Kerala High Court
Leelabai vs Anandavally on 14 November, 2002
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, J.M. James
JUDGMENT K.S. Radhakrishnan, J.
1. The question that has come up for consideration in this case is whether a retrenched teacher who was relieved from the post of UPSA and on protection could claim the post of Headmistress in the school on the plea that she has got a lien in the school.
2. The writ petitioner was appointed as a UPSA on 8.6.1976 and the appointment was approved. She was continuing in the school without break. The Headmistress of the school retired from service on 31.3.2001 and consequently a vacancy arose on 1.4.2001. Petitioner was the senior-most UPSA. However, at that time she was not qualified for promotion as Headmistress. She had not passed the prescribed departmental test. There was no other qualified teacher in the staff of the school as on 1.4.2001. Manager therefore posted her as teacher-in-charge with effect from 1.4.2001. On 24.6.2001 she attained the age of fifty and was therefore, permanently exempted from acquiring test qualification. Manager therefore passed an order appointing her as Headmistress of the school with effect from 24.6.2001. Manager forwarded the appointment order to the Assistant Educational Officer for approval. No order was passed by the Assistant Educational Officer on the said request. Fifth respondent the retrenched teacher filed a representation before the Deputy Director of Education claiming the post of Headmistress. She had joined the school as UPSA On 14.6.1976 and was thrown out from the school on 28.2.1985 due to reduction of student strength and being junior most. From Ext. P3 list kept in the school it is seen that she is rank No. 5 among the protected teachers in the school. Though she was thrown out she was deputed to the Government School and was continuing as High School Assistant. Second respondent Deputy Director of Education however, passed order dated 6.9.2001 directing the Manager of the school to appoint 5th respondent as Headmistress in the school. Petitioner challenged the said order before this Court and this Court directed the petitioner to invoke the statutory remedy underRule 92 of Chap. XIVA KER. Statutory remedy was invoked but the Government upheld the orders of the Deputy Director. Petitioner is aggrieved by the orders passed by the educational authorities as well as the order of the Government.
3. Learned single Judge allowed theWrit Petition and quashed the order passed by the Deputy Director of Education as well as that of the Government holding that the petitioner was the legitimate claimant for appointment to the post of Headmistress. Aggrieved by the same this appeal has been preferred by the 5th respondent.
4. Counsel appearing for the appellant-5th respondent submitted that eventhough 5th respondent was retrenched from the school she has retained her lien and seniority in the school and therefore entitled to be considered for the post of Headmistress. Counsel placed reliance on G.O.(MS) No. 104/69/Edn. dated 6.3.1969, and laid stress on the following paragraph:
"Government, after considering all aspects of the question are pleased to order that the lien of these teachers should be retained under the management of the aided schools in which they were working at the time of retrenchment. But they may be posted on purely working arrangement in the next available vacancies of similar category arising in Government schools in the same educational district."
Counsel submitted she is working in another school on working arrangement, without break in service and she retains lien in her parent school. Counsel submitted that she was deployed as protected teacher due to circumstances beyond her control. So unlike teachers voluntarily seeking transfer to other schools or transferred to Government schools, the protected teacher retains lien in the parent school. Counsel submitted for the purpose of Rule 37(1) of Chap. XIVA of Kerala Education Rules, a protected teacher is having continuous service in the same grade, but in another unit retaining the lien in the parent school. Consequently entitled to stake a claim for the post of Headmistress also.
5. Counsel appearing for the writ petitioner submitted that the protected teacher has been retrenched from the school since she is the junior most. The only right of a protected teacher is to claim appointment in the school in future vacancies. This right has been statutorily recognised in Rule 51-A of Chap. XIV-A of K.E.R. Counsel submitted the moment a protected teacher is thrown out from the school he cannot be treated as a member of the staff. Counsel also submitted that the word "lien" used in G.O (MS)104/69/Edn. dated 6.3.1969 cannot have the same meaning of "lien" as defined in the Kerala Service Rules. Counsel also placed reliance on the decision of this Court in Manager, Mar Sleeba U.P. School v. State of Kerala (1990 (1) KLT 626) which was confirmed by the Division Bench in W.A. No. 207/90.
6. Facts are not disputed. In order to resolve the controversy between the parties we have to examine the rights of a retrenched teacher who is under protection. It is also settled that depending on the strength of students excess hands will be retrenched by throwing out the junior most hands. Right of such teachers is recognised underRule 51-A, Chap. XIVA, K.E.R. Operative portion of the rule reads as follows:
"Qualified teachers who are relieved as perRule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided they have not been appointed in permanent vacancies in schools under any other Educational Agency."
Note 2 to Rule 51A stipulates that manager should issue an order of appointment to the teacher by registered post acknowledgment due and give a period of 14 clear days to the teacher to join duty. The appointment under Note 2 to Rule 51 A, in our view, is a fresh appointment. It is not continuation of earlier appointment of a teacher. A teacher who was thrown out can claim a preferential claim for appointment. It is difficult to accept the contention of the 5th respondent that even though the teacher has been thrown out he still maintains his seniority in the school. The moment a teacher is thrown out he ceases to be in the service of the school. Only right protected is for a preference for reappointment in the same post. We are of the view counsel for the writ petitioner is right in contending that the word lien used in the Government Order G.O. (MS) 104/69/Edn. dated 6.3.1969 cannot be given the same meaning of the word lien used in the Kerala Service Rules. As held by this Court in Ananthan Piliai v. State of Kerala, AIR 1968 Kerala 234 there is no such thing as a lien on a service as such. A lien is always on a post so that by saying that a particular person has got a lien it can in no way be implied that he had a general lien entitling him to such promotion as he would have got had he remained in service. The lien on a post is acquired only when the employee has been confirmed and made permanent on that post but not earlier.
7. Counsel appearing for the 5th respondent brought to our knowledge a decision of this Court in Usha Devi v. State of Kerala, 2002 (1) KLT 615 as well as the doubt expressed by a learned Judge of this Court in placing reliance on the decision in Rehelamma v. State of Kerala, 1997 (2) KLT 429 and Manager, Mar Sleeba U.P. School v. State of Kerala, 1990 (1) KLT 626 as confirmed by W.A. No. 207/90 and contended that the decision in 1990(1) KLT 626 requires a fresh look. The Division Bench who heard Usha Devi's case took the view that no reference to Full Bench is necessary since the point could be decided otherwise. We have already examined the right of a protected teacher and going by the above mentioned principles which we have mentioned earlier, we are of the view the decision reported in 1990 (1) KLT 626 does not require reconsideration. We therefore affirm the principle laid down by the learned single Judge in 1990 (1) KLT 626 and also affirm the judgment of the learned single Judge.
Appeal lacks merits and the same is accordingly dismissed.