WP(C). Nos. 9649 of 2018 and 12016 of 2018: Noufal P. v. State of Kerala & others; Habeeb Ali v. State of Kerala & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE MONDAY ,THE 12TH DAY OF NOVEMBER 2018 / 21ST KARTHIKA, 1940** ## **WP(C).No. 9649 of 2018** |**PETITIONERS**<br>**:**|**PETITIONERS**<br>**:**|| |---|---|---| |**1**||**NOUFAL P**| |||**AGED 33 YEARS**| |||**S/O. USMAN, FULL TIME MENIAL, PTM HIGHER SECONDARY**| |||**SCHOOL,KODIYATHUR P.O, KOZHIKODE DISTRICT,PIN - 673**| |||**602.**| |**2**||**C.P.MOHAMMED KUTTY**| |||**MANAGER, CORPORATE EDUCATIONAL AGENCY,EMEA GROUP OF**| |||**INSTITUTIONS, P.O.KONDOTTY,MALAPPURAM DISTRICT, PIN -**| |||**673 638.**| |||**BY ADV. DR.GEORGE ABRAHAM**| |**RESPONDENTS**<br>**:**||| |**1**||**STATE OF KERALA**| |||**REPRESENTED BY SECRETARY TO GOVERNMENT,GENERAL**| |||**EDUCATION DEPARTMENT, GOVERNMENT**| |||**SECRETARIAT,THIRUVANANTHAPURAM - 695 001.**| |**2**||**DEPUTY DIRECTOR OF EDUCATION**| |||**CALICUT, PIN - 673 001.**| |**3**||**DISTRICT EDUCATIONAL OFFICER**| |||**THAMARASSERY, PIN - 673 573.**| |**4**||**HABEEBALI P**| |||**PULIKKAL HOUSE, PANNICODE, MUKKOM,KOZHIKODE DISTRICT,**| |||**PIN - 673 602.**| |||**BY ADV. SRI.M.A.FAYAZ**| **BY GOVERNMENT PLEADER, SMT.G.RANJITHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.11.2018, ALONG WITH WP(C).12016/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**WP(C)Nos.9649/2018 & 12016/2018**_ _**2**_ ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY ,THE 12TH DAY OF NOVEMBER 2018 / 21ST KARTHIKA, 1940** ## **WP(C).No. 12016 of 2018** ## **PETITIONER:** **HABEEB ALI.P.** **S/O. USSAN, AGED 30 YEARS, PULIKKAL HOUSE, PANNICODE, MUKKAM P.O., KOZHIKODE - 673 602,FORMER L.D. CLERK, P.T.M HIGH SCHOOL,KODIYATHOOR.** **BY ADV. SRI.M.A.FAYAZ** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM - 695 014.** - **3 DEPUTY DIRECTOR OF EDUCATION KOZHIKODE - 673 020.** - **4 DEPUTY DIRECTOR OF EDUCATION DOWN HILL, MALAPPURAM - 676 519.** - **5 DISTRICT EDUCATIONAL OFFICER THAMARASSERY, KOZHIKODE DISTRICT - 673 573.** - **6 DISTRICT EDUCATIONAL OFFICER MALAPPURAM - 676 505.** - **7 CORPORATE MANAGER ERANADU MUSLIM EDUCATIONAL ASSOCIATION,KONDOTTY P.O., MALAPPURAM - 673 638.** - **8 NOUFAL FULL TIME MENIAL, PTM HIGHER SECONDARY SCHOOL, KODIYATHOOR, KOZHIKODE - 673 602.** _**WP(C)Nos.9649/2018 & 12016/2018**_ _**3**_ - **9 V. KHALID** **FULL TIME MENIAL, EMEA HIGHER SECONDARY SCHOOL, KONDOTTY, MALAPPURAM - 673 638.** - **10 ABDUL RASHEED** **FULL TIME MENIAL, EMEA HIGHER SECONDARYSCHOOL, KONDOTTY, MALAPPURAM - 673 638.** - **11 P.G. MOHAMMED** - **HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE),PTM HIGHER SECONDARY SCHOOL,KODIYATHOOR, KOZHIKODE - 673 602.** - **12 ANAS M.** - **HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE),EMEA HIGHER SECONDARYSCHOOL, KONDOTTY, MALAPPURAM - 673 638.** - **13 SUSHAIBA HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE),EMEA HIGHER SECONDARYSCHOOL, KONDOTTY, MALAPPURAM - 673 638.** **BY ADVS. DR.GEORGE ABRAHAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.11.2018, ALONG WITH WP(C).9649/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**WP(C)Nos.9649/2018 & 12016/2018**_ _**4**_ ## **JUDGMENT** The petitioner, Habeeb Ali in WP(C)No. 12106/18 is a claimant under Rule 51A of Kerala Education Rules, 1959. He was originally appointed as Lower Division Clerk(LDC) for the period from 01/12/2011 to 31/07/2015 in P.T.M. High School, Kodiyathoor. He was thrown out from the service as the incumbent who availed leave rejoined on 30/09/2013. 2. Habeeb Ali is a graduate. The Government by an Executive Order issued on 01/07/2011 prescribed the qualification for the post of Last Grade Servants in various departments. It is stipulated that such candidates should not have acquired any degree. That means, even prior to the appointment of Habeeb Ali, the stipulation was that such candidates should not have acquired degree. 3. A vacancy arose in the School for the post of FTM. Noufal P, one of the writ petitioners in WP(C) No.9649/2018 was appointed on 01/12/2015. That was also approved by the District Educational Officer (DEO). _**WP(C)Nos.9649/2018 & 12016/2018**_ _**5**_ 4. Thereafter, the Government amended Rules relating to Kerala Last Grade Service on 04/06/2016. This amendment came into effect retrospectively w.e.f. 01/07/2011 in tune with the Executive Order passed as per Ext.P4 produced in WP(C) No.9649/18. 5. The Government again amended the special Rules by taking away the retrospective effect given to the special Rules. That means, the Rule came into force only from 04/06/2016. 6. Noufal P, was appointed on 01/12/2015 and Habeeb Ali taking note that amendment was given effect only w.e.f. 04/06/2016 raised a claim under Rule 51A of KER. This was upheld by the Government. The result of such decision is that the appointment of Noufal P, will have to be interfered. Noufal P along with the Manager filed a writ petition challenging the same by WP(C)No.9649/2018. Habeeb Ali filed WP(C)No.12016/2018 seeking implementation of Government Order upholding his claim under Rule 51A of KER. 7. The argument of Habeeb Ali is that, a duty cast on the Manager under Note 2 of Rule 51A of KER to intimate a claimant under Rule 51A of KER to join duty and therefore, in the absence of such notice, _**WP(C)Nos.9649/2018 & 12016/2018**_ _**6**_ Noufal.P. or Manager cannot take shelter under such Special Rules to validate the appointment of Noufal P. 8. This is not a case where there is a challenge regarding the Special Rules amendment giving effect to the Rules with retrospective effect. Rules as such stands stipulate that qualification prescribed would apply only w.e.f. 04/06/2016. 9. Habeeb Ali is not eligible to be appointed as on 01/12/2015 in the vacancy of FTM for the reason that he was possessing degree. The question is whether the Manager is duty bound to intimate such a claimant when a vacancy arose. The very purport of the Rule 51A of KER is to re-appoint the person who is eligible to be appointed. If a person as on the date of arising of vacancy is not qualified or eligible, the Manager is not bound to issue any notice. Habeeb Ali could not have raised any claim for such appointment for the reason that as per the Rules then prevailing, he was not eligible to be appointed. It is only by virtue of subsequent amendment of Rules his claim resurrected relatable to the date of occurrence of vacancy. Even if a notice intimating vacancy was issued, no purpose would be served as Habeeb _**WP(C)Nos.9649/2018 & 12016/2018**_ _**7**_ Ali was not eligible as per Rules prevailing then. Therefore, I am of the view that non issuance of notice by the Manager is of no consequence as far as the legality of the appointment of Noufal P by the Manager. 10. The question is whether consequent upon giving retrospective effect of Rules, appointment already made can be unsettled. It is appropriate to refer the Division Bench judgment of this Court in **Kerala Panchayat Executive Officers Association v. State of Kerala [2000 (3) KLT 701]** wherein at para (3) it was held as follows: _3. According to the appellants they were promoted on the basis of the rules existing on the date of promotion. Such vested rights cannot be taken away by retrospective amendment. Therefore, even though special rules can be framed retrospectively, the rules cannot take away the vested rights and mere protection given to them by the Government against their reversion is not enough. The contention of the Government which was accepted by the learned Judge was that there were demands from large number of employees for integration and giving benefits from 1987 onwards. At the same time appellants who are small in number insisted protection for future right and as a viamedia date 1.1.90 was taken. Apart from that no nexus is_ _**WP(C)Nos.9649/2018 & 12016/2018**_ _**8**_ _shown to the date 1.1.90, the date of implementation. However, it is stated that the Cabinet has decided the matter finally after referring with P.S.C. to implement the rule in its meeting held on 20th October, 1993. Thereafter only rules were published. That is the reason for the provision that the employees promoted on or before 20.10.93 shall not be reverted was incorporated. Since Cabinet has decided the matter on 20th October, 1993 at the maximum that date has some nexus. Any promotion effected on the basis of the existing rules prior to the publication of the notification upto 20th October, 1993 shall not be affected by the special rules as vested rights cannot be affected. If a person is promoted before 20th October, 1993, his promotion from that date cannot be affected at all by the retrospective effect as persons promoted before 20th October, 1993 had already accrued the vested right. However, provisional promotions effected after 20th October, 1993, i.e. after the Cabinet decision will not get the above right._ 11. The vested right as defined in the Blacks Law Dictionary is as follows: “ _In constitutional law, rights which have so completely and definitely accrued to or settled in a person that they are not subject to be defeated or canceled by the act of any other private person, and which it is right and equitable that the government should recognize and protect, as being lawful in themselves, and_ _**WP(C)Nos.9649/2018 & 12016/2018**_ _**9**_ _settled according to the then current rules of law, and of which the individual could not be deprived arbitrarily without injustice, or of which he could not justly be deprived otherwise than by the established methods of procedure and for the public welfare. Such interests as cannot be interfered with by retrospective laws; interest which it is proper for state to recognize and protect and of which individual cannot be deprived arbitrarily without injustice. American States Water Service Co. of California v. Johnson, 31 Cal.App.2d 606, 88 P.2d 770, 774. immediate or fixed right to present or future enjoyment and one that does not depend on an event that is uncertain. A right complete and consummated, and of such character that it cannot be divested without the consent of the person to whom it belongs, and fixed or established, and no longer open to controversy.”_ 12. Such rights cannot be unsettled by subsequent amendment of Rules giving retrospective effect in regard to the qualification. If the Rules as applied is given retrospective effect, a person who was validly appointed will have to be thrown out on account of the amendment. In a Constitutionally governed State, Constitution accord protection to such employee whose service conditions are governed by Statutory Rules. It is even doubtful that a plenary power of the Legislature could _**WP(C)Nos.9649/2018 & 12016/2018**_ _**10**_ be exercised to unsettle such appointments. The appointment being valid at the inception, it cannot be unsettled by way of an amendment to Special Rules by amending prescription of qualification. 13. The Learned Counsel for Habeeb Ali relying upon the judgment of this Court by Vinayaraj v. State of Kerala [2014 (1) KLT 709] argued that a Rule 51(A) claimant is having a vested right and therefore the Manager without following Statutory prescribed actions, cannot absolve him from honuring such obligation. This argument is misconceived. A right would enure to a person only if he is eligible to claim. If he was not eligible, no right would enure to him. No doubt, if Habeeb Ali was eligible, the Manager could not have absolved from honuring his obligation under Rule 51(A) of KER. Admittedly, by operation of law he was not eligible. If he was not eligible, he has no right. Therefore, judgment relied by the Learned Counsel for Habeeb Ali would not lend support to his contention. 14. Upshot of the discussions as above, this Court has to allow the writ petition filed by Noufal P. in WP(C)No. 9649/2018. However, the Manager is bound to honur the claim of Habeeb Ali for all future _**WP(C)Nos.9649/2018 & 12016/2018**_ _**11**_ vacancies. If any of such vacancies arose, the Manager shall re-appoint Habeeb Ali. It is submitted by the learned Counsel for Habeeb Ali that one more vacancy has arisen in the post of FTM. If any other vacancy arisen in the school, and Habeeb Ali is eligible to be appointed in such a vacancy, the Manager shall forward the proposal by appointing Habeeb Ali within one month. The Learned Counsel for Habeeb Ali points out that there is a vacancy of 10[th] respondent in WP(C)No.12016/2018 as his approval for appointment was rejected. The Educational authority shall act upon the proposal within a further period of two months. Impugned order in WP(C)No. 9649/2018 to the extend as above is set aside. Accordingly, the writ petition is disposed of as above. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** AJ _**WP(C)Nos.9649/2018 & 12016/2018**_ _**12**_ ## **APPENDIX OF WP(C) 9649/2018** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER, SHOWING APPROVAL OF APPOINTMENT OF THE 1ST PETITIONER, DATED 01.12.2015.** **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 01.12.2011 ISSUED TO THE 4TH RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE SERVICE BOOK OF THE 4TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER GO(MS) NO. 21/11/P&ARD DATED 01.07.2011.** **EXHIBIT P5 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 04.06.2016.** **EXHIBIT P6 TRUE COPY OF THE GOVERNMENT ORDER GO(MS) NO. 21/13/P&ARD DATED 23.07.2013.** **EXHIBIT P7 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 05.12.2016.** - **EXHIBIT P8 TRUE COPY OF THE HEARING NOTE SUBMITTED BY THE MANAGER ON 02.09.2017.** - **EXHIBIT P9 TRUE COPY OF THE ORDER ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, CALICUT DATED 23.09.2017.** - **EXHIBIT P10 TRUE COPY OF THE REVISION DATED 18.10.2017 FILED BY THE MANAGER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED ON BEHALF OF THE 1ST PETITIONER.** - **EXHIBIT P12 TRUE COPY OF GOP(RT) NO. 989/18/G.EDN. DATED 07.03.2018 ISSUED BY THE GOVERNMENT.** **RESPONDENTS EXHIBITS: NIL** \\TRUE COPY// PA TO JUDGE AJ _**WP(C)Nos.9649/2018 & 12016/2018**_ _**13**_ ## **APPENDIX OF WP(C) 12016/2018** **PETITIONER'S EXHIBITS:** **EXHIBIT P1. PHOTOCOPY OF THE APPOINTMENT ORDER OF THE PETITIONER CONTAINING THE ENDORSEMENT OF APPROVAL OF APPOINTMENT BY THE 5TH RESPONDENT EXHIBIT P2. PHOTOCOPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT EXHIBIT P3. PHOTOCOPY OF THE ORDER PASSED BY THE 5TH RESPONDENT GRANTING APPROVAL TO THE 9TH RESPONDENT EXHIBIT P4. PHOTOCOPY OF THE OBJECTIONS FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT EXHIBIT P5. PHOTOCOPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 30.08.2017 EXHIBIT P6. PHOTOCOPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 30.09.2017 EXHIBIT P7. PHOTOCOPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C)NO.34727/2017 EXHIBIT P8. PHOTOCOPY OF THE 1ST RESPONDENT'S ORDER G.O(MS)NO.989/2018/G.EDN DATED 07.03.2018 EXHIBIT P9. PHOTOCOPY OF THE JUDGMENT IN AJAYAKUMAR DAS VS STATE OF ORISSA AND OTHERS (2011 KHC 5123) EXHIBIT P10. PHOTOCOPY OF THE JUDGMENT REJI K.S. AND OTHERS VS STATE OF KERALA AND OTHERS (2010 KHC 393) EXHIBIT P11. PHOTOCOPY OF THE REPLY RECEIVED FROM THE OFFICE OF THE 6TH RESPONDENT EXHIBIT P12. PHOTOCOPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 04.10.2017 RESPONDENTS EXHIBITS:** NIL \\TRUE COPY// AJ PA TO JUDGE