Allowed

Jessy v.Cherian v. State of Kerala

Kerala HC30 Jun 2016WP(C)/23818/2013

Case brief

AI extract

What is this about?

This writ petition challenged orders rejecting the petitioner's promotion to High School Assistant. The Kerala High Court held that statutory rights under Rule 43 of the Kerala Education Rules prevail over executive orders requiring the appointment of protected teachers, quashing the rejection and directing approval.

What did the court decide?

Impugned orders Ext.P-4, P-5, P-6, and P-8 quashed; 4th respondent directed to approve appointment as HSA from 20.9.2010; pay and arrears to be disbursed within one month.

Jessy v.Cherian Vs State of Kerala — Pension and Retirement Benefits | 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 MR. JUSTICE ALEXANDER THOMAS

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THURSDAY, THE 30TH DAY OF JUNE 2016/9TH ASHADHA, 1938

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WP(C).No. 23818 of 2013 (B)

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PETITIONER(S):

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1. JESSY V.CHERIAN W/O.GEORGE THOMAS, FLAT NO.IA, TROPICANA ZION, RAILWAY STATION PO, THIRUVALLA

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BY ADV. SRI.S.SUBHASH CHAND

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RESPONDENT(S):

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1. STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2. DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM 695 001.

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3. DEPUTY DIRECTOR OF EDUCATION PATHANAMTHITTA 691 523.

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4. DISTRICT EDUCATION OFFICER, THIRUVALLA 689 101

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5. MANAGER ST.JOHNS HIGHER SECONDARY SCHOOL, IRAVIPURAM PO,THIRUVALLA, PATHANAMTHITTA 689 542.

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R1-R4 BY ADV. GOVERNMENT PLEADER P.V.ELIYAS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 23818 of 2013 (B)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 COPY OF THE SERVICE BOOK OF THE PETITIONER

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EXHIBIT P2 COPY OF THE ORDER 24/8/1992 GRANTING LEAVE WITHOUT ALLOWANCE TO THE PETITIONER FOR THE PERIOD 2/6/1992 TO 1/6/1994 ISSUED BY THE IST RESPONDENT

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EXHIBIT P2(A) COPY OF THE ORDER 17/1/1995 GRANTING LEAVBE WITHOUT ALLOWANCE TO THE PETITIONER FOR THE PERIOD 2/6/1994 TO 1/6/1997 ISSUED BY THE IST RESPONDENT

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EXHIBIT P2(B) COPY OF ORDER 8/7/1997 GRANTING LEAVE WITHOUT ALLOWANCE TO THE PETITIONER FORE THE PERIOD 2/6/1997 TO 1/6/2002 , ISSUED BY THE IST RESPONDENT

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EXHIBIT P2(C) COPY OF THE ORDER DATED 18/7/2002 GRANTING LEAVE WITHOUT ALLOWANCDE TO THE PETITIONER FORE THE PERIOD 2/6/2002 TO 1/6/2007 ISSUED BUY THE IST RESPONDENT

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EXHIBIT P3 COPY OF THE APPLICATION SUBMITTED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT SEEKING APPROVAL DATED 29/9/2010

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EXHIBIT P3(A) COPY OF THE NOTE DATED 14/3/2011 SUBMITTED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT

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EXHIBIT P4 COPY OF THE ORDER DATED 17/3/2011 AND NUMBERED AS NO.B5-8515/10 KDIS

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EXHIBIT P5 COPY OF THE ORDER DATED 18/7/2011 ISSUED BY THE 3RD RESPONDENT

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EXHIBIT P6 COPY OF THE ORDER DATED 11/5/2012 AND NUMBERED AS NO.ET3/78246/11/DPI/KDIS ISSUED BY THE 2ND RESPONDENT EXHIBIT P6(A) COPY OF THE PROVISIONAL SENIORITY LIST OF UPSA'S OF THE 5TH RESPONDENT AS ON 1/1/2010 EXHIBIT P7 COPY OF THE MEMORANDUM OF REVISION FILED BYA THE PETITIONER BEFORE THE IST RESPONDENT EXHIBIT P7(A) COPY OF THE NOTE DATED 28/11/2012 SUBMITTED ON BEHALF OF THE PETITIONER EXHIBIT P7(B) COPY OF THE NOTE SUBMITTED BY THE 3RD RESPONDENT EXHIBIT P7(C) COPY OF THE NOTE SUBMITTED BY THE 23RD RESPONDENT EXHIBIT P8 COPY OF THE ORDER DATED 3/8/2013 AND NUMBERED AS NO.GO(RT) NO.3262/2013 /G.EDN.ISSUED BY THE IST RESPONDENT

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EXHIBIT P9 COPY OF THE G.O.(P) NO.10/10/G EDUCATION DATED 12/1/2010

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EXHIBIT P10 COPY OF THE G.O.DATED 1/10/2011 NO.G.O.(P) NO.199/2011/G.EDN.

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RESPONDENT(S)' EXHIBITS

NIL

//TRUE COPY//

PA TO JUDGE

avk

ALEXANDER THOMAS, J.

W.P.(C).No. 23818 of 2013

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Dated this the 30^th day of June, 2016

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JUDGMENT

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The petitioner was appointed initially in the 5^th respondent Aided School as Upper Primary School Assistant (UPSA) on 1.6.1989 onwards which was duly approved by the educational authorities concerned in terms of the provisions contained in Kerala Education Act and the Kerala Education Rules (KER) framed thereunder.Later, she was appointed as High School Assistant in the subject of Social Studies, viz., HSA (SS), on 3.7.1991 in the said school and the said appointment was also approved in terms of the rules. For the period from 2.6.1992 to 1.6.2006, the petitioner was sanctioned leave without allowances by the competent authorities concerned as evident from Exts. P-2, P-2 (a), P-2 (b) and P-2 (c) proceedings for joining her husband abroad. Immediately after completing the sanctioned leave, as aforesaid, she had joined back in the 5^th respondent Aided School on 2.6.2006. It is the case of the petitioner that the 5^th respondent Manager had informed her that due to division fall

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in the High School section of the said school, she could not be accommodated as HSA and that she can only be appointed to the

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lower category of UPSA. That believing the said version of the 5^th respondent, the petitioner had accepted the said appointment as

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UPSA in the school from 2.6.2006 onwards and the said appointment was also duly approved. It is the case of the petitioner, that actually as a matter of fact, her lien in the post of HSA was continuing, as the appointees in the post of HSA held by her, were only accommodated her leave vacancies and that the petitioner had erroneously relied on the version given by the Management that consequent to division fall, she has to face reversion as UPSA. As this is not seriously sought for adjudication by the petitioner in this proceedings, this aspect of the matter has not much serious bearing or relevance for determination of any of the issues that this Court has been called upon to adjudicate in this case. It is stated that on 18.9.2010, one Smt.Omana Varghese, who was an HSA in the said school had died, and in that said vacancy the Manager had promoted the petitioner under Rule 43 of Chapter XIV A KER as HSA (SS) on 20.9.2010, as can be seen from the materials in Exts.P-3 and P-3 (a). The 5^th respondent Manager had forwarded the proposal for approval for the appointment of the petitioner as HSA (SS) with effect from 20.9.2010, as can be seen from Exts.P-3 and P-3 (a)

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communications from the Manager addressed to the R-4 (DEO). It is pointed out that respondent No.4 (DEO) had rejected the proposal for approval of the appointment of petitioner as HSA as per the impugned Ext.P-4 order dated 17.3.2011 on the ground that there is no approved integrated seniority list of teachers in the various schools under the Corporate Management of the 5^th respondent. The matter was taken up in challenge, which also suffered the fate of rejection as per Ext.P-5 Appellate order dated 18.7.2011 passed by the 3^rd respondent (Deputy Director of Education) on the same ground as cited in the impugned Ext.P-4 order. Incidentally, it is also stated in Ext.P-5 proceedings that one Smt.Suja Philip, who is an incumbent in the same school is also staking a claim by filing a writ petition before this Court. The exact details of how the claim of the other incumbent concerned, will affect the claim of the petitioner herein, is not in any manner disclosed in those proceedings. Aggrieved by Ext.P-5, the petitioner had preferred a revision petition under Rule 8 A of Chapter XIV A of KER before the Director of Public Instructions (DPI), who by impugned Ext.P-6 dated 11.05.2012, had rejected the said revision petition and confirmed the orders of the subordinate officers concerned stated above. Thereupon the

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petitioner was constrained to file a revision under Rule 92 of Chapter XIV A KER before the first respondent Government as per Ext.P-7 petition. The petitioner has also produced Ext.P-6 (a), which is the copy of the provisional seniority list of the teachers in the Corporate Management of the 5^th respondent; Ext.P-7 (a) is the notes on the submissions of the petitioner made in the revision and Ext.P-7 (b) is the report of DEO, issued in that regard and Ext.P-7 (c) is the report of the Deputy Director of Education concerned. The Government after affording a reasonable opportunity of hearing to the petitioner, had rejected Ext.P-7 revision petition, as per the impugned Ext.P-8 revisional order, dated 3.8.2013 on an entirely different ground. The ground of rejection stated by the first respondent Government in the impugned Ext.P-8 revisional order is that since the academic year 2006-2007 onwards, Government had imposed a ban on the approval of appointments in respect of the additional division vacancies in aided schools and that the said ban continued upto issuance of G.O. No.10/2010/G.Edn dated 12.1.2010 (Ext.P-9 herein). In Ext.P-9 G.O, dated 12.1.2010, it was held by the Government that for approving of appointments made to additional division vacancies from the academic year 2006-07 to

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2009-10, that after approving those appointments made against such additional division vacancies, equal number of protected teachers must be appointed in future vacancies by the Managers of the aided schools concerned. That, after duly appointing such equal number of protected teachers in the school in respect of every future vacancy arising thereafter. That, after approval of appointments made to the additional divisional vacancies, the Manager must make appointments of protected teachers and further appointments to additional division vacancies thereafter in the ratio 1:1 and that Managers of the schools should execute a bond of indemnity agreeing to these conditions. In the light of these aspects borne out by Ext.P-7 G.O, Government has held in Ext.P-8 revisional order that during 2007-2008, an incumbent was appointed to a post of Hindi teacher in the 5^th respondent school and the said appointment was approved in an additional division vacancy pursuant to Ext.P-9 G.O and therefore the Manager of the 5^th respondent school is bound to appoint a protected teacher in the next vacancy, which according to the Government, was the vacancy caused due to the death of Smt.Omana Varghese. In this view of the matter, Government has held in Ext.P-8 that the appointment of petitioner as HSA in the

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said vacancy cannot be approved as the Manager is obliged to appoint a protected teacher to the said vacancy. It is these proceedings of rejection, Exts.P-4, P-5, P-6 and P-8 that are under challenge in this writ proceedings. The writ petitioner has

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filed the instant writ petition with the following prayers:-

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“ i. Issue a writ of certiorari or other appropriate writ,order or direction quashing Exts.P-4,P-5,P-6 and P-8.

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ii. Issue a writ of mandamus or other appropriate writ, order or direction directing the 4th respondent to approve the appointment of petitioner as HSA with effect from 20.09.2010 with all benefits of service.

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iii. Issue such other appropriate writ, order or direction that may be deemed to be just and equitable in the facts and circumstances of the case.”

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The first respondent State has filed a counter affidavit

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dated 25.1.2016, in this writ proceedings. The facts regarding the initial appointment of the petitioner as UPSA and her further promotion as HSA from 3.7.1991 and the facts regarding her sanctioned leave without allowance as stated above are fully admitted in the writ petition. The sheet anchor of the defense made by the first respondent in justifying the impugned rejection order at Ext.P-8 is the same ground as the one stated in Ext.P-8 that one post of LG (Hindi) teacher was sanctioned in the 5^th respondent school in the strength of the bond executed by the

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Manager as per Ext.P-9 G.O. dated 12.1.2010 and that as the appointment made by the Manager in favour of the incumbent concerned to the said post of LG (Hindi) was approved by the Department on that condition, the next vacancy ought to have been filled up by the Manager only by appointing a protected teacher and therefore the appointment of the petitioner as HSA as stated above, cannot be approved and that the revision petition has been rightly rejected by the first respondent Government as per the impugned Ext.P-8 proceedings etc.

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Heard Sri.S.Subash Chand, learned counsel for the petitioner and the learned Government Pleader appearing for the official respondents 1 to 4. Though R5 (Manager) has been duly

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served with notice in this W.P.(C), he has not chosen to enter appearance. It is also pointed out that R-5 Manager is supporting the claim of the petitioner for approval of appointment as the said Manager is the authority who has appointed the petitioner as HSA for the above said appointment in question.

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Though the sole ground of rejection stated in Exts.P4,P-5 & P-6 passed by District Educational Officer, Deputy Director of Education (DDE) and Director of Public Instructions respectively is only that the approval of the appointment of the

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petitioner is liable to be rejected as the Manager has not produced the approved integrated seniority list of teachers in the various schools under the Corporate Management of the 5^th respondent, the same said ground has been totally given by the Government. Though there is an incidental observation in Ext.P-5 Appellate Order by the Deputy Director of Education that a claim made by one Smt.Suja Philip is also pending consideration, no details or particulars are given in the impugned order or in counter affidavit as to how the said claim could in any manner detrimentally affect the claim of the petitioner. It is the admitted position of the 5^th respondent Manager as can be seen from Ext.P6 (a) integrated seniority list of teachers that the petitioner herein is the senior most UPSA having B.A with B.Ed in the subject of Social Studies who is eligible to be promoted as HSA (SS). The petitioner is shown as serial no.3 in Ext.P-6 (a) wherein serial no.1 and serial no.2 thereof are shown as Headmistress of the various U.P. Schools concerned and going by the qualifications shown therein, they do not have the qualifications for Rule 43 promotion as HSA (SS). The aforementioned Smt.Suja Philip is shown below serial no.11 in the said list and date of entry as UPSA is shown as 1.6.1998 whereas; the date of entry of the petitioner herein who

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is Sl.No.(3) is shown as 1.6.1989. Government also, does not in any manner places any serious reliance on this aspect of the matter as can be seen from the averment in the impugned Ext.P8, wherein the Government has taken note of the submissions of the petitioner that the aforementioned Smt.Suja Philip, has not challenged the seniority of the petitioner herein, in the writ proceedings filed by the former. Moreover, it can be seen that the reports at Ext.P-7 (b) given by R-4 DEO and Ext.P-7 (c) given by R-3 Deputy Director of Education, it is clearly stated that the petitioner is the senior most UPSA in the school and there is no dispute as to the fact that the petitioner has all the qualifications for the Rule 43 promotion to the post of HSA (SS) in the 5^th respondent school. Therefore, Government has no case that Ext.P-6(a) seniority list produced before them is in any manner unacceptable. Therefore, the ground of rejection given by the subordinate officers concerned is in no way, tenable or relevant for deciding the present case, as the Government has given up the said ground. Therefore this Court need only be considered with the tenability or otherwise of the ground of rejection stated in Ext.P-8 that the 5^th respondent Manager is obliged to appoint a protected teacher instead of appointing the

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petitioner in the vacancy of HSA caused by the death of the other incumbent concerned, in view of the terms and conditions stipulated in Ext.P-9 G.O.

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In this regard, it is to be borne in mind that since the petitioner has all the requisite qualification for promotion to the post of HSA (SS) in the school and as she is the senior most qualified UPSA in the school, she indeed has a statutory right under Rule 43 Chapter XIV A KER to be promoted to the said post. So the limited issue posed in this matter is as to the statutory right emanating in favour of the incumbent like the petitioner, in view of the mandate contained in Rule 43 of Chapter XIV A KER, can in any manner be abridged or be restricted by virtue of the prescriptions contained in the executive order as in Ext.P-9 G.O. (P).No.10/2010/G.Edn dated 12.1.2010.

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In the case, Manager,P.K.High School and Others v. State of Kerala and Others reported in 2011 (4) KHC 179] = 2011 (4) KLT 365= ILR 2011 (4) KER 559 (judgment dated 29.09.2011 in W.P.(C).No.6069 of 2010), this Court dealt with a case where two of the petitioners therein were claimants for promotion under Rule 43 of Chapter XIV A KER. Various Government Orders provided for absorption of protected teachers and this was

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sighted as a ground of rejection by the educational authorities concerned for declining the approval of the appointment by promotion of those claimants under Rule 43 of Chapter XIV A KER. This Court clearly held in para 20 of the said ruling that the said various orders issued by the Government concerning the grant of protection to the teachers is subject to the statutory right of the promotees under Rule 43 of Chapter XIV A of KER and that the statutory rules as in Rule 43 will have precedence and overriding effect in the case of conflict with such executive orders conferring some benefits to the protected teachers and that the claim of teachers for promotion, under Rule 43 of Chapter XIV A KER will certainly prevail over such executive orders granting promotion of the deployment of protected teachers as in the orders considered therein, in the matter of grant of protection.

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In the ruling of this Court in Ciji P.Jose v. State of Kerala and Others reported in 2012 KHC 181 = 2002 (1) KLT 867 = ILR 2012 (1) KER 759 =2012 (1) KLJ 721 (judgment dated 18.10.2011 in W.P.(C).No.34604 of 2008), it was held in para 4 thereof, that it is too well settled that the benefit granted to a teacher under the statutory provisions in Rule 51 (A) of Chapter

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XIV A KER has to be extended by the Manager and the question therein was as to whether a protected teacher who is available and is liable to be deployed under various executive orders, should be absorbed against a claimant under Rule 51 A. This Court held therein, that obviously, the statutory rules will prevail over the executive orders and so Rule 51 A or any such other provisions have not been amended for incorporating the provision of those executive prescriptions and that therefore the prescription in the impugned executive order therein cannot militate against or operate against the statutory provisions contained in Rule 51 A of Chapter XIV A KER etc.

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The ruling of this Court in Ciji P.Jose’s case (supra) was impugned by the State Government by filing Writ Appeal No.30 of 2014 and the Division Bench of this Court dismissed the said appeal as per judgment dated 4.2.2014 which is in the ruling in State of Kerala and others v. Ciji P.Jose and others reported in 2015 (1) KHC 232= 2015 (1) KLT 458= 2015 (2) KLT 279. The Division Bench of this Court in para 4 thereof, held that the impugned executive order passed by the Government is only an expression of the executive decision of the Government on a particular matter and the other proceedings of the Government

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was only a Government circular, whereas Rule 51 A of Chapter XIV A KER is part of statutory rules made by the competent rule making authority in exercise of the powers to make subordinate legislation in terms of the provisions contained in the Kerala Education Act and therefore the statutory rules will indeed prevail over such executive prescriptions and the provisions of Rule 51 A of Chapter XIV A KER are clear and unambiguous and do not admit any dilution based on the plea that the vacancy was neither not clear nor absolute and that the spread of the statutory rules in the Kerala Education Rules does not admit any vacancies as being identified as not absolute or not clear etc. In this view of the matter, the Division Bench had dismissed the writ appeal and had affirmed the correctness of the considered view taken by the learned single Judge in Ciji P.Jose’s case reported in [2012 KHC 181].

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It may also be pertinent to refer to the ruling of the Division Bench of this Court in Rev.Kuriakose v. State of Kerala reported in [1981 KHC 294] =[1981 KLT SN 183] = [1980 KLN 443] (judgment dated 11.07.1980 in O.P.Nos.2944,2981 of 1979), noted in para 6 thereof the contention of the petitioners therein to insist on the absorption of the protected teachers in the

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vacancies that may arise in the schools of the Corporate Education Agency already running other schools would be to violate Rule 51 A of Chapter XIV A KER because as teachers once worked under the teachers who are the Management and who are entitled for preference under the same Management under Rule 51 A are sought to be displaced by the protected teachers which posed to be illegal. However, the Division Bench held in this controversy, was not called upon to be adjudicated in view of the specific stand taken by the Advocate General appearing for the State of Kerala in those cases who had submitted that the provisions in the agreement were not intended to be enforced against the statutory provision of Rule 51 A of Chapter XIV A KER. That in other words, the teachers who are entitled to the benefit of Rule 51 A could indeed be entitled to be absorbed in the vacancies in preference to the protected teachers contemplated by the agreements and that this is notwithstanding the agreements executed by the managers. Even as regards the statutory claim for promotion under Rule 43 of Chapter XIV A KER their Lordships of the Division Bench in Rev.Kuriakose’s case (supra) noted that the said rule confers preference on appointment of teachers for promotion but held that even according to the State, such a case will not arise in

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the case of petitioners therein and it is was assured to the Bench in that case that if the specific cases pointed out to the State regarding the grievances related to non-approval of Rule 43 promotees, then necessary action will be taken in accordance with law etc.

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Therefore, the aforestated rulings clearly lead to the indisputable position that the statutory claim of a teacher for promotion under Rule 43 of Chapter XIV A KER cannot in any manner abridged in any manner by any executive prescription as in Ext.P-9 G.O. dated 12.1.2010.

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The upshot of the of the above discussion is that the impugned rejection of the approval of the appointment of the petitioner as HSA is illegal and ultravires. The statutory rights of the petitioner for promotion as HSA (SS) in the R-5 school, clearly flows out from the mandate of Rule 43 A Chapter XIV A KER. None of the educational authorities concerned and the first respondent Government have any case that the petitioner is not having all the requisitie qualifications for the promotion to the said post or that she is in any manner ineligible for the said promotion. In this view of the matter, the impugned rejection orders at Ext.P-4,P5,P-6 and P-8 will stand quashed. The 4th respondent (DEO,

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Thiruvalla) will take immediate steps for passing necessary orders granting approval to the appointment of the petitioner as HSA (SS) in the 5th respondent school from 20.9.2010 and orders in that regard should be passed within a period of one month from the date of production of a certified copy of this judgment. Thereafter on completing the necessary formalities for disbursal of the pay and allowances due to the petitioner in the above said post of HSS (SS), the competent authority among respondents 1 to 4 more particularly, R-4 (DEO) will ensure that the pay and

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allowances and all arrears in that regard from the period from 20.9.2010 shall be disbursed to the petitioenr within one month thereafter.

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