State of Kerala v. V. Suma Devi and V. Rajesh Kamath and The Manager

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 1ST DAY OF AUGUST 2017/10TH SRAVANA, 1939** **WA.No. 2111 of 2015 () IN WP(C).4643/2012 ------------------------------------------AGAINST THE ORDER/JUDGMENT IN WP(C) 4643/2012 OF HIGH COURT OF KERALA DATED 18-02-2015** **APPELLANT(S)/RESPONDENTS 1 TO 4 IN THE WPC:** **------------------------------------------** ## **1. STATE OF KERALA** **REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM - 695 014.** **3. THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA - 688 001.** **4. THE DISTRICT EDUCATIONAL OFFICER MAVELIKKARA, ALAPPUZHA - 688 101.** **BY ADV.A.J. VARGHESE, GOVERNMENT PLEADER** **RESPONDENT(S)/PETITIONER & 5TH RESPONDENT IN THE WPC: -----------------------------------------------------** ## **1. V.S.SUMA DEVI** - **W/O.PRAVEEN KUMAR, HIGH SCHOOL ASSISTANT (MALAYALAM), SREE VITOBA HIGH SCHOOL, KAYAMKULAM, ALAPPUZHA DISTRICT - 690 502.** **2. V.RAJESH KAMATH HIGH SCHOOL ASSISTANT (SOCIAL STUDIES), SREE VITOBA HIGH SCHOOL, KAYAMKULAM, ALAPPUZHA DISTRICT - 690 502.** **3. THE MANAGER** - **SREE VITOBA HIGH SCHOOL, KAYAMKULAM, ALAPPUZHA DISTRICT - 690 502.** **R1-R3 BY ADV. SRI.V.A.MUHAMMED R1-R3 BY ADV. SRI.V.RAJASEKHARAN NAIR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKK/271017** ## K. Surendra Mohan & Mary Joseph, JJ. ========================= W.A. No.2111 of 2015 ========================= Dated this the 01[st] day of August, 2017 ## J U D G M E N T ## K. Surendra Mohan, J. The state is in appeal aggrieved by the judgment dated 18.02.2015, of the learned Single Judge in W.P.(C) No.4643/2010. As per the judgment of the learned Single Judge, the writ petition filed by respondents 1 and 2 herein has been allowed and a direction has been issued to approve the appointment of respondents 1 and 2 and disburse salary to them. 2. Respondents 1 and 2 are working as High School Assistants (HSAs) in the school of the third respondent/Manager. The first respondent was initially appointed as an Upper Primary School Assistant (UPSA) against an additional division post, on 05.06.1986. The second respondent was also appointed as a UPSA to an additional post on 09.06.2006. The said appointments were approved. While they were working as UPSAs, two vacancies of High School Assistants (HSAs) arose. Taking into account their claims under Rule 43 of Chapter XIV A of the W.A. No.2111 of 2015 2 Kerala Education Rules, 1959 (KER for short), they were appointed to the said posts on 01.06.2010. However, the District Educational Officer by Ext.P4 order dated 30.03.2011 rejected the grant of approval to the said appointments. The reason stated is that the said vacancies should have to be filled up with protected hands. Though the said order was taken up in appeal, Ext.P4 was confirmed. While so, the second petitioner's appointment was approved with effect from 01.06.2010, as per Ext.P6. According to respondents 1 and 2, they were statutory claimants under Rule 43, Chapter XIV A, KER. Therefore, their right to be promoted as HSAs could not be annulled on the basis of an executive order issued by the Government. 3. Though the contentions of respondents 1 and 2 were opposed by the appellants herein, by filing a counter affidavit, the learned Single Judge accepted the contentions of the appellant and directed the grant of approval to their appointments as HSAs. The State is in appeal against the said judgment. The Manager has not entered appearance either before the learned Single Judge or before us. W.A. No.2111 of 2015 3 4. According to the learned Government Pleader, who appears for the appellants, the Manager had effected six appointments of teachers to the school to additional vacancies prior to 2010. During the said period, there was a ban against fresh appointments, in force. Therefore, the appointments were illegal. However, the Government subsequently issued G.O.(P) No.10/10/G.Edn. dated 12.01.2010 and permitted the grant of approval to teachers who were appointed in violation of the ban order, provided the Manager executed a bond on a stamp paper worth Rs.50/- (Rupees fifty only) undertaking to appoint protected teachers/non-teaching staff equal to the number of such appointees in all arising vacancies in the school from 20102011 onwards. It is pointed out that the Manager has in the present case, executed such an agreement. In view of the agreement executed by the Manager, the Government approved the appointment of six teachers made during the period that the ban order was in force. It was thereafter that the two vacancies of HSAs arose. Since the Manager had already executed an W.A. No.2111 of 2015 4 agreement as stipulated by the Government Order dated 12.01.2010, it was obligatory on his part to have appointed protected teachers to the said post. Instead, he has filled up the said posts by promoting respondents 1 and 2, which according to the learned Government Pleader is in violation of the terms of the Government Order as well as the agreement executed by him. It was for the said reason that, no approval was granted to the appointments as per Ext.P4. According to the learned Government Pleader the said stand is fully justified and the learned Single Judge erred in setting aside the impugned order. 5. Another contention put forward by the learned Government Pleader is that the statutory claim under Rule 43, Chapter XIV A asserted by respondents 1 and 2 was not available to them at the relevant point of time for the reason that, the Rule position at the particular point of time conferred a preference on claimants under Rule 51A, Chapter XIV A. In view of the first preference accorded by Rule 51A to protected teachers, the Manager ought to have appointed protected teachers instead of promoting respondents 1 and 2. Our attention is drawn to the W.A. No.2111 of 2015 5 Rule as it stood in 2007, to support the contention that at the relevant time Rule 51A as per the second proviso stipulated that first preference shall be given to protected teachers. Therefore, according to the learned Government Pleader the reliance on Rule 43, Chapter XIV A cannot protect the promotions given to respondents 1 and 2. 6. Per contra, Adv.V.A.Muhammed who appears for respondents 1 and 2 contends that though initially respondents 1 and 2 had been appointed to additional vacancies of UPSAs, their promotion as HSAs was to regular vacancies. Since they were appointed to regular vacancies from 01.06.2010, according to the learned counsel, G.O.(P) No.10/10/G.Edn. dated 12.01.2010 has no application at all. The said Government Order stipulates the execution of an agreement as a condition for grant of approval to only appointments made to additional divisions during the period from 2006-2007 to 2009-2010. The present promotions of respondents 1 and 2 having been made to regular vacancies are not affected in any manner by the said Government Order. It is further pointed out that respondents 1 and 2 were W.A. No.2111 of 2015 6 working as UPSAs as on 01.06.2010, their appointments had been approved by the authorities. Since they were fully qualified to be promoted as HSAs, they had a claim under Rule 43, Chapter XIV A, KER. The said claim, according to the learned counsel, is a statutory right that would have precedence over the stipulations in G.O.(P) No.10/10/G.Edn. dated 12.01.2010, the latter being only an executive order. It is further pointed out that, even assuming that the Rule position as on the relevant date favoured the appointment of the claimant under Rule 51A, Chapter XIV A, since there were no claimants under Rule 51A in the same school, the Manager was justified in promoting respondents 1 and 2 as HSAs. Placing reliance on Ext.P8 judgment of a learned Single Judge of this Court, the counsel contends that the claim of a person under Rule 43 has to be given precedence to a claim under Rule 51 A. The above position has also found statutory recognition subsequently, it is pointed out. With respect to protected teachers who are deployed from other schools, it is contended that a Rule 43 claimant of the same school stands on a higher pedestal and is entitled to be preferred. According to the W.A. No.2111 of 2015 7 learned counsel, a Division Bench of this Court has by judgment dated 11.02.2014 in W.A. No.1267/2012, confirmed Ext.P8 judgment. The counsel has also placed reliance on a judgment of another learned Single Judge of this Court in Kerala Aided L.P. and U.P. School, Kollam v. State of Kerala and Another [ILR 2016 (1) Kerala 590] to contend that, protected teachers deployed from other schools were required to be accommodated, only subject to the claim under Rule 43, Chapter XIV A of the teachers in the same school. The counsel has also drawn our attention to G.O. (MS) No. 20/82/G.Edn. dated 15.02.1982 to point out that as per the said order, even in the case of new, upgraded aided schools the vacancies were directed to be filled up with protected teachers, only subject to the rights of claimants under Rule 43 and 51A, Chapter XIV A, KER. For the above reasons, it is contended there are no grounds to interfere with the judgment appealed against. 7. Heard. Though respondents 1 and 2 were initially appointed to vacancies that arose due to sanction of additional divisions, the said appointments were as UPSAs. Their W.A. No.2111 of 2015 8 appointments were made in the year 2006 and 2008 respectively, already stands approved. The dispute is with respect to their appointments by promotion granted on 01.06.2010 to two regular vacancies of HSAs that arose in the school. It is not in dispute that consequent to the appointment of respondents 1 and 2 as HSAs, two resultant vacancies of UPSAs were available in the school. It is true that the Manager had executed an agreement as stipulated by the provisions of G.O.(P) No.10/10/G.Edn. dated 12.01.2010 undertaking to fill-up the posts that arose from 2010-2011 onwards in the school, with protected teachers. The promotions of respondents 1 and 2 have been rejected for the only reason that instead of appointing them, protected teachers ought to have been accommodated in terms of the agreement executed by the Manager as per G.O.(P) No.10/10/G.Edn. dated 12.01.2010. However, the fact remains that upon promotion of respondents 1 and 2 as HSAs, two resultant vacancies of UPSAs were available to which the appellants could have insisted on protected teachers being posted. G.O.(P) No.10/10/G.Edn. dated 12.01.2010 does not W.A. No.2111 of 2015 9 specify whether the protected teachers were to be accommodated as HSAs or UPSAs. What is stipulated is only that to the vacancies arising from 2010-2011 onwards, protected teachers should be appointed. Though the learned Government Pleader has a contention that to all the vacancies arising protected teachers should be appointed, we find that in the present school, only two vacancies had arisen, going by the records in this case. To the said vacancies of HSAs, respondents 1 and 2 have been promoted, in recognition of their claim under Rule 43, Chapter XIV A. Consequently, the posts in which they were working as UPSAs were available for being utilised for accommodating protected teachers as per the terms of G.O.(P) No.10/10/G.Edn. dated 12.01.2010. In the above view of the matter, we do not find that the action of the Manager in promoting respondents 1 and 2 as HSAs has violated the terms of the agreement executed by him with the Government, in accordance with the terms of G.O.(P) No.10/10/G.Edn. dated 12.01.2010. 8. The other question that has been canvassed before us is W.A. No.2111 of 2015 10 whether in view of the Rule position as on the relevant date, protected teachers ought to have been preferred for filling-up the two vacancies of HSAs, though respondents 1 and 2 had a claim under Rule 43, Chapter XIV A. It is not in dispute that, there were no claimants under Rule 51A, available in the school as on 01.06.2010. The contention is that, in view of the provision in Rule 51A that first preference had to be accorded to protected teachers, the Manager was not right in promoting respondents 1 and 2. As already noticed above, since G.O.(P) No.10/10/G.Edn. dated 12.01.2010 does not stipulate that a protected HSA should be appointed to a vacancy of HSA, it shall be sufficient compliance with the agreement executed as per G.O.(P) No.10/10/G.Edn., if protected UPSAs are accommodated in the vacancies that arose consequent to the promotion of respondents 1 and2. Therefore, in the facts and circumstance of the present case, we are not satisfied that the Rule position as existent at the relevant time has any impact on the outcome. 9. The learned Single Judge has directed the appointments of respondents 1 and 2 to be approved and salaries paid to them. W.A. No.2111 of 2015 11 We do not find any grounds to interfere with the said order of the learned Single Judge except to clarify that, the appellant shall be at liberty to insist that the vacancies of UPSAs that arose consequent to the promotion of respondents 1 and 2 as HSAs shall be filled up, in accordance with the stipulations contained in G.O.(P) No.10/10/G.Edn. dated 12.01.2010 and in accordance with the terms of the agreement executed by the Manager. The writ appeal is disposed of as above. **==> picture [30 x 13] intentionally omitted <==** ## K. SURENDRA MOHAN, JUDGE Sd/MARY JOSEPH, JUDGE //TRUE COPY// P.A. TO JUDGE Skk/1008.171017