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HIGH COURT OF KERALA
RAJA VIJAYARAGHAVAN, J
THE MANAGER, T M V HIGHER SECONDARY SCHOOL – Appellant
Versus
THE STATE OF KERALA – Respondent
WP(C)/3353/2022
Appointment - Physical Education Teacher - Kerala Education Rules, Chapter XIV, Rule 43 - The court emphasized the qualifications for the position held by the petitioner and ruled that the appointment was duly justified based on the petitioner's acquired qualifications before the vacancy arose.
Fact of the Case:
The petitioner, employed as a Menial in a school, applied for the Physical Education Teacher position after completing a BPE degree. His application was disregarded, and another candidate was appointed, leading to a series of appeals and regulatory orders that questioned the legitimacy of his disqualification.
Finding of the Court:
The court determined that the petitioner had obtained the necessary qualifications by May 2017 and had the right to be appointed as a Physical Education Teacher by the applicable rules, rejecting the manager’s dismissal of his application.
Issues: Whether the petitioner was qualified for the position of Physical Education Teacher on the date the vacancy arose and whether his application should have been considered.
Ratio Decidendi: The court ruled that the manager's rejection of the petitioner's application was unfounded, as the petitioner had acquired the required qualifications prior to the vacancy, thereby ensuring that he was the rightful claimant for the position.
Final Decision: The petitioner's appointment as Physical Education Teacher was to be upheld and the previous orders denying his application were quashed.
JUDGMENT
W.P.(C) No.2896 of 2021 is filed challenging the order passed by the 6th respondent declining the appointment of the petitioner to the post of Physical Education Teacher in the T.M.V.H.S, Perumbilavu.
2. W.P.(C) No.3353 of 2022 is filed by the Manager being aggrieved by Ext.P3 order which is dated 25.11.2021 issued by the DGE as per which it has been ordered that the petitioner in W.P.(C) No.2896 of 2021 was qualified to be appointed as a Physical Education Teacher in the said school.
3. As common issues are involved, both these writ petitions are taken up and considered by a common judgment. Reference to parties and Exhibits shall be described as in W.P.(C) No.2896 of 2021.
4. The short facts of the case are as under:
4.1 The petitioner contends that he entered the service of the T.V.M.H.S, Perumbilavu (hereinafter referred to as ‘the school’) on 1.6.2011 as a Full-Time Menial (FTM) in the vacancy of one Jaimon C.I, who was promoted as UPSA. He contends that from 1.6.2011 he has been rendering service in the said institution. While he was working as aforesaid, he applied for leave on 10.7.2013 for pursuing the course, Bachelor of Physical Education (BPE). By Ext.P2 order, the 1st respondent granted Leave Without Allowance for the period from 10.7.2013 to 31.10.2016. He contends that he joined the Bachelor of Physical Education course at the St. Joseph’s Academy of Higher Education and Research, Moolamattom, affiliated with the MG University, Kottayam, and successfully secured a pass by May 2017.
4.2 According to the petitioner, a certain Denny Job K., who was working as a Physical Education Teacher in the school retired from service on 30.6.2018. To fill up the said vacancy and also the vacancy of Junior Arabic Teacher, applications were invited from eligible persons. In Ext.P4 notification published in a vernacular daily, the last date for submission of application was not mentioned.
4.3 The petitioner in the said circumstances submitted an application for the post of Physical Education Teacher. Since the same is not accepted, he is stated to have submitted Ext.P7 application. Without considering the application submitted by the petitioner herein, the 8th respondent was appointed as Physical Education Teacher with effect from 1.6.2018. This is because, though Sri. Denny Job K. was scheduled to retire only on 30.6.2018, he took leave from 1.6.2018 onwards. Immediately thereafter, Ext.P9 appointment order was issued by the 6th respondent to the 8th respondent with a declaration that there are no eligible claimants under Rule 51A and 43 of Chapter XIV A of the KER . Ext.P9 order appointing the 8th respondent was forwarded to the 4th respondent for further action along with the declaration.
4.4. The petitioner contends that Exts.P9 and P10 orders passed by the 6th respondent are illegal as the petitioner herein was having the right to secure an appointment under Rule 43 of Chapter XIV A of the KER . It is contended that the appointment to the vacancy left behind by Sri. Denny Job K., arose only on 30.6.2018 on account of his retirement.
4.5. The petitioner in the said circumstances approached the
4th respondent who is stated to have issued Ext.P12 to the 6th respondent to consider Ext.P6 application submitted by the petitioner favorably and when no action was taken, the petitioner approached this Court, and Ext.P13 interim order dated 21.6.2018 was passed. Pursuant to the same, the 6th respondent issued Ext.P14 order rejecting the application submitted by the petitioner herein.
4.6. It is stated that by Ext.P15 judgment, this Court directed the 4th respondent to consider the entire issue after hearing both sides. The petitioner contends that pursuant to the directions issued in Ext.P15 judgment, the 4th respondent considered the matter and issued orders holding that the appointment granted to the 8th respondent was illegal and hence she was not entitled for regularization. Ext.P16 is the order passed by the 4th respondent decl
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