Athira T.S. vs The Deputy Director Of Education
2021 Latest Caselaw 11641 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

                      WP(C).No.13539 OF 2020(N)


PETITIONER:

               ATHIRA T.S., LG (HINDI), SNV HIGHER SECONDARY SCHOOL,
               NR CITY PO, RAJAKKAD, IDUKKI-685566.

               SRI.P.RAMAKRISHNAN
               SMT.PREETHI RAMAKRISHNAN (P-212)
               SRI.T.C.KRISHNA
               SRI.C.ANIL KUMAR
               SMT.ASHA K.SHENOY
               SRI.PRATAP ABRAHAM VARGHESE

RESPONDENTS:

      1        THE DEPUTY DIRECTOR OF EDUCATION,
               OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
               THODUPUZHA, IDUKKI-685584.

      2        THE DISTRICT EDUCATIONAL OFFICER,
               OFFICE OF THE DISTRICT EDUCATION OFFICER, THODUPUZHA,
               IDUKKI-685584.

      3        THE MANAGER,
               SNV HIGHER SECONDARY SCHOOL, NR CITY PO, RAJAKKAD,
               IDUKKI-685566.

               SRI.P.M.MANOJ - SENIOR GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.04.2021, ALONG WITH WP(C).15675/2020(H), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WP(C).No.13539 OF 2020(N)

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                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

             THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

                            WP(C).No.15675 OF 2020(H)


PETITIONER:

                 ATHIRA T. S., LG (HINDI), SNV HIGHER SECONDARY
                 SCHOOL, NR CITY P. O., RAJAKKAD, IDUKKI - 685 566.

                 SRI.P.RAMAKRISHNAN
                 SMT.PREETHI RAMAKRISHNAN (P-212)
                 SRI.T.C.KRISHNA
                 SRI.C.ANIL KUMAR
                 SMT.ASHA K.SHENOY
                 SRI.PRATAP ABRAHAM VARGHESE

RESPONDENTS:
       1     STATE OF KERALA
             REPRESENTED BY THE SECRETARY, GENERAL EDUCATION
             DEPARTMENT, GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM - 695 001.

        2        THE DEPUTY DIRECTOR OF EDUCATION
                 OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
                 THODUPUZHA, IDUKKI - 685 584.

        3        THE DISTRICT EDUCATIONAL OFFICER
                 OFFICE OF THE DISTRICT EDUCATION OFFICER,
                 THODUPUZHA, IDUKKI - 685 584.

        4        THE MANAGER
                 SNV HIGHER SECONDARY SCHOOL, NR CITY P. O.,
                 RAJAKKAD, IDUKKI - 685 566.

                 SRI.A.N.RAJAN BABU
                 SRI.P.GOPALAKRISHNAN
                 SRI.A.R.EASWAR LAL
                 SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.04.2021, ALONG WITH WP(C).13539/2020(N), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.13539 OF 2020(N)

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                               JUDGMENT

Dated this the 9th day of April 2021

Both these cases have been filed by Smt.T.S.Athira, who

was appointed as a Lower Grade Hindi Teacher in the "SNV

Higher Secondary School", Rajakkad, Idukki with effect from

01.06.2017. According to the petitioner, even though her

approval was granted with effect from the said date, on

account of the orders of the Deputy Director of Education,

Idukki dated 06.02.2020 - a copy of which is on record as

Ext.P1 in W.P.(C) No.15675/2020 - the same was sought to be

cancelled, relying on Ext.P4 circular dated 01.07.2020, saying

that her approval could have been granted only if the

Manager had kept apart a vacancy to be filled by a protected

teacher prior to 06.06.2019.

2. The petitioner says that this mandate in Ext.P4 is

illegal and that, in any event of the matter, it would cause no

rigor against her appointment, since the Manager says

specifically that he had set apart a vacancy which occurred in

the year 2012, on account of the retirement of a teacher by

name Smt.Santhamma and that no list of protected teachers WP(C).No.13539 OF 2020(N)

had been forwarded to him by the educational Authorities

until now.

3. The petitioner, therefore, prays that her approval with

effect from 01.06.2017 be affirmed by this Court and that the

educational Authorities be directed to disburse to her salary

with effect from that date, after allotting her a Permanent

Employee Number, within a time frame to be fixed by this

Court.

4. The submissions of the petitioner as made by her

learned counsel Smt.Preethi Ramakrishnan, was countered by

the learned Senior Government Pleader - Sri.P.M.Manoj

saying that a counter affidavit has been filed by the District

Educational Officer, Thodupuzha in W.P.(C) No.15675/2020,

wherein, the following had been stated:

"The petitioner had submitted an application for Permanent Employee Number (PEN) to this respondent. In the meanwhile, a clarification had been received from the Government stating that, as the vacancy has to be filled by a protected teacher and the Manager had not set apart vacancies existing prior to 06.06.2019, for appointing protected teachers, the appointments made with effect from 01.06.2017 in the additional division vacancies during 2013-14 cannot be considered. Hence this respondent has not allotted PEN to the petitioner. The petitioner had filed W.P.(C) No.13539/20 for disbursement of salary from 01.06.2017 and this respondent had filed Counter Affidavit. The fourth respondent had also appointed other 2 UPSA's w.e.f.

01.06.2017 in the additional division vacancy during 2013-14. Out of these two UPSA's, in one case, WP(C).No.13539 OF 2020(N)

Government had directed this office to consider the appointment as per Government Circular No.J2/57/19/G.Edn dated 08.03.2019 and the fourth respondent had re-submitted the proposal for appointment through "Samanwaya". While considering the appointment there was a direction from the Government to seek clarification regarding the declaration submitted by the Manager before approving the appointment. Hence this respondent had sought clarification from Government and clarification received from the Government vide Letter No.H3/110/2020/G.Edn. dated 01.07.2020 stating that as the vacancy is to be filled by appointing a protected teacher and as the Manager had not set apart the vacancies existing prior to 06.06.2019 for appointing protected teachers, the appointments in the additional division vacancies during 2013-14 from 01.06.2017 cannot be considered."

5. The learned Senior Government Pleader submitted

that since the Manager has not set apart any vacancy, for

being filled up through a protected teacher, prior to

06.06.2019, the Circular bearing No.J2/57/2019/G.Edn. dated

08.03.2019 impugned by the petitioner in W.P.(C)

No.15675/2020, cannot be found to be at fault. The learned

Senior Government Pleader, therefore, prayed that both these

writ petitions be dismissed.

6. Sri.A.N.Rajan Babu, learned counsel appearing for the

Corporate Manager of the School, submitted that the edifice

of the Government's suspicion against the petitioner's

appointment is completely without basis because his client WP(C).No.13539 OF 2020(N)

had set apart the vacancy that arose consequent to the

retirement of a teacher by name Smt.Santhamma, as early as

on 31.05.2012. He submitted that since this vacancy is still

available to be filled up by a protected teacher, the

appointment of the petitioner cannot be now set aside by the

educational Authorities. He, therefore, prayed that these writ

petitions be allowed.

7. In response to the afore submissions of Sri.Rajan

Babu, the learned Senior Government Pleader submitted that

there is absolutely nothing on record to show that the

Manager had written to the educational Authorities setting

apart the aforementioned vacancy which arose as early as in

the year 2012; and that this can, therefore, only be seen to be

a defence now made out for the purpose of supporting the

petitioner. He thus reiteratingly prayed that these writ

petitions be dismissed.

8. When I consider the afore submissions and go through

the materials available on record, it is without doubt that the

sole reason cited against the approval of the petitioner's

appointment is that the Manager had not set apart a vacancy

which arose prior to 06.06.2019 in the School, for being filled

up through a protected teacher. However, the learned counsel WP(C).No.13539 OF 2020(N)

for the Manager specifically asserts that this is untrue and

that a vacancy which arose as early as in the year 2012 has

been so set apart. Evidently, there is a clear dispute of facts

involved at this stage, because the learned Senior

Government Pleader says that such a communication had

never been issued by the Manager to the competent

educational Authorities. However, since the Manager now

maintains that this vacancy has not been filled up on account

of want of list of protected teachers furnished by the

competent educational Authorities, I do not see why the same

be not directed to be reckoned for the purpose of the Circular,

so that the petitioner's appointment need not be interdicted.

9. Resultantly, I allow these writ petitions and direct the

District Educational Officer (DEO) to take steps for disbursal

of the petitioner's salary, based on the approval which has

already been granted to her, after verifying the veracity of the

claim of the Manager that he has already set apart a vacancy

for being filled up through a protected teacher, as early as in

the year 2012.

10. The afore shall be done as expeditiously as is

possible, but not later than three months from the date of

receipt of a copy of this judgment.

WP(C).No.13539 OF 2020(N)

11. Needless to say, the DEO shall also assign a valid

Permanent Employee Number to the petitioner so that she will

not have any impediment in future in receiving her salary in

time.

Since I have disposed of these writ petitions based on

the undertaking of the Manager, that a vacancy had already

been reserved in the year 2012 for being filled up through a

protected teacher, the contentions of the petitioner against

Ext.P3 Circular in W.P.(C) No.15675/2020 becomes

unnecessary for my consideration and therefore, they are left

open to be pursued by her, if it becomes so warranted in

future.

Sd/- DEVAN RAMACHANDRAN

STU JUDGE WP(C).No.13539 OF 2020(N)

APPENDIX OF WP(C) 13539/2020 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF APPOINTMENT ORDER DATED 23.3.2020 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P2 TRUE COPY OF LETTER DATED 6.2.2020 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P3 TRUE COPY OF REPRESENTATION DATED 30.6.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

RESPONDENT'S EXHIBITS:

EXHIBIT R2(A) TRUE COPY OF GOVERNMENT CIRCULAR NO.J2/57/19/G.EDN. DATED 08.03.2019.

EXHIBIT R2(B) GOVERNMENT LETTER NO.H3/110/2020 DATED 01.07.2020.

WP(C).No.13539 OF 2020(N)

APPENDIX OF WP(C) 15675/2020 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF LETTER DATED 6.2.2020 FROM THE 2ND RESPONDENT TO THE 3RD RESPONDENT.

EXHIBIT P2 TRUE COPY OF ORDER DATED 23.03.2020 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P3 TRUE COPY OF CIRCULAR DATED 08.03.2019 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P4 TRUE COPY OF LETTER DATED 01.07.2020 FROM THE 1ST RESPONDENT TO THE 3RD RESPONDENT.