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1993 Supreme(Ker) 224
Judges : M.JAGANNADHA RAO,K.SREEDHARAN
Kalavathy - Appellant
Versus
Sabeena - Respondent
Case No : W.A.Nos. 393 & 625 of 1993
Decided On : 06/22/1993
Advocates Appeared :
K.G. Devarajan, C.V. Vasudevan, V. Sujatha & Govt.Pleader (Jose K. Kochupappu) For Appellants S. Venkitasubramonia Ayyar (Sr.Advocate) & V. Giri For Respondents
The main legal point established in the judgment is that R.1(3) of Chapter XIV-A of the Kerala Education Rules, which mandates the appointment of teachers in Panchayat schools from the Employment Exchange, is mandatory and precludes the general provision in R.11 for appointment by way of transfer.
Headnote:
Appointment - Mode of appointment of teachers in schools managed by panchayats - Chapter XIV-A - R.1(3), R.10, R.11 - The court discussed the mode of appointment of teachers in schools managed by panchayats and the conflict between R.1(3) and R.11 of Chapter XIV-A of the Kerala Education Rules. It held that R.1(3) requiring appointment of teachers from the Employment Exchange is mandatory and precludes the general provision in R.11 for appointment by way of transfer from one Educational Agency to another.
Fact of the Case:
The case involved a dispute regarding the mode of appointment of teachers in schools managed by panchayats. The respondent-writ petitioner sought inter-management transfer from an aided school to a Panchayat maintained school, which was contested by the Government and the appellant.
Finding of the Court:
The court found that R.1(3) of Chapter XIV-A, which requires appointment of teachers in Panchayat schools to be made from among the qualified hands advised by the Employment Exchange, is mandatory and precludes the general provision in R.11 for appointment by way of transfer.
Issues: The main issue was the conflict between R.1(3) and R.11 of Chapter XIV-A of the Kerala Education Rules regarding the mode of appointment of teachers in schools managed by panchayats.
Ratio Decidendi: The court held that R.1(3) is mandatory and precludes the general provision in R.11 for appointment by way of transfer, as it requires the appointment of teachers in Panchayat schools to be made only through the Employment Exchange.
Final Decision: The Writ Appeals were allowed, the judgment of the learned single judge was set aside, and the writ petition was dismissed. The resolution of the Panchayat for appointment of the writ petitioner was revoked, and the appellant in W.A.393 of 1993 succeeded. No costs were awarded.
Jagannadha Rao, CJ.
These two Writ Appeals are connected and arise out of O.P.No. 2204 of 1991 and can be-disposed of together. W.A.No.393 of 1993 is filed by the appellant Smt.R.Kalavathy, who is a third party to the writ petition, with leave, to question the judgment in the O.P. which has gone in favour of the respondent-writ petitioner. W. A.No.625 of 1993 is filed by the Secretary, Local Administration Department, Government of Kerala, and others, who were the four respondents in the O.P.
2. The point raised in the writ appeals is with regard to the mode of appointment of teachers in schools managed by panchayats and whether rule 1(3) of Chapter XIV-A is a special provision and precludes the general provision in R.11 of Chapter XIV-A which deals with appointment by way of transfer from the management of one Educational Agency to another school under a different Educational Agency.
3. The respondent-writ petitioner, has been working as a teacher in an aided school (viz. M.M.A.U.P. School, Alleppey) from 1984. She applied for the permanent vacancy in the Panchayat L.P. School at Ponnadu and sought inter-management transfer from the aided school at Alleppey to the Panchayat maintained school at Ponnadu under R.11 of Chapter IV-A of the Kerala Education Rules for such transfer on the presumption that the other rule, namely, R. I(3) requiring appointment of candidates from the Employment Exchange is not being mandatory. The Panchayat approved the inter-management transfer by its resolution Ext.P3 dated 30-12-1988. But the resolution was stayed by the Secretary, Local Administration Department, Government of Kerala by Ext.P4 dated 6-1-1989. The Deputy Director of Panchayats, Kollam cancelled Ext.P3 resolution by his order Ext.P6 dated 17-5-1989 on the ground that the item was not in the agenda when the resolution Ext.P3 was passed. However, the Government vacated the stay on 7-6-1990 as per the original of Ext.P7 and thereafter the Panchayat met on 10-7-1990 and approved the transfer. But the Executive Officer of the Panchayat wrote Ext.PS dated 16-7-1990 to the District Panchayat Officer objecting to the procedure adopted by the Panchayat and thereafter Under Secretary, Government wrote Ext.P9 dated 31-1-1991 to the Panchayat that the vacancy of teacher in the Panchayat can be filled up only from among the candidates sponsored by the Employment Exchange and not by way of inter-management transfer. The respondent-writ petitioner placed reliance on G.O.No.88135/Jl/77(Edn.) dated 13-10-1978 (Ext.PIO), which, according to her, permitted inter-management transfer even while filling up posts in the Panchayat.
4. The learned single judge allowed the writ petition and quashed Ext.P9 by relying on the G.O.(ExtP10) referred to above and held that the writ petitioner could be appointed by way of inter-management transfer. It is against the said judgment that these appeals are preferred.
5. The appellant in W.A.No.393 of 1993, Mrs. Kalavathi, has passed S.S.L.C. with P.D.C. and T.T.C. all in 1st Class and she passed the written test and interview conducted by the Panchayat and was, in fact, appointed as a teacher temporarily on 2-9-1991 (Annexure I in W.A.) and states that the decision in the O.P. in regard to this vacancy will jeoparadise her position. She also relies on (Annexure II) letter No.49311/ HI/91 dated 10-10-1992 issued by the Secretary to Government, Local Administration Department and addressed to the Director of Panchayats, Thiruvananthapuram, in regard to a similar case in the Pappinissery Panchayat High School, wherein it was clarified by the Government that'all the appointments of the employees including teachers and non-teaching staff to the schools under the management of the Panchayat should only (be made) through employment exchange and under no circumstance the appointments should continue by inter-management transfer and all Panchayats should be issued with strict instructions. "This clarification of the Gove
