VALSA P Vs. SUJAMOL S

JUDGEMENT

(1.) These appeals are filed challenging the judgment dated 20.03.2017 of the learned Single Judge allowing W.P.(C) No.29700 of 2016. W.A.No.1385 of 2017 is filed by the 6th respondent in the Writ Petition while W.A.No.1552 of 2017 is filed by respondents 4 and 5, who are the Manager and the Principal respectively of the CSI Vocational Higher Secondary School, Thiruvalla, an aided school. The dispute relates to the appointment of a Matron to the Women's Hostel of the Higher Secondary Section. The learned Single Judge has directed the first respondent in both the appeals who was the Writ Petitioner, to be appointed. The appellants challenge the said direction in these appeals. 2. The Writ Petition was filed by the first respondent staking a claim for being appointed to one of the posts sanctioned as per exhibit P3 Government Order. As per exhibit P3, sanction was granted for creation of two posts of Matron (one male and one female) at the CSI Vocational Higher Secondary School for the Deaf, Thiruvalla with immediate effect. According to the first respondent, she was appointed as a Matron in the Vocational Higher Secondary School Hostel attached to the school referred to above in the year 2008. It is stated that she has been continuing there ever since. She was earlier working as a Matron in the High School Section from July 2005 onwards. Considering the need for a Matron in the hostel, which is a school for the deaf, she had been appointed by the Manager. As per exhibit P1 dated 18.11.2010, the Principal of the School requested the third respondent to recommend to the Government to sanction a new post of Matron so that the first respondent's appointment could be approved. As per exhibit P2, the third respondent recommended the request. It was pursuant to exhibit P2 that exhibit P3 was issued. The complaint of the first respondent was that, after the issue of exhibit P3, the Manager refused to forward the proposal for regularisation and approval of her appointment. Therefore, the Writ Petition was filed seeking appropriate orders for approval of appointment of the first respondent. 3. The Writ Petition was contested by the respondents. A counter affidavit was filed on behalf of respondents 4 and 5 who are the appellants in W.A.No.1552 of 2017. According to the Manager and the Principal, the first respondent was not appointed as Matron, as contended by her. She was only engaged on temporary basis and such engagement would not confer on her any benefit or entitlement for claiming appointment to the post sanctioned as per exhibit P3. At the same time, it was pointed out that, the 6th respondent in the Writ Petition who is the appellant in W.A.No1385 of 2017 was a Matron whose appointment had been approved by the authorities and who was terminated due to want of vacancy. The stand of the Manager and the Principal was that she had a better claim for being appointed to the post. 4. According to the 6th respondent, she had been appointed as a Matron on 04.08.2003 and her appointment had been approved by the authorities. In 2010-11, she was thrown out. But the said post was restored as per exhibit R6(b). Though she had worked in a leave vacancy, she was thrown out on 31.01.2016 for the reason that the person who had availed the leave had cancelled the remaining portion of his leave and had joined duty. She was working as a Matron in the High School Section. Being a person who was thrown out for want of vacancy, it is contended that she had a superior claim for being appointed to the post sanctioned as per exhibit P3. It was contended that the first respondent's appointment not having been approved by any authority, had no right to claim any preference. 5. According to the counter affidavit of the third respondent, the first respondent had been working as a Matron in the school temporarily from July 2005 in the High School Section and from 2008 in the Vocational Higher Secondary Section. Since the post of Matron was absolutely necessary for the students hostel attached to the Vocational Higher Secondary Section, the Manager had submitted exhibit P1 petition requesting for the sanction of such post. Exhibit P1 was recommended by exhibit P2 and it was after considering the same that exhibit P3 was issued. According to the third respondent, since the first respondent was only working in the post temporarily, she could not claim regularisation of her service but could claim only a fresh appointment. 6. The learned Single Judge considered the respective contentions, found that the request for sanction of the post made in exhibit P1 itself was for regularisation of the appointment of the first respondent and that the objections against the approval of her appointment had arisen only after the posts were sanctioned as per exhibit P3. Since the provisions of the Kerala Education Rules, 1959 (KER for short) are not applicable to the Vocational Higher Secondary Section, it has been found that the Manager ought to be held bound by the commitment that he had expressed in exhibit P1. It has also been found that the respondent has a preferential right for such appointment over the 6th respondent. Therefore, the Manager has been directed to forward necessary papers for obtaining approval to the appointment of the first respondent. Such approval has also been directed to be granted. Both these appeals are against the said judgment. 7. According to Senior Counsel Sri. Babu Varghese who appears for the appellants in W.A.1552 of 2017, there is nothing on record to show that the first respondent had been appointed as a Matron in the school, as contended. She had only been temporarily engaged. As far as the necessity of having a Matron to look after the inmates of the ladies hostel of the Vocational Higher Secondary Section, there is no dispute. What is contended is that the appellant in W.A.No.1385 of 2017 has a better claim to be appointed to the said post, in view of the dictum laid down by another Division Bench of this Court in Jayasree v. Director of Higher Secondary Education [2009(2) KLT 352]. According to the learned Senior Counsel, what exhibit P3 has done is only to sanction two posts. The Manager had not taken any action on the basis of exhibit P3. It was necessary for the Manager to issue a notification inviting applications and conduct a selection. According to the learned Senior Counsel, such a selection process would be conducted. It is only appropriate that the Manager is permitted to go ahead with such selection process so that a proper selection that is valid in law could be conducted. Therefore, he seeks interference with the judgment of the learned Single Judge. 8. Advocate S.Subhash Chand, who appears for the appellant in W.A.No.1385 of 2017, also contends that the first respondent has not been appointed as a Matron to the school, as contended. No order of appointment is produced, nor has any such appointment been approved by the educational authorities. On the contrary, the appellant is a person who had been appointed as Matron in the hostel attached to the High School Section as per exhibit R6(a) on 04.08.2003. Her appointment was also approved. However, she was thrown out in the year 2010-11 due to want of vacancy. Later on, the post was restored on 22.08.2015. Even after that, she had worked in the school in a leave vacancy up to 01.02.2016 on which date she was thrown out. Being a regularly appointed Matron, who has lost her job and who has prior approved service to her credit, it is contended that, she ought to be preferred over the first respondent for appointment to one of the posts created by exhibit P3. In the alternative, it is contended that a fresh selection ought to be conducted on the basis of exhibit P3. The direction of the learned Single Judge to appoint the first respondent is, according to the learned counsel, wrong and liable to be set aside. We have heard the learned Government Pleader also. 9. It is not in dispute that, the first respondent had been working in the school as a Matron in the hostel attached to the High School Section from the year 2005 onwards. She is also stated to have been working in the hostel attached to the Vocational Higher Secondary Section (VHS Section) since 2008. According to the Manager and the Principal, her appointment was only temporary. Even according to the counter affidavit filed by the 3rd respondent, it is admitted that, the first respondent was working as a Matron in the hostel since 2008. However, her service has not been approved. A perusal of exhibit P1 shows that, the same is a request that was made by the Principal of the School to the third respondent to recommend the sanctioning of a new post of Matron. It is stated in exhibit P1 that the Management had appointed the first respondent as Matron to look after the girl students in the hostel. According to exhibit P1, she is a deaf lady who had been discharging the duty of the Matron efficiently for the past few years. Her husband is also deaf and unemployed. She has got two children who are both deaf. It was in the said context that the request exhibit P1 was submitted. Exhibit P2 shows that exhibit P1 was recommended by the third respondent.It is clear from exhibit P3 that, the said order was issued on the basis of exhibits P1 and P2. The question is whether the first respondent ought to have been appointed to one of the posts created by exhibit P3 as directed by the learned Single Judge? 10. In the above context, the contention advanced by the learned Senior Counsel Sri. Babu Varghese is that though chapter XIVA KER is not applicable to the Vocational Higher Secondary Section, the principles underlying Rule 51A are applicable entitling the appellant in W.A.No.1385 of 2017 to a preferential claim for appointment. The learned Senior Counsel places reliance on the judgment in Jayasree v. Director of Higher Secondary Education (Supra ). In answer to the above contention, the counsel for the first respondent has drawn our attention to a Full Bench decision of this Court in Varghese v. Deputy Director of Education [2009(2) KLT 109(F.B.)] to contend that the dictum in Jayasree v. Director of Higher Secondary Education (Supra ) has been doubted. We have perused the judgment in Jayasree v. Director of Higher Secondary Education (Supra ). In the said decision, a Division Bench of this Court has held that the principles underlying of Rule 51Aof Chapter XIVA would apply to Higher Secondary Sections as well. However, the issue has been considered by a later Division Bench decision of this Court in State of Kerala v. Manager, St. Roch 's High School, Tvpm [2014(2) KHC 520 (DB)]. In paragraphs 23 and 24, of the said judgment the issue has been concluded in the following words. 23. It is also not in dispute that school level education was available for a considerably long period only upto Std.X and only after Pre-Degree Course was delinked from colleges, that a new system has been adopted to have Plus Two courses in schools whereby the HSS had Standards upto Std.XII. Chapter V of KER deals with opening and recognition of schools and lays down a procedure for recognising the schools. It also provides the procedure for determining the areas where new schools are to be opened or the existing schools are to be upgraded. Rule 9 of Chapter V indicates the conditions for granting permission for opening new schools and Rule 11 narrates the procedure for issuing orders for opening new schools. Apparently, there is no dispute about the fact that the Government has not followed Chapter V of KER on the ground that the same has no application for starting Plus Two courses. Another provision which is of relevance is Chapter XXXII of KER. It deals with the method of appointment and qualifications of teachers and non-teaching staff in aided HSS. This provision was inserted as per Government Order GO(P)331/2001/G/Edn dated 09/11/2001. Rule 1(c) defines higher secondary course as meaning a continuous two year course of study offered as part of school education after Std X. The rule provides for method of appointment and qualification of teachers and non-teaching staff. 24. Primarily, if one looks at the classification of schools coming under Chapter II of KER, Plus Two courses are not provided. Therefore, in the absence of any other interpretation being given to the meaning of the word school in KER as including Plus Two courses, it may not be possible to arrive at a conclusion that the school, as classified in Chapter II included Plus Two course as well. Even if the Division Bench judgment of this Court in Krishnankutty's case (supra), need not be considered as a proposition, in the light of the judgment in Sam Jospeh's case (supra), Jayasree's cases(supra), Varghese's case (supra), Aided Higher Secondary School Teachers Association's case (supra) it is all the more clear that other than Chapter XXXII of KER no other provisions applies to HSS. In Sam Joseph's case (supra) the issue involved was regarding the claim for seniority. It was contended that provisions of various chapters KER does not apply to HSS unless expressly made applicable by the Government. It is further held that provisions like Rule 51B coming under Chapter XIV A of KER is made applicable to Higher Secondary Wing by specific order of the Government. It is also held that insofar as Rule 51A has not been made applicable as evident from the Division Bench judgment in Jayasree's case (supra) and since there is no Government order extending Rule 35 of Chapter XIV A of KER to HSS, a claim based on Rule 35 will not apply to the Higher Secondary classes. Taking into consideration the overwhelming judicial opinion on this point we are unable to agree that all the provisions of KER Mutatis Mutandis applies to HSS as well.In view of the above subsequent pronouncement of another Division Bench of this Court, it is held that Rule 51A chapter XIVA does not apply to the Vocational Higher Secondary Section. 11. In the present case, the appellant in W.A.No.1385 of 2017 was working in the High School Section of the school whereas, the first respondent was working in the Vocational Higher Secondary Section. These two sections being distinct and separate, the claim of the appellant cannot have any basis. However, we notice that the post created by exhibit P3 was with immediate effect from 23.05.2015. The appellant in W.A.No.1385 of 2017 had been working in the High School Section of the School up to 01.02.2016 on which date she was thrown out. On the contrary, the first respondent was appointed as a Matron to the hostel attached to the Vocational Higher Secondary Section in the year 2008 and has been continuing as such, ever since as evident from exhibit P1. As rightly noticed by the learned Single Judge, it is after the issue of exhibit P3 that the Manager had a rethinking on the issue. Though exhibit P3 was issued on 23.05.2015, no action was taken thereon by the Manager either to appoint the first respondent or to conduct a selection as offered to be made before us now. We notice that the Writ Petition was filed only in September 2016. The first respondent had waited for about 1= years after the issue of exhibit P3 waiting for the Manager to take some action on the basis of the Government Order. It is only in the Writ Petition that present contentions have surfaced. We are not satisfied that there is any bona fides in the said submission. 12. The Manager had requested for sanction of the post for the purpose of regularising the appointment of the first respondent, who, according to him, had been appointed considering the absolute necessity of having a Matron for the hostel attached to the Vocational Higher Secondary Section. She has been permitted to work there, ever since. She is a physically disabled person, who is deaf with a husband who is deaf and children who are also deaf. The learned Single Judge directed the first respondent to be appointed considering the above facts. Though it has been contended before us by the counsel appearing for the appellants that, the proper procedure to be adopted is to issue a notification inviting applications, no provision prohibiting the appointment of the first respondent, who is a non teaching-staff as Matron, in accordance with the direction of the learned Single Judge has been brought to our notice. What is not expressly prohibited is permissible especially in the peculiar circumstances of this case. We also notice that the first respondent in the event of a fresh notification being issued, would be over aged even to submit an application. However, the proposal in exhibit P1 that was sought to be recommended was for the grant of approval to the appointment of the first respondent. The above fact was brought to the notice of the Government also. Therefore, the above fact was also within the knowledge of the Government while issuing exhibit P3. The Government have not filed any appeal against the judgment of the learned Single Judge. For the foregoing reasons, we find no grounds to interfere with the judgment of the learned Single Judge. These appeals are therefore dismissed.