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2017 Supreme(Online)(KER) 13851
HIGH COURT OF KERALA
A. Muhamed Mustaque, J
BETTY JOHN – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/37649/2010
SRI.R.SUDHISH, SMT.M.MANJU, SRI.K.R.RANJITH, SRI.M.R.ANISON, SMT.K.P.GEETHA MANI, SMT.S.KARTHIKA, SRI.M.S.UNNIKRISHNAN
The judgment establishes that claimants under Rule 51A retain fixed rights to appointment, which cannot be waived without clear evidence, and previously determined judicial rulings must be upheld.
Headnote:
Rule 51A - Educational Appointments - Rule 51A - Summary of Provisions and Interpretations: The court upheld the petitioner's claim under Rule 51A, emphasizing her entitlement over management claims, rejecting any waiver for appointment delays, asserting fixed rights despite prior protected teacher deployments.
Fact of the Case:
The petitioner, a Rule 51A claimant, contested the government order that required her appointment be made only if there were no protected teachers available. This challenge arose after her claim was initially upheld, but her appointment was delayed until 2010.
Finding of the Court:
The court reinforced the petitioner's right under Rule 51A and concluded there was no evidence of her waiving her claim for retroactive appointment. The deployment of protected teachers did not mitigate her right established by previous court rulings.
Issues: The key issues were whether the petitioner waived her appointment claim through a settlement and if the presence of protected teachers negated her right to appointment from an earlier date.
Ratio Decidendi: The court determined that a waiver cannot be assumed without clear evidence and that the presence of protected teachers does not affect the rights already confirmed in prior judicial rulings.
Final Decision: The petitioner is entitled to appointment with effect from 18/7/2005, with all service benefits recognized from that date.
J U D G M E N T
The petitioner is a Rule 51A claimant. Her claim was upheld by the Government by Exhibit P1 order. The operative portion of the government order reads as follows:
“In the circumstances the Educational Officers are directed to take action to appoint Smt.Betty John as LG HT with effect from 18/7/05 as she is a 51A claimant, if there were no protected teacher totally undeployed or deployed in Government Schools available for deployment at the time of her appointment, and if she is otherwise eligible. The direction of the Honorable High Court is complied with accordingly.”
This was challenged by the petitioner as well as the Manager before this court. The petitioner was aggrieved by the direction of the Government to accommodate her, if there are no protected teachers totally undeployed or deployed in Government Schools. Her case is that she is Rule 51A claimant and therefore, her claim cannot be made subsequent to the deployment of WPC 37649/2010 protected teachers. The Manager challenged the above government order to the extent upholding her claim as a Rule 51A claimant. By a common judgment produced as Exhibit P2 , this Court negatived the claim of the Manager and upheld the claim of the petitioner. Therein, this Court found that the petitioner being a 51A claimant, she is entitled for preference and therefore, the further direction in Ext.P1 government order cannot be supported. Thereafter, the petitioner was appointed on 14.1.2010. This was approved on the same day.
2. The petitioner's present grievance is regarding the date of appointment. The petitioner submits that her appointment ought to have been with effect from 18/7/2005 as directed in Exhibit P1 government order. In the counter affidavit filed by the Manager, it is stated that there was a settlement between the petitioner and the management whereby the petitioner agreed to forego her claim for appointment with effect from 18/7/2005. It is further submitted that based on such settlement, the writ appeal filed by the management challenging Exhibit P2 judgment was withdrawn. In the counter affidavit filed by the first respondent on behalf of the Government it is stated that the petitioner's right to appointment would WPC 37649/2010 arise only if there are no protected teachers and since there was one Junior Hindi Teacher (FT), Smt. Bindu Prasad deployed at Government School, the petitioner could not be accommodated with effect from 18/7/2005.
3. Heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel for the Manager.
4. So far as the question of right of the petitioner in terms of Rule
51A cannot be disputed in as much as that Exhibit P1 already declared the petitioner's right and it attained finality through Ext.P2 judgment of this Court. There are two questions arising as to the claim of the petitioner with effect from 18/7/2005. First is whether there was a waiver of a claim by a subsequent settlement and secondly, whether there was a protected teacher, who could have denied the petitioner's right to claim approval of appointment with effect from 18/7/2005. So far as the first question is concerned, this Court is of the view that there are no materials to evidence that the petitioner expressed her willingness to forego her claim for appointment with effect from 18/7/2005. In the absence of any evidence, the contention of the Manager in that regard has to be repelled. In regard to the second point, based on the deployment of protected teachers, this Court is of WPC 37649/2010 the view that such objection is unsustainable in as much as that Exhibit P2 judgment has concluded this issue. By Exhibit P2 judgment, this Court found that such direction in Exhibit P1 has to be vacated. If that be so, this court is of the view that the petitioner is entitled for appointment with effect from 18/7/2005. Accordingly, it is declared so. Therefore, for all service benefits, the period of the petitioner shall be notionall
