Sini Joseph v. Government of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937 W.P.(C).No. 9066 of 2010 (G) --------------------------- ## PETITIONER: - ------------------ SINI JOSEPH, UPSA, ST. AUGUSTINE'S H.S., AROOR, NOW RESIDING AT PALLATH HOUSE, THOPPUMPADY, KOCHI-5. BY ADV.SRI. HANIS M.H. (MANAKAL) RESPONDENT(S): ------------------------ 1. GOVERNMENT OF KERALA, SECRETARY TO GOVERNMENT, GENERAL EDUCATION (H) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, ALLEPPEY. 3. DISTRICT EDUCATIONAL OFFICER, ALLEPPEY. 4. THE GENERAL MANAGER,CORPORATE EDUCATIONAL AGENCY, CATHOLIC CENTRE, THOPPUMPADY KOCHI-5. R1 TO R3 BY GOVERNMENT PLEADER, SRI. T.T. MUHAMOOD. R4 BY ADV. SRI.MATHEWS K.PHILIP R4 BY ADV. SRI.N.J.ROSHER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.T.O. ## W.P.(C).No. 9066 of 2010 (G) ## APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF APPOINTMENT LETTER NO.B5/2004 DATED 22.07.2004 ISSUED BY THE 4TH RESPONDENT IN FAVOUR OF THE PETITIONER. - EXHIBIT P2: TRUE COPY OF ORDER G.O.(P) NO.169/04.G.EDN. DATED 15.06.2004 OF THE 1ST RESPONDENT. - EXHIBIT P3: TRUE COPY OF ORDER DATED 16.06.2005 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT P4: TRUE COPY OF INFORMATION RECEIVED FROM THE 2ND RESPONDENT'S OFFICE UNDER RIGHT TO INFORMATION ACT, NO.B.1/12128/2008 DATED 04.07.2008. EXHIBIT P5: TRUE COPY OF ORDER NO.36907/H2/09/G.EDN. DATED 18.07.2009 ISSUED BY THE 1ST RESPONDENT. ## RESPONDENTS' EXHIBITS: NIL //TRUE COPY// ## P.S. TO JUDGE St/- ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.9066 of 2010** ## **----------------------------------------------Dated this the 7[th] day of January, 2016** ## **JUDGMENT** The captioned writ petition is filed by the petitioner seeking to quash Exts.P3 and P5 orders passed by the 2[nd] Respondent and the 1[st] Respondent respectively, whereby the request of the petitioner to pay her salary for the period from 22.07.2004 to 23.06.2005 was rejected. 2. Brief facts required for the disposal of the writ petition are as follows: 3. The petitioner was appointed as UPSA by the 4[th] Respondent against the promotion vacancy of one Mathew M.O., who had been promoted as Headmaster in St. Joseph LPS, North Kumbalanghi. A vacancy arose in the school on 01.06.2004 and the 4[th] Respondent Management appointed the petitioner on 22.07.2004, evident from Ext.P1 order dated 22.07.2004. 4. After securing advice from the Kerala Public Service Commission, petitioner was relieved from the said school and joined another school on 24.06.2005 as directed in the advice **W.P.(C) No.9066 of 2010** 2 memo. Therefore, the period during which the petitioner worked in the said school was between 22.07.2004 and 23.06.2005. The appointment is not approved and in the order it says that as per G.O.(P) No.169/04/G.Edn. dated 15.06.2004, it is approved only on daily wages. The 4[th] Respondent has preferred an appeal against the said order before the 2[nd] Respondent which was dismissed by Ext.P3 dated 16.06.2005. Thereafter, the petitioner filed representation before the authorities, which was also dismissed. 5. Aggrieved by Ext.P3, petitioner filed revision before the 1[st] Respondent which was also dismissed as per Ext.P5. Thus aggrieved by Exts.P3 and P5 orders, petitioner has preferred this writ petition. 6. The 1[st] Respondent has filed a counter affidavit refuting the allegations and claims and demands made by the petitioner in the writ petition. The main contention advanced in the counter affidavit by the 1[st] Respondent is that the appointment of the senior claimant of the petitioner was pending and further that as per Ext.P2 Government Order, the 1[st] Respondent have ordered that the vacancies having 3 **W.P.(C) No.9066 of 2010** duration less than one academic year should be filled up only on daily wage basis. So also, as per G.O.(P) No.104/08/G.Edn. dated 10.06.2008, Government have ordered that fractions of academic year/s should be filled up on daily wage basis and approval of appointments given prior to the date of that order will not be reviewed and that the petitioner was not given approval so far. The period during which the petitioner was appointed in the school of the 4[th] Respondent at Aroor is for the period from 22.07.2004 to 23.06.2005, which is less than one academic year. 7. That apart, it is also contended that petitioner is not a Rule 51A claimant and hence petitioner is not entitled to get the benefit of the judgment of the Division Bench of this Court in ' _**Sreelekha v. Manoj**_ ' [2012 (3) KLT 54]. It is the further contention of the 1[st] Respondent that for getting salary, an aided school teacher should work in a post with proper approval. Therefore, it is contended that in accordance with the terms of Rule 7A(3) of Chapter XIV A of the K.E.R which stood amended with effect from 27.04.2005, the petitioner is not entitled to get any benefit under the said Rule. That apart, it is also contended that petitioner is not also entitled to get 4 **W.P.(C) No.9066 of 2010** any benefits under Rule 51A of Chapter XIV A of KER. The 4[th] Respondent management has filed a counter affidavit justifying the action of appointment of the petitioner in the school. Moreover, it is contended that the petitioner was appointed against a permanent vacancy and therefore she is entitled to get all benefits deriving from Rule 7A(3) and Rule 51A of Chapter XIV A of KER. It is also contended that the pendency of approval of the senior claimant viz. Smt. Mary Jude A.J. as UPSA in the retirement vacancy of Smt. Elizabeth George was also against the permanent vacancy and therefore both are entitled to be approved being permanent vacancies. 8. Heard the learned counsel for the petitioner, learned Government Pleader and the learned counsel for the 4[th] Respondent, and perused the records. 9. The subject matter of the case in the writ petition revolves round Ext.P2 Government Order. There are certain admitted facts. The petitioner was admittedly appointed against the permanent vacancy of one Mathew M.O., UPSA, who was promoted as Headmaster in St. Joseph LPS, North Kumbalanghi with effect from 01.06.2004. So also, Rule 7A(3) of Chapter XIV A, as it originally stood before the amendment **W.P.(C) No.9066 of 2010** 5 of 27.04.2005, the duration prescribed thereunder for appointment against a vacancy was only two months. While Ext.P2 order was issued by the Government under Rule 7A(3) as it originally stood was in force and therefore Ext.P2 Government Order could not have interfered with the rule that was in force. Taking into account the rule position as on the date of appointment of the petitioner i.e., 22.07.2004, only a period of two months alone was required for filling up the vacancy. The said rule was amended only with effect from 16.04.2005 (Gazette notification is dated 27.04.2005). Therefore, appointment of the petitioner was against permanent vacancy which existed from 22.07.2004 to 23.06.2005 and thereupon the petitioner is entitled to get the benefit of Rule 7A(3) as it stood originally. The rule was amended subsequent to Ext.P2 Government Order and therefore under no circumstances it can be legally presumed that by virtue of Ext.P2 order passed by the Government, the appointment of the petitioner could not be approved. 10. That apart, so far as Rule 51A is concerned, a proviso was added to the same by Government Order dated 16.04.2005. These two provisions incorporated into the rules 6 **W.P.(C) No.9066 of 2010** have only prospective operation as held by a Division Bench of this Court in ' _**Sreelekha'**_ case (supra). In the said judgment, the Division Bench has entered into a categoric finding that the amendments to the said rule has only prospective operation. It was also found by this Court that if the Government wanted clause 6 to be operative with effect from the date of the Government Order, then the 1[st] Respondent could have specifically stated it in the Government Order that the provisions will be operative forthwith and the amendment to the rule would be made retrospectively with effect from the date of the Government Order and since the same was not done while issuing the said order, the Government did not introduce the Rule with retrospective effect. 11. Taking into account the totality of the circumstances and assimilating the legal position as stated above, I am of the considered opinion that Exts.P3 and P5 orders cannot be sustained legally. Therefore, Exts.P3 and P5 orders passed by the 2[nd] and 1[st] Respondents respectively are set aside and the 2[nd] Respondent is directed to provide all attendant benefits flowing from Rules 7A(3) and 51A as it originally stood to the petitioner and pass appropriate orders within a period of two 7 ## **W.P.(C) No.9066 of 2010** months from the date of receipt of a copy of this judgment. The writ petition is allowed accordingly. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/07.01.2016