Petitioner, a reappointed teacher under Rule 51A of KER, challenged rejection based on Rule 7(3) Chapter 21. Court held Rule 7(3) does not bar honoring 51A claims and directed approval of appointment and monetary benefits.
1. Appointment approved within one month. 2. Monetary benefits disburse within further four months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
MONDAY, THE 05TH DAY OF NOVEMBER 2018 / 14TH KARTHIKA, 1940
WP(C).No. 24282 of 2018
PETITIONER:
ABDUL ISHAKH T. AGED 47 YEARS HSA (ARABIC), PMSAPTS VHSS, KAIKOTTUKADAVU, PO ELAMBACHI, KASARGOD DISTRICT.
BY ADV. SRI.POOVAMULLE PARAMBIL ABDUL KAREEM
RESPONDENTS:
REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
KASARGOD - 671121.
BY ADV. SRI. S. GOPINATHAN, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 24282 of 2018
2
JUDGMENT
Petitioner was reappointed with effect from 01.06.2016 in an aided school based on a preferential claim under Rule 51 A of Chapter XIV-A of the Kerala Education Rules (hereinafter referred to as 'KER' for short), 1959. That approval was rejected stating that in the light of Rule 7(3) of Chapter 21 of KER, such approval cannot be granted. Rule 7(3) of Chapter 21 of KER reads as follows:
“7.(1) xxxxxxx
(2) xxxxxxxx
(3) Subject to rules 43, 51A and 51B of Chapter XIV A, all vacancies in the schools opened/upgraded after 22nd May, 1979, except in the pre-upgraded sections, shall be filled up by the manager by appointing teachers from among the list of protected teachers in the Teachers Bank with the permission of the Deputy Director (Education) concerned. Pre-upgraded sections denote L.P./U.P. sections of the new schools prevailed before upgrading the schools with U.P./H.S. sections.”
On a reading of the provisions it is clear that there are three
categories of exception as referred in Sub-Rule (3) they are claimants under Rule 43, 51A and 51B. The embargo is only in making fresh appointments and not on honouring any preferential
WP(C).No. 24282 of 2018
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claim as referred under Rule 43, 51A and 51B. Admittedly, the petitioner is a 51A claimant by virtue of past service from 2000
onwards. She could not continue in the service for want of vacancy as well as on account of the division fall. Statutory provision as above, never intend to put an embargo on the Manager in making appointment based on claim under Rule 43, 51A and 51B. If that be the case, the writ petition is to be allowed. Necessary orders shall be passed approving the appointment of the petitioner within a period of one month and monetary benefits shall be disbursed within a further period of four months.
This writ petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
SKK/ad/121118
WP(C).No. 24282 of 2018
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APPENDIX
PETITIONER'S EXHIBITS:
| EXT.P1- | TRUE COPY OF THE WITH APPROVAL DAT |
APPOINTMENT ORDER DATED 10/8/2000 ED 28/4/2004. |
|---|---|---|
| EXT.P2- | TRUE COPY OF THE WITH APPROVAL |
APPOINTMENT ORDER DATED 1/8/2002 |
| EXT.P3- | TRUE COPY OF THE WITH APPROVAL |
APPOINTMENT ORDER DATED 1/8/2005 |
| EXT.P4- | TRUE COPY OF THE ISSUED BY THE 5TH |
APPOINTMENT ORDER DATED 1/6/2016 RESPONDENT. |
| EXT.P5- | TRUE COPY OF THE THE 4TH RESPONDEN |
ORDER DATED 16/1/2017 ISSUED BY T. |
| EXT.P6- | TRUE COPY OF THE THE 3RD RESPONDEN |
ORDER DATED 20/2/2017 ISSUED BY T. |
| EXT.P7- | TRUE COPY OF THE THE 2ND RESPONDEN |
ORDER DATED 16/8/2017 ISSUED BY T. |
| EXT.P8- | TRUE COPY OF THE NO.EM(4)/35431/20 THE 2ND RESPONDEN |
ORDER 17/DP1/DATED 15/12/2017 ISSUED BY T. |
| EXT.P9- | TRUE COPY OF THE 18/6/2018 ISSUED |
GO(RT) NO.2262/2018/G.EDM. DATED BY THE 1ST RESPONDENT. |
| EXT.P10- | TRUE COPY OF THE GO(Rt)NO.2608/201 THE 1ST RESPONDEN |
ORDER BEARING 8/GEDN DATED 12.07.2018 ISSUED BY T |
RESPONDENTS' EXHIBITS: NIL
2 issues framed by the court
Whether reappointment of a 51A claimant rejected under Rule 7(3) of Chapter 21 of KER is permissible.
Whether the statutory embargo in Rule 7(3) extends to ignoring preferential claims under Rule 51A.
2 provisions across 1 enactments
ABDUL ISHAKH T
THE STATE OF KERALA
THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM
THE DEPUTY DIRECTOR OF EDUCATION KASARGOD
THE DISTRICT EDUCATIONAL OFFICER KANHANGAD
THE MANAGER PMSAPTS VHSS KAIKOTTUKADAVU
A.MUHAMED MUSTAQUE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
