WP(C) NO. 11509 OF 2019 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944
WP(C) NO. 11509 OF 2019
PETITIONER/S:
SUJA RAJAN R.
AGED 43 YEARS
WIFE OF BIJU HARIHARAN, HIGH SCHOOL ASSISTANT
(PHYSICAL SCIENCE), VOCATIONAL HIGHER SECONDARY
SCHOOL, NADUVATTOM, P.O. NADUVATTOM, HARIPAD,
ALAPPUZHA DISTRICT-690 512.
BY ADVS.
V.A.MUHAMMED
SRI.V.RAJASEKHARAN NAIR
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF PUBLIC INSTRUCTION
JAGATHY, THIRUVANANTHAPURAM-695 014.
3 THE DEPUTY DIRECTOR OF EDUCATION
ALAPPUZHA-688 001.
4 THE DISTRUCT EDUCATIONAL OFFICER
ALAPPUZHA DISTRICT-688 011.
5 THE MANAGER
VOCATIONAL HIGHER SECONDARY SCHOOL, NADUVATTOM
P.O. NADUVATTOM, HARIPAD,
ALAPPUZHA DISTRICT-690 512.
SMT NISHA BOSE SR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 01.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 11509 OF 2019 2
JUDGMENT
The petitioner contends that she has approved service as UPSA in the Vocational Higher Secondary School, Naduvattom, an aided school governed by the provisions of the Kerala Education Act and Rules framed thereunder. The said school is being managed by the 5th respondent. The period of approved service as UPSA was from 13.7.2000 to 20.9.2000 and that too in a leave vacancy. The fact is evident from Ext.P1 order of appointment.
2. The petitioner states that she was re-appointed as HSA Physical Science from 29.8.2017 against a regular promotion vacancy which arose when one Smt.S.Radhika, was promoted as Headmistress with effect from 1.4.2010. According to the petitioner, DEO has sanctioned 14 posts of HSA (CS) and HSA (PS) as per Exhibit P5 staff fixation order dated 14.7.2017. It is the case of the petitioner that in view of Exts.P5 and P6, there was an established vacancy of HSA (PS) as of 29.8.2017 to accommodate the petitioner. The petitioner contends that the only reason stated for not granting the approval is that she is overaged. According to the petitioner, challenging Ext.P3 order declining the approval of the petitioner, she has preferred Ext.P10 revision petition before the Government. However, her request was rejected for two reasons. The first reason is that the petitioner was not entitled to claim exemption with regard to age as she is not a Rule WP(C) NO. 11509 OF 2019 3 51A claimant and for the reason that she had no service for not less than one academic year prior to 16.4.2005. The second reason for rejection is that though the five Rule 43 claimants have relinquished their claim for promotion, the District Educational Officer had not approved the same as the petitioner's appointment has not been approved.
3. The petitioner contends that Ext.P7 Government Order and Exts.P8 and P9 memorandums which provide for age exemption were not considered by the Government and hence the order passed is bad in law. The petitioner also refers to Ext.P11 order and states that there is an admission therein that the senior Rule 43 claimants have relinquished their claims. It is on these grounds that this writ petition is filed seeking to quash Exts.P3 and P11 orders and for a declaration that the petitioner is entitled to appointment from 29.8.2017 as HSA (PS) and for consequential reliefs.
4. In the counter-affidavit, it is stated that in order to get the benefit of 51 A claim, the claimant should have a previous service of one academic year. As the petitioner has only previous service from 13.7.2000 to 20.9.2000, she cannot be considered as a 51A claimant in accordance with the existing amended Rules. It is also stated that in order to get the benefit of 51A claim, a teacher like the petitioner, who secured an appointment after 16.4.2005, should have previous service in an academic year and that too in the same post. It is also stated that the petitioner is overaged and she is not eligible for a relaxation of age as she had no 51 A WP(C) NO. 11509 OF 2019 4 claim. It is also stated that at the time of her appointment as HST (PS), five UPSTs having 43 A claim were working in the school and whose relinquishment for promotion were not approved by the 4th respondent.
5. The learned counsel appearing for the petitioner submitted that reasons afforded by the respondents for rejection of the approval of the petitioner cannot be accepted. By referring to Ext.P14 series, it is pointed out that 5 UPSTs who are said to have Rule 43 claims have relinquished their claims and the DEO, Alappuzha, has endorsed the same. The learned counsel also referred to Ext.P15 Government Order No. G.O.(P) No.4/2021/G.Edn. Dated 6.2.2021 and it is argued that in para 4 of the above Government Order, it is stated that those persons who got Rule 51 A claim prior to 2005 as per the then existing Rules are entitled for exemption from the maximum age limit and their reappointment can be approved without insisting for the maximum age limit. The learned counsel contends that the petitioner had got approved appointments from 13.7.2000 as per Ext.P1 and she had got a claim under Rule 51A as per the then existing Rules. In view of Ext.P15, the reappointment of the petitioner from 29.8.2017 is liable to be approved without insisting for the maximum age limit.
6. The learned Government Pleader has vehemently opposed the request made by the petitioner. It is submitted that the Government Order which the petitioner relied on, was issued only on 6.2.2021 and the same WP(C) NO. 11509 OF 2019 5 cannot be made applicable to the petitioner herein.
7. I have considered the submissions advanced. I find that Ext.P11 order has been passed rejecting the approval on two grounds. One is with the relaxation of age and the other is with regard to the non- approval of the relinquishment letters issued by the Rule 43 claimants. Insofar as the second reason is considered, the petitioner has placed on record Ext.P14 series as per which the Rule 43 claimants have relinquished their claims and the same has been endorsed by the educational authorities. I also find that the Government has now come up with Ext.P15 Government Order wherein it has been stated that teachers who have a Rule 51A claim prior to 2005 as per the then-existing rules are entitled to exemption from the maximum age limit and their reappointments can be approved without insisting on the maximum age limit. While passing the impugned order, these aspects have not been taken note of by the 1st respondent. In that view of the matter, I am of the considered opinion that Exhibit P11 is liable to be set aside. Necessary directions can be issued to the 1st respondent to reconsider the matter adverting to Exhibit P14 series and Exhibit P15.
Resultantly Exhibit P11 will stand set aside. There will be a direction to the 1st respondent to reconsider the entire matter and pass fresh orders adverting to Exhibit P14 series and Exhibit P15 with due notice to the petitioner herein and the affected parties, if any. Orders shall be passed expeditiously, in any event, within a period of 60 days from the date of WP(C) NO. 11509 OF 2019 6 production of a copy of the judgment. The petitioner shall produce a copy of the writ petition along with the judgment before the 1st respondent to ensure compliance.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE sru WP(C) NO. 11509 OF 2019 7 APPENDIX OF WP(C) 11509/2019 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPROVED APPOINTMENT ORDER OF THE PETITIONER DATED 5.4.2004.
EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 29.8.2017.
EXHIBIT P3 TRUE COPY OF THE ORDER NO.B4/5896/17 DATED 15.1.2018 OF THE 4TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGE OF THE SSLC BOOK OF THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE ORDER NO.L.DIS.B4/3671/2017 DATED 14.7.2017 OF THE 4TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE STATEMENT NO.V-B (SUBJECT WISE LIST OF HSA GRADUATES AS ON 29.8.2017).
EXHIBIT P7 TRUE COPY OF THE G.O.(RT.)
NO.1219/62/EDN. DATED 7.5.1962 OF THE
GOVERNMENT.
EXHIBIT P8 TRUE COPY OF THE MEMORANDUM NO.17759-
A2/62/EDN. DATED 15.10.1962 OF THE
GOVERNMENT.
EXHIBIT P9 TRUE COPY OF THE MEMORANDUM NO.L.DIS.
134758/64/H2 DATED 16.11.1964 OF THE
GOVERNMENT.
EXHIBIT P10 TRUE COPY OF THE REVISION PETITION
SUBMITTED BEFROE THE GOVERNMENT DATED
29.2.2018.
EXHIBIT P11 TRUE COPY OF THE G.O.(RT.)
NO.942/2019/GEDN. DATED 11.3.2019 OF THE GOVERNMENT.
EXHIBIT P12 TRUE COPY OF THE ARGUMENT NOTES SUBMITTED AT THE TIME OF HEARING DATED 15.5.2018 WP(C) NO. 11509 OF 2019 8 WITHOUT EXHIBITS.
EXHIBIT P13 TRUE COPY OF THE RELINQUISHMENT OF RULE 51-A CLAIMANT (SMT. JAYASREE R DATED 29.8.2017).
EXHIBIT P13(A) TRUE COPY OF THE RELINQUISHMENT OF RULE 51-A CLAIMANT (SMT. JAYALAKSHMY T.P.
DATED 29.8.2017) EXHIBIT P13(B) TRUE COPY OF THE RELINQUISHMENT OF RULE 51-A CLAIMANT (SRI.C.G.SANTHOSH KUMAR DATED 29.8.2017).
EXHIBIT P13(C) TRUE COPY OF THE RELINQUISHMENT OF RULE 51-A CLAIMANT (SMT. LATHA NAIR K. DATED 29.8.2017).
EXHIBIT P13(D) TRUE COPY OF THE RELINQUISHMENT OF RULE 51-A CLAIMANT (SMT. MAHILAMANY AMMA DATED 29.8.2017).
Exhibit P14 TRUE COPY OF THE RELINQUISHMENT OF SMT.
LEKHA NAIR K DATED 29/8/2017 ALONG WITH ENDT. OF THE DEO, ALAPPUZHA Exhibit P14(A) TRUE COPY OF THE RELINQUISHMENT OF SMT.
MAHILAMANI AMMA E DATED 29/8/2017 ENDT.
OF THE DEO,ALAPPUZHA Exhibit P14(B) TRUE COPY OF THE RELINQUISHMENT OF SMT.JAYASREE R DATED 29/8/2017 ALONG WITH ENDT.OF THE DEO, ALAPPUZHA Exhibit P14(C) TRUE COPY OF THE RELINQUISHMENT OF SMT.RAJALAKSHMY T.P.DATED 29/8/2017 ALONG WITH ENDT.OF THE DEO, ALAPPUZHA Exhibit P14(d) TRUE COPY OF THE RELINQUISHMENT OF SRI.C.G.SANTHOSH KUMAR DATED 29/8/2017 ALONG WITH ENDT.OF THE DEO, ALAPPUZHA Exhibit P15 TRUE COPY OF THE G.O.(P) NO.4/2021/G.EDN.DATED 6/2/2021 OF THE GOVT.
WP(C) NO. 11509 OF 2019 9Exhibit P16 TRUE COPY OF THE KTET ELIGIBILITY CERTIFICATE DATED 16/12/2021 RESPONDENT EXHIBITS : NIL