Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 686 (KER)

Latha v. State of Kerala

2017-04-06

DEVAN RAMACHANDRAN

body2017
JUDGMENT : DEVAN RAMACHANDRAN, J. 1. Disputes relating to relinquishment and satisfaction of claims of teachers under Chap.XIVA R.51A of the Kerala Education Rules (K.E.R.) seem unending and incessant. Several instances have already been presented before courts in the past and several judgments have already spoken on this earlier. However, disputes in its various nuances and shades keep emerging constraining this Court to restate the law over and over again. This is again one such case. 2. The petitioner assails Exhibits P8 and P11 orders to the extent to which it has rejected her claim for appointment to the post of Upper Primary School Assistant (URSA) in the C.N.P.S.U.P. School, Madavoor for the stated ground that her claim under R.51A has been extinguished or deemed to be relinquished for certain reasons as I will say presently. 3. The petitioner claims that she had worked in the school for various periods from 1995 to 1999. Thereafter, she was appointed to the post of U.P.S.A. with effect from 13.07.2001 against an additional post sanctioned for the year 2001-02. The order of approval of this appointment of the petitioner has been appended to this Writ Petition as Exhibit P1. While she was so continuing, she was retrenched on account of a division fall with effect from 15.07.2008. The petitioner claims that, therefore, she is entitled to re-appointment to the post of U.P.S.A. under the provisions of Chap.XIVA R.51A of K.E.R. in the subsequent substantive vacancies. 4. The petitioner says that a vacancy in the post of U.P.S.A. arose on 01.06.2016 in the school under the management of the sixth respondent and since she had continuous service for more than one year in the school between 2001 and 2008 and since she was retrenched from service on account of a division fall, she asserts that she is entitled to be appointed in that vacancy under the provisions of Chap.XIVA R.51A of K.E.R. 5. For this purpose, she submitted an application before the third respondent-the Deputy Director of Education requesting to issue appropriate directions to the Manager of the School. This representation has been produced in this Writ Petition as Exhibit P9. For this purpose, she submitted an application before the third respondent-the Deputy Director of Education requesting to issue appropriate directions to the Manager of the School. This representation has been produced in this Writ Petition as Exhibit P9. When the third respondent did not issue orders on Exhibit P9, the petitioner approached this Court by filing W.P.(C) No. 30348/2010, which was disposed of by this Court by judgment dated 09.09.2016 directing the third respondent to consider and pass orders on Exhibit P9. A copy of the said judgment has been appended to this Writ Petition as Exhibit P10. However, the petitioner pleads, the third respondent thereafter issued Exhibit P11 order holding inter alia that she is deemed to have relinquished her R.51A claim since she had refused to participate in a training programme for protected teachers in spite of specific official directions to do so and also for the further reason that she has lost her claim under R.51 A since she had been appointed in another educational agency and thereafter regularised in a vacancy. The petitioner has assailed this order along with Exhibit P8, which is an order issued by the Government declining her earlier request for being retained as a retrenched teacher in the Thiruvananthapuram District. 6. I have heard Sri. B. Mohanlal, the learned counsel for the petitioner and the learned Government Pleader for the official respondents. 7. I see that a counter affidavit has been placed on record by the official respondents, wherein in paragraphs 5 and 8 it is averred as follows: "It is submitted that the petitioner was included in the list of retrenched teachers in Thiruvananthapuram district as per Sl. No. 23 of retrenched list vide G.O.(P) No. 102/2012/Gen.Edn. dated 29.03.2012. Government have ordered to impart training to retrenched teachers who were included in the list to be deployed as CRC co-ordinators. But the petitioners has not participated in the scheduled training for retrenched teachers as ordered by 3rd respondent based on the Government directions. The petitioner neither attended the training nor submitted any reason as to why she could not attend the training as ordered by Government. Then the petitioner filed W.P.(C) No. 26706/2014 before the Honourable High Court for including her name in the Teachers Package. The petitioner neither attended the training nor submitted any reason as to why she could not attend the training as ordered by Government. Then the petitioner filed W.P.(C) No. 26706/2014 before the Honourable High Court for including her name in the Teachers Package. As per the judgment dated 27.10.2014 in W.P.(C) No. 260706/2014, the Honourable High Court directed Government to consider Exhibit P3 representation of the petitioners in accordance with law and pass appropriate orders there on as expeditiously as possible at any rate within a period of four months from the date of receipt of a copy of the judgment. It is submitted that Exhibit P-11 order, the third respondent has rejected the applicant's request on a consideration that second proviso to Rule 51A of Chap.XIVA K.E.R. gives first preference of re-appointment under Rule 51A to protected teachers of same educational agency. In CNPSUPS, Madavoor three teachers were working as protected teachers and they have the priority to be appointed as UPSA as per Rule 51 A. The request of petitioner include under teachers package in Thiruvananthapuram district was rejected by Government order vide G.O.(Rt) No. 1978/2015/G.Edn. dated 23.05.2015 stating that she did not participate in the training programme for CRC Co-ordinators as ordered by the Department as per G.O.(P) No. 177/2012/G.Edn. dated 05.06.2012. Due to non-inclusion in Teachers' Package she lost the right to include in protected teachers list as per G.O.(P) No. 29/2016 dated 29.01.2016." 8. Respondents 7 to 9 have also filed a counter affidavit where they contend almost in the same lines as the official respondents that the petitioner cannot claim the benefit under R.51A since she was appointed in a regular promotion vacancy without break in S.K.V.V.H.S. School, Thrikkanamangal, Kottarakkara. They also maintain that since she did not report for the training programme imparted by the department to protected teachers, she should be deemed to have relinquished her claim under R.51A. 9. The questions as to how and in what manner a teacher can be said to have relinquished the right under Chap.XIVA R.51A of K.E.R. has been decided by this Court in several judgments prior. 9. The questions as to how and in what manner a teacher can be said to have relinquished the right under Chap.XIVA R.51A of K.E.R. has been decided by this Court in several judgments prior. The judgment of a Division Bench of this Court in Vinayaraj K. v. State of Kerala & Ors., (2014 (1) KLT 709 : 2014 (1) KHC 205) has clearly defined the contours of the provisions which deal with relinquishment of a teacher under R.51A in the following manner: "The statutory rules oblige the manager to issue an offer for appointment and wait for the teacher to report within fourteen days. If such reporting does not occur, the manager has to issue yet another letter indicating that if in another seven days the teacher does not report. for duty, it will be taken that the teacher has relinquished the right under R.51A and that another person will be appointed. It is only by following the statutorily prescribed sequence of events and actions, would the relinquishment, deprivation or abandonment of the statutory right under R.51A get dissolved by operation of law on a particular fact situation." 10. The provisions of Note 2 to R.51A is very clear and perspicuous. In view of the affirmative declaration by this Court, extracted above, it is obvious that the stand of the official respondents that the petitioner has lost her status as a R.51A claimant because she did not participate in the training programme for CRC Co-ordinators or because she was appointed in short duration vacancies for the periods between 2008 and 2014, as is discernible from Exhibits P2 to P6, cannot find sustenance in law. I say this because, as is evident from Exhibits P2 to P6 and contrary to the assertions of respondents 7 to 9, the petitioner was not appointed under such orders to substantive vacancies. She was appointed every time for short duration as is specifically mentioned in Exhibits P2 to P6 orders itself and to vacancies for fixed periods. Therefore, it cannot be construed that under the provisions of R.51A she would loose her claim for re-appointment. The provisions of K.E.R. are clear that a teacher holding a claim under R.51 A would loose such claim only if she is appointed to a substantive post subsequently or if he/she is appointed under another educational agency. Therefore, it cannot be construed that under the provisions of R.51A she would loose her claim for re-appointment. The provisions of K.E.R. are clear that a teacher holding a claim under R.51 A would loose such claim only if she is appointed to a substantive post subsequently or if he/she is appointed under another educational agency. In the case at hand, it is ineluctable that the petitioner was appointed between 2008 and 2014 not in substantive vacancies but only in short period vacancies and that too for short durations of time. This would not in any manner extinguish the rigor of R.51A and the petitioner would continue to hold the claim under that Rule until such time as she was appointed into a substantive vacancy. The stand of the official respondents that she has relinquished the claim on account of her unwillingness to participate in the training programme would also not suffice since it is statutorily mandated that the Manager has to first offer an appointment and that the teacher would be deemed to have relinquished the claim only if he/she refuses to report for duty in the manner prescribed to Note 2 to R.51A. 11. Concededly, no appointment was ever offered by the Manager in a substantive vacancy nor she refused to take up such appointment. The official respondents did not have a case of this nature but they merely say that relinquishment of the claim is on account of her unwillingness to take part in the training programme. This stand is completely impermissible in law and cannot be sustained. As I have already indicated above, since the petitioner was never appointed in a substantive vacancy subsequent to her obtaining a claim under R.51A, the orders of appointment evidenced by Exhibits P2 to P6 would not take away her claim since such appointments were only for short durations as specifically ordered therein to fill up the vacancies that arose due to leave or such other. 12. In a summation of what I have stated above, I have no hesitation to hold that Exhibits P8 and P11 orders cannot find sustenance in law and, therefore, I quash them to the extent to which it declines the claim of the petitioner for appointment to the post of U.P.S.A. in the substantive vacancy that arose on 01.06.2016. 13. 12. In a summation of what I have stated above, I have no hesitation to hold that Exhibits P8 and P11 orders cannot find sustenance in law and, therefore, I quash them to the extent to which it declines the claim of the petitioner for appointment to the post of U.P.S.A. in the substantive vacancy that arose on 01.06.2016. 13. That having been said, I notice the stand of the official respondents in the counter affidavit that first preference will have to be given for appointment under R.51A to protected teachers belonging to the same educational agency. The official respondents maintain that respondents 7 to 9 are protected teachers and hence, they have preference for re-appointment over the petitioner. They say that the petitioner should wait till respondents 7 to 9 are appointed in regular vacancies in the school under the management of the sixth respondent, since the petitioner has lost her claim as a protected teacher. In view of my affirmative finding recorded above that the petitioner's claim under Chap. XIVA R.51A of K.E.R. cannot be construed to have been relinquished or lost, it is only apposite that her claim for appointment to the vacancy that arose on 01.06.2016 be ordered. Consequently, I direct respondents 1 to 6 to grant appointment and approval to the petitioner to the post of U.P.S.A. in the vacancy that arose in C.N.P.S.U.P. School, Madavoor with effect from 01.06.2016 under the provisions of Chap.XIVA R.51A of K.E.R. in strict conformity with and in compliance of due procedure as are mandated under the provisions of the said Rule. This Writ Petition is thus ordered.