IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 OP.No. 25546 of 2002(N) ------------------------------------- PETITIONER(S): ----------------------- JAYA.P., W/O.RADHAKRISHNAN, PUTHAN PURAYIL HOUSE, P.O.VAIKKILASSERY, VADAKARA-4.(NOW WORKING AS U.P.S.A. KAMBIL MOPLA HIGH SCHOOL), KOLANCHERRY. BY ADV. SRI.V.RAJAGOPAL RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, EDUCATION DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KANNUR. 4. THE DISTRICT EDUCATIONAL OFFICER, KANNUR. 5. THE MANAGER, KAMBIL MOPLA HIGH SCHOOL, P.O.KOLANCHERRY. 6. P.K.ASOKAN, HIGH SCHOOL ASSISTANT (HINDI), KAMBIL MOPLA HIGH SCHOOL, KOLANCHERRY. R1 TO R4 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA R6 BY ADV. SRI.P.M.PAREETH THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.6393/2010 & CMP.NO.43316/2002 IN OP.NO.25546/2002 N DISMISSED 27/07/2010 SD/- C.T. RAVIKUMAR, JUDGE APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPOINTMENT ORDER DTD.31/08/94 OF THE PETITIONER. P2: COPY OF THE REAPPOINTMENT OF THE PETITIONER AS PROBATIONARY AND APPROVED W.E.F. 5/06/95. P3: COPY OF THE ORDER OF THE 4TH RESPONDENT REJECTING THE APPOINTMENT DTD. 18/11/98. P4: COPY OF THE APPEAL MEMO SUBMITTED BY THE 5TH RESPONDENT TO THE 2ND RESPONDENT. P5: COYP OF THE ORDER DTD. 5/3/99 OF THE 2ND RESPONDENT TO ADJUST THE SURPLUS IN KAMBIL MOPLA H.S. P6: COPY OF THE ORDER DTD. 27/10/99 OF THE 4TH RESPONDENT REJECTING THE PETITION FOR PETITIONER. P7: COPY OF THE PROTECTION ORDER OF THE PETITIONER UNDER RULE 43B KER ISSUED BY R3 DTD. 2/12/2000. P8: COPY OF THE ORDER OF THE 2ND RESPONDENT DTD. 4/05/2001 CONFIRMING EXT. P7 ORDER. P9: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE 1ST RESPONDENT DTD. 28/01/2002. P10: COPY OF THE 1ST RESPONDENT APPROVING THE APPOINTMENT OF 6TH RESPONDENT DTD. 12/08/2002. P11: COPY OF G.O.(P) 240/99/G.EDN. DTD. 29/09/1999. P12: COPY OF ORDER NO.R.DIS.B3/5254/09 DTD. 22/07/2009 OF THE DISTRICT EDUCATIONAL OFFICER, KANNUR. RESPONDENT'S EXHIBIT: R6(A): COPY OF THE ORDER NO.K.DIS.B3/10251/02 DTD. 11/11/02 ISSUED BY 4TH RESPONDENT. /TRUE COPY/ P.S.TO JUDGE KSS C.T.RAVIKUMAR, J. ---------------------------- O.P.No.25546 of 2002 ---------------------------- Dated 27th July, 2010 JUDGMENT The petitioner is working as an Upper Primary School Assistant in Kambil Mopla High School, Kolacherry. This original petition has been filed mainly challenging Ext.P10 order and with a prayer for a direction to the respondents not to approve the appointment of the 6th respondent and also to appoint the petitioner as Lower Primary School Assistant in Kambil Mopla High School for the year 1998-99 with all service benefits including her due promotion as H.S.A. (Hindi). The petitioner was appointed as U.P.S.A. in the school on 31.8.1994 as per Ext.P1. The said appointment was approved with effect from 11.10.1994. She was retrenched from service on 31.3.1995 for want of eight months continuous service and was later re-appointed as per Ext.P2. While continuing so, on 15.7.1997 she was again retrenched from service for want of vacancy and was later reappointed on 24.8.1998. But, that appointment was rejected by the 4th respondent as per Ext.P3 on the ground of absence of sanctioned post. The Manager has challenged Ext.P3 in appeal and Ext.P5 order was passed thereon by the 2nd respondent. However, despite being the senior most among the two surplus UPSAs it was not implemented by adjusting her O.P.No.25546/2002 2 against another school under the same management. On 1.6.1999 a post of HSA (Hindi) occurred in the Kambil Mopla High School and the 5th respondent Manager appointed the 6th respondent against the said vacancy. The petitioner took up the matter and ultimately culminated in Ext.P10 order whereby the appointment of the 6th respondent was found in order. In the meanwhile, the petitioner was re-appointed on 2.8.1999. According to the petitioner, in terms of Ext.P11 Government order dated 29.9.1999 she was given protection and the period during which she was out of service from 15.7.1997 to 1.8.1999 was regularised as eligible leave in terms of the said Government order. The sixth respondent in this original petition was initially appointed in the school as L.G. (Hindi) Teacher against a leave vacancy from 4.7.1994 to 30.3.1995. The said appointment was approved. Later, he was absorbed in a regular vacancy of L.G (Hindi) Teacher with effect from 14.11.1994. The said appointment was also approved. However, pursuant to the staff fixation order for the year 1995-96 he was retrenched from service. 2. The rival claim of the petitioner and the sixth respondent is against the vacancy of H.S.A. (Hindi) that occurred in the school on 1.6.1999. According to the petitioner, she is a claimant under Rule 43-B of Chapter XIV-A of the Kerala Education O.P.No.25546/2002 3 Rules and the 6th respondent is a claimant under Rule 51-A of Chapter XIV-A of the Kerala Education Rules. Since the date of occurrence of vacancy was 1.6.1999, the rule prevalent at that point of time postulates a preferential right to the Rule 43-B claimant over Rule 51-A claimant. It is based on the said contention that the petitioner raised his claim for promotion to the post of H.S.A. (Hindi) that occurred in the school on 1.6.1999. As regards the 6th respondent, as already noticed, pursuant to the 1995-96 staff fixation order, he was retrenched from service. Subsequently, Government have issued Ext.R6(a) order dated 11.11.2002. Even prior to the issuance of Ext.R6(a), the fifth respondent appointed the 6th respondent as H.S.A. (Hindi) against the vacancy that has arisen on 1.6.1999 with effect from 21.6.1999. In fact, it is the said appointment that is challenged by the petitioner. According to the 6th respondent, Ext.R6(a) is the crucial document. As per the same, Government have ordered that regular teachers appointed prior to 14.7.1996 who did not complete seven years of service on or before 15.7.1995 and who were not in service as on 14.7.1996 would be given protection. In this case, evidently, the 6th respondent was retrenched from service pursuant to the 1995-96 staff fixation order with effect from 15.7.1995 much before completion of seven years of O.P.No.25546/2002 4 service. It was in the said circumstances that the fourth respondent relying on G.O.(P)No.112/01/G.Edn. dated 26.3.2001 granted the benefit of protection in the category of L.G. (Hindi) Teacher. In the counter affidavit filed by the 6th respondent it is stated that in the light of the said Government order dated 26.3.2001 the break in his service from 16.7.1995 to 20.6.1999 has to be treated as period spent on eligible leave. In the light of Ext.R6(a), according to the 6th respondent, he is liable to be treated as in service as on 1.6.1999. In this context, it is apposite to note that according to the petitioner, she was also actually out of service on the relevant date like the 6th respondent. It was based on Ext.P7 Government order dated 2.12.2000 she was given protection and the period during which she was out of service was regularised. At the same time, according to the petitioner, in the light of Ext.P7 it should be deemed that she was re-appointed and continued in service as on 1.6.1999 and therefore entitled to get promotion against the post of H.S.A. (Hindi) that occurred in the school with effect from 1.6.1999 by virtue of Rule 43- B of Chapter XIV-A of the Kerala Education Rules. The question is whether the 6th respondent is entitled to get the benefit of Ext.R6(a) or whether he should be treated as a Rule 51-A claimant. No doubt, if the 6th respondent is treated as Rule 51-A claimant and the O.P.No.25546/2002 5 petitioner is treated as Rule 43-B claimant, necessarily the petitioner has to be given preference in the matter of promotion. When the petitioner's service was regularised based on Ext.P7 Government order dated 2.12.2000, can the petitioner contend that the 6th respondent shall not be given the benefit of Ext.R6(a) that was passed relying on another Government order, i.e. G.O.(P) No.112/01/G.Edn. dated 26.3.2001. In fact, both the said Government orders relied on respectively by the petitioner as also by the 6th respondent are on the same point, i.e. in the matter of protection and consequential regularisation of service. 3. Appointment of the 6th respondent as H.S.A. (Hindi) against the vacancy that occurred on 1.6.1999 was approved by the District Educational Officer. The objection of the petitioner was rejected as per Ext.P6 by the fourth respondent. Feeling aggrieved by Ext.P6, the petitioner has approached the third respondent, the Deputy Director of Education, Kannur. As per Ext.P7 order, the third respondent found that the petitioner is the rightful claimant for the post of H.S.A. (Hindi) that occurred on 1.6.1999 and Ext.P6 order of the District Educational Officer was reversed. The matter was taken up before the 2nd respondent. The 2nd respondent as per Ext.P8 order confirmed the order of the Deputy Director of Education. O.P.No.25546/2002 6 Against the said order of the second respondent the 6th respondent took up the matter in revision before the Government. As per Ext.P10, Government considered the rival claims of the petitioner and that of the 6th respondent and found that the 6th respondent is also entitled to raise his claim under Rule 43-B. In short, Government found that both the petitioner and the 6th respondent are claimants under Rule 43-B. Thereafter, the preference in the light of Rule 43-B was decided. It was found that being a lower grade language teacher the 6th respondent falls under category I in the matter of promotion to the post of H.S.A (Hindi), whereas the petitioner falls under category IV relying on the provisions under Rule 43-B. It was found that the 6th respondent is the rightful claimant and therefore the order of the District Educational Officer in approving the promotion of the 6th respondent as H.S.A (Hindi) against the vacancy that occurred on 1.6.1999 was in order. It is the said order that is under challenge in this original petition. 4. As already noticed, for claiming protection, both the petitioner and the 6th respondent relied on two Government orders. Now, going by the said Government orders, both are entitled to get protection and consequential regularisation of service during the period which they were respectively kept out of service. In that view O.P.No.25546/2002 7 of the matter, the question is who should be preferred in the matter of promotion to the post of H.S.A (Hindi) in the light of Rule 43-B. In this context, it is profitable to extract Rule 43.B of Chapter XIV-A of the Kerala Education Rules: “43.B.(1) Notwithstanding anything contained in rule 43, posts of full time High School Assistants in a particular Language shall be filled up by promotion in the following order of preference; (i) Lower Grade Language Teachers who have the prescribed qualifications in that Language for promotion to the post of High School Assistants in that language at the time of occurrence of the vacancy and who had given option in writing as per G.O.(Ms.)612/Edn. dated 10.11.1964 to continue as Lower Grade Language Teachers. (ii) Part time High School Assistant in that Language. (iii) Other Lower Grade language Teachers in that Language. (iv) Regular Primary teachers having the prescribed qualifications. (v) Craft and Specialist teachers having the prescribed qualifications. (vi) If no teacher with the prescribed qualifications is available in the categories mentioned above, Lower Grade Language Teachers in any other Language having the prescribed qualifications.” Evidently, going by Rule 43-B, in the matter of promotion to the post of H.S.A. in a particular language, the same shall be filled up by promotion in the order or preference given under Rule 43-B. A O.P.No.25546/2002 8 perusal of Rule 43-B would reveal that lower grade language teacher has to come under category I and regular primary teacher with prescribed qualification for promotion has to fall under category IV. In other words, in view of the fact that the appointment of the 6th respondent was as a lower grade language teacher and approved service of the 6th respondent was as lower grade language teacher and that of the petitioner was as U.P.S.A., the 6th respondent has to be given preference in the light of Rule 43-B. That exactly was the reason assigned by the Government while passing Ext.P10. In the light of the aforesaid position obtained in this case, I do not think that Ext.P10 order suffers from any illegality that requires any rectification under the judicial review. In short, Ext.P10 is not liable to be interfered with and consequentially this original petition is liable to fail and accordingly it is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS