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2016 DIGILAW 161 (KER)

STATE OF KERALA v. SIMI S. SUJATHA MANDIRAM

2016-02-11

A.M.SHAFFIQUE, ASHOK BHUSHAN

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JUDGMENT : A.M. SHAFFIQUE, J. 1. W.A. No. 1844/2012 is filed by State of Kerala and its Officers who are respondents 1 to 3 in W.P. (C) No. 714/2004 challenging judgment dated 12/10/2011. W.A. No. 2129/2012 is filed by the 4th respondent in W.P. (C) No. 714/2004, who is the Manager of the School. W.A. No. 1850/2012 is filed by the 5th respondent in W.P. (C) No. 714/2004. 2. Parties are described as shown in the writ petition unless otherwise mentioned. 3. The writ petition is filed seeking to quash Ext.P10 and for a direction to respondents 1 to 4 to appoint the petitioner as UPSA in the School and for a direction to the 3rd respondent not to approve the appointment of the 5th respondent to the post of UPSA. 4. The short facts involved in the writ petition would disclose that the petitioner's mother Smt.T.Sujatha Devi, while working as Headmistress in St.Augustine's High School, expired on 05/12/2001. Petitioner acquired the qualification to be appointed as UPSA and submitted an application on 29/05/2003. However, the Manager appointed the 5th respondent on 02/06/2003, 6th respondent on 09/06/2003 and the 9th respondent on 13/06/2003. Though the petitioner submitted a representation to the 3rd respondent, no action was taken in that regard. Petitioner was asked to join as HSA in a leave vacancy and she joined duty as HSA (Maths) under protest reserving her right of appointment in the regular vacancy of UPSA. Petitioner approached this Court by filing W.P. (C) No. 22194/2003 and by judgment dated 11/07/2003, this Court directed the 3rd respondent to consider and pass orders on her representation. Petitioner was heard in the matter and finally Ext.P10 order was passed inter alia observing that there is no irregularity in the action of the Manager in appointing the 5th respondent as she had a claim under Rule 51A of Chapter XIVA of the Kerala Education Rules (for short 'KER'). It was inter alia observed that Binu. M.R. the 5th respondent was appointed as UPSA against regular vacancy since she has put previous appointment as UPSA under the same educational agency and in the same school. All other vacancies which have arisen are consequent to the leave by HSAs/UPSAs. That apart, for completion of staff fixation for the year 2003-2004, one post of UPSA was reduced. M.R. the 5th respondent was appointed as UPSA against regular vacancy since she has put previous appointment as UPSA under the same educational agency and in the same school. All other vacancies which have arisen are consequent to the leave by HSAs/UPSAs. That apart, for completion of staff fixation for the year 2003-2004, one post of UPSA was reduced. Consequent on reduction, the 5th respondent has been re-appointed against a leave vacancy of UPSA. 5. The learned Single Judge, after considering the matter in detail, observed that in so far as the averments in the writ petition stand uncontroverted, and there is no answer with regard to the contention raised on behalf of the petitioner that she is entitled to have a claim under Section 51B of Chapter XIVA of the KER, the action of the Manager by giving appointment to the 5th respondent was not sustainable. Accordingly, Ext.P10 order has been set aside and respondents 1 to 4 were directed to pursue further steps to appoint the petitioner as UPSA in respect of the first vacancy that arose on 02/06/2003. 6. Impugning the above judgment, the appellants inter-alia contended that the directions issued by the learned Single Judge was not correct as a claimant under Rule 51A was entitled to get preference over a claimant under Rule 51B. 7. Sri.C.R.Syamkumar, learned senior Government Pleader, appearing on behalf of the State and its authorities, contended that the 5th respondent was a claimant under Rule 51A, who always have preference over a claim for compassionate appointment under Rule 51B. It is contended that though the petitioner's mother expired on 05/12/2001, she had submitted an application only on 29/05/2003 and the vacancy had arisen actually on 31/03/2003 and the appointment was made on 02/06/2003, the date on which the School re-opened. That apart, the 5th respondent had worked in the School as a Teacher on a leave vacancy for a period from 29/07/2002 to 30/9/2002, which enabled her to make a claim under Rule 51A. Hence the 5th respondent had priority for appointment with reference to a 51B claimant. That apart, the 5th respondent had worked in the School as a Teacher on a leave vacancy for a period from 29/07/2002 to 30/9/2002, which enabled her to make a claim under Rule 51A. Hence the 5th respondent had priority for appointment with reference to a 51B claimant. The learned counsel for the 4th respondent, who is the appellant in W.A.No.2129/2012, also supported the contentions urged on behalf of the State and submitted that the Manager has only given preference to Rule 51A claimant on the basis of the settled legal position and therefore there is no reason for the learned Single Judge to interfere with Ext.P10 order. 8. Learned counsel appearing for the 5th respondent, who has filed W.A.No.1850/2012, submits that the judgment came to be passed when no materials were brought before the learned Single Judge. It is submitted that the appellant has filed Annexure-A which evidences that her appointment from 29/07/2002 to 30/09/2002 has been approved by the District Educational Officer (for short 'DEO') as per the endorsement made on 25/11/2005. During the relevant time, in order to make a claim under Rule 51A, the requirement was only appointment for a period of 60 days which was available to the 5th respondent and therefore she is entitled to get preference over the claim of the petitioner. 9. Sri.M.R.Rajesh, learned counsel also places reliance on the following judgments:- (i) Deepthi Susan Jacob v. State of Kerala, 1996 (2) KLT 1033 , in which a learned Single Judge of this Court, while considering the claim of a person under the dying-in-harness scheme recognised under Rule 51B of Chapter XIVA of KER observed that when conflicting claimants are there under Rules 43, 51A and 51B, Rule 51B claimants must wait till all the persons who have already acquired a vested right for appointment under Rules 43 and 51A are appointed to the vacancies. It is found that only after exhausting such claims that the claimant under Rule 51B is entitled for appointment. (ii) In Antony v. State of Kerala, 2000 (1) KLT SN 28 (Case No.31), the learned Single Judge had observed that once the Manager has submitted the documents before the DEO for approval of appointment, in terms of Rule 8 of Chapter XIVA KER, the DEO is bound to pass orders within thirty days. Failure to do so, he does not deprive the teacher from getting her salary. Failure to do so, he does not deprive the teacher from getting her salary. (iii) In Manager, N.S.S. Karayogam U.P. School v. Soumya Nair, 2005 (2) KLT 867, the Division Bench had considered the claim of a teacher for promotion to a higher grade under Rules 43 and 51B. The Division Bench placing reliance on Deepthi Susan Jacob (supra) approved the same and held that the claim under Rule 43 will prevail over 51B. It was held at paragraph 3 as under:- “3. Since petitioner is entitled to the benefit of R.51B, the next question is who is entitled to be appointed on the vacancy that was filled on 2.6.2004. This question was considered by a learned Single Judge in Deepthy Susan Jacob v. State of Kerala, 1996 (2) KLT 1033 , and held that when conflicting claimants are there under Rr. 43, 51A and 51B, the R. 51B claimants must wait till all the persons who have already acquired a vested right for appointment under Rr. 43 and 51A. It was held in Mary v. Regional Deputy Director of Public Instruction & Ors., ILR 1974 (2) Kerala 274, by a Division Bench of this Court that the claim of a teacher for promotion to a higher grade under R.43 will prevail over R.51A when there is a conflict between the two rules. R.43 will prevail over R.51B also. A claimant under R.51B is entitled to appointment only after satisfying the claimants who have already acquired a vested right for appointment under R.51A. Additional third respondent had already acquired a vested statutory right for appointment under R.51A in the next arising vacancy before the death of the petitioner's father and only after that date petitioner can claim appointment under R.51B." (iv) In Poornima v. Director of Public Instructions, 2005 (3) KLT 502, the learned Single Judge of this Court held that the relevant date for the purpose of applying Rule 51A is the date of first appointment and not the date on which such appointment was approved. That was a case in which the teacher worked for a short spell from 22/12/1999 to 23/12/2000. The appointment was approved only on 20/03/2004. It was held that the approval will relate back to 22/12/1999. (v) Geetha S v. Geo Thomas K and Others, 2009 (4) KHC 296 (Division Bench). That was a case in which the teacher worked for a short spell from 22/12/1999 to 23/12/2000. The appointment was approved only on 20/03/2004. It was held that the approval will relate back to 22/12/1999. (v) Geetha S v. Geo Thomas K and Others, 2009 (4) KHC 296 (Division Bench). This was a case in which a teacher was appointed as UPSA in a maternity leave vacancy from 06/06/2002 to 17/10/2002. In the meantime, when a regular vacancy arose on 02/09/2002, the question was whether the teacher who have been appointed in a leave vacancy could have been accommodated against a regular vacancy since the Manager appointed another person. After referring to Rule 9(1) of Chapter III of the KER, and then with Rule 51 of Chapter XIVA of the KER, it was held that the Manager cannot deny promotion or reappointment for the reason that the original appointment was not approved. (vi) Another Division Bench judgment in Marcia Collin Noronha v. State of Kerala [ 2014 (3) KLT 300 ] is also relied upon to contend that the date of approval by the statutory authority would relate back to the date of appointment and its efficacy will be for the entire period for which the appointment has been made and approved. 10. On the other hand, learned counsel appearing for the writ petitioner made strong objection to Annexure A order produced along with W.A.1850/2012. It is contended that the endorsement made by the DEO in Annexure A appointment order was after the 5th respondent being appointed by the Manager. It is stated that the date of endorsement was 25/11/2005. No such entry was made earlier. It is stated that, on the date of Ext.P10, that is 06/10/2003, the endorsement made by the DEO was not available. It is argued that, it is a subsequent development and there is reason to doubt the bona-fides of the claim. It is also submitted that when an application was submitted under the Right to Information Act requesting to provide details of the appointment and approval of the 5th respondent, the answer given by the Public Information Officer was that there is no such file. It is therefore argued that though the 5th respondent contends that she has got a claim under Rule 51A, it is not a genuine claim and it cannot be accepted under law. It is therefore argued that though the 5th respondent contends that she has got a claim under Rule 51A, it is not a genuine claim and it cannot be accepted under law. Hence the learned Single Judge was justified in quashing Ext.P10. 11. Learned counsel appearing for the writ petitioner also relied upon the following judgments:- (i) Shreejith L. v. Deputy Director (Education), Kerala and Others, 2012 KHC 4348 (Vol.3 S.N.12) (SC), wherein it was held by the Apex Court that once the application for compassionate appointment was submitted within the time frame and was accepted by the management and the applicant is found eligible for appointment, he has to be given appointment in the next arising vacancy. (ii) In State of Kerala v. Sneha Cheriyan [2013 (1) KHC 660 (SC), it was held that a teacher who was relieved under Rules 49 and 53 of Chapter XIVA of KER is entitled for preference for appointment under Rule 51A only if the teacher has a minimum prescribed continuous service in an academic year as on the date when the relief is granted. 12. Having regard to the aforesaid factual and legal aspects raised on either side, we do not think that there is any controversy regarding the legal position that a claimant under Rule 51B can have right to claim appointment only after exhausting the claimant under Rule 51A, who had acquired a vested right for such appointment prior to the claim made by the claimant under Rule 51B. This position is settled as per the judgment in Soumya Nair (supra). 13. The main ground of attack by the learned counsel for the writ petitioner is that there is some manipulation in the records by which the 5th respondent claimed to have obtained a vested right for an appointment based on Rule 51A. It is not in dispute that the requirement during the relevant time was for making a claim under Rule 51A which was an appointment in a leave vacancy for a continuous period of sixty days. No doubt, the said appointment will have to be approved by the DEO. Annexure A produced in W.A.No.1850/2012 would show that the 5th respondent's appointment has been approved by the DEO though after the date when the vacancy had arisen. Approval was made only on 25/11/2005. No doubt, the said appointment will have to be approved by the DEO. Annexure A produced in W.A.No.1850/2012 would show that the 5th respondent's appointment has been approved by the DEO though after the date when the vacancy had arisen. Approval was made only on 25/11/2005. But, as held in the judgment cited above especially in Marcia Collin Noronha (supra) and Poornima (supra), once approval has been given by the educational authorities, it will relate back to the original period and therefore it could not be said that the 5th respondent was not a claimant under Rule 51A. That apart, the appointing authority was fully aware of the claim made by the 5th respondent which is evident from Ext.P10 order, wherein the Manager had taken a contention that the 5th respondent was appointed against the regular vacancy since she has put previous appointment as UPSA under the same educational agency and in the same school. The 5th respondent also contended that she is a claimant under Rule 51A. That apart, the DEO had also stated that the Manager has appointed the petitioner in a leave vacancy and she joined with effect from 07/07/2003. Though there is a reference in Ext.P10 order regarding the claim of the 5th respondent under Rule 51A, the said aspect of the matter has not been considered by the learned Single Judge on account of the fact that no materials were produced before the learned Single Judge. 14. Though it is contended by the learned counsel for the petitioner that there was some foul play in the approval made by the educational authorities with reference to Annexure A, the DEO, having known about the said fact, was justified in considering the respective contentions of the parties and forming an opinion that the appointment of the 5th respondent was justified. 15. Further, we would like to point out that it is indicated in Ext.P10 itself that the two other vacancies which had arisen subsequent to the appointment of the 5th respondent were leave vacancies and thereafter one post of UPSA was reduced as well. Consequently, the 5th respondent was reappointed against a leave vacancy of UPSA. Taking into consideration the aforesaid factual circumstances, we are of the view that the learned Single Judge was not justified in quashing Ext.P10 and directed for appointing the petitioner with effect from 02/06/2003. 16. Consequently, the 5th respondent was reappointed against a leave vacancy of UPSA. Taking into consideration the aforesaid factual circumstances, we are of the view that the learned Single Judge was not justified in quashing Ext.P10 and directed for appointing the petitioner with effect from 02/06/2003. 16. The petitioner also has a contention that after appointing the 5th respondent on 02/06/2003, vacancy of UPSA arose on account of promotion granted to Smt. Seena, UPSA to the post of HSA and the 6th respondent was appointed on 09/06/2003. Another vacancy of UPSA arose and 7th respondent was appointed on 13/06/2003. It is stated in Ext.P10 that the appointment of respondents 6 and 7 were made on leave vacancies and not on regular vacancies. Petitioner submits that she was offered appointment in a leave vacancy as per Ext.P10 dated 10/06/2003, but she did not join. This was followed by another letter dated 28/06/2003 and therefore she joined duty as H.S.A on 07/07/2003. 17. In Ext.P10 it is stated that the vacancies which had arisen in which respondent 6 and 7 were appointed were leave vacancies. The respective authorities having already taken such a view based on records made available, we do not think that we will be justified in taking a different view in the matter. Under such circumstances, the petitioner is not entitled for any relief and the judgment of the learned Single Judge is liable to be set aside. 18. Cont. Case (Civil) No.1255 of 2012 has been filed alleging non-compliance of the directions issued by this Court as per the judgment of the learned Single Judge in WP(C) No.714/2004. The matter has been referred to this Court by the learned Single Judge as per order dated 05/10/2012. Since we have already set aside the said judgment, we do not think that there is any necessity to proceed with the contempt case and accordingly the same is dropped. Accordingly, these writ appeals are allowed setting aside the judgment of the learned Single Judge and dismissing the writ petition.