Kerala High Court
Alice Varghese vs State Of Kerala on 10 June, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
MONDAY, THE 10TH DAY OF JUNE 2024 / 20TH JYAISHTA, 1946
WP(C) NO. 17347 OF 2013
PETITIONER:
ALICE VARGHESE
W/O.BABU THOMAS, LG (HINDI), TEACHER, MOUNT TABORE HIGH
SCHOOL, PATHANAPURAM, KOLLAM DISTRICT.
BY ADV SRI.M.V.THAMBAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT
OF GENERAL EDUCATION, GOVERNMENT
SECRETRIAT,THRIUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF PUBLIC INSTRUCTIONS
THRIUVANANTHAPURAM-695 001.
3 THE DISTRICT EDUCATONAL OFFICER
PUNALUR-691 305.
4 THE CORPORATE MANAGER OF SCHOOLS
MOUNT TABORE, PATHANAPURAM P.O., KOLLAM DISTRICT-689
695.
BY ADVS.
BY SRI.BIJOY CHANDRAN, SR. GOVERNMENT PLEADER
SMT.S.K.DEVI
SRI.SANTHOSH P.ABRAHAM
S.K.DEVI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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W.P.(C) No.17347 of 2013
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Dated this the 10th day of June, 2024
J U D G M E N T
The petitioner was appointed as LG (Hindi) Teacher
in leave vacancy in the St. Stephen's High School,
Pathanapuram, which is under the management of the 4 th
respondent, during the spells 23.10.2000 to 21.12.2000
and 17.07.2001 to 19.09.2001. Thereafter when a regular
vacancy arose, the petitioner was appointed from
06.06.2002 onwards. However, the third respondent-
District Education Officer declined approval for the
reason that there is no established vacancy. In the
staff fixation of the year 2002-03 there occurred
reduction in post resulting in lack of vacancy.
2. The Manager challenged the order before the
second respondent-Director of Public Instructions. The
second respondent as per Ext.P11 order ordered approval
of appointment from 2004-05 onwards. Aggrieved by the
refusal to grant approval for the period from 06.06.2002
till 2004, the petitioner approached the Government in
revision. As per Ext.P10, the Government rejected the
request. Challenging the order, the petitioner
approached this Court in W.P.(C) No.29203 of 2010.
Noticing that there would be no financial burden in
granting of approval to the petitioner, this Court, as
per judgment dated 28.02.2012, directed the Government
to reconsider the matter.
3. Pursuant to the above, the Government conducted
a hearing and passed Ext.P14 order, dismissing the
petition. It is challenging the same that the petitioner
has approached this Court.
4. I have heard the learned counsel for the
petitioner and the learned Senior Government Pleader.
The 4th respondent Manager although appeared through a
counsel and had filed a counter affidavit, when the
matter was taken up for hearing the counsel filed a memo
stating that he had relinquished the vakalath. There was
no representation for the 4th respondent.
5. The authorities have concurrently found that the
total number of periods available for Hindi, during the
periods 2002-03 and 2003-04 are, '54' in the UP Section
and '81' in the HS Section. As per Rule 6(1) of Chapter
XXIII KER, one full time post is liable to be sanctioned
for every 25 periods of work per week, taking the High
School section and UP section separately. Hence the
number of post admissible are LG (Hindi)-two numbers and
HSA (Hindi)-three numbers. There are 4 leftover periods
in the UP Section and 6 leftover periods in the HS
Section, thus making the total leftover periods 10.
6F(ii)(d) reads thus :-
"If on combination, the number of left over periods in the High
School section and Upper Primary section together is less than
25, a full time post in the High School Section may be sanctioned
if the number of left over periods in that section is not less than 4
in the case of Hindi, Urdu, Arabic and Sanskrit and not less than 5
in other cases."
In terms of the Rule, the School is eligible to get the
4th post of HSA (Hindi) during the said periods 2002-03
and 2003-04 and not of an LG (Hindi) Teacher. Since the
petitioner did not possess the required qualification to
be an HSA, the petitioner could not have been
accommodated as HSA (Hindi). The authorities have relied
on the above provision, Rule 6F(ii)(d) of Chapter XXIII
KER to decline interference with the staff fixation.
6. Though in Ext.P11 order the second respondent
granted approval for the period from 2005 onwards, as is
evident from the said order, the second respondent had
acknowledged that the only post available is of HSA
(Hindi). However, approval was granted considering the
fact that the petitioner is a Rule 51A claimant, she was
working during the period, that no LG (Hindi) Teacher is
awaiting promotion, and that the sanction of LG (Hindi)
post would not result in any financial commitment. As
noticed in Exts.P10 and P14 orders, Ext.P11 order is not
in accordance with the relevant Rule in the KER.
However, the Government declined to interfere with
Ext.P11 order, taking note of the passage of time.
7. The Government has rightly relied upon Chapter
XXIII Rule 6F(ii)(d) of KER and declined sanction of
post of LG (Hindi), to approve the appointment of the
petitioner from 06.06.2002. The finding is strictly in
adherence of the Rule.
8. Chapter I Rule 3 of the KER provides that,
"Where the Government are satisfied that the operation of any
rule under these Rules causes undue hardship in any particular
case, the Government may dispense with or relax the requirements
of that rule to such extent and subject to such conditions as they
may consider necessary for dealing with the case in a just and
equitable manner."
Under the provision, the Government is vested with the
power to exempt operation of the Rule or to relax its
requirements to such extent and subject to such
conditions as may be considered necessary. This is to
avoid hardships that may occur in a particular case, in
a just and equitable manner. The petitioner herein was
appointed on 06.06.2002 in the UP Section. A post was
available in the HS High School section. The petitioner
had been working since her appointment. No teacher was
appointed to the post of HSA Hindi. No financial burden
would result on approval of the appointment of the
petitioner. She is a Rule 51A claimant. Pointing out the
above aspects, the learned counsel for the petitioner
urges that the first respondent may be directed to
consider exercising of his powers under Rule 3 of
Chapter I KER noted above, thus granting relaxation/
exemption from the relevant provision and approve the
appointment of the petitioner from 06.06.2002.
9. Considering the facts as above, I am of the
opinion that, while affirming the reason given in
Ext.P13 order, the first respondent could be directed to
consider the request of the petitioner based on Chapter
I Rule 3 of KER.
Resultantly, the challenge against Ext.P13 order of
the first respondent is negatived. However, the first
respondent shall consider the request of the petitioner
for approval/regularisation of her appointment from
06.06.2002 onwards with reference to its powers under
Chapter I Rule 3 KER dehors Ext.P13 order. It is made
clear that, this Court has not expressed on the merits
of the petitioner's claim.
Writ Petition is disposed of as above.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
APPENDIX OF WP(C) 17347/2013
PETITIONER EXHIBITS
EXHIBIT P1.TRUE COPY OF THE ORDER OF THE MANAGER DATED 16/2/2005.
EXHIBIT P2.TRUE COPY OF THE AUDIT STAFF FIXATION ORDER FOR 2002-
2003.
EXHIBIT P3.TRUE COPY OF THE STAFF FIXATION ORDER DATED 10/10/2005
FOR 2003-2004.
EXHIBIT P4.TRUE COPY OF THE APPEAL BEFORE THE DPI ON 21/3/2005
FILED BY THE MANAGER
EXHIBIT P5.TRUE COPY OF THE ORDER NO.D.DIS.90002/05/RA-4/DPI
DATED 23/3/2006.
EXHIBIT P6.TRUE COPY OF THE ORDER IN REVISION BEFORE THE GOVT. ON
10/7/2006.
EXHIBIT P7.TRUE COPY OF THE REVISION PETITION DATED 1/6/2009
FILED BY THE PETITIONER
EXHIBIT P8.TRUE COPY OF THE JUDGMENT DATED 3/7/209 IN WPC
NO.18675/2009.
EXHIBIT P9.TRUE COPY OF THE HEARING NOTE BEFORE THE HEARING
OFFICER ON 24/9/2009.
EXHIBIT P10.TRUE COPY OF THE G.O.(RT) NO.3379/2010/G.EDN DATED
30/7/2010.
EXHIBIT P11.TRUE COPY OF THE ORDER NO.D.DIS 27293/05/RA(4)/DPI
DATED 3/8/2005 OF THE 2ND RESPONDENT
EXHIBIT P12.TRUE COPY OF THE REPRESENTATION DATED 22/2/2013
BEFORE THE GOBERNMENT
EXHIBIT P13.TRUE COPY OF THE JUDGMENT DATED 28/2/2013 IN WPC
NO.29203/2010.
EXHIBIT P14.TRUE COPY OF THE G.O.(RT) NO.2333/G.EDN. DATED
4/6/2013.
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