Kerala High Court
Thushara L.Unni vs State Of Kerala on 21 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942
WP(C).No.3782 OF 2012(W)
PETITIONER:
THUSHARA L.UNNI
AGED 33 YEARS
U.P.S.A,W/O.MAJEENDRAN,'THUSHARAM',NAVARAPOTTA,KOLLENGODE.P.O
,PALAKKAD DISTRICT.
BY ADVS.
SRI.T.P.RAJENDRAN NAIR
SRI.T.R.RAJEEV
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,GENERALEDUCATION
DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM,PIN-695001.
2 DIRECTOR OF PUBLIC INSTRUCTIONS
THIRUVANANTHAPURAM-695001.
3 DISTRICT EDUCATIONAL OFFICER
PALAKKAD-678001.
4 ASST. EDUCATIONAL OFFICER
KOLLENGODE-678506.
5 THE MANAGER
PERUMAL KOVIL DEVASWOM,U.P.SCHOOL,KOLLENGODE.P.O,PALAKKAD
DISTRICT,PIN-678506.
6 ASST. COMMISSIONER, MALABAR DEVASWOM BOARD, PALAKKAD
BY SRI.R.LAKSHMI NARAYAN, SC
BY ADV. SRI.N.N.SUGUNAPALAN SR.
BY ADV. SRI.S.SUJIN
BY SRI.V.KRISHNA MENON, SC
BY SRI.PARTHASARATHY.B, SC
BY SRI.MAHESH V.RAMAKRISHNAN, SC
BY ADV. SRI.N.N.SUGUNAPALAN (SR.)
OTHER PRESENT:
SRI. P.M.MANOJ - SR.GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.3782 OF 2012(W)
2
JUDGMENT
The petitioner has approached this Court seeking a
direction to respondents 3 and 4 to regularize her appointment
as an Upper Primary School Assistant (UPSA), in Perumal Kovil
Devaswom U.P.School, Palakkad, from the academic year 2006
- 2007 onwards. She has also prayed that the 5th respondent be
directed to refix the pay and allowances and take necessary
steps for her approval and disbursement of monetary benefits as
expeditiously as is possible.
2. Sri.T.R.Rajeev, learned counsel appearing for the
petitioner, submitted that during the academic year 2006-2007,
a vacancy of Upper Primary School Assistant arose consequent
to the retirement of a certain Sri.Vijayan and that since the
petitioner was fully qualified, she staked claim to it. He
submitted that, however, the Manager appointed a certain
Sri.Gopi and therefore, that the petitioner approached this
Court by filing W.P.(C)No.13768/2006, which was disposed of
through Ext.P5 judgment, directing the Manager to take a
decision on her representation.
3. The learned counsel for the petitioner further says
that even though his client was entitled fully to the benefits of
WP(C).No.3782 OF 2012(W)
Rule 51A Chapter XIVA of the Kerala Education Rules (for short
KER) - she having worked in the School from 02.07.1997 to
11.09.1997, which period having been approved through
Ext.P1 - the Manager rejected her claim stating that she had
not worked as a Teacher for eight months, so as to be eligible
for a claim under Rules 51A, as per the extant provisions of the
KER.
4. The petitioner says that she had challenged this order
of the Manager through the hierarchy of the Authorities and
finally the Manager offered her appointment through Ext.P11
order in the academic year 2009-2010, based on which she
joined the School on 01.06.2009. He then submitted that,
however, through Ext.P13, the AEO rejected the petitioner's
appointment, against which Ext.P14 appeal was filed, leading to
Ext.P16 order directing the appointment of the petitioner with
effect from 01.06.2009. He says that in the meanwhile, his client
came to understand that a certain Upper Primary School
Teacher by name, Smt.Sairabanu, was on Leave Without
Allowances (LWA) continuously from 31.03.1988 to 31.03.2008
and that her appointment had been terminated with effect from
31.03.2008; that thus asserting her service was deserving to be
WP(C).No.3782 OF 2012(W)
regularized from the academic year 2006-2007.
5. The learned counsel for the petitioner concluded his
submissions by saying that since the petitioner is a Rule 51A
claimant and since the vacancy of Smt.Sairabanu was
continuing from 1988 onwards, she was entitled and eligible to
be appointed as UPSA from 2006-2007. He says that, therefore,
his client preferred Ext.P21 representation before the District
Educational Officer but that this has not been considered by the
said Authority until now. He, therefore, alternatively, prayed
that Ext.P21 be directed to be taken up and disposed of at the
earliest.
6. In response, the learned Senior Government Pleader,
Sri.P.M.Manoj, submitted that the petitioner's claim for
regularization from 2006-2007 has not been acceded to because
the Manager has taken a stand that since the petitioner worked
only for two months between 02.07.1997 to 11.09.1997, she
cannot be granted the benefit of Rule 51A, since she has worked
less than eight months. He says that, therefore, the petitioner
cannot now stake a claim as made in this writ petition and
therefore, prayed that this writ petition be dismissed.
7. Interestingly, I notice that a counter affidavit has
WP(C).No.3782 OF 2012(W)
been filed on behalf of the present Manager of the School,
wherein, the following have been stated.
"6. The writ petitioner Thushara
L. Unni was a senior claimant under Rule
51 (A) of Kerala Education Rules in 1997
as she had acquired the B.Ed qualification
and she was eligible for being appointed
as a teacher of this School under Rule
51(A) of Kerala Education Rules. But it
seems that she was not appointed by the
erstwhile Manager inspite of the
existence of vacancy as on 1.6.2006 for
the retirement vacancy. The erstwhile
Manager was appointing the teacher
Gopi, who had worked in the leave
vacancy for the period from 2004 to 2008
March 30th, as a teacher of this School for
a retirement vacancy in the year 2006.
This appointment by the erstwhile
Manager seems to be contemptuous
order. Further, it seems that the
erstwhile Manager did not appoint the
writ petitioner to the long leave vacancy
of Zaira Bhanu at the time Sri. Gopi was
appointed in the year 2006 to the
retirement vacancy. All these malpractice
on the part of the erstwhile Manager in
the matter of the appointment of teachers
violating the Kerala Education Rules and
those specific directions of this Hon'ble
Court ought to have been viewed
seriously by the educational authorities;
for which they are also answerable to this
Hon'ble Court for their dereliction of duty
in not complying the earlier directions of
this Court in the matter of appointment of
the writ petitioner in this School for the
earliest existing vacancy to the post of a
teacher as section 51(A) claimant.
7. Therefore, I do hereby
emphasis the right of the writ petitioner
for being appointed herself as a teacher
of this School with retrospective effect at
the earliest vacancy prevailed under
Section 51 (A) of the Kerala Education
Rules in the year 2006. On considering
WP(C).No.3782 OF 2012(W)
the above facts and position, me as the
present Manager of the School is ready
and agreed to appoint the writ petitioner
as the teacher of this School under 51(A)
of the Kerala Education Rules w.e.f the
date commanded by this court in this writ
petition. Therefore, this Hon'ble Court
may be pleased to appreciate the above
statement of facts of the existing
Manager of this School and issue an
appropriate direction to the present
Manager in the matter of appointment of
the writ petitioner in this School as 51(A)
claimant w.e.f the vacancy on 1.6.2006 by
effecting necessary changes if necessary
for such an appointment with
retrospective effect in the appointments
of teachers of the School since 1.6.2006
or to render appropriate orders in this
matter to secure the ends of justice and
to prevent the abuse of process of law. It
is prayed accordingly."
8. It is thus obvious that it is on account of certain
internecine dispute between the persons in management of the
School that all the controversy in question has arisen.
9. I do not propose to say anything further on this issue,
particularly because of the averments now made by the
Manager of the School, as extracted above. I am, therefore, of
the firm view that the DEO must consider Ext.P21
representation of the petitioner and take an appropriate
decision thereon, after affording her as well as the Manager an
opportunity of being heard.
10. In the afore circumstances and for the reasons above,
WP(C).No.3782 OF 2012(W)
I allow this writ petition to the extent of directing the 3 rd
respondent - DEO to take up Ext.P21 representation of the
petitioner and dispose of the same, after affording her, as well
as the present Manager of the School, an opportunity of being
heard - either physically or through video conferencing - thus
culminating in an appropriate order thereon, as expeditiously as
is possible but not later than three months from the date of
receipt of a copy of this judgment.
Needless to say, while completing the afore exercise, the
DEO will specifically keep in mind the dates of occurrence of
vacancies in the School and the eligibility of the petitioner to be
construed as a Rule 51A claimant, based on her contentions as
indited in Ext.P21 representation.
SD/-
DEVAN RAMACHANDRAN
rp JUDGE
WP(C).No.3782 OF 2012(W)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF APPOINTMENT ORDER DATED 02/07/1997
ISSUED TO THE PETITIONER.
EXHIBIT P2 TRUE COPY OF PETITIONER'S B.A. DEGREE CERTIFICATE
ISSUED BY CALICUT UNIVERSITY DATED 01/07/2003.
EXHIBIT P3 TRUE COPY OF PETITIONER'S B.ED. DEGREE
CERTIFICATE ISSUED BY CALICUT UNIVERSITY DATED
03/03/2007.
EXHIBIT P4 TRUE COPY COPY OF INTERIM ORDER DATED 31/05/2006
IN WPC NO. 13766/06.
EXHIBIT P5 TRUE COPY OF JUDGMENT IN WPC NO.13768/06(L) DATED
22/06/2007.
EXHIBIT P6 TRUE COPY OF ORDER DATED 06/08/2007 ISSUED BY THE
MANAGER DECLINING APPOINTMENT TO THE PETITIONER
AS UPPER PRIMARY SCHOOL ASSISTANT.
EXHIBIT P7 TRUE COPY OF LETTER DATED 07/04/2007 FROM THE
PETITIONER TO THE 5TH RESPONDENT.
EXHIBIT P8 TRUE COPY OF JUDGMENT IN WPC NO.24701/2007-N
DATED 13/02/2009.
EXHIBIT P9 TRUE COPY OF REQUEST DATED 07/04/2009 MADE BY THE
PETITIONER TO THE 4TH RESPONDENT.
EXHIBIT P10 TRUE COPY OF ORDER NO. B/2270/2008/K.DIS DATED
23/04/2009 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P11 TRUE COPY OF APPOINTMENT ORDER DATED 01/06/2009
ISSUED BY 5TH RESPONDENT.
EXHIBIT P12 TRUE COPY OF LETTER NO. H.R.H. 5-530/2006 DATED
22/07/2008 ISSUED BY THE MANAGER ADDRESSED TO THE
AEO.
EXHIBIT P13 TRUE COPY OF ORDER NO. B-1150/09/K.DIS. DATED
08/01/2010 ISSUED BY 4TH RESPONDENT.
EXHIBIT P14 TRUE COPY OF APPEAL DATED 10/01/2010 FILED BY
PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P15 TRUE COPY OF JUDGMENT IN WPC NO.3469/2010-G DATED
22/09/2010.
WP(C).No.3782 OF 2012(W)
EXHIBIT P16 TRUE COPY OF ORDER NO. B4-1544/10/L.DIS. DATED
30/11/2010 ISSUED BY 3RD RESPONDENT.
EXHIBIT P17 TRUE COPY OF LETTER DATED 21/01/2011 FROM THE 5TH
RESPONDENT TO THE 1ST RESPONDENT.
EXHIBIT P18 TRUE COPY OF LETTER DATED 03/11/2010 FROM THE 5TH
RESPONDENT TO THE 3RD RESPONDENT.
EXHIBIT P19 TRUE COPY OF APPLICATION DATED 07/04/2007 BY
PETITIONER TO THE 5TH RESPONDENT.
EXHIBIT P20 TRUE COPY OF ORDER DATED 31/05/2006 IN WPC
NO.13768/2006 OF THE HON'BLE HIGH COURT OF
KERALA.
EXHIBIT P21 TRUE COPY OF REPRESENTATION DATED 07/04/2009 TO
THE 4TH RESPONDENT.
