Kerala High Court
Marcia Collin Noronha vs The State Of Kerala on 17 June, 2013
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY, THE 27TH DAY OF JUNE 2014/6TH ASHADHA, 1936`
WA.No. 1503 of 2013
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W.P.(C)NO. 34949 OF 2011 OF THIS HONOURABLE COURT, DATED 17-06-2013
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APPELLANT / PETITIONER :
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MARCIA COLLIN NORONHA,
H.S.A.ENGLISH, C.C.P.L.M ANGLO INDIAN HIGH SCHOOL,
PERUMANOOR, ERNAKULAM.
BY ADV. SRI.P.C.SASIDHARAN
RESPONDENTS / RESPONDENTS :
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1. THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2. THE DIRECTOR OF PUBLIC INSTRUCTION,
OFFICE OF THE DPI, JAGATHY,
THIRUVANANTHAPURAM - 695 001.
3. THE DEPUTY DIRECTOR OF EDUCATION,
D.D.E'S OFFICE, KAKKANAD, ERNAKULAM - 682 030.
4. THE DISTRICT EDUCATIONAL OFFICER,
D.E.O'S OFFICE, ERNAKULAM - 682 030.
5. THE MANAGER,
CCPLM ANGLO INDIAN SCHOOLS,
PERUMANNOOR, ERNAKULAM, KOCHI - 15.
6. SMT.MARY BRINCEL HURTIS, H.S.A.,
CCPLM ANGLO INDIAN SCHOOLS, PERUMANNOOR,
ERNAKULAM, KOCHI - 15.
R1 TO R4 BY SR. GOVERNMENT PLEADER SRI.NOBLE MATHEW
R6 BY ADVS. SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR)
SRI.K.P.CHANDRASEKHAR
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20-02-2014,
THE COURT ON 27-06-2014 DELIVERED THE FOLLOWING:
Msd.
"CR"
THOTTATHIL B.RADHAKRISHNAN
&
A.MUHAMED MUSTAQUE, JJ.
= = = = = = = = = = = = = = = = = = = W.A.No.1503 of 2013 = = = = = = = = = = = = = = = = = = = Dated this the 27th day of June, 2014 Judgment Thottathil B.Radhakrishnan, J.
1.Heard learned counsel for the appellant, the contesting sixth respondent and the learned government pleader.
2.Writ petitioner is the appellant. She and the sixth respondent are teachers in an aided high school which also has upper primary section.
3.While the sixth respondent was working as UPSA, a leave vacancy of HSA arose in the school. Writ petitioner was appointed as against that vacancy for the period from 17.8.2006 to 31.7.2010. That WA1503/13 -: 2 :- was approved by the competent statutory authority as per proceedings dated 10.2.2009. While so, a regular vacancy of HSA arose on 1.6.2008. Manager promoted the sixth respondent from the category of UPSA to that vacancy of HSA in terms of Rule 43 of Chapter XIVA of Kerala Education Rules, 1958, for short, "KER". That stands approved by the statutory authorities. Thereby, they also overruled the claim of the writ petitioner that she was entitled to be regularised as against that vacancy of HSA which arose in the school while she was working as a leave substitute. Writ petitioner's challenge to that stands repelled by the learned single Judge.
4.The trump card of the writ petitioner is Ext.P15 government order - GO(MS)No.275/99/G.Edn dated 9.11.1999, though the findings in the orders of the statutory authorities are all challenged.
5.One thing is certain; merely because the approval proceedings is dated 10.2.2009, that is to say, WA1503/13 -: 3 :- after the date of occurrence of the regular vacancy of HSA on 1.6.2008, that by itself cannot deprive the writ petitioner of eligibility to that vacancy if she is entitled to that otherwise, in accordance with law. This is because, whatever be the date of the statutory authority's approval order, such approval would relate back to the date of appointment and its efficacy will be for the entire period for which the appointment has been made and approved. It is not as if the eligibility to enjoy the benefits, claims and rights attendant to such appointment would be operative only from the date of approval.
6.A complaint as to violation of the preferential right under Rule 51A of Chapter XIVA qua Rule 43 of that Chapter cannot be raised by the writ petitioner, for the simple and straight reason that she was never relieved as per any of the rules or contingencies enumerated in Rule 51A. Equally, there is no statutory provision in KER WA1503/13 -: 4 :- in defeasance of the right of the sixth respondent's eligibility and right to be promoted under Rule 43 from the category of UPSA to the regular vacancy of HSA which arose on 1.6.2008. Rules 44, 45 and 51A, to which Rule 43 is subject to, do not apply to the case in hand. Therefore, the only question would be whether there is any original order issued by the government that applies in this instance. This is the inescapable position, having regard to the clear terms of Rule 43. This is why, as already noted, Ext.P15 government order becomes the sheet anchor of the writ petitioner's claim. We, therefore, proceed to consider that material.
7.Ext.P15 is an order issued by the Government of Kerala through the Secretary to Government in the General Education Department. That is a general order. Therefore, that will have a bearing on the issue to be decided, as raised by the writ petitioner. The question, therefore, is as to whether that government order would come to her WA1503/13 -: 5 :- aid. That government order is one issued in relation to the issue of regularisation of leave substitutes against permanent/regular vacancy. It is issued in the form of a clarification. What had come to the notice of the government was that there are cases where the leave substitutes are not regularised against permanent/regular vacancy arising in the respective schools whereas juniors are accommodated against permanent vacancies. Therefore, government clarified that leave substitutes will be regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority. That clarificatory general order issued by the government is only regarding the requirement to regularise leave substitutes in the order of their inter-se seniority, thereby ensuring that the permanent/regular vacancies are filled up on the basis of seniority among the leave substitutes and regularisation is made accordingly. That clarificatory government order does not enable a leave substitute to claim WA1503/13 -: 6 :- priority over the statutory eligibility for promotion in terms of Rule 43. The claim of the writ petitioner fails on that count as well.
8.For the aforesaid reasons, we do not find any ground to interfere with the impugned judgment. This writ appeal therefore fails. In the result, this writ appeal is dismissed. No costs.
Sd/-
THOTTATHIL B.RADHAKRISHNAN, JUDGE Sd/-
A.MUHAMED MUSTAQUE, JUDGE Sha/
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PS to Judge