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Judgment
P.B.Suresh Kumar, J.
The above appeals arise from the common judgment dated 13.06.2022 in two writ petitions namely, W.P. (C) Nos.2896 of 2021 and 3353 of 2022. As the writ petitions were disposed of by a common judgment, these appeals are also disposed of by this common judgment. Parties and documents are referred to in this judgment, as they appear in W.P.(C) No.2896 of 2021.
The petitioner was working as a Full-Time Menial in the fifth respondent, an aided school (the School). He took leave for the period from 10.07.2013 to 31.10.2016 and underwent a bachelors degree course in Physical Education in a college affiliated to Mahatma Gandhi University (the University). Even though he completed the course during the leave period, he could not secure a pass in all the subjects. He therefore re-joined the School and wrote the failed subject in the supplementary examination held by the University during May 2017. The result of the said supplementary examination was published by the University on 05.07.2018. The petitioner cleared the failed subject in the said examination. In the meanwhile, in the academic year 2017-18, one Denny Job, who was working as Physical Education Teacher in the School retired on superannuation and consequently, a vacancy of Physical Education Teacher arose in the school. In the said vacancy, the Manager of the School appointed the eighth respondent on 01.06.2018.
According to the petitioner, since he has completed the degree course in Physical Education in the examination held during May 2017, notwithstanding the fact that the result of the said examination was published only in the month of July 2018, he should have been appointed as Physical Education Teacher in the School in the vacancy referred to above. It is also his case that the Physical Education Teacher in the School had attained the age of superannuation only in the month of June 2018; that he was therefore entitled to continue as teacher in the School till 30.06.2018; that the vacancy of the Physical Education Teacher in the School, in the circumstances, can be said to have arisen only on 01.07.2018; that the result of the examination undertaken by the petitioner has been confidentially communicated by the University to the concerned District Educational Officer on a request made by the petitioner much before 01.07.2018 and that therefore, at any rate, he should have been appointed in the place of the eighth respondent.
The petitioner though preferred a representation in the circumstances, before the Manager seeking appointment, the same was rejected. The said decision of the Manager was however reversed by the District Educational Officer in terms of Ext.P16 order, holding that the petitioner is entitled to be appointed in the vacancy which arose on account of the retirement of Denny Job. The Manager though challenged Ext.P16 order in appeal before the Deputy Director of Education, the same was rejected. Ext.P17 is the order issued by the Deputy Director in this regard. The decision of the Deputy Director was impugned by the Manager in revision before the Director of General Education. Ext.P18 is the order passed by the Director of General Education in the said revision. In Ext.P18 order, although it was held by the Director of General Education that the petitioner could not establish that he acquired the required qualification as on the date of occurrence of the vacancy namely, 1.6.2018, the revision was disposed of directing the Deputy Director to ascertain, after contacting the University, as to whether the petitioner has acquired the qualification before the occurrence of the vacancy, and directing further that if it is found in the affirmative, steps shall be taken to ensure that the petitioner is appointed in the said vacancy. Pursuant to Ext.P18, on the basis of a clarification issued by the University, the Deputy Director found that the petitioner has acquired the qualification before the occurrence of the vacancy and consequently directed the Manager to take appropriate action to appoint the petitioner in the said vacancy. Ext.P20 is the communication issued by the Deputy Director to the Manager in this regard on 29.10.2020. Despite Ext.P20 communication, the representation preferred by the petitioner claiming appointment was turned down by the Manager. Ext.P27 is the order issued by the Manager in this regard. The writ petition is one instituted challenging Ext.P27 order. The petitioner also sought in the writ petition, a direction to the Manager to appoint him as Physical Education Teacher in the School within a time frame and a direction to the District Educational Officer to approve the said appointment.
In the meanwhile, the Manager challenged Ext.P20 communication before the Director of General Education by way of a revision. On 19.5.2021, this court passed an interim order in the writ petition directing the Director of General Education to consider and pass orders on the said revision. Pursuant to the said direction, the Director of General Education passed an order on 25.11.2021 rejecting the revision preferred by the Manager. W.P.(C) No.3353 of 2022 was one instituted by the Manager along with the eighth respondent challenging the said order of the Director of General Education.
The learned Single Judge took the view that the petitioner has acquired the necessary qualification in the month of May 2017 itself and consequently, quashed Ext.P27 order and disposed of the writ petitions, directing the Manager to appoint the petitioner as Physical Education Teacher in the School. The Manager and the eighth respondent are aggrieved by the said decision of the learned Single Judge and hence these appeals. Among the appeals, W.A.Nos.1081 and 1123 of 2022 are preferred challenging the decision in W.P.(C) No.3353 of 2022 and W.A.Nos.1253 and 1128 of 2022 are preferred challenging the decision in W.P.(C) No.2896 of 2021.
Heard the learned counsel for the petitioner, the learned counsel for the eighth respondent as also the learned counsel for the Manager. The learned Government Pleader has also addressed arguments.
The learned counsel for the Manager as also the learned counsel for the eighth respondent did not dispute the fact that the petitioner would have been entitled to be appointed in the vacancy of Physical Education Teacher which arose in the School on account of the retirement of Denny Job, had he been qualified before the date of occurrence of the vacancy. They, however asserted that the vacancy arose on 01.06.2018 and the petitioner was not qualified on that date. According to them, since the results of the examination was declared only on 05.07.2018, the petitioner cannot be said to have been qualified as on the date of occurrence of the vacancy.
The learned counsel for the petitioner did not dispute the fact that the petitioner could not complete the course at the first instance, and that he could clear one of the subjects only in the supplementary examination held in the month of May 2017. Similarly, the learned counsel did not dispute the fact that the result of the said examination was declared by the University only on 05.07.2018. The contention raised by the learned counsel, however, was that the vacancy which arose on account of the retirement of Denny Job can be considered to have been arisen only on 01.07.2018 as the said teacher had attained the age of superannuation only in the month of June 2018 and the teacher was entitled to continue in service till 30.06.2018. It was also the contention of the learned counsel that since the result of the supplementary examination was not published on time, he applied to the University during May 2018 to forward his results confidentially to the District Educational Officer, and on the basis of the said request, his result was forwarded confidentially by the University in the month of June 2018 itself and that insofar as the result of the examination undertaken by the petitioner in the month of May 2017 was very much available with the District Educational Officer, the publication of the result of the examination has no relevance in the matter of deciding the rights of parties for claiming appointment against the vacancy which arose on account of the retirement of Denny Job.
The learned Government Pleader supported the petitioner pointing out that insofar as the retired teacher has attained the age of superannuation only in the month of June 2018 and as the teacher was entitled to continue in service till the end of June 2018, the vacancy on account of the retirement of Denny Job can be said to have arisen only on 01.07.2018.
We have considered the submissions made by the learned counsel for the parties on either side.
Let us first decide the question as to when the vacancy arose. Rule 63 of Chapter XIV A of Kerala Education Rules (KER) provides that if the date of superannuation of a teacher falls within one month from the date of re-opening of the institution, he will cease to be on active duty on the date of re-opening. Rule 60(c) of Part I of the Kerala Service Rules (KSR) which enables teaching staff of educational institutions who complete the age of superannuation during the course of an academic year to continue in service till the last date of the month in which the academic year ends, clarifies that if the day on which the teaching staff attained the age of 56 falls within the period of one month beginning with the day of reopening of the institutions, they shall cease to be on duty with effect from the date of such reopening. The relevant portion of Rule 60(c) of Part I KSR reads thus:
(c) The teaching staff of all Educational Institutions (including Principals of Colleges) who complete the age of 56 years during the course of an academic year shall continue in service till the last day of the month in which the academic year ends; but the extended period of service shall not be reckoned for any service benefits such as increment, higher grade, accrual of leave, promotion and pay revision effective from a date of superannuation under sub-rule (a) of rule 60. The period shall not be counted as qualifying service for pension and the pay received during the period shall not be reckoned for computing average emoluments or pensionary benefits or commuted value of pension. If they are on leave on the day they attain the age of 56 years and fail to rejoin duty on the first working day immediately after the date of superannuation, they shall be retired with effect from the date of superannuation under sub-rule (a) of rule 60. But, in cases where officers coming under this rule are under suspension on the date of superannuation or thereafter, but before the closing day of the academic year, they shall be retired from service on the date of superannuation or on the date of suspension, whichever is later.
If, however, the day on which the teaching staff (including Principals of Colleges) attain the age of 56 years falls within the period of one month beginning with the day of reopening of the institutions, they shall cease to be on duty with effect from the date of such reopening and they shall be granted additional leave from the date of reopening to the last day of the month in which they attain the age of 56 years. They shall be entitled to the benefit of increment if it falls due before the actual date on which they attain the age of 56 years.
(underline supplied)
In the light of the provisions aforesaid, in a case of this nature, the vacancy can be said to have been arisen on the date of reopening of the School after the vacation and Managers are empowered to make appointments in such vacancies on the date of reopening itself. As a matter of fact, this aspect has been clarified by the Deputy Director in Ext.P17 order, the relevant portion of which reads thus:
"ക .ഇ.ആ അദയ 14 എ, ചട 63 പ ര , സ തറകന ത യത മത ഒര മസത ന മണ$ അദപ കപ ഷ പയ പ ത യകനകതങ , സ തറകന ത യത മത അദ+ഹ സജ വമയ ഡ0ട യ ലലകതയയ ത രനതകണന , സ തറകന ദ വസ മത കപ ഷ പദ5ണ ത യത വകര മഴവ ശമളദതടകട പദത അവധ ക$ അദ+ഹ അ ഹത ദനടനതകണന വവസ കചയ ടണ$ . ഇപ ര 30 / 6/ 2018 ന$ റ ടയ കചയശ .കഡന ദജബ ന$ , ക .സ$.ആ .പ ട$ 1, റ 60 സ പ ര കFഷ ല വ$ അനവദ ച ടകണന , ആയത$ കIമപ രമകണന ണന . ആയത ന മദനജ $ 1/6/ 2018 മത പസതതസ യ ന യമന നടതവനതകണന ണന .”
In the light of the discussion aforesaid, the contention of the petitioner that the vacancy arose only on 01.07.2018, is only to be rejected. Having regard to the provision contained in the KER and KSR referred to above and as found by the Deputy Director, the vacancy can be treated to have arisen on 01.06.2018.
The next question is as to whether the petitioner can be considered as a person who has acquired the qualification as on the date of occurrence of the vacancy viz, 01.06.2018. As noted, there is no dispute to the fact that the petitioner has written the supplementary examination of the failed subject only during May 2017. Similarly, there is no dispute to the fact that the result of the said supplementary examination was published only on 05.07.2018. The argument advanced by the learned counsel for the petitioner is that even though the result was not declared by the University before 01.06.2018, on the request made by the petitioner, the result of the examination undertaken by the petitioner was communicated by the University to the District Educational Officer. Even though it was asserted by the learned counsel for the petitioner that his result was communicated by the University to the District Educational Officer before 01.06.2018, on instructions, the learned Government Pleader submitted that the communication dated 31.05.2017 addressed by the University has been received by the Educational Officer only on 04.06.2018. It has been held by this court in Sreekanthan v. State of Kerala, 1999 (2) KLT 530 that the relevant date for considering the date of acquisition of qualification is the date of publication of the results of the examination. In the said case, the court was examining the question as to whether the date of issuance of mark list has any relevance. In Nanu v. Balan Master, 2006 (4) KLT 702, it was reiterated by this court that the date of publication of results has to be taken into account for considering the date of qualification. In the said case, the court was examining the question as to whether the date of issuance of the certificate has any relevance. Similarly, in Kerala Public Service Commission v. Ajeesh Vijayan, 2019 (2) KLT 1067, this court reiterated that a person can be considered to have acquired the necessary qualification only on the date of publication of the results. In the light of the decisions aforesaid, the argument of the learned counsel for the petitioner that the date on which the result of the examination has been communicated by the University to the District Educational Officer, is to be reckoned as the date of acquisition of qualification, cannot be accepted. That apart, the said communication was not even addressed to the Manager of the School who is empowered to make the appointment. Instead, it was a communication addressed to the District Educational Officer. Further, as noted, even assuming that the date of communication of the result of the examination by the University to the District Educational Officer is to be regarded as the date of acquisition of the qualification, the District Educational Officer has received the communication only on 04.06.2018, much after the occurrence of the vacancy. The argument advanced by the learned counsel for the petitioner in this regard also, in the circumstances, fails.
Needless to say, the appointment of the eighth respondent effected by the Manager on 01.06.2018 as Physical Educational Teacher in the School in the vacancy which arose on account of the retirement of Denny Job is in order and the same is liable to be approved by the District Educational Officer.
In the result, the writ appeals are allowed, the impugned common judgment is set aside, W.P.(C) No.2896 of 2021 is dismissed and W.P.(C) No.3353 of 2022 is allowed directing the concerned District Educational Officer to approve the appointment of the eighth respondent as Physical Education Teacher in the School in the vacancy that arose on 01.06.2018 forthwith.