Allowed

Sunitha.K. v. State of Kerala and Others

Kerala HC10 Dec 2015WP(C)/20662/2006

Case brief

AI extract

What is this about?

The Kerala High Court allowed a writ petition challenging the school manager's order denying promotion. The Court held that under amended Kerala Educational Rules, Rule 51A claimants have precedence over Rule 43 claimants. Consequently, the petitioner is entitled to appointment in the vacant Hindi post, setting aside the order that appointed the fifth respondent.

What did the court decide?

Ext.P4 set aside; Direction to the 4th respondent to appoint the petitioner as H.S.A. (Hindi) in the vacant post consequential orders to be passed regarding the 5th respondent.

Sunitha.K. Vs State of Kerala and Others — Education and Admissions | Kerala HC (2015)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THURSDAY, THE 10TH DAY OF DECEMBER 2015/19TH AGRAHAYANA, 1937

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WP(C).No. 20662 of 2006 (I)

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PETITIONER(S) :

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SUNITHA K., W/O. DINESH K.N., AJJARKODI HOUSE, NIRCHAL P.O., VIA. KUMBALA, KASARGOD DISTRICT.

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BY ADV. SRI.KALEESWARAM RAJ

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RESPONDENT(S) :

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1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE DEPUTY DIRECTOR OF EDUCATION, KASARGOD.

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3. THE DISTRICT EDUCATIONAL OFFICER, KASARGOD.

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4. THE MANAGER, MAHAJANA SANSKRIT COLLEGE HIGH SCHOOL, NEERCHAL, NEERCHAL VILLAGE & POST, KASARGOD TALUK, KASARGOD DISTRICT.

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5. ANNAPOORNA S.,

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H.S.A. (HINDI) (NOT APPROVED), MAHAJANA SANSKRIT COLLEGE HIGH SCHOOL, NEERCHAL, NEERCHAL VILLAGE & POST, KASARGOD TALUK, KASARGOD DISTRICT.

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R1 TO R3 BY GOVERNMENT PLEADER SRI.REJI JOSEPH R4 BY ADV. SRI.K.G.GOURI SANKAR RAI R5 BY ADVS. SRI.P.SHRIHARI SMT.P.VANI

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-10-2015, THE COURT ON 10-12-2015 DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 20662 of 2006 (I)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1: TRUE COPY OF THE REPRESENTATION DATED 02.02.2006 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

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EXHIBIT P2: TRUE COPY OF THE ACKNOWLEDGEMENT DULY SIGNED BY THE MANAGER.

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EXHIBIT P3: TRUE COPY OF THE ACKNOWLEDGEMENT CARD DULY SIGNED BY THE 2ND RESPONDENT.

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EXHIBIT P4: TRUE COPY OF THE LETTER DATED 12.07.2006 ISSUED BY THE MANAGER. EXHIBIT P5: TRUE COPY OF THE DECISION REPORTED IN JANNET VARGHESE V. STATE OF KERALA & OTHERS ILR 2006(3) KERALA 247.

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RESPONDENT(S)' EXHIBITS :

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EXHIBIT R5: TRUE COPY OF G.O(P)NO.31/2006/GE. DATED THIRUVANANTHAPURAM 19TH JANUARY 2006.

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EXHIBIT R5(A): TRUE COPY OF THE TRANSFER CERTIFICATE ISSUED BY THE PETITIONER.

//TRUE COPY//

P.A.TO JUDGE.

Msd.

**A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.20662 of 2006

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Dated this the 10^th day of December 2015

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J U D G M E N T

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This writ petition is filed seeking the following reliefs:

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“i) To issue a writ of certiorari quashing Ext.P4 as unjust, illegal and unconstitutional;

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ii) to issue a writ of mandamus directing 4^th respondent to appoint the petitioner as H.S.A (Hindi) in Mahajana Sanskrit College High School, Neerchal in Kasargod District

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iii) to issue a writ of mandamus directing 4^th respondent to revert/repost the 5^th respondent as Primary School Teacher (Hindi) in the school managed by the 4^th respondent;”

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Ext.P4 is an order issued by the Manager of the School,

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taking the view that the promotion of the 5^th respondent will prevail over the claim made by the petitioner under Rule 51A of Chapter XIVA of the Kerala Educational Rules (hereinafter referred to as 'the Rules').

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The short facts involved in the writ petition would disclose that the petitioner worked as H.S.A (Hindi) in the School managed by the 4^th respondent from 15/07/1996 to 13/12/1996.

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W.P.C.No.20662/2006

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Thereafter, for want of vacancy, her services were discharged. According to her, she is a claimant under Rule 51A of Chapter XIVA of the Rules. A vacancy of H.S.A (Hindi) has arisen on account of retirement of Smt.Shankari on 31/03/2006. Instead of appointing the petitioner, Manager appointed the 5^th respondent by giving promotion and took a view that she had a better claim under Rule 43 of Chapter XIVA of the Rules than that of the petitioner, who was a claimant under Rule 51A. According to the petitioner, after amendment of Rules 43 and 51A of Chapter XIVA of the Rules as per G.O.(P) No.187/2005/G.Edn. dated 17/06/2005, which was published in the Gazette on 25/06/2005, Rule 51A claimants have a preferential right than that of Rule 43 claimants. The contention is that this aspect of the matter was not considered by the Manager during the relevant time.

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Counter affidavit has been filed by the Government authorities supporting the stand taken by the petitioner.

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Counter affidavit has been filed by respondents 4 and 5 denying the claim made by the petitioner. It is contended by the 4^th respondent that the petitioner, at the relevant time, was working as Head Mistress in a permanent vacancy in another

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W.P.C.No.20662/2006

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School and therefore she was not entitled for the benefit of Rule 51A claimant. The 5^th respondent further contended that the petitioner was not entitled for a better claim than that of the 5^th respondent.

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Heard Learned counsel for the petitioner and the learned Government Pleader.

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It is clear from the factual circumstances involved in the matter that, in view of the fact that Rules 43 and 51A have been amended, promotion under Rule 43 is subject to Rule 51A. Under such circumstances, the claim made by Rule 51A claimant is well established. This aspect of the matter has been considered by this Court in Jannete Varghese v. State of Kerala and Others [2006(3) ILR Kerala 247] wherein it has been held that after the amendment of the rule, the claimant under Rule 51A will have precedence over the claims under Rule 43.

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The 5^th respondent has also a case that a minimum period of one year service is required for making a claim under Rule 51A. But, it is evident from the statutory provision that the said amendment had come into effect only after the rights have been accrued on the petitioner, which is also a settled position of

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W.P.C.No.20662/2006

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law. Under such circumstances, I am of the view that the writ petition is liable to be allowed.

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Accordingly, this writ petition is allowed. Ext.P4 is set aside and there will be a direction to the 4^th respondent to appoint the petitioner as H.S.A (Hindi) in the post which became vacant on 31/03/2006 and consequential orders shall be passed as far as the 5^th respondent is concerned.

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(sd/-)

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(A.M.SHAFFIQUE, JUDGE)

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jsr

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//True Copy// PA to Judge

Sunitha.K. v. State of Kerala and Others

Case brief

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Sunitha.K. v. State of Kerala and Others

Case brief

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