Vijayaraghavan K.K. v. District Educational Officer, Vadakara, Kozhikode District & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 19TH DAY OF SEPTEMBER 2017/28TH BHADRA, 1939** **WP(C).No. 28889 of 2016 (I) ----------------------------** **PETITIONER(S): -------------** **VIJAYARAGHAVAN K.K., PAROL HOUSE, POST AYANCHERI, KOZHIKODE DISTRICT-673544.** **BY ADVS.SRI.SHYAM PADMAN SRI.C.M.ANDREWS SMT.BOBY M.SEKHAR** **RESPONDENT(S):** **--------------** **1. THE DISTRICT EDUCATIONAL OFFICER, VADAKARA, KOZHIKODE DISTRICT.** **2. THE ASSISTANT EDUCATIONAL OFFICER, THODANNUR, VADAKARA, KOZHIKODE DISTRICT.** **3. THE MANAGER, PONMERI LP SCHOOL, P.O.PONMERI PARAMBIL, KOZHIKODE DISTRICT.** **4. SHEENA P., LPSA, PONMERI LP SCHOOL, P.O.PONMERI PARAMBIL, KOZHIKODE DISTRICT.** **5. ANEESH PUTHANKULANGARA, LPSA, PONMERI LP SCHOOL, P.O.PONMERI PARAMBIL, KOZHIKODE DISTRICT.** **WP(C).No. 28889 of 2016 (I)** **----------------------------** **6. DIVYAKUMAR T.K.,** **LPSA, PONMERI LP SCHOOL, P.O.PONMERI PARAMBIL, KOZHIKODE DISTRICT.** **R1&R2 BY SR.GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH R3 BY ADVS. SRI.K.RAKESH ROSHAN** **SMT.THUSHARA.V R4&R5 BY ADV.SRI.R.RAJESH(PULLIKADA) R6 BY ADVS. SRI.V.A.MUHAMMED SRI.M.SAJJAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **WP(C).No. 28889 of 2016 (I)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER IN FORM 27 DATED 05-01-2000. EXHIBIT P2 A TRUE COPY OF THE APPOINTMENT ORDER DATED 25-06-2003 AND PROCEEDINGS OF APPROVAL OBTAINED UNDER RTI ACT. EXHIBIT P3 A TRUE COPY OF THE APPOINTMENT ORDER AND APPROVAL OF THE 4TH RESPONDENT FROM 05-06-2006 ONWARDS.** **EXHIBIT P4 A TRUE COPY OF THE APPOINTMENT ORDER DATED 05-06-2006 IN FORM 27 DATED 05-06-2006 OBTAINED UNDER RTI ACT AND THE PROCEEDINGS OF APPROVAL. EXHIBIT P5 A TRUE COPY OF THE APPOINTMENT ORDER DATED 01-6-2009 AND ODER OF APPROVAL. EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 01-02-2012 AND THE ACKNOWLEDGMENT CARDS. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 02-05-2016. EXHIBIT P7(A) TRUE COPIES OF THE ACKNOWLEDGMENT CARDS. EXHIBIT P8 A TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE 2ND RESPONDENT DATED 0206-2016 ALONG WITH ACKNOWLEDGMENT CARD.** **EXHIBIT P9 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 04-07-2016 ALONG WITH THE ACKNOWLEDGMENT CARD. RESPONDENT(S)' EXHIBITS ----------------------NIL TRUE COPY** **P.S. TO JUDGE** **EL** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.28889 of 2016-I ------------------------------------------- _Dated this 19[th] day of September 2017_ ## _**JUDGMENT**_ The question arising in this case is whether a teacher, who got appointment for a period of less than two months, though approved, is entitled to appointment under Rule 51A of Chapter XIVA of KER, that too after a period of 13 years. In the event of a positive finding on that point, the next question would be whether the Manager can evade appointment to a teacher who got approved service on the ground that he did not claim the same or did not challenge the subsequent appointments, or in other words, whether the Manager can deny appointment on the ground of delay in claiming the appointment, by which time Rule 51A underwent amendment . 2. The petitioner was appointed as L.P.S.A in an aided school of the 3[rd] respondent, against a vacancy which arose when the original incumbent Sri Suresh Babu availed half pay leave for a period of 62 days from 05.01.2000 to 06.03.2000. The petitioner's appointment was approved as leave substitute w.e.f 05.01.2000 to 03.03.2000. Another vacancy arose in the school in the year 2003 when one Sri Kunhabdulla- another LPSA, 2 W.P(C) No.28889 of 2016-I was sanctioned leave for the period from 25.06.2003 to 14.6.2006. The Manager thereupon appointed the 4[th] respondent against that vacancy as per Ext.P2 order dated 25.06.2003. While so, there arose a regular vacancy on 5.6.2006, on account of promotion of Sri Suresh Babu as Headmaster. The Manager appointed the 4[th] respondent against that regular vacancy and the Assistant Educational Officer approved her appointment w.e.f 05.06.2006. Subsequent to that, the Manager appointed the 5[th] respondent against the remaining period of the leave without allowance vacancy of Sri Kunhabdulla, for the period from 05.06.2006 to 23.06.2011, as leave substitute. That appointment was also approved on 23.09.2006. While so, another vacancy arose in that school from 1.6.2009 to 31.03.2011 when the 6[th] respondent was appointed as per Ext.P5 order. That appointment was also approved for the period from 01.6.2009 to 31.3.2011. Much after that the petitioner approached the Manager claiming appointment under Rule 51A, submitting Ext.P6 representation on 01.02.2012 pointing out that appointments were made against the vacancies which arose subsequent to 3.3.2000 without considering his right for reappointment. The petitioner therefore requested to appoint him in the regular vacancy which was to arise in the school in June, 2012 or thereafter. W.P(C) No.28889 of 2016-I 3 3. Thereafter, the petitioner had submitted another representation on 02.05.2016 again raising his claim against the vacancy arising in the School consequent to a retirement on 31.03.2016. This writ petition is filed challenging Exts.P2, P3, P4 and P5 orders of appointments and approval of respondents 4 and 5 and approval of appointment of 6[th] respondent from 01.06.2009 and for a direction to the 3[rd] respondent to appoint the petitioner as LPSA in the vacancy which arose on 01.06.2016. 4. The Manager as well as the 6[th] respondent have filed counter affidavits stating that the petitioner does not have any claim under Rule 51A as he did not have 60 days' service and he did not acquire any statutory claim for appointment at any point of time. It is also stated that he did not have the prescribed qualification for appointment as L.P.S.A. Even though nothing is stated in the counter affidavit regarding his eligibility, it was argued that the petitioner is a B.Ed. hand and appointments in the L.P Schools to the teaching posts can be made only by appointing those who are having T.T.C. It is also stated that the petitioner never challenged the appointments made in the school within the statutory period of one month. The 6[th] respondent has also stated that even in this writ petition the petitioner is not challenging the appointments made subsequent to his 4 W.P(C) No.28889 of 2016-I appointment. It is also pointed out that the petitioner's appointment is only for a period of less than 2 months and therefore he does not have any statutory claim. 5. The question which is to be determined is whether the petitioner is having any statutory claim under Rule 51A of Chapter XIVA. Rule 51 A prior to its amendment on 15.06.2005 read as follows: **“** 51A. Qualified teachers who are relieved as per R.49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided that they have not been appointed in permanent vacancies in schools under any other Educational Agency.” 6. Though Rule 51A did not stipulate any minimum period for appointment at that time as provided after its amendment in 2005, Rule 7A (3) of Chapter XIV A K.E.R, provided that vacancies with a duration of not less than two months alone could be filled up by any appointment. Despite this, in this case the appointment was made and approved for 59 days. In this context _Rule7A (3) is also relevant, which read as follows, before amendment:_ “Vacancies the duration of which is two months or less shall not be filled up by any appointment” _After amendment it reads as follows:_ **==> picture [124 x 11] intentionally omitted <==** (3) Vacancies, the duration of which is less than one academic year, shall not be filled up by any appointment.” 5 W.P(C) No.28889 of 2016-I Therefore, in order to have a statutory claim one should have more than 60 days of approved service. The petitioner rendered service in the school for the period from 05.01.2000 to 03.03.2000 for a total period of 59 days as shown below: |**_Period_**|**_No.of days_**| |---|---| |January, 2000|27| |February, 2000|29| |March, 2000|3| |Total|59| 7. A Division Bench of this Court, while considering the impact of amendment to Rule 51A on the right of teachers who had already acquired that ## right, had held as follows in _**Abdurahiman N.K. v. Government of Kerala and others**_ (2009 (2) KLT 105, “In the case of Educational Institutions, the minimum incumbency period was fixed as two months. That is because a valid appointment can be made only if the vacancy extends beyond that period. Now, it is provided that appointments can be made, if only the duration of the vacancy is one academic year and only such incumbents are to be given preference in future appointments. But, the said amendment can in no way affect the rights accrued to persons, on the strength of their appointment to short duration vacancies exceeding two months, made earlier to the amendment. The right of them to get re-appointment was always recognised by R.51A. But after 25.6.2005, one can be appointed if only the vacancy has a duration of one academic year. Therefore, naturally such persons alone can get the right to re-appointment also. So, the interpretation sought to be advanced by the respondents that the writ petitioner has no right for re-appointment under R.51 A, in view of the introduction of the first proviso to the said rule, cannot be accepted.” It was a case where the appointment was for a period of more than two months. W.P(C) No.28889 of 2016-I 6 8. In **Soman v. Manager, A.K.M. High School** : 2013 (2) KLT 215 (F.B.), a Full Bench of this Court, while considering the right of a teacher for re-appointment before actual approval of appointment, also held that when a person is appointed, complying with R.7A of Chapter XIV A of the K.E.R, in a short term vacancy, he shall be entitled to raise a claim for preference for appointment as provided under R.51A if the conditions under that Rule are satisfied.. 9. Going by Rule 51A of Chapter XIVA, Manager is duty bound to make any further appointment only after complying with the provisions contained in Note 2 thereof without waiting for any request from the Rule 51A claimant. But in the present case, the appointment was only for a period less than 2 months. In the above circumstances, it cannot be said that it was obligatory for the Manager to inform the petitioner about the subsequent vacancies and to issue notices to the petitioner as provided under note 2 to Rule 51A does not arise in this case. Though there is a moral obligation cast on the Manager, to honour the service rendered by the petitioner, in terms of the principles of industrial law by offering the next vacancy, to petitioner, it is seen that the petitioner has approached the Manager only after a period of 12 years, requesting for appointment. By that time Rule W.P(C) No.28889 of 2016-I 7 51A got amended in the year 2005. Statutory right for re-appointment under Rule 51A subsequent to 2005 is available only to those with approved service for one year, as held by the Apex Court in **Manager, VKNM Vocational Higher Secondary School v. State of Kerala** : 2016(1) KLT 489. The circumstances arising in this case therefore do not warrant a consideration of the moral obligation also on the part of the Manager or the right of a teacher who got his appointment approved, though for a period of less than 2 months. 10. Even though the learned Counsel for the petitioner relied on a series of judgments including **Pathumma v. State of Kerala** : 1986 KLT 166, **Mary Oommen v. Manager, MGM School** : 1987 (1) KLT 686, **Usha Rathnam v. State of Kerala** : 2001(3) KLT161, **Lilly v. Secretary to Government** : 2003 KHC 1292:2003(2) KLJ 748, **Abdurahiman N.K V Govt of Kerala** :2009(1) KLT 105, in support of his contention that the right under Rule 51A cannot be denied and would not be lost on account of delay in preferring any claim, I find that all those are cases in which there was no dispute with respect to the duration of appointment. Moreover, the petitioner does not have TTC which is a mandatory qualification for appointment as LPSA in the 3[rd] respondent School, which is an LP School. In the light of 8 W.P(C) No.28889 of 2016-I the amended rule 51A and its interpretation by the Apex Court, the right for re-appointment is confined to those who have served for not less than one academic year. Petitioner's claim could have been sustained in case his appointment was in tune with Rule 7A of chapter XIVA, for a period of not less than 2 months. But he does not have the requisite service. Therefore, the petitioner does not have any right to stake any valid claim for appointment. The circumstances of the case do not warrant any interference by this Court as the petitioner does not deserve any relief under Article 226 of the Constitution of India. The writ petition therefore fails and is dismissed. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_