O.N. Judy vs The State of Kerala

Antony Dominic, J.—This appeal is filed by the 2nd petitioner in W.P. (C). No. 21571/2011, who is aggrieved by the judgment of the learned Single Judge. Briefly stated, the facts relevant are: The appellant was appointed as a U.P.S.A. under the 4th respondent in a leave vacancy for the period from 10.1.1996 to 29.3.1996. Subsequently, her services were approved with effect from 1.6.1998. Seniority was also fixed among herself and the others who were also appointed on that day, adopting age as the criterion, as prescribed in Rule 37 of Chapter XIV-A KER. The appointment for the period from 10.1.1996 to 29.3.1996 was not approved by the departmental authorities and was later approved by Ext. P2 order dated 23.4.2010 pursuant to Ext. P4(a) direction of the Government of Kerala. That approval was objected to by another teacher and finally, the Government issued Ext. P16 order dated 29.7.2011 cancelling the approval.

As a result, the appellant had to content with the seniority as assigned by the Government based on the approval of her service with effect from 1.6.1998. It was this controversy and the consequent dispute regarding the seniority, which was raised in the Writ Petition. The learned Single Judge upheld Ext. P16 and dismissed the Writ Petition. This appeal is against the said judgment.

A reading of the proceedings would show that according to the departmental authorities and the Government, in the leave vacancy for the period from 10.1.1996 to 29.3.1996, to which the appellant was appointed, there was a superior Rule 51A claimant by name, Smt. Sheeba. The pleadings show that when one Smt. Swarnamma, a U.P.S.A., was promoted during 1995-96 as H.S.A. (Social Science), Smt. Sheeba was appointed in the resultant vacancy. According to the departmental authorities, Smt. Swarnamma''s appointment was made at a time when two protected teachers in the subjects of H.S.A. (Maths) and H.S.A. (Natural Science) were liable to be recalled and since Smt. Swarnamma was appointed without recalling them, Smt. Swarnamma''s appointment was irregular. It was also found that as a consequence, the appointment of Smt. Sheeba in the resultant vacancy of Smt. Swarnamma is also irregular leaving Smt. Sheeba, a 51A claimant, available for appointment in the leave vacancy to which the appellant was appointed, resulting in the appointment of the appellant also irregular.

However, while examining this issue and passing Ext. P16 order, the Government does not appear to have adverted to the principles laid down by the Apex Court in the decision in Deepa Augustine v. Geetha Alex [2008 (2) KLT 771 (SC)], which lays down the principle that in making promotions under Rule 43 of Chapter XIV-A of the KER, subject requirement should be strictly followed. On this basis, it is contended before us that since protected teachers, who were available to be recalled, were H.S.A. (Maths) and H.S.A. (Natural Science), they could not have been recalled and accommodated against a vacancy of H.S.A. (Social Science) and that therefore the appointment of Smt. Swarnamma in the vacancy of H.S.A. (Social Science) was perfectly legal. The learned counsel therefore contends that as a consequence, the appointments of Smt. Sheeba and the appellant also were perfectly legal.

Since this issue, has not engaged the attention of the Government, we are inclined to think that the matter needs to be reconsidered to the extent it concerns the appellant. Accordingly, we set aside Ext. P16 order dated 29.7.2011 passed by the Government and direct that the claim of the appellant for approval of her appointment for the period from 10.1.1996 to 29.3.1996 as U.P.S.A. be reconsidered by the Government adverting to the principles laid down by the Apex Court in Deepa Augustine''s case (supra) and the provisions of the KER as it stood at the relevant time-1995-1996. This shall be done with notice to the appellant and all affected parties including the manager and orders thereon shall be passed at any rate, within four months from the date of receipt of a certified copy of this judgment.

We clarify that we have not expressed anything on the merits of the case and it is entirely for the Government to reconsider the issue including the applicability of the principles laid down by the Apex Court in Deepa Augustine''s case (supra).

The Writ Appeal is disposed of as above.