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2014 Supreme(Online)(KER) 13822
HIGH COURT OF KERALA
A.V.RAMAKRISHNA PILLAI, J
K K LEELAMBIKA – Appellant
Versus
STATE OF KERALA – Respondent
WRIT PETITION (CIVIL) 164/2011
Statutory rights of appointment under Rule 51A cannot be denied based on executive decisions related to school economics.
Headnote:
Employment - Petitioner's Appointment - KER Rule 51A - The court highlighted the provisions of Rule 51A under Chapter XIVA KER, establishing the right of the petitioner for appointment despite uneconomic conditions in the school, influencing the decision to quash the rejection of approval.
Fact of the Case:
The petitioner, an L.P. School Assistant, faced denial of appointment approval and protection after being rendered surplus. Despite having a valid claim and relevant service history, the authorities rejected her appointment in a long leave vacancy, citing uneconomic circumstances of the school.
Finding of the Court:
The court found that the rejection of the petitioner's claim was unjustified, emphasizing that rules governing appointments must be respected over executive decisions and that the petitioner had a statutory right to appointment under Rule 51A.
Issues: Whether the petitioner's right to appointment under Rule 51A outweighs the argument that the school being uneconomic justifies rejection of her appointment approval.
Ratio Decidendi: The court established that existing statutory rights cannot be overridden by executive orders, particularly in the absence of indicated available protected teachers, thereby prioritizing the petitioner’s entitlement.
Final Decision: Writ petition allowed; approval for appointment granted.
J U D G M E N T
Aggrieved by the denial of approval of appointment notwithstanding the availability of post and valid claim under Rule 51A of Chapter XIVA KER , as per Ext.P12, the petitioner has come up before this Court.
2. The petitioner got appointment as L.P.School Assistant under the 5th respondent initially with broken service and ultimately in a permanent substantive vacancy. She was subsequently rendered surplus during the academic year 2007-
2008.
3. The grievance of the petitioner is that she was neither retained in the School nor given protection. The claim for retention made in Ext.P9 was turned down as per Exts.P10 and P11. Later, she was appointed in a long leave vacancy from 01.04.2010 to 31.05.2014. However, the approval of the the said appointment was rejected by the respondents as per Ext.P12.
4. I have heard learned counsel for the petitioner, the learned Senior Government Pleader as well as the learned counsel for the 5th respondent, the Manager of the School.
5. Petitioner is having approved service from the year
1995 onwards, as evident from Exts.P1 to P8. However, due to division falls, she was rendered surplus during the academic year 2007-2008 and though she was entitled for the benefit of Circular No.M3/41704/99/DPI dated 09.09.1999, the same was denied as per Exts.P10 and P11.
6. The present grievance of the petitioner is that, though she has been appointed in the long leave vacancy which arose in the school from 01.04.2010 to 31.05.2014, approval of the same was also rejected as per Ext.P12 relying on Exts.P13 and P14. According to the petitioner, the same cannot be justified.
7. The learned Senior Government Pleader on the strength of Exts.P13 and P14 would submits that the rejection of the petitioner's claim as per Ext.P12 is valid. In answer to the said argument, the learned counsel for the petitioner inviting my attention to the decision of this Court inThomas v. Director of Public Instructions, [2011(2) KLT 654] wherein the relevance of Ext.P13 was considered. Ext.P13 was marked as Ext.P10 in the aforesaid case. What is stated in Ext.P10 is that the vacancies in uneconomic School should be filled up only by protected teacher. However, this Court in the aforesaid case found that, in view of the specific provisions under Rule 51A of Chapter XIVA KER and also in the absence of any material to show that the protected teachers are available under the educational agency, the contention of the State cannot be sustained. It is evident from Rule 51A that the petitioner has got a right of appointment under the aforesaid Rule. The same cannot be denied on the ground that the School is uneconomic.
8. As rightly pointed out by the learned counsel for the petitioner, the stand taken in Exts.P12 to P14 cannot be sustained, in view of the decision of this Court, as per which a teacher who is entitled to the benefit of Rule 51A has preference for getting appointment to the arising vacancies over a protected teacher. Therefore, the approval for appointment of the petitioner in the long leave vacancy cannot be rejected on the ground that the said School is an uneconomic one. It is also settled law that the right conferred on a person by a statutory rule cannot be taken away by an executive order.
9. In the light of the above, this Court is of the definite view that the petitioner is entitled to succeed. Therefore, this writ petition is allowed. Ext.P12 is quashed and the respondents are directed to grant approval to the petitioner's appointment as LPSA in the leave vacancy of Smt.Hemalatha from 01.04.2010 to 31.05.2014 and disburse the salary due to her. Formal orders to that effect shall be issued by the 4th respondent within a period of three months from today.
To facilitate an early action, the petitioner shall be at liberty to produce a copy of this judgment before the respondent concerned within a period of one month from today.
