The Manager, Sree Krishna High School, Mattathur v. Jancy M.T. and Others; WA Nos.316 & 2046/2018, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941** ## **WA.No.316 OF 2018** **AGAINST THE JUDGMENT IN WPC 19592/2011 DATED 05-10-2017 OF HIGH COURT OF KERALA** ## **APPELLANT/5TH RESPONDENT:** **THE MANAGER, SREE KRISHNA HIGH SCHOOL, MATTATHUR (VIA) KODAKARA, THRISSUR DISTRICT-680692.** **BY ADV. SRI.V.A.MUHAMMED** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1, 2, 3, 4, 6 AND 7:** - **1 SMT.JANCY M.T. WIFE OF BABY P.P., KOODAPPUZHA, ARATTUKADAVU(VIA), CHALAKKUDY-680307.** - **2 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** - **3 THE DEPUTY DIRECTOR OF EDUCATION THIRUVANANTHAPURAM-695036.** - **4 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR-680001.** WA Nos.316 & 2046/18 -:2:- - **5 THE DISTRICT EDUCATIONAL OFFICER IRINJALAKUDA-680121, THRISSUR DISTRICT.** - **6 THE HEADMISTRESS SREE KRISHNA HIGH SCHOOL, MATTATHUR(P.O), KODAKARA(VIA), THRISSUR DISTRICT-680692.** **7 JISNA P.M. UPSA, SREE KRISHNA HIGH SCHOOL, MATTATHUR(P.O.), KODAKARA(VIA), THRISSUR DISTRICT-680692.** **R1 BY ADV. SRI.ELVIN PETER P.J.** **R2-5 BY GOVERNMENT PLEADER SMT.RAJI T BHASKER R7 BY ADV. SRI.KALEESWARAM RAJ R7 BY ADV. SRI.K.A.MANZOOR ALI** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01-102019, ALONG WITH WA.2046/2018, THE COURT ON 17-10-2019 DELIVERED THE FOLLOWING:** WA Nos.316 & 2046/18 -:3:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941** ## **WA.No.2046 OF 2018** **AGAINST THE JUDGMENT IN WP(C) 19592/2011(Y) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 4 IN WP(C):** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM- 695 001.** - **3 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR.** - **4 THE DISTRICT EDUCATIONAL OFFICER IRINJALAKUDA.** **BY GOVERNMENT PLEADER SMT.RAJI T.BHASKAR** ## **RESPONDENT/PETITIONER AND RESPONDENTS 5 TO 7 IN WP(C):** - **1 JANCY. M.T W/O. BABY P.P, PARIYADAN VEEDU, KOODAPPUZHA, ARATTUKADAVU (VIA), CHALAKKUDY - 680 307** - **2 THE MANAGER SREE KRISHNA HIGH SCHOOL, MATTATHUR P.O., KODAKARA (VIA), THRISSUR DISTRICT - 680 692.** WA Nos.316 & 2046/18 -:4:- - **3 THE HEADMISTRESS SREE KRISHNA HIGH SCHOOL, MATTATHUR P.O., KODAKARA (VIA), THRISSUR DISTRICT - 680 692.** **4 SMT.JINSA .P.M. U.P.S.A., SREE KRISHNA HIGH SCHOOL, MATTATHUR P.O., KODAKARA (VIA), THRISSUR DISTRICT - 680 692.** **5 RAJKUMAR UPSA, SREE KRISHNA HIGH SCHOOL, MATTATHUR P.O., KODAKARA (VIA), THRISSUR DISTRICT - 680 692.** **R1 BY ADV. SRI.ELVIN PETER P.J. R1 BY ADV. SRI.K.R.GANESH R1 BY ADV. SMT.N.R.REESHA R2 BY ADV. V.A.MUHAMMED(B/O) R4 BY ADV. SRI.KALEESWARAM RAJ** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01-102019, ALONG WITH WA.316/2018, THE COURT ON 17-10-2019 DELIVERED THE FOLLOWING:** WA Nos.316 & 2046/18 -:5:- ## **J U D G M E N T** Dated this the 17[th] day of October 2019 ## _**Shaffique, J.**_ These two appeals are filed against judgment dated 5/10/2017 in WP(C) No. 19592/2011. Writ petition was filed by the first respondent in these appeals _inter alia_ seeking to quash Exts.P2, P5, P8 and P9 and for a direction to the 4[th] respondent to approve her appointment to the post of UPSA from 2/6/2008 onwards and to disburse the salary due to her. By way of an amendment, she also sought for quashing Exts.P17 and P18 and for consequential reliefs. 2. The short facts of the case are as under and the parties are described as shown in the writ petition. The petitioner was appointed as U.P.S.A. as per Ext.P1 order dated 2/6/2008 by the 5[th] respondent. However, by Ext.P2 proceedings dated 16/5/2009, the District Educational Officer did not approve her appointment as U.P.S.A. In fact, the Manager had appointed her in the vacancy that had arisen when another U.P.S.A. Rekha O., was promoted as HSA (Malayalam) w.e.f. WA Nos.316 & 2046/18 -:6:- 2/6/2008. The promotion of Rekha O., (HSA) was rejected by the DEO and consequently the appointment made to the petitioner was also rejected. The Manager preferred an appeal against Ext.P2 order. In the meantime, petitioner took leave from 20/10/2009 to 7/1/2010 on medical grounds. According to her, when she approached the 5[th] respondent to rejoin duty on 8/1/2010, she was not permitted alleging that there is no vacancy since one Jisna P.M. was already appointed as U.P.S.A. in the school on 1/1/2010. Petitioner submitted a representation to the 2[nd] respondent as Ext.P6 which was forwarded to the 4[th] respondent. Thereafter she filed WP(C) No. 11728/2010 before this Court, which was disposed on 6/4/2010 directing the 4[th] respondent to consider and pass orders on Ext.P6. The 4[th] respondent rejected her approval of appointment as per Ext.P8 dated 25/5/2010. Challenging Ext.P8, revision was filed before the 1[st] respondent which again was rejected on the ground that there was no vacancy to accommodate the petitioner. Ext.P9 is the said order. 3. Petitioner further contends that the 4[th] respondent had revised the staff strength for the period 2006-07, 2007-08, 200809, 2009-10 and 2010-11 as evident from Exts.P10, P11, P12 and WA Nos.316 & 2046/18 -:7:- P13. It is stated that during the year 2008-09, 4[th] respondent has sanctioned 5 posts of HSA (Malayalam) and 13 posts of U.P.S.A. After the revised staff pattern was published, again a representation was given to the 4[th] respondent, but no orders were passed. 4. During the pendency of the writ petition, 5[th] respondent produced letter dated 26/11/2009 as Ext.R5(b) and Ext.R5(c) which indicates that on account of the unauthorised absence of the petitioner, the Management had terminated her from service. Exts.P17 and P18 are the said communications. Writ petition was therefore amended challenging Exts.P17 and P18 as well. 5. 5[th] respondent has filed counter as well as an additional counter affidavit. It is stated that the petitioner was appointed as U.P.S.A. from 2/6/2008 against a promotion vacancy of Smt.Rekha who was promoted from the post of U.P.S.A. as HSA (Malayalam) which was in anticipation of a sanctioned post. The said appointment was not approved by the District Educational Officer and appeal filed before the D.E.O. was also rejected. A retirement vacancy of HSA (Malayalam) arose on 31/3/2009 and as per the request of Smt.Rekha, she was appointed as HSA WA Nos.316 & 2046/18 -:8:- (Malayalam) and her appointment was approved w.e.f. 1/6/2009 onwards. It is further stated that the petitioner was uauthorisedly absent from 20/10/2009 without applying for leave either to the Headmistress or to the Manager and no medical certificate was produced. Headmistress had sent a letter seeking for explanation for the unauthorised absence as Ext.R5(a). Manager had sent Ext.R5(b) calling upon the petitioner to explain the reasons for unauthorised absence. Since there was no reply, her service was terminated on 29/12/2009 as per Ext.R5(c). It is further submitted that the 7[th] respondent was appointed as U.P.S.A. from 1/1/2010. One Vincy, U.P.S.A. was promoted as HSA (Malayalam) from 1/6/2009 and it is in that vacancy, 7[th] respondent was appointed as U.P.S.A. from 1/1/2010. In the additional counter affidavit filed by the 5[th] respondent, it is stated that petitioner was appointed as U.P.S.A. against the promotion vacancy of Smt.O.Rekha during 2008-09. Since O.Rekha's promotion was rejected by the department for want of vacancy and there was no challenge to the said order, it had become final. O.Rekha was later accommodated against another vacancy which occurred on 1/6/2009 as directed by the D.E.O. At that point of time, petitioner was over aged and there was no chance for WA Nos.316 & 2046/18 -:9:- accommodating her in the promotion vacancy of Rekha in the year 2009. Hence, she had left service. 6. In yet another additional affidavit filed, it is stated that petitioner has abandoned service voluntarily after realising that she was over aged and was not eligible to be appointed in the vacancy that had arisen, when O.Rekha was promoted with effect from 1/6/2009. 7. The 7[th] respondent has filed a counter affidavit stating that she was appointed as U.P.S.A. w.e.f. 1/6/2010 in the vacancy of Smt.Vincy who was appointed as H.S.A. w.e.f. 1/6/2009. 8. In the statement filed on behalf of the 4[th] respondent, it is stated that the staff fixation order was revised as per Ext.P12 dated 12/4/2011 and even before issuance of Ext.P12, Smt.O.Rekha was promoted as H.S.A. (Malayalam) on 1/6/2009 in the retirement vacancy of Mercy. The post which became vacant on promotion of O.Rekha was filled up by one Rajkumar which was approved w.e.f. 1/6/2009. The additional post of H.S.A. (Malayalam) sanctioned by Ext.P12 was filled up by promoting Ms.Vincy, U.P.S.A. on 1/6/2009 which was approved w.e.f. 1/6/2011. In the resultant vacancy of Ms.Vincy, the 7[th] respondent was given appointment on 1/6/2010 which was WA Nos.316 & 2046/18 -:10:- approved w.e.f. 1/6/2011. In so far as the petitioner was appointed in the resultant vacancy of O.Rekha when she was promoted in a resignation vacancy during 2/6/2008, when Rekha's appointment was not approved, there was no post to accommodate the petitioner. That apart, she left the service on 29/12/2010 and there was no sanctioned post of H.S.A. (Malayalam) during 2008-09. That was sanctioned only by Ext.P12 order since Vincy was appointed in that vacancy of HSA (Malayalam). 9. The additional 8[th] respondent also filed counter stating more or less the same contention. She was appointed on 1/6/2009 in the vacancy of H.S.A. (Malayalam) on retirement of one Mercy. The retirement vacancy was filled up by promoting K.V.Vincy and 8[th] respondent was appointed as U.P.S.A. initially in the promotion vacancy of K.V.Vincy. The same came to be challenged and the District Educational Officer set aside the order promoting Vincy and directed to appoint Rekha in the retirement vacancy of Mercy. Accordingly Vincy K.V. was reappointed in the vacancy of Priya Aravind instead of Rekha. By virtue of orders passed by the D.E.O., appointment of 8[th] respondent to the post of Rekha was approved by the D.E.O. w.e.f WA Nos.316 & 2046/18 -:11:- 1/6/2009. 10. After considering the respective pleadings, the learned Single Judge by the impugned judgment allowed the writ petition holding that the petitioner is entitled to be approved to the post in which substantial vacancies arose for the academic year 200809 and the impugned orders were set aside. Consequential orders were also passed. 11. We heard the learned Government Pleader Smt.Raji T.Bhaskar appearing for the appellant in WA No.2046/2018, learned counsel Smt.P.A.Jenzia appearing for the appellant in WA No.316/2018 and learned counsel appearing for the contesting respondent. 12. Substantially the contention urged on behalf of the State as well as the Manager is that the petitioner was appointed as UPSA w.e.f. 2/6/2008 in the promotion vacancy of Smt.O.Rekha, who was promoted as HSA (Malayalam) in the resignation vacancy of Priya Aravind. Priya Aravind was working in a protected post and on her resignation, the post ceased to exist. Therefore, the promotion given to O.Rekha was not approved by the Educational Authorities. Though the Manager preferred an appeal against the said order, it came to be rejected. WA Nos.316 & 2046/18 -:12:- Subsequently, O.Rekha was appointed as HSA (Malayalam) on 1/6/2009 in the retirement vacancy of Mercy T.V, which was approved by the Educational Authorities. By the time, O.Rekha was appointed w.e.f. 1/6/2009. That vacancy could not be filled up by the petitioner as she was age barred by that time. This contention apparently was not considered by the learned Single Judge in the proper perspective. From the aforesaid factual circumstances, it is rather clear that when O.Rekha's appointment to the post of HSA (Malayalam) w.e.f. 1/6/2008 was not approved, the appointment of the petitioner had become invalid and it was not approved by the educational authorities. Once the appointment has not been approved, the petitioner will not be entitled for any benefits. Even according to the petitioner, she was appointed in the promotion vacancy of O.Rekha. If that be the case, when O.Rekha's appointment had not been approved by the educational authorities, resultantly there is no post to accommodate the petitioner. To that extent, when Ext.P2 had become final, petitioner is not entitled to claim any benefit. Jisna P.M was appointed as U.P.S.A only on 1/6/2010 and even according to the petitioner, she would be overaged if her appointment on 2/6/2008 is not regularized. WA Nos.316 & 2046/18 -:13:- 13. Learned Single Judge however proceeded on the basis that in so far as petitioner's appointment was not terminated properly, she was entitled to be approved for the post in which substantial vacancies had arisen during the academic year 200809 and therefore consequential directions had been issued. 14. First of all, though the petitioner was appointed on 2/6/2008, it was not approved by the District Educational Officer for want of vacancy, which had become final. Learned counsel for the petitioner however would submit that the 4[th] respondent had revised the staff fixation for the year 2008-09 in which there were 5 posts for HSA (Malayalam) and 13 posts for U.P.S.A. Ext.P12 is the staff fixation order issued on 12/4/2011. As per Ext.P12, during 2007-08, the number of U.P.S.A. was 13 and during 200809 also, there was no change. In such circumstances, when the promotion of O.Rekha as HSA (Malayalam) had not been approved, she was reverted to the sanctioned post, in which event, the petitioner's appointment is rejected. Once her appointment had not been approved, no further rights accrue to the petitioner. Even assuming that she could have been accommodated in the next year, by the time she was overaged, and therefore, she will not get any benefit of being appointed WA Nos.316 & 2046/18 -:14:- effective from 2/6/2008 as the same had been rejected by Ext.P2 order dated 16/5/2009. 15. The learned Single Judge proceeded on the basis that once a person is appointed as a teacher, the Manager cannot terminate his/her appointment unless there is compliance of Rule 48 of Chapter XIVA of KER. In the present case, such a situation does not arise in the light of Ext.P2 order. When her appointment itself had been rejected, the order of rejection dates back to the date of appointment i.e., 2/6/2008. Therefore, this is a case in which even the very appointment was not regular and had not been approved. Under such circumstances, question of termination does not arise. 16. One contention urged by the learned counsel for contesting respondent is that once she had been appointed by the Manager, her services can be terminated only by due process of law. Reference is made to the judgment in _**Hyderali v. State of Kerala**_ (2001 (1) KLT 763). In the above case, the appointment of the rival claimants were approved by the educational agencies. A teacher was appointed in a permanent vacancy and the other teacher in a retirement vacancy. The one who was in the permanent post had submitted a letter of resignation which was WA Nos.316 & 2046/18 -:15:- withdrawn. It is under the said circumstances while considering the scope of Rules 48 and 53 of Chapter XIVA KER, it was held that, after the amendment, the expression “no teacher” is very wide which takes away not only acting, temporary and probationary teachers. There cannot be any quarrel about the said proposition, but, when the the Manger has appointed a teacher, whose appointment is not approved, the said teacher ceases to have any right to continue. The judgment in _**Hyderali**_ (supra) cannot have any application to the facts of the present case. 17. Yet another argument raised by the learned counsel for the petitioner is that the Manager had terminated the services of the petitioner without conducting any enquiry. Reference also is made to the judgment of a learned Single Judge of this Court in _**Rashida v. State of Kerala and Others**_ (2016 (4) KLJ 743). That was also a case in which a teacher was appointed as L.P.S.A. on 1/6/2016 and her appointment has not been approved. In between, the Manager issued a show-cause notice as to why disciplinary action should not be initiated against her as there were complaints from parents of students. He conducted a preliminary enquiry, but no details were mentioned in the show- WA Nos.316 & 2046/18 -:16:- cause notice and the delinquent employee sent a reply seeking details and materials regarding the acts and omissions. Manager issued a letter dated 18/8/2016 withdrawing the appointment order which came to be challenged. In the said circumstances, after referring to earlier views, it was held that Manager cannot cancel the appointment given to the teacher arbitrarily and he will have to comply with the provisions of KER. This judgment also has no application to the facts of the case as the appointment of the teacher was not rejected by the Educational Authorities. 18. The learned counsel for the petitioner/contesting respondent submitted that a statement was filed on behalf of the 4[th] respondent _inter alia_ stating that during 2008-09, there were 13 U.P.S.A posts as per the revised order of staff fixation and 12 teachers were working in the said post in which event, Smt.Jancy could be accommodated to the said post. Perusal of the records would show that subsequently a detailed statement is filed on 18/11/2016 by the 4[th] respondent _inter alia_ stating that the staff fixation from 2006-07 to 2009-10 were revised as per order dated 12/4/2011 in terms of Government Order dated 12/1/2010 on the basis of the bond executed by the Manager. Hence, there were 5 HSA (Malayalam) posts sanctioned from 1/6/2008 onwards and WA Nos.316 & 2046/18 -:17:- 13 UPSA posts from 1/6/2006 and one Smt.Deepa was appointed to the 13[th] post of UPSA. Eventhough the 5[th] post of HSA (Malayalam) was sanctioned, the appointment of Smt.O.Rekha as HSA (Malayalam) from 2/6/2008 was not approved and therefore, the petitioner's appointment as UPSA from 2/6/2008 cannot be considered. It is therefore clear that the earlier statement filed has subsequently been clarified by the Government in their statement filed on 18/11/2016. 19. As far as Exts.P17 and P18 are concerned, the same had been issued after Ext.P2, and can only be treated as redundant. It seems that the Headmistress has issued Ext.R5(a) dated 24/11/2009 to the petitioner stating that she was continuously absent from 20/10/2009 onwards and she was called upon to give a reply. Said letter was sent by registered post. Ext.R5(b) is another letter sent on 26/11/2009 calling upon her to rejoin duty stating that she was continuously absent from 20/10/2009. When there was no reply, Ext.R5(c) letter had been issued on 29/12/2009 terminating her from service. But it is relevant to note that she was working in the school at a time when her appointment had been rejected as per Ext.P2 dated 16/5/2009. An appeal filed by the Manager before the Deputy WA Nos.316 & 2046/18 -:18:- Director of Education as Ext.P3 was pending. In the meantime, petitioner appears to have continued in the school. Later, she made a complaint stating that she was not permitted to rejoin duty. She also filed WP(C) No. 11728/2010 and by judgment dated 6/4/2010, this Court directed the District Educational Officer to consider her complaint within a specified time after hearing them as well. The District Educational Officer by order dated 25/5/2010 held that continuance of the petitioner in the school after 16/5/2009 is illegal and her continuance is only at the risk of the Manager and the teacher concerned. Hence her complaint cannot be adjudicated. By Ext.P9 dated 30/12/2010, Government dismissed her revision petition on the very same reasons. It was clearly stated that there was no established vacancy at that time to accommodate her. In the said circumstances, when the Government and the educational authorities were clear about the fact that her appointment was rejected long back, there was no necessity for a further order of dismissal. If a teacher is permitted to continue in the service of a school even after the order of rejection by the Educational Authority, it is purely voluntary and at their own risk. Even otherwise, while considering an instance where petitioner's WA Nos.316 & 2046/18 -:19:- appointment had been rejected by the educational authorities and the Government, she cannot aspire for the post and Manager has nothing else to do other than ask the concerned teacher to discontinue service and Exts.P17 and P18 need be looked into only in that angle. In the result, we do not think that the learned Single Judge was justified in issuing the impugned order. We therefore allow the appeals and set aside the impugned judgment. The writ petition is, hence, dismissed. **Sd/-** **A.M.SHAFFIQUE JUDGE** **Sd/-** Rp True Copy PS to Judge **T.V.ANILKUMAR JUDGE**