GENERAL MANAGER Vs. P L LILLY

JUDGEMENT

(1.) This order will dispose of two wit appeal nos. 1416 and 1459 of 2003 both of which are directed against the order passed by a learned Single Judge allowing O. P. No. 36534 of 2002 filed by the first respondent. Since arguments were addressed in W. A. No. 1459 of 2003, the facts are being taken from this case. Counsel for the parties are agreed that the decision in this case shall govern the other case as well. The facts giving rise to the appeal may first be noticed.

(2.) The appellant before us was the 6th respondent in the writ petition filed by the first respondent. The writ petitioner had been appointed as a temporary sewing teacher in Smt. Loui's High School, Mundamvely against the leave vacancy of one Smt. Prestina John. She jointed as a temporary teacher on 9-9-1980 and worked up to 5-12-1980. This service was approved by the District Educational Officer. St. Loui's High School was then under an individual educational agency. The management of the school was then brought under a corporate educational agency, Diocese of Cochin, Catholic Center, and Kochi with effect from 1-4-1981. It is common ground between the parties that the management of the school was transferred from an individual educational agency to the corporate educational agency with effect from this date. The appellate was also appointed as a Sewing Teacher on temporary basis against a short term vacancy in St. Peter's High School, Kumbalangi. She was appointed on 9-8-1982 and worked up to 30-10-1982. This school (St. Peter's High School) is managed by the 6th respondent. Her service was approved by the District Educational Officer. After this appointment was over, she was given a temporary appointment against a short term vacancy as a teacher on 10-1-1983 and she worked up to 30-3-1983 in St. Loui's High School, Mundamveli. This service was also approved by the competent authority. As already observed, this school had, by now, come under the corporate management of the 6th respondent. In other words, the appellant had to her credit two stints of temporary service in two different schools under the same corporate management. Thereafter, she was again given a temporary appointment on 23-1-1990 and she worked up to 30th March, 1990 in St. Augustine's High School, Aroor. This service was also approved and the school is run by the same corporate management, namely, the 6th respondent. Thereafter, she was appointed on 4-6-1990 as a needle work teacher in St. Augustine's High School, Aroor against a permanent vacancy on the retirement of a regular teacher and it is not in dispute that she is continuing on that post till date. The service has been approved by the competent authority. This regular appointment was given to the appellant as a claimant under Rule 21A of Chapter XIVA of the Kerala Education Rules, 1959 (for short the Rules') as she had to per credit three stints of approved temporary service under three different schools run by the same management.

(3.) It was on 22-3-1999 that the first respondent (writ petitioner) staked her claim to the regular post which was given to the appellant on 4-6-1990 on the ground that she was a senior 51A claimant under the rules and that she was entitled to be appointed on the regular post prior to the appellant. A complaint was filed before the District Educational Officer who rejected the same as per his communication dated 22-4-2000 on the ground that his office was not in a position to take any decision at that distance of time. The first respondent felt aggrieved by the rejection of her claim and filed a petition before the Director of Public Instructions on 13-5-2000 which was allowed on 13-12-2001 holding that the first respondent was a senior 51A claimant and was entitled to be appointed in preference to the appellant. The Director of Public Instructions gave a direction to the Manager of the corporate educational agency (the 6th respondent herein) to review the appointment of the appellant which, according to him, was irregular. The Manager of the corporate educational agency and the appellant both filed revision petitions before the State Government taking a plea that the first respondent was not a 51A claimant because the approved service which she had to her credit was not under the same educational agency and, therefore, not covered by the provisions of Rule 51A of the Rules. It was also pleaded that the first respondent had not challenged the appointment of the appellant till March 1999 and, therefore, the Director of Public Instructions was not justifies in interfering with the appointment at that distance of time. Both the petitions were allowed and the appellant and the first respondent both held to be 51A claimants. Since the challenge to the appointment of the appellant had been made after a long delay, the Government directed the Manager of the corporate educational agency to appoint the first respondent against the next arising vacancy under the corporate management. The appellant was permitted to continue on the present post on which she was appointed on 4-6-1990. It was now the turn of the first respondent to challenge the order of the State Government. She filed O. P. No. 36534 of 2002 in this Court alleging that she was a senior 51A claimant and entitled to appointment in preference to the appellant. The matter was considered by the learned Single Judge who proceeded on the assumption that the appellant and the first respondent were both 51A claimants and had to their credit approved temporary service under the same management and since temporary service of the first respondent was prior in time to that of the appellant, she was entitled to be appointed in preference to her (the appellant). The learned Single Judge posed a question as to whether the right under Rule 51A would be lost to the first respondent if she failed to object in time to the list of 51A claimants published by the Manager in which her seniority was wrongly shown. This question was answered in the negative and the writ petition was allowed. It may be mentioned that the Manager of the 6th respondent had issued a provisional seniority list of 51A claimants in which the appellant was shown senior to the first respondent. The learned Single Judge relied on Notes 1 and 2 to Rules 51A of the Rules and found that both the appellant and the first respondent were the claimants under that Rule but preference ha to be given to the first respondent as she had temporary service to her credit earlier in point of time. It was also found that the first respondent by not objecting to the appointment of the appellant in the year 1990 had not forfeited her claim under Rule 51A and, therefore, she was entitled to preference in the matter of appointment. It is against this order of the learned Single Judge that the present appeals have been filed.