IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 WP(C).No. 37178 of 2009(N) ------------------------------------- PETITIONER: -------------------- MARCIA COLLIN NORONHA, H.S.A.ENGLISH, CCPLM ANGLO INDIAN HIGH SCHOOL, PERUMANOOR, ERNAKULAM. BY ADV. SRI.P.C.SASIDHARAN RESPONDENTS: -------------------------- 1. THE DEPUTY DIRECTOR OF EDUCATION, D.D.E'S OFFICE, KAKKANAD, ERNAKULAM. 2. THE DISTRICT EDUCATIONAL OFFICER, D.E.O'S OFFICE, ERNAKULAM. 3. THE MANAGER, CCPLM ANGLO INDIAN SCHOOLS, PERUMANNOOR, ERNAKULAM, KOCHI-15. 4. SMT.MARY BRINCEL HURTIS, H.S.A., CCPLM ANGLO INDIAN SCHOOLS, PERUMANNOOR, ERNAKULAM, KOCHI-15. ADV. SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) FOR R4 SRI.K.P.CHANDRASEKHAR FOR R4 SRI.G.SUKUMARA MENON FOR R3 SRI. T. T.MUHAMOOD, GOVERNMENT PLEADER FOR R1,R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37178 of 2009(N) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF GOVERNMENT ORDER DATED 23/12/2008. EXHIBIT P2: TRUE COPY OF THE PROCEEDINGS OF THE D.E.O DATED 17/8/2006. EXHIBIT P3: TRUE COPY OF THE REPRESENTATION DATED 19/6/2008 TO THE MANAGER. EXHIBIT P4: TRUE COPY OF THE REPRESENTATION DATED 18/6/2008 TO THE D.E.O. RESPONDENTS' EXHIBITS: EXHIBIT R4(a): TRUE COPY OF THE B.ED DEGREE CERTIFICATE OF THE PETITIONER. EXHIBIT R4(b): TRUE COPY OF THE APPOINTMENT ORDER OF THE 4TH RESPONDENT DATED 2/6/2008. EXHIBIT R4(c): TRUE COPY OF LETTER DATED 9/6/2008 OF THE MANAGER TO THE 2ND RSPONDENT. EXHIBIT R4(d): TRUE COPY OF THE REJECTION ORDER DATED 26/10/2009 OF THE D.E.O. EXHIBIT R4(e): TRUE COPY OF THE APPROVED APPOINTMENT ORDER OF THE PROMOTEE DATED 1/04/2008. EXHIBIT R4(f): TRUE COPY OF THE JOINING REPORT DATED 2/6/2008 OF THE 4TH RESPONDENT. /TRUE COPY/ P.A.TO JUDGE scm K.T. SANKARAN, J. --------------------------- W.P(C). No. 37178 of 2009 ------------------------------------ Dated this the 30th day of July, 2010 J U D G M E N T The petitioner was appointed as H.S.A. (English) in CCPLM Anglo Indian High School, Perumannoor, of which the 3rd respondent is the Manger, in a leave vacancy for the period from 17/8/2006 to 31/7/2010. The Educational Authorities did not approve the appointment of the petitioner in the leave vacancy pointing out various grounds. One of the grounds was that the 3rd respondent-school being a newly opened school, without appointing a protected teacher, the petitioner should not have been appointed in the leave vacancy. Another reason stated was the following: The leave vacancy arose on granting leave without allowance for a period of five years from 1/8/2005 to Carol Subrena Beveria and in that vacancy Beena A. was appointed as H.S.A. (English). Later, Beena A. was permanently appointed as H.S.A. (English) against a regular vacancy which arose with effect from 17/8/2006. The appointment of Beena in the leave vacancy was not approved and, therefore, the appointment of the W.P(C). No. 37178/2009 2 petitioner also could not be approved. When the matter reached before the Government, Exhibit P1 order was passed on 23/12/2008 granting approval to the appointment of the petitioner as H.S.A. (English) for the period from 17/8/2006 to 31/7/2010. 2. While the petitioner was continuing as H.S.A. (English) in the leave vacancy, a regular vacancy of H.S.A (English) arose in the school on 1/6/2008 on the promotion of Ivy Louis as Headmistress of the school. In that vacancy, the Manager appointed Smt. Mary Brincel Hurtis, the 4th respondent. However, the appointment of Smt. Mary Brincel Hurtis was not approved by the District Educational Officer and the proposal for approval was rejected by the D.E.O as per Exhibit R4(d) order dated 26/10/2009. The Manager has filed an appeal to the Deputy Director of Education challenging the order dated 26/10/2009 passed by the District Educational Officer and that appeal is pending. 3. In this Writ Petition, the reliefs prayed for by the W.P(C). No. 37178/2009 3 petitioner are the following: (i) to issue a writ of mandamus, order or direction commanding and compelling the respondents to consider the objection preferred by the petitioner in relation to the appointment of the 4th respondent overlooking to the post of H.S.A. (English) the claim of the petitioner and not to grant approval of appointment of the 4th respondent without considering the claim of the petitioner; (ii) to declare that the petitioner being a Rule 51A claimant is entitled for appointment to the permanent vacancy caused consequent to the promotion of Ivy Louis as Headmistress with effect from 1/6/2008 and direct the respondents to shift the petitioner to that vacancy and grant approval of such appointment; (iii) to issue such other writ, order or direction as this Honourable Court may deem fit and proper in the circumstances of this case. 4. Sri. P.C. Sasidharan, the learned counsel appearing for the petitioner, submitted that the petitioner being a claimant under Rule 51A of Chapter XIV-A of the Kerala Education Rules, she should have been appointed in preference to the 4th respondent, who could be promoted only under Rule 43 of W.P(C). No. 37178/2009 4 Chapter XIV-A of the Kerala Education Rules. Rule 43 of Chapter XIV-A being subject to Rule 51A, the petitioner has got preferential right of appointment over the 4th respondent. Sri. P.C. Sasidharan also submitted that to attract Rule 51A, it is not necessary that the teacher, who claims the benefit of preferential appointment, should have been thrown out from the service on retrenchment. As the petitioner was continuing in the leave vacancy, she could be shifted to the vacancy which arose during the currency of the period of leave vacancy in which the petitioner was working. It is submitted that the Manager was not justified at all in appointing the 4th respondent ignoring the preferential claim of the petitioner. The counsel also pointed out that the Government had issued G.O.(M.S) No.275/99/G.Edn. dated 9/11/1999 making the position clear that the services of leave substitutes will be regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority. The counsel pointed out that this Government Order was referred to by the Division Bench of this Court in Geetha W.P(C). No. 37178/2009 5 Vs. Geo Thomas [2009(4) K.L.T. 514] and held that the Manger cannot deny promotion or re-appointment on the ground that original appointment of the claimant was not yet approved. In Geetha Vs. Geo Thomas, it was held thus: In the light of the above provisions, the Manager could have made the appointments/retrenchments only in accordance with R.51 of Chapter XIV-A of the K.E.R. quoted above and Ext.R6(a) order mentioned above. The Manager could not take shelter behind the plea that when the regular vacancy arose, the appointment of the appellant in the maternity leave vacancy was not approved. The Manager knew that the appointment was in a maternity leave vacancy which arose in a post sanctioned as per the Staff Fixation Order of that year, that the appellant was qualified for appointment as U.P.S.A. also and therefore, even if there is delay, the appellant's appointment was going to be approved. Therefore, when the regular vacancy arose, the appellant should have been accommodated in that vacancy and a fresh hand could have been appointed only in the remaining portion of the maternity leave vacancy, in which the appellant was working. As a matter of fact, as the remaining period of the said leave vacancy does not have a duration of two months, the first respondent could not have been appointed at all, as U.P.S.A, in view of R.7A (3) of Chapter XIV-A of the K.E.R., which says that, the vacancies which have duration of two months or less period shall not be filled up by W.P(C). No. 37178/2009 6 any appointment. The said two months period has since been amended with effect from 16/4/2005, but, when the appointment of the first respondent was made, the unamended rule was remaining in force. The legal position that the Manager cannot deny promotion or re- appointment for the reason that original appointment was not yet approved, is covered by the Division Bench decision of this Court in Joshi Vs. Krishna P. Rajan [2007(2) K.L.T. SN 63 (C.No.85)]. 5. In Joshi. Vs. Krishna P. Rajan [2007(2) K.L.T. SN 63(C.No.85)], another Division Bench of this Court held that the Manager cannot deny promotion or re-appointment on the mere ground that approval order of original appointment was not passed by the Educational authority. 6. Sri. P. Santhosh Kumar, the learned counsel appearing for the 4th respondent and Sri. G. Sukumara Menon, the learned counsel appearing for the Manager submitted that the petitioner cannot be considered as a claimant under Rule 51A of Chapter XIV-A of K.E.R. It is submitted that the opening words of Rule 51A make the position clear that in order to claim the benefit of preferential appointment, the claimant should be a W.P(C). No. 37178/2009 7 person who was relieved either as per Rule 49 or Rule 52 of Chapter XIV-A or on account of termination of vacancy. In the case on hand, the petitioner was continuing in service on the date of occurrence of the regular vacancy and she was not retrenched or her services were not terminated, in order to attract Rule 51A. It is also submitted that even assuming that the Manager could not appoint a total stranger in such circumstances, there was no bar in appointing a Rule 43 claimant when a regular vacancy arose, so long as there was no other preferential claimant. The petitioner’s right to make any preferential claim had not ripened into a full right at the relevant time and, therefore, there was nothing wrong on the part of the Manager in appointing the 4th respondent. 7. Sri. P.C. Sasidharan replied stating that the contention put forward by Sri. P. Santhosh Kumar and Shri. Sukumara Menon is unsustainable in the light of the dictum laid down by the Division Bench of this Court in Geetha Vs. Geo Thomas [2009 (4) K.L.T. 514]. W.P(C). No. 37178/2009 8 8. Since the question of approval of appointment of the 4th respondent is pending consideration before the Deputy Director of Education and since the claim put forward by the petitioner was not considered by any of the Educational Authorities, I think it would be only proper if the matter is considered by the educational authority. The learned counsel appearing for all the parties submitted that it would be ideal if the matter is considered by the Director of Public Instructions. They submitted that adopting such a course would shorten the litigation. The learned Government Pleader submitted that the matter is now pending before the Deputy Director and if the Court so directs, there is no difficulty and legal impediment for the Director of Public Instructions to hear the case. Accordingly, the Writ Petition is disposed of as follows: The question whether the petitioner should have been appointed by the Manager in the vacancy of H.S.A.(English) which arose in the school on 1/6/2008 or whether the appointment of the 4th respondent in W.P(C). No. 37178/2009 9 that vacancy should be approved, whether the petitioner has got preferential right under Rule 51A of Chapter XIV-A of K.E.R in the facts and circumstances, whether the 4th respondent would get a right to be appointed under Rule 43 in preference to the petitioner and all other relevant aspects of the case shall be considered by the Director of Public Instructions, taking into account all the relevant facts and after affording an opportunity of being heard to the petitioner, the Manager and the 4th respondent and also any other affected party. The petitioner shall produce a copy of the Writ Petition, a Copy of the Counter affidavit and certified copy of the judgment before the Director of Public instructions. The Director of Public Instructions shall dispose of the matter within a period of two months from the date of receipt of a copy of the judgment. The learned counsel appearing for the Manager submitted W.P(C). No. 37178/2009 10 that there are vacancies in the school and the petitioner most probably need not have to go out and she would be adequately accommodated, if otherwise it does not become impossible. This submission is recorded. K.T. SANKARAN, JUDGE scm