IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1265 of 2008()
1. ABY MATHEW, HSA (PHYSICAL SCIENCE)
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DISTRICT EDUCATIONAL OFFICER
3. THE MANAGER,SALEM VOCATIONAL HIGHER
4. SMT.JESSY PETER, MANAKKAKUDY HOUSE
For Petitioner :SRI.THAMPAN THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :19/06/2008
O R D E R
J.B.Koshy & P.N.Ravindran, JJ.
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W.A.No.1265 of 2008
=====================
Dated this the 19th day of June, 2008.
JUDGMENT
Ravindran,J.
The petitioner in W.P.(C)No.8618 of 2007 is the appellant.
By judgment delivered on 23.1.1008, the learned Single Judge
dismissed the Writ Petition. Hence, this appeal.
2. The fourth respondent was appointed as H.S.A. (Physical
Science) by the third respondent in a leave vacancy for the
period from 21.7.2003 to 19.12.2003. That appointment was
approved by the District Educational Officer by order passed on
8.2.2006 for the period from 27.3.2003 to 31.10.2003. After the
service of the fourth respondent was terminated, the appellant
was appointed as Clerk with effect from 1.6.2005 under Rule 51B
of Chapter XIV-A of Kerala Education Rules, hereinafter referred
to as the “K.E.R.” for short.
2. While matters stood thus, a vacancy of H.S.A. (Physical
Science) arose in the third respondent’s school on the retirement
of Sri.K.V.Poulose from service on 31.3.2006. In that vacancy,
instead of appointing the fourth respondent, whose earlier spell
of appointment had been approved on 8.2.2006, the Manager
promoted and appointed the appellant. The fourth respondent
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objected to the appointment of the appellant on the ground that
it was made overlooking her claim under Rule 51A of Chapter
XIV-A of the K.E.R. By Ext.P2 order passed on 31.10.2006, the
District Educational Officer overruled the objections of the fourth
respondent and held that the Manager may consider appointing
her in the second post of H.S.A. (Physical Science), which had
been sanctioned for the academic year 2006-07. Pursuant to
Ext.P2, the appellant’s appointment as H.S.A. (Physical Science)
was approved by the District Educational Officer on 6.11.2006.
The fourth respondent filed a revision petition before the State
Government challenging Ext.P2. By Ext.P5 order passed on
19.2.2007, the State Government set aside Ext.P2 and held that
the fourth respondent had a preferential claim under Rule 51A, of
Chapter XIV-A of the K.E.R. to the retirement vacancy of H.S.A.
(Physical Science) which arose on 1.6.2006, against which the
appellant was appointed on 5.6.2006. Accordingly, Ext.P2 was
set aside and the Manager was directed to appoint the fourth
respondent as H.S.A. (Physical Science) with effect from
5.6.2006 in the vacancy which arose on 1.6.2006 and to adjust
the appointment given to the appellant as H.S.A. (Physical
Science) against the second vacancy of H.S.A. (Physical Science
available in the school as per the staff fixation order for the
academic year 2006-07.
3. The appellant thereupon filed W.P.(C)No.8618 of 2007
challenging Ext.P5 inter alia on the ground that she did not have
the minimum approved continuous service of one academic year.
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It was also contended that her initial spell of appointment was
approved only on 8.2.2006 and that as on that date, he was in
service as a Clerk in the school and had a claim for promotion
under Rule 43 of Chapter XIV-A of the K.E.R. to the post of
H.S.A. (Physical Science) that arose on 1.6.2006. By the
judgment under challenge, the learned Single Judge held that
after the amendment to Rule 51A introduced with effect from
17.6.2005, a claim under Rule 51A will prevail over a claim under
Rule 43 and that the fourth respondent had a preferential claim
over the appellant for appointment to the post of H.S.A. (Physical
Science) which arose on 1.6.2006. The learned Single Judge held
that the appointment of the appellant against that vacancy was
clearly illegal. It was also held that if at all the appellant is
entitled to be appointed as H.S.A. (Physical Science), his claim
can only be against the vacancy of H.S.A. (Physical Science)
which was newly sanctioned during the academic year 2006-07.
The appellant’s contention that as the fourth respondent did not
have approved service of one academic year and therefore had
no claim under Rule 51A, the learned Single Judge held that the
amendment incorporating the stipulation that a claim under 51A
would arise only if the teacher has a minimum continuous service
of one academic year as on the date of relief, was introduced
only on 16.4.2005 and that amendment cannot govern the
appointments made prior to that date. The Writ Petition was
accordingly dismissed. While the Writ Petition was pending
during the academic year 2007-08 there was a fall in the student
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strength and thereupon, the post of H.S.A. (Physical Science)
newly sanctioned as per the staff fixation order for the year
2006-07 ceased to exist. The appellant was thereupon reverted
as U.P.S.A.
4. We have heard Sri.Thampan Thomas, the learned
counsel appearing for the appellant. The learned counsel for the
appellant contended that as the fourth respondent did not have
approved continuous service of one academic year as on the date
of relief, she is not entitled to claim a right under Rule 51A. It
was also contended that as the appellant claimed a right under
Rule 43 and is qualified and eligible to be appointed as H.S.A.
(Physical Science) his claim will prevail over the claim of the
fourth respondent under Rule 51A of Chapter XIV-A of the K.E.R.
5. We have considered the submissions made at the bar by
the learned counsel appearing for the appellant. The first proviso
to Rule 51A of Chapter XIV-A of the K.E.R. which stipulates that
a teacher should have a minimum continuous service of one
academic year as on the date of relief, was inserted only with
effect from 16.4.2005. The fourth respondent’s earlier spell of
approved service was during the period from 21.7.2003 to
31.10.2003. Rule 7A(3) of Chapter XIV-A of the K.E.R. as it
stood prior to 16.4.2005 prohibited only appointment to
vacancies, the duration of which is two months or less. The
fourth respondent was appointed to a vacancy which was of three
months duration and therefore her appointment was validly made
to a leave vacancy. It was only when Rule 7A(3) of Chapter IIV-
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A of the K.E.R. was amended with effect from 16.4.2005 that
appointments to the vacancies, the duration of which is less than
one academic year was prohibited. Further, the fourth
respondent’s appointment for the period from 21.10.2003 to
31.10.2003 was approved by order passed on 8.2.2006 and 0j
such approval being granted, it took effect from 27.7.2003, the
date of appointment in terms of Rule 7 of Chapter XIV-A of the
K.E.R. We therefore overrule the contention of the appellant that
the fourth respondent did not have a claim under Rule 51A as on
1.6.2006.
6. The second contention raised by the appellant is that he
being Rule 43 claimant, he was entitled to preference for
appointment in the retirement vacancy which arose on 1.6.2006,
as against the fourth respondent’s claim under Rule 51A. We are
of the view that after the amendment to Rule 43 with effect from
17.6.2005, the said contention is without any merit. After the
amendment to Rule 43 introduced with effect from 17.6.2005, a
claim under Rule 43 is subject to a claim under Rule 51A of
Chapter XIV-A of the K.E.R. Therefore, there is no merit in the
second contention as well. It had been held in Jannet Varghese
v. State of Kerala – 2006(3)K.L.T. 435 and in Saleena v.
State of Kerala – 2008(1) K.L.T. 437 that after the amendment
introduced with effect from 17.6.2005 to Rules 43 and 51A of
Chapter XIV-A of K.E.R., if there is conflict between a claim under
Rule 43 and a claim under Rule 51A the claim under Rule 43 will
prevail.
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7. For the reasons stated above, we agree with the learned
Single Judge that the appointment of the appellant to the
retirement vacancy of H.S.A. (Physical Science) which arose in
the third respondent’s school on the retirement of Sri.A.V.Poulose
from service on 31.3.2006 was illegal and that the Manager was
bound to appoint the fourth respondent as H.S.A. (Physical
Science) in that vacancy.
The Writ Appeal accordingly fails and it is dismissed in-
limine.
J.B.Koshy,
Judge.
P.N.Ravindran,
Judge.
ess 20/6