The Corporate Manager SDPY Schools, Sree Narayana Nagar, Palluruthy, Kochi v. Shankini M. Raj and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 27[TH] DAY OF MARCH 2024 / 7TH CHAITHRA, 1946** **WA NO. 417 OF 2024** **AGAINST THE JUDGMENT DATED 16.02.2024 IN WP(C) NO.26661 OF 2023 OF** **HIGH COURT OF KERALA** ## **APPELLANT/4TH RESPONDENT :** **THE CORPORATE MANAGER SDPY SCHOOLS, SREE NARAYANA NAGAR, PALLURUTHY, KOCHI, PIN - 682006 BY ADVS. P.MOHANDAS (ERNAKULAM) BHARATH MOHAN GOKUL D. SUDHAKARAN K.P.SATHEESAN (SR.) K.SUDHINKUMAR R.BHASKARA KRISHNAN SABU PULLAN** ## **RESPONDENTS/PETITIONER/RESPONDENTS 1 TO 3 :** **1 SHANKINI. M. RAJ AGED 28 YEARS W/O. AJOY JOSHI, RESIDING AT KOOVAPARAMBIL HOUSE, MOOTHAKUNNAM P.O., ERNAKULAM DISTRICT, PIN - 683516 2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 3 THE DIRECTOR OF GENERAL EDUCATION DIRECTORATE OF GENERAL EDUCATION, THIRUVANANTHAPURAM, PIN – 695014** WA No.417 of 2024 2 **4 THE DISTRICT EDUCATIONAL OFFICER MARINE DRIVE, KOCHI, ERNAKULAM, PIN - 682011 BY ADVS. K.R.GANESH ELVIN PETER P.J. (SR.)(K/000445/1990) GOURI BALAGOPAL(K/002008/2019) SREELEKSHMI A.S.(K/1313/2021) SRI.A.J.VARGHESE, SR.GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2024, THE COURT ON 27.03.2024 DELIVERED THE FOLLOWING:** WA No.417 of 2024 3 “C.R.” ## J U D G M E N T ## A.Muhamed Mustaque, J . The question that has to be considered by us in this matter is as to the legality of appointment of a teacher in an anticipated vacancy in an aided school. This issue arose in the context of non-approval of the appointment of Smt.Shankini Raj/first respondent as the staff fixation order was not issued and the Manager, who is in charge of the school refused to acknowledge her appointment, which was made by the previous Manager, when established vacancy arose in the school. 2. The learned Single Judge of this Court set aside the Government Order, which declined approval and upheld the claim of Smt.Shankini Raj. This writ appeal is at the instance of the Manager. WA No.417 of 2024 4 3. The teacher in question, Smt.Shankini M. Raj was appointed as a Upper Primary School Teacher (UPST) on 01.06.2015 in the vacancy of one Shiji M.M., who was promoted as H.S.A. (English) in the same school under by transfer appointment. However, the promotion was not approved, as there was no established post under staff fixation order. Consequently, Smt.Shankini M. Raj was terminated, after serving 42 days in the school. She was appointed again with effect from 01.06.2016 in an anticipated vacancy of the aforesaid Shiji M.M. Her approval of the appointment was returned on 10.09.2018, stating that there was no vacancy to accommodate her. In both occasions, her service was not approved. 4. Based on subsequent staff fixation order, a vacancy of UPST arose on 01.06.2017 consequent upon the promotion of Shiji M M. one Faseela C.M. was appointed in that vacancy. The dispute regarding her appointment and approval ultimately reached before this Court in W.P(C)No.12077 of 2019. It is turned out that appointment of Faseela C.M. was in the vacancy of senior Teacher Litty WA No.417 of 2024 5 Raphel. Thus, this Court concluded that, if Smt.Shankini M. Raj establishes before the Education Officer that there was an established vacancy to accommodate her consequent upon the promotion of Shiji M.M, her approval shall be considered. Consequent upon direction of this Court, the District Education Officer approved her appointment. The matter was carried before the Director of General Education. The order of the District Education Officer was also affirmed by the Director of General Education. The Manager approached the Government in revision. The Government examined the matter from a legal perspective and found that there is no legal provision in the Kerala Education Rules for the reappointment of a teacher, who had no approved service. Accordingly, the Government set aside orders of approval and upheld the claim of Manager. 5. There are two legal aspects involved in the matter. First, the nature of law that govern Manager and Teacher through contract of appointment; this is a private law aspect. Second, when approval is accorded to the teacher by Educational Authority; this is the public law aspect. As rightly WA No.417 of 2024 6 noted by the Government, there is no legal provision under the Kerala Education Rules for reappointment of a teacher, who was retrenched for want of anticipated vacancy and whose service was not approved. 6. We note Chapter XIV A Rule 7A which reads thus; “7A. (1) xxxx (2) Posts that may fall vacant on the closing date shall not be filled up till the reopening date (except in the case of posts of non-vacation staff. (3) Vacancies, the duration of which is less than one academic year, shall not be filled up.” 7. Rule 7A as initially stood, do not allow the Manager to make an appointment in anticipation or sanction of post. This was deleted by Government Order dated 28.10.1978. It is appropriate to refer Rule 7A before its deletion. “1. Rule 7A(1) and its proviso deleted by G.O.(P) 150/78/G.Edn. dated 28.10.78. R7-A(1) and its proviso were introduced by G.O.(P) 199/69 Edn. Dated 15.5.69 and by notification dated 13.9.72 WA No.417 of 2024 7 respectively. The deleted portion was “(1) No appointment shall be made in anticipation of sanction of posts except in the case of new school opened or existing schools upgraded (or higher standards opened with permission in those schools). [Provided in the case of additional posts sanctioned as per staff fixation order, appointments may be made from the date of effect of the fixation order].” 8. The authority to make appointment in the aided school is vested with the Manager. The Education Officers are only competent to consider the approval of appointment, if it is in order. After the amendment the Manager has enabling power to make appointment in anticipation. But that will not itself confer any right on the teacher. As we already noted, reappointment of unapproved teacher is not in the contemplation of Kerala Education Rules. The contract of employment in a private aided school is having its origin in law of contract. All such employment will have to be characterized as a contract of personal service. The status of public service encapsulating conditions of WA No.417 of 2024 8 service is attained only when approval is accorded to appointment. 9. A single Judge (one of us) of this Court had an occasion to consider the claim of two unapproved teachers, who were retrenched for want of vacancies and claimed reappointment in Beeba K Nath v. State of Kerala ; [2015 (3) KLT 541. It was a case where both teachers were appointed on an anticipation of admissible posts. Thereafter, when vacancy arose, junior was reappointed ignoring the claim of senior by terminating her service. ## 10. This Court in Para 10 held as follows: “10. It is well settled principle of service jurisprudence that in the event of retrenchment, last come first go principle should be applied. Even in the absence of any statutory prescription regarding unapproved teachers, the above principle should be applied as being principle. When different or competent claim exists, in the absence of statutory provisions to govern, general provision shall be resorted to as an element of an agreement by all, to make larger system coherent, lest chaos would prevail, leaving to whims and fancies of the dominant, who wields the power. This agreement is the very foundation of the legal system in which all have agreed to be governed by the Rule of law. WA No.417 of 2024 9 Thus, going by the above principle, the petitioner being the last appointee, has to be retrenched.” 11. We feel that the right of the Manager to make appointment in an aided school is based on the approval granted to him as a Manager by statutory authority and therefore, he cannot act in derogation of general principles governing contract of personal service related to employment. The Manager legitimize his act by seal of approval granted to him under the Kerala Education Rules. The Manager is bound to honour the Rule of law and cannot be allowed to assume unbridled power to act on his own whims and fancies. 12. We find when this Court in an earlier round of litigation filed by Smt.Shankini M. Raj recognized the right to claim for approval of an admissible vacancy. If this Court had reserved any right for the Manager to have a final call on her appointment, this Court would not have relegated the matter to the Educational Authority for approval on establishing admissible post. This Court in uncertain term ordered that her approval shall be considered on the premise that there exists a bounded relationship between the Manager and WA No.417 of 2024 10 Smt.Shankini M. Raj. Therefore, what was left for the Education Authority for consideration is the approval alone and not relating to the reappointment. This is where the Government went wrong noting that without reappointment, her approval cannot be considered. Binding judgment would stare at the Manager. In the said circumstances, we do not see any reason to interfere with the impugned judgment. Thus, the Writ Appeal is dismissed. Sd/- A.MUHAMED MUSTAQUE JUDGE Sd/SHOBA ANNAMMA EAPEN JUDGE rkj