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2009 Supreme(Ker) 241
High Court Of Kerala
T.R. RAMACHANDRAN NAIR
Manager Chentrappinni Secondary School - Appellant
Versus
State of Kerala - Respondent
WP(C). No.9382 of 2007(P)
Decided On : 03/19/2009
For the Petitioners:V.P. Seemandini Senior Advocate, M.S. Unnikrishnan, T.K.P. Geetha Mani, M.R. Anison, T.R. Rajesh, S. Karthika, Advocates. For the Respondents:R1, R2, & R3, Antony Mukkath, Government Pleader, R4, N.N. Sugunapalan, Senior, Advocate, G. Sreekumar (Chelur)., S. Sujin Advocates.
The main legal point established in the judgment is that the date of occurrence of vacancy is crucial for determining the right to appointment under Rule 51-A, and the amendment to the rule is not retrospective, applying only to vacancies arising after its effective date.
Headnote:
Rule 51-A - Interpretation of Rule 51-A of Chapter XIV-A of the Kerala Education Rules, 1959 and the amendment to the same introduced as per G.O.(P)No. 187/2005 - Rule 51-A of Chapter XIV-A K.E.R. - The court discussed the interpretation of Rule 51-A and its amendment introduced as per G.O.(P) No.187/2005. The court highlighted the legal provisions and their interpretations, emphasizing that the date of occurrence of vacancy is relevant for determining the right to appointment and that the amendment is not retrospective, applying only to vacancies arising after its effective date.
Fact of the Case:
The case involved the appointment of a High School Assistant (English) in a school, with a claimant under Rule 51-A seeking appointment to the same vacancy. The dispute arose due to the interpretation of the amendment to Rule 51-A introduced as per G.O.(P) No.187/2005.
Finding of the Court:
The court found that the appointment of the second petitioner as H.S.A. was legal and valid, and the 4th respondent would have a claim for appointment as HSA under Rule 51-A in a vacancy arising after 26.2005. The court quashed certain orders and allowed the writ petition, declaring the validity of the second petitioner's appointment and the claim of the 4th respondent for future vacancies.
Issues: The main issue revolved around the interpretation of Rule 51-A and its amendment, specifically concerning the relevance of the date of occurrence of vacancy and the retrospective effect of the amendment.
Ratio Decidendi: The court held that the date of occurrence of vacancy is relevant for determining the right to appointment under Rule 51-A, and the amendment introduced as per G.O.(P) No.187/2005 is not retrospective, applying only to vacancies arising after its effective date.
Final Decision: The court quashed certain orders, declared the validity of the second petitioner's appointment, and affirmed the claim of the 4th respondent for future vacancies under Rule 51-A. The writ petition was allowed with no costs.
An interpretation of Rule 51-A of Chapter XIV-A of the Kerala Education Rules, 1959 and the amendment to the same introduced as per G.O.(P)No. 187/2005 arises for consideration in this case.
2. The first petitioner is the Manager of a school and the second petitioner is the newly appointed High School Assistant (English) with effect from 18.7.2005. The 4th respondent is the claimant under Rule 51-A. The school is having Upper Primary and High School Sections and she had approved service in the U.P. Section during different spells, viz. from 37.1998 to 110.1998 and 110.1998 to 16.2.2000. She has got qualification for holding the post of HSA (English).
3. Smt. P. Indira Devi, HSA retired from service on 33.2005 and thus a vacancy of HSA arose. The second petitioner was appointed as per Ext.P1 appointment order dated 18.7.2005 which was duly approved by the third respondent as per order dated 33.2006.
4. Subsequently, the 4th respondent raised her claim for appointment to the above HSA vacancy under Rule 51-A of Chapter XIV-A K.E.R. She approached the Director of public Instruction by a representation, who by Ext.P2 informed her that she is having eligibility for appointment as HSA (English) as per G.O.(P) No.187/2005. Subsequently, the 4th respondent forwarded the same along with a representation, to the first petitioner Manager and then only the Manager knew about the existence of Ext.P2. Later, the third respondent District Educational Officer directed the first petitioner to reconsider the appointment of second petitioner and to grant appointment to the 4th respondent in the light of G.O.(P) No.187/2005.
5. The first petitioner took the stand that since G.O.(P) No.187/2005 is not having any retrospective effect, the second petitioner’s appointment is not affected. Accordingly, Exts.P5 and P6 replies were given to respondent 3 and 4. Again, by Ext.P7 the third respondent District Educational Officer directed the first respondent to terminate the appointment of the second petitioner and to appoint the 4th respondent. Against this, a revision petition was filed before the Government which was directed to be disposed of by this court as per the judgment in Writ Petition No.30226/2006. By Ext.P8, the revision petition stands dismissed which is under challenge in this writ petition.
6. The Government took the view that even though the 4th respondent is not qualified on the date of occurrence of vacancy, she become qualified from 17.6.2005 in the light of the amendment made to KER. Since the second petitioner was appointed only on 18.7.2005, subsequent to the amendment and as Rule 51-A being a special provision to protect the interest of a thrown out teacher, the appointment cannot be denied to the 4th respondent on the ground that on the date of occurrence of vacancy, she was not qualified.
7. Heard learned counsel for the petitioner Shri M.R. Anison, learned Senior Counsel Shri N.N. Sugunapalan, for the 4th respondent and learned Government Pleader Shri Antony Mukkath, for respondent 1 to 3.
8. Learned counsel for the petitioner mainly contended that herein, the vacancy arose on 4.2005 consequent on the retirement of the Teacher and the amendment introduced as per G.O.(P) No. 187/2005 was brought into force only on 17.6.2005. As the said provision is not retrospective, the qualification for appointment has to be considered as on the date of occurrence of vacancy. Prior to the amendment, the provision envisaged a preference in the matter of appointment to an identical post, viz. the post of UPSA here and thus the 4th respondent was not entitled to claim any preference for appointment of HSA (English). Such claim would therefore arise only in a vacancy that arose on or after 17.6.2005. Learned counsel relief upon various decisions of this court, viz. Varghese & others v. State of Kerala and others (1981 KLT 458 (FB)), Padmanabhan Nair v. Deputy Director (1991 (1) KLT 337 (FB)), Neema Rajan v. Jyothi Chardran (2001 (3) KLT
