Back
1989 Supreme(Ker) 81
Judges : MALIMATH,BHASKARAN NAMBIAR
ESTHER - Appellant
Versus
STATE OF KERALA - Respondent
Case No : W.A. No. I48 of I987
Decided On : 02/22/1989
Advocates Appeared :
M.I. Joseph; For Appellant B. Regunathan; N. Sugathan; For Respondents
The main legal point established in the judgment is the requirement of hardship caused by the operation of the rules as a condition precedent for the exercise of the power under R.3 of Chapter I of the Kerala Education Rules. The judgment emphasizes the need for proper application of mind and consideration of the rights of others likely to be affected when exercising the power of dispensation or relaxation under the rules.
Headnote:
Appointment - Hindi Language Teacher - Kerala Education Rules - R.51A of Chapter XIV-A - R.3(2)(h) of Chapter II, K.E.R. - Ext. R(1)(a) - Ext. P1 - Quashing of Orders
Fact of the Case:
The appellant was appointed as a Hindi Language Full Time Teacher and later relieved due to want of vacancy. The 2nd respondent sought regularisation of his appointment as a Hindi Language teacher, which was approved by the Government. Subsequently, the Government directed the accommodation of the 2nd and 3rd respondents in vacancies, displacing the appellant. The appellant approached the court to quash the orders.
Finding of the Court:
The court found that the impugned orders were made without giving an opportunity to the appellant and without proper application of mind to the relevant facts and the scope of the power conferred by R.3. The court held that the orders were made for conferring benefits on the 2nd respondent, which was not permissible under the rules. Consequently, the court allowed the appeal, set aside the judgment of the single judge, and quashed the impugned orders.
Issues: The issues involved the validity of the orders Ext. R(1)(a) and Ext. P1, the application of R.3 of Chapter I of the Kerala Education Rules, and the entitlement of the appellant to be accommodated in the vacancy.
Ratio Decidendi: The court held that the impugned orders were made without proper application of mind and for conferring benefits not permissible under the rules. It emphasized the requirement of hardship caused by the operation of the rules as a condition precedent for the exercise of the power under R.3. The court also highlighted the need for the beneficiary to be governed by the rules and the necessity to consider the rights of others likely to be affected.
Final Decision: The appeal was allowed, the judgment of the single judge was set aside, and the impugned orders Exts. R(1)(a) and Ext. P1 were quashed. The appellant was entitled to be paid for the service she had rendered.
I. This appeal is against the judgment of the learned single judge dismissing the appellant's writ petition, O.P.No. 976 of I987. The relevant facts may briefly be stated as follows: The appellant was appointed as a Hindi Language Full Time Teacher in the L.M.S. Upper Primary School from 7-9-I982 to I5-11-I982. The said appointment was duly approved by the educational authorities. She came to be relieved from the said post with effect from I5-11-I982 for want of vacancy. As there was thus approved
service to her credit and her services came to be terminated for want of vacancy, she became a protected teacher entitled to the benefit of R.51A of Chapter XIV-A of the Kerala Education Rules, for short, the Rules When a vacancy of a Full Time Hindi Teacher occurred on the 16th August, I984 she was duly appointed to that post in recognition of the rights she had earned as a protected teacher. So far as the 2nd respondent is concerned, he was appointed as a Hindi Language teacher when the school in question had not been upgraded as Upper Primary School but had only the status of a lower primary school between I-9-1972 to 30-3-1973. The appointment was made by the Manager even though no post of a Hindi teacher was sanctioned in the said Lower Primary School. Hence the question of approving the said appointment by the educational authorities did not arise. Again the second respondent was appointed by the manager between 22-8-1973 and 30-10-1975 in the said school as Hindi language teacher. This appointment was also not against any sanctioned vacancy and the question of approving the said appointment did not arise. When such was the position, the 2nd respondent presented a petition on the 16th July, 1981 to the State Government to direct regularisation of his appointment as Hindi Language teacher, having regard to the fact that he had worked as Hindi language teacher on the strength of the appointment made by the manager during the two periods referred to above. The said representation was considered by the Govt. and an order, now produced by the Government as Ext. R(I)(a) bearing No.G.O (Rt)No. 4056/83/G.Edn. dated 28-II-I983, was passed. The Government felt that if the appointment of the 2nd respondent is approved, he could claim protection under R.51A of the Rules for appointment as Hindi Language Teacher in the L.M.S. U.P. School. The Government order, Ext. R(I)(a) reads thus:
"In the petition read as first paper above, Sri. A. Baultus, formerly Hindi Teacher, L.M.S. L.P.S. Kodankara has requested Government that his appointment in the above school with effect from I-9-1972 to 30-10-1975 may be approved.
Sri Baultus was appointed as a part-time Hindi Teacher in L.M.S. L.P.S. Kodankara initially with effect from 1-9-1972 to 20-10-1972. He was appointed in the school again with effect from 22-8-1973 and he continued there till 20-9-1975. According to R.3(2) (h) of Chapter II, K.E.R. L.P. schools having standard V attached to them are not eligible for the post of Hindi teachers. The above provision was included in the K.E.R. with effect from 5-6-1972. The school in which the petitioner was appointed was an L.P. school and he was appointed by the manager since the introduction of the above rule and hence the appointment of the teacher was not approved by the department.
The petitioner has pointed out the case of one Smt. Lalitha Bai Amma who was appointed along with him on the same date i.e. on 1-9-1972 in the L.M.S.L. P.S. Muttakkad, another school under the same management and got her appointment approved by Govt. as per G.O.Rt. 3845/80/G.Edn. dated 29-I2-I980. He has therefore requested that his appointment may also be approved as in the case of Smt. Lalitha Bai Amma.
Sri Baultus possessed S.S.L.C. Rashtra Bhasha Visarad, Rashtra Bhasha Praveen and Hindi Pracharak diploma, the qualifications required for HSA (Hindi) at the time of his appointment and hence he is better qualified than Smt. Lalitha Bai Amma. The only difference
