IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 WP(C).No. 24548 of 2008(V) -------------------------------------- PETITIONER(S): ---------------------- MANAGER, V.BALASUBRAMANIAN, DEVIVILASAM, VOCATIONALHIGHER SECONDARY SCHOOL, VELIYAMBAM P.O., PULPPALLY, WAYANAD - 673 579. BY ADV. SMT.S.KARTHIKA SMT.K.P.GEETHA MANI MR.M.R.ANISON MR.P.S.ABHISHEK SMT.KAVYA P.PRASAD MR.M.S.UNNIKRISHNAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF EDUCATION, WAYANAD. 4. THE DISTRICT EDUCATIONAL OFFICER, KALPETTA. 5. BETTI JOHN, W/O.K.J. SUNNY, KOLANCHERY HOUSE, MULLENKOLLY P.O., WAYANAD - 673 579. 6. NISHA K.S., LANGUAGE TEACHER JUNIOR (HINDI), DEVIVILASAM VOCATIONAL HIGHER SECONDARY SCHOOL, VELIYAMBAM P.O. PULPPALLY, WAYANAD - 673 579. R1 TO R4 BY SR.GOVERNMENT PLEADER SMT.T.B. REMANI. R5 BY ADV. MR.R.SUDHISH, SMT.M.MANJU . THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/10/2009, ALONG WITH WPC NO. 7576 OF 2009, THE COURT ON 29/10/2009 DELIVERED THE FOLLOWING: rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.24548/2008-V & 7576/2009-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of October, 2009. JUDGMENT In these writ petitions the obligation of the manager to comply with Rule 51A of Chapter XIV-A K.E.R. to grant appointment arises for consideration. 2. W.P.(C) No.24548/2008 is filed by the manager challenging the orders passed by the statutory authorities and the Government directing him to appoint the 5th respondent as L.G. Teacher (Hindi) in preference to the 6th respondent, a fresh hand. Necessary facts for the disposal of the writ petitions are the following. The school in question is a Vocational Higher Secondary School having High School and U.P. Sections. The 6th respondent was appointed as a Junior Hindi Teacher in the U.P. Section with effect from 18.7.2005. The 5th respondent has got approved service as H.S.A. Hindi from 12.9.1990 to 27.3.1991. The claim raised by the 5th respondent was upheld by the District Educational Officer as per Ext.P1 order stating that in the light of the amendment to Rule 51A of Chapter XIV-A K.E.R. with effect from 17.6.2005, the 5th respondent is liable to be wpc 24548/08 & 7576/09 2 appointed. The said order was upheld by the Deputy Director of Education by Ext.P2 and ultimately by the Government in Ext.P4. 3. In W.P.(C) No.7576/2009, the petitioner who is the Rule 51-A claimant, seeks implementation of the orders of the statutory authorities and the Government by directing the manager to appoint her. 4. Learned counsel appearing for the manager mainly raised two contentions. It is submitted that the 5th respondent is having only service for a period of less than one academic year and therefore she is ineligible. The other important contention raised is that the amendment to Rule 51A came into force with effect from 25.6.2005 only. The 5th respondent has approved service as H.S.A. Hindi. The amendment is not having any retrospective effect. The amended provisions of Rule 51A being not retrospective, it is not applicable for filling up of the vacancy which arose on 1.6.2005. Therefore, as on the date of occurrence of vacancy, the 5th respondent was not entitled for appointment. 5. The issue, therefore, will have to be decided by ascertaining the date of occurrence of vacancy. Here, some more facts are also required to be stated. The school was having three posts, viz. two posts of H.S.A. Hindi and one post of UPSA Hindi during the year 1999-2000. During 2000-2001 one post of H.S.A. Hindi was reduced and in the second post of wpc 24548/08 & 7576/09 3 UPSA Hindi, Smt. P.K. Devaki, H.S.A. was granted protection. On 31.3.2002, the UPSA Hindi retired from service and the protected teacher Smt.P.K. Devaki was allowed to continue in the school against the UPSA post. Smt. Sukumari Amma, the senior H.S.A. Hindi retired from service on 31.3.2005. It is thereafter, Smt. Devaki was shifted to the high school consequent on the arising of the vacancy in the post of H.S.A. (Hindi). 6. Learned counsel appearing for the manager submitted that as Smt. Sukumari Amma retired from service on 31.3.2005, the vacancy in the post of H.S.A. has actually arisen o n 1.4.2005. Smt. Devaki was thus shifted to the said post with effect from 1.4.2005 which is evident from the staff fixation orders also. Therefore, consequent on the said shifting the vacancy in the post of L.G. Hindi Teacher which arose on 1.4.2005, has to be filled up from 1.6.2005. The amendment is effective only from 25.6.2005. Reliance is placed on the decision of this court in Chentrappinni Secondary School v. State of Kerala (2009 (2) KLT 636). 7. Learned counsel appearing for the 5th respondent who is the petitioner in W.P.(C) No.7576/2009, disputed the plea that the vacancy is one which arose prior to the date of effect of the amendment. Reliance is placed on Ext.P12 letter dated 16.2.2008 addressed to the 5th respondent (petitioner in W.P.(C) No.7576/09) given by the Public Information Officer wpc 24548/08 & 7576/09 4 of the Office of the District Educational Officer, Wayanad under the Right to Information Act. It is evident from the letter that Smt. Devaki was shifted pursuant to the staff fixation order which came into force on 15.7.2005, on the same day itself and the vacancy of UPSA arose only from that day. It is therefore submitted that the vacancy herein has arisen after the coming into force of the amendment and the 5th respondent is therefore eligible to be appointed. With regard to the contention that the 5th respondent is having service less than one academic year only, learned counsel submitted that in the light of the decision of this court in Abdurahiman N.K. v. Government of Kerala (2009 (2) KLT 105), she is entitled for appointment, as the amendment is only prospective. 8. Learned counsel appearing for the manager heavily relied upon the staff fixation orders for the years 2004-2005 and 2005-2006 produced as Exts.R5(a) and R5(c) in W.P.(C) No.7576/2009 to contend for the position that the vacancy had actually arisen on 1.4.2005. In Ext.R5(a), with regard to the shifting of Smt. P.K. Devaki, the endorsement is to the following effect: “Smt.P.K. Devaki, H.S.A. Hindi protected may be absorbed in the retirement vacancy of Smt.C. Sukumari Amma, H.S.A. (Hindi) with effect from 1.4.2005.” The staff fixation order is dated 31.10.2005 which is effective from 15.7.2005. Ext.R5(c) staff fixation order for the previous wpc 24548/08 & 7576/09 5 year is having the following endorsement: “Smt. P.K. Devaki H.S.A. (Hindi) protected is accommodated in the post of Jr. Hindi as per G.O.(P) 178/02 G Edn. Dated 28.6.2002 and she is to be absorbed in the retirement vacancy of Smt. C.Sukumari amma H.S.A. (Hindi) with effect from 1.4.2005.” The facts narrated above show that Smt.P.K.Devaki was found excess due to reduction of an H.S.A. post in the year 2000-2001 resulting in grant of protection to her. She was accommodated in the post of UPSA in a retirement vacancy which arose on 31.3.2002 and she was allowed to continue against the UPSA post. Therefore, when the vacancy of H.S.A. arose, she will have to be absorbed in the said post. Such absorption has been done in this case, going by the staff fixation order Ext.R5(a) which is effective from 15.7.2005. Even though the learned counsel for the manager disputed the same by relying upon the endorsement to the effect that she has to be absorbed with effect from 1.4.2005, the actual absorption can be effected by the manager only pursuant to the staff fixation order Ext.R5(a) which is effective from 15.7.2005. This aspect is clear from the counter affidavit filed by the second respondent in W.P.(C) No.7576/2009. In para 4 of the counter affidavit of the second respondent, it is stated that “Smt. Sukumari Amma, the senior H.S.A. Hindi retired on 31.3.2005 and thereafter Smt. Devaki was shifted to High School Section as per staff wpc 24548/08 & 7576/09 6 fixation order, in the year 2005-2006 which took effect from 15.7.2005. Thus, the post of UPSA (Hindi) became vacant with effect from 15.7.2005.” In the counter affidavit filed by the first respondent also, it is averred that “Smt. Devaki was shifted to High School section as per the staff fixation order in the year 2005-2006 which took effect from 15.7.2005.” Thus, the post of UPSA became vacant with effect from 15.7.2005. Merely because in Exts.R5(a) and R5(c) provision was there to accommodate Smt. Devaki in the retirement vacancy which would arise with effect from 1.4.2005, only when Ext.R5(a) order was implemented, the absorption was effected. Only when she is absorbed, a vacancy will arise in the post of L.G. Teacher (Hindi) in U.P. Section. 9. As Smt. Devaki was absorbed in the H.S.A. post only after Ext.R5 (a) was implemented on 15.7.2005, the consequent vacancy in the post of L.G. Teacher Hindi in U.P. Section arose on 15.7.2005. The manager has actually appointed the fresh hand only on 18.7.2005, and this aspect is also significant. He did not appoint the fresh hand on 1.6.2005. Therefore, the manager was also aware that only after the staff fixation order is issued and only after shifting Smt. Devaki alone, the vacancy will arise in the post of L.G. Teacher Hindi which was thus filled up by him on 18.7.2005. 10. As on 15.7.2005, the amendment to Rule 51A of Chapter XIV-A wpc 24548/08 & 7576/09 7 K.E.R. is effective as the amendments have come into force from 25.6.2005. Therefore, going by the amended provisions, Rule 51A claimant is entitled for appointment, as identity of post is not required after the amendment to enforce the rule 51A claim. 11. In Chentrappinni Secondary School’s case (2009 (2) KLT 636), this Court has held that the title to hold the office will arise on the date of occurrence of vacancy and not on the date when the appointment is made. By applying the said principle, it is clear herein that the vacancy which arose on 15.7.2005 can be filled up only by a Rule 51A claimant. 12. The Government, in the impugned order has found that the 5th respondent, Smt. Betty John had approved service and therefore is a Rule 51A claimant and as the school is a new one, a fresh hand cannot be appointed and the vacancy has to be filled up by protected teachers or Rule 51a claimant according to preference. 13. In the light of the above, the contention raised by the learned counsel for the manager that the vacancy has arisen as on 1.4.2005 and hence the 5th respondent has no claim, cannot be upheld. 14. The next contention raised is that the 5th respondent is having only five months approved service and therefore she is not entitled to enforce the claim. The said argument is covered against the manager in the light of the wpc 24548/08 & 7576/09 8 decision of a Division Bench of this Court in Abdurahiman’s case (2009 (2) KLT 105). Therein, it was held thus in para 14: “In the case of Educational Institutions, the minimum incumbency period was fixed as two months. That is because a valid appointment can be made only if the vacancy extends beyond that period. Now, it is provided that appointments can be made, if only the duration of the vacancy is one academic year and only such incumbents are to be given preference in future appointments. But, the said amendment can in no way affect the rights accrued to persons, on the strength of their appointment to short duration vacancies exceeding two months, made earlier to the amendment. The right of them to get re-appointment was always recognised by Rule 51A. But after 25.6.2005, one can be appointed if only the vacancy has a duration of one academic year. Therefore, naturally such persons alone can get the right to re-appointment also. So, the interpretation sought to be advanced by the respondents that the writ petitioner has no right for reappointment under Rule 51A, in view of the introduction of the first proviso to the said rule, cannot be accepted.” Therefore, the 5th respondent’s right to get reappointment is protected. 15. Learned counsel appearing for the Rule 51A claimant submitted that the direction in Ext.P7 Government Order to grant appointment to her only if there was no protected teacher totally undeployed or deployed in Government schools available for deployment at the time of her wpc 24548/08 & 7576/09 9 appointment, and if she is otherwise eligible, cannot be supported. Herein, Smt.Betty John being a Rule 51-A claimant, she is entitled for preference. Therefore, the said direction in Ext.P7 cannot be supported and the same is vacated. 16. Therefore, it is declared that the petitioner in W.P.(C) No.7576/2009 is liable to be appointed in the post of L.G. Hindi Teacher in implementation of the orders passed by the statutory authorities culminating in Ext.P7 therein. There will be a direction to the manager to appoint the petitioner in W.P.(C) No.7576/2009 and to submit the proposal for approval within one month from the date of receipt of a copy of this judgment. Further action for approval of the appointment will be taken by the District Educational Officer in accordance with law, and if the manager does not implement the orders by granting appointment, it will be open to the District Educational Officer to take appropriate action under the rules to see that the orders are implemented. In that view of the matter, W.P.(C) No.24548/2008 is dismissed and W.P.(C) No.7576/2009 is allowed. No costs. (T.R. Ramachandran Nair, Judge.) kav/