WA No. 345 of 2015; WA No. 358 of 2015: The Manager, A I H S School Padoor, Thrissur District v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 1ST DAY OF AUGUST 2016/10TH SRAVANA, 1938** **WA.No. 345 of 2015 () IN WP(C).23333/2013 -------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 23333/2013 of HIGH COURT OF KERALA DATED 26-06-2014** **APPELLANT(S)/PETITIONERS:** **------------------------** **1. THE MANAGER, A I H S SCHOOL PADOOR, THRISSUR DISTRICT- 680 524.** **2. O.F. JOSE, SON OF O.K.FRANCIS HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE), ALEEMUL ISLAM HIGHER SECONDARY SCHOOL PADOOR, THRISSUR DISTRICT.** **BY ADV. SRI.V.A.MUHAMMED** **RESPONDENT(S)/RESPONDENTS: --------------------------** **1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM-695 014** **3. THE DEPUTY DIRECTOR OF EDUCATION THRISSUR AT AYYANTHOLE, THRISSUR - 680003** **4. THE DISTRICT EDUCATIONAL OFFICER CHAVAKKAD, THRISSUR DISTRICT - 680 506.** **5. SMT. V.M.BASIMA POOKKILLATH HOUSE, P.O.GURUVAYOOR, THRISSUR DISTRICT 680 101.** **R5 BY SRI.GEORGE POONTHOTTAM** **R1 TO R4 BY SR.GOVERNMENT PLEADER SRI.N.K.THANKACHAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01-08-2016, ALONG WITH WA. 358/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC & ANU SIVARAMAN, JJ. ----------------------------------------------W.A.Nos. 345 and 358 of 2015 ----------------------------------------------Dated this the 1[st] August, 2016** ## **JUDGMENT** ## **Anu Sivaraman, J.** These appeals are preferred against the common judgment in W.P(C).Nos. 23333 and 24195 of 2013. W.P(C).No.23333 of 2013 was preferred by the appellants herein challenging the Government order dated 5.9.2013, which was produced as Exhibit P19 therein and W.P(C). No.24195 of 2013 was preferred by the 5[th] respondent seeking implementation of the said Government order. For the sake of convenience, we shall hereafter refer to the parties and exhibits as arrayed and referred to in W.A.No.345 of 2015. 2. The issue raised in the writ petitions was with regard to the eligibility of the 5[th] respondent for appointment to the post of HSA (Social Science) in the 1[st] appellant's school. The 5[th] respondent had initially been appointed on 11.8.1999 in a leave vacancy as HSA (Arabic). The said appointment was approved. She was reappointed as HSA (Arabic) for the period from 30.6.2000 to 12.8.2004. However, she was relieved from service on 12.8.2002 on cessation of vacancy. It appears that the 5[th] respondent had availed maternity leave from 1.11.2000 to 15.3.2001. 2 _**WA.345 & 358/15**_ 3. A vacancy of HSA (Social Science) arose in the 1[st] appellant's school on 1.4.2011. In the said vacancy the 2[nd] appellant was appointed with effect from 1.6.2011. The 5[th] respondent had raised a claim for appointment against the said vacancy of HSA (Social Science) in terms of Rule 51A of Chapter XIV-A KER. By Exhibit P4 order dated 30.4.2012, the District Educational Officer rejected the proposal of the Manager for appointment of the 2[nd] appellant as HSA (Social Science) on the ground that there is a Rule 51A claim raised by the 5[th] respondent. The 2[nd] respondent had taken up the matter before the Director of Public Instructions by Exhibit P5 revision petition. The said revision was directed to be disposed of by Exhibit P6 judgment of this Court. By Exhibit P7 order dated 28.12.2012, the Director of Public Instructions upheld Exhibit P4 order passed by the District Educational Officer and also held that the 5[th] respondent is qualified for appointment to the post of HSA (Social Science). Thereafter, the 2[nd] appellant again approached this Court and by Exhibit P9 judgment, this Court directed to consider Exhibit P8 revision preferred by the 2[nd] appellant before the Government. The 5[th] respondent had also approached this Court by filing W.P(C).No.19919 of 2012. The 1[st] appellant was the 2[nd] respondent in the said writ petition. The 1[st] appellant had contended that the 5[th] respondent was not entitled to be 3 _**WA.345 & 358/15**_ appointed as HSA (Social Science), as she did not possess the requisite qualifications going by the Kerala Education Rules. However, by Exhibit P10 judgment dated 19.2.2012, the learned single Judge found that the contention put forward by the respondents therein that the 5[th] respondent herein can have no claim for appointment as HSA (Social Science) does not merit acceptance. However, since a statutory revision was pending before the Government, the writ petition was disposed of directing the Government to consider the revision petition filed by the 1[st] appellant herein. It was further directed that in the event of the revision petition being rejected, the Government will be entitled to realise the salary and allowances payable to the petitioner with effect from the date of re-opening of the school during the academic year 2012-13. It is thereafter that Exhibit P19 order was rendered by the Government after hearing the parties. The Government in Exhibit P19 held that the 5[th] respondent was a 51A claimant in respect of the post HSA (Social Science) as well. It was further found that because she is a graduate with Arabic and Islamic history as double main subjects, she is entitled for appointment as HSA (Social Science) in the vacancy which arose on 1.4.2011. 4. This order was under challenge before the learned single Judge. The 5[th] respondent had also preferred W.P(C).No.24195 of 2013 4 _**WA.345 & 358/15**_ seeking implementation of the final order passed by the Government in revision. The learned single Judge considered the contentions of the parties and the provisions of Rule 51A of Chapter XIV-A KER as well as the decision of this Court in _**Soumya v. State of Kerala**_ [2013(1) KLT 416]. The question whether the 5[th] respondent was entitled for appointment as HSA (Social Science) in the vacancy which arose in the 5[th] appellant school was considered in detail by the learned single Judge. In the light of Exhibit P10 judgment, where the contentions raised by the 1[st] appellant with regard to the eligibility of the 5[th] respondent for appointment in terms of Rule 51A to the vacancy of HSA (Social Science), which had become final by the disposal of the writ appeal filed by the first appellant, it was held that the question of eligibility of the 5[th] respondent could not be considered afresh in the instant writ petition. However, the learned single Judge proceeded to consider the contentions raised by the appellants with regard to the eligibility and qualifications of the 5[th] respondent. Relying on the judgment of this Court in _**Soumya's case**_ (supra), it was found that after the amendment of Rule 51A of Chapter XIV-A KER by the conscious change of usage of words providing for appointment to future vacancies “in a post” to a “category of posts”. It was clear that the concept of identity of posts was decided to be done away with by _**WA.345 & 358/15**_ 5 the amendment. In the above circumstances, it was held that the contention raised by the 1[st] appellant that since the 5[th] respondent had prior approved service as HSA (Arabic), she cannot claim reappointment as HSA (Social Science) cannot be countenanced. The further contention with regard to the qualification of the 5[th] respondent for appointment as HSA (Social Science) was also examined in detail by the learned single Judge with reference to the provisions of Chapter XXXI of KER as well as the Government orders on the issue. The learned single Judge found that the 5[th] respondent is fully qualified for appointment as HSA (Social Science). The further contention raised by the appellant with regard to the maternity leave availed by the 5[th] respondent was also considered and found against on the ground that even if the leave was wrongly availed, all that could have been done by the District Educational Officer was to declare that the 5[th] respondent would not be entitled to salary and allowances for the above period. It was held that since, as a matter of fact, the 5[th] respondent had continued in service and had been relieved on cessation of the vacancy only on 12.8.2002, the said ground cannot now be raised to deny for the benefit of Rule 51A of Chapter XIV-A KER to her. 6 _**WA.345 & 358/15**_ 5. Heard learned counsel for the appellants, leaned counsel appearing for the 5[th] respondent and the learned Government Pleader. 6. After having considered the arguments advanced by learned counsel for the appellants and the learned counsel appearing for the 5[th] respondent as well as the learned Government Pleader, we find that the question of eligibility and qualification of the 5[th] respondent for appointment to the post of HSA (Social Science) had been concluded by the findings of the learned single Judge in Exhibit P10 judgment dated 19.2.2013. The 1[st] appellant was a party to the said writ petition. The 2[nd] appellant had also been impleaded as additional 3[rd] respondent. It was after considering the contentions advanced on behalf of the appellants as well that the finding with regard to the eligibility of the 5[th] respondent for appointment as HSA (Social Science) was entered upon. It is stated that the said judgment was belatedly taken in appeal by the appellants. The said appeal was also dismissed. Exhibit P10 judgment as regards the eligibility of the 5[th] respondent for appointment had thus become final. 7. That apart, we see from the judgment impugned that all the contentions raised by the appellants have been adverted to and considered by the learned single Judge with reference to the rules and Government orders in question. We find no reason to disagree with the 7 _**WA.345 & 358/15**_ findings rendered by the learned single Judge. There is no infirmity or illegality in the judgment impugned warranting interference by this Court under Section 5 of the Kerala High Court Act. The writ appeals fail. In the result, the writ appeals are dismissed. No order as to costs. ## **ANTONY DOMINIC, JUDGE** **ANU SIVARAMAN, JUDGE** _vgs4/8_