IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 WA.No. 140 of 2007() -------------------- AGAINST THE JUDGEMENT IN WPC.18558/2006 Dated 04/12/2006 .................... APPELLANT: PETITIONER: ------------------------- JAYASREE T. (FORMER HSST OF ZHS SCHOOL, TALI), "SREYAS", MANKAVU PALACE, MANKAVU P.O., CALICUT. BY ADV. SRI.N.JAMES KOSHY SRI.T.SANJAY RESPONDENT(S): RESPONDENTS: --------------------------- 1. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS,SANTHI NAGAR, THIRUVANANTHAPURAM-1. 2. THE EDUCATIONAL AGENCY (MANAGER), ZAMORIN'S HIGHER SECONDARY SCHOOL, TALI,KOZHIKODE. 3. P.C. RANJITH RAJA, PUTHENMALIKA, MANKAVE P.O., KOZHIKODE. BY GOVT. PLEADER SRI.BENNY GERVASIS FOR R1 SRI.M.C.SEN, SENIOR ADVOCATE FOR R2 ADV. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE APPEARING ALONG WITH SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH FOR R3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON 08/04/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.A. NO. 140 OF 2007-D ----------------------------------------- Dated 8th April, 2009. JUDGMENT Balakrishnan Nair, J. The writ petitioner is the appellant. The respondents were the respondents in the Writ Petition. The point that arises for decision in this appeal is whether a Higher Secondary School Teacher (for short “H.S.S.T.”) relieved on termination of vacancy is entitled to get re-appointment, when a vacancy arises in that cadre in future. 2. The brief facts of the case are the following: The appellant is a post-graduate in Sociology with 50% marks. She has acquired B.Ed. degree also. She is duly qualified for appointment as H.S.S.T in Sociology. By Ext.P3 order, she was appointed in a leave vacancy in the 2nd respondent's School, for the period from 25.10.2000 to 31.3.2001 (5 months). She was selected by a duly constituted selection committee and her appointment as H.S.S.T (Part-time – now called Junior) by the Manager of Zamorin's Higher Secondary School, Kozhikode was approved, in the WA NO. 140/2007 2 time scale of pay of Rs.5500 – 9075, by the Director of Higher Secondary Education. On termination of that vacancy, she was retrenched. She was again appointed as H.S.S.T (Junior) in Sociology from 1.7.2003 to 31.1.2004 (7 months). The said appointment was also approved by the Director of Higher Secondary Education. While so, a vacancy arose in the School in the post of H.S.S.T (Sociology) from 16.1.2006, as a result of relief of Sri.R. Shylendra Varma, to join as Lecturer in Zamorin's Guruvayurappan College. On coming to know of the vacancy, which arose on 16.1.2006, the appellant submitted Ext.P7 representation dated 18.1.2006, claiming that vacancy. She based her claim for re-appointment on Ext.P6 circular issued by the Director of Higher Secondary Education. The said circular, among other things, provides that when proposals by Managers for approval of appointments are forwarded to the Director of Higher Secondary Education, certain documents should accompany such proposals. The same includes a declaration by the Manager that there is no claimant under Rule 51A of Chapter XIV A of the Kerala Education Rules (for short “the K.E.R.”) awaiting for re-appointment. Notwithstanding the appellant's representation, the Manager did not appoint her, instead, the appointment was delayed till the 3rd respondent acquired the qualification of State Eligibility Test (for short “S.E.T.”). The said respondent cleared the WA NO. 140/2007 3 test on 7.6.2006. The 3rd respondent was a High School Assistant (for short “H.S.A.”) working in the High School wing of the Higher Secondary School. He was not having the S.E.T qualification and therefore, ineligible for appointment as H.S.S.T on the date of occurrence of the vacancy. So, the re-appointment of the appellant was delayed till he acquired the S.E.T qualification and finally, the 3rd respondent was appointed. Aggrieved by the denial of appointment to her, the appellant filed the Writ Petition, seeking appropriate directions to the management to appoint her as H.S.S.T (Sociology). She claimed employment, relying on Rule 51A of Chapter XIV A of the K.E.R. It is a rule providing for preference to retrenched hands in appointments to the vacancies arising in future. 3. The 2nd respondent Management filed a counter affidavit, stating that Rule 51A of Chapter XIV A of the K.E.R has no application to Higher Secondary School Teachers, the appointments of whom are governed by the provisions of Chapter XXXII of the K.E.R., framed under the Kerala Education Act, 1958. There is no provision similar to Rule 51A of Chapter XIV A in Chapter XXXII. It was also submitted that 25% of the vacancies of H.S.S.T has to be reserved to be filled up from the teachers of the High School Wing. The 3rd respondent was appointed in that quota. Such transferee appointees have a superior claim when compared to a retrenched WA NO. 140/2007 4 hand. The 3rd respondent also filed a counter affidavit, raising similar contentions. According to him, Chapter XXXII is a complete code concerning appointment of teaching and non-teaching staff in aided Higher Secondary Schools, which includes retrenchment and re-appointment also. 4. The learned Single Judge, after hearing both sides, dismissed the Writ Petition. Hence this Appeal. The learned counsel for the appellant Mr.N.James Koshy submitted that in view of Ext.P6 circular, the provisions of Rule 51A are applicable to Higher Secondary Section also. When the vacancy arose, the 3rd respondent was not qualified for appointment. He took the S.E.T examination subsequently and its results were declared only in June, 2006, it is submitted. The vacancy which arose being a permanent vacancy available with effect from 16.1.2006, the Manager was bound to fill up the same in the interest of the students. The Manager cannot take his own time for filling up the vacancy in a teaching post in the School. Even if he takes his own time, while deciding on the rival claims, he has to go by the conditions obtained on the date of occurrence of the vacancy. When the vacancy arose on 16.1.2006, there was no qualified hand in the 25% quota reserved for teachers of the High School. So, the Manager, normally, should have made appointment from the open market. When the appellant, who had two spells of approved service to her credit, is available, the WA NO. 140/2007 5 Manager cannot appoint a fresh hand from the open market. The appellant should have been preferred. Therefore, the learned Single Judge ought to have allowed the Writ Petition, it is submitted. 5. Mr. M.C.Sen, learned senior counsel for the 2nd respondent Management, submitted that the claim of the appellant is unsustainable, as Rule 51A has no application to the provisions contained in Chapter XXXII of the K.E.R. Ext.P6 circular is issued without any authority by the Director of Higher Secondary Education. The management was bound to fill up 25% of the vacancies in the Higher Secondary Wing from the qualified teachers in the High School. In discharge of that obligation, the 3rd respondent was appointed, it is submitted. It is also pointed out that the appellant was over-aged on 16.1.2006. Further, appointment can be made to the vacancy, if only the relief of Sri.R.Shylendra Varma on 16.1.2006 is approved by the Director. Even now, the said authority has not approved his relief. The learned senior counsel Mr.O.V.Radhakrishnan, appearing for the 3rd respondent also endorsed the aforementioned contentions of the management. The learned senior counsel further added that Chapter XXXII of the K.E.R being a self contained code, in the absence of any provision for re-appointment, the appellant cannot stake any claim. If she does not have any claim, it does not matter when the 3rd respondent became qualified and WA NO. 140/2007 6 appointed. The learned senior counsel also relied on the decisions of the Division Bench of this Court in Krishnankutty & Ors. v. State of Kerala [1998(2) K.L.J. 301] and Pathanapuram Taluk Samajam Corporate Management Schools v. Sreelatha [2006(3) K.L.T. 867]. The learned senior counsel also submitted that the court cannot supply words to cure any omission in the statute and in support of that submission, relied on the decision of the Apex Court in J.Srinivasa Rao v.Govt. of A.P. [(2006)12 SCC 607]. 6. We considered the rival submissions made at the Bar and went through the materials and pleadings on record. The Kerala Education Rules, other than Chapter XXXII of it were prescribed to govern aided schools (Primary Schools and High Schools) in the State. Chapter XIV A of the K.E.R deals with the service conditions of teachers of aided schools. It deals with appointment, approval of appointment, retrenchment, re- appointment, promotion, disciplinary action etc. As part of implementation of the national education policy, Plus Two Courses were introduced in the High Schools in Kerala and simultaneously, it was decided to abolish the Pre-degree course in the colleges. Steps in this direction were taken by the Government from 1991. The various aspects governing Higher Secondary WA NO. 140/2007 7 Education were covered by executive orders issued by the Government from time to time. The qualifications and method of appointment to various posts in the Higher Secondary Wing were prescribed by the Government by executive orders and later by rules, invoking its rule making power under Section 36 of the Kerala Education Act. Chapter XXXII containing those rules was added to the K.E.R., as per G.O.(P) No.331/2001/G.Edn. dated 9.11.2001, published in the gazette dated 12.11.2001. It is not in dispute that the appellant alone was having the requisite qualification for appointment as H.S.S.T (Sociology) on the date of occurrence of the vacancy. The method of appointment is by transfer from H.S.As and in their absence, from L.P.S.As./U.P.S.As. The second method is by direct recruitment. There is a ratio of 25% : 75% between the above two methods. It is not in dispute that there is a vacancy available for appointment by transfer, as per the ratio. But,when the vacancy arose on 16.1.2006, there was no qualified hand available in the High School for appointment by transfer. It is not in dispute that the 3rd respondent became eligible for transfer only after 7.6.2006, the date on which the results of the S.E.T examination taken by him were declared. Since the vacancy was a resignation vacancy without any time limit, the management should have filled up that vacancy which arose on 16.1.2006, to safeguard the interest of WA NO. 140/2007 8 the students, from the open market, in the absence of any qualified hand in the feeder category. The Manager cannot wait till the teacher of his choice gets qualified (see the decision in Neema Rajan v. Jyothi Chandran [2001 (3) KLT SN 25 (case No.35)]. At the relevant time, the 3rd respondent was only a candidate, who intended to take the S.E.T examination or has actually taken the S.E.T examination. Promotion can be granted only to a candidate who has already cleared the S.E.T. The claimant under the 25% quota for transfer need be considered, if only he is qualified at the time of occurrence of the vacancy. If the appointment is made from the open market, the appellant was entitled to get preference, as a person who has served under the management for some time. It is not in dispute that if Rule 51A of Chapter XIV A is applicable to Higher Secondary Schools, in view of the recent decisions this Court,the amendment introduced to the said Rule with effect from 25.6.2005 will not affect the claims acquired under the unamended Rule before the said date. We agree that Rule 51A is not made expressly applicable to the Higher Secondary Wing, though by an executive order, Rule 51B governing appointment under the dying-in-harness scheme appears to have been made applicable. The appellant is a candidate selected by a duly constituted selection committee and she has two spells of approved service to her credit also. Therefore, even in the absence of any WA NO. 140/2007 9 express provision in the rules, such a candidate is entitled to get preference, before a candidate from the open market without any prior service under the management is considered for appointment. If the vacancy in which the appellant was appointed continued as a result of taking leave by other teachers till the resignation vacancy arose on 16.1.2006, she would have continued in service. Only because of the termination of the vacancy in which she was working, the appellant was retrenched. It is a well recognized principle in service jurisprudence that if a person is thrown out from a post, owing to termination of vacancy, as soon as the vacancy arises, the said incumbent is entitled to be re-appointed. If it is conceded that the Manager can go for a fresh candidate from the open market, a teacher who has been relieved on termination of the vacancy, even after serving 5 or 10 years, will not get protection. The Manager can ignore such a teacher's claim and go for a fresh hand from the open market. We think, the absence of an express provision in Chapter XXXII concerning re-appointment will bring forth such disastrous consequences. The general principle of service jurisprudence will mandate that the Manager should appoint a person with previous service in preference to a fresh hand from the open market. Further, the Manager, who is a statutory functionary, has a duty to act fairly and not to act capriciously. So, he has a duty to re-appoint the retrenched WA NO. 140/2007 10 teacher, in lieu of a new hand, if a vacancy arises. Therefore, we declare that the management was bound to appoint the appellant in the vacancy that arose on 16.1.2006. Accordingly, we hold that the subsequent appointment of the 3rd respondent in the said vacancy is illegal and unsustainable. The absence of an express provision in Chapter XXXII cannot be a ground to deny all service benefits to the employees of the Higher Secondary Wing. Even in the absence of any provision in Chapter XXXII, the staff of the Higher Secondary Wing are getting pay revision benefits, pensionary benefits etc. Disciplinary action can also be taken against them, even though there is no express provision regarding the same in Chapter XXXII. So, the absence of a provision in Chapter XXXII cannot be treated as the end of the world, as far as a teacher working in the Higher Secondary School is concerned. The decision in Krishnankutty v. State of Kerala (supra), relied on by the 3rd respondent, has no application to the facts of this case. The decision in Pathanapuram Taluk Samajam Corporate Management Schools v. Sreelatha (supra) deals with the claim for appointment in the Higher Secondary Wing, of an incumbent who has got a claim for appointment under Rule 51B of Chapter XIV A of the K.E.R. (compassionate appointment under the dying-in-harness scheme) in the WA NO. 140/2007 11 High School Wing. The said decision has also no application to the facts of this case. In J.Srinivasa Rao v. Govt. of A.P. (supra), the Apex Court held as follows: “It is well settled that construing a taxing statute, the court shall make an endeavour to give effect to the golden rule of interpretation i.e, principle of literal interpretation and would not supply casus omissus.” The said decision cited by the 3rd respondent also does not have any application to the facts of this case. The feeble contention of the respondents that on 16.1.2006, the appellant was over-aged, is untenable. The age limit applies only to initial appointment. It is settled by several decisions of this Court that age limit is not applicable to re-appointment. Even if there is delay in approving the relief of Sri.R.Shylendra Varma by the Director, once it is approved, it will take effect from 16.1.2006. In fact, the said person is working in Sree Guruvayurappan College since 16.1.2006. So, the contention of the respondents in this regard is also untenable. 7. Therefore, we direct the 2nd respondent to appoint the appellant as Higher Secondary School Teacher (Sociology) in the vacancy of Mr.R.Shylendra Varma with effect from 16.1.2006 and the 1st respondent to approve the said appointment notionally with effect from that date . The WA NO. 140/2007 12 salary benefits need be given to her, only with effect from today. The approval of appointment of the 3rd respondent will not confer any right on him,as it was made, subject to the result of the Writ Appeal. But, he is entitled to draw the salary up to this date. The Writ Appeal is allowed as above. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/