Kerala High Court
Elizabeth P. George vs The State Of Kerala on 7 January, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 10TH DAY OF MARCH 2017/19TH PHALGUNA, 1938
WP(C).No. 1254 of 2009 (Y)
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PETITIONER(S):
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ELIZABETH P. GEORGE,
U.P.S.A., ST. GEORGE HIGH SCHOOL, ATTACHAKAL,
PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.N.SUKUMARAN (SR.)
SRI.S.SHYAM
SRI.KIRAN PETER KURIAKOSE
RESPONDENT(S):
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1. THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM.
2. THE DISTRICT EDUCATIONAL OFFICER,
PATHANAMTHITA.
3. THE MANAGER,
ST. GEORGE VOCATIONAL HIGHER SECONDARY SCHOOL,
ATTACHAKAL, KONNY, PATHANAMTHITTA.
4. SOOSAMMA GEORGE, TEACHER,
ST. GEORGE VOCATIONAL HIGHER SECONDARY SCHOOL,
ATTACHAKKAL, KONNI, PATHANAMTHITTA.
R1 & R2 BY GOVERNMENT PLEADER SRI.MABLE C.KURIAN
R3 & R4 BY ADV. SRI.V.A.MUHAMMED
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10-03-2017, ALONG WITH WPC. 14253/2013, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C).No. 1254 of 2009 (Y)
APPENDIX
PETITIONERS' EXHIBITS
EXT.P1 TRUE COPY OF THE REQUEST MADE BY THE PETITIONER BEFORE THE
D.E.O. PATHANAMTHITA.
EXT.P2 TRUE COPY OF THE ORDER G.O.(MS) NO.11/2002/GE DATED
7.01.2002
EXT.P3 TRUE COPY OF THE JUDGMENT DATED 11.11.2008 IN W.P.(C)
24929/2008
EXT.P4 TRUE COPY OF THE ORDER OF THE DEO DATED 22.12.2008.
EXT.P5 TRUE COPY OF THE ORDER OF DPI DATED 29.4.03
EXT.P6 TRUE COPY OF THE ORDER OF THE GOVERNMENT G.O.(RT)
NO.344/2004/GL.EDN. DATED 20.1.2004
EXT.P7 TRUE COPY OF THE JUDGMENT DATED 8.3.2012 IN W.P.(C) NO.5653
OF 2004 OF THE HONOURABLE HIGH COURT OF KERALA
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
P. A. TO JUDGE
Pn
DEVAN RAMACHANDRAN, J.
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WP(C) Nos.1254 of 2009 & 14253 of 2013
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Dated this the 10th day of March, 2017
JUDGMENT
These writ petitions deal with syllogistic and rival contentions of two Teachers to the post of High School Assistants. These cases present very peculiar circumstances but contain essentially similar averments and seek reliefs that are entwined to each other. I, therefore, deem it necessary that these writ petitions are heard together and disposed of jointly in this judgment.
2. I have heard Sri.N. Sukumaran, assisted by Sri.Kiran, the learned counsel appearing for the petitioner in WP(C) No.1254/2009, Dr.George Abraham, the learned counsel for the petitioner in WP(C) No.14253/2013, Sri.Philip Mathew, the learned counsel appearing for the Manager of the School in both WP(C) Nos.1254 of 2009 & 2 14253 of 2013 cases and the learned Government Pleader appearing for the official respondents.
3. The bone of contention is a vacancy to the post of HSA [English] that arose in the School in the year 2008. The petitioner in WP(C) No.1254/2009 [who will hereinafter be referred to by her name Ms. Elizabeth] made claim to this vacancy on the ground that she was a Rule 43 claimant, since she was already working as a UPSA in the said School. The petitioner in WP(C) No.14253/2013 [who will hereinafter be referred to by her name Ms. Susamma] also made a collateral claim for the said vacancy based on her earlier appointment on 06.06.2001 as HSA [Maths]. Ms. Susamma appears to have been retrenched subsequent to her initial appointment due to a division fall. She had earlier challenged this retrenchment by filing WP(C) No.5653/2004 and she was allowed by interim order of this Court to continue in service.
4. While so, as I have indicated above, a vacancy to the post of HSA [English] arose in the year 2008. Ms. Elizabeth, who was qualified to be HSA [English] state claim and Ms. Susamma WP(C) Nos.1254 of 2009 & 3 14253 of 2013 assets that she should have been appointed to the vacancy since she had the benefit of prior appointment, albeit retrenched subsequently.
5. I see that the essential pivot of the whole controversy is as to whether Susamma can claim to have the benefit of Rule 51A of the KER. She can have this claim only if her appointment on 06.06.2001 is found to be regular and even if so, her claim against the 2008 vacancy would arise only if the minimum subject requirement permits her appointment, since she is an HSA in Maths and not in English. These issues are essentially in the realm of disputed facts and cannot be considered by this Court in these proceedings.
6. The first issue that will have to be resolved is whether Miss Susamma can be treated to be a Rule 51A claimant and even if so, whether she can then claim appointment to the post of HSA [English], when admittedly she worked as an HSA [Maths]. This could be possible only if the minimum subject requirements enable such an appointment. These issues necessarily will have to gain the attention of the competent authorities. WP(C) Nos.1254 of 2009 & 4 14253 of 2013
7. Ms. Susamma also has a claim that in the year 2002- 2003 her retrenchment, on account of a Division fall, could have been avoided had she been retained and not the 6th respondent in WP(C)No.14253/2013. I notice that the 6th respondent in the said writ petition was a Physical Science Teacher and that Ms.Susamma claims that she, being a Maths Teacher, ought to have been retained in preference to her. This issue appears to have been considered by the Government in Ext.P10 order holding that the 6th respondent is senior to Miss Susamma.
8. The learned Government Pleader says that taking into account the Classes that were to be taken by the Headmistress based on Chapter VIII Rule 4(3) of the KER, Ms. Susamma could not claim appointment for that period. Of course, this was refuted by the learned counsel appearing for Ms. Susamma asserting that no classes are generally allotted to the Headmistress. These issues obviously are also ones that will have to be considered by the competent authority.
In such circumstances, I order these writ petitions directing the competent among the Secretaries of the Government of WP(C) Nos.1254 of 2009 & 5 14253 of 2013 Kerala to reconsider the claims of both petitioners namely Ms.Susamma George and Ms. Elizabeth P. George with regard to the vacancy that arose in the year 2008 as also the claim of Ms.Susamma that she ought to have been retained in the year 2002 in preference to the 6th respondent in WP(C) No.14253/2013, after affording an opportunity of hearing to all parties including the petitioners and respondents in both cases, as expeditiously as possible, but not later than three months from the date of receipt of a certified copy of this judgment. To enable a proper consideration, I deem it necessary that the Secretary take an independent view untrammeled by anything contained in Ext.P10 produced in WP(C) No.14253/2013. I am not quashing Ext.P10 since I have not considered the validity of the same on its merits but it is necessary that the Secretary consider all the issues without being confined solely by what is contained therein.
The learned Senior Counsel submits that there is a vacancy now available in the school. I deem it appropriate, therefore, that until such time as a decision is taken by the competent WP(C) Nos.1254 of 2009 & 6 14253 of 2013 Secretary, the said vacancy shall not be filled by the Manager. However, if requirements for teaching makes it absolute to fill up such vacancy, then he may do so but only provisionally and subject to the decision to be taken by the Secretary.
The writ petition is ordered as above. In the facts and circumstances of this case, I make no order as to costs and I direct the parties to suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN, JUDGE.
//True Copy// P.A. to Judge sp/13/03/17