The Manager MKMM LP School, Velumbiampadam & P. M. Saifunneesa v. State of Kerala & 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 15TH DAY OF NOVEMBER 2017 / 24TH KARTHIKA, 1939 WA.No. 1471 of 2017 IN WPC. 31473/2015 AGAINST THE ORDER/JUDGMENT IN WP(C) 31473/2015 of HIGH COURT OF KERALA ## APPELLANT(S)//PETITIONER IN THE W.P.C ## 1 THE MANAGER MKMMLP SCHOOL, VELUMBIAMPADAM, P.O. BHOODANAM COLONY AND MMM LP SCHOOL, MALAPPURAM DIST. ## 2 P.M.SAIFUNNEESA JUNIOR ARABIC TEACHER,MMM LP SCHOOL, EAST KALKULAM P.O. KARAPPURAM, MALAPPURAM DIST. BY ADVS.SRI.ABRAHAM VAKKANAL (SR.) SRI.DIJO SEBASTIAN SMT.VINEETHA SUSAN THOMAS SRI.SAMPATH V. TOMS ## RESPONDENT(S)//RESPONDENTS IN THE WPC: 1. STATE OF KERALA REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001 2. THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, THIRUVANANTHAPURAM- 695 014 3. THE DEPUTY DIRECTOR OF EDUCATION DOWN HILL, MALAPPURAM- 676 519 4. THE ASSISTANT EDUCAITONAL OFFICER NILAMBUR, MALAPPURAM DIST.- 679 329 5. SMT. SHAHIDA WIFE OF MUHAMMED ALI, AGED 40 YEARS KUPPANATHU HOUSE, P.O. PALEMADU, MALAPPURAM DIST- 679 311 R1 BY SR.GOVERNMENT PLEADER SRI A J VARGHESE R5 BY ADV. DR.GEORGE ABRAHAM R5 BY ADV. SRI.K.A.MANZOOR ALI BY SRI.M.M.HUSAIN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 1471 of 2017 IN WPC. 31473/2015 ANNX.A1: COPY OF THE MEDICAL CERTIFICATE ISSUED FROM MES MEDICAL COLLEGE PERINTHALMANNA. ANNX.A2: COPY OF THE MEDICAL CERTIFICATE ISSUED FROM MES MEDICAL COLLEGE PERINTHALMANNA. TRUE COPY P.A TO JUDGE LSN **'C.R'** ## **K.SURENDRA MOHAN & MARY JOSEPH, JJ. --------------------------------------------W.A No. 1471 of 2017** **----------------------------------------------** Dated this the 15[th] day of November, 2017 ## **JUDGMENT** ## **K.SURENDRA MOHAN,J** The 1[st] appellant is the Manager of MKMM LP School, Velumbiampadam. The 2[nd] appellant is a person, who had been appointed as a Junior Language Arabic Teacher in the said School by the 1[st] appellant. They had filed WP(C) No. 31473/2015, challenging an order dated 24.01.2014, evidenced in these proceedings by Ext.P5, passed by the Government in revision filed against refusal to grant approval to her appointment. They are before us, aggrieved by the dismissal of the writ petition. 2. The 1[st] appellant, as already noted above is the Manager of an Aided LP School governed by the provisions of the Kerala Education Act, 1958 and the Kerala Education Rules, 1959 (hereinafter referred to as 'the Act' and 'the KER' for short). On 01.06.2008, a vacancy of Junior Arabic Teacher arose in the School of the 1[st] appellant. He appointed one Sri Suhail to the said post and on his resignation, the 2[nd] appellant was appointed to the said post. However, the appointment **W.A No. 1471 of 2017** **2** was not approved by the educational authorities for the reason that there was a ban against fresh appointments in force at that time. 3. While so, the 1[st] appellant purchased another Lower Primary School, after obtaining sanction from the authorities on 29.11.2009. Subsequently, as per Government Order dated 12.01.2010, the ban against fresh appointments was lifted. Therefore, the 1[st] appellant appointed the 2[nd] appellant again on 01.06.2010. However, the said appointment was also not granted approval by the educational authorities, in view of the objection raised by the 5[th] respondent herein. According to the 5[th] respondent, she had worked from 01-01-2002 to 31-022005 in the School that was purchased by the 1[st] appellant in 2009. Her appointment was approved and therefore she was entitled to be appointed in preference to the 2[nd] appellant, as a Junior Arabic Teacher. Accepting the said objection, approval was declined to the appointment of the 2[nd] appellant. The issue was considered by the State in a revision filed by the 2[nd] appellant and as per Ext.P5 order, the revision was rejected confirming the action of the authorities and directing the 5[th] respondent to be appointed in the place of the 2[nd] appellant. **W.A No. 1471 of 2017** **3** 4. It appears that, thereafter a review petition was preferred by the 1[st] appellant before the Government against Ext.P5. The same was considered and was allowed by Ext.P6 order dated 25.10.2014, setting aside Ext.P5 and directing the grant of approval to the appointment of the 2[nd] appellant. The said order was made the subject matter of challenge before this Court in WP(C) No.28804/2014, at the instance of the 5[th] respondent. By Ext.P7 judgment, this Court allowed the writ petition and set aside Ext.P6, finding that in the light of the dictum laid down by a Full Bench of this Court in **Anil Kumar v. State of Kerala** [ **2009(3)KLT 650(FB)]** , the Government have no power of review in respect of the order Ext.P5 passed in revision. However, this Court left open the rights of the parties to challenge Ext.P5 in appropriate proceedings. It was thereafter that WP(C) No. 31473/2015 was filed by the appellants challenging Exts.P4 and P5. 5. The appellants are aggrieved by the judgment of the learned Single Judge, dismissing the writ petition. According to the learned Senior Counsel Sri.Abraham Vakkanal, who appears for the appellants, the 2[nd] appellant had been app ointed on 01.06.2008, but her appointment had not been approved for the only reason that there was a ban **W.A No. 1471 of 2017** **4** against appointments issued by the Government in force. Therefore, she was appointed again after the ban was lifted. In view of the above, it is contended that her appointment was, in the circumstances fully justified. The second school acquired by the Manager was purchased after obtaining necessary permission from the educational authorities, on 29.11.2009. The 5[th] respondent was a teacher, who had worked in the said School that was so acquired. Therefore, it is contended that the claim of the 5[th] respondent would apply only in respect of the vacancies that are likely to arise in the said school. She cannot have a better claim than the 2[nd] appellant, who had been appointed on an earlier date in the first school. It is also pointed out that, the vacancy in which the 2[nd] appellant had been appointed had arisen long prior to the date on which the second School was purchased by the Manager. Therefore, it is contended that, the claim of the 5[th] respondent would apply only in respect of the vacancies that are likely to arise in the School that was subsequently acquired by the Manager. The contention of the learned Senior Counsel is that, it is Rule 5A (3) of Chapter III of KER that applies to the situation at hand. Rule 36 A of Chapter XIVA KER is also relied upon to contend that, the proviso to **W.A No. 1471 of 2017** **5** the said rule entitles the Manager to opt for treating the teachers of the transferred School as a separate unit. In view of the above, it is contended that, the claim under Rule 51A of Chapter XIV A of KER made by the 5[th] respondent would have to yield to the other provisions referred to above. 6. Heard. This appeal comes up before us for admission. 7 Rule 5 A(3) of Chapter III KER reads as follows: “ **5A(3)** .In the case of change of management of a school involving change of ownership the new Manager of a corporate or an individual Educational Agency, shall be bound to absorb any member who is a claimant under Rule 51 A of Chapter XIV A or is eligible for protection belonging to teaching and non-teaching staff of any school of the transferor manager against the vacancies that may arise in the School” 8. A perusal of the above provision leaves no doubt in our minds that the same is applicable to the transferor Manager. The transferor Manager has been made liable to absorb the claimants under Rule 51 A of Chapter XIV A or persons eligible for protection belonging to teaching and nonteaching staff of any of the Schools against the vacancies that may arise in the School. In the present case, the 1[st] appellant **W.A No. 1471 of 2017** **6** is the transferee Manager, to whom the rule has no application. ## 9. Rule 36 A of Chapter XIV A KER reads as under: “ **36A** .When schools under one Educational agency are transferred to another Educational Agency with the approval of the competent authority the various categories of teachers in the schools so transferred shall be integrated with the corresponding categories of teachers already working on the date of transfer in the schools under the Educational Agency to which the transfer is made. The common seniority of all teachers of the schools so transferred and the schools existing under the Educational Agency to which the transfer is made on the date of transfer, shall be decided according to the length of continuous service of all such teachers transferred to the Educational Agency and existing under it on the date of transfer subject to Rule 36 and sub-rule (2) of Rule 37. Provided however that the Educational Agency to which the transfer is made shall have the option to treat the teachers in the transferred school who were in the service in that school on the date of such transfer, as a separate unit their promotions being confined to the posts in the transferred School. The option shall be exercised by the concerned agency with the approval of the Director and prior to the transfer of the school unless the question of deciding seniority of the teachers of the transferred school or schools is pending decision on 8[th] June, 1966.” **W.A No. 1471 of 2017** **7** The proviso to the above rule entitles the educational agency to which the transfer is made to opt for treating the teachers of the transferred School, who were in service in that School on the date of such transfer, as a separate unit confining their promotions to the posts in the transferred School. However, no such situation arises in the present case. In order to claim the benefit of the said proviso it is also necessary that such option is exercised with the prior approval of the Director. Admittedly, no such approval was obtained in the present case. Therefore, we do not find that the said rule has any application to the facts of this case. 10. It is not in dispute that, the 5[th] respondent is a teacher, who had worked in the School, that was transferred to the 1[st] appellant, during the period from 2002-05. Therefore, there cannot be any doubt that she is a claimant under Rule 51 A of Chapter XIV A KER. The relevant portion of Rule 51 A is extracted hereunder for convenience of reference: “ **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 **W.A No. 1471 of 2017** **8** 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 or 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” A perusal of the above provision shows that, the claim thereunder is available in respect of all Schools under the same educational agency or an educational agency to which the School may be subsequently transferred. When the 1[st] appellant acquired the second School, the Schools have become part of the educational agency. Therefore, under the above provision the 5[th] respondent was entitled to claim preference in the matter of appointment. Though, the 2[nd] appellant had been initially appointed on 01.06.08, her appointment was not approved for the reason that there was a ban against fresh appointment. For the above reason, the appointment of the 2[nd] appellant can be taken into account **9** ## **W.A No. 1471 of 2017** only from 01.06.2010. On the said date, the 5[th] respondent had a preferential claim for such appointment. Therefore, we find that the direction in Ext.P5 is perfectly in order. In view of the above, we do not find any infirmity in the judgment appealed against, warranting an interference therewith in appeal. Accordingly, the writ appeal is dismissed. ## **Sd/-K.SURENDRA MOHAN, Judge** **Sd/-MARY JOSEPH, Judge** lsn