Ruby Babu vs State Of Kerala
2021 Latest Caselaw 3664 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                     WP(C).No.19648 OF 2020(E)

PETITIONER:
              RUBY BABU, AGED 36 YEARS
              W/O. FRANCIS GEORGE, ARUKAKKAL HOUSE,
              AYAVANA P.O., MUVATTUPUZHA, ERNAKULAM,
              KERALA,PIN-686 668

              SRI.P.SANJAY
              SMT.A.PARVATHI MENON
              SRI.BIJU MEENATTOOR
              SRI.PAUL VARGHESE (PALLATH)
              SRI.P.A.MOHAMMED ASLAM
              SRI.KIRAN NARAYANAN
              SHRI.PRASOON SUNNY
              SHRI.RAHUL RAJ P.

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

      2       THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
              THIRUVANANTHAPURAM, PIN-695 001

      3       REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
              EDUCATION, KOTTAYAM,PIN-686 001

      4       REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY
              EDUCATION, ERNAKULAM,PIN-682 030

      5       THE MANAGER, CORPORATE EDUCATIONAL AGENCY,
              DIOCESE OF KOTHAMANGALAM, BISHOP'S HOUSE,
              KOTHAMANGALAM P.O., ERNAKULAM DISTRICT, PIN-686 691

      6       THE PRINCIPAL, ST.MARYS HIGHER SECONDARY SCHOOL,
              KALIYAR P.O., THODUPUZHA, IDUKKI,PIN-685 607

      7       THE PRINCIPAL, S.H.HIGHER SECONDARY SCHOOL, AYAVANA
              P.O., MUVATTUPUZHA , ERNAKULAM,PIN-686 668

              SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD           ON
02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.19648 OF 2020(E)

                                   2




                             JUDGMENT

Dated this the 2nd day of February 2021

The petitioner says that she was appointed as a Higher

Secondary School Teacher, Junior (HSST (Jr)) in Hindi in

"St.Mary's Higher Secondary School", Kaliyar, Idukki, with

effect from 08.07.2013 and that she was reappointed in

another school under the same management on 12.07.2017.

The petitioner has produced Ext.P1 in substantiation of the

afore assertion.

2. The petitioner says that from the academic year

2013-14, there had been sufficient number of students and

periods for the sanctioning of a post of HSST (Jr) in Hindi in

the School, which is evident from the staff fixation orders,

namely Exts.P2 and P3 and that the third respondent -

Regional Deputy Director of Higher Secondary Education,

thereupon, forwarded the proposal for sanctioning of the said

post vide Ext.P4 to the Government of kerala. She says that

even when the proposal for sanctioning of the post was so

pending, the first respondent - State of Kerala, issued an WP(C).No.19648 OF 2020(E)

order dated 08.06.2017, increasing the number of periods

required to obtain sanction of the post of HSST (Jr) to seven

or more, from the existing requirement of three. The

petitioner says that though the said Government Order did

not have any prospective effect and could not have affected

the petitioner's appointment, the fourth respondent -

Regional Deputy Director of Higher Secondary Education

reappointed the petitioner in the "S.H Higher Secondary

School", which is also under the same management, where

there were sufficient number of students and periods, even

according to the revised norms.

3. The petitioner says that as per the staff fixation

orders dated 06.12.2017, 26.07.2019 and 03.12.2019, there

are sufficient number of students to sanction the post of

HSST(Jr) in the "S.H.Higher Secondary School" and she has

produced Exts.P5, P6 and P7 to show this. The petitioner

then adds that even though the Government had issued a

Circular, namely Ext.P8, mandating that appointments made

prior to the Government Order dated 08.06.2017 can be

approved on condition that they will be appointed in other

schools under the same management, the request for WP(C).No.19648 OF 2020(E)

sanctioning the post afore said was not considered and that

she has been now put to severe prejudice.

4. The petitioner says that in such circumstances, she

had approached this Court by filing W.P.(C)No.34003/2019

and that, through Ext.P9 judgment, the first respondent was

directed to consider the matter at the earliest. The petitioner

alleges that, however, in spite of this, the Government has

now issued Ext.P10 order rejecting the request for

sanctioning of an additional post, which, she contends is

illegal and unlawful. The petitioner, therefore, prays that

Ext.P10 be set aside and the first respondent be directed to

reconsider the proposal for creation of an additional post in

the "S.H.Higher Secondary School", Ernakulam - of which the

seventh respondent is the Principal - within a time frame to

be fixed by this Court.

5. I have heard Sri.Biju Meenattoor, the learned counsel

for the petitioner and Sri.P.M.Manoj, the learned Senior

Government Pleader appearing for the official respondents.

6. The learned Senior Government Pleader submitted

that the only reason why Ext.P10 has been issued is because

the school did not have sufficient student strength to justify WP(C).No.19648 OF 2020(E)

the minimum number of periods, as is required for the

purpose of sanctioning of an additional post of HSST (Jr).

The learned Senior Government Pleader submitted that,

therefore, the petitioner cannot impel any grievance since no

posts can be created in violation of the statutory Rules and

Regulations. The learned Senior Government Pleader

further submits that, in any event, the Government had

created posts in the various schools only in the year 2014-15,

but that the Manager had chosen to appoint the petitioner

prior to it, even though such vacancies could have been filled

up only by employing teachers on daily wages or guest

lecturers. He, therefore, prayed that this writ petition be

dismissed.

7. I have considered the afore submissions and have

also gone through Ext.P10, which is the order impugned in

this case. The reasons stated by the Government in Ext.P10

for rejecting the request for creation of an extra post of HSST

(Jr) in the "S.H.Higher Secondary School", is that it had

revised the criteria for sanctioning of such post, through the

Government order dated 08.06.2017, stipulating that a post

of HSST (Jr) will be sanctioned if there exists seven or more WP(C).No.19648 OF 2020(E)

periods only. The Government has also stated that there are

only 30 periods per week available for the academic year

2017-18 to 2019-20 in "St.Mary's Higher Secondary School",

Kaliyar and that since a senior post in Hindi has already been

created in the school, only a Guest lecturer could have been

engaged by the Manager. They have thus rejected the

request of the management for creation of post of HSST (Jr)

in the said school.

8. However, what is relevant in this case is the

contention of the petitioner that the Government themselves

had issued a Circular, namely Ext.P8, stating that the

appointments made prior to the Government Order dated

08.06.2017 will be approved on the condition that such

teachers will be appointed in the other schools under the

same management, as and where vacancies arise. It is

obvious from Ext.P10 that the impact of this Circular has not

been even touched upon by the Government, but they have

chosen to go as per the stipulations in their order dated

08.06.2017, whereby, the norms for grant of additional posts

were revised mandating that there should be at least seven

periods from the existing three periods for sanctioning of a WP(C).No.19648 OF 2020(E)

post.

9. That apart, as seen above, that the learned Senior

Government Pleader submits that, prior to 2014-15, there

were no posts created by the Government and that any

appointment could have been made by the Manager only on

daily wages or by engaging Guest lecturers. However, this

aspect is not relevant to this case because the petitioner had

been appointed validly in the "St.Mary's Higher Secondary

School", Kaliyar and a proposal was made by the fourth

respondent Regional Deputy Director seeking sanction of an

additional post there, based on the existing norms as were

prevailing there.

10. Obviously therefore, the Government had a duty to

consider these aspects also, before they could have issued

Ext.P10.

11. That said, it is the specific case of the petitioner that

she is the only Hindi teacher now working in the "S.H.Higher

Secondary School" and therefore, that her services are

indispensable. This pertinent issue has also missed the

attention of the Government, thus persuading me to issue the

following directions.

WP(C).No.19648 OF 2020(E)

In the afore circumstances, I allow this writ petition and

set aside Ext.P10: with a consequential direction to the

competent Secretary of the Government to reconsider the

matter, after affording an opportunity of being heard to the

petitioner as also the Manager of the School - either

physically or through video conferencing - adverting to the

impact of Ext.P8 Circular issued by the Government as also

to her contentions recorder above, thus culminating in an

appropriate decision thereon, as expeditiously as is possible,

but not later than two months from the date of receipt of a

copy of this judgment.

Sd/- DEVAN RAMACHANDRAN

Stu JUDGE WP(C).No.19648 OF 2020(E)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JOINING REPORT NO.CS NO.28/13 DATED 08.07.2013

EXHIBIT P2 TRUE COPY OF THE STAFF FIXATION ORDER NO.B1/10327/2014/RDD/HSE/KTM DATED 15.01.2015 FOR THE ACADEMIC YEARS 2002-03 TO 2013 -14

EXHIBIT P3 TRUE COPY OF THE STAFF FIXATION ORDER NO.B4/11923/RDD/HSE/KTM/2015 DATED 08.02.2016 FOR THE ACADEMIC YEARS 2014-15 TO 2015-16

EXHIBIT P4 TRUE COPY OF THE PROPOSAL NO.B4/1348/2016/HSE DATED 14.03.2016

EXHIBIT P5 TRUE COPY OF THE STAFF FIXATION ORDER NO.A1/11924/RDD/HSE/EKM/2017 DATED 06.12.2017 FOR THE ACADEMIC YEARS 2014-15 TO 2017-18

EXHIBIT P6 TRUE COPY OF THE STAFF FIXATION ORDER NO.A2/5422/RDD/HSE/EKM/2019 DATED 26.07.2019 FOR THE ACADEMIC YEAR 2018-19

EXHIBIT P7 TRUE COPY OF THE STAFF FIXATION ORDER DATED 03.12.2019 FOR THE ACADEMIC YEAR 2019-20

EXHIBIT P8 TRUE COPY OF THE CIRCULAR NO.1762236/T1/2017/PO.V.VA DATED 01.06.2018

EXHIBIT P9 TRUE COPY OF THE JUDGMENT OF HON'BLE HIGH COURT OF KERALA IN WPC NO.34003/2019 DATED 14.01.2020

EXHIBIT P10 TRUE COPY OF G.O(RT) NO.2240/2020/GEDN OF THE 1ST RESPONDENT DATED 02.07.2020