IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 WP(C).No. 7831 of 2009(Y) ------------------------------------ PETITIONER(S): ----------------------- C.M. RAJAN, S/O.LATE C.M.CHANDAPPAN, AGED 69, MANAGER C.M.C.SCHOOL, ELATHUR, ELATHUR.PO, KOZHIKODE DISTRICT. BY ADV. MR.C.P.MOHAMMED NIAS RESPONDENT(S): ------------------------- 1. STATE OF KERALA,REP BY ITS SECRETARY TO GOVERNMENT, DEPT OF GENERAL EDUCATION,GOVT. SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE. 3. M. AMBUJAKSHI, MADATHIL HOUSE, ANNASSERY.PO, THALAKULATHUR, KOZHIKODE. R1 & R2 BY GOVERNMENT PLEADER MR.V.TEK CHAND R3 BY ADV. MR.P.R.SREEJITH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 7831/2009-Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 11/10/93 ISSUED BY THE 2ND RESPONDENT. EXT.P2: COPY OF THE PROCEDING DATED 09/01/94 OF THE DEPUTY DIRECTOR OF EDUCATION. EXT.P3: COPY OF THE JUDGMENT DATED 25/02/94 IN O.P. NO. 2744/94 OF THIS HONOURABLE COURT. EXT.P4: COPY OF THE ORDER NO.K.DIS.31261/94 EF/DPI DATED 21/10/94 OF THE DIRECTOR OF PUBLIC INSTRUCTIONS. EXT.P5: COPY OF THE G.O.(P)NO.187/05/G.EDN. DATED 17/06/2005. EXT.P6: COPY OF THE PROCEEDING DATED 19/03/2008 OF THE PETITIONER. EXT.P7: COPY OF THE DETAILED STATEMENT DATED 31/05/2008 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P8: COPY OF THE ORDER BERING NO.B4/1740/08 DATED 31/05/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P9: COPY OF THE JOINING REPORT DATED 02/06/2008 OF ABDUSALAAM K.K. EXT.P10: COPY OF THE G.O.(MS)NO.104/69/EDN. DATED 06/03/69 ISSUED BY THE 1ST RESPONDENT. EXT.P11: COPY OF THE REVISION PETITION DATED 11/06/2008 BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P12: COPY OF THE JUDGMENT DATED 21/07/2008 IN W.P.(C). NO. 19943/2008. EXT.P13: COPY OF THE G.O.(RT)NO.5398/2008 G.EDN. DATED 05/12/2008. EXT.P14: COPY OF THE LETTER DATED 12/02/2009, ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R3(a): COPY OF THE PETITION DATED 09/01/2009 BEFORE THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE UNDER RULE 7 OF CHAPTER III KER. EXT.R3(b): COPY OF THE JUDGMENT DATED 09/02/2009 IN WRIT PETITION (C). NO.4112/2009. //TRUE COPY// P.S. TO JUDGE Rs/ T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.7831/2009-Y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 1st day of June, 2009 J U D G M E N T The petitioner herein is the Manager of a school. He is aggrieved by Ext.P8 order passed by the District Educational Officer by which the claim under Rule 51A of Chapter XIV KER of the third respondent for appointment to the post of H.S.A Urdu was upheld. Thereafter, the Manager filed Ext.P11 revision petition before the Government under Rule 92 of Chapter XIV A of KER which stands rejected by Ext.P13 order passed by the Government. Ext.P14 is the consequential direction issued by the District Educational Officer to the petitioner directing him to appoint the third respondent within one week and submit proposal for approval. 2. Heard the learned counsel for the petitioner, the learned counsel for the third respondent and the learned Government Pleader for respondent Nos.1 and 2. 3. The vacancy arose consequent on retirement of one Ummer Khan on 31/03/2008 from the post of H.S.A.Urdu. The third respondent has approved service on different spells. The details of which are stated in Ext.P8 order itself. They are the following:- W.P.(C). No.7831/2009 -:2:- 03/06/81 to 31/08/81 03/06/82 to 27/08/82 01/09/82 to 30/03/83 15/06/83 to 01/03/84 15/07/86 to 31/03/87 4. Infact the Manager does not dispute that these appointments were approved. The main contentions raised by the learned counsel for the Manager are two fold. (i) Going by Exts.P1 and P4, the claim of the third respondent for appointment as Urdu teacher in the year 1993 was rejected and (ii) that the petitioner is not entitled for the benefit of the amendment of Rule 51A of Chapter XIV KER, as the claimant herein is not a protected teacher as specified in Ext.P10. 5. I will examine the contentions thus raised by the petitioner. The rejection of the claim of the third respondent for appointment on an earlier occasion by Exts.P1 to P4 is not fatal to the claim now raised by the third respondent since the vacancy to which she claimed appointment at that point of time was against a new post which arose during the year 1992-93. Her claim was rejected for the reason that even though she had different spells of service from 1982 to 1987, she acquired the relevant qualification only in April 1993 and not on the date of occurrence of the vacancy. At any W.P.(C). No.7831/2009 -:3:- rate those orders cannot be fatal as far as the petitioner is concerned against the claim for the present vacancy. 6. In Ext.P8, the District Educational Officer has taken the view, after hearing both the parties, that the contention raised by the Manager that the petitioner has no claim for appointment of H.S.A Urdu is not correct in view of the admitted position that she has approved service during different spells which will satisfy the provisions of Chapter XIV A of KER as per the amendment thereon. The Manager contended for the position that her claim can only be for the appointment of Junior Urdu teacher. This was repelled by the District Educational Officer by stating that going by the amendment to Rule 51A of Chapter XIV KER, a teacher having claim for preference under Rule 51A is entitled for re-appointment in the vacancy in the same cadre or even in a higher post. Infact the same is the effect of the amendment. It is clearly stated in Rule 51A:- “Rule 51 A: Qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies [in the same or higher or lower category of teaching posts, for which he is qualified that may arise.] in schools under the same Educational Agency (or an W.P.(C). No.7831/2009 -:4:- Educational Agency to which the school may be subsequently transferred) provided they have not been appointed in permanent vacancies in schools under any other Educational Agency. 7. Note 1A only provides that fresh appointments to vacancies arising in the same or higher or lower category of teaching posts under the Educational Agency shall be made only after providing re-appointment to such teachers thrown out from service and protected teachers available under the Educational Agency. In the revision petition, Ext.P11, the petitioner mainly contended that the claim of the third respondent can only be to the post of junior Urdu teacher. By relying upon G.O.(M.S). No.104/69/Edn. dated 06/03/1969, it was also contended that a protected teacher is a teacher who rendered continuous service for a period not less than two years in a regular vacancy, on regular appointment. The order passed by the District Educational Officer was upheld by Ext.P13 and it was held that the third respondent is eligible for the post of H.S.A Urdu. 8. The learned counsel for the petitioner invited my attention to Note 1A as well as the order issued by the Government way back in 1969 granting the right for protected teachers for absorption. The explanation to Rule 51A of Chapter XIVA KER defines a protected teacher as “a teacher W.P.(C). No.7831/2009 -:5:- who has been retrenched for want of vacancy after putting such length of regular service that may be specified by the Government or who is eligible for such protection as per G.O.(MS) No.104/69/Edn. Dated 06/03/1969 or G.O.(MS) No.231/84/G.Edn. Dated 27/10/1984 or any other orders issued by Government from time to time”. The argument raised herein is that since the third respondent is not a protected teacher as defined under the explanation she cannot press the claim under Rule 51A and note 1A of Chapter XIV A K.E.R. As noticed already, note 1A is only to the effect that fresh hands can only be appointed after providing re-appointment to teachers thrown out from service and protected teachers available under the Educational Agency. Infact the right that is granted under Rule 51A entitles the third respondent to claim appointment in future vacancies that may arise in the same or higher or lower category of teaching posts, for which she is qualified. Therefore, the third respondent need not be a protected teacher who was thrown out from service for want of vacancies. A person having claim under Rule 51A is one who is relieved as per Rule 49 or 52 or on account of termination of vacancies. Therefore, these two concepts are totally different. Therefore, the argument raised by the petitioner that the third respondent has no claim to enforce statutory right under Rule 51A cannot be sustained. The Government order namely, Ext.P10 grants W.P.(C). No.7831/2009 -:6:- protection to qualified aided school teachers and their claim cannot militate against the claim as of another teacher under Rule 51A. Herein the Manager has not appointed any protected teacher also in the vacancy that has arisen but has chosen to appoint a fresh hand. There is no case that a protected teacher is available and is waiting for absorption. In that view of the matter Exts.P8, P13 and P14 which directs the appointment of the third respondent in the post of H.S.A. Urdu are upheld. 9. In the light of Ext.P14, the Manager will take steps forthwith to appoint the third respondent and produce the order before the District Educational Officer for approval. On the production of the same, the District Educational Officer will pass appropriate orders regarding the approval of appointment of the third respondent. The writ petition is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) ms