Kerala High Court
Beena C. Thambi vs State Of Kerala Represented By ... on 4 December, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 04TH DAY OF DECEMBER 2020 / 13TH AGRAHAYANA, 1942
WP(C).No.35095 OF 2019(J)
PETITIONER :-
BEENA C. THAMBI, AGED 31 YEARS
L.P.S.T (STANDS RETRENCHED),
KOORUKUZHI AIDED MUSLIM UPPER PRIMARY SCHOOL,
KAIPAMANGALAM, TRICHUR-680 681,
RESIDING AT KANJIRATHINGAL HOUSE,
KAIPAMANGALAM P.O, KAIPAMANGALAM,
TRICHUR - 680 681.
BY ADV. SRI.U.BALAGANGADHARAN
RESPONDENTS :-
1 STATE OF KERALA REPRESENTED BY SECRETARY,
GENERAL EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT (ANNEX),
THIRUVANANTHAPURAM - 695 001.
2 THE DIRECTOR OF GENERAL EDUCATION
THIRUVANANTHAPURAM - 695 014.
3 THE DEPUTY DIRECTOR OF EDUCATION
CIVIL STATION, TRICHUR - 680 002.
4 THE DISTRICT EDUCATIONAL OFFICER
CHAVAKKAD, TRICHUR - 680 105.
5 THE ASSISTANT EDUCATIONAL OFFICER
VALAPPAD, TRICHUR - 680 103.
6 THE DEPUTY DIRECTOR OF EDUCATION
PATHANAMTHITTA - 689 645.
7 THE MANAGER
KOORIKUZHI AMUP SCHOOL, KAIPAMANGALAM,
TRICHUR - 680 681.
8 THE ASSISTANT EDUCATIONAL OFFICER
PATHANAMTHITTA - 689 645.
R1-R6 & R8 BY SRI.P.M.MANOJ, SR.GP
R7 BY ADV. SRI.V.A.MUHAMMED
R7 BY ADV. SRI.M.SAJJAD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.35095 OF 2019(J)
-: 2 :-
JUDGMENT
Dated this the 4th day of December 2020 This writ petition is filed seeking the following prayers :-
"1. Writ in the nature of mandamus commanding the 7th respondent to appoint the petitioner in any of the 5 substantive vacancies of LPST exist in three schools owned and managed by the 7th respondent in Trichur District itself by giving effect to Ext.P7.
2. Writ in the nature of mandamus commanding the 5th respondent to consider approving the appointment of the petitioner as LPST in any of the 5 vacancies available in the three schools owned and managed by the 7th respondent Manager in Trichur District itself.
3. Writ in the nature of mandamus commanding the 5th respondent to withhold all new/fresh appointment proposals submitted by the Manager seeking to filling up 5 substantive posts in the three schools owned and managed by the Manager in Trichur itself.
4. Declare that the petitioner is entitled to be reappointed in any of the 5 substantive vacancies available in the three schools owned and managed by the 7th respondent School in Trichur District."
2. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel appearing for the 7 th respondent.
3. It is submitted that the petitioner, who had approved service as LPSA in the 7th respondent school for the period from 3.6.2013 to 14.7.2016, is a claimant under Rule 51A of Chapter XIV A KER for appointment to subsequently arising vacancies in the WP(C).No.35095 OF 2019(J) -: 3 :- school. It is submitted that the Manager had three schools in the Trichur District as is evident from Ext.P2. However, though there were vacancies in the schools, where the 7th respondent is the approved Manager by Ext.P2, which had arisen on 1.6.2017 and 1.6.2019 and thereafter, no steps were taken to employ the petitioner in recognition of her statutory claim.
4. When the petitioner approached the respondents seeking appointment, the 7th respondent appointed her in a vacancy of LPSA in the Kochukoikkal school at Pathanamthitta. The learned counsel for the petitioner submits that the 7th respondent is not the approved Manager in respect of the said school and that the attempt to shift the petitioner to a school in Pathanamthitta when there are clear vacancies available in the schools in Trichur, where the 7th respondent is the approved Manager, is completely untenable and is against the letter and spirit of Rule 51A of Chapter XIV A KER. The petitioner has produced Exts.P8 and P9 documents to show that there were clear vacancies available in the post of LPSA in the Koorikuzhi - Kaipamangalam school, where the petitioner had been working. Two vacancies which arose on 1.6.2017 and 1.6.2019 respectively due to retirement are specifically mentioned in Ext.P8. It is evident from Ext.P9 that the appointments were attempted by the 7th respondent against those WP(C).No.35095 OF 2019(J) -: 4 :- vacancies, but the said appointments had not been approved due to the pendency of the claim raised by the petitioner.
5. A counter affidavit has been placed on record by the 7 th respondent. It is contended that the 7 th respondent has four schools and that the SNUPS, Kochukoikkal has also been purchased by the 7th respondent. It is stated that the Manager had been directed to take appropriate action to consider the request of the petitioner and to accommodate her in the Koorikuzhi AMUP School, Kaipamangalam against one of the vacancies of LPSA which arose in the said school by Ext.R7(a) order dated 9.6.2020. It is submitted that there is no vacancy to accommodate the petitioner since there are 11 posts of LPSA in the school against which 11 teachers are working. It is further submitted that a retirement vacancy had arisen on 31.5.2020, but the said vacancy cannot be filled up at this stage and can be ascertained only after the staff fixation.
6. The 8th respondent has also placed a counter affidavit on record. The facts stated in the writ petition with regard to the approved appointment of the petitioner are admitted. It is stated that the Manager had appointed the petitioner as LPSA in the SNUPS, Kochukoikkal with effect from 6.6.2019. However, the change of management involving change of ownership of the WP(C).No.35095 OF 2019(J) -: 5 :- SNUPS, Kochukoikkal was declined by the Director of Public Instruction as per order dated 21.3.2018. It is further stated that there is no approved common seniority list for the schools in Trichur District and the SNUPS, Kochukoikkal in Pathanamthitta District. It is therefore contended that the vacancies which arose in the Koorikuzhi school are liable to be filled up by appointing the petitioner. It is further stated that the Manager is not authorised to make appointments in the SNUPS, Kochukoikkal since the approval of managership has been declined.
7. I have considered the contentions advanced. It is not in dispute before me that the petitioner is a thrown out teacher who had approved service from 3.6.2013 to 14.7.2016. Ext.P8 would show that vacancies of LPSA had arisen in the Koorikuzhi school, of which the 7th respondent is the Manager, on 1.6.2017 and 1.6.2019. Exts.P10 and P11 documents produced by the petitioner would show that fresh appointments made against those vacancies have been declined by the educational authorities on the specific ground that the petitioner is a Rule 51A claimant and that the appointments cannot be approved in the absence of the appointment of the petitioner in the first of such vacancies. It is also not in dispute before me that when the vacancies arose in the Koorikuzhi school in 2017 and 2019, the petitioner was not served WP(C).No.35095 OF 2019(J) -: 6 :- with an appointment order as clearly provided in Note 2 to Rule 51A of Chapter XIV A KER. It is also not in dispute before me that the issue with regard to change of management involving transfer of ownership of the SNUP School, Kochukoikkal, Pathanamthitta has not been permitted by the Department as of now. Ext.P2 would also show that only the three schools at Koorikuzhi, Pallikkal and Machad in Trichur District are under the approved management of the 7th respondent presently.
8. In the above view of the matter and in view of the fact that a vacancy of LPSA had admittedly arisen on 1.6.2017 in the school owned by the 7th respondent at Koorikuzhi, I am of the opinion that the petitioner, who is a statutory claimant to that post will have to be accommodated against the said post. If the petitioner is appointed against the first arising vacancy of LPSA in the schools, which are under the management of the 7 th respondent as is evident from Ext.P2, the further appointments can also be considered for approval.
In the above view of the matter, there will be a direction to the 7th respondent to immediately appoint the petitioner against the vacancy which arose on 1.6.2017 in the Koorikuzhi school, at the earliest, at any rate, within three weeks from the date of receipt of a copy of this judgment. If the appointment is effected WP(C).No.35095 OF 2019(J) -: 7 :- and sent up for approval, the educational authorities shall consider the grant of approval for the said appointment within a period of one month thereafter. The question of payment of benefits to the petitioner and recovery thereof shall be considered by the educational authorities, in accordance with law.
This writ petition is ordered accordingly.
Sd/-
ANU SIVARAMAN JUDGE Jvt/7.12.2020 WP(C).No.35095 OF 2019(J) -: 8 :- APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF ORDER OF 5TH RESPONDENT AEO, VALAPPAD DATED 25.3.2019.
EXHIBIT P2 A TRUE COPY OF APPROVED COMBINED SENIORITY LIST OF THREE SCHOOS UNDER THE EDUCATIONAL AGENCY ISSUED BY THE DEO, TRICHUR DATED 18.12.2015.
EXHIBIT P3 A TRUE COPY OF PROCEEDINGS OF THE 7TH RESPONDENT MANAGER DATED 1.6.2019.
EXHIBIT P4 A TRUE COPY OF APPOINTMENT ORDER FORM 27 DATED 6.6.2019 ISSUED BY THE 7TH RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE MANAGER DATED 1.6.2019.
EXHIBIT P6 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC 15645/2019 DATED 7.6.2019.
EXHIBIT P7 A TRUE COPY OF ORDER OF THE SECOND RESPONDENT DATED 24.10.2019.
EXHIBIT P8 A TRUE COPY OF COMMUNICATION DATED 30/07/2019 ISSUED BY THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF 5TH RESPONDENT.
EXHIBIT P9 A TRUE COPY OF COMMUNICATION DATED 03/02/2020 ISSUED BY THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF 5TH RESPONDENT.
EXHIBIT P10 A TRUE COPY OF THE ORDER NO.C/14081/2019 DATED 6/11/2019 ISSUED BY THE 5TH RESPONDENT EXHIBIT P11 A TRUE COPY OF THE ORDER NO.C/14083/2019 DATED 6/11/2019 ISSUED BY THE 5TH RESPONDENT RESPONDENTS' EXHIBITS:
EXHIBIT R-7(a) : TRUE COPY OF THE ORDER No.B6/2733/20 DATED 09.06.2020 OF THE DDE, THRISSUR.
EXHIBIT R-7(b) : TRUE COPY OF THE STAFF FIXATION ORDER FOR 2019- 20 //TRUE COPY// P.A. TO JUDGE