Valsamma Thomas vs The Manager, Little Flower Girls High School and Others

Arijit Pasayat, C.J.—These appeals arise out of the judgment in O.P. 15184 of 1995. Original Petition was preferred by the 4th Respondent herein for a declaration that she is senior to the Appellant as High School Assistant (Mathematics) and that she is entitled to continue in service from 20th September 1993 with all service benefits.

Appellant herein was working as H.S.A. (Mathematics) at St. Mary''s C.G.H.S. Ernakulam and one Smt. Elia, P.A. was working as H.S.A. (Mathematics) at Little Flower Girls High School, Narakkal. They applied for inter-management mutual transfer in accordance with Rule 11 of Chapter XIV A of Kerala Education Rules. Managers of both the schools agreed to relieve the above mentioned teachers and to absorb them after getting sanction from the District Educational Officer, Ernakulam. As per the rule both the above mentioned teachers have to be treated as juniormost in the new schools to which they were to be inter-departmentally transferred.

In the meantime, a leave vacancy of H.S.A. (Mathematics) arose in the Little Flower Girls High School, Narakkal on 20th September 1993, since the incumbent Smt. Rosy Sheela took leave for five years. In that vacancy 4th Respondent herein was appointed for the period from 20th September 1993 to 30th March 1994 as probationary teacher and her appointment was approved upto 30th March 1994. Accordingly under Rule 49 Chapter XIV A, K.E.R. she had to be relieved on the closing day of the academic year. While the 4th Respondent was continuing so, District Educational Officer issued an order Ext. P-1 (a) dated 14 October 1993 according inter-management transfer of the Appellant and Smt. Elia, P.A.

Fourth Respondent aggrieved by the order of the management as well as that of the D.E.O. in posting the Appellant in the place of Elia submitted representation before the Manager to shift the 4th Respondent''s lien in the vacancy of Smt. Elia and to provide the Appellant in the leave vacancy of Smt. Rosy Sheela. Since no action was taken by the management, 4th Respondent herein filed an appeal before the second Respondent under Rule 64, Chapter XIV A of the K.E.R. She also filed O.P. 4404 of 1994 for a direction to the second Respondent to dispose of the appeal.

Second Respondent rejected the appeal by order dated 25th August 1994 holding that 4th Respondent was appointed only on a temporary basis and she had only a right for reappointment under Rule 51A, Chapter XIV A K.E.R. Aggrieved by the said order 4th Respondent herein filed a revision before the Government. Government vide order dated 20th July 1995 rejected the same. Aggrieved by the orders passed by the second and third Respondents, 4th Respondent filed the present writ petition.

A learned Single Judge of this Court was pleased to interfere with the orders passed by the second and third Respondents. Learned Judge took the view that since 4th Respondent was appointed on 20th September 1993 earlier than the Appellant herein and she is senior in accordance with Rule 42, Chapter XIV A, K.E.R. and therefore entitled to be accommodated against the permanent vacancy. Learned Judge also did not accept the contention that the 4th Respondent is only a 51A claimant. According to the Learned Judge when Smt. Elia was transferred, 4th Respondent got a claim to be accommodated in that vacancy and inter-management transfer would not defeat the right of the 4th Respondent. Aggrieved by the judgment of the learned Single Judge the 3rd Respondent as well as the Manager preferred these appeals.

Counsel for the Appellant Sri Babu Varghese challenged the findings of the learned Single Judge on various grounds. According to the learned Counsel, 4th Respondent herein was appointed only as acting/temporary teacher and that her appointment was approved only from 20th September 1993 to 30th March 1994 as probationary teacher. Counsel submitted that since 4th Respondent''s appointment was only on temporary basis and her continuous service was less than eight months as on the closing day on 30th March 1994 she has necessarily to be relieved in the light of Rule 49, Chapter XIV A of the K.E.R. Further Counsel submitted that if at all the 4th Respondent has got any right, she has got only the claim of preference in appointment in future vacancy under Rule 51A of Chapter XXV A, K.E.R.

Counsel for the 4th Respondent Sri K. Balakrishnan on the other hand, submitted that when a vacancy in any category of post terminates necessitating the relief of a teacher, senior hand has to be retained. According to the Counsel, going by Rule 37, Chapter XIV A K.E.R. 4th Respondent was senior to the Appellant. Further Counsel submitted that the 4th Respondent was appointed earlier than the Appellant and consequently the Appellant has to get a rank below that of the 4th Respondent.

We are of the view that learned Single Judge has not properly appreciated the nature of appointment of the 4th Respondent. Appointment order itself indicates that 4th Respondent was appointed only in a leave vacancy and that the appointment was approved only upto 30th March 1994. In other words, continuance of the 4th Respondent always depended upon rejoining duty by Smt. Rosy Sheela who had taken leave. But as far as Appellant is concerned, she was a regularly appointed teacher in St. Mary''s C.G.H.S., Ernakulam and on inter-management transfer, she came to Little Flower Girls High School. Rule 11 Chapter XIV A of K.E.R. permits inter-management transfer and it is in accordance with statutory provision that Appellant herein made application for inter-management transfer and the same was acceded to by the department vide order dated 14th October 1993. It is true in the case of inter-management transfer the transferee has to be treated as juniormost in the new school as among regular appointees in the transferred school. But as far as 4th Respondent is concerned she has never been a regularly appointed teacher. She was appointed only on temporary basis in a leave vacancy. Question of application of Rule 37 of Chapter XIV A would apply only when the seniority is determined between two regularly appointed teachers and not between a regular appointee and a teacher appointed on a temporary basis. At best 4th Respondent can claim only for a Reappointment in a vacancy under Rule 51A of Chapter XIV A, K.E.R. if there is a vacancy.

Under the above mentioned circumstance we are of the view that the Deputy Director of Education as well as Government have correctly found that the 4th Respondent has no claim over Appellant and the direction given to the Manager to relieve 4th Respondent from the school in 30th March 1994 retaining the Appellant in the school is only to be upheld.

For the above mentioned reasons both the appeals are allowed and the judgment of the learned Single Judge would stand set aside.