MAYA S Vs. STATE OF KERALA

JUDGEMENT

(1.) The writ petition was referred to the Division Bench by a learned Single Judge, noticing the apparent conflict between two reported decisions of the Single Benches concerning the rights of an existing claimant under R.51A of Chapter XIVA of the Kerala Education Rules (KER) to the vacancies that arose after the amendment to the said Rule introduced on 17/06/2005. The brief facts of the case are the following.

(2.) The petitioner was appointed as an Upper Primary School Assistant (UPSA) in Mattakkara High School by its Manager on 29/06/2005 as per Ext. P1 order. The said appointment was in a regular vacancy and it was approved by the District Education Officer (DEO) as per order dated 13/01/2006. During the academic year 2006-2007, one post of High School Assistant (Maths) was abolished and a new post of Lower Grade Hindi Teacher was sanctioned. Ext. P2 is the staff fixation order for the year 2006-2007 dated 24/07/2006, which took effect from 15/07/2006. As a result of reduction of one division, one HSA became surplus and the said incumbent was appointed as UPSA. The petitioner being the junior most UPSA, was retrenched. She moved the Manager, claiming the vacancy of Lower Grade Hindi Teacher, for which she is duly qualified. She also claimed that she filed Ext. P4 representation before the Deputy Director of Education on 24/08/2006, claiming that vacancy. While so, the Manager appointed the 5th respondent in that vacancy. The 5th respondent has worked in the school as High School Assistant (HSA) (Hindi) from 03/11/2003 to 17/03/2004. The said spell of service was approved by the DEO. So, she was a claimant under R.51A of Chapter XIVA of KER. The petitioner was retrenched from service on 28/08/2006 with retrospective effect from 15/07/2006 by the Manager by Ext. P3 order. While so, the DEO passed an order canceling the approval of appointment of the 5th respondent. The Manager was directed to appoint the senior - most thrown out / protected teacher as Lower Grade Hindi Teacher before considering fresh appointment. Pursuant to the said order, the Manager issued Ext. P7 proceedings, again appointing the 5th respondent, as Lower Grade Hindi Teacher, treating her as the senior - most thrown out teacher awaiting appointment. The petitioner challenged that order before this Court, by filing Writ Petition (C) No. 26872/2006. Pursuant to Ext. P7, the appointment of 5th respondent was approved by the DEO. The Writ Petition was disposed of, directing the petitioner to invoke the revisional remedy available to her. Challenging Ext. P7, the petitioner preferred Ext. P9 revision before the Government. The Government, after hearing both sides, disposed of the revision by Ext. P10 order. It was held by the Government that the 5th respondent was the legitimate claimant for the post of language teacher (Hindi), which arose in the school with effect from 15/07/2006. The petitioner approached this Court, challenging Exts. P3, Ext. P7 and Ext. P10 The 1st respondent has filed a counter affidavit, supporting the impugned orders. The respondents 4 and 5 have filed separate counter affidavits, resisting the prayers in the Writ Petition.

(3.) We heard Sri. N. Raghuraj for the writ petitioner, Sri. P. K. Sureshkumar learned counsel for 5th respondent, Sri. M. Sajjad learned counsel for 4th respondent and learned Government Pleader Smt. R. Bindu for the official respondents. The learned counsel for the writ petitioner submitted that the petitioner was retrenched after the amendment to R.51A, which was introduced on 17/06/2005 and so, she is entitled to get any vacancy arising in any teaching post in the school. Going by the decision of this Court in Abdurahiman v. Govt. of Kerala and Others, 2009 (1) KHC 950 : ILR 2009 (1) Ker. 864 : 2009 (1) KLJ 721 : 2009 (2) KLT 105, the rights of the 5th respondent under the unamended R.51A are not affected by the present amendment. That means, the 5th respondent is entitled to get preference only in the matter of appointment as against a fresh candidate from the open market, if a vacancy in the post of HSA (Hindi) arises, as she has approved service as HSA (Hindi) from 03/11/2003 to 17/03/2004, it is submitted. The 5th respondent, on the other hand, submitted that once it is found that her claim under R.51A is intact even after the amendment, she is entitled to get full benefit of the amended R.51A. So, she being a senior claimant, is entitled to get preference in re - appointment. The learned counsel for the 4th respondent submitted that the petitioner can claim re - appointment only if a vacancy arises in the same category of teaching post and not in a different category like lower Grade Hindi Teacher. The learned Government Pleader supported the aforementioned contentions of respondents 4 and 5.