Manager, Aleemul Islam Higher Secondary School vs Haseena E.K And Ors

A.M. Shaffique, J

This appeal is filed by the Manager of Aleemul Islam Higher Secondary School challenging judgment dated 01-03-2019 in W.P (C) No.31481/2014.

The writ petition was filed by one Smt. Haseena E.K. who worked in the aforesaid school in two spells in separate leave vacancies from 10-01-2000

to 10-03-2000 and later from 27-06-2002 to 07-08-2005. Both these appointments were not approved by the educational authorities. The petitioner

approached the learned Single Judge inter alia seeking for a direction to approve the appointments during the aforesaid period and for disbursement of

salary. Counter affidavit was filed by the Manager inter alia stating that since the aforesaid periods were not approved by the competent authority, the

petitioner cannot seek a claim either for disbursement of salary or for claiming benefits under Rule 51A of Chapter XIVA of Kerala Education Rules.

Further, it was contended that the claim is stale and barred by limitation.

The learned Single Judge by the impugned judgment having observed that the petitioner was working in the said school for the aforesaid period,

directed the Manager to trace out the old records with reference to the appointment of the petitioner in the said two spells and forward the same to

the District Educational Officer (DEO) for approval. The DEO was further directed to consider the question of approval on receipt of such records.

Learned counsel for the appellant would submit that there is gross delay and laches on the part of the petitioner in prosecuting the matter. As far as

the period from 10-01-2000 to 10-03-2000 is concerned, the claim had already been rejected by the educational authorities and though the said orders

were challenged, no orders were passed by the Government. It is submitted that after a considerably long period, Ext.P2 dated 15-10-2013 had been

issued purportedly based on the representation of the petitioner on 27-02-2007 stating that since the vacancy to which Smt. Haseena E.K. was

appointed is established and there is no 51A claimant, her appointment may be approved. Exhibit P2 had been issued by the Secretary to Government

to the District Educational Officer. Infact the representation of 2007 has been produced as Ext.R1 (b). Exhibit R1 (b) refers the period between 10-

01-2000 to 10-03-2000. It does not cover the period between 27-06-2002 to 07-08-2005. Yet another revision petition seems to have been filed, Ext.R1

(e) by the writ petitioner to the Government in the year 2011, where both claims had been made. That apart, the learned counsel for the appellant

submits that the claim for regularisation during the period from 27-06-2002 to 07-08-2005 has been rejected by the DEO as early as on 23-12-2002 as

per Ext.R5 (a) which had not been taken cognizance by the learned Single Judge. It is submitted that the petitioner did not challenge the said order by

filing any representation, whereas the Manager's revision petition of 2003 was only with reference to the period from 10-01-2000 to 10-03-2000. The

Manager however, had submitted Ext.R1 (b) appeal to the Deputy Director of Education on 29-01-2003 to sanction the approval of appointment of

Smt. Haseena E.K. as HSA from 27-06-2002 to 07-08-2005. Exhibit R1 (c) is a hearing notice of January 2007. But thereafter, no orders seem to

have been passed. It is submitted that the petitioner filed a revision only in the year 2011, which is evident from Ext.R1(e). Therefore, according to the

Manager, there is gross delay and laches on the part of the petitioner in prosecuting the matter and therefore the learned Single Judge ought not have

issued the aforesaid direction. That apart, it is submitted that when Ext.R5 (a) has been issued as early as on 23-12-2002, but no valid challenge had

been made until 2011, which also adds to the laches of the petitioner.

The learned counsel for the respondent/writ petitioner however would contend that though the matter was heard by the Government, no orders

were passed. A hearing notice was issued as early as in January 2007. But from Ext.P2 it seems that an order was passed by the Government on 15-

10-2013 stating that the petitioner was appointed in an established vacancy as there was no 51A claimant waiting for appointment. The communication

was sent to the DEO, Chavakkad. But the DEO had not passed any orders pursuant thereto. The writ petition has been filed only on 22-11-2014.

Basically the petitioner seeks for regularisation of her service in order to make a claim under Rule 51A of Chapter XIV-A of KER and also for

salary and other benefits. As far as the spell from 10-01-2000 to 10-03-2000 is concerned, it will not be enough to claim a benefit under Rule 51A of

Chapter XIVA of KER in view of the judgment of the Apex court in VKNM Vocational Higher Secondary School v. State of Kerala (2016) 4 SCC

The Apex Court has held that a minimum one year service as provided in the amended provision of Rule 51A is required even for appointment

after the amendment to the Kerala Education Rules.

Now the question is whether there is justification for claiming regularisation from 27-06-2002 to 07-08-2005. By Ext.R5 (a) dated 23-12-2002 the

DEO had come to a finding that for subjects HSA (Social Science), there were only 5 sanctioned posts and number of approved teachers working

against the post was 7. It was found that 2 excess qualified approved teachers were working against the sanctioned posts excluding the appointee.

Therefore it was held that a fresh HSA (Social Science) cannot be considered. It is in the said circumstances that the approval of the petitioner from

27-06-2002 to 07-08-2005 has been rejected. Even assuming that the delay can be excused, still what we find from Ext.R1 (e) is that the only

contention urged regarding the said vacancy is that she was appointed in the school as Smt.Roselin had gone abroad after availing leave without

allowance and therefore she should be accommodated in the said post. When the DEO had specifically pointed out that the petitioner could not be

accommodated on account of the fact that excess teachers were working in the said school, there is justification for rejecting the same. Therefore, at

this point of time, when there is considerable delay and laches on the part of the petitioner in prosecuting the matter and when there is justification on

the part of the DEO in rejecting the claim of the petitioner, we are of the view that the learned Single Judge was not justified in directing consideration

of her claim afresh especially when the DEO had already rejected her claim.

In the result, the appeal is allowed. The judgment of the learned Single Judge is set aside and the writ petition stands dismissed.