Kerala High Court

The Corporate Manager vs Shankini. M. Raj on 27 March, 2024

Author: A.Muhamed Mustaque

Bench: A.Muhamed Mustaque

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                   &
         THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
    WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
                        WA NO. 417 OF 2024
AGAINST THE JUDGMENT DATED 16.02.2024 IN WP(C) NO.26661 OF 2023 OF
                       HIGH COURT OF KERALA
APPELLANT/4TH RESPONDENT :

          THE CORPORATE MANAGER
          SDPY SCHOOLS,
          SREE NARAYANA NAGAR,
          PALLURUTHY, KOCHI,
          PIN - 682006
          BY ADVS.
          P.MOHANDAS (ERNAKULAM)
          BHARATH MOHAN
          GOKUL D. SUDHAKARAN
          K.P.SATHEESAN (SR.)
          K.SUDHINKUMAR
          R.BHASKARA KRISHNAN
          SABU PULLAN


RESPONDENTS/PETITIONER/RESPONDENTS 1 TO 3 :

    1     SHANKINI. M. RAJ
          AGED 28 YEARS
          W/O. AJOY JOSHI,
          RESIDING AT KOOVAPARAMBIL HOUSE,
          MOOTHAKUNNAM P.O.,
          ERNAKULAM DISTRICT,
          PIN - 683516
    2     STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO GOVERNMENT,
          GENERAL EDUCATION DEPARTMENT,
          SECRETARIAT,
          THIRUVANANTHAPURAM,
          PIN - 695001
    3     THE DIRECTOR OF GENERAL EDUCATION
          DIRECTORATE OF GENERAL EDUCATION,
          THIRUVANANTHAPURAM,
          PIN - 695014
 WA No.417 of 2024
                                       2

       4        THE DISTRICT EDUCATIONAL OFFICER
                MARINE DRIVE, KOCHI,
                ERNAKULAM,
                PIN - 682011
                BY ADVS.
                K.R.GANESH
                ELVIN PETER P.J. (SR.)(K/000445/1990)
                GOURI BALAGOPAL(K/002008/2019)
                SREELEKSHMI A.S.(K/1313/2021)


        THIS        WRIT   APPEAL   HAVING   BEEN   FINALLY   HEARD   ON
22.03.2024, THE COURT ON 27.03.2024 DELIVERED THE FOLLOWING:
 WA No.417 of 2024
                                   3



                                                            "C.R."



                            JUDGMENT

A.Muhamed Mustaque, J.

The question that has to be considered by us in this

matter is as to the legality of appointment of a teacher in an

anticipated vacancy in an aided school. This issue arose in the

context of non-approval of the appointment of Smt.Shankini

Raj/first respondent as the staff fixation order was not issued

and the Manager, who is in charge of the school refused to

acknowledge her appointment, which was made by the

previous Manager, when established vacancy arose in the

school.

2. The learned Single Judge of this Court set

aside the Government Order, which declined approval and

upheld the claim of Smt.Shankini Raj. This writ appeal is at

the instance of the Manager.

3. The teacher in question, Smt.Shankini M. Raj

was appointed as a Upper Primary School Teacher (UPST) on

01.06.2015 in the vacancy of one Shiji M.M., who was

promoted as H.S.A. (English) in the same school under by

transfer appointment. However, the promotion was not

approved, as there was no established post under staff

fixation order. Consequently, Smt.Shankini M. Raj was

terminated, after serving 42 days in the school. She was

appointed again with effect from 01.06.2016 in an anticipated

vacancy of the aforesaid Shiji M.M. Her approval of the

appointment was returned on 10.09.2018, stating that there

was no vacancy to accommodate her. In both occasions, her

service was not approved.

4. Based on subsequent staff fixation order, a

vacancy of UPST arose on 01.06.2017 consequent upon the

promotion of Shiji M M. one Faseela C.M. was appointed in

that vacancy. The dispute regarding her appointment and

approval ultimately reached before this Court in

W.P(C)No.12077 of 2019. It is turned out that appointment of

Faseela C.M. was in the vacancy of senior Teacher Litty

Raphel. Thus, this Court concluded that, if Smt.Shankini M.

Raj establishes before the Education Officer that there was an

established vacancy to accommodate her consequent upon

the promotion of Shiji M.M, her approval shall be considered.

Consequent upon direction of this Court, the District

Education Officer approved her appointment. The matter was

carried before the Director of General Education. The order of

the District Education Officer was also affirmed by the

Director of General Education. The Manager approached the

Government in revision. The Government examined the

matter from a legal perspective and found that there is no

legal provision in the Kerala Education Rules for the

reappointment of a teacher, who had no approved service.

Accordingly, the Government set aside orders of approval and

upheld the claim of Manager.

5. There are two legal aspects involved in the

matter. First, the nature of law that govern Manager and

Teacher through contract of appointment; this is a private law

aspect. Second, when approval is accorded to the teacher by

Educational Authority; this is the public law aspect. As rightly

noted by the Government, there is no legal provision under

the Kerala Education Rules for reappointment of a teacher,

who was retrenched for want of anticipated vacancy and

whose service was not approved.

6. We note Chapter XIV A Rule 7A which reads

thus;

"7A. (1) xxxx

(2) Posts that may fall vacant on the closing date shall not be filled up till the reopening date (except in the case of posts of non-vacation staff.

(3) Vacancies, the duration of which is less than one academic year, shall not be filled up."

7. Rule 7A as initially stood, do not allow the

Manager to make an appointment in anticipation or sanction

of post. This was deleted by Government Order dated

28.10.1978. It is appropriate to refer Rule 7A before its

deletion.

"1. Rule 7A(1) and its proviso deleted by G.O.(P) 150/78/G.Edn. dated 28.10.78. R7-A(1) and its proviso were introduced by G.O.(P) 199/69 Edn. Dated 15.5.69 and by notification dated 13.9.72

respectively. The deleted portion was "(1) No appointment shall be made in anticipation of sanction of posts except in the case of new school opened or existing schools upgraded (or higher standards opened with permission in those schools).

[Provided in the case of additional posts sanctioned as per staff fixation order, appointments may be made from the date of effect of the fixation order]."

8. The authority to make appointment in the

aided school is vested with the Manager. The Education

Officers are only competent to consider the approval of

appointment, if it is in order. After the amendment the

Manager has enabling power to make appointment in

anticipation. But that will not itself confer any right on the

teacher. As we already noted, reappointment of unapproved

teacher is not in the contemplation of Kerala Education Rules.

The contract of employment in a private aided school is

having its origin in law of contract. All such employment will

have to be characterized as a contract of personal service.

The status of public service encapsulating conditions of

service is attained only when approval is accorded to

appointment.

9. A single Judge (one of us) of this Court had an

occasion to consider the claim of two unapproved teachers,

who were retrenched for want of vacancies and claimed

reappointment in Beeba K Nath v. State of Kerala; [2015 (3)

KLT 541. It was a case where both teachers were appointed

on an anticipation of admissible posts. Thereafter, when

vacancy arose, junior was reappointed ignoring the claim of

senior by terminating her service.

10. This Court in Para 10 held as follows:

"10. It is well settled principle of service jurisprudence that in the event of retrenchment, last come first go principle should be applied. Even in the absence of any statutory prescription regarding unapproved teachers, the above principle should be applied as being principle. When different or competent claim exists, in the absence of statutory provisions to govern, general provision shall be resorted to as an element of an agreement by all, to make larger system coherent, lest chaos would prevail, leaving to whims and fancies of the dominant, who wields the power. This agreement is the very foundation of the legal system in which all have agreed to be governed by the Rule of law.