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2009 Supreme(Online)(KER) 46135
HIGH COURT OF KERALA
T.R.RAMACHANDRAN NAIR, J
K.J.JESSY – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/35993/2008
MR.V.A.MUHAMMED, MR.K.E.HAMZA, GOVT. PLEADER SMT.M.R.SREELATHA, MR.MILLU DANDAPANI, MR.A.D.RAVINDRA PRASAD, SRI.K.PADMANABHAN
Leave substitutes have the right to regularization against permanent vacancies based on seniority under Kerala Education Rules, regardless of prior approval status.
Headnote:
Employment - Educational Appointments - Kerala Education Rules - Sections 51A, XIV-A - The court upheld the right of leave substitutes to be regularized against available vacancies, interpreting seniority and approval as pivotal for legal entitlement.
Fact of the Case:
Petitioners were appointed as Upper Primary School Assistants but did not receive government approval due to a hiring ban. Following retirements, permanent posts became available but petitioners were denied appointment, leading to a legal challenge.
Finding of the Court:
The court found that the petitioners had rights to be appointed against the permanent vacancies based on their prior service as leave substitutes, in accordance with Kerala Education Rules, despite the Manager's non-approval.
Issues: Whether the petitioners were entitled to be appointed to permanent vacancies in absence of prior approval?
Ratio Decidendi: The court concluded that the lack of approval for initial appointments does not negate entitlement to subsequent regularization based on seniority and relevant rules.
Final Decision: The writ petition was allowed; prior orders denying petitioners' appointments were quashed.
J U D G M E N T
The petitioners herein have been appointed as Upper Primary School Assistants by the fourth respondent-Manager from 12/06/2006 onwards as per Exts.P1 and P2. The approval to Exts.P1 to P2 was declined by the Educational Officer on the ground that there is ban order from the Government in filling up the vacancies of teaching posts in Aided Schools. Even though appeals have been filed before the Deputy Director and the Director, the orders of rejection were confirmed. But, the petitioners are still working in the school.
2. In April and May 2007, 4 High School Assistants under the Management retired from service. In June 2007, 4 Upper Primary School Assistants were promoted as High School Assistants. One post of Upper Primary School Assistant was reduced in 2007-08. Thus, there arose three U.P.S.A regular and permanent posts, under the Management but the petitioners were not appointed recognising their claim under Rule 51A of Chapter XIV A of Kerala Education Rules . It is contended that going by Ext.P5 Government Order, the service of a leave substitute is liable to be regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority.
3. Ext.P6 is the order whereby appointment of the fifth respondent has been approved. The petitioners filed statutory revisions before the Director of Public Instruction as per Exts.P7 and P8 which was ultimately allowed as per Ext.P10. But, the same has been set aside by the Government in Ext.P12 which is under challenge in this writ petition.
4. Heard the learned counsel for the petitioners Shri V.A.Muhammed, the learned Senior Counsel Shri K.P.Dhandapani for the Manager and Shri K.Padmanabhan learned counsel appearing for the fifth respondent.
5. The learned counsel for the petitioners relied upon Ext.P5 Government Order as well as the decisions of this Court in Exts.P13 and P14 and a recent decision of a Division Bench of this Court in Geetha S. v. Geo Thomas K.
and Others [2009 (4) KHC 296 (DB)].
6. In the counter affidavit filed on behalf of the second respondent, it is pointed out that consequent on the retirement of two High School Assistants and promotion of two High School Assistants as Headmasters during April and May 2007, there arose the vacancy of four High School Assistants. Four Upper Primary School Assistants were promoted as High School Assistants during 2007-08, one post of Upper Primary School Assistant was reduced. Thus, there arose the vacancy of three regular posts of Upper Primary School Assistants in the school. It is averred that the petitioners ought to have been shifted against the regular post but the Manager made appointment of three fresh hands. It is further pointed out that the petitioners did not have any previous approved service and hence, the appointment of the fresh hands were approved.
7. In the affidavit filed in support of I.A.No.13015/2009, by the fifth respondent, it is pointed out that the fifth respondent was being paid salary and the appointment of the said respondent has been approved already.
8. The crucial question, therefore, is whether in the absence of the approval of appointments of the petitioners, they are liable to be absorbed against permanent/regular vacancies. In this regard, the petitioners' contentions is supported by Ext.P5 Government Order wherein the Government clarified that the services of the leave substitutes will be regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority. InPoornima v. Director of Public Instructions [ 2005 (3) KLT 502 ] it was held by this Court that for the purpose of applying Rule 51A of Chapter XIV A, what is relevant is the date of first appointment and not the date on which such appointment is approved.
9. The learned counsel for the petitioners is well founded in his submission in the light of the recent decision in Geetha's case [2009 (4) KHC 296 (DB)]. The question considered therein was
