PIN-673 525. (WORKING AS HIGH SCHOOL ASSISTANT (MATHEMATICS) VANDANMEDU, M.E.S. H.S.SCHOOL, IDUKKI).** **BY ADVS.SRI.C.VATHSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** ## **RESPONDENT(S):** **----------------------------** ## **1. THE STATE OF KERALA,** - **REPRESENTED BY PRINCIPLE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.PIN- 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. PIN-695 001.** **3. THE CORPORATE MANAGER,** - **THE MUSLIM EDUCATIONAL SOCIETY, BANK ROAD,** - **CALICUT,KOZHIKODE DISTRICT, PIN-673 001.** ## **4. SAJIDA,ADANGAPURAVAN,** - **PULIKKAL HOUSE, KARANUR.P.O., MALAPPURAM DISTRICT. PIN-676 505.** ***5. DISTRICT EDUCATIONAL OFFICER, MALAURAM DISTRICT,P.O.MALAPPURAM. PIN-676 505. *(CORRECTED)** ***(THE ADDRESS OF RESPONDENT 5 IS CORRECTED AND SUBSTITUTED AS:** - ***R5: DISTRICT EDUCATIONAL OFFICER, VANDOOR, MALAPPURAM.P.O.,MALAPPURAM DISTRICT.** ***AS PER ORDER DATED 31/01/2013 IN IA NO.1183/2013** **R1,R2 & R5 BY SR GOVERNMENT PLEADER SRI.P.FAZIL R3 BY ADVS. SRI.BABU KARUKAPADATH** **SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE SRI.K.A.NOUSHAD SRI.P.G.PRAMOD SRI.KANDAMPULLY RAHUL SRI.A.P.EBRAHIM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-03-2014, THE COURT ON 11-04-2014 DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.24242/2012** **APPENDIX** ## **PETITIONER(S) EXHIBITS** - **P1TRUE COPY OF THE APPOINTMENT ORDER BY 3RD RESPONDENT DT. 28.11.2008.** - **P2TRUE COPY OF THE ORDER OF 2ND RESPONDENT APPROVING THE APPOINTMENT OF PETITIONER AS PER EXHIBIT P1. DT. 19/1/2010** - **P3TRUE COPY OF THE PROCEEDING OF 3RD RESPONDENT DATED 3.5.2011 DECLARING THE COMPLETION OF PROBATION OF THE PETITIONER.** - **P4TRUE COPY OF THE GOVERNMENT ORDER DATED 25.7.2012 WITH NO.GO(P) NO.244/12/M.ED.** - **P5TRUE COPY OF THE GOVERNMENT ORDER WITH NO.GO(P)NO.294/12/M.ED DATED 20.9.2012.** - **P6TRUE COPY OF THE REPRESENTATION OF THE PETITIONER TO R3 DEMANDING APPONTMENT AS PER RULE 51-A OF CHAPTER XIV A OF K E R. DT. 21.5.2012.** - **P7TRUE COPY OF THE REPRESENTATION TO 5TH RESPONDENT.** - **P7(A)- TRUE COPY OF THE REPRESENTATION TO THE DEPUTY DIRECTOR OF EDUCATION DT. 14.6.2012.** - **P8TRUE COPY OF THE LETTER DATED 4.4.2012 OF 2ND RESPONDENT.** - **P9TRUE COPY OF THE CIRCULAR NO. 31904/J2/12/G.EDN DATED 6.6.2012 BY IST RESPONDENT.** - **P10TRUE COPY OF THE LETTER DATED 31/1/2013 OF D E O VANDOOR** ## **RESPONDENTS' EXHIBITS:** - **R3(A) TRUE COPY OF THE ORDER DATED 30/11/2012 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **A.V. RAMAKRISHNA PILLAI, J. -------------------------------------------------W.P.(C) No. 24242 of 2012 -------------------------------------------------Dated this the 11[th] day of April, 2014** ## **J U D G M E N T** The petitioner has approached this Court for a declaration that she is entitled to be appointed as High School Assistant (Mathematics) under the management of any of the High School section in the schools under the 3[rd] respondent as Rule 51A claimant under Chapter XIV A of KER and, for a direction to the 3[rd] respondent to appoint her forthwith in the permanent vacancy of High School Assistant (Mathematics) which arose in M.E.S. Higher Secondary School, Mampad. 2. The petitioner is working as High School Assistant (Mathematics) in the M.E.S. Higher Secondary School, Vandanmedu, Idukki, under the management of the 3[rd] respondent. She was appointed by the 3[rd] respondent in the aforesaid school with effect from 28.11.2008 to 02.12.2012 in a leave vacancy. Her appointment was approved by the 2[nd] respondent and consequentially, the 3[rd] respondent, by way of proceedings dated 03.05.2011, declared that she had successfully completed her probation period on 01.06.2010. W.P.(C) No. 24242 of 2012 **==> picture [20 x 8] intentionally omitted <==** Therefore, the petitioner alleges that she is a Rule 51A claimant under Chapter XIV A of the KER. Under the corporate management of the 3[rd] respondent, there are six Higher Secondary schools, where 26 permanent vacancies of High School Assistant (Mathematics) exist; it is alleged. She further alleges that though she is entitled to be appointed in a permanent vacancy in any of the aforesaid schools as H.S.A. (Mathematics), instead of appointing her, the 3[rd] respondent appointed the 4[th] respondent in a permanent vacancy. This appointment was made after the month of March, 2012. According to the petitioner, the 4[th] respondent is not having a TET qualification. The petitioner alleges that as her service in the present vacancy is only up to 02.12.2012 and due to the denial of her right to be appointed in a permanent vacancy, she would be facing break in service. It is with this background, the petitioner has come up before this Court. 3. In the counter affidavit filed by the 3[rd] respondent, they would contend that the petitioner was appointed in the resultant vacancy of one Maya, who was promoted as teacher in charge of Headmaster, when the Headmaster went on long leave from 01.06.2009 to 02.12.2012. It was pointed out that W.P.(C) No. 24242 of 2012 **==> picture [20 x 8] intentionally omitted <==** when the Headmaster extended her leave for a further period of four years till 30.11.2016, consequentially, the appointment of Smt.V.Maya as teacher in charge as well as the petitioner as leave substitute H.S.A. (Mathematics) also stand extended, covering the aforesaid leave period. Regarding the claim of the petitioner for regular appointment, it was contended that the post against which the claim is made is an additional post admissible as per the student strength, which awaits sanction from the Department for want of finalization of staff fixation due to the restriction imposed by the Government. The 3[rd] respondent would contend that there was no impediment for continued payment of salary of the petitioner. It is further pointed out that the additional regular posts of H.S.A. (Mathematics) anticipated in the year 2011-2012 at M.E.S. H.S.S., Vandanmedu itself is kept vacant for absorption of the petitioner on account of the ban imposed by the Government. The stand taken by the 3[rd] respondent is that so long as the petitioner was not thrown out of service, she is not entitled to the protection under Rule 51A. It was also contended that the 4[th] respondent is appointed in an additional vacancy, for which sanction is yet to be obtained from the Government and; the W.P.(C) No. 24242 of 2012 **==> picture [20 x 8] intentionally omitted <==** 4[th] respondent is not drawing salary and her claim for the same is pending before the authorities. Therefore, according to the 3[rd] respondent, the petitioner stands in a better position than that of the 4[th] respondent. 4. Arguments have been heard. 5. Admittedly, the petitioner is continuing in service as H.S.A. (Mathematics) in a school under the management of the 3[rd] respondent in a leave vacancy. The petitioner claims that she is a 51A claimant under Chapter XIV A of KER and, therefore, entitled to be appointed in a permanent vacancy in any of the schools under the 3[rd] respondent. The 3[rd] respondent per contra would contend that the petitioner was not thrown out of the service and; they are intending to give the petitioner a permanent berth as and when the ban imposed by the Government is lifted. According to the petitioner, she is a Rule 51-A claimant as on 01.01.2010. This fact is not at all denied by any of the respondents. Therefore, the petitioner claims that she entitled to be appointed in any one of the vacancies of H.S.A. (Mathematics), which arose after 01.01.2010 in any of the schools under the management of the 3[rd] respondent. The stand taken by the 3[rd] respondent is W.P.(C) No. 24242 of 2012 **==> picture [20 x 8] intentionally omitted <==** that the petitioner was not thrown out of service and; the posts against which persons junior to the petitioner were appointed, are additional posts admissible as per the student strength, which awaits sanction from the Department. 6. The petitioner produced Ext.P10 along with an interlocutory application by which the petitioner was informed by the District Educational Officer, Vandoor that the appointment of the 4[th] respondent has been rejected as a 51A claimant like the petitioner was awaiting for regular appointment. The learned Government Pleader also admit the rejection of the appointment of the 4[th] respondent. 7. A Full Bench of this Court in **Soman** v. **Manager, A.K.M. High School** [2013 (2) KLT 215 (F.B.)] observed that the right to raise a claim under Rule 51A shall not be dependent upon the factum of approval; but, it should be based on the appointment made complying with Rule 7A. It was observed that a right, which is accrued under the provision of law, cannot be dependent upon the volition of a Manager or an Educational Officer. When a person is appointed complying with Rule 7A of Chapter XIV A of the KER in a short term vacancy, he shall be entitled to raise a W.P.(C) No. 24242 of 2012 **==> picture [20 x 8] intentionally omitted <==** claim for preference for appointment as provided under Rule 51A; so observed by the Full Bench. As the vacancy in which the 4[th] respondent was appointed is still existing, the petitioner is having a preferential claim over the said post by virtue of Rule 51A of Chapter XIV A of KER. Therefore, this Court is of the view that the petitioner is entitled to get the relief as prayed for. In the result, the writ petition is allowed. It is hereby made clear that the petitioner is entitled to be appointed as H.S.A. (Mathematics) in any of the schools under the management of the 3[rd] respondent as Rule 51A claimant under Chapter XIV A of KER. The 3[rd] respondent is directed to appoint the petitioner forthwith in the permanent vacancy of H.S.A. (Mathematics), which arose in M.E.S. Higher Secondary School, Mampad. Sd/- ## **A.V. RAMAKRISHNA PILLAI, JUDGE** bka/-