Kerala High Court
Pathanapuram Taluk Samajam Corporate ... vs Sreelatha on 10 July, 2006
Equivalent citations: 2006(3)KLT867
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor, K.P. Balachandran
JUDGMENT K.A. Abdul Gafoor, J.
1. The two Writ Appeals arise from the judgment in WP (C) No. 21682/04 filed by the first respondent in W.A.No. 2181/05 and the 8th respondent in W.A. No. 1917/05. She will be described as 'the writ petitioner' in this judgment. W.A. No. 1917/05 is filed by the 8th respondent in that Writ Petition, who was selected and appointed to the post of Laboratory Assistant in the Higher Secondary School managed by the appellant in W.A. No. 2181/05. The appellants are aggrieved by the direction contained in the impugned judgment, whereby the learned single Judge had directed the Writ Petitioner to be accommodated against the post of Laboratory Assistant. The petitioner in WP(C).No. 31635/05 is also a candidate selected to that post. The fact frame of the cases for the purpose of disposal of these cases are as follows:
2. The husband of the writ petitioner was working as a UP School Assistant in the aided school managed by the appellant in W.A.No. 2181/05, here-in-after referred to as the Manager. The school later got sanctioned higher secondary standards. Therefore, it was renamed as Higher Secondary School. The writ petitioner's husband died on 14.2.2001. Rule 51B Chapter XIV-A KER governing the conditions of service of aided school teachers provided for employment assistance to the dependent of teachers dying in harness in tune with scheme vogue in government service.
3. The writ petitioner presented Ext B 1 application claiming appointment on its basis. She preferred appointment to the category of Clerk, Laboratory Assistant, Peon or Full Time Menial. According to the manager he offered her appointment as a Full Time Menial when a vacancy arose. This was not accepted by the writ petitioner. Later vacancies of Laboratory Assistant arose in the Higher Secondary Section of the School. Seventy five per cent of the vacancies has to be filled up by direct recruitment. It was notified. The writ petitioner also applied. Respondents No. 6 to 8 in the Writ Petition including the appellant in W.A. 1917/05 and the petitioner in W.P.(C).No. 31635/05 were selected. At that time the writ petitioner approached this Court claiming one of the vacancies of Laboratory Assistants. It resulted in Ext.P5 judgment. A learned single Judge of this Court directed consideration of her claim, which was pending at that time, before the Director of Higher Secondary Education and the District Educational Officer concerned. In compliance of the direction contained in Ext.P5, the Director of Higher Secondary Education, the controlling officer in respect of Higher Secondary Section passed Ext.P6 order to the effect that the claim regarding employment assistance by the dependents of a deceased High School Teacher or U.P. School Teacher, as the case may be, had to be considered by the Director of Public Instruction and accordingly turned down her request, in Ext.P6. The District Educational Officer, the controlling Officer in respect of the High School Section in Ext.P16 turned down the claim of the writ petitioner stating that claim for appointment to the post of Laboratory Assistant in Higher Secondary Section had to be considered by the Director of Higher Secondary Education. Faced with this situation the writ petitioner approached for a second time with O.P.No. 21682/04, which led to the impugned judgment.
4. In the meantime the Writ Petitioner had noticed that the 9th respondent in the O.P had been appointed as a Full Time Menial overlooking her claim, when her claim was being staked by filing Ext. P l. Therefore she had, in addition to challenging Ext. P6 and Ext. P16, also claimed in the Writ Petition appointment in preference to the 9th respondent who had been appointed by the manager against the vacancy of Full Time Menial which had arisen on 31.5.2001.
5. The learned single Judge considered the case and found that the manager was statutorily bound to give one of the three vacancies of Lab Assistants to the Writ Petitioner. It was also found that the contention of the Manager that he had offered the post of Full Time Menial to the petitioner was not proved at all, to deny any subsequent post and claim thereto. Consequently, a direction to that effect was issued. It was in the above circumstances the above two Writ Appeals have been filed. At the same time this direction stood in the way of approval of appointment of the petitioner in W.P(C). No. 31635/65 as Laboratory Assistant. Therefore he has filed the said Writ Petition seeking appropriate relief regarding his approval and payment of salary.
6. The contention of the writ appellants is that Ext.R2 (c) Government order only makes applicable the scheme for employment assistance to the dependents of those who meet with the ultimate illfortune while working in Higher Secondary Section. The benefit thereof shall be confined to the dependents of the members of staff dying in harness while working in Higher Secondary Section and to the vacancies arising in that section. In other words, a claim for employment assistance which had arisen on account of death in harness of an aided school teacher working in High school, U.P. School or L.P. school (secondary section) cannot be urged for appointment against a vacancy in a post in Higher Secondary Section. To put it differently, the claim arising under Rule 51B Chapter XIV-A KER as available to the writ petitioner can be to a post in High School Section or UP school section (Secondary Section) of the school managed by the Manager and not to a post in Higher Secondary Section which is not covered by that rule. This aspect has not been adverted to by the learned single Judge, though specifically urged, as is revealed in para 5 of the counter affidavit of the Manager; it is submitted. Therefore, the decision of the learned single Judge is not sustainable, it is contended.
7. It is submitted on behalf of the 9th respondent as well as the writ petitioner that on account of the introduction of Chapter XXXII in Kerala Education Rules (KER) providing for 'Method of Appointment and Qualifications of Teachers and Non-teaching Staff in Aided Higher Secondary Schools', the entire KER shall have to be made applicable to the teachers as well as members of teaching staff in Higher Secondary Section as well, without any distinction. If the entire rules in KER including Rule 51B Chapter XIV-A are applicable to Higher Secondary Sections, the claim of the writ petitioner for a vacancy in the post of Lab Assistant is justified.
8. In this respect it is worthwhile to take note of Ext.R2(a) Govt. order once again. By this order Government extended the scheme of employment assistance "to the dependents of teaching and non teaching staff of aided HSS's and aided VHSS's." If the entire KER are applicable to the Teachers of Higher Secondary Section there was no necessity to issue Ext.R2(c) concerning them separately. Rule 51B in Chapter XIV-A would have been sufficient to meet the situation and requirements so far as they are concerned.
9. More over Ext.R2(a) is a composite order conferring the benefit of employment assistance not only to the Higher Secondary School teachers but also to the teachers in Vocational Higher Secondary Schools as well, which is not covered by Chapter XXXII. Merely because of the caption of that chapter, it cannot be said that the entire rules in KER including Chapter XIV-A, in which Rule 51B appears, apply to Higher Secondary Teachers also. Chapter XIV-A KER in which Rule 51B appears is captioned "the Conditions of Service of Aided School Teachers." The caption of Chapter XXIII KER is "Fixation of Strength of Teachers in Departmental and Aided School" which obviously cover government schools as well. But it is trite and nobody disputes the fact that the Government School teachers are not covered by KER. So, the caption of a chapter does not determine applicability of the entire rules. Therefore, merely because Chapter XXXII is captioned as "Method of Appointment of Teachers and Non teachers in Aided Higher Secondary School", it cannot be contended that Chapter XIV-A KER as such is made applicable to teachers in Higher Secondary Section. Examination of each of the provision in that chapter makes it clear that it in no way cover the teachers in Higher Secondary Section. Rule 51B applies only to teachers in aided High Schools and Primary Schools. It does not even apply to the members of teaching staff in such schools who are covered by Rule 9A of Chapter XXIV-A KER. Therefore, unless similar provision as contained in Rule 51B is incorporated in Chapter XXXII, it may not be possible to contend that the benefits of employment assistance available to the dependents of aided High School and Primary School teachers shall be extended to the vacancies available in Higher Secondary Section.
10. In Exts.P3 and P4 what the petitioner claimed was appointment in terms of Rule 51B and not in terms of Ext.R2(a). Rule 51B being part of conditions of service of aided school teachers only and not that of the teachers in Higher Secondary School and Ext.R2(a) being only extension of the scheme to a dependent of the members of staff of Higher Secondary School which the writ petitioner is not, necessarily, she cannot claim the post of Lab Assistant which is admittedly available in the Higher Secondary Section.
11. Therefore, the appellants are well footed to contend that the vacancies arising in Higher Secondary Section cannot be claimed by candidates seeking employment assistance under the scheme made applicable as per Rule 51B Chapter XIV-A KER viz dependents of those who died in harness while working in High School Section or UP School Section (Secondary Section) of the aided school.
12. At the same time the writ petitioner is well justified to contend that applying Rule 51B, her claim ought to have been considered by the manager in preference to that of the 9th respondent for appointment to the post of Full Time Menial as the latter is not a claimant under that rule at all when the vacancy arose. The answer of the 9th respondent in this regard is that his grand-father was a member of non-teaching staff in the High School Section of the school managed by the very same manager and he died in harness. The daughter of the deceased, who is the mother of the 9th respondent, staked claim for appointment. She was appointed but at that time she was over aged and the approval to her appointment was declined. This resulted in a Writ Petition wherein an arrangement was entered into between the mother of the 9th respondent and the manager that the 9th respondent would be appointed to the vacancy of Full Time Menial as and when the 9th respondent attains the age for appointment. The vacancy in question had arisen on 31.5.2001. Admittedly, the 9th respondent was under aged at that time. But the husband of the writ petitioner died on 14.2.2001 and Ext.P1 application had, by that time, been preferred by the writ petitioner well before the date of occurrence of that vacancy. Necessarily, that vacancy of Full Time Menial, which had arisen on 31.5.2001, for which Ext.P1 application had been preferred on 9.3.2001, ought to have been offered to the writ petitioner, rather than the 9th respondent.
13. It is in this regard the contention of the manager that the appointment had already been offered to the writ petitioner has to be considered. The manager submits that the petitioner being a claimant under Rule 51-B Chapter XIV-A KER was, pursuant to Ext.P1 application, rightly offered the post of Full Time Menial. It is submitted that though she preferred claim for appointment in the order of preference as Clerk, Lab Assistant, Peon and Full Time Menial, she cannot choose a particular post. That was why she had been rightly offered the post of Full Time Menial. But as rightly observed by the learned single Judge, no evidence was forthcoming in this case to the effect that such offer was ever been made. An offer for appointment is to be made by a registered letter addressed to the appointee. In the absence of any evidence in this regard the contention regarding the offer of appointment made by the manager to the petitioner cannot any more be accepted.
14. Necessarily the writ petitioner was entitled to the vacancy of Full Time Menial that had arisen on 31.5.2001, which had been really offered to the 9th respondent and who was consequently been appointed. In other words, the appointment of the 9th respondent whether because of the agreement made mention of earlier or otherwise was really overlooking the claim of the Writ Petitioner. The writ petitioner was really entitled to the said vacancy from the date when the 9th respondent was accommodated against that post.
15. Therefore the petitioner will be entitled to the consequential benefits including salary as well. Whatever benefits the petitioner had lost shall necessarily be claimed from the manager by filing appropriate representation before the controlling officer concerned. It shall be considered by the officer concerned in accordance with law. The impugned judgment is modified to that extent.
16. The view taken as above will necessarily give a quietus to the point agitated in W.P.(c)No. 31635/05.
17. Consequently, all the appointees against the post of Laboratory Assistant including the petitioner in WP(C),. No. 31635/05 remains unaffected to continue in their post and they are entitled to consequential approval or payment of salary as the case may be, in accordance with law, subject to fulfillment of other required conditions. The Director of Higher Secondary Education shall consider their case expeditiously, at any rate within 4 months.
Appeals and Writ Petition are disposed of as above.