T. P. Radhamony and Maya G. Nair v. N. Thulasi, State of Kerala, Director of Public Instructions, Deputy Director of Education, District Educational Officer, Manager, High School Parippu, and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 8TH DAY OF MARCH 2017/17TH PHALGUNA, 1938 WA.No. 468 of 2017 () IN WP(C).3402/2013 -----------------------------------------AGAINST THE JUDGMENT IN WP(C) 3402/2013 of HIGH COURT OF KERALA DATED 10-02-2017 APPELLANTS/RESPONDENTS 6 AND 7:-: ------------------------------------------------------ 1. T.P.RADHAMONY, H.S.A(MATHS), HIGH SCHOOL, PARIPPU, KOTTAYAM DISTRICT, PIN - 686 024. 2. MAYA G.NAIR, UPPER PRIMARY SCHOOL ASSISTANT, HIGH SCHOOL, PARIPPU, KOTTAYAM DISTRICT, PIN - 686 024. BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SRI.S.DEEPAK RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 5:-: ---------------------------------------------------------------------------------- 1. N.THULASI, W/O.SREEKUMAR, AGED 43 YEARS, HIGH SCHOOL ASSISTANT (MATHS), HIGH SCHOOL, PARIPPU, KOTTAYAM DISTRICT, PIN - 686 024. 2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM, PIN - 695 014. 4. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM DISTRICT,PIN - 686 001. 5. THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM DISTRICT, PIN - 686 001. 6. THE MANAGER, HIGH SCHOOL, PARIPPU, KOTTAYAM DISTRICT, PIN - 686 024. R1 BY ADV. SRI.V.RAJASEKHARAN NAIR R2 TO R5 BY SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE R BY ADV.SRI.V.A.MUHAMMED THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **K.SURENDRA MOHAN & MARY JOSEPH, JJ. --------------------------------------------W.A.No.468 of 2017 ---------------------------------------------Dated this the 8[th] day of March, 2017** ## **J U D G M E N T** ## Surendra Mohan, J. Respondents 6 and 7 in W.P.(C).No.3402 of 2013 are in appeal challenging the judgment of the learned Single Judge dated 10.02.2017, allowing the writ petition. The writ petition was filed by the first respondent herein challenging Ext.P5 order of the District Educational Officer, Kottayam and Ext.P10 order of the Government. 2. The brief facts of the case are the following : The appellants as well as the first respondent entered service as Upper Primary School Assistants (UPSAs) in the High School Parippu, Kottayam District. The sixth respondent is the Manager of the School. On 01.04.2009, a vacancy of High School Assistant (HSA) in Mathematics arose in the School. The first respondent was appointed to the said vacancy as per Ext.P3. She is a person who had been appointed as an HSA earlier on 15.07.1998. The appointment was approved on 28.09.1998, with effect from 15.07.1998. She worked in the said post, till the year 2005. During 2005-06, one post of HSA (Maths) was abolished. The first respondent was thereupon sought to be reverted. She approached this Court by filing W.P.(C).No.22570 of 2005 and continued as an HSA on the strength of an interim order granted by this Court. 2 W.A.No.468 of 2017 While so, on 31.03.2009 one Sri.Govindan Namboodiri retired and a regular vacancy of HSA (Maths) arose. The first respondent was appointed to the said vacancy with effect from 01.04.2009. 3. According to the appellants, they are seniors to the first respondent in the cadre of UPSAs. Therefore, they raised objections contending that they were entitled to be promoted in the place of the first respondent, they being claimants under Rule 43 of Chapter XIV A of the Kerala Education Rules, 1959 ('KER' for short). The said objection was accepted by the District Educational Officer as per Ext.P5. Though the first respondent challenged Ext.P5 order in revision, as per Ext.P10, the revision was dismissed. It was aggrieved by Exts.P5 and P10 that, the first respondent had filed the writ petition. 4. The learned Single Judge considered the respective contentions and found that, the first respondent was entitled to claim preference in appointment to the post of HSA (Maths) with effect from 01.04.2009 and that, both the fifth respondent as well as the Government had gone wrong in rejecting her claim for preference under Rule 51A Chapter XIV A KER. Accordingly, the writ petition has been allowed quashing Exts.P5 and P10. The aggrieved respondents 6 and 7 in the writ petition are before us in appeal. 5. According to the learned counsel for the appellants, the W.A.No.468 of 2017 3 claim under Rule 51A has to yield to the superior claim under Rule 43 of the KER. The appellants, being seniors in the cadre of UPSA to the first respondent, are entitled to claim appointment to the post of HSA that arose on 01.04.2009, in view of their claim under Rule 43 Chapter XIV A. It is further contended that, though Rule 51A as it stood at the relevant point of time, did not give any precedence to the claim under Rule 43 Chapter XIV A, the fact that such precedence has been conferred subsequently by way of an amendment shows that it is the claim under Rule 43 that has to prevail, it is contended. A further contention is put forward that, a teacher is not entitled to claim the benefit of Rule 51A as well as Rule 43, at the same time. The benefits of both the above provisions are not available to a teacher simultaneously, according to the learned counsel for the appellants. Though the passing observations of another Division Bench of this Court in the decision in _**Sandya v. Jalaja Kumari [2008 (3) KLT 655]**_ would support the conclusion drawn by the learned Single Judge, it is contended by the learned counsel for the appellants that, the said observations do not have any precedent value, since the issue had not arisen for consideration before the said Division Bench. For the above reason, according to the learned counsel, the matter requires fresh consideration at the hands of this Court. He, therefore, seeks W.A.No.468 of 2017 4 interference with the judgment of the learned Single Judge. 6. The contentions of the learned counsel for the appellants are opposed by the learned counsel for the first respondent. According to the learned counsel, the first respondent had been promoted as an HSA (Maths) on 15.07.1998. Her appointment was also approved on 28.09.1998. She had thereafter worked continuously up to the year 2005 as HSA (Maths). Taking into account the said service of hers, she was not entitled to be retrenched or reverted even upon a division fall. This is because, she was entitled to protection in accordance with the terms of G.O. (P).No.175/99 dated 26.07.1999 and G.O.(MS)No.240/00/G.Edn dated 24.07.2000. Consequently, it is contended that she was entitled to be absorbed into the regular vacancy that arose on 01.04.2009 on the retirement of Sri.Govindan Namboodiri. However her rightful claim was denied by the authorities as per Exts.P5 and P10. According to the learned counsel, the appellants were not qualified to be promoted as HSA on 15.07.1998, when the first respondent was promoted. In view of the above factual situation, it is contended that the learned Single Judge was fully justified in quashing Exts.P5 and P10. We have heard the learned Government Pleader also. 7. It is not in dispute that, the first respondent who was W.A.No.468 of 2017 5 working as a UPSA had been promoted as an HSA (Maths) on 15.07.1998. Her appointment was also duly approved with effect from the said date, on 28.09.1998. Thereafter, she had worked continuously till the year 2005. During 2005-06, one post of HSA (Maths) was abolished, which resulted in the imminent reversion of the first respondent. According to the learned counsel for the appellants, Rule 51A contemplates three situations, which are necessary to be satisfied before the said provision would become applicable. Rule 51A as it stood at the relevant point of time is reproduced hereunder : _“51A. Qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in the same or higher or lower category of teaching posts, for which he is qualified that may arise in schools under the same Educational Agency or an Educational Agency to which the School may be subsequently transferred provided they have not been appointed in permanent vacancies in schools under any other Educational Agency._ _Provided that a teacher who was relieved under rule 49 rule 52 shall not be entitled to preference for appointment under this rule unless such teacher has a minimum continuous service of one academic year as on the date of relief :_ _Provided further that the first preference under this rule shall be given to protected teachers.”_ What emerges from a perusal of the above provision is that, it W.A.No.468 of 2017 6 applies to qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies. Rule 49 contemplates a situation where teachers are relieved for want of service that is stipulated by the said Rule, namely, service over a period of 8 months. Rule 52 on the other hand provides as under : _“52. (1) Teachers who are relieved on account of any reduction in the number of posts under orders of the department shall on reappointment in the same school or in another school under the same management or a different management start on the same pay as they were getting at the time of relief, whether the new appointment is permanent or not_ _(2) Teachers thrown out from service due to the withdrawal of recognition of schools by the Department shall also be eligible to draw the pay which they were getting at the time of withdrawal of recognition of the school on re-appointment in another school.”_ The above Rule applies to teachers who are relieved on account of any reduction in number of posts under orders of the Department. It is relevant to take note of the fact that the words used in the Rule are “teachers who are relieved”, which means that the provision would apply to all teachers who are relieved on account of reduction in the number of posts under orders of the Department. In the present case, the first respondent was ordered to be reverted on account of abolition of one post of HSA (Maths). The said situation is clearly contemplated by Rule 52 above. The contention of the W.A.No.468 of 2017 7 learned counsel for the appellants is that, since the reversion is not a contingency that is taken note of by the above Rule, the first respondent cannot claim the benefit of the above provision. We are not impressed by the said contention for the reason that, the word used in Rule 52 is “relieved”, which would take within its ambit, all modes of relief, including reversion. It is not in dispute that, the first respondent was reverted on account of reduction in the post in which she was working. Therefore, the first respondent was entitled to the benefit of Rule 51A, Chapter XIV A KER. 8. The next contention that is put forward by the learned counsel for the appellants is that, it is not open to a teacher to maintain a claim simultaneously under Rule 43 as well as Rule 51A. We notice that another Division Bench of this Court has in paragraph 18 of the decision reported in _**2008 (3) KLT 655**_ (supra) held as follows : _“18. We also notice that there is no provision in the Kerala Education Act, 1958 or in the K.E.R. which interdicts a R.43 claimant claiming appointment to the higher post under R.51A as well, where such a claim also exists.”_ 9. We do not find any grounds to take a different view of the matter. We further notice from the said judgment that, this Court has taken note of the fact that this Court had issued directions on the said basis, previously also. In the present case, the said W.A.No.468 of 2017 8 situation does not arise for the reason that the first respondent had been promoted as an HSA on 15.07.1998, which was also approved as already noticed above and she had continued to work as such, till the year 2005. According to the learned counsel for the first respondent, though the first respondent was ordered to be reverted, she was not in fact reverted at any time, since she continued as an HSA in view of the interim order of stay granted by this Court. She was also entitled to protection under the Government Orders applicable, though she was not extended the same, according to the learned counsel for the first respondent. 10. A further contention is put forward by the learned counsel for the appellants that, since the Government have, by subsequent amendments, made it clear that Rule 43 Chapter XIV A KER is to be given precedence over a claim under Rule 51A, the claim of the first respondent has to be rejected. It is not in dispute that at the relevant point of time, Rule 51A did not contain any specific stipulation that Rule 43 would receive precedence over the said provision. The fact that, the Government have, by a subsequent amendment, modified Rule 51A to provide that a claim under Rule 43 would gain precedence over a claim under Rule 51A is clearly indicative of the fact that the position prior to such amendment was the contra. It was taking note of the said anomaly that the W.A.No.468 of 2017 9 Government had brought in the amendment and altered the position. Since the amendments do not have retrospective effect, the Rule as it stood at the relevant time is applicable. Applying the said Rule therefore, it is the claim of the first respondent that has to prevail. In the above view of the matter, we find no grounds to admit this Writ Appeal or to interfere with the judgment of the learned Single Judge. This Writ Appeal is, therefore, dismissed. Sd/- **K.SURENDRA MOHAN JUDGE** Sd/- **MARY JOSEPH JUDGE** AV /True Copy/ P.A to Judge