Writ Appeal Nos. 66/2019 & 68/2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY ,THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940 WA.No. 66 of 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) 28543/2016 of HIGHCOURT APPELLANT/S:** **AJITH K.K AGED 38 YEARS S/O. K.K. KRISHNANKUTTY, UPSA, JAWAHAR UPPER PRIMARY SCHOOL, EDAYAR, KOOTHATUKULAM RESIDING AT KUYILANICKAL HOUSE, KIZHAKOMBU P.O., KOOTHATTUKULAM.** **BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU)** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM.** - **3 THE ASSISTANT EDUCATIONAL OFFICER KOOTHATTUKULAM, ERNAKULAM DISTRICT-686662.** - **4 THE MANAGER JAWAHAR UPPER PRIMARY SCHOOL, EDAYAR, KOOTHATUKULAM-686662.** ## **OTHER PRESENT:** **SRI A.J VARGHESE SR GP** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2019, ALONG WITH WA.68/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A Nos.66/2019& 68/2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY ,THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940 WA.No. 68 of 2019** **AGAINST THE ORDER/JUDGMENT IN WP(C) 36248/2017 of HIGHCOURT APPELLANT/S:** **SHINY GEORGE, AGED 35 YEARS W/O. ABHILASH K.A, UPSA, JAWAHAR UPPER PRIMARY SCHOL, EDAYAR, KOOTHATUKULAM RESIDING AT KARAVETTATTINKARAYIL HOUSE, EDAYAR P.O, KOOTHATTUKULAM 686 662.** **BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU)** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM** - **2 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, MUVATTUPUZHA-686661.** - **3 THE ASSISTANT EDUCATIONAL OFFICER, KOOTHATTUKULAM, ERNAKULAM DISTRICT 686662** - **4 THE MANAGER,JAWAHAR UPPER PRIMARY SCHOOL, EDAYAR, KOOTHATTUKULAM 686 662.** ## **OTHER PRESENT:** ## **SRI A.J VARGHESE SR GP** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2019, ALONG WITH WA.66/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A Nos.66/2019& 68/2019 3 ## **J U D G M E N T** ## **W.A Nos.66/2019 & 68/2019** **Vinod Chandran, J** **The impugned common judgment in the writ appeal refused the claim of the appellants, for regular appointment and approval from 02.06.2014 and 01.06.2016 on which dates the two appellants were appointed pursuant to retirement vacancies. The appellants so appointed were continued as daily wage employees by reason only of Ext.P10 order of the Government; specifically restricting filling up of vacancies in uneconomic schools in 2010-11 arising due to death, resignation, promotion, transfer etc. The said uneconomic schools could only employ daily wage workers in the contingencies above specified. However there is also a rider insofar as the Director of Public Instructions** W.A Nos.66/2019& 68/2019 4 **(DPI for brevity) being empowered to review such appointments and approve on regular basis, if the appointment of teachers at any time, comes within the minimum strength of the school, which strength is also specified in the Government Order. For Upper Primary Section the minimum strength is 45.** **2. The learned Counsel appearing for the appellant would first contend that the retirement vacancies are not covered under Ext.P10. It is also argued on the basis of Ext.P9 staff fixation that there are only five posts sanctioned in the UP Section one of a Head Master, two of UPSA's, one Hindi Language teacher and one Office Attendant. The appellants herein were appointed as UPSA's on the respective dates as stated above. The learned Counsel would also contend that Sub-Rule (3) of Rule 7A (Chapter XIV A) read with Rule 5 of Chapter XXIII would require regular appointment of persons when such vacancies arise; especially on** W.A Nos.66/2019& 68/2019 5 **retirement. The decision of the Hon'ble Supreme Court in** _**State of Kerala and others v. Sneha Cheriyan 2013 (1) HC 660 (SC)**_ **is also relied on.** **3. We have to first observe that Ext.P10 has not been challenged in the writ petition which according to the learned Counsel was by reason of the absence of contingency on retirement being specified in Ext.P10. The learned Single Judge, rightly found that, all vacancies after 2012, as per Ext.P10 were to be only filled up with daily wage employees in an uneconomic school. The specific words employed in Ext.P10 are “death, resignation, promotion, transfer etc.”. The mere absence of the word retirement does not have any consequence and it is not as if the retirement vacancies are directed to be filled up as per Ext.P10. The prohibition as per Ext.P10 we notice is only with respect to uneconomic schools, who do not have a minimum strength of students. The said** W.A Nos.66/2019& 68/2019 6 **prohibition of appointment of daily wage employees is also in the interest of the students who are continued in the school; which otherwise would be closed down and the students transferred to nearby schools.** **4. It is in the interest of such students as also promotion of education that the Government has brought out Ext.P10 and neither the Manager nor the appellants can claim any right to appointment in regular vacancies when such a course is adopted by the Government in the larger public interest. The very existence or continuation of the school, is by virtue of Ext. P10 order and the uneconomic schools are allowed such continuance only if the vacancies arising are filled up on daily wages.** **5. We also notice that the provisions pointed out by the learned Counsel does not create a clear mandate insofar as the Government being obliged to make regular appointments as and when a** W.A Nos.66/2019& 68/2019 7 **vacancy arise. Sub rule (3) of Rule 7A speaks of vacancies, the duration of which is less than one academic year, not being permitted to be filled up on a regular basis. This was held to be a measure adopted by the Government to prevent the misuse of the unamended Rule 7A(3), to ensure that the Managers do not appoint persons intermittently in a vacancy arising in the school so as to create multiple rights under Rule 51A. We do not think** _**Sneha Cheriyan**_ **has any application to the facts of this Case.** **6. We also cannot draw a corollary under Rule 7A(3) to find that if the duration is more than one academic year, then, there should be a regular approval of appointment to the vacancies so arising. Rule 5 of Chapter XXIII also only specifies the posts that may be permitted in an Upper Primary School. We do not find any specific mandate from the subordinate legislation for** W.A Nos.66/2019& 68/2019 8 **approval of regular appointments when a vacancy arises especially considering the fact that the prohibition has been made in uneconomic schools which otherwise would be closed down. The Government having categorized certain schools as uneconomic schools by executive orders and having prohibited appointment to regular vacancies in such schools, other than on daily wages; and the executive order being not in derogation of the statute or the rules made there under would be competently and properly made. It does not affect the right of the appellants-teachers or Managers; which right we find to be absent in the case of uneconomic schools. We hence do not find any reason to entertain the writ appeals.** **7. The learned Counsel then pointed out from Ext.P10 order itself that there is a provision empowering the DPI to review appointments and approve on a regular basis; when the school** W.A Nos.66/2019& 68/2019 9 **acquires the minimum strength. In the year 2018-19 the school has acquired the minimum strength of 45; is the specific submission. The learned Single Judge had also directed consideration of the same by the AEO. It is pointed out by the learned Counsel that the Government however, has rejected the claim on the ground that there was no appointment by the Manager in the year 2018-19, which has to be forwarded for approval to the AEO. We find that the Government is incompetent in so far as approval of appointments, which has to be by the Educational Authority empowered by KER. As per Ext. P10 the approval on an uneconomic school achieving minimum strength the power to review the earlier appointment on daily wages and grant of approval for regular appointment is vested with the DPI.** **8. The approval of appointments normally has to be done as per KER by the AEO. However,in** W.A Nos.66/2019& 68/2019 10 **Ext.P10 there was a restriction insofar as appointments to uneconomic schools being permitted only on daily wages. The Manager herein had appointed the appellants in vacancies arising on retirement regularly and sought for approval of the same. The same having been declined on the basis of Ext.P10. The teachers were before this Court challenging the denial of approval. It was only in this circumstances, no fresh appointment has been made by the Manager. The learned Senior Government Pleader, placed before us an appointment order of one of the appellants, with approval granted on daily wages, by order dated 07.05.2018, between 09.08.2016 and 31.03.2018. If we had allowed the claim of the appellants necessarily this would have to be modified granting approval regularly from 2016 or atleast from the academic year 2017-18. However, the claim of regularisation having been declined under Ext.P10, the approval on daily wage** W.A Nos.66/2019& 68/2019 11 **basis till 31.03.2018 has to be accepted.** **9. There can be no interference with the appellants being continued as daily wage workers till 2018-19; which has already been approved. For the academic year 2018-19 if the school has acquired the minimum strength as per Ext.P10 then, it is for the DPI to review the appointments made on a daily wage basis and grant it on a regular basis after considering the minimum strength of that particular school from the academic year in which the minimum strength is achieved. In such circumstances** _**de hors**_ **Annexure A2 dated 21.02.2019 the AEO shall forward the proposal to the DPI showing the strength of the school as on the commencement of the academic year 2018-19. The DPI the 2[nd] respondent herein shall consider the same and if the school has achieved the minimum strength there shall be a review of the appointment of the appellants on a daily wage basis from the academic** W.A Nos.66/2019& 68/2019 12 **year in which the minimum strength has been achieved.** **10. The learned Government Pleader also points out that there was an amendment made to KER Chapter XXI wherein schools established from 1979 was upgraded were obliged to appoint one protected teacher. The appellants submit that the school has been established about 60 years back. Definitely the issue can be considered by the DPI and appropriate orders passed in accordance with law. The appellants who have been appointed in the vacancies, though regularly by the Manager has to be granted daily wages for the years in which they were appointed minus the vacation period. The appellants shall also be entitled to regular pay scales if the DPI reviews the appointment as on 2018-19 and confers approval regularly; from that year. The AEO shall submit the details of the strength for the academic year 2018-19, to the DPI,** 13 W.A Nos.66/2019& 68/2019 **within a period of one month from the date of receipt of a certified copy of the judgment. The DPI shall consider the approval within two months from the receipt of the details, if necessary with notice to the Manager and the appellants herein. Writ appeals are disposed of. No order as** **to costs. .** **Sd/-** **K. Vinod Chandran, Judge** **Sd/V.G Arun, Judge** **jma** W.A Nos.66/2019& 68/2019 14 ## **APPENDIX OF WA 66/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **A TRUE COPY OF THE G.O.(P) NO. 104/2008/G.EDN.DATED 10.6.2008.** **ANNEXURE A2** **A TRUE COPY OF THE LETTER NO.L.3/32/2019/G.EDN. DATED 21.2.2019 ISSUED BY THE 1ST RESPONDENT** W.A Nos.66/2019& 68/2019 15 ## **APPENDIX OF WA 68/2019** **PETITIONER'S/S EXHIBITS: ANNEXURE A1 A TRUE COPY OF THE G.O(P) NO. 104/2008/G.EDN DATED 10-06-2008** **ANNEXURE A2** **A TRUE COPY OF THE LETTER NO.L.3/32/2019/G.EDN. DATED 21.2.2019 ISSUED BY THE 1ST RESPONDENT**