T. Arajasree vs State of Kerala

A.K. Jayasankaran Nambiar, J.—Since both the writ petitions involve a common issue, they are taken up together for consideration and disposal by this common judgment. The petitioner in W.P.(C). No. 15575/2013 is the 5th respondent in W.P.(C). No. 14031/2014 and the petitioner in the latter writ petition is the 5th respondent in the former. For the sake of convenience, the reference to facts and exhibits are from W.P.(C). No. 15575/2013.

The petitioner was appointed as UPSA under the 4th respondent School with effect from 1.6.2001. She is a person who possesses the qualifications of B.Sc. in Maths, M.A. in English and a B.Ed. in Maths. While working as a UPSA, she was accommodated against a leave vacancy of H.S.A. (Maths) for the period from 29.10.2002 to 12.3.2003. Thereafter in the academic year 2004-05, the petitioner was promoted as H.S.A. (English) with effect from 21.7.2004. At the time of arising of the vacancy in the post of H.S.A. (English), namely, 21.7.2004, the qualification to be possessed by a candidate seeking appointment to the post of H.S.A. (English) was prescribed by Government Order G.O.(MS). No. 11/2002/G. Edn. dated 7.11.2002 as follows:

(1) A Degree in English Language and literature and

(2) B.Ed/BT/LT with English as optional subject confirmed or recognized by any of the Universities in Kerala;/in the absence of those with qualification in item No.(2), candidates with B.Ed./BT/LT in any other subject confirmed or recognized by any of the Universities in Kerala will be considered.

It would appear that this qualification that was prescribed by the aforesaid Government Order was subsequently incorporated in Rule 2(x) of Chapter XXXI of the Kerala Education Rules, hereinafter referred to as the ''KER''. The petitioner, as already noted, had a degree in English language and Literature but did not have a B.Ed. with English as an optional subject. However, taking into account the fact that there was no other candidate who was willing to be considered for the post of H.S.A. (English) as on that date, the petitioner was appointed in view of her alternate qualification of B.Ed. in Maths, for the post of H.S.A. (English). It was thus that the petitioner came to be appointed as H.S.A. (English) with effect from 21.7.2004.

When the appointments of the petitioner, as H.S.A. (Maths) for the period from 29.10.2002 to 12.3.2003 and as H.S.A. (English) with effect from 21.7.2004, was sent for approval to the Educational Authorities, the said appointments were not approved stating that there was no approved Manager in the School. Against the rejection of approval, to the appointments of the petitioner, she preferred a revision petition before the 1st respondent. The 1st respondent vide Ext. P2 order dated 3.8.2006, approved the appointment of the petitioner as H.S.A. (Maths), but the said order did not contain any finding with regard to the approval of the appointment of the petitioner as H.S.A. (English). In view of this lacuna, the petitioner preferred a review petition before the 1st respondent. That resulted in Ext. P3 order dated 20.12.2006, whereby the 1st respondent directed the approval of the appointment of the petitioner as H.S.A. (English) with effect from 21.7.2004. Pursuant to Ext. P3 order of the 1st respondent, Ext. P4 consequential order was also passed whereby the appointment of the petitioner as H.S.A. (English) was approved for the period from 21.7.2004 to 14.7.2006. By yet another order namely Ext. P5 dated 25.10.2007, the approval of the appointment of the petitioner as H.S.A. (English) was made effective from 21.7.2004 onwards without any time limit. It would appear that, in the meanwhile, against Ext. P4 order that was passed consequent to Ext. P3 order of the 1st respondent, the 5th respondent approached this Court through W.P.(C). No. 15048/2007 challenging both Ext. P3 order as also Ext. P4 consequential order. The writ petition was dismissed by Ext. P8 judgment dated 13.8.2007. It was immediately thereafter that Ext. P5 order dated 25.10.2007 was passed which approved the appointment of the petitioner as H.S.A. (English) with effect from 21.7.2004 onwards without any time limit. The 5th respondent preferred an appeal (W.A. No. 2410/2007) against Ext. P8 judgment of this Court. The said appeal was later referred to the Full Bench, to decide upon the issue as to whether a review petition would lie against an order passed by the Government in a revision application. The Full Bench that considered the issue in its judgment reported in Anil Kumar P. Vs. State of Kerala and Others, , found that a review petition against the decision of the Government in a revision, would not lie under the KER. The judgment of the Full Bench however left open the right of the petitioner to challenge Ext. P2 order, in respect of the approval for his appointment to the post of H.S.A. (English), through appropriate proceedings. In the Full Bench judgment, there is also a discussion with regard to the inter se rights of the petitioner and the 5th respondent with which we need not be concerned at this stage.

Pursuant to the rights reserved to the petitioner by the Full Bench judgment referred to above, the petitioner filed W.P.(C). No. 23870/2009 challenging Ext. P2 order. The said writ petition was heard along with W.P.(C). No. 24079/2009 filed by the 5th respondent claiming that he should be allowed to continue as H.S.A. (Social Studies) in the vacancy of H.S.A. (English) to which the petitioner was accommodated. There were two other writ petitions W.P.(C). No. 9749/2009 and W.P.(C). No. 15939/2009 filed by appointees to the vacancies that resulted pursuant to the appointment of the petitioner and the 5th respondent as HSA''s. All these writ petitions were considered together and by Ext. P7 judgment dated 26.7.2012, this Court quashed Ext. P2 order that was impugned by the petitioner, to the extent the petitioner''s claim for approval as H.S.A. (English) had not been considered in the said judgment. As regards the finding in Ext. P2 order with regard to the approval of the appointment of the petitioner as H.S.A. (Maths), the said finding was confirmed. The 1st respondent was also directed to consider the claim of the petitioner for approval of her appointment as H.S.A. (English) with effect from 21.7.2004, afresh. It would appear that pursuant to Ext. P7 judgment of this Court, the 1st respondent heard all the interested parties and by Ext. P9 order dated 31.5.2003 found that the petitioner was not qualified for appointment as H.S.A. (English). As a consequence, it was found that the 5th respondent could be retained in the post of H.S.A. (English) based on Ext. P10 Circular dated 6.2.2010. As a consequential order to Ext. P9 order of the 1st respondent, Exts. P12 and P13 orders have also been passed. In the writ petition, Exts. P9, P12 an P13 orders are impugned.

In W.P.(C). No. 14031/2014 also the challenge is against the appointment of the petitioner in W.P.(C). No. 15575/2013 as H.S.A. (English) with effect from 21.7.2004, to the extent it effects the prospects of the petitioner (the 5th respondent in W.P.(C). No. 15575/2013) with effect from 15.7.2006 when consequent to a staff fixation order, one post of H.S.A. (Social Studies) was found to be in excess and as a result, the petitioner, faced the prospect of reversion as UPSA. The said writ petition also deals with the claim of the petitioner therein with regard to regularisation of his service as H.S.A. (Social Studies) for the period from 15.7.2006 till 6.10.2009 without any break in service, a benefit that was eventually granted to him by Ext. P18 order dated 31.5.2013 and Exts. P19 and P20 consequential orders passed thereafter. In the writ petition, the petitioner therein is aggrieved by Exts. P19 and P20 only to the extent that they deny the benefit of regularisation of a break in service for the purposes of grant of pay and allowances to the petitioner after regularising the said break in service for all other purposes. This is the only other point that arises for consideration in W.P.(C). No. 14031/2014.

Counter affidavits have been filed by the Government in both the writ petitions wherein they seek to justify the orders impugned in the said writ petitions. The contents of the counter affidavits of the respondents in both the writ petitions being similar to the contentions in the writ petitions preferred by them, are not dealt with separately at this stage.

I have heard learned senior counsel Sri. K. Jaju Babu appearing on behalf of the petitioner in W.P.(C). No. 15575/2013, learned senior counsel Smt. V.P. Seemandini appearing on behalf of the petitioner in W.P.(C). No. 14031/2014, Sri. V.A. Muhammed, learned counsel appearing on behalf of the 7th respondent in W.P.(C). No. 15575/2013 and for the 6th respondent in W.P.(C). No. 14031/2014 and Sri. K.A. Jaleel, learned Additional Advocate General appearing on behalf of respondents 1 to 3 in W.P.(C). No. 15575/2013 and respondents 1 to 3 in W.P.(C). No. 14031/2014.

Learned senior counsel Sri. K. Jaju Babu appearing on behalf of the petitioner in W.P.(C). No. 15575/2013 would rely on the provisions of Chapter XXIII and XXXI of the KER to contend that in 2004, when a vacancy arose to the post of H.S.A. (English) in the 4th respondent''s School, the petitioner was the only qualified hand available for appointment to the post of H.S.A. (English). The decision of the Full Bench of this Court in P. Padmanabhan Nair and Another Vs. The Deputy Director of Education, Malappuram and Others, is relied upon for contending that the eligibility of a candidate to a post has to be reckoned on the date of occurrence of the vacancy, and in the instant case, the petitioner was the only qualified candidate available for appointment to the vacancy that arose with effect from 21.7.2004. It is also pointed out that in view of the fact that the vacancy arose in the post of H.S.A. (English), it could be filled only by appointment of a person who was qualified to be appointed as H.S.A. (English) and not by any other person. In support of the said contention, reliance is placed on the decision reported in Padmakumar Vs. Director of Public Instruction . It is also pointed out that at the time of appointment of the petitioner as H.S.A. (English), there was no contingency that led to any H.S.A. in a core subject facing the prospect of either reversion or retrenchment. Thus, there was no occasion for applying the principles of protection in respect of any H.S.A. in a core subject, by accommodating him/her as H.S.A. (English), to the vacancy that fell due with effect from 21.7.2004. It is pointed out that it is only if and when such a situation arises that the requirement of accommodating a H.S.A. in a core subject as H.S.A. (English), in preference to an alternatively qualified candidate would arise, as was held in the decisions reported in Minimole, C. Vs. State of Kerala and others, as approved by the Division Bench in State of Kerala and Others Vs. Minimole C. and Another, . Lastly, reliance was also placed on the decision reported in Bindu Thomas v. State of Kerala-[ 2008(1) KLT 89] for the proposition that when the eligibility requirement for a post is a Degree in any subject, the same would also take in a Post Graduate Degree in the subject and it did not mean only a Bachelor''s degree in the subject. This last submission is made in the backdrop of the fact that in Ext. P9 order of the 1st respondent, the petitioner is found to be not qualified for the post of H.S.A. (English) only for the reason that she did not possess a Bachelor''s Degree in English. It is the contention of the learned senior counsel that the said finding in Ext. P9 order, which forms the basis of the said order holding the petitioner to be not qualified, cannot be legally sustained in view of the judgment referred to above as also the fact that the issue as to whether the petitioner was qualified or not for the post of H.S.A. had already been found in favour of the petitioner in an earlier litigation between the petitioner and the Government as also by the observations of the Full Bench in the decision reported in Anil Kumar''s case [supra].

Per contra, learned senior counsel appearing on behalf of the 5th respondent would contend that the appointment of the petitioner as H.S.A. (English) with effect from 21.7.2004 was void ab initio inasmuch as between 2002 and 2007, there was no approved Manager in the School who alone was competent to make appointments going by the express provisions of Section 11 of the Kerala Education Act, hereinafter referred to as the ''K.E. Act'', as clarified by a Full Bench of this Court in Assistant Educational Officer v. P.R. Mamoo-[1968 KLT 556 (F.B.)]. It is further pointed out that as on 21.7.2004, when the vacancy to the post of H.S.A. (English) arose, there were two other teachers in the School who had the necessary qualification for being posted as H.S.A. (English). The said teachers, namely, Smt. Ajithakumari Kunjamma, who was working as H.S.A. (Social Studies)) and Smt. Sreelatha, who was working as H.S.A. (Physical Science) were both qualified for the post of H.S.A. (English) and the appointment to the vacancy that arose with effect from 21.7.2004 should ideally having been done by appointing one of the said teachers in preference to the petitioner. In this connection, reliance is placed on Rule 1(4) of Chapter XIV(A) of the KER read with Rules 51 and 55 thereof which would indicate that the Manager of a School had to follow directions issued from time to time for ascertaining availability of qualified hands and for filling up of vacancies. The Manager had also to keep in mind the principles with regard to the retrenchment of teachers especially that mandating that the junior most be sent out first before the senior and also that while deciding the issue as to which teacher had to be retrenched, the minimum subject requirement criteria as per the KER had also to be borne in mind. The provisions of Rule 3 and Rule 6.I of Chapter XXIII of the KER are also relied upon for contending that, pursuant to the decision of the Government to introduce English as an additional subject, the amendment of the Rules indicated that English was brought in as an additional language and the post of H.S.A. (English) had to be sanctioned on the basis of periods allocated to the said subject and that the implementation itself was to be in a phased manner without causing any inconvenience to the existing H.S.A.''s in core subjects. Essentially it is contended by the learned senior counsel that the appointment of the petitioner in W.P.(C). No. 15575/2013 as H.S.A. (English) with effect from 21.7.2004 was the sole reason why, when consequent to the staff fixation of 2006-07, there arose a situation where one of the H.S.A.''s (Social Studies) was rendered surplus, the petitioner was faced with a reversion. It is contended that in the staff fixation order in 2006-07, the 5th respondent was continued as a H.S.A. (English) without being reverted only because there was no valid appointment to the post of H.S.A. (English) prior to that date in the School. As regards the other grievance of the 5th respondent, which is expressly raised in W.P.(C). No. 14031/2014 filed by him, it is pointed out that there is absolutely no justification for the findings in Exts. P18, P19 and P20 orders that, although the service of the petitioner as H.S.A. (Social Studies) is regularised and approved with effect from 15.7.2006 till 6.10.2009, the said regularisation would not be applicable for the purposes of disbursal of pay and allowances to the petitioner in that writ petition.

I have considered the facts and circumstances of the case as also the submissions made across the Bar. In W.P.(C). No. 15575/2013, Ext. P9 order that is impugned is one that is passed pursuant to Ext. P7 judgment. In Ext. P9 order, the sole ground on which the petitioner is found not qualified for the post of H.S.A. (English) is that she is not a Bachelor''s Degree holder in English. There is no other reason stated in Ext. P9 as to why the petitioner''s appointment as H.S.A. (English) with effect from 21.7.2004 could not be approved. In view of the decision in Bindu Thomas v. State of Kerala-[2008(1) KLT 89], this cannot be a valid ground to disentitle the petitioner for the post in question. What is then to be considered is whether the petitioner was qualified for the post in question as on the date of arising of the vacancy for it is that date alone which is relevant for the purposes of determining the qualification of the petitioner as already laid down in the Full Bench decision of this Court in P. Padmanabhan Nair and Another Vs. The Deputy Director of Education, Malappuram and Others, . It is also necessary to note the decision in Padmakumar Vs. Director of Public Instruction , which clearly holds that the vacancy in the post of a particular subject can be filled only by one who is qualified in that subject. In the case at hand, to the vacancy that arose with effect from 21.7.2004, the petitioner who was a Post Graduate in English and possessed the alternate qualification of a B.Ed. in Maths, was qualified and eligible to be appointed to the post of H.S.A. (English) so long as there was no other qualified hand, to be appointed to the said post. No doubt, the 5th respondent has a case that as on that date, there were two other teachers in the School who were better qualified for the post of H.S.A. (English) and were working in the School as H.S.A''s. in core subjects. Although, technically, the 5th respondent could be right in contending that there were other candidates who were qualified to hold the post in question, I am of the view that in the absence of any claim or willingness expressed by the said qualified HSA''s, one would have to assume that there was no other available candidate for the post in question. The petitioner having been the only person who expressed her willingness to be considered for the post of H.S.A. (English) as on 21.7.2014, when the vacancy arose, and having possessed the requisite educational qualification for the post, I am of the view that her appointment as H.S.A. (English) with effect from 21.7.2004 had necessarily to be approved.

I must also deal with the other contention of the 5th respondent namely that the appointment of the petitioner as H.S.A. (English) was not by an approved Manager since, between 2002 and 2006, there was no approved Manager in the School. No doubt, the provisions of Section 11 of the K.E. Act and also the decision of the Full Bench in Assistant Educational Officer v. P.R. Mamoo-[1968 KLT 556 (F.B.)] indicate that only a Manager has the power to make an appointment. In the instant case, there appears to have been a managerial dispute in the School during the relevant period. However, that is not the ground on which the petitioner has been found to be disentitled to the post of H.S.A. (English) by the order impugned in the writ petitions. Under these circumstances, I do not consider it necessary to go into the said issue to ascertain whether it would affect the appointment of the petitioner as H.S.A. (English) with effect from 21.7.2004. In situations like this, it is safer for this Court to rely on the de facto principle for the purposes of protecting the appointments that have been made in the School during the pendency of such managerial disputes. In fact the de facto principle has also been statutorily recognised in Rule 9 of Chapter XIV(A) of the KER. That apart, I also feel that it may not be necessary to re-open and agitate this new point raised by the 5th respondent at this belated stage of the proceedings, especially when the 5th respondent is not really prejudiced by the appointment of the petitioner as H.S.A. (English) on 21.7.2004.

It is relevant to note at this stage that the claim of the 5th respondent to the vacancy that arose to the post of H.S.A. (English) with effect from 21.7.2004 can only be vis-a-vis his claim for protection at the time when he faced reversion, pursuant to the staff fixation of 2006-07. The decisions of this Court in Minimole, C. Vs. State of Kerala and others, and State of Kerala and Others Vs. Minimole C. and Another, clearly hold that the protection envisaged in the Government Orders, dealing with teachers who faced retrenchment or reversion, are applicable only in cases where the prospect of retrenchment or reversion arises consequent to the creation of the post in question. In the instant case, the vacancy to the post of H.S.A. (English) arose on 21.7.2004. The petitioner was appointed to the said vacancy. As a result of this appointment, there was no disturbance to the continuation of the 5th respondent as H.S.A. (Social Studies). In that view of the matter, I do not think it is open to the 5th respondent to claim the benefit of protection, that was necessitated only in 2006-07, by impugning the appointment of the petitioner which took place as early as on 21.7.2004. The said contention of the 5th respondent, also does not persuade me to find against the petitioner in the matter of regularisation of his appointment as H.S.A. (English) with effect from 21.7.2004. Resultantly, I am of the view that Ext. P9 order of the 1st respondent, as also Exts. P12 and P13 consequential orders of the 1st and 3rd respondents, deserve to be quashed to the extent they deny approval to the appointment of the petitioner as H.S.A. (English) with effect from 21.7.2004 without any time limit. I do so. The 3rd respondent shall pass fresh orders approving the appointment of the petitioner as H.S.A. (English) in the 4th respondent''s School with effect from 21.7.2004, within a period of one month from the date of receipt of a copy of this judgment. The 3rd respondent is also directed to disburse the salary and allowances that are due to her within a period of three months from the date of receipt of a copy of this judgment.

With regard to the prayers in W.P.(C). No. 14031/2014, I am of the view that the challenge of the petitioner therein against Exts. P19 and P20 orders, to the extent they hold that the break in service of the petitioner as H.S.A. (Social Studies) in the School for the period from 26.10.2007 to 18.11.2007 and 15.7.2008 to 6.10.2009 is regularised for all purposes except for the pay and allowances for the said period, must necessarily succeed. A perusal of Ext. P19 order would clearly indicate that the break in service pertaining to the petitioner''s service as H.S.A. (Social Studies) with effect from 15.7.2006 has been regularised by the 1st respondent. Thereafter there is no reason given for qualifying the regularisation by making it applicable for all purposes except for pay and allowances. I am of the view that inasmuch as the break in service has been regularised, there is no justification in the 1st respondent taking a stand that the regularisation will be valid only for certain purposes. A regularisation of a break in service must entail all consequential benefits flowing from such regularisation. The impugned findings in Exts. P18 and P19 orders have no legal basis and it is therefore that I deem it fit to quash the said orders to the extent they hold that the regularisation of the period of retrenchment from 26.10.2007 to 18.11.2007 and 15.7.2008 to 6.10.2009, will not apply for pay and allowances for the said period. Resultantly, respondents 1 to 4 shall sanction and disburse the salary and other allowances due to the petitioner in the post of H.S.A. (Social Studies) with effect from 15.7.2006 and in particular for the period from 26.10.2007 to 18.11.2007 and 15.7.2008 to 6.10.2009 which period has otherwise been regularised in Exts. P19 and P20 orders of the 1st and 3rd respondents respectively. The 3rd respondent shall effect the payments within a period of two months from the date of receipt of a copy of this judgment. By way of clarification, and as a necessary fallout of the findings with regard to W.P.(C). No. 15575/2013, it is also declared that the petitioner in W.P. (C). No. 14031/2014 shall be deemed to be working as H.S.A. (Social Studies) in the 4th respondent''s School with effect from 15.7.2006 onwards without any time limit.

The writ petitions are disposed as above.