Smt. T.P. Radhamony and Smt. Maya G. Nair v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 10TH DAY OF FEBRUARY 2017/21ST MAGHA, 1938** ## **WP(C).No. 14052 of 2012 (F)** **----------------------------** **PETITIONER(S):** **-------------** **1. SMT.T.P.RADHAMONY, AGED 45 YEARS,** - **W/O. K.PRASAD, WORKING AS HIGH SCHOOL ASSISTANT, PARIPPU HIGH SCHOOL, PARIPPU P.O., KOTTAYAM-686 024, AND RESIDING AT SHANTI NIVAS, CHERUVALLY P.O., MANIMALA, KOTTAYAM.** **2. SMT. MAYA G.NAIR , AGED 42 YEARS,** - **W/O. BINOY, HIGH SCHOOL ASSISTANT, PARIPPU P.O., KOTTAYAM-686 024, AND RESIDING AT THAZHAVANA HOUSE, MOOLAVATTOM P.O., KOTTAYAM.** **BY ADV. SRI.N.UNNIKRISHNAN** **RESPONDENT(S):** - **--------------** **1. THE STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM-695 001.** **3. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM DISTRICT-686 001.** **4. THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM-686 001.** **5. THE MANAGER, PARIPPU HIGH SCHOOL, PARIPPU P.O., KOTTAYAM-686 024.** **6. THE HEADMISTRESS, PARIPPU HIGH SCHOOL, PARIPPU P.O., KOTTAYAM-686 024.** **7. SMT. N.THULASI,** - **UPPER PRIMARY SCHOOL ASSISTANT, PARIPPU HIGH SCHOOL, PARIPPU P.O., KOTTAYAM-686 024.** - **R1-R4 BY SENIOR GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH R7 BY ADVS. SRI.V.A.MUHAMMED** - **SRI.V.RAJASEKHARAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-01-2017 ALONG WITH WPC. 3402/2013, THE COURT ON 10-02-2017, DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 14052 of 2012 (F) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **EXT.P1 : TRUE COPY OF JUDGMENT DTD.9.12.2011 IN WPC NO.18882/2009-E.** - **EXT.P2 : TRUE COPY OF ORDER NO.B4/2364/11/K.DIS. DTD.28.5.2012. EXT.P3 : TRUE COPY OF PROCEEDINGS NO.M/HS-LPS/PROM/B4/2364/ 2012(2) DTD.2.6.2012.** **EXT.P4 : TRUE COPY OF JOINING REPORT DTD.4.6.2012 SUBMITTED BY THE PETITIONERS. EXT.P5 : TRUE COPY OF JOINING REPORT DTD.4.6.2012 SUBMITTED BY THE PETITIONERS. EXT.P6 : TRUE COPY OF WRIT PETITION NO.12849/2012. EXT.P7 : TRUE COPY OF JUDGMENT DTD.5.6.2012 IN WPC NO.12849/2012. EXT.P8 : TRUE COPY OF LETTER NO.32900/A1/2012/G.EDN. DTD.12.6.2012. EXT.P9 : TRUE COPY OF G.O.(P) NO.121/2013/G.EDN DTD.7.1.2013.** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL //TRUE COPY//** **Msv/** **P.S.TO JUDGE** ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).Nos. 14052 of 2012 and 3402 of 2013** **= = = = = = = = = = = = = = = Dated this the 10[th] day of February, 2017** ## **JUDGMENT** 1. W.P.(C) 3402 of 2013 is filed challenging an order issued by the Government in revision while W.P.(C) 14052 of 2012 is filed by the contesting respondents challenging the order of stay granted by the Government pending the revision. Since after issuance of the final order on the revision, nothing survives for consideration in the earlier writ petition, the parties and documents are referred to as in W.P.(C) 3402 of 2013. - 2.Petitioner was appointed as UPSA in the 5[th] respondent's school on 16.08.1993 in a regular vacancy. The appointment was approved. The petitioner was promoted as HSA (Maths) in an additional division vacancy and the said appointment was approved with effect from 28.09.1998 by order dated 10.08.2001. In the academic year 2005-2006 one post of HSA was reduced and the petitioner who was the junior most HSA faced reversion. W.P.(C).No.14052 & 3402/13 2 3.However, against the impending reversion as UPSA, the petitioner approached this Court filing W.P.(C) No. 22570/05. Her reversion was stayed and she was allowed to continue as HSA by Interim Order dated 06.09.2005. The contesting respondents got impleaded in the Writ Petition and moved to vacate the stay. The Interim Order was modified directing the writ petitioner to furnish an undertaking that she would refund the excess salary amount received as HSA in case it is found that she is not eligible to hold the post of HSA. In the meanwhile there arose regular vacancy of HSA (Maths) due to retirement of Shri Govindan Namboodiri, HSA (Maths) on 31.03.2009. The Manager appointed the Writ Petitioner as HSA (Maths) w.e.f. 01.04.2009. Respondents 6 and 7 approached this Court in W.P(C) No. 18882/09 claiming that they are seniors to the Writ Petitioner in the cadre of UPSA and as such, they are entitled to be promoted as HSA (Maths) under Rule 43 of Chapter XIV A, KER in preference to the writ petitioner. W.P.(C) No. 18882/09 filed by these respondents was considered by this Hon'ble Court along with W.P.(C) Nos. 3 W.P.(C).No.14052 & 3402/13 36197/04 & 22570/05 filed by the writ petitioner and by Exhibit P4 common judgment dated 09.12.2011, this Court directed the 4[th] respondent to consider the contentions raised by the petitioner that the minimum subject requirement will justify to her continuance in the school from the academic year 2005-06 onwards accommodating her against the post of HSA (Social Science) or HSA (Physical Science) as the case may be. It was also directed to consider the contentions of respondents 6 and 7 and that the subject ratio will have to be satisfied. 4.After hearing the parties and considering the written submission submitted by them, the 4[th] respondent issued Exhibit P5 order holding that the writ petitioner who was accommodated as HSA (SS) due to the introduction of HSA (English) cadre by G.O.(MS) No.11/02/Gen.Edn. dated 07.01.2002, became surplus from that sanctioned post. Hence, she is to be reverted as UPSA w.e.f. 15.07.2005. In consequence, it was further held that consequent on the retirement of Shri Govindan Namboodiri, HSA (Maths), w.e.f. 31.03.2009, the senior most qualified 43 claimant, Smt.T.P. W.P.(C).No.14052 & 3402/13 4 Radhamony is the legitimate claimant to the above post. - 5.Being aggrieved by Exhibit P5, the petitioner filed Revision Petition before the Government and by judgment dated 05.06.2013 in W.P.(C).No.12849 of 2012, this Court directed the Government to consider and pass orders on the revision petition after hearing the petitioner, the 5[th] 6[th] and 7[th] respondents. The Government by Ext. P10 order rejected the request of the petitioner to retain her as HSA w.e.f. 15.7.2005 and to appoint her as HSA against the vacancy arose on 01.04.2009 on the ground that the petitioner cannot claim Rule 51A as this is applicable only to teachers who are out of service and as long as she held the post of UPSA. Being aggrieved, this writ petition is filed. - 6.Heard learned counsel for the petitioners in both the writ petitions, learned Government Pleader appearing for the official respondents and the learned counsel appearing for the contesting respondents. 7. The learned counsel for the petitioner contends that the W.P.(C).No.14052 & 3402/13 5 petitioner is a Rule 51A claimant in respect of the vacancy of HSA(Maths) which arose in the school on 01.04.2009. Since Rule 43 and 51A of Chapter XIVA KER were amended only by Government Order dated 16.06.2012 with prospective effect, it is submitted that as on the date when the vacancy arose, the petitioner's Rule 51A claim was the superior claim and the appointment made by the Manager was perfectly in order. It is further submitted that the petitioner is a Rule 51-A claimant for the post of High School Assistant as she had approved service as High School Assistant (Maths) from 28.09.1998 to 14.07.2005. It is further contended that Exhibit P11 Government Letter dated 26.07.2006 states that a claim under Rule 51-A will prevail over Rule 43, hence the petitioner is the better claimant than 6[th] and 7[th] respondents for the post of High School Assistant (Maths) which arose on 01.04.2009, it is contended. This Court in Ext. P12 judgment reported in **Sandhya v. Jalaja Kumari** [2008 (3) KLT 655] has held that “Teacher who is a Rule 43 claimant can have and enforce to claim under Rule 51-A as well”. 8. It is contended by the contesting respondents that the writ petition cannot have any superior claim over the Respondents W.P.(C).No.14052 & 3402/13 6 Nos. 6 and 7. She had not worked as UPSA due to her own action in getting an interim stay against her reversion, she cannot be treated as a Rule 51A claimant against a non est post of HSA and she alone is to be blamed for this situation. She cannot claim protection under Rule 43 also. It is further argued that Respondent Nos. 6 and 7 are seniors as on the date of occurrence of vacancy the promotions effected in favour of respondent No. 6 and 7 are valid and justified as they are legitimate claimants under Rule 43. A decision reported in **1985 KHC 303** [Catherine Vs. Managerm H.S. Mundoor] is relied on by learned counsel for the contesting respondents to contend that Rule 43 would prevail over a Rule 51A claim. 9. A counter affidavit has been filed by the 4[th] respondent contending that the petitioner who has a permanent lien in the post of UPSA and who ought to have joined the post on reversion cannot stake a claim under Rule 51A. Since the said Rule envisages preference to those relieved teachers who are not appointed in any permanent vacancy under the same educational agency. The petitioner, who is a regular UPSA in the same school, cannot make a claim under Rule 51A, it is contended. 7 W.P.(C).No.14052 & 3402/13 Respondents 6 and 7, who are seniors to respondent 4, 3 claimant are entitled to be appointed in the vacancy of HSA (Maths) which arose on 01.04.2009, it is contended. - 10.I have considered the rival contentions. The petitioner was appointed as HSA against regular vacancy and the said appointment was approved with effect from 28.9.1998 by Exhibit P2 order. As on the date of her appointment as HSA, respondents 6 and 7 were not qualified for such appointment. Division fall occurred in the academic year 2005-2006 and the petitioner faced reversion as UPSA. She sought retention as HSA on the ground that minimum subject requirement would justify her retention since there were junior HSAs continuing when she was thrown out applying the subject ratio. - 11.While considering the issue as directed in Exhibit P5 judgment, the 4[th] respondent considered only the claim of the petitioner for retention applying the minimum subject requirement. Her claim for appointment against the vacancy which arose on 1.4.2009 as a Rule 51A claimant was not even adverted to. In Exhibit P10, the Government proceeds on the basis that the petitioner is not a W.P.(C).No.14052 & 3402/13 8 retrenched teacher, since she was only reverted as UPSA for want of vacancy and therefore, she will not be a Rule 51A claimant. 12.A Division Bench of this Court has considered the question in detail and has held that in respect of vacancies arising after amendment to the rules with effect from 17.6.2005, a claim under Rule 51A would clearly prevail over Rule 43 (till the further amendment in 2012). The petitioner who was thrown out from the post of HSA for want of vacancy and reverted to the post of UPSA would undoubtedly be a Rule 51A claimant in the post of HSA which had been substantially held by her under orders of approval. Neither the entitlement to continuance in the school as UPSA nor her continuance as HSA pursuant to conditional orders of stay issued by this Court could legally negate her claim under Rule 51A of Chapter XIVA KER which is a clear statutory claim. The non consideration of this statutory claim, which, in terms of the Rules as they stood as on the date of occurrence of vacancy, was a better claim than the one advanced by the contesting respondents under Rule 43, vitiates Exhibits P4 and P10 proceedings. The writ petition was clearly a W.P.(C).No.14052 & 3402/13 9 Rule 51A claimant to the post of HSA (Maths) which arose on 1.4.2009 and had a better claim to be appointed against the post if her claim for retention as HSA on the strength of minimum subject requirement was unacceptable. In the above circumstances, Exhibits P5 and P10 orders in W.P (C).No.3402 of 2013 are vitiated by errors of fact and law apparent on the face of the record. The said orders are set aside. The Government is directed to pass fresh orders treating the petitioner as a Rule 51A claimant to the vacancy which arose on 1.4.2009 and adjusting the claim of respondents 6 and 7 against later vacancies. Orders shall be passed as directed within two months from the date of receipt of a copy of this judgment. W.P (C).No.14052 of 2012 is closed as infructuous. sd/- **Anu Sivaraman, Judge** sj