Vinod D. Mundatazhikom v. District Educational Officer, Kollam; Manager, SNV Girls High School, Paravur; Sunil Sivanandan; Additional Director of Public Instruction

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN FRIDAY, THE 29TH DAY OF AUGUST 2014/7TH BHADRA, 1936 WA.No. 962 of 2011 ( ) IN WP(C).23692/2007 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 23692/2007 of HIGH COURT OF KERALA DATED 23-06-2011 ## APPELLANT(S)/PETITIONER: ---------------------------------------------- VINOD.D., MUNDATAZHIKOM, FULL TIME MENIAL, SNV GIRLS HIGH SCHOOL, PARAVUR KOLLAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S)/RESPONDENTS: ---------------------------------------------------- 1. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM - 691001. 2. THE MANAGER, - SNV GIRLS HIGH SCHOOL, PARAVUR, KOLLAM DISTRICT PIN - 691301. 3. SUNIL SIVANANDAN, S/O.N.SIVANANDAN, SANKER'S BHAVAN, KOONAYIL, PARAVUR KOLLAM DISTRICT, PIN - 691301. 4. THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 695014. R1, R4 BY SR GOVT PLEADER SRI.RINNY STEPHAN CHAMAPARAMBIL R BY SRI.M.G.KARTHIKEYAN R BY SRI.B.S.SWATHY KUMAR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.08.2014, THE COURT ON 29.08.2014 DELIVERED THE FOLLOWING: ANTONY DOMINIC & P.D.RAJAN, JJ. ----------------------------------W.A.No.962 of 2011 ----------------------------------Dated this the 29[th] day of August, 2014 JUDGMENT Antony Dominic, J. - 1.The main question that arises for consideration in this appeal is whether the appellant, a full-time menial appointed in the second respondent school in leave vacancies, is entitled to maintain a claim for promotion under Rule 43 of Chapter XIV-A KER. 2.The appellant was appointed in the second respondent school as a full-time menial. Orders of appointment are Exts.P1, P2 and P3 and these orders show that such appointments were against leave vacancies and were approved by the District Educational Officer. While he was continuing in the school, a vacancy of clerk arose on 1.6.2006. The Manger filled up that vacancy by appointing Kumari Anu P.Raj and the appointment was approved. The appellant objected to the approval granted by complaining to the DEO that he had a preferential claim under Rule 43 of Chapter XIV-A KER. The DEO considered the objection and passed Ext.P7 order, upholding the preferential clam WA.962/11 2 of the appellant for promotion under Rule 43 of Chapter XIV-A KER. 3.However, the Manager did not promote him to that vacancy and in the mean while, the third respondent raised a claim for appointment to that vacancy on the ground that he had a claim under Rule 51B of Chapter XIV-A KER, he being the dependent of a deceased teacher. Pursuant to the interim orders passed by this Court in W.P(C).14785/06 filed by the third respondent, the Manager appointed the third respondent in that vacancy. The appellant contested that case by getting himself impleaded. The writ petition was finally disposed of by Ext.P8 judgment, relegating the parties to pursue the statutory remedy of appeal before the Departmental authorities. - 4.The appellant thereafter filed W.P(C).32831/06, seeking a direction to the DEO to consider his objections against the appointment of the third respondent. That case was disposed of by Ext.P11 judgment and the matter was considered by the DPI and Ext.P14 notice was issued, wherein, the appellant was WA.962/11 3 called upon to show cause why his earlier approval of appointments in the leave vacancies should not be cancelled since those appointments were made overlooking the superior claim of the third respondent under Rule 51B of Chapter XIV-A KER. The DPI also issued Ext.P16 order, upholding the entitlement of the third respondent for appointment under Rule 51B and directing the Manager to appoint him to any of the next arising vacancies. Finally, Ext.P17 order was issued by the 4[th] respondent, holding that the third respondent is the rightful claimant for appointment under rule 51B of Chapter XIV-A KER and directing the DEO to approve his appointment. - 5.It is in the above context, W.P(C).23692/07 was filed challenging Ext.P17 and also for a declaration that the appointment of the third respondent is illegal. The writ petition was contested by all the parties and the learned single Judge, by judgment dated 23.6.2011, held that the appellant cannot have any claim under Rule 43 for the reason that he was not appointed on a regular basis. Learned single Judge WA.962/11 4 also declined to consider the claim of the appellant under Rule 51A as he had not raised such a contention at any point of time earlier. Accordingly, the writ petition was dismissed and it is challenging this judgment, the appeal is filed. - 6.We heard the learned counsel for the appellant, learned Government Pleader and the counsel for the third respondent. 7.As already stated by us, the main issue that arises for consideration is whether the appellant can have a valid claim under Rule 43 of Chapter XIV-A KER. Chapter XIV-A KER contains the rules governing the conditions of service of Aided School Teachers. However, on account of the provisions contained in Rule 7 of Chapter XXIV-B KER, the rules regarding appointment, confirmation, promotion, seniority and maintenance of seniority list contained in Chapter XIV-A applicable to teachers of Aided schools mutatis mutandis shall apply to non-teaching staff in Aided Schools also. Rule 43 of Chapter XIV-A provide that subject to considerations of efficiency and any WA.962/11 5 general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade, according to seniority, if such hands are available. This rule reads thus: “43. Subject to rules 44 and 45 and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filed up by promotion of qualified hands in the lower grade according to seniority, if such hands are available: Provided that in the case of promotion to the post of High School Assistant (Subject), the minimum subject requirements alone need be satisfied, to safeguard the interests of trained graduates who are awaiting promotions as High School Assistants. Provided further that where a headmaster or a teacher who has been promoted under this rule faces retrenchment for want of vacancy, he shall be reverted to the category of post from which he has been promoted provided he is not eligible for protection in the retrenched post as per the orders issued by the Government from time to time. Note:- (1) A teacher in a lower grade of pay in one category of post is eligible for promotion to a higher grade of pay in another category of post provided: WA.962/11 6 (i) he has the prescribed qualifications: and (ii) there is no teacher with the prescribed qualifications in the lower grade of pay of the category of post to which promotions are to be made. Note:-(2) promotion under this rule shall be made from person possessing the prescribed qualifications at the time of occurrence of vacancy.” 8.The various provisions incorporated in Chapter XIV-A KER deal with the appointment, probation, declaration of probation, confirmation, maintenance of seniority list etc. of teachers of aided schools. If these provisions are read in its entirety, it can be seen that the teacher mentioned in Rule 43 is a teacher who has been regularly appointed and promotion can be claimed under this rule only by a teacher who has been so appointed. In the context of Rules 43 and 43B, this very issue came up for consideration of this Court in the case in Padmavathi v. The Manager, S.M.H. School, Cherai [ILR 1982(2) Ker 407] where, after surveying the various provisions of Chapter XIV-A KER, this Court summarised the legal position thus: WA.962/11 7 “5. According to the petitioner, preferences are applicable only where there are more than one regularly appointed teacher in the field and since in these cases the 5th respondent was not a regular appointee, but an appointee in a casual vacancy, she was not at all eligible for promotion to the post of H.S.A.(Hindi) with effect from 3rd September 1980 or 4th December 1980. The learned counsel appearing for the Manager and the 5th respondent, on the other had, would content that rule 43-B would attract even in the case of persons leave and other occupying vacancy temporary vacancies and is not confined to cases of persons appointed on a regular basis. 6. Consideration of other relevant rules in Chapter XIV-A of the rules becomes necessary. Rule 2 states that appointments of qualified hands shall be deemed acting till they are confirmed. Rule 3 states that initial appointment of qualified teachers shall be on probation. Rule 6, inter alia states, that teachers appointed under rule 3 shall be on probation for a total period of one year within a continuous period of two years. Rule 20 requires service books to be maintained in the prescribed form for all teachers. Rule 34 requires every management to prepare and maintain in the prescribed form a staff list called as the seniority list teachers. Rule 36 deals with finalisation of the list after considering the representations, if any. Rule 37 provides that seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in WA.962/11 8 that unit, provided he is qualified for the post. Rule 41 deals with confirmation and promotion of teachers who have completed probation satisfactorily. Rule 47 requires every teacher appointed in a permanent vacancy to provide health certificate in the prescribed form on confirmation. Rule 49 states that qualified teachers (except Headmaster) appointed in vacancies which are not permanent, which extend over the summer vacation and who continue in such vacancies till the closing date are to be retained in the vacancy during the vacation if they have service as on the closing date of not less than 8 months. 7. The above rules give us the indication that whenever a reference is made to a “teacher” in the above rules it is intended to refer to “teacher regularly appointed”. Teachers not regularly appointed, but appointed in a short term vacancy have no probation or confirmation, etc. It is doubtful if they will figure in the seniority list either. It cannot be that such temporary hands can have any claim superior to regular hands. Rule 43 refers to seniority being a factor. It does not appear that there will be any question of seniority between a regular appointee and a short term or temporary appointee. Viewed in this lights it must follow that reference to teachers in rule 43-B could only be treated as reference to “teacher appointed on a regular basis” and not in a short term or temporary vacancy. 8. The learned counsel for the 5th respondent relies on rule 43B(1)(iii) (regular WA.962/11 9 primary teachers having prescribed qualification) to contend that whenever the intention was to confine the operation of the rule to “regular teachers”, the word “regular” has been used and since the word “regular” has not been used in the other clauses of the rule, the idea of “regular appointee” cannot be imported into those clauses. I am unable to agree. The expression “regular primary teacher” has particular connotation. It may be seen that there is no such classification as primary teacher in Chapter XXIII of the Rules. Chapter XXIII refers to High School Assistants, Upper Primary School Assistants and Lower Primary School Assistants, but not to primary teachers or regular primary teacher. At the same time, rules 1, 2, 2A and 3 of Chapter XXIII of the rules will show that in the Lower Primary and Upper Primary Schools there will not only be School Assistants, but also Music teacher, Sewing Mistress, other specialist teachers, Arabic teacher, etc. Even though they may hold posts in primary schools, they are not “regular primary teachers”. “Regular primary teachers” can only be Primary School Assistants. Reference to regular primary teachers in rule 43B(1)(iv) into such school assistants and not to craft or specialist teachers, who may work in the Lower Primary or Upper Primary Schools sections of the school. That can be seen from the fact that craft and other language teachers are taken in by clauses (iv) and (vi) of rule 43B(1). The word “regular” has no reference to the connotation of “regular WA.962/11 10 appointee” but has only reference to the regularity of the post as assistant and not as specialist or craft or language teacher. I, therefore, hold that 5th respondent, who was appointed in a short-term vacancy, will not come under any of the clauses of rule 43B. If she had been a regular appointee, she would have come under the sub-clause (iii) of rule 43B (1) (sic) “other lower grade language teachers in that language”. No party has a case that there were any qualified hand available for promotion falling within clauses (i) to (v) of rule 43B (1) of Chapter XIV A of the rules. Clause (vi) states that “if no teacher with the prescribed qualification is available in categories in clauses (i) to (v), lower grade language teachers in any other language the can be having prescribed qualification” promoted. Petitioner is Lower Grade Sanskrit Language Teacher, i.e., a language other than Hindi. She has the prescribed qualifications for the post of High School Assistant (Hindi). There was no other teacher with the prescribed qualifications falling in categories (i) to (v) of rule 43B (1) as on 3rd September 1980. Therefore, the promotion given to the 5th respondent with reference to 3rd September 1980 is contrary to the rules and the petitioner should have been promoted instead.” - 9.Yet another aspect of the matter is, Rule 43 itself clarifies that vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower cadre according to seniority. Rule 34 WA.962/11 11 provides for the maintenance of seniority list of teachers and this rule is subject to Rule 37, which provides that seniority shall be decided with reference to length of continuous service in that grade in that unit provided the teacher is duly qualified for the post. These rules also show that it only applies to teachers who are appointed on a regular basis. This position has also been clarified by a Division Bench of this Court in the judgment in Valsamma Thomas v. Little Flower Girls HS [1999 (2) KLJ 859], where, it was held in paragraph 9 thus: “. . . . . . . . . . . . . Question of application of Rule 37 of Chap.XIV-A would apply only when the seniority is determined between two regularly appointed teachers and not between a regular appointee and a teacher appointed on a temporary basis.” 10.Further, Rule 3 of Chapter XIV-A KER provides that initial appointment of qualified teachers shall be on probation. Rule 6(a) makes it clear that those appointed under Rule 3 shall be on probation for a total period of one year on duty within a continuous period of two years. It is also provided that those in the lower grade who are promoted to the higher WA.962/11 12 grade under Rule 43 before completing their probation, shall be on probation with higher grade as if appointed under Rule 3 in that category. Rule 41 provides for confirmation on satisfactory completion of probation. Though it is subject to Rules 44 and 45, Rule 43 odes not exempt any of these provisions. This also would indicate that the benefit of Rule 43 is available only to those appointed on a regular basis and not to those appointed for short durations such as leave vacancies. In the light of the statutory provisions and the legal principles laid down in the aforesaid judgments of this Court, we have no doubt in our mind that the benefit of Rule 43 of Chapter XIV-A KER cannot be claimed by a person like the appellant whose appointment was only in leave vacancies. - 11.However, learned counsel for the appellant relied on Ext.P7 order of the DEO and Ext.P17 order of the DPI, which proceeds on the assumption that the appellant is a claimant under Rule 43. He also relied on the judgment of this Court in Sandhya v. Jalaja Kumari [2008 (3) KLT 655] and the Full Bench judgment in WA.962/11 13 Soman P.S. v. Manager, A.K.M. High School, Poyya [2013 (2) KHC 173]. Both these judgments relied on by the learned counsel do not, in our view, support the case of the appellant for the reason that in neither of these judgments, the issue whether the benefit of Rule 43 can be claimed by a person appointed in a leave vacancy was considered by this Court. Therefore, these judgments do not, in any manner, help the appellant to assert his entitlement under Rule 43. Similar is the case with the judgment of the Division Bench of this Court in W.A.No.658/98 relied on by the learned counsel for the appellant. Therefore, none of these judgments are an authority for the proposition that a person appointed in a leave vacancy, like the appellant, can maintain a claim under Rule 43 of Chapter XIV-A KER. 12.On the other hand, the judgment in the case of Padmavathi (supra) is a direct authority for the legal position to the contrary. In such circumstances, we fully concur with the view taken by the learned single Judge that the appellant being an appointee in a leave vacancy is not a claimant under Rule 43 Chapter XIV-A KER. WA.962/11 14 13.During the course of the hearing, learned counsel for the appellant made an attempt to relate his claim to Rule 51-A. Here again, as rightly found by the learned single Judge, at no point of time before approaching this Court, did the appellant raise such a contention. In such circumstances, we do not think that we will be justified in permitting the appellant to raise that claim now. Therefore, we decline to entertain that plea raised before us. For the aforesaid reasons, we do not find any merit in this appeal. Writ appeal fails. It is accordingly dismissed. Sd/ANTONY DOMINIC, Judge. Sd/- P.D.RAJAN, Judge. kkb. /TRUE COPY/ PS TO JUDGE