Kerala High Court
C.T.Sarath Kumar vs State Of Kerala on 2 February, 2021
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942
WP(C).No.13701 OF 2012(K)
PETITIONER:
C.T.SARATH KUMAR
HIGH SCHOOL ASSISTANT(MATHEMATICS) UMBICHY HAJEE HIGHER
SECONDARY SCHOOL P.O CHALIYAM KOZHIKODE 633 301
BY ADVS.
SRI.K.JAJU BABU (SR.)
SMT.DHANYA CHANDRAN
SMT.M.U.VIJAYALAKSHMI
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT GENERAL EDUCATION
DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695001
2 THE DIRECTOR OF PUBLIC INSTRUCTION
THIRUVANANTHAPURAM 695001
3 THE DEPUTY DIRECTOR OF EDUCATION
KOZHIKODE 633001
4 THE DISTRICT EDUCATIONAL OFFICER
KOZHIKODE 633001
5 THE MANAGER
UMBICHY HAJEE HIGHER SECONDARY SCHOOL P.O CHALIYAM KOZHIKODE
633 301
6 SHRI M.C BASIL
UPPER PRIMARY SCHOOL ASSISTANT UMBICHY HAJEE HIGHER SECONDARY
SCHOOL P.O CHALIYAM KOZHIKODE 633 301
BY ADV. SRI.P.NANDAKUMAR
OTHER PRESENT:
SRI. P.M.MANOJ - SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.13701 OF 2012(K)
2
JUDGMENT
The petitioner was originally appointed as an Upper Primary School Teacher (UPST) by the 5th respondent ― Manager of "Umbichy Hajee Higher Secondary School", Kozhikode ― against a regular vacancy and was given temporary promotion to the post of High School Assistant (HSA) for the period from 05.06.2000 to 17.10.2000 in a leave vacancy. This appointment was approved and he was again appointed as HSA (Maths) against a leave vacancy for the period from 24.08.2009 to 23.08.2014, but this appointment was rejected for the reason that during the academic year 2009-2010, though there were only eight sanctioned posts of HSA (Maths) nine teachers were in fact working and therefore, that he could have been appointed only as a HSA (English), against which the excess teacher had been accommodated and that he is not thus eligible to be granted approval, he being not qualified to hold the said post.
2. The petitioner says that however, all orders rejecting approval of his appointment have been issued by various Educational Authorities on the precept that Ext.P4 Government Order is not applicable to him, because he is not a Rule 51A claimant and asserts that, going by the judgment of a learned WP(C).No.13701 OF 2012(K) 3 Division Bench of this Court in Sandhya v. Jalaja Kumari [2008 (3) KLT 655], a Rule 43 claimant can also enforce a claim under Rule 51A. He says that this is pertinent because, he is admittedly having a claim under Rule 43; thus praying that Ext.P11 order of the Government be set aside and his spell of service from 24.08.2009 till 02.06.2013 be directed to be approved, since he was subsequently - with effect from 03.06.2013, adjusted to the post of HSA in which he is presently continuing.
3. In response, the learned Senior Government Pleader, submitted that a counter affidavit has been filed on record, wherein, the reasons as to why the Government had issued Ext.P11 have been stated as under:
"2. It is submitted that the petitioner herein cannot be treated as a 51A claimant as he has got permanent appointment as UPSA in the School with effect from 01.07.1998 onwards.
As per provisions in Rule 49, 51A and 52 of the KER only thrown out teachers can get preferential claim of appointment in future vacancies.
3. It is a fact that the petitioner is a Rule 43 claimant of Chapter XIVA of KER and he had previous approved service as HSA (Mathematics) in the school for the period from 05.06.2000 to 17.10.2000. He was permitted to draw pay in the lower scale conditionally until the disposal of the approval of appointment WP(C).No.13701 OF 2012(K) 4 as HSA (Maths) in the school.
4. It is submitted that the appointment of the petitioner as HSA (Maths) was rejected on the reason that during the year 2009-2010, eight post of HSA(Maths) were sanctioned against which 9 HSA(Maths) were working.
The excess teacher was accommodated against the post of HSA(English).
Therefore, the leave vacancy against which Sri.Sarathkumar, the petitioner was posted by promotion was to be filled up with HSA(English). Further the petitioner is not qualified to hold the post of HSA(English). The request of the petitioner was rejected by the Deputy Director of Education, Kozhikode, the Director of Public Instruction and at last the Government on the same reason pointed out by this office. The promotion and appointment of the petitioner against the leave vacancy is irregular. The petitioner cannot be treated as Rule 51A claimant as he has got permanent appointment as UPSA in the School. Therefore, all the appellate authorities rejected the appeal filed by the petitioner.
5. It is submitted that the Manager of the School, the 5th respondent is liable to appoint an HSA (English) in the leave vacancy for the period from 24.08.2009 to 23.08.2014 instead of appointing the petitioner an HSA(Maths) who is not qualified to hold the post of HSA (English). As argued by the petitioner he is not entitled to the benefit of Rule 51A, since he got permanent appointment as UPSA in the school from 01.07.1998."
4. The learned Senior Government Pleader, therefore, prayed that since the petitioner was not eligible to be appointed as HSA (English), he being not qualified to hold the said post, his WP(C).No.13701 OF 2012(K) 5 claims may not be acceded to by this Court. He therefore, prayed that this writ petition be dismissed.
5. Sri.Nandakumar, learned counsel appearing for the Manager, submitted that the claims of the petitioner had been rejected by the Educational Authorities for the reason that he had been appointed as a HSA against the ninth vacancy, which had been held by HSA (English) at the relevant period. He submitted that the Educational Authorities appear to have concluded that the petitioner is not entitled to obtain the benefits of Exts.P4 and P5 orders, since his appointment as HSA prior to 07.11.2002, was by way of promotion under Rule 43 of Chapter XIVA of the Kerala Educational Rules (KER) and therefore, cannot be considered as a Rule 51A claimant. He submitted that his client has acted as per the mandate of the applicable Rules and Regulations and therefore, that no directions may be issued against him.
6. I have considered the afore rival contentions and have also examined the materials available on record.
7. It is indubitable that the petitioner's appointment has been rejected solely for the reason that he cannot enforce a Rule 51A claim, since he had been earlier promoted in a leave vacancy under the mandate of Rule 43 Chapter XIVA of the KER. WP(C).No.13701 OF 2012(K) 6
8. Therefore, the acme question is whether the petitioner is entitled to enforce a claim under Rule 51A because, if that be so, he would certainly be entitled to the benefits of Exts.P4 and P5 Government Orders, which grants such benefits to a claimant under the said Rule.
9. The petitioner relies upon the judgment of a learned Division Bench of this Court in Sandhya (supra) to assert that a person who has a Rule 43 claim, can also enforce a claim under Rule 51A. If this is true, then certainly the petitioner would be consequentially entitled to the benefits of Exts.P4 and P5 Government Orders and would, therefore, be entitled to approval for the period from 24.08.2009 to 02.06.2013.
10. However, when I examine Ext.P11 order of the Government, I notice that this issue has not even been adverted to by its competent Secretary, but it has proceeded under the precept that the petitioner is not entitled to enforce a Rule 51A claim and therefore, not eligible to have his period served as HSA (Maths) approved.
11. I am, therefore, of the firm view that Ext.P11 cannot find my favour and that Government must reconsider the claim of the petitioner for the benefits during the period from 24.08.2009 WP(C).No.13701 OF 2012(K) 7 to 02.06.2013, adverting to Sandhya (supra) and to the contentions of the petitioner that he is entitled to enforce claims under Rule 51A, since he is admittedly a Rule 43 claimant.
Resultantly, this writ petition is ordered and I set aside Ext.P11; with a consequential direction to the competent Secretary of the Government to hear the petitioner as well as respondents 5 and 6 ― either physically or through video conferencing ― and take a decision on the petitioner's claim, as expeditiously as is possible but not later than two months from the date of receipt of a copy of this judgment.
SD/-
DEVAN RAMACHANDRAN
rp JUDGE
WP(C).No.13701 OF 2012(K)
8
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT OF THE PETITIONER BY
THE 4TH RESPONDENT FROM 24.09.2001 TO 05.02.2002. EXHIBIT P2 TRUE COPY OF THE ORDER NO.B5/10887/09 DATED 10.2009 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE ORDER NO.B5/10887/09 DATED 29.03.2010 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER NO.GO(MS) NO.132/09 DATED 17.06.2009.
EXHIBIT P5 TRUE COPY OF THE GOVERNMENT CIRCULAR NO.70161/J2/09/GEDN. DATED 27.01.2010. EXHIBIT P6 TRUE COPY OF THE ORDER NO.C-5/10377/10/K.DIS OF THE THIRD RESPONDENT DATED 27.10.2010.
EXHIBIT P7 TRUE COPY OF THE ORDER NO.EM4/82642/10/DPI/K.DIS DATED 24.08.2011 ISSUED BY THE SECOND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE REVISION PETITION DATED 26.09.2011 FILED BY THE FIFTH RESPONDENT BEFORE THE 1ST RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE COMMUNICATION NO.1251/A2/2012/P.EDN. DATED 04.02.2012 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER ON 14.03.2012.
EXHIBIT P11 TRUE COPY OF THE GO(RT) NO.2522/2012/G.EDN DATED 01.06.2012 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P12 TRUE COPY OF THE ORDER NO.2/2012 DATED 02.06.2012 BY THE 5TH RESPONDENT.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R5(a) TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER BY THE 5TH RESPONDENT DATED 27.02.2012.