Kerala High Court
N. Rajendran vs State Of Kerala on 17 December, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY,THE 18TH DAY OF JANUARY 2016/28TH POUSHA, 1937
W.P.(C).No.25792 of 2005 (U)
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PETITIONER(S):-
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N. RAJENDRAN,
NOW WORKING AS HSST (POLITICAL SCIENCE)
BY TRANSFER, C. KESAVAN MEMORIAL HIGHER SECONDARY SCHOOL,
KORUTHODU P.O., KORUTHODU, KOTTAYAM DISTRICT.
BY ADV. SRI.BENOY THOMAS.
RESPONDENT(S):-
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1. STATE OF KERALA,
REPRESENTED BY SECRETARY TOGOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM.
2. DIRECTOR OF HIGHER SECONDARY EDUCATION,
THIRUVANANTHAPURAM.
3. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.
4. D.E.O., KANJIRAPPALLY.
5. MANAGER, C. KESAVAN MEMORIAL HIGHER SECONDARY SCHOOL,
KORUTHODU P.O., KORUTHODU, KOTTAYAM.
6. MS. SHEELA, UPPER PRIMARY SCHOOL ASSISTANT,
C. KESAVAN MEMORIAL HIGHER SECONDARY SCHOOL,
KORUTHODU P.O., KORUTHODU, KOTTAYAM.
7. ANCY GEORGE, HIGH SCHOOL ASSISTANT (S.S),
C. KESAVAN, MEMORIAL HIGHER SECONDARY SCHOOL,
KORUTHODU P.O., KORUTHODU, KOTTAYAM.
W.P.(C). NO.25792 OF 2005-U - 2 -
ADDITIONAL 8TH RESPONDENT IMPLEADED:
ADDL.R8. K.K.ANITHAMOL,
PRINCIPAL, C.KESAVANMEMORIAL H.S.S.,
KORUTHODE, KOTTAYAM DISTRICT.
[ADDITIONAL 8TH RESPONDENT IS IMPLEADED AS PER ORDER ON
I.A.NO.15870 OF 2008 DATED 17.12.2008]
R1 TO R4 BY GOVERNMENT PLEADER SMT.SMITHA VINOD.
R5 BY ADV. SRI.S.EASWARAN
R6 & R7 BY ADV. SRI.P.GOPINATH
ADDL.R8 BY ADVS.SRI.B.UNNIKRISHNA KAIMAL
SRI.JOSY ANTONY.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18-01-2016, ALONG WITH WPC. 27362/2009-M, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:-
W.P.(C). NO.25792 OF 2005-U
APPENDIX
PETITIONER'S EXHIBITS:-
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EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE
PETITIONER AS LECTURER IN POLITICAL SCIENCE
DATED 26.8.98.
EXT.P2 TRUE COPY OF THE APPROVAL ORDER OF THE PETITIONER
AS HSST (PART TIME) POLITICAL SCIENCE ISSUED BY
2ND RESPONDENT DATED 31.8.99.
EXT.P2(a) TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT
DATED 4.8.99.
EXT.P3 TRUE COPY OF THE APPROVAL ORDER ISSUED BY THE
2ND RESPONDENT OF THE PETITIONER AS HSST (FULL TIME)
DATED 8.8.2001.
EXT.P4 TRUE COPY OF G.O.(MS) NO.351/2004/G.EDN. DT.20.11.2004.
EXT.P5 TRUE COPY OF THE APPROVAL ORDER OF THE PETITIONER
AS UPSA AND HSA ISSUED BY DEO DATED 9.9.91.
EXT.P6 TRUE COPY OF G.O.(RT) NO.4600/95/G.EDN. DT.28.12.95.
EXT.P7 TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE
COURT IN W.A.NO.1949/97 DATED 25.2.2004.
EXT.P8 TRUE COPY OF THE IMPUGNED ORDER ISSUED BY THE
1ST RESPONDENT, I.E. G.O.(RT) NO.3803/2005.G.EDN.
DATED 1.8.2005.
EXT.P9 TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE
COURT IN W.P.(C) NO.26000 OF 2003 DT.4.11.2004.
RESPONDENT'S EXHIBITS:-
------------------------------------------ NIL.
Vku/- [ true copy ]
K. Vinod Chandran, J
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W.P.(C).Nos.25792 of 2005-U & 27362 of 2009-M
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Dated this the 18th day of January, 2016.
JUDGMENT
Both the writ petitions are connected, in a way. W.P. (C).No.27362 of 2009 filed against the denial of approval of appointment as Principal of Higher Secondary School would depend upon the disposal of W.P.(C).No.25792 of 2005, where the Rule 51A claim under the Kerala Education Rules, 1959 [for brevity "KER"] is urged; the latter of which is taken up for decision first.
2. The petitioner in W.P.(C).No.25792 of 2005 is said to have been appointed in a leave vacancy of High School Assistant [for brevity "HSA"] between 08.06.1990 to 27.03.1991. Subsequently, the petitioner was also appointed in a leave vacancy of Upper Primary School Assistant [for brevity "UPSA"] between 09.09.1991 to 13.12.1991. The approval of the first appointment as such was declined by the department for want of vacancy. The approval of appointment as UPSA was not considered, since neither the Manager nor the teacher produced WP(C) No.25792 of 2005 & - 2 - 27362 of 2009 the certificate proving the qualification of the petitioner. The said appointment also stood rejected by the District Educational Officer [for brevity "DEO"]. The petitioner had been before the statutory authorities with respect to both the said leave vacancy appointments.
3. The controversy arose when a vacancy of UPSA and HSA arose respectively on 15.06.1992 and 07.06.1993, to which respondents 6 and 7 respectively were appointed. The petitioner's contention is that, subsequently the petitioner's short-term appointments were approved and in such circumstance the petitioner had a claim under Rule 51A of the KER, to be appointed as UPSA or HSA when the vacancies arose; since both the said vacancies arose after the short-term appointments in leave vacancies. The petitioner was before this Court earlier with a writ petition [O.P.No.9940 of 1996], which was dismissed by the learned Single Judge and by Exhibit P7, the Division Bench, disposed of the appeal [W.A.No.1949 of 1997] directing re-consideration. It was specifically directed that the question as to whether as on the date of arising of the regular WP(C) No.25792 of 2005 & - 3 - 27362 of 2009 vacancy the petitioner's approval stood rejected or not should be considered. Exhibit P8 order, passed pursuant to Exhibit P7, is challenged herein.
4. A reading of Exhibit P8 would indicate that in fact there was no vacancy for appointment as HSA between 08.06.1990 and 27.03.1991. However, the Government, taking a lenient view, shifted the petitioner's appointment to another leave vacancy which occurred between 12.09.1990 to 07.12.1990. This is also evident from Exhibit P6 order. In such circumstance, the petitioner's claim to the vacancy of HSA on the arising of the vacancy of HSA, on 07.06.1993 cannot be said to be one wherein a valid claim under Rule 51A could have been raised. The Government had approved a portion of the period spent on duty; only taking a lenient view and shifting the appointment to another leave vacancy available in the same school. The appointment made by the Manager hence was not approved and as on the date of vacancy, there was no valid claim under Rule 51A.
5. With respect to the appointment in the leave vacancy as UPSA between 09.09.1991 to 13.12.1991, the same WP(C) No.25792 of 2005 & - 4 - 27362 of 2009 was rejected initially for want of certificate for proving the qualification. The same was allowed only by Exhibit P5 on 03.03.1994, pursuant to the directions of the Director of Public Instructions [for brevity "DPI"] in an order dated 26.10.1993. Hence, the said approval also occurred after the appointment of the 6th respondent as UPSA on 15.06.1992.
6. Hence, when the vacancies arose in the regular post of UPSA and HSA, the petitioner did not have a valid claim under Rule 51A. It is pertinent that the petitioner did not agitate the cause before this Court when the 6th and 7th respondents were appointed to the said regular posts. The respondents 6 and 7 continued without interruption in the regular post and on subsequent approval of the petitioner's appointment, the petitioner sought to challenge the same. For all the above reasons, the petitioner's claim under Rule 51A cannot be sustained on the date when the vacancies arose on 15.06.1992 and 07.06.1993, to which vacancies the respondents 6 and 7 were appointed. Hence, W.P.(C) No.25792 of 2005 would stand dismissed.
WP(C) No.25792 of 2005 & - 5 -
27362 of 2009
7. W.P.(C).No.27362 of 2009 is in the circumstance of the pendency of W.P.(C).No.25792 of 2005. The petitioner in W.P.(C) No.27362 of 2009, one K.K.Anithamol, was appointed as Principal of Higher Secondary School on 07.05.2008 as per Exhibit P3. The same was not approved since the other writ petition [W.P.(C).25792 of 2005] was pending and N.Rajendran, the petitioner therein, had a claim for seniority from the date on which the alleged Rule 51A claim arose; reckoning of which would put Rajendran above K.K.Anithamol in the claim for the post of Principal. The writ petition of Rajendran [W.P.(C). No.25792 of 2005] having been dismissed, it is only proper that Exhibit P6 in W.P.(C) No.27362 of 2009 be set aside and K.K.Anithamol's approval be considered by the Regional Deputy Director, Higher Secondary Education.
8. In this context, it is to be noticed that when Exhibit P3 appointment order in W.P.(C) No.27362 of 2009 was made, admittedly the regulations then existing enabled K.K.Anithamol to be appointed, since she had 12 years service reckoning the Higher Secondary and High School service together. WP(C) No.25792 of 2005 & - 6 -
27362 of 2009 Subsequently, in the year 2009, the Rules were amended and only a person having 12 years service in Higher Secondary section could be appointed as Principal. By the amendment, an alternate experience was also prescribed, insofar as reckoning the 12 year period as 6 years in the Higher Secondary section and 6 years in the High School section. K.K.Anithamol does not have either of the said experience. However, the fact remains that if at the time of Exhibit P3 appointment, Anithamol's approval was considered, she would have been entitled to be considered on the basis of the existing rules. If on the basis of the existing rules a person had been appointed/promoted, then the subsequent amendment to the rules, cannot take away the vested right acquired to continue in the said higher post. This view is supported by the decision of a Division Bench in Kerala Panchayat Executive Officers Association v. State of Kerala [2000 (3) KLT 701].
9. In the above circumstance, the approval of the petitioner in W.P.(C).No.27362 of 2009 will have to be considered as per the rules existing at that point of time, i.e., on the date of WP(C) No.25792 of 2005 & - 7 - 27362 of 2009 Exhibit P3 appointment, without taking into account the retrospective amendments made in 2009. It is directed that the said consideration shall be made, by respondents 2 and 3, within three months from the date of receipt of a certified copy of this judgment.
W.P.(C).No.25792 of 2005 would stand dismissed and W.P.(C) No.27362 of 2009 would stand allowed. Parties are left to suffer their respective costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
[ true copy ]