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2004 DIGILAW 140 (KER)

The Manager, K. A. M. U. P. School v. Deepa K. K.

2004-03-30

CYRIAC JOSEPH, K.PADMANABHAN NAIR

body2004
Judgment :- Cyriac Joseph, J. 1. This Writ Appeal arises from W.P. (C). 31617 of 2003 which was allowed by the learned Single Judge as per judgment dated 30-1-2004. The appellant is the first respondent in the Writ Petition. The first respondent herein is the petitioner in the Writ Petition. The second respondent herein is the second respondent herein is the second respondent in the Writ Petition. 2. The Writ Petitioner, Deepa.K.K., was appointed as Assistant Teacher in K.A.M.U.P. School, Chorode by the Manager of the said U.P. School in an existing vacancy for the period from 12-12-1995 to 15-2-1996. Ext.P1 is the copy of the appointment order dated 12-12-1995. Ext. P1 appointment order shows that the petitioner was appointed in the vacancy of K.K. Sreeja, Assistant Teacher, who had gone on maternity leave from 18-11-1995 to 15-2-1996. The appointment was subject to the provisions of the Kerala Education Act and the Rules there under and such other Rules or Orders as issued from time to time by the Government or other competent authority. Ext. P1 order also contained a certificate that there was no qualified teacher existing in service under the educational agency who was eligible for promotion to the vacancy for which appointment was made. The order appointing the petitioner was submitted to the Assistant Educational Officer, Vadakara for approval. At that time a dispute regarding the right of management of the school between the then Manager and hi brothers was pending. Hence the appointment was not immediately approved by the Assistant Educational Officer. Subsequently, pursuant to a clarification issued by the High Court, the appointment was approved by the Assistant Educational Officer. The endorsement dated 15-1-1999 of the Assistant Educational Officer, Vadakara on Ext.P1 appointment order shows that the petitioner’s appointment was approved as leave substitute Assistant Teacher from 12-12-1995 to 15-2-1996 subject to further orders from the Court. Thereafter during the academic year 2002-03, two permanent vacancies of Assistant Teachers arose in the school on 31-3-2003. The endorsement dated 15-1-1999 of the Assistant Educational Officer, Vadakara on Ext.P1 appointment order shows that the petitioner’s appointment was approved as leave substitute Assistant Teacher from 12-12-1995 to 15-2-1996 subject to further orders from the Court. Thereafter during the academic year 2002-03, two permanent vacancies of Assistant Teachers arose in the school on 31-3-2003. But the first respondent did not send any intimation to the petitioner or issue any appointment order to her even though she had a statutory claim for preference in the matter of appointment under Rule 51-A of Chapter XIV-A of K.E.R. Hence the petitioner submitted Ext.P3 representation dated 30-5-2003 to the Manager pointing out that she was entitled to be appointed in one of the two vacancies on the date of re-opening of the school. A similar representation (Ext.P4) was submitted to the Assistant Educational Officer also, but he returned it to the petitioner with the endorsement that the petitioner should contact the Manager for further necessary action. Since the Manager did not respond to Ext.P3 representation, petitioner filed W.P. (C). No. 22056 of 2003 which was disposed of by this Court as per Ext.P5 judgment dated 10-7-2003. By Ext.P5 judgment, this court directed the Assistant Educational Officer to consider the grievance of the petitioner. The petitioner was also allowed to file a detailed representation along with a copy of the judgment before the Assistant Educational Officer and the Assistant Educational Officer was directed to consider the petitioner’s claim in accordance with law after affording an opportunity of being heard to the petitioner and the manager of the school. It was also directed that if any fresh hand had been appointed such person also should be heard. It was further directed that the appointment of any person ignoring the claim of the petitioner would be subject to the orders to be passed by the Assistant Educational Officer on the representation of the petitioner. In the light of Ext.P5 judgment, the petitioner submitted Ext.P6 representation dated 6-8-2003 to the Assistant Educational Officer. The Assistant Educational Officer considered the claim of the petitioner after hearing the petitioner, the Manager and Smt. M.E. Smitha who was appointed in the vacancy claimed by the petitioner. In the light of Ext.P5 judgment, the petitioner submitted Ext.P6 representation dated 6-8-2003 to the Assistant Educational Officer. The Assistant Educational Officer considered the claim of the petitioner after hearing the petitioner, the Manager and Smt. M.E. Smitha who was appointed in the vacancy claimed by the petitioner. The Assistant Educational Officer upheld the claim of the petitioner under Rule 51A of Chapter XIV-A, K.E.R. and issued Ext.P7 order dated 5-9-2003 directing the Manager to issue appointment order to the petitioner as Assistant Teacher at the earliest. In spite of Ext.P7 order, the Manager did not issue the appointment order to the petitioner and hence she submitted Ext.P8 representation dated 22-9-2003 to the Assistant Educational Officer requesting him not to approve any appointment made by the Manager overlooking the claim of the petitioner. Thereafter the petitioner filed W.P. (C) No. 31617 of 2003 praying for a declaration that she was entitled to be appointed as Assistant Teacher with effect from 2-6-2003 in the first respondent school on the basis of her statutory claim under Rule 51A of Chapter XIV A of K.E.R. and for a direction to the respondents to appoint the petitioner as Assistant Teacher in the school in the vacancy which had arisen on 2-6-2003. The first respondent Manager filed a counter affidavit contending that the petitioner had no claim under Rule 51A, that he had filed a Revision Petition before the Director of Public Instruction challenging Ext.P7 order of the Assistant Educational Officer and that he was still awaiting orders on the said Revision Petition. According to the Manager, the petitioner was not relieved from the school as per Rule 49 or Rule 52 of Chapter XIV-A of the K.E.R. and therefore she was not entitled to preference under Rule 51A. It was contended that the petitioner was not a teacher who was appointed against a vacancy which extended over the summer vacation and was relieved on the closing day for want of eight months service and hence, the petitioner was not a teacher who was relieved under Rule 49. It was further contended that the petitioner was not relieved on account of reduction in the number of posts or thrown out of service due to withdrawal of recognition and hence she was not a teacher relieved under Rule 52 also. It was further contended that the petitioner was not relieved on account of reduction in the number of posts or thrown out of service due to withdrawal of recognition and hence she was not a teacher relieved under Rule 52 also. It was also contended that the petitioner was not a teacher relieved from service on account of termination of vacancy. According to the Manager, the petitioner’s appointment was for a definite and fixed term and not against a vacancy which later terminated. 3. When the Writ Petition came up for hearing, learned counsel for the Manager submitted that even though a statutory revision had been filed against Ext.P7 order and it was pending, in view of the question of law involved in the case he wanted a decision on merits in the Writ Petition. Hence the Writ Petition was heard and disposed of by the learned Single Judge. 4. In the impugned judgment, the learned Single Judge upheld the claim of the petitioner under Rule 51A of Chapter XIV-A, K.E.R. and rejected the contention of the Manager that the petitioner was not entitled to the benefit under Rule 51A. According to the learned Single Judge, even though the petitioner was not relieved under Rule 49 or Rule 52 of Chapter XIV-A, K.E.R., she was a teacher who was relieved from service on account of termination of vacancy and hence she was entitled to the benefit under Rule 51-A. Accordingly, the learned Single Judge upheld Ext.P7 order of the Assistant Educational Officer and directed the Manager to issue formal appointment order to the petitioner forthwith. Aggrieved by the judgment in W.P. (C). No. 31617 of 2003, the Manger has filed this Writ Appeal. 5. Mr. P.N. Ravindran, learned counsel for the appellant raised only one contention before us. According to him, the learned Single Judge went wrong in holding that the Writ Petitioner was a teacher who was relieved from service on account of termination of vacancy and hence was entitled to the protection of Rule 51A of Chapter XIV-A of K.E.R. Therefore the only question to be considered is whether the Writ Petitioner was entitled to the benefit under Rule 51A of Chapter XIV-A of K.E.R. 6. Rule 51-A of Chapter XIV-A, K.E.R., reads thus: “51.A. Qualified teachers who are relieved as per Rule 49 or Rule 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided that they have not been appointed in permanent vacancies in schools under any other Educational Agency. Note 1: If there are more than one claimant under this rule the order of preference shall be according to the date of first appointment. If the date of first appointments is the same, then preference shall be decided with reference to age, the older being given first preference. In making such appointments due regard should be given to the requirement of subjects and to the instructions issued by the Director under sub rule (4) of rule 1 as far as High Schools are concerned. Note 2: Manager should issue an order of appointment to the teacher by Registered post acknowledgement due and give a period of 14 (fourteen) clear days to the teacher to join duty. If the teacher does not join duty in time the Manager should give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under this rule would be forfeited if not exercised within another 7 (seven) clear days. If nothing is heard during that time also, the preferential right under the rule will be regarded as forfeited”. It is not disputed that the petitioner was not relieved from service as per Rule 49 or Rule 52. Therefore, the petitioner could claim the protection of Rule 51A only if she was a teacher who was relieved from service on account of termination of vacancy. Ext.P1 order shows that the petitioner was appointed as temporary Assistant Teacher from 12-12-1995 to 15-2-1996 in the vacancy of K.K. Sreeja, Assistant Teacher who went on Maternity leave from 18-11-1995 to 15-2-1996. Thus the vacancy in which the petitioner was appointed was a temporary vacancy which terminated on 15-2-1996. The Manager has no case that the said vacancy had not terminated on 15-2-1996. Therefore, it cannot be disputed that the petitioner had to be relieved from service on 15-2-1996 on account of termination of the vacancy. Hence the petitioner was entitled to the protection of Rule 51A. The Manager has no case that the said vacancy had not terminated on 15-2-1996. Therefore, it cannot be disputed that the petitioner had to be relieved from service on 15-2-1996 on account of termination of the vacancy. Hence the petitioner was entitled to the protection of Rule 51A. The fact that the petitioner was appointed for a fixed period from 12-12-1995 to 15-2-1996 cannot change the position. The period of her appointment was limited to 15-2-1996 as Smt. K.K. Sreeja had taken maternity leave only up to 15.2.1196 and the leave vacancy was due to terminate on 15-2-1996, the petitioner could not have been appointed for a period beyond 15-2-1996 and the Manager could appoint the petitioner only for a fixed period expiring on 15-2-1996. There is nothing in Rule 51-A of Chapter XIV-A to indicate that the benefit under the said Rule will not be available to a teacher who was relieved from service on account of termination of the vacancy, just because it was a temporary vacancy or the appointment was for a fixed period. On the other hand, the object and spirit of Rule 51A is to protect even teachers who were appointed in temporary or limited period vacancies and were relieved from service on account of termination of such vacancies. 7. Therefore, the Assistant Educational Officer was right in upholding the claim of the petitioner under Rule 51A of Chapter XIV-A of K.E.R. The learned Single Judge rightly rejected the challenge against Ext.P7 order and directed the Manager to issue appointment order to the petitioner forthwith. There is no merit in the writ appeal and hence the Writ Appeal is liable to be dismissed. 8. In the above circumstances, the Writ Appeal is dismissed. The Writ Petitioner (first respondent herein) is entitled to be appointed as Assistant Teacher in the school in the vacancy which arose on 2-6-2003. The appellant manager shall issue formal appointment order to the petitioner forthwith and submit the same to the Assistant Educational Officer, Vadakara for approval and the Assistant Educational Officer shall pass necessary orders in the matter without delay.