A.Haneeza Beevi vs State Of Kerala
2021 Latest Caselaw 1943 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942

                      WP(C).No.19279 OF 2013(H)


PETITIONER:

               A.HANEEZA BEEVI, AGED 40 YEARS
               T.S.A.IN NALANDA TEACHER TRAINING SCHOOL, NANNIYODE,
               PACHA.P.O, RESIDING AT RAMLA MANZIL,
               MANNOORKONAM.P.O,NEDUMANGAD.

               SRI.M.R.SARIN

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY ITS SECRETARY TO GOVT.,
               SECRETARIAT,THIRUVANANTHAPURAM-695001.

      2        THE DIRECTOR OF EDUCATION
               THIRUVANANTHAPURAM-695001.

      3        THE DEPUTY DIRECTOR OF EDUCATION
               THIRUVANANTHAPURAM-695001.

      4        THE DISTRICT EDUCATIONAL OFFICER
               ATTINGAL-695003.

      5        THE MANAGER
               NALANDA TTI,NANNIYODE,PACHA.P.O,PIN-695006.

               SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD         ON
19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.19279 OF 2013(H)

                                         2


                                    JUDGMENT

Dated this the 19th day of January 2021

The petitioner says that she was appointed as a Training

School Assistant (TSA) in English in Nalanda TTI, Nanniyode,

in the promotion vacancy of an incumbent who was promoted

as Headmaster. The petitioner has produced Ext.P1

appointment order in substantiation of her afore assertion but

says that the approval of such appointment was rejected by the

Educational Authorities solely saying that, since the vacancy

arose consequent to the promotion of a TSA (Maths) as

Headmaster, only a teacher qualified in the said subject can be

appointed.

2. The petitioner says that this was done on the strength

of the Government Circular No.6/D3/96/G.Edn. dated

10.07.1996 but that this Circular was amended through a

subsequent Circular dated 12.08.2011, which made it clear

that the newly appointed person need not be hold qualification

in the same subject in which the vacancy arose.

3. The petitioner says that, subsequently, the fourth

respondent issued a communication dated 24.03.2012,

approving the appointment of another teacher - Smt.Preetha - WP(C).No.19279 OF 2013(H)

as TSA (Maths); while her appointment was approved only

with effect from 12.08.2011 citing the afore said reason. She

says that she, therefore, preferred a representation before the

Government but that the same has been rejected through

Ext.P14 citing that the Circular dated 12.08.2011 has no

retrospective effect and would not apply to her since she was

appointed prior to its issuance.

3. The petitioner, therefore, prays that Ext.P14 be set

aside and the Government be directed to reconsider her claim

for being approved with effect from 02.06.2008, contending

that the Circular dated 12.08.2011 cannot be deemed to be

prospective since it amends the earlier Circular dated

10.07.1996, thus giving effect to it from that date.

4. In response, the learned Senior Government Pleader

submitted that the sole reason why the Government has been

incapacitated from considering the petitioner's plea is because

the Circular relied upon by her dated 12.08.2011, was issued

much after she had been appointed on 02.06.2008. He

submitted that until the amendment had been made, the

earlier Circular dated 10.07.1996 covered the field, as per

which the vacancy could have been filed up only with a person

qualified in the subject in question. The learned Senior WP(C).No.19279 OF 2013(H)

Government Pleader, therefore, prayed that this writ petition

be dismissed.

5. I have considered the afore submissions and have also

gone through the materials available on record.

6. It is doubtless that, through the Government Circular

dated 10.07.1996, it was mandated that when a vacancy arose

on account of the promotion of a TSA to the post of

Headmaster, the said vacancy can be filled up only by a

teacher who is qualified in the same subject. However, the

Government then issued the amending Circular dated

12.08.2011, as per which, when TSAs in Maths are promoted

to the Headmaster, the resultant vacancy can be filled by any

other person holding commensurate qualification, but not in

the subject concerned. This Circular has been placed on record

as Ext.P8 and it specifies that the changes therein will be

applicable only to future appointments and that TSAs already

appointed in service will not be affected by this. Obviously

what was, therefore, meant through Ext.P8 is that teachers

who are already appointed would not be affected by the

change and that all further appointments will adhere to its

terms.

7. That said, the question in this case is whether the WP(C).No.19279 OF 2013(H)

petitioner's appointment with effect from 02.06.2008 can be

approved, particularly because it is conceded that a vacancy

arose in the post of TSA (Maths) consequent to the promotion

of the incumbent to the post of Headmaster. Going by Ext.P8,

there is no doubt that the petitioner would be entitled to be so

approved, but the question is whether the last portion of

Ext.P8 which says that "the change will be applicable only to

future appointments" would stand in the way of such benefits

being given to her.

8. In fact, I notice that Ext.P14 has rejected the

petitioner's claim only because it has been interpreted that

Ext.P8 Circular would apply only to vacancies that arise

subsequent to it. However, as is well known, a Circular is not

a statutory order and cannot alter or take away rights, which

are governed by the applicable Statutes and Regulations.

9. In the case at hand, there is not doubt that the

petitioner was appointed on 02.06.2008 to a vacancy caused

by the promotion of a teacher to the post of Headmaster and

the Educational Authorities have, in fact, approved the

appointment of another teacher by name Preetha, who is TSA

in Maths with effect from 02.06.2008 on account of such

reason. However, the petitioner's approval has been granted WP(C).No.19279 OF 2013(H)

only with effect from 12.08.2011 and her claim is that she be

given this benefit from the date of her initial appointment. I

am, therefore, of the firm view that this is a matter that

requires reconsideration at the hands of the Government,

particularly as to whether Ext.P8 would impede the statutorily

vested rights of the petitioner to be considered for approval

with effect from the date of her first appointment, especially

because there was admittedly a vacancy available to

accommodate her. This is more so because, as I have said

above, the other teacher, namely Smt.Preetha has been

approved as TSA (Maths) with effect from 02.06.2008 and I

see no cogent reason why the petitioner has been denied this

benefit.

In the afore circumstances, I order this writ petition and

set aside Ext.P14; with a resultant direction to the competent

Authority of the Government to reconsider the petitioner's

claim for being approved with effect from 02.06.2008, taking

note of the fact that she had worked in the said post from that

date against sanctioned vacancy.

The afore exercise shall be completed by the

Government, after affording an opportunity of being heard to

the petitioner - either physically or through video conferencing WP(C).No.19279 OF 2013(H)

- leading to an appropriate decision thereon, as expeditiously

as is possible, but not later than four months from the date of

receipt of a copy of this judgment.

I make it clear that while completing the afore exercise,

the Government will consider the impact of Ext.P8, particularly

with respect to its last portion which says that TSAs already

appointed in service will not be affected by the amendment

and keeping in mind the fact that the vacancy in question had

been filled up through the petitioner, after she was found to be

fully qualified to hold the said post albeit in a different

subjects.

                                        Sd/- DEVAN RAMACHANDRAN

    Stu                                          JUDGE
 WP(C).No.19279 OF 2013(H)





                               APPENDIX
    PETITIONER'S EXHIBITS:

    EXHIBIT P1        A TRUE COPY OF THE APPOINTMENT ORDER DATED
                      2.6.08

    EXHIBIT P2        A TRUE COPY OF THE COMMUNICATION DATED
                      1.9.2008

    EXHIBIT P3        A TRUE COPY OF THE APPEAL DATED 25.9.2008

    EXHIBIT P4        A TRUE COPY OF THE ORDER DATED 5.3.2009

    EXHIBIT P5        A TRUE COPY OF THE REVISION PETITION DATED
                      10.06.2009

    EXHIBIT P6        A TRUE COPY OF THE ORDER DATED 15.10.2010

    EXHIBIT P7        A TRUE COPY OF THE REVISION PETITION DATED
                      11.10.10

    EXHIBIT P8        A TRUE COPY OF THE CIRCULAR

NO.78022/D3/08/G.EDN.DATED 12.08.2011

EXHIBIT P9 A TRUE COPY OF THE LETTER NO.H2/61608/10 DATED 3.9.11

EXHIBIT P10 A TRUE COPY OF THE REPRESENTATION DATED 6.9.2011

EXHIBIT P11 A TRUE COPY OF THE COMMUNICATION DATED 29.11.2011

EXHIBIT P12 A TRUE COPY OF THE COMMUNICATION DATED 24.03.2012

EXHIBIT P13 A TRUE COPY OF THE REPRESENTATION DATED 1.06.2012

EXHIBIT P14 A TRUE COPY OF THE COMMUNICATION DATED 26.09.2012.