Kerala High Court
K.Sreedevi vs State Of Kerala on 4 January, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 4TH DAY OF JANUARY 2024 / 14TH POUSHA, 1945
WP(C) NO. 29269 OF 2014
PETITIONER:
K.SREEDEVI
AGED 36 YEARS, W/O.UNNIKRISHNAN, PULIYATH HOUSE,
CHETHALLUR P.O. (VIA)MANNARKKAD, PALAKKAD DISTRICT.
BY ADV DR.GEORGE ABRAHAM
RESPONDENTS:
1 STATE OF KERALA
REP.BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695001
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS
THIRUVANANTHAPURAM - 695 001
3 THE DEPUTY DIRECTOR OF EDUCATION
PALAKKAD - 678 001
4 THE DISTRICT EDUCATIONAL OFFICER
PALAKKAD - 678 001
BY ADVS.
SRI BIJOY CHANDRAN, SR GP
SRI. RIYAL DEVASSY, GP
SRI.K.A.JALEEL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.29269 OF 2014
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C)No.29269 of 2014
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Dated this the 04th day of January, 2024
JUDGMENT
The above writ petition is filed with the following
prayers:
"i.) To declare that Exhibit P4 is
unconstitutional and therefore illegal and the same
is therefore liable to be declared as void ab initio.
ii.) To issue a writ of mandamus or any
other appropriate writ, order or direction directing
the respondents to prepare a fresh list of teachers
who have worked for considerably long period and
were retrenched for want of vacancies and include
them in the 'teachers package' in addition to those
teachers who are already included in Exhibit P3;
iii.) To grant such other and further reliefs to
the petitioner as the Hon'ble Court may consider
just and proper in the facts and circumstances of the
case. "[SIC]
2. When this writ petition came up for
WP(C) NO.29269 OF 2014
consideration, this Court passed an interim order on
06.11.2014. The same is extracted hereunder;
"Admit. Notice.
Since on an earlier occasion in a batch of writ
petitions this Court issued interim direction
making it clear that Ext.P4 amendment shall be
only prospective subject to the outcome of the
writ petition. Any claim of the petitioner under
Rule 57A Chapter XIVA KER shall not be affected
by Ext.P4 amendment."
3. Subsequently, this Court in Kerala Aided
L.P. and U.P. School, Kollam v. State of Kerala
and Another (2016 KHC 118), considered the
matter in detail. It will be better to extract paragraph
No.59 of the aforesaid judgment;
"59. It is in this context the effect of the present
proviso has to be considered. R.51A of Chap.XIVA
KER creates three categories of persons who have a
claim to be appointed to a future vacancy subject
only to a claim under Rule 43 of the very same
Chapter. The first proviso makes a condition insofar
as a teacher who stakes his/her claim under R.49 or
WP(C) NO.29269 OF 2014
52 being entitled to make such claim only if his/her
earlier appointment had a minimum continuous
service of one academic year as on the date of
relief. This is a condition provided, which is
permissible by the proviso and carves out something
which was always there. The second proviso also
creates first preference, among the three categories,
to those who are protected. This is a qualification,
which also could be validly made in a proviso. As
was noticed above, a protected teacher would
always be a R.51A claimant but a R.51A claimant
need not be a protected teacher. Hence, a protected
teacher, who has claim under R.51A, by the second
proviso itself has a better claim than a claimant
under R.51A who is not a protected teacher. What is
intended by the third proviso brought in by the
amendment, is to provide for a still better claim to
persons who were not included in R.51A. To
illustrate, if 'A' has a claim under R.51A to be
appointed to future vacancies in 'X' school, 'B', who
is a protected teacher and not having a claim under
R.51A with respect to 'Y' school, is granted
preference by the third proviso to be appointed to
'X' school if he/she is included in the protected
teachers' list. Obviously this is to prevent an excess
teacher being continued in a school, by virtue of
protection orders and be deployed in another School
were a temporary vacancy arises. This cannot be
WP(C) NO.29269 OF 2014
sustained, since it creates a right which is not
available in the Statute or the rule itself. As per the
rule, even a R.51A claimant with reference to a
school, cannot have a better claim as against
another R.51A claimant in another school, even if
the former claimant sources such claim to an
antecedent point of time than the later. A protected
teacher or one who is included in a package, having
been thrown out after a valid tenure in a school can
be deployed in another school, even in temporary
vacancies, only if there are no statutory claimants in
that school, remaining out of the rolls of the school.
The prohibition or preference can be only applied
against a fresh appointment. The proviso
introduced, hence, has to be set at naught and the
same is declared invalid."
In the light of the same, the same directions will apply
to the petitioner also.
4. The learned counsel appearing for the
petitioner submitted that there is a further grievance
to the petitioner which relates to the second prayer in
this writ petition. The petitioner is free to file a
representation narrating that grievance to the 3 rd
WP(C) NO.29269 OF 2014
respondent and there can be a direction to consider
the same, within a time frame.
Therefore, this writ petition is disposed of with
the following directions;
i. The directions in Kerala Aided L.P. and
U.P. School's case (supra) will govern the case
of the petitioner also.
ii. The petitioner is free to submit appropriate
representation regarding her surviving
grievance to the 3rd respondent, within a period
of two weeks from the date of receipt of a copy
of this judgment.
iii. Once, such a representation is received,
the 3rd respondent will consider the same and
pass appropriate orders in it, after giving an
opportunity of hearing to the petitioner, as
expeditiously as possible, at any rate, within a
period of three months from the date of receipt
WP(C) NO.29269 OF 2014
of the representation.
iv. I make it clear that, I have not considered
the grievance of the petitioner as far as the
second relief in the writ petition is concerned
and the 3rd respondent is free to pass
appropriate orders, in accordance with law.
Sd/-
P.V.KUNHIKRISHNAN
nvj JUDGE
WP(C) NO.29269 OF 2014
APPENDIX OF WP(C) 29269/2014
PETITIONER EXHIBITS
EXT.P1 - TRUE COPY OF THE APPOINTMENT ORDER
OF THE PETITIONER WITH APPROVAL OF SERVICE
DATED 29-10-2001
EXT.P2 - TRUE COPY OF THE APPOINTMENT ORDER
OF THE PETITIONER DATED 18-12-2003 SHOWING
APPROVAL OF THE DISTRICT EDUCATIONAL OFFICER
EXT.P3 - TRUE COPY OF THE GOVERNMENT ORDER,
G.O.(P) 199/11/G.EDN. DATED 1-10-2011
EXT.P4 - TRUE COPY OF GOVERNMENT ISSUED G.O.
(P)154/2014/G.EDN DATED 11-8-2014
RESPONDENTS EXHIBITS : NIL
// TRUE COPY// PA TO JUDGE
