Allowed

K.J.Pushpa v. State of Kerala

Kerala HC28 Oct 2016WP(C)/20334/2010

Case brief

AI extract

What is this about?

Msd. Anu Sivaraman, J. allowed the writ petition. The Court set aside the orders rejecting the petitioner's appointment as U.P.S.A. after finding she had a valid claim under amended Rule 51-A and the Rule 43 claimant had relinquished rights.

What did the court decide?

The orders rejecting the petitioner's appointment were set aside. The 4th respondent was directed to approve the appointment and disburse consequential benefits within three months.

K.J.Pushpa Vs State of Kerala — Education and Admissions | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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FRIDAY, THE 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938

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WP(C).No. 20334 of 2010 (N)

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PETITIONER(S) :

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K.J.PUSHPA, U.P.S.A., ST.JOSEPH'S U.P.SCHOOL, KUNDANNUR, WADAKKANCHERY SUB DISTRICT, THRISSUR DISTRICT.

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BY ADVS. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN

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RESPONDENT(S) :

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

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2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM.

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3. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR DISTRICT.

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4. THE ASSISTANT EDUCATIONAL OFFICER, WADAKKANCHERY, THRISSUR DISTRICT.

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5. THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, ARCH DIOCESE OF THRISSUR, CATHOLIC ARCH BISHOP'S HOUSE, THRISSUR- 5.

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R1 TO R4 BY GOVERNMENT PLEADER SMT. RAJI T.BHASKAR R5 BY ADV. SRI.TONY GEORGE KANNANTHANAM

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 20334 of 2010 (N)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1: TRUE COPY OF THE APPOINTMENT ORDER DATED 08.06.2006 OF THE PETITIONER.

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EXHIBIT P2:	TRUE COPY OF THE ORDER DATED 19.12.2007 OF
	THE 4TH RESPONDENT.

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EXHIBIT P3:	TRUE COPY OF THE APPOINTMENT ORDER DATED 05.06.2007 OF THE PETITIONER.
EXHIBIT P4:	TRUE COPY OF THE ORDER DATED 11.10.2007 ISSUED BY THE 4TH RESPONDENT.

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EXHIBIT P5:	TRUE COPY OF THE ORDER DATED 06.03.2008 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P6:	TRUE COPY OF THE ORDER DATED 27.08.2008 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P7:	TRUE COPY OF THE ORDER, G.O. DATED 24.03.2010 ISSUED BY THE 1ST RESPONDENT.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

ANU SIVARAMAN, J.

W.P.(C) No.20334 of 2010

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Dated this the 28^th day of October, 2016

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JUDGMENT

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This writ petition relates to approval of appointment

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of the petitioner as U.P.S.A. in a regular vacancy with effect from 05.06.2007. The petitioner had been initially appointed by the Corporate Manager as L.P.S.A by Ext.P1 order in a long leave vacancy. The appointment of the petitioner in the said vacancy from 08.06.2006 to 04.06.2007 was approved by Ext.P2. Thereafter, by Ext.P3, the petitioner was adjusted against a regular vacancy of U.P.S.A. which arose under the same Corporate management, with effect from 05.06.2007. Approval for this appointment was rejected on the ground that the petitioner is a fresh hand and that there is a Rule 43 claimant available for appointment in the same educational agency. Though the matter was taken up further in appeal, the same was also rejected by Exts.P5 and P6 and in revision by Ext.P7 order on the ground that she was a fresh hand and

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W.P.(C) No.20334 of 2010 -2-

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there was a Rule 43 claimant available. In Ext.P7 order, the Government admits that the petitioner's appointment had been approved by the department from 08.06.2006 to 04.06.2007 as L.P.S.A. However, it is stated that she cannot be considered as a Rule 51-A claimant, since the vacancy which later arose was that of U.P.S.A. It is further contended that the relinquishment of Rule 43 claimant has not been approved by the Government.

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Heard the learned counsel for the petitioner, learned counsel appearing for the Corporate Manager as well as the learned Government Pleader for the official respondents.

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It is the specific contention of the petitioner that

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the petitioner was a Rule 51-A claimant against the post of U.P.S.A. and that going by the amendment to Rule 51-A in the year 2005, her appointment as U.P.S.A. was liable to be approved. It is further contended that the Rule 43 claimant would have no better claim as against the petitioner. It is also

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W.P.(C) No.20334 of 2010

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contended that the Rule 43 claimant having relinquished promotion would not be entitled to be considered against the vacancy of U.P.S.A. which arose on 05.06.2007.

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Learned counsel appearing for the Corporate Manager would submit that the petitioner was initially appointed against a long leave vacancy from 20.08.2002 to 19.08.2007 by Ext.P1 from 08.06.2006. The petitioner's appointment till 04.06.2007 in the said vacancy has been approved by Ext.P2. When regular vacancy of U.P.S.A. arose under the Corporate Management on 05.06.2007, the petitioner was shifted to the said post and accommodated in a regular vacancy, it is submitted. Such shifting is perfectly in order, in terms of G.O.(MS)No.275/99/G.Edn. dated 09.11.1999. It is also submitted that Rule 43 claimant has no better claim as against the petitioner, who was a 51-A claimant to the post.

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A counter affidavit has been filed by the second respondent admitting that the petitioner's initial appointment

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W.P.(C) No.20334 of 2010 -4-

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as L.P.S.A. from 08.06.2006 to 04.06.2007 has been approved. It is contended that petitioner is a Rule 51-A claimant only in the post of L.P.S.A. At paragraph II of the counter affidavit, it is submitted that one Mr.Joshy K.Varkey, who was a Rule 43 claimant (FTM) under the Management, had later been posted as L.P.S.A. from 20.06.2007 to 03.10.2007 as leave substitute and later posted as regular L.P.S.A. with effect from 20.07.2007. It is therefore clear that the Rule 43 claim has since been addressed by the management and the said ground does not survive. In view of the amendment to Rule 51-A in the year 2005, it is clear that the petitioner would also have a claim for appointment against the regular vacancy of U.P.S.A. which arose on 05.06.2007, to which he has been appointed by Ext.P3.

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In the above circumstances, the grounds raised by the educational authorities as well as the Government for rejection of the petitioner's appointment by Exts.P4, P5, P6 and P7 orders cannot stand. Therefore the said orders are set

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W.P.(C) No.20334 of 2010

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aside. The appointment of the petitioner as U.P.S.A. by Ext.P3 with effect from 05.06.2007 is in order. The 4^th respondent is directed to approve the appointment of the petitioner as U.P.S.A. as made in Ext.P3 and to disburse all consequential benefits to the petitioner within a period of three months from the date of receipt of a copy of this judgment.

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Writ petition is ordered accordingly.

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Sd/ANU SIVARAMAN, JUDGE

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K.J.Pushpa v. State of Kerala

Case brief

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K.J.Pushpa v. State of Kerala

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