Vijayaraghavan K.K. v. District Educational Officer, Vadakara & Ors.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 27TH DAY OF MARCH 2018 / 6TH CHAITHRA, 1940** **WA.No. 716 of 2018** **AGAINST THE JUDGMENT IN WP(C) 28889/2016 OF THE HON'BLE COURT, DATED 19-10-2017** ## **APPELLANT/PETITIONER:** **VIJAYARAGHAVAN K.K.,** **PAROL HOUSE, POST AYANCHERI, KOZHIKODE DISTRICT - 673 544.** **BY ADVS.SRI.SHYAM PADMAN SRI.C.M.ANDREWS** **SMT.BOBY M.SEKHAR** ## **RESPONDENT(S)/ REPONDENTS:** **1. THE DISTRICT EDUCATIONAL OFFICER., VADAKARA, KOZHIKODE DISTRICT - 673 101.** **2. THE ASSISTANT EDUCATIONAL OFFICER,** **THODUNNUR, VADAKARA, KOZHIKODE DISTRICT - 673 101.** **3. THE MANAGER,** **PONMERI LP SCHOOL, P.O. PONMERI PARAMBIL, KOZHIKODE DISTRICT - 673 541.** **4. SHEENA.P., LPSA,PONMERI LP SHCOOL, P.O, PONMERI PARAMBIL, KOZHIKODE DISTRICT - 673 541.** **5. ANEESH PUTHANKULANGARA., LPSA, PONMERI LP SCHOOL, P.O. PONMERI PARAMBIL, KOZHIKODE DISTRICT - 673 541** ## **6. DIVYAKUMAR .T.K.,** **LPSA, PONMERI LP SCHOOL, P.O. PONMERI PARAMBIL, KOZHIKODE DISTRICT - 673 541.** **R1 & R2 BY GOVERNMENT PLEADER SRI.E.S.ASHRAF** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PBS 5/4/2018** **“CR”** ## **P.R.RAMACHANDRA MENON & DEVAN RAMACHANDRAN, JJ.** ============================ W.A.No.716 of 2018 ============================ Dated this the 27[th] day of March, 2018 ## **JUDGMENT** ## **Devan Ramachandran, J.** The issues raised in this appeal for resolution of this Court pirouettes on Rule 51A of Chapter XIV-A Kerala Education Rules. The said Rule, of course, provides that qualified teachers who are relieved from service on account of termination of vacancies shall obtain preference for appointment to future vacancies. 2. The dispute in this case is not merely whether the teacher concerned has obtained a right under Rule 51A but is also if such a right would get effaced on account of the failure of the teacher to take action for long periods of time even after fresh vacancies arose. 3. To exacerbate the problem in this particular case, for long periods of time the teacher stood silent and the provisions of the Statute changed, impelling a further question whether the right obtained by the teacher under Rule 51A would inure to W.A.No.716 of 2018 2 him/her, for being considered for future vacancies, notwithstanding the amendment to the law, on the ground that he/she is entitled to be considered for appointment in terms of the statutory prescriptions as it stood at the time when right crystallized. ## 4. First, the most essential facts: The appellant was the petitioner in W.P.(C) No.28889 of 2016. In the said writ petition, the appellant sought to enforce his right under Rule 51A of Chapter XIVA of the Kerala Education Rules (for short, 'the KER') for being appointed to a vacancy that arose in the Ponmeri LP School under the managerial control of the third respondent. 5. The factual assertions of the appellant in support of his claim for such appointment is that he was appointed as a leave substitute in a vacancy, that arose in an aided school, by the third respondent with effect from 05.01.2000 to 06.03.2000. He has produced on record Ext.P1 appointment order in evidence of this assertion. It is also clear from Ext.P1 that even though the vacancy shown therein was from 05.01.2000 to 06.03.2000, approval was granted to the appointment only from 05.01.2000 W.A.No.716 of 2018 3 to 03.03.2000. This fact has some relevance with which we will deal presently. 6. On the expiry of the period of approval on 03.03.2000, the appellant says that he was retrenched and he asserts that, as per Rule 51A of Chapter XIVA of the KER, his right to be appointed to the future vacancies has thus obtained crystallization. According to him, he came to be aware that there was a vacancy in the school, which was to arise on 01.03.2012 and that he made a representation dated 01.02.2012, a copy of which has been placed on record as Ext.P6, staking claim for being appointed to such vacancy. The appellant concedes that he did nothing thereafter, but that he waited for another four years before making a second representation, dated 02.05.2016, a copy of which has been placed on record as Ext.P7, making claim to a retirement vacancy that arose on 31.03.2016. On the allegation that his representation was not considered favourably, he preferred a representation to the second respondent - Assistant Educational Officer, through his letter dated 02.06.2016, a copy of which has been placed on record as Ext.P8, wherein he has challenged the appointments of W.A.No.716 of 2018 4 respondents 4 to 6 in the vacancies that arose in the past in the school. 7. The pleadings on record would show that the case of the appellant against respondents 3 to 6 are hinged on the fact that about 2½ years after his retrenchment, the fourth respondent was appointed to a leave vacancy from 25.06.2003 to 14.06.2006 and thereafter, that he was appointed to a regular vacancy that arose soon after; that the fifth respondent was appointed to a vacancy that arose from 05.06.2006 to 31.03.2011 and thereafter to a regular vacancy that arose on 01.06.2009 onwards; that the sixth respondent was appointed to a vacancy during the period from 01.06.2009 to 31.03.2011. Pertinently, the appellant does not appear to have made any claim to any of such vacancies, but he has only made a prayer in Ext.P8 representation that all the above appointments, which were duly approved from time to time, be struck down since the filling up of such vacancies through respondents 4 to 6 are in violation of his statutory right under Rule 51A of Chapter XIVA of the KER. 8. On the afore allegations, the appellant filed the writ petition, which was, however, dismissed by the learned single W.A.No.716 of 2018 5 Judge holding that his claims under Rule 51A cannot inure to him after the amendment of the said Rule in 2005, going by the judgment of the Hon'ble Supreme Court in **Manager, VKNM** ## **Vocational Higher Secondary School v. State of Kerala and** **others** [(2016) 4 SCC 216]. The learned single Judge has also concluded that the appellant's claim under Rule 51A itself is suspect because his original appointment was for a period of less than two months, whereas under Rule 7A(3) of Chapter XIVA of the KER, as it stood before its amendment in 2003, no vacancy below two months could have been filled up by the authorities. The appellant impugns this judgment on the ground that these findings are per se incorrect and contrary to law. 9. We have heard Sri.P.T.Mohankumar, the learned counsel appearing for the appellant; Sri.Rakesh Roshan, the learned counsel appearing for the third respondent and the learned Government Pleader. 10. As we have stated in the opening paragraphs of this judgment, the appellant stakes claim under Rule 51A of Chapter XIVA of the KER. Under this Rule, “qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of W.A.No.716 of 2018 6 vacancies shall have preference for appointment to future vacancies.” It is admitted that the appellant was appointed to a leave vacancy as per Ext.P1 for the period from 05.01.2000 to 06.03.2000, though he was granted approval only for the period from 05.01.2000 to 03.03.2000. This amounts to about 59 days of service and the third respondent - manger of the school makes a preliminary objection to the claim of the appellant under Rule 51A by saying that under Rule 7A(3) of Chapter XIVA of the KER, no vacancy of below two months could have been filled up by the manager or granted approval by the authorities. In effect, the submission of the learned counsel for the manager is that the appellant's appointment for a period of 59 days in the year 2000 is contrary to Rule 7A(3) of the KER and therefore, that his appointment itself is illegal, thus consequently denying to him the benefit of Rule 51A. The further assertion of the manager is that the appellant does not have the requisite qualifications for being appointed as an LPSA since according to him, the appellant concededly has not acquired TTC, which is an essential qualification included under Rules 3(1) and 4(1) of Chapter XXXI of the KER. The learned counsel for the manager then goes on W.A.No.716 of 2018 7 to say that it is since the appellant is not entitled for being considered against a claim under Rule 51A and since he is not qualified for appointment as an LPSA, that his client did not issue the appellant an appointment letter, as is required under Note 2 to Rule 51A of Chpater XIVA of the KER. 11. The learned counsel for the appellant tries to refute these submissions of the learned counsel appearing for the manager by predicating that the right under Rule 51A of Chapter XIVA of the KER is akin to a lien that a person acquires because he had an earlier service in a school, from which he was relieved solely on account of termination of vacancy. According to him, the contention of the learned counsel for the manager that his client would not obtain the claim under Rule 51A merely because the vacancy to which he was appointed was, in fact, less than two months as is warranted under Rule 7A(3) of Chapter XIVA of the KER, is not tenable because Rule 51A, prior to its amendment, did not provide that a minimum period of service was required to be acquired by a teacher for obtaining a claim there- under. He further tries to elaborate by saying that since his client had validly approved service, albeit for only 59 days, W.A.No.716 of 2018 8 the right under Rule 51A would get immediately crystallized since his client was relieved from service on account of termination of the vacancy. He, therefore, says that the action of the respondents in refusing his claim for appointment to the school are illegal and unlawful. 12. The learned Government Pleader appearing on behalf of the official respondents submits that the claim of the appellant does not appear to be plausible, because he concededly has only 59 days service in the year 2000 and he had chosen to keep quiet for over 16 years to make his present claim. The learned Government Pleader further says that the absence of requisite educational qualifications being an admitted fact, should also be taken as a circumstance against the appellant and therefore, that he cannot be allowed to succeed in the prayers made for in this writ petition. 13. We have considered the submissions of the learned counsel appearing for the parties as afore as also the learned Government Pleader. 14. There are certain very pertinent facts involved in this case. The appellant was appointed to a leave vacancy as a W.A.No.716 of 2018 9 substitute during the period from 05.01.2000 to 06.03.2000, but his appointment was approved only from 05.01.2000 to 03.03.2000. Obviously, the petitioner has only 59 days of service and it is on such basis that the manager says that his appointment was illegal. We cannot accede to this because the fact remains that no one has challenged the appellant's appointment or his validly granted approval until this time and it is indubitable that as long as his service stands approved, it would be impossible for the manager to take the contention that such appointment was illegal or that his service is to be construed as being untenable in law. 15. That being said, it is certain that before the amendment to Rule 51A was brought into effect on 25.06.2005, there was nothing in the said Rule which stipulated that a teacher should have a minimum service so as to qualify him for the benefit under it. However, this position was altered with effect from 25.06.2005, when a proviso was added stipulating that no teacher shall 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 leave. W.A.No.716 of 2018 10 16. We are, at this time, cognizant of the submission of Sri.P.T.Mohankumar, the learned counsel for the appellant that this amendment was brought only in the year 2005, whereas his client's rights under Rule 51A became vested and crystallized in the year 2000. He also cites several judgments of this Court and that of the Hon'ble Supreme Court to drive home his contention that once such right had become vested, subsequent amendments would not effect it and therefore, that he would be entitled to enforce it notwithstanding the subsequent amendments. 17. Even though we have considered the submissions of the learned counsel for the petitioner as afore, we are afraid that we cannot offer our acceptance to this at all in view of the latest judgment of the Hon'ble Supreme Court in **Manager, VKNM Vocational Higher Secondary School** (supra), which, as we have already stated above, has been referred to by the learned single Judge also, wherein their Lordships have declared the law emphatically in paragraphs 22, 23 and 24 of the said judgment. For ease of convenience, we deem it appropriate to extract as under: W.A.No.716 of 2018 11 “22. Having thus noted such well laid down principles on a claim of vested right, when we test the argument made on behalf of the fifth respondent, at the very outset it must be stated that though prior to the amendment of Rule 7-A(3) by the Notification dated 16-4-2005 the fifth respondent did satisfy the unamended Rule 7-A(3) by having been engaged in a vacancy as a qualified teacher for a period of two months, as early as on 11-3-1998; unfortunately for the fifth respondent there was no occasion to raise a claim for any preferential appointment on the basis of fulfilment of such a requirement as it existed then and as provided under Rule 51-A. In fact, between 1998 and 2010, i.e., for nearly 12 years there was no scope for the fifth respondent to raise a claim on that basis. Therefore, the very fundamental principle of pursuit of a remedy at the very inception did not take place in order to consider whether any further proceedings could be pursued based on such initiation of claim. Since at the very inception a claim though even on the basis of the then existing Rule 7- A(3) could not be initiated to be pursued, it is very difficult to hold that there could have been preservation of any such right as it existed under the unamended Rule 7-A(3). 23. Having regard to the said situation in the case on hand, it cannot be held that the law that prevailed, namely, the right which was available under the unamended Rule 7-A(3) alone would remain and not the law that prevailed at the time when the fifth respondent staked her claim for preferential appointment i.e. when the vacancy arose in the year 2010. By that time, i.e. after 12 years when the fifth respondent sought to enforce her right under rule 51-A as a sea change came into effect by way of an amendment to Rule 7-A(3), which expressly disentitled a qualified teacher to claim to be categorised under the category “on account of termination of a vacancy” as such express prohibition came to be introduced by virtue of the amendment to Rule 7-A(3), it will have to be held that the submission of the learned Senior Counsel for the fifth respondent that a vested right accrued to W.A.No.716 of 2018 12 her as early as on 11-3-1998 cannot be countenanced. Since, the very foundation of the fifth respondent's claim rested on the said submission, we do not find any scope to apply Note 2 of Rule 51-A to come for her rescue. Equally, the reliance placed upon by the learned counsel in Abdulrahiman will also be of no avail when once the claim of the fifth respondent fall to the ground by virtue of the principles laid down by the Constitution Bench decision of this court in Garikapati Veeraya. Consequently, the faint attempt of the learned Senior Counsel for the appellant to refer this case to a larger Bench cannot also be acceded to. 24. Therefore, going by the interpretation of amended Rule 7-A(3) read along with rule 51-A, if one were to be brought under the category of qualified teacher relieved on account of termination of vacancies, the amended Rule 7-A(3) is required to be satisfied, namely, such engagement lasted for one clear academic year as stipulated under Rule 1 and 2-A of chapter VII of the Kerala Education Rules. The fifth respondent not having satisfied the said requirement there was no scope to allow her to press her claim under Rule 51-A for a preferential appointment. Having regard to the said legal consequence, the relief granted by the first respondent in order dated 26-11-2011 cannot be sustained and consequently, the directions issued by the High Court in the impugned judgment cannot also be sustained. The answers to the questions made by the Full Bench are also liable to be set aside and in its place, it must be held that the interpretation made by this court in Sneha Cheriyan would alone prevail.” 18. The facts involved in **Manager, VKNM Vocational Higher Secondary School** (supra) was, in fact, on a comparison, better than the facts involved in this case because in W.A.No.716 of 2018 13 that case, their Lordships noticed that even though a right under Rule 51A became entitled to the teacher therein as early as in the year 1998, no vacancies arose for over 12 years thereafter till the year 2010, thus incapacitating the teacher from making claim for appointment under the vested right. In spite of this, the Hon'ble Court held against the teacher therein holding that “the fundamental principle of pursuit of a remedy at the very inception did not take place in order to consider whether any further proceedings could be pursued based on such initiation of claim”. In the case at hand, the facts are different to the detriment of the appellant since it is virtually admitted by him, as is also available from the pleadings, that even though he was retrenched in the year 2000, thus being allegedly entitled to a claim under Rule 51A, he did not stake a claim to any vacancy that arose thereafter. It is on record that at least 4 or 5 vacancies arose thereafter to which respondents 3 to 6 were appointed. The appellant chose to be silent all through, but made a representation only in the year 2012 to a vacancy that was arising on the first of March of that year. We are certainly aware that the submission of the learned counsel for the appellant to W.A.No.716 of 2018 14 this is that his client was not aware of the vacancies that arose prior to 2012 and therefore, that in the absence of a notice being issued by the manager, as provided under Note 2 of Rule 51A of Chapter XIVA of the KER, there was no method by which he could have been aware of the vacancies that had arisen. Even assuming that we find credence to this submission, it is baffling that the appellant, after having staked claim at least in the year 2012, did not pursue it at all until 2016, when he made a further representation and that too for a vacancy that arose subsequently. 19. As is also evident from the prayers made in this writ petition, the appellant has sought a direction to the manager to appoint him to the vacancies arose with effect from 01.06.2016, of course, without prejudice to his contentions that he is entitled to the earlier appointments also and consequentially seeking the orders of appointment of respondents 3 to 6 to be set aside. This conduct of the appellant, we must say, is completely unacceptable in law and it is a case where the present litigation suffers from the absence of initiation of remedy at the right time even though he was aware that vacancies had been arising in the W.A.No.716 of 2018 15 school at least as early as from the year 2012. 20. In such view of the matter, even assuming that the appellant can be seen to be a teacher with a valid 51A claim, we cannot grant imprimatur to his request that he be appointed to a vacancy that arose in 2016 based on such claim, especially when he does not, concededly, have the qualifications as are now required under the provisions of the KER. We are completely guided by the afore extracted paragraphs of the judgment of the Hon'ble Supreme Court in **Manager, VKNM Vocational Higher Secondary School** (supra) and we cannot in any manner deviate therefrom. The declaration of law by their Lordships is emphatic that once the position in law had been altered, without the claimant making an effort to pursue his remedy prior to that, even though he may have a crystallized or vested right, he cannot be allowed to continue to invoke that remedy even after the amendment. In this case, there are at least two amendments to Rule 7A(3) and to Rule 51A of Chapter XIVA of the KER which disentitle a person to claim appointment to a vacancy if he does not have continuous service of at least one academic year. Concededly, the appellant does not have this W.A.No.716 of 2018 16 and therefore, going by the ratio in the afore-mentioned judgment, his claim has to fail and the learned single Judge, in our view, has correctly held so. 21. In the summation of our observations as above, we see no reason to disturb any of the findings of the learned single Judge even though we are of the view that the appellant is justified in his contention that he has a valid 51A claim in the year 2000 which, however, has been extinguished on account of his laches and silence for a period of over 16 years and also because he does not have the requisite qualification as per the applicable provisions when such vacancy arose. This writ appeal is thus dismissed. ## **P.R.RAMACHANDRA MENON JUDGE** stu ## **DEVAN RAMACHANDRAN JUDGE**