Suresh R.S v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 2ND DAY OF MARCH 2017/11TH PHALGUNA, 1938** **WP(C).No. 3454 of 2014 (F) ---------------------------** ## **PETITIONER:** **-----------** **SURESH R.S,** **MANAGER,P.GOPALAN MEMORIAL VOCATIONAL HIGHER SECONDARY SCHOOL FOR GIRLS,PULLAMALA,AMARAVILA.P.O, NEYYATTINKARA,THIRUVANANTHAPURAM-695122.** **BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR SRI.S.VIBHEESHANAN SRI.D.JAYAN** **RESPONDENT(S):** **-------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE SPECIAL SECRETARY, GENERAL EDUCATION (SPECIAL CELL)DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.** ## **2. THE DIRECTOR,** **VOCATIONAL HIGHER SECONDARY EDUCATION,HOUSING BOARD BUILDING,SANTHI NAGAR,THIRUVANANTHAPURAM-695033.** **3. DR.SREEJA.S.NAIR, TC VIII/1741,SURABHI,VETTAMUKKU ROAD,THIRUMALA, THIRUVANANTHAPURAM-695006.** **R1,R2 BY SENIOR GOVERNMENT PLEADER SMT MARRY BEENA JOSEPH R3 BY ADV. SRI.P.C.SASIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-02-2017, ALONG WITH WPC. 5760/2014, THE COURT ON 02.03.2017 DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 3454 of 2014 (F) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXT.P1 COPY OF THE SPECIAL RULES PUBLISHED BY THE GOVERNMENT AS G.O.(P)K NO.80/2004 /GE.EDN.DATED 12-03-2004** - **EXT.P2 COPY OF THE CIRCULAR NO.E3/1076/12 DATED 31-1-2012 ISSUED BY THE 2ND RESPONDENT** - **EXT.P3 COPY OF THE ORDER G.O.(RT)NO.2358/06/GI.EDN DATED 8-6-2006** - **EXT.P4 COPY OF THE CIRCULAR NO.E3/8280/2011 DATED 20-06-2011 ISSUED BY THE 2ND RESPONDENT** - **EXT.P5 COPY OF THE LETTER WRITTEN BY THE ASSISTANT DIRECTOR TO THE PETITIONER DATED 4-8-2006** - **EXT.P6 COPY OF THE LETTER WRITTEN BY THE PETITIONER TO THE ASSISTANT DIRECTOR DATED 10-08-2007** - **EXT.P7 COPY OF THE LETTER WRITTEN BY THE ASSISTANT DIRECTOR,KOLLAM DATED 24-11-2007** - **EXT.P8 COPY OF THE ADVERTISEMENT PUBLISHED IN MATHRUBHOOMI DAILY DATED 30-08-2007** - **EXT.P9 COPY OF THE APPOINTMENT ORDER ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT DATED 10-01-2008** **EXT.P10 COPY OF THE ORDER NO.E3/10936/06 DATED 14-05-2008 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P11 COPY OF THE PROCEEDINGS ISSUED BY THE PETITIONER AS NO.5/2011-12 DATED 8-7-2011** - **EXT.P12 COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT AS NO.E3/8092/2012 DATED 13-06-2012** - **EXT.P13 COPY OF THE REQUEST MADE BY THE PETITIONER TO THE ASSISTANT DIRECTOR, VHSE REGIONAL OFFICE,KOLLAM DATED 1-12-2011** - **EXT.P14 COPY OF THE LETTER NO.E3/3524/2013 DATED 29-10-2013 ISSUED BY THE 2ND RESPONDENT** - **EXT.P15 COPY OF THE GOVERNMENT LETTER NO.28953/SC1/13/G.EDN. DATED 9-9-2013** - **EXT.P16 COPY OF THE REPLY GIVEN BY THE PETITIONER TO THE 2ND RESPONDENT DATED 26-11-2013** - **EXT.P17 COPY OF THE LETTER NO.E3-3524/13 DATED 18-12-2013 ISSUED BY THE 2ND RESPONDENT.** - **EXT P18 COPY OF THE CIRCULAR NO E3-9566/02 DATED 29.7.2002 ISSUED BY THE DIRECTOR,VOCATIONAL HIGHER SECONDARY EDUCATION.** - **EXT P19 COPY OF THE CIRCULAR NO E3/9566/02 DATED 12.9.2002 ISSUED BY THE DIRECTOR HIGHER SECONDARY EDUCATION.** - **-2-** **-2-** ## **WPC 3454/2014: --------------** **EXT P20 COPY OF THE INTIMATION REGARDING THE JOINING REPORT OF THE 3RD RESPONDENT WRITTEN BY THE PRINCIPAL TO THE ASSISTANT DIRECTOR DATED 7.7.2011.** ## **RESPONDENT(S)' EXHIBITS, ANNEXURES** - **---------------------------------** - **R2(A) COPY OF LR.NO LI/242/2013 DATED 11.3.2013 OF THE ASSISTANT DIRECTOR. VHSE, KOLLAM.** - **R2(B) COPY OF LR. NO 01/2013 DATED 2.1.2013 OF THE MANAGER.** - **R2(C) COPY OF THE LETTER DATED DATED 3.4.2013.** - **R2(D) COPY OF THE LETTER NO 7/13/MGR/PGMVHSS DATED 18.4.2013 OF THE MANAGER.** - **R2(E) COPY OF THE LETTER NO E3/3524/13 DATED 10.5.2013.** - **R3(A) COPY OF THE LETTER DATED 2.1.2013 OF THE MANAGER.** - **R3(B) COPY OF THE LETTER DATED 18.4.2013 OF THE MANAGER.** - **R3(C) COPY OF LETTER DATED 10.5.2013 OF THE DIRECTOR.** - **R3(D) COPY OF THE LETTER DATED 8.7.2011 OF THE PRINCIPAL.** - **R3(E) COPY OF THE G.O.(MS) 245/69/PD DATED 13.8.1969.** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **K.V.** ## **ANU SIVARAMAN, J.** ---------------------------------------- W.P.(C) Nos.3454 & 5760 of 2014 ----------------------------------------- Dated this the 2[nd] day of March, 2017 ## **J U D G M E N T** W.P.(C)No.3454/2014 is filed challenging Ext.P15 proceedings of the Government dated 09.09.2013 and Ext.P17 order of the Director of Vocational Higher Secondary Education dated 18.12.2013 while W.P.(C) No.5760/2014 seeks their implementation. The parties and documents are being referred to as arrayed in W.P.(C) No.3454/2014. 2. The issue raised is whether a temporary hand who had approved service in an earlier leave vacancy is entitled to preference for appointment in a regular vacancy of Vocational Higher Secondary School teacher. 3. Petitioner is the Manager of an aided school. A regular teacher in Dental technology in the school availed leave without allowance for five years from 01.07.2006. The 3[rd] respondent was appointed against the said vacancy from 02.08.2007 as Guest Lecturer on payment of hourly wages by Ext.P6 order. This appointment was approved by Ext.P7 order by the Assistant **W.P.(C) Nos.3454 & 5760/2014** **2** Director, Vocational Higher Secondary Education. Ext.P8 is the notification inviting applications for filling up the leave vacancy. Applicants were required to be between 23 and 39 years of age as on 01.01.2007. The 3[rd] respondent who had applied pursuant to Ext.P8 was selected and appointed against the leave vacancy in a scale of pay by Ext.P9 order dated 10.01.2008. By Ext.P10 proceedings dated 14.05.2008, the appointment was approved. 4. The teacher who had proceeded on leave submitted his resignation on 07.07.2011 and the resignation was accepted by the Manager on 08.07.2011 which was duly approved by Ext.P12 order dated 13.06.2012. Thereupon, the petitioner submitted a request for approving the appointment of the 3[rd] respondent, who was continuing against the post as guest teacher from 07.07.2011. By Ext.P14 proceedings dated 29.10.2013, the Director of Vocational Higher Secondary Education informed the petitioner that the Government had directed that the 3[rd] respondent may be given regular appointment. The petitioner was required to forward the appointment order for approval. The petitioner addressed the Director taking a contention that the 3[rd] respondent had been appointed specifically against a leave vacancy and that as on the date when the regular vacancy arose, **W.P.(C) Nos.3454 & 5760/2014** **3** she was aged 41 years and was thus overaged. However, Ext.P17 order was issued by the Director informing the petitioner that Ext.P15 proceedings of the Government had become final and requiring him to forward the order of appointment of the 3[rd] respondent for approval. Hence this writ petition. 5. Heard the learned Senior Counsel appearing for the petitioner, learned Senior Government Pleader and the learned counsel for the 3[rd] respondent. 6. Learned Senior Counsel appearing for the petitioner contends that the date of occurrence of the regular vacancy would be only after the acceptance of the resignation of the regular hand. The date of resignation being 07.07.2011, the vacancy could be deemed to have arisen on that date, at the earliest. As on that date, the 3[rd] respondent was overaged and could not be considered for appointment and a fresh selection is to be conducted in accordance with Rules. The impugned orders are hence unsustainable, it is contended. 7. Learned Senior Counsel appearing for the petitioner relied on the decision of the Apex Court in _**GRIDCO Limited and another** vs._ _**Sri Sadananda Doloi and Others**_ (AIR 2012 SC 729) and of this Court in _**Jeemon V.R and others** vs._ _**State of**_ **W.P.(C) Nos.3454 & 5760/2014** **4** _**Kerala and others**_ (2012 (1) KHC 397) to contend that an ad hoc appointment cannot confer any preferential right on such appointee. A decision of this Court in _**Abdu Salam** vs._ _**State of Kerala and others**_ (1973 KLT 361) is also relied on to contend that the termination of appointment on expiry of the contractual term cannot be challenged under Article 226 of the Constitution of India. Exts.P18 and P19 circulars issued by the Director of Vocational Higher Secondary Education specifying the procedure for filling up of regular vacancies are also relied on to contend that the vacancy which arose on 07.07.2011 could not have been filled up without prior sanction and without following the procedure prescribed. 8. Learned counsel for the 3[rd] respondent would contend that the earlier approved appointment was after a due selection procedure and the 3[rd] respondent had all qualification and was well within the age limit at the relevant time. A decision of a Division Bench of this Court in _**Jayasree** vs._ _**Director of Higher Secondary Education**_ (2009 (2) KLT 352) where a similar situation on facts was considered is relied upon to contend that a person appointed against a leave vacancy and later thrown out of service for want of vacancy is entitled to reappointment applying **W.P.(C) Nos.3454 & 5760/2014** **5** the age limit only to the initial appointment. Decisions of this Court including those in _**C.V. Annamma** vs._ _**State of Kerala and others**_ (ILR 1992 (1) Ker 435) and in _**P.V. Vijayalakshmikutty** vs._ _**State and others**_ (1992 (1) KLJ 56) are also relied on. An unreported decision in W.P.(C) No.31186/2016 is also relied on to contend that in cases of reappointment, age limit as on the arising of the regular vacancy cannot be pleaded as a reason to deny appointment. 9. I have considered the rival contentions. It is not in dispute that the 3[rd] respondent had been appointed against a leave vacancy having a duration of five years after following the procedure prescribed for regular appointment as well. She was fully qualified for such appointment. The Manager had accepted the resignation of the regular hand and had permitted the 3[rd] respondent to continue against the post. Request had also been made by the Manager for approval of the continuance of the 3[rd] respondent as guest teacher. The issue was considered and the Government accorded sanction for regular appointment of the 3[rd] respondent against the vacancy which arose on 07.07.2011. I fail to see how the Manager can be said to be legally aggrieved by the said decision of the Government. **W.P.(C) Nos.3454 & 5760/2014** **6** 10. From an anxious consideration of the pleadings and materials on record, I am convinced that what has been ordered in Ext.P15 is essentially a reappointment of the 3[rd] respondent as against the regular vacancy which arose on 07.07.2011. Since the 3[rd] respondent was fully qualified and eligible at the time of the initial appointment on 10.01.2008, her age as on 07.07.2011 cannot be pleaded as a reason for denying her the appointment against the regular vacancy. I find no illegality or impropriety in the order or the reasoning of the Government or the Director of Vocational Higher Secondary Education. The impugned orders are legal and valid. In the result, W.P.(C) No.3454/2014 is dismissed. W.P.(C) No.5760/2014 is ordered directing the respondents to give effect to Exts.P8 and P10 within a period of one month from the date of receipt of a copy of this judgment. These writ petitions are ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** smp