IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37178 of 2009(N)
1. MARCIA COLLIN NORONHA,
... Petitioner
Vs
1. THE DEPUTY DIRECTOR OF EDUCATION,
... Respondent
2. THE DISTRICT EDUCATIONAL OFFICER,
3. THE MANAGER,
4. SMT.MARY BRINCEL HURTIS, H.S.A.,
For Petitioner :SRI.P.C.SASIDHARAN
For Respondent :SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR)
The Hon'ble MR. Justice K.T.SANKARAN
Dated :30/07/2010
O R D E R
K.T. SANKARAN, J.
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W.P(C). No. 37178 of 2009
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Dated this the 30th day of July, 2010
J U D G M E N T
The petitioner was appointed as H.S.A. (English) in CCPLM
Anglo Indian High School, Perumannoor, of which the 3rd
respondent is the Manger, in a leave vacancy for the period from
17/8/2006 to 31/7/2010. The Educational Authorities did not
approve the appointment of the petitioner in the leave vacancy
pointing out various grounds. One of the grounds was that the 3rd
respondent-school being a newly opened school, without
appointing a protected teacher, the petitioner should not have
been appointed in the leave vacancy. Another reason stated was
the following: The leave vacancy arose on granting leave without
allowance for a period of five years from 1/8/2005 to Carol
Subrena Beveria and in that vacancy Beena A. was appointed as
H.S.A. (English). Later, Beena A. was permanently appointed as
H.S.A. (English) against a regular vacancy which arose with
effect from 17/8/2006. The appointment of Beena in the leave
vacancy was not approved and, therefore, the appointment of the
W.P(C). No. 37178/2009
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petitioner also could not be approved. When the matter reached
before the Government, Exhibit P1 order was passed on
23/12/2008 granting approval to the appointment of the
petitioner as H.S.A. (English) for the period from 17/8/2006 to
31/7/2010.
2. While the petitioner was continuing as H.S.A. (English)
in the leave vacancy, a regular vacancy of H.S.A (English) arose
in the school on 1/6/2008 on the promotion of Ivy Louis as
Headmistress of the school. In that vacancy, the Manager
appointed Smt. Mary Brincel Hurtis, the 4th respondent. However,
the appointment of Smt. Mary Brincel Hurtis was not approved by
the District Educational Officer and the proposal for approval was
rejected by the D.E.O as per Exhibit R4(d) order dated
26/10/2009. The Manager has filed an appeal to the Deputy
Director of Education challenging the order dated 26/10/2009
passed by the District Educational Officer and that appeal is
pending.
3. In this Writ Petition, the reliefs prayed for by the
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petitioner are the following:
(i) to issue a writ of mandamus, order or direction
commanding and compelling the respondents to
consider the objection preferred by the petitioner
in relation to the appointment of the 4th
respondent overlooking to the post of H.S.A.
(English) the claim of the petitioner and not to
grant approval of appointment of the 4th
respondent without considering the claim of the
petitioner;
(ii) to declare that the petitioner being a Rule 51A
claimant is entitled for appointment to the
permanent vacancy caused consequent to the
promotion of Ivy Louis as Headmistress with
effect from 1/6/2008 and direct the respondents
to shift the petitioner to that vacancy and grant
approval of such appointment;
(iii) to issue such other writ, order or direction as
this Honourable Court may deem fit and proper
in the circumstances of this case.
4. Sri. P.C. Sasidharan, the learned counsel appearing for
the petitioner, submitted that the petitioner being a claimant
under Rule 51A of Chapter XIV-A of the Kerala Education Rules,
she should have been appointed in preference to the 4th
respondent, who could be promoted only under Rule 43 of
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Chapter XIV-A of the Kerala Education Rules. Rule 43 of
Chapter XIV-A being subject to Rule 51A, the petitioner has got
preferential right of appointment over the 4th respondent. Sri.
P.C. Sasidharan also submitted that to attract Rule 51A, it is not
necessary that the teacher, who claims the benefit of preferential
appointment, should have been thrown out from the service on
retrenchment. As the petitioner was continuing in the leave
vacancy, she could be shifted to the vacancy which arose during
the currency of the period of leave vacancy in which the
petitioner was working. It is submitted that the Manager was not
justified at all in appointing the 4th respondent ignoring the
preferential claim of the petitioner. The counsel also pointed out
that the Government had issued G.O.(M.S) No.275/99/G.Edn.
dated 9/11/1999 making the position clear that the services of
leave substitutes will be regularised against the first arising
permanent/regular vacancy in the respective schools in the order
of seniority. The counsel pointed out that this Government Order
was referred to by the Division Bench of this Court in Geetha
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Vs. Geo Thomas [2009(4) K.L.T. 514] and held that the Manger
cannot deny promotion or re-appointment on the ground that
original appointment of the claimant was not yet approved. In
Geetha Vs. Geo Thomas, it was held thus:
In the light of the above provisions, the
Manager could have made the
appointments/retrenchments only in accordance
with R.51 of Chapter XIV-A of the K.E.R. quoted
above and Ext.R6(a) order mentioned above.
The Manager could not take shelter behind the
plea that when the regular vacancy arose, the
appointment of the appellant in the maternity
leave vacancy was not approved. The Manager
knew that the appointment was in a maternity
leave vacancy which arose in a post sanctioned
as per the Staff Fixation Order of that year, that
the appellant was qualified for appointment as
U.P.S.A. also and therefore, even if there is
delay, the appellant’s appointment was going to
be approved. Therefore, when the regular
vacancy arose, the appellant should have been
accommodated in that vacancy and a fresh hand
could have been appointed only in the remaining
portion of the maternity leave vacancy, in which
the appellant was working. As a matter of fact,
as the remaining period of the said leave
vacancy does not have a duration of two
months, the first respondent could not have
been appointed at all, as U.P.S.A, in view of R.7A
(3) of Chapter XIV-A of the K.E.R., which says
that, the vacancies which have duration of two
months or less period shall not be filled up by
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any appointment. The said two months period
has since been amended with effect from
16/4/2005, but, when the appointment of the
first respondent was made, the unamended rule
was remaining in force. The legal position that
the Manager cannot deny promotion or re-
appointment for the reason that original
appointment was not yet approved, is covered
by the Division Bench decision of this Court in
Joshi Vs. Krishna P. Rajan [2007(2) K.L.T. SN 63
(C.No.85)].
5. In Joshi. Vs. Krishna P. Rajan [2007(2) K.L.T. SN
63(C.No.85)], another Division Bench of this Court held that the
Manager cannot deny promotion or re-appointment on the mere
ground that approval order of original appointment was not
passed by the Educational authority.
6. Sri. P. Santhosh Kumar, the learned counsel appearing
for the 4th respondent and Sri. G. Sukumara Menon, the learned
counsel appearing for the Manager submitted that the petitioner
cannot be considered as a claimant under Rule 51A of
Chapter XIV-A of K.E.R. It is submitted that the opening words of
Rule 51A make the position clear that in order to claim the
benefit of preferential appointment, the claimant should be a
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person who was relieved either as per Rule 49 or Rule 52 of
Chapter XIV-A or on account of termination of vacancy. In the
case on hand, the petitioner was continuing in service on the date
of occurrence of the regular vacancy and she was not retrenched
or her services were not terminated, in order to attract Rule 51A.
It is also submitted that even assuming that the Manager could
not appoint a total stranger in such circumstances, there was no
bar in appointing a Rule 43 claimant when a regular vacancy
arose, so long as there was no other preferential claimant. The
petitioner’s right to make any preferential claim had not ripened
into a full right at the relevant time and, therefore, there was
nothing wrong on the part of the Manager in appointing the 4th
respondent.
7. Sri. P.C. Sasidharan replied stating that the contention
put forward by Sri. P. Santhosh Kumar and Shri. Sukumara
Menon is unsustainable in the light of the dictum laid down by the
Division Bench of this Court in Geetha Vs. Geo Thomas [2009
(4) K.L.T. 514].
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8. Since the question of approval of appointment of the
4th respondent is pending consideration before the Deputy
Director of Education and since the claim put forward by the
petitioner was not considered by any of the Educational
Authorities, I think it would be only proper if the matter is
considered by the educational authority. The learned counsel
appearing for all the parties submitted that it would be ideal if the
matter is considered by the Director of Public Instructions. They
submitted that adopting such a course would shorten the
litigation. The learned Government Pleader submitted that the
matter is now pending before the Deputy Director and if the
Court so directs, there is no difficulty and legal impediment for
the Director of Public Instructions to hear the case.
Accordingly, the Writ Petition is disposed of as follows:
The question whether the petitioner should have
been appointed by the Manager in the vacancy of
H.S.A.(English) which arose in the school on 1/6/2008
or whether the appointment of the 4th respondent in
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that vacancy should be approved, whether the
petitioner has got preferential right under Rule 51A of
Chapter XIV-A of K.E.R in the facts and circumstances,
whether the 4th respondent would get a right to be
appointed under Rule 43 in preference to the petitioner
and all other relevant aspects of the case shall be
considered by the Director of Public Instructions,
taking into account all the relevant facts and after
affording an opportunity of being heard to the
petitioner, the Manager and the 4th respondent and
also any other affected party. The petitioner shall
produce a copy of the Writ Petition, a Copy of the
Counter affidavit and certified copy of the judgment
before the Director of Public instructions. The Director
of Public Instructions shall dispose of the matter within
a period of two months from the date of receipt of a
copy of the judgment.
The learned counsel appearing for the Manager submitted
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that there are vacancies in the school and the petitioner most
probably need not have to go out and she would be adequately
accommodated, if otherwise it does not become impossible. This
submission is recorded.
K.T. SANKARAN, JUDGE
scm