Encily Pandaraparambil vs The Director Of Public ...
2021 Latest Caselaw 302 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

   WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942

                        WP(C).No.13590 OF 2019(W)


PETITIONER:

               ENCILY PANDARAPARAMBIL
               AGED 46 YEARS
               JUNIOR HINDI TEACHER (PART TIME), B.E.M.U.P. SCHOOL,
               ANCHARAKANDY, MATTANNUR, KANNUR DISTRICT.

               BY ADV. SRI.P.JAYARAM

RESPONDENTS:

      1        THE DIRECTOR OF PUBLIC INSTRUCTIONS,
               OFFICE OF THE DPI, JAGATHI,
               THIRUVANANTHAPURAM- 695014.

      2        THE DEPUTY DIRECTOR OF EDUCATION,
               KANNUR, KANNUR DISTRICT- 670001.

      3        THE DISTRICT EDUCATIONAL OFFICER,
               THALASSERY, KANNUR DISTRICT- 670101.

      4        THE CORPORATE MANAGER,
               ALL CSI SCHOOLS IN MALABAR AND WAYANAD,
               BANK ROAD, KOZHIKODE- 673001.

      5        BEENA JAMES.V.,
               JUNIOR HINDI TEACHER (FULL TIME), BEMP HSS
               THALASSERY, KANNUR DISTRICT- 670101.

      6        STATE OF KERALA,
               REPRESENTED BY THE SECRETARY, DEPARTMENT OF GENERAL
               EDUCATION, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM- 695001.

               R1-3,   R6 BY GOVERNMENT PLEADER
               R4 BY   ADV. SRI.P.V.KUNHIKRISHNAN
               R5 BY   ADV. SRI.R.K.MURALEEDHARAN
               R5 BY   ADV. AMITH KRISHNAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-12-
2020, THE COURT ON 06-01-2021 DELIVERED THE FOLLOWING:
 WP(C).No.13590 OF 2019

                                          2



                                   JUDGMENT

This writ petition is filed seeking the following reliefs :-

"i) Declare that the petitioner is legally entitled for appointment as junior Hindi teacher - full time at BEMP Higher Secondary School, Thalassery in the place of 5th respondent.

ii) Issue a writ of certiorari or other appropriate writ, direction or order quashing Exhibit.P6, P8 orders.

iii) Issue a writ of mandamus or other appropriate writ, direction or order directing the respondent educational authorities to appoint the petitioner as junior Hindi teacher - full time at BEMP Higher Secondary School, Thalassery in the place of 5 th respondent with effect from 1/7/2015 with all consequential benefits including pay and allowances."

2. Heard the learned counsel for the petitioner, the learned

Government Pleader and the learned counsel appearing for

respondents 4 and 5.

3. The petitioner is working as Part Time Hindi Teacher in

one of the schools under the 4 th respondent. He had joined service as

Full Time Menial on 11.7.2012. He was promoted as peon on

2.6.2014. He became qualified for appointment as Lower Grade Hindi

teacher on 30.4.2015 and the qualification was endorsed in his

service book on 12.5.2015. It is stated that a full time vacancy of

Hindi teacher arose in the BEMP HSS, Thalassery in the year 2015-

16. The 5th respondent was appointed in the said vacancy. The WP(C).No.13590 OF 2019

approval for appointment of the 5th respondent was rejected by the

educational authorities. However, by Ext.P6, the 1 st respondent

found that the vacancy which arose consequent to the retirement of

Smt.Shyma, Junior Grade Hindi teacher, on 31.3.2015 was liable to be

filled up by appointing the 5 th respondent, who is a Rule 51B claimant.

It was found that it is only when there are no claimants under Rules

51A, 51B or Rule 43 of Chapter XIV A KER that a non-teaching staff

would be eligible to be considered for appointment against a teaching

post. The appointment of the 5th respondent was, therefore, directed

to be approved. The petitioner challenged Ext.P6 order before this

Court and by Ext.P7 judgment, a revision petition preferred against

Ext.P6 was directed to be considered. The Government, by Ext.P8

order, has upheld the view taken by the 1 st respondent in Ext.P6 and

found that the 5th respondent was eligible for appointment, being a

claimant under Rule 51B of Chapter XIV A KER.

4. The learned counsel for the petitioner submits that a Rule 51B

claimant is not a teacher for the purpose of the Rules. It is stated that

the claim of the 5th respondent was clearly belated since the death

was in 1983 and the 5th respondent admittedly became major in 1988.

It is stated that the claim raised is only in the year 2006 and that the

decisions of this Court in Sreeja v. Chief Postmaster General [2001

(1) KLT 356], Deepak v. Secretary, General Education WP(C).No.13590 OF 2019

Department [2002 (3) KLT 288] and Sukumaran Nair v. State of

Kerala [2005 (1) KLT 430] are authority on the point that an

application for compassionate appointment is to get over the sudden

crisis which befalls the family due to the death of the sole

breadwinner and must be proximate in time to the death. It is

submitted that Note 1 to Rule 1(1) of Chapter XIV A KER specifically

provides that a member of the non-teaching staff shall be eligible for

appointment as teacher provided he has the prescribed qualifications

and that there is no teacher eligible for promotion or for appointment

to such post under the rules. It is contended by the learned counsel

for the petitioner that the 5 th respondent, who was only a Rule 51B

claimant, is not a teacher for the purpose of the rules and therefore,

her claim is not liable to be considered.

5. A counter affidavit has been placed on record by the 4 th

respondent. It is contended that all the contentions of the parties

have been examined in full while passing Exts.P6 and P8 orders and

that the said orders are perfectly legal and sustainable.

6. The 5th respondent has also placed a counter affidavit on

record. It is stated therein that the application for compassionate

employment was submitted by the 5th respondent immediately after

he became major in the year 1988. It is submitted that the provision

for compassionate employment had been introduced in the KER only WP(C).No.13590 OF 2019

on 30.3.1990. Thereafter also, the provision was under orders of stay,

which was vacated only on 16.1.1997. It is contended that the 5 th

respondent's claim was not considered on the ground that a special

order from the Government is required for considering the same. It is

submitted that it was only by Ext.R5(a) communication dated

22.10.2007 that the 5th respondent was informed that the

management could consider his claim without any directions from the

Government. It is submitted that a writ petition had been filed

thereafter and Ext.R5(b) interim order was passed directing

consideration of the 5th respondent's claim. By Ext.R5(c) judgment,

the writ petition was disposed of directing consideration of the claim

against any of the vacancies which arise after 1.4.2010. It is stated

that all appointments made in the educational agency after Ext.R5(b)

interim order were questionable. It is stated that the petitioner in the

writ petition was later appointed as Lower Grade Hindi Teacher - part

time with effect from 19.11.2015. Relying on the decisions of this

Court in Sathyanarayanan v. AEO [2000 (3) KLT SN 14] and Reghu

v. State of Kerala [2000 (2) KLT 29], it is contended that a non-

teaching staff is eligible for promotion and appointment as teacher

only in the absence of claimants under the Rules. It is submitted that

since the 5th respondent is clearly a claimant under Rule 51B, he is

eligible for appointment to the vacancy which arose in 2014-15 in WP(C).No.13590 OF 2019

preference to the petitioner. It is further contended that the vacancy

occurred due to a retirement on 31.3.2015 and that therefore, the

vacancy arose on 1.4.2015. As on the date of occurrence of vacancy,

the writ petitioner is admittedly not qualified since he claims to have

acquired the qualification for appointment as Lower Grade Hindi

Teacher only on 31.4.2015.

7. The 3rd respondent has also placed a counter affidavit on

record. It is stated that the 5th respondent was appointed as Full

Time Hindi Teacher in the BEMP HSS, Thalassery with effect from

1.7.2015 in the vacancy of Smt.Shyma, Hindi Teacher, who retired on

31.3.2015. It is contended that since the 5 th respondent was a 51B

claimant, who was available as on the date of occurrence of vacancy,

the 5th respondent is liable to be appointed against the said vacancy.

8. The learned counsel for the petitioner thereafter produced

Exts.P9 to P11 documents to show that though the certificates of the

petitioner were dated 30.4.2015, the examination was conducted in

March, 2015 and therefore, he should be deemed to have been

qualified as on the date of occurrence of the vacancy.

9. I have considered the contentions advanced. It is true that

the 5th respondent's mother had died in the year 1983 and the 5 th

respondent had become major in 1988. At that time, there was no

rule providing for compassionate appointment in aided schools in the WP(C).No.13590 OF 2019

KER. It appears that the petitioner had raised a claim for

appointment in the school. The said claim was returned on the

ground that special orders from the Government are required for

considering such a claim. The 5 th respondent appears to have

approached the Government in 2006. The 5 th respondent was

informed that no special order is required for a consideration of the

request for compassionate appointment. This was in the year 2007.

The 5th respondent approached this Court and Ext.R5(b) interim order

was issued directing the 3rd respondent therein to consider his claim

for appointment as Lower Grade Hindi Teacher or at least as Full

Time Menial in any existing vacancy. Such consideration was not

done. Ultimately, the writ petition was disposed of by Ext.R5(c).

Taking note of the contention of the Manager that no vacancy of a

Full Time Menial or Junior Hindi Teacher was available on any of the

schools to appoint the 5th respondent, this Court directed the 3rd

respondent to consider the claim of the 5 th respondent for

appointment in any of the schools under the corporate management

against any of the vacancies which occurred with effect from

1.4.2010. It was made clear that the 3 rd respondent shall not effect

any further appointment without considering the claim of the 5 th

respondent under Rule 51B as recognised by the 3 rd respondent in

Ext.P4. This judgment has long become final. The facts pleaded in WP(C).No.13590 OF 2019

the writ petition would show that it was only on 11.7.2012 that the

petitioner was appointed as Full Time Menial in the CMS High

School, Arapetta. If that be so, even the said appointment was

against the directions issued by this Court. The writ petitioner

cannot, at this distance of time, challenge the concluded findings that

the 5th respondent is a Rule 51B claimant. It is too late in the day, in

the light of Ext.R5(b) order and Ext.R5(c) judgment to contend that

the claim of the 5th respondent was belated and ought not to have

been considered by the 4th respondent.

10. Therefore, the only further question which arises for

consideration is whether the petitioner has a better claim for

appointment against the post of Full Time Junior Language Teacher

against which the petitioner was appointed. Note 1 to Rule 1(1) of

Chapter XIV A KER reads as follows :-

"Note:- (1) A member of the non-teaching staff under the category of Clerks, Peons, Sweepers and other staff shall also be eligible for appointment as teacher provided he has the prescribed qualifications and that there is no teacher eligible for promotion or for appointment to such post under these rules."

The contention of the petitioner is that it is only the claim of a teacher

which is liable to be considered and that therefore, only a Rule 43

claimant would be entitled to preference as against a member of the

non-teaching staff, who claims the appointment as teacher. However, WP(C).No.13590 OF 2019

this Court, in the decisions relied on by the learned counsel for the 5 th

respondent, has specifically held that a member of the non-teaching

staff with prescribed qualification can claim appointment as a

teacher only when there is no teacher eligible for promotion or for

appointment. It was held that a claimant under Rule 51A is also a

teacher for the purpose of the Note. The language of the Note 1

would make it clear that the reference is not only to existing teachers,

but also to claimants for appointment under the Rules. If that be so, a

claimant for compassionate appointment would also be liable to be

considered before a non-teaching staff is given appointment as

teacher. Moreover, it is the specific case of the petitioner that he

became qualified for appointment as Junior Grade Hindi Teacher on

30.4.2015. It is clear that since the vacancy arose on account of a

retirement on 31.3.2015, the date of occurrence of vacancy was

1.4.2015. The vacancy could be filled up only on the reopening day

on account of the restrictions contained in the rules. Therefore, even

going by the petitioner's own showing, his certificates being dated

30.4.2015, he was not qualified as on the date of occurrence of

vacancy for appointment as Hindi Teacher. For these reasons and in

view of the fact that the contentions raised have been properly

considered in Exts.P6 and P8 orders, I am of the opinion that the

prayers sought for in the writ petition cannot be granted. WP(C).No.13590 OF 2019

The writ petition fails and the same is, accordingly,

dismissed.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/18.12.2020 WP(C).No.13590 OF 2019

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER NO.CM/CSI/521/15 DATED 19.11.2015 APPOINTING THE PETITIONER AS HINDI TEACHER-PART TIME AT BEM UP SCHOOL, ANCHARAKANDY.

EXHIBIT P2 TRUE COPY OF THE ORDER NO.B1/5320/15 DATED 28.09.2016 ISSUED BY THE DISTRICT EDUCATIONAL OFFICER, THALASSERY, REJECTING THE APPROVAL OF THE APPOINTMENT OF 5TH RESPONDENT AS JUNIOR HINDI TEACHER (FULL TIME) AT BEMP H.S.S. THALASSERY.

EXHIBIT P3 TRUE COPY OF THE ORDER NO.B1/24194/2016/K.DIS DATED 19.05.2017 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, KANNUR, REJECTING THE APPROVAL OF THE APPOINTMENT OF 5TH RESPONDENT AS JUNIOR HINDI TEACHER (FULL TIME) AT BEMP H.S.S.

TALASSERY.

EXHIBIT P4 TRUE COPY OF THE ORDER NO.E.M (4)/45821/2017/DPI/K.DIS DATED 19.01.2018, ISSUED BY GENERAL EDUCATION ADDL.DIRECTOR (GENERAL), REJECTING THE APPROVAL OF THE APPOINTMENT OF 5TH RESPONDENT AS JUNIOR HINDI TEACHER (FULL TIME) AT BEMP H.S.S.

THALASSERY.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 05.04.2018 IN W.P(C)NO.8063/2018, HIGH COURT OF KERALA.

EXHIBIT P6 TRUE COPY OF THE ORDER NO.E.M 4-

19683/2018/DPI DATED 21.06.2018 ISSUED BY GENERAL EDUCATION ADDL.DIRECTOR (GENERAL), APPROVING THE APPOINTMENT OF 5TH RESPONDENT AS JUNIOR HINDI TEACHER (FULL TIME) AT BEMP H.S.S. THALASSERY.

EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 30.07.2018 IN W.P.(C)NO.23596 OF 2018, HIGH COURT OF KERALA.

WP(C).No.13590 OF 2019

EXHIBIT P8 TRUE COPY OF THE G.O.(ORD.)NO.1165/2019 /GEN.EDN.DEPT. DATED 25.03.2019 ISSUED BY THE STATE GOVERNMENT.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R5 A A TRUE COPY OF THE COMMUNICATION DATED 22.10.2007 BY THE 6THE RESPONDENT/GOVERNMENT

EXHIBIT R5 B A TRUE COPY OF THE INTERIM ORDER IN WP(C) NO-11844/2009 DATED 9.10.2009

EXHIBIT R5 C A TRUE COPY OF THE JUDGMENT IN WP(C) NO-

11844/2009 DATED 1.6.2010