Kerala High Court
Leeja Napoleon vs Joseph K.G on 24 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
WA NO. 1337 OF 2021
AGAINST THE JUDGMENT DTD.8.4.2021 IN WP(C) 33186/2019 OF HIGH COURT
OF KERALA
APPELLANT/5TH RESPONDENT:
LEEJA NAPOLEON,
AGED 37 YEARS
W/O. JOSE PRAKASH, RESIDING AT JOSE VILLA,
ARTHUNKAL P.O., CHERTHALA SOUTH VILLAGE,
ALAPPUZHA DISTRICT 688 530,
HIGHER SECONDARY SCHOOL TEACHER PHYSICS (JUNIOR),
HOLY FAMILY HIGHER SECONDARY SCHOOL, KATTOOR, ALAPPUZHA
DISTRICT, PIN - 688 521.
BY ADVS.V.N.SANKARJEE
V.N.MADHUSUDANAN
R.UDAYA JYOTHI
M.M.VINOD
M.SUSEELA
KEERTHI B. CHANDRAN
VIJAYAN PILLAI P.K.
C.PURUSHOTHAMAN NAIR
NITHEESH.M
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 4:
1 JOSEPH K.G.,
AGED 38 YEARS
S/O.GEORGE K.P., HIGHER SECONDARY SCHOOL TEACHER PHYSICS,
(JUNIOR), LEO XIII HIGHER SECONDARY SCHOOL, ALAPPUZHA.
ALAPPUZHA DISTRICT 688 006.
2 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL
EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM
DISTRICT - 695 001.
2
W.A.No.1337 of 2021
3 THE DIRECTOR OF GENERAL EDUCATION,
JAGATHY, THIRUVANANTHAPURAM, PIN - 695 014.
4 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
EDUCATION, KOTTAYAM, KOTTAYAM DISTRICT,
PIN -680 002.
5 THE CORPORATE MANAGER,
HIGHER SECONDARY SCHOOLS, DIOCESE OF ALAPPUZHA,
P.B.NO.404, ALAPPUZHA, PIN - 688 001.
BY ADVS.SRI.K.T.SHYAM KUMAR (B/O)
SHYAM KUMAR K.T.
K.N.ABHA(K/281/1996)
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON
24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
3
W.A.No.1337 of 2021
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
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W.A.No.1337 of 2021
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Dated this the 24th day of June, 2022
JUDGMENT
C.S.Sudha, J.
This writ appeal is against the judgment dated 08/04/2021 in W.P.
(C)No.33186/2019. The appellant is the fifth respondent and the respondents
herein are the petitioner and respondents 1 to 4 respectively in the writ
petition. The parties and documents will be referred to as described in the writ
petition.
2. The writ petition was filed by the petitioner, a Higher
Secondary School Teacher (Jr.) [HSST (Jr.)] in Physics in the "Leo Thirteen
Higher Secondary School", Alappuzha. As per Ext.P10 order, the fifth
respondent was found to be an eligible candidate under Rule 51A of the
Kerala Education Rules, 1959 (the Rules) and consequentially appointed to a
vacancy which arose on account of newly sanctioned courses in the Corporate
Management of the fourth respondent. According to the writ petitioner, he was
W.A.No.1337 of 2021
working as HSST Jr. in Physics in the Leo-XIIIth Higher Secondary School,
Alappuzha, a School under the Corporate Management of the fourth
respondent. The school was sanctioned an additional batch during the
academic year 2011-2012. Towards the anticipated vacancy, the petitioner was
appointed as per Ext.P1 order dated 01/02/2012 pursuant to the
recommendation of the Selection Committee, constituted by the fourth
respondent Manager. He was thereafter permanently appointed by the fourth
respondent by Ext.P2 order dated 27/06/2012.
2.1. The fifth respondent was appointed as HSST Physics Jr. on
13/09/2010 as per Ext.P3 order against a leave vacancy in another School
under the Corporate Management of the fourth respondent for the period from
13/09/2010 to 18/08/2013. While so, the Government as per G.O.
(MS)No.202/2015/Gen.Edn. Dated 28/07/2015, created posts of HSST Jr. in
Physics, Chemistry, Mathematics and Computer Science subjects with effect
from 15/07/2013 in the Schools under the Corporate Management of the
fourth respondent. The petitioner who was working in the anticipated vacancy,
which arose consequent to the sanctioning of the additional batch, was
approved in the newly created post w.e.f. 14/08/2013 as per Ext.P6 order
W.A.No.1337 of 2021
dated 17/09/2015. The petitioner was thereafter continuing in the said post.
From 01/02/2012 to 17/09/2015, the date on which the appointment was
approved, the petitioner was working without salary. On the other hand, the
fifth respondent who was appointed against a leave vacancy, was drawing
salary during the said period as all her appointments were approved from
13/09/2010. At that point of time, she had never raised any claim to the post to
which the petitioner was appointed. However, on 20/06/2018, the fifth
respondent filed an appeal before the Director of Higher Secondary School
Education claiming that she was entitled to be appointed to the said post. The
Director of Higher Secondary School Education by a reasoned order rejected
the claim by Ext.P8 order. The fifth respondent then filed a revision before the
Government challenging Ext.P8 order. The Government on a totally erroneous
appreciation of the facts and circumstances of the case, allowed the revision
petition as per Ext.P10 order. Ext.P10 order is arbitrary, illegal and
unsustainable and so challenging the same, the writ petition was filed.
3. The learned Single Judge by the impugned judgment,
allowed the writ petition and Ext.P10 order was set aside. It was noticed that
Ext.P10 order was passed by the Government under the mistaken assumption
W.A.No.1337 of 2021
that the fifth respondent had a valid claim under Section 51A of the KER. This
was done without taking into account the fact that the fifth respondent was
continuing in the post without being relieved. As the said aspect had not been
considered in Ext.P10, the learned Single Judge directed the Government to
reconsider the whole matter after considering the rival contentions of the
parties. Aggrieved, the fifth respondent has come up in appeal.
4. Heard Sri.Dr.V.N.Sankarjee, the learned counsel for the
appellant and Sri.K.T.Shyamkumar, the learned counsel for the first
respondent and Sri.A.J.Varghese, the learned Senior Government Pleader for
respondents 1 to 4.
5. A reading of Rule 51A would reveal that a claim under the
Rule can be put forth only by a teacher who has been relieved from the service
of the concerned educational authority either by virtue of Rule 49 or Rule 52
or on account of termination of vacancies. In other words, in order to become
a Rule 51A claimant, there must be a termination/relieve from service and the
service put in must have been an approved service. (Mini Antony vs.
District Educational Officer (2012 KHC 192) ; Fasalu Rahiman V. vs.
Manager, BTM Higher Secondary School, Thurayur, 2013(3) KHC 675).
W.A.No.1337 of 2021
6. The petitioner alleges that the fifth respondent/appellant
had not been relieved from her post at that relevant time. It was submitted on
behalf of the fifth respondent that she had never admitted that she was
continuing in the post and had not relieved at the relevant time. However, in
the impugned order, it has been incorrectly recorded that this fact has been
admitted by the fifth respondent. In the appeal, the fifth respondent does not
say in so many words, that she had been relieved but only says - "9. .... The
appellant was made to believe by the 5th respondent that she would be
appointed against the sanctioned post by Ext.R5(b) on completion of her
period of appointment to a leave vacancy." The question whether the fifth
respondent had been relieved or not, is a question of fact which could not
have been decided in the writ proceedings. The learned Single Judge was then
right in setting aside Ext.P10 order and relegating the matter to the
Government to reconsider the same. We make it clear that the question
whether the fifth respondent had been relieved from the post or not during the
relevant time, shall be considered afresh by the Government when the matter
is being considered, untrammelled by the observations made by the learned
Single Judge in the impugned judgment. We find no infirmity in the order of
W.A.No.1337 of 2021
the learned Single Judge, warranting an interference.
In the result, the writ appeal is found to be without any merits and
the same is hence dismissed.
Sd/-
P.B.SURESH KUMAR
JUDGE
Sd/-
C.S.SUDHA
JUDGE
ami/
