IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 WP(C).No. 12954 of 2008(P) -------------------------------------- PETITIONER(S): --------------------- THE MANAGER, KEEZHAL U.P.SCHOOL, C.PARMAVATHI AMMA, AGED 73 YEARS,W/O.NARAYANA KURUP(LATE),MANAGER, KEEZHAL U.P.SCHOOL, P.O.KEEZHAL, VADAKARA, KOZHIKODE DISTRICT,PERMANENTLY RESIDING AT SAGAR JYOTHI, P.O.KARUVAMPURAM, MANJERI, MALAPPURAM DISTRICT. BY ADV. MR.P.T.DINESH SMR.REKHA VASUDEVAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 4. THE DISTRICT EDUCATIONAL OFFICER, VADAKARA, KOZHIKODE DISTRICT. 5. THE ASSISTANT EDUCATIONAL OFFICER, THODANNUR, VADAKARA, KOZHIKODE DISTRICT. 6. A.SANTHA, W/O.JAYACHANDRAN, AROTH HOUSE, KEEZHAL P.O.,VIA VADAKARA, KOZHIKODE DISTRICT. R1 TO R5 BY GOVERNMENT PLEADER MR.K. RAMESH R6 BY ADV. SMT.P.V.ASHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/07/2009, ALONG WITH WPC NO.8535 OF 2009, THE COURT ON 10/07/2009 DELIVERED THE FOLLOWING: WP(C) NO. 12954/2008-P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPOINTMENT ORDER DATED 05/06/2002 ISSUED BY THE PETITIONER TO RAMESHAN P. AS PART TIME HINDI TEACHER. EXT.P2: COPY OF THE ORDER NO.K.DIS.2735/2002 DATED 10/07/2002 BY THE 5TH RESPONDENT. EXT.P3: COPY OF THE APPEAL DATED 07/08/2002 BY THE PETITIONER TO THE 4TH RESPONDENT. EXT.P4: COPY OF THE ORDER NO.B.3227/2002 DATED 14/01/2003 BY THE 5TH RESPONDENT. EXT.P4(a): COPY OF THE NO.B.2754/02 DATED 04/07/2002 BY THE 5TH RESPONDENT. EXT.P5: COPY OF THE APPEAL DATED 28/01/2003 FILED BEFORE THE 5TH RESPONDENT BY THE PETITIONER. EXT.P6: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN O.P. NO. 5091/2003 DATED 25/06/2003. EXT.P7: COPY OF THE COVERING LETTER BY THE 6TH RESPONDENT DATED 02/08/2003. EXT.P7(a): COPY OF THE ACKNOWLEDGEMENT CARD WHICH SHOWS THE RECEIPT OF THE EXHIBIT P6 JUDGMENT BY THE PETITIONER ON 04/08/2003. EXT.P8: COPY OF THE INTERIM ORDER DATED 23/10/2003 IN W.A. NO. 1438/2003. EXT.P9: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.A. NO. 1438/2003 DATED 29/01/2004. EXT.P10: COPY OF THE ORDER NO.K.DIS.B6/2692/04 DATED 07/04/2004 BY THE 4TH RESPONDENT. EXT.P11: COPY OF THE REVISION DATED 31/05/2004 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P12: COPY OF THE PLAINT SUBMITTED BY THE 6TH RESPONDENT IN O.S. NO.43/2004 BEFORE THE SUB COURT, VADAKARA. EXT.P13: COPY OF THE ORDER NO.68998/E1/04/PO.VI DATED 15/11/2005 BY THE 1ST RESPONDENT. EXT.P14: COPY OF THE ORDER NO.G3/882224/2005 DATED 16/02/2006 BY THE 2ND RESPONDENT. EXT.P15: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 11/07/2006 IN WP(C) NO. 10246/2006. WP(C) NO. 12954/2008-P EXT.P16: COPY OF THE G.O.(RT)NO.2863/07/G.EDN. DATED 25/06/2007 BY THE 1ST RESPONDENT. EXT.P17: COPY OF THE RELEVANT PAGES OF THE GUIDE ISSUED BY THE GOVERNMENT OF KERALA REGARDING THE AGE OF A TEACHER FOR APPOINTMENT. RESPONDENT'S EXHIBITS: EXT.R6(a): COPY OF THE INTERROGATORY IN I.A.1002/2005 FILED BY 6TH RESPONDENT IN O.S.43/2004. EXT.R6(b): COPY OF THE ANSWERS FURNISHED BY THE PETITIONER ON 09/03/2006 TO THE INTERROGATORY. EXT.R6(c): COPY OF THE G.O.(P)NO.1851/99/FIN. DATED 18/09/99. //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 12954/2008-P & 8535/2009-J - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of July, 2009. JUDGMENT These two writ petitions are filed by the Manager of the school and a Rule 51-A claimant. Writ Petition No.12954/2008 is filed by the Manager of the school and Writ Petition No.8535/2009 is filed by the claimant. In Writ Petition No.12954/2008 the challenge against the orders passed by the educational authorities and the Government whereby the entitlement of the claimant under Rule 51-A of Chapter XIV-A K.E.R. stands recognized and the Manager has been directed to adequately compensate the claimant since appointment was denied prior to the attaining of the age of retirement. 2. In Writ Petition No.8535/2009, the main relief sought is for a direction to the Manager to effect payment of a sum of Rs.1,09,239/- towards the loss caused to her by way of pay and allowances and another amount of Rs.1,25,760/- by way of ex-gratia pension. 3. Necessary facts for the disposal of the cases are the following: The school in question is an aided U.P. School. A maternity leave vacancy arose in the school on 5.1.1971 and the Manager appointed the 6th wpc 12954/08 & 8535/09 2 respondent (petitioner in W.P.(C) NO.8535/09) and the said appointment was approved. The said teacher retired from service on 31.3.2002. In the vacancy which arose on 1.4.2002, overlooking the claim of the 6th respondent the Manager appointed one Mr.P. Rameshan on 5.6.2002. 4. The 6th respondent complained before the Asst. Educational Officer and thereafter approached this court by filing O.P.16672/2002 resting upon her claim under Rule 51-A of Chapter XIV-A K.E.R. This court directed the Asst. Educational Officer to take a decision after hearing the parties. The Asst. Educational Officer directed the Manager to appoint the 6th respondent. The approval of appointment of the fresh hand was also not granted. Against the same, the Manager had filed Ext.P3 appeal. The statutory authorities found in favour of the 6th respondent and to implement the orders, the 6th respondent filed O.P.No.5091/2003 which was allowed as per Ext.P6 judgment, whereby the Manager was directed to appoint the 6th respondent within one from the date of receipt of a copy of the judgment. The Manager filed Writ Appeal No.1438/2003 wherein, an interim order of stay was granted and finally by Ext.P8 judgment, the Writ Appeal was disposed of directing the 4th respondent to decide Ext.P5 appeal. Thereafter, Ext.P10 order was passed whereby the claim of the 6th respondent was wpc 12954/08 & 8535/09 3 upheld and the Manager was directed to compensate her adequately. The 6th respondent in the meanwhile, filed a suit as O.S.No.43/2004 before the Sub Court, Vadakara claiming a sum of Rs.1,98,262/- as both liquidated and unliquidated damages. The final order passed by the Government is produced as Ext.P16 which is under challenge by the Manager. Therein, the Government directed the Deputy Director of Education to quantify the loss and initiate recovery proceedings against the Manager to pay the same to the 6th respondent. 5. Heard learned counsel for the petitioner, learned counsel for the 6th respondent and learned Govt. Pleader. 6. Learned counsel for the petitioner resisted the claim under Rule 51-A on two grounds. Firstly, it is contended that the 6th respondent was over aged at the time of occurrence of vacancy. It is submitted that the rules, viz. Public Services (Raising of Upper Age Limit for Appointment) Rules, 1978 is applicable in the case of aided school teachers also and therefore once the 6th respondent had crossed the upper age limit, the claim cannot survive. It is further contended that the 6th respondent is not entitled for the benefit of Rule 51-A itself as she was relieved on account of termination in the period of appointment and not on account of termination wpc 12954/08 & 8535/09 4 of vacancy. Lastly, it is contended that the claim for compensation if at all, can arise only after the judgment rendered by this court, viz. Ext.P6 and therefore no such claim can be raised in respect of an earlier period from the date of occurrence of vacancy. 7. It is true that in Public Services (Raising of Upper Age Limit for appointment) Rules 1978, an upper age limit has been provided for appointment. The question whether the said rules will apply for a Rule 51- A claimant, is no longer res integra. Going by Rule 1(2) of Chapter XIV-A K.E.R., the age limit and relaxation thereof for appointment applicable to teachers of Government schools shall apply mutatis mutandis to teachers of aided schools. The date of determination of age for eligibility for appointment shall be the 1st January of the year in which the appointment is to be made. In the earliest decision in Sr. Annamma v. State of Kerala (1991 (2) KLT 911), a learned Single Judge of this court held that age limit prescribed by Rule 1(2) of Chapter XIV-A K.E.R. will not apply in the case of teachers who prefer claim under Rule 51-A. The said decision was followed in P.V. Vijayalakshmikutty v. State and others (1992 (1)KLJ 56). Lastly, a Division Bench of this court in Balakrishnan v. Secretary to Government (2005 (3) 362) affirmed the decision in Vijayalakshmikutty’s wpc 12954/08 & 8535/09 5 case (1992 (1) KLJ 56). It was held by the Division Bench in para 2 of the judgment that “there is no question of fixation of any upper age limit at all to retrenched teachers. Age limit has to be considered at the time of first appointment. Thereafter, her right under Rule 51-A cannot be denied on the question of age limit. If Rule 51A claimants are denied appointment on the basis of age limit, nobody will be absorbed under Rule 51A.” 8. Learned counsel for the petitioner sought to distinguish these decisions by contending that the scope of the Public Services (Upper Age Limit for Appointment) Rules 1978 was not specifically considered in the decisions. It is therefore contended that the question requires a re- examination. 9. I am afraid, the said argument cannot be accepted. As far as appointment of aided school teachers are concerned, the relevant provisions are contained in Chapter XIV-A K.E.R. Rule 1(2) is the only provision as far as age limit is concerned. Reference therein is to the age limit as applicable to teachers of Government schools which will mutatis mutandis apply to teachers of aided schools also. Therefore, the rule that is applicable to teachers of Government schools is rather incorporated in Rule 1(2). Therefore, it is obvious that this Court, while rendering the above said wpc 12954/08 & 8535/09 6 decisions, had considered the applicability of upper age limit as regards a claimant under Rule 51-A. The principle that is evolved in the above decisions is that as far as the claimant under Rule 51-A is concerned, the age limit provided for direct recruitment cannot apply at all. In the light of the said principle as declared by this court, the contention raised by the petitioner by relying upon the said rules, cannot be sustained. It is well settled that the claim under Rule 51A is a statutorily recognised one and that the claim could be enforced against the next arising vacancy. There is no provision in Rule 51A that the claimant will have to satisfy the upper age limit prescribed at the time of initial entry in service by way of direct recruitment. Herein, it is not at all a first appointment, but it is due to the resignation of a teacher, ad the claimant under Rule 51A had to be offered the appointment in the vacancy. In that view of the matter, the said argument cannot be accepted at all and it is rejected. 10. The next argument vehemently pursued by the learned counsel for the petitioner is that none of the circumstances provided under Rule 51A is attracted here. It is pointed out that Rule 51A of Chapter XIV-A applies only in the case where the teacher was relieved as per Rule 49 or 52 or on account of termination of vacancy. It is contended that herein the 6th wpc 12954/08 & 8535/09 7 respondent was appointed in a maternity leave vacancy. Her termination is on the expiry of the period of appointment and therefore it is not due to termination of vacancy. It is therefore submitted that the conditions provided under the rules are not satisfied. Reliance is placed on the minority judgment in Manager, Trikkur Panchayat Sarvodaya High School v. Suma (2003 (2) KLT 62 FB). It is submitted that the observations made by the learned Chief Justice while considering the scope and effect of Rule 51A will squarely apply and in none of the subsequent decisions the said view point has been dissented. 11. In the above said decision of the Full Bench, while discussing the effect of rule 51A, it was held in para 11 that the rules only provide for a benefit to persons whose services have been terminated on account of non availability of vacancy or for reasons beyond their control. In fact, in para 12 also, it was observed that “thus it can happen that a person who is continuing in service for more than the maximum period of probation may have to be retrenched on account of the revision and reduction in the number of posts. Such a person would be entitled to preference at the time of appointment in future vacancies in schools under Rule 51A.” In para 13 it was held that “thus it appears that R.51A provides for preference for wpc 12954/08 & 8535/09 8 recruitment to qualified teachers whose services have been terminated on account of the non-availability of a vacancy, whether permanent or temporary.” 12. The majority view is reflected in para 53 of the judgment wherein it was held as follows: “The third category entitled to preference for appointment under R.51A is 'qualified teachers who are relieved on account of termination of vacancies'. Though the termination could be of temporary or permanent vacancies, no distinction is made between permanent vacancies and vacancies which are not permanent. In other words, qualified teachers who are relieved on account of termination of temporary or permanent vacancies are entitled to the benefit under R.51A.” 13. The argument raised by the learned counsel for the petitioner that, the circumstances of this case do not warrant acceptance of the claim under Rule 51A, cannot be accepted. The rule clearly provides that the benefit is available where the teacher was relieved on account of termination of the vacancy. Herein, the 6th respondent was appointed in a maternity leave vacancy. Therefore, the said vacancy was for a particular duration, at the end of which she was relieved. It is well settled that the benefit conferred under the Rule is for teachers who happen to be relieved wpc 12954/08 & 8535/09 9 after the required period and whose appointment has been approved. The contention therefore that the claim cannot be allowed in a case where a teacher is appointed in a short term vacancy, cannot be accepted. Even if the teacher was relieved at the end of the period of appointment, the elements to satisfy the rule are there. Such a teacher is entitled for preference in future vacancies. Even though learned counsel for the petitioner laid emphasis on the fact that the 6th respondent had only a short period of appointment, that does not disentitle the said respondent from claiming the benefit of Rule 51-A. In that view of the matter, the said argument is also not correct. In fact, the learned counsel for the petitioner relied upon various decisions of the Apex Court to contend for the position that the obiter dicta in a decision is binding and therefore the observations in the minority judgment of the Full Bench is binding as a precedent. Learned counsel for the 6th respondent relied upon the judgment of a Division Bench of this court in Manager, K.A.M.U.P. School v. Deepa (2004 (2) KLT 441). Therein it was held that even teachers who were appointed in a temporary or limited period of vacancies, are entitled for the benefit of Rule 51-A. Their Lordships held in para 6 thus: “There is nothing in R.51-A of Chapter XIV-A to indicate that the wpc 12954/08 & 8535/09 10 benefit under the said Rule will not be available to a teacher who was relieved from service on account of termination of the vacancy, just because it was a temporary vacancy or the appointment was for a fixed period. On the other hand, the object and spirit of R.51A is to protect even teachers who were appointed in temporary or limited period vacancies and were relieved from service on account of termination of such vacancies.” 14. In fact, learned counsel for the petitioner relied upon the judgments of the Apex Court in Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and others {(1990) 3 SCC 682), State of U.P. and another v. Synthetics and Chemicals Ltd. and another {(1991) 4 SCC 139} and Director of Settlements, A.P. and others v. M.R. Apparao and another {(2002) 4 SCC 638} to contend that the obiter dicta contained in the minority view of the Full Bench was binding on the Division Bench which decided K.A.M.U.P. School's case (2004 (2) KLT 441). In the first two cases, the Apex Court was considering the binding nature of the observations made in Article 141 of the Constitution of India. Squarely that will not apply to the situation here. The principle regarding the applicability of the expression 'per incuriam' was also discussed in wpc 12954/08 & 8535/09 11 Punjab Land Development and Reclamation Corporation Ltd.'s case {(1990) 3 SCC 682} which was relied upon by the learned counsel for the petitioner to contend that the decision of the Division Bench of this court in K.A.M.U .School's case (2004 (2) KLT 441) is hit by the said principles. In State of U.P.'s case {(1991) 4 SCC 139} also the doctrine of 'per incuriam' was explained. In fact, in the last one of the decisions, viz. Director of Settlements, A.P. and others' case {(2002) 4 SCC 638) while considering the binding effect of obiter dicta in view of Article 141 of the Constitution, it was held that “a judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An “obiter dictum” as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case.” Significantly, these observations are made while considering the impact of Article 141 of the Constitution. Therefore, the dictum laid down in the above decisions are clearly distinguishable. wpc 12954/08 & 8535/09 12 15. In that view of the matter, the arguments raised by the learned counsel for the petitioner cannot be sustained in the light of the decision of the Division Bench in K.A.M.U.P. School's case (2004 (2) KLT 441) and hence the same is rejected. 16. Learned counsel for the 6th respondent supported the orders issued by the authorities below, contending that the claim was rightly allowed. It is pointed out that immediately after the vacancy arose, the 6th respondent had raised the claim and ignoring the same, the Manager appointed a fresh hand. In spite of the orders passed by the authorities, she was not appointed. It is submitted that the 6th respondent was appointed in a maternity leave vacancy and on termination of the vacancy alone she was relieved. The same will satisfy the provisions of Rule 51-A. It is submitted that the petitioner's argument relying upon the observations in the minority judgment of the Full Bench cited supra, cannot be accepted. It is also pointed out that the authority pronounced by the Division Bench in K.A.M.U.P. School's case (2004 (2) KLT 441) squarely applies to the facts of this case. 18. I find force in the above submission. The 6th respondent is having an approved service, may be in a short term vacancy. Such cases are wpc 12954/08 & 8535/09 13 covered by the provisions of Rule 51-A. 19. The next aspect is regarding the liability to pay compensation on the part of the Manager. In Ext.P16, the direction is to the Deputy Director of Education to quantify the loss and initiate proceedings including revenue recovery proceedings. Learned counsel appearing for the Manager submitted that the liability if at all can arise only from the expiry of the period provided in Ext.P6 judgment. The said judgment is dated 25.6.2003. The direction was to appoint the 6th respondent within one month from the date of receipt of a copy of that judgment. It is therefore submitted that the liability, if any, can arise only from the expiry of the said period. Learned counsel for the 6th respondent contended that the 6th respondent is entitled to be appointed consequent on the arising of the vacancy. The Manager was delaying the appointment and did not grant the same in spite of the orders passed by the authorities from time to time. Therefore, since the 6th respondent's right was denied, she is entitled for adequate compensation. 20. The argument that the liability, if any, arises only after the period of expiry provided in Ext.P6 judgment cannot be accepted. This court did not specifically direct that the appointment is effective only from that day. The period provided therein by this court was to appoint the 6th respondent wpc 12954/08 & 8535/09 14 and an outer time limit was provided for that. In fact, the Manager had filled up the vacancy by appointing one Shri P. Rameshan, a fresh hand. He was appointed from 5.6.2002 onwards. Once it is held that the 6th respondent is entitled to be appointed in the light of Rule 51-A, she is entitled to be appointed in that vacancy. Therefore, the liability for compensation has to be quantified accordingly. 21. Then, what remains is the quantification of the liability. In W.P. (C) No.8535/2009, the total amount claimed is Rs.1,09,239/- towards the loss caused to the petitioner by way of pay and allowances for the period from 1.6.2002 to 31.3.2004 and a sum of Rs.1,25,760/- by way of ex-gratia pension for a period of 15 years from 1.4.2004 onwards. In fact, the suit was disposed of in the light of Ext.P16 order passed by the Government. That will not disentitle the 6th respondent from claiming compensation in implementation of Ext.P16 order. 22. Learned Govt. Pleader submitted that already the amount has been quantified and recovery proceedings have been initiated which fact is admitted by the learned counsel for the petitioner also stating that a demand notice under the Revenue Recovery Act has been served on the Manager. It appears that the amount that has been arrived at, is nearly wpc 12954/08 & 8535/09 15 Rs.90,000/-. Of course, the details of calculation have not been made available by the respondents also. 23. The Manager cannot be exonerated from the liability to compensate the 6th respondent. This is evident from Rule 7(4) of Chapter III K.E.R. also. It is clear from the said rule that the amount can be recovered under the Revenue Recovery Act in case of denial of appointment to a qualified thrown out teacher who is a rightful claimant by virtue of Rule 51A of Chapter XIV-A K.E.R. The fact that the 6th respondent was denied the appointment, cannot be disputed at this distance of time. Therefore, plainly the 6th respondent is liable to be compensated by the Manager. 24. Therefore, the quantification will have to be made with notice to the Manager and the 6th respondent who is the petitioner in W.P.(C) No.8535/2009. The petitioner therein has raised various claims. In the counter affidavit filed by the Manager, it is pointed out that the petitioner can claim a maximum amount of Rs.28,455/- only. Of course, he has calculated it only from 5.9.2003 to 31.3.2004. The 6th respondent is entitled for compensation from 1.6.2002 onwards till her normal age of retirement. wpc 12954/08 & 8535/09 16 25. The Deputy Director of Education will, therefore, issue notice to both parties and quantify the loss since competing claims have been raised in the writ petition. The same shall be done within a period of one month from the date of receipt of a copy of this judgment and the