Kerala High Court
The Manager vs The Manager on 21 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942
WA.No.2104 OF 2019
AGAINST THE JUDGMENT IN WP(C) 31481/2014(I) OF HIGH COURT OF
KERALA
APPELLANT/5th RESPONDENT:
THE MANAGER,
ALEEMUL ISLAM HIGHER SECONDARY SCHOOL
PADOOR, THRISSUR-680 524.
BY ADVS.
SRI.V.A.MUHAMMED
SRI.M.SAJJAD
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 4:
1 HASEENA E.K.,
VALIYAKATHMACHERY HOUSE, PADOOR POST,
THRISSUR-680 524
2 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION(A) DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-6985 001
3 THE DIRECTOR OF PUBLIC INSTRUCTIONS,
JAGATHY, THIRUVANANTHAPURAM-695 014
4 THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR-680 001
5 THE DISTRICT EDUCATIONAL OFFICER,
CHAVAKKAD, THRISSUR DISTRICT-680 506
R1 BY ADV. SRI.N.P.SAMUEL
OTHER PRESENT:
SSRI. A,J, VARGHESE-SR. G.P.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.01.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA No.2104/2019 -2-
JUDGMENT
DATED THIS THE 21st DAY OF JANUARY, 2021
Shaffique, J:
This appeal is filed by the Manager of Aleemul Islam Higher
Secondary School challenging judgment dated 01-03-2019 in W.P
(C) No.31481/2014. The writ petition was filed by one Smt.
Haseena E.K. who worked in the aforesaid school in two spells in
separate leave vacancies from 10-01-2000 to 10-03-2000 and
later from 27-06-2002 to 07-08-2005. Both these appointments
were not approved by the educational authorities. The petitioner
approached the learned Single Judge inter alia seeking for a
direction to approve the appointments during the aforesaid
period and for disbursement of salary. Counter affidavit was filed
by the Manager inter alia stating that since the aforesaid periods
were not approved by the competent authority, the petitioner
cannot seek a claim either for disbursement of salary or for
claiming benefits under Rule 51A of Chapter XIVA of Kerala
Education Rules. Further, it was contended that the claim is stale
and barred by limitation.
2. The learned Single Judge by the impugned judgment
having observed that the petitioner was working in the said
school for the aforesaid period, directed the Manager to trace
out the old records with reference to the appointment of the
petitioner in the said two spells and forward the same to the
District Educational Officer (DEO) for approval. The DEO was
further directed to consider the question of approval on receipt
of such records. Learned counsel for the appellant would submit
that there is gross delay and laches on the part of the petitioner
in prosecuting the matter. As far as the period from 10-01-2000
to 10-03-2000 is concerned, the claim had already been rejected
by the educational authorities and though the said orders were
challenged, no orders were passed by the Government. It is
submitted that after a considerably long period, Ext.P2 dated
15-10-2013 had been issued purportedly based on the
representation of the petitioner on 27-02-2007 stating that since
the vacancy to which Smt. Haseena E.K. was appointed is
established and there is no 51A claimant, her appointment may
be approved. Exhibit P2 had been issued by the Secretary to
Government to the District Educational Officer. Infact the
representation of 2007 has been produced as Ext.R1 (b). Exhibit
R1 (b) refers the period between 10-01-2000 to 10-03-2000. It
does not cover the period between 27-06-2002 to 07-08-2005.
Yet another revision petition seems to have been filed, Ext.R1 (e)
by the writ petitioner to the Government in the year 2011, where
both claims had been made. That apart, the learned counsel for
the appellant submits that the claim for regularisation during the
period from 27-06-2002 to 07-08-2005 has been rejected by the
DEO as early as on 23-12-2002 as per Ext.R5 (a) which had not
been taken cognizance by the learned Single Judge. It is
submitted that the petitioner did not challenge the said order by
filing any representation, whereas the Manager's revision
petition of 2003 was only with reference to the period from
10-01-2000 to 10-03-2000. The Manager however, had submitted
Ext.R1 (b) appeal to the Deputy Director of Education on 29-01-
2003 to sanction the approval of appointment of Smt. Haseena
E.K. as HSA from 27-06-2002 to 07-08-2005. Exhibit R1 (c) is a
hearing notice of January 2007. But thereafter, no orders seem to
have been passed. It is submitted that the petitioner filed a
revision only in the year 2011, which is evident from Ext.R1(e).
Therefore, according to the Manager, there is gross delay and
laches on the part of the petitioner in prosecuting the matter and
therefore the learned Single Judge ought not have issued the
aforesaid direction. That apart, it is submitted that when Ext.R5
(a) has been issued as early as on 23-12-2002, but no valid
challenge had been made until 2011, which also adds to the
laches of the petitioner.
3. The learned counsel for the respondent/writ petitioner
however would contend that though the matter was heard by the
Government, no orders were passed. A hearing notice was issued
as early as in January 2007. But from Ext.P2 it seems that an
order was passed by the Government on 15-10-2013 stating that
the petitioner was appointed in an established vacancy as there
was no 51A claimant waiting for appointment. The
communication was sent to the DEO, Chavakkad. But the DEO
had not passed any orders pursuant thereto. The writ petition
has been filed only on 22-11-2014.
4. Basically the petitioner seeks for regularisation of her
service in order to make a claim under Rule 51A of Chapter XIV-
A of KER and also for salary and other benefits. As far as the
spell from 10-01-2000 to 10-03-2000 is concerned, it will not be
enough to claim a benefit under Rule 51A of Chapter XIVA of
KER in view of the judgment of the Apex court in VKNM
Vocational Higher Secondary School v. State of Kerala
(2016) 4 SCC 216. The Apex Court has held that a minimum
one year service as provided in the amended provision of Rule
51A is required even for appointment after the amendment to
the Kerala Education Rules.
5. Now the question is whether there is justification for
claiming regularisation from 27-06-2002 to 07-08-2005. By
Ext.R5 (a) dated 23-12-2002 the DEO had come to a finding that
for subjects HSA (Social Science), there were only 5 sanctioned
posts and number of approved teachers working against the post
was 7. It was found that 2 excess qualified approved teachers
were working against the sanctioned posts excluding the
appointee. Therefore it was held that a fresh HSA (Social
Science) cannot be considered. It is in the said circumstances
that the approval of the petitioner from 27-06-2002 to 07-08-
2005 has been rejected. Even assuming that the delay can be
excused, still what we find from Ext.R1 (e) is that the only
contention urged regarding the said vacancy is that she was
appointed in the school as Smt.Roselin had gone abroad after
availing leave without allowance and therefore she should be
accommodated in the said post. When the DEO had specifically
pointed out that the petitioner could not be accommodated on
account of the fact that excess teachers were working in the said
school, there is justification for rejecting the same. Therefore, at
this point of time, when there is considerable delay and laches
on the part of the petitioner in prosecuting the matter and when
there is justification on the part of the DEO in rejecting the claim
of the petitioner, we are of the view that the learned Single
Judge was not justified in directing consideration of her claim
afresh especially when the DEO had already rejected her claim.
In the result, the appeal is allowed. The judgment of the
learned Single Judge is set aside and the writ petition stands
dismissed.
(Sd/-)
A.M. SHAFFIQUE, JUDGE.
(Sd/-)
GOPINATH P., JUDGE.
AMG
