Sujisha P vs State Of Kerala
2021 Latest Caselaw 3898 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

              THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

   WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942

                      WP(C).No.25622 OF 2020(C)


PETITIONER:
               SUJISHA P.
               AGED 29 YEARS
               D/O. SURENDRAN .P., RESIDING AT PADINHARAYIL,
               PATHIPPALAM,MOKERI P.O., KANNUR DISTRICT

               BY ADV. SRI.R.K.MURALEEDHARAN

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

      2        THE DISTRICT EUDCATIONAL OFFICER,
               THALASSERY, KANNUR-670 101

      3        THE ASSISTANT EDUCATIONAL OFFICER,
               THALASSERY NORTH, KANNUR-670 101

      4        THE MANAGER,
               CHERIKKAL JUNIOR BASIC SCHOOL,
               PINARAYI, KANNUR-670 104

      5        SUBINA.P.
               KUNNUMMAL HOUSE, P.O.
               VADAKKUMPAD-670 105, KANNUR DISTRICT

               GOVERNMENT PLEADER SMT.NISHA BOSE

               R4 BY ADV. SRI.M.SASINDRAN
               R5 BY ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15-01-2021,ALONG WITH WP(C).1143/2021(P), THE COURT ON 3-02-2021
DELIVERED THE FOLLOWING:
                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

              THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

  WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 25TH POUSHA, 1942

                       WP(C).No.1143 OF 2021(P)

PETITIONER:
               THE MANAGER
               CHERIKKAL JUNIOR BASIC SCHOOL,PINARAYI, KANNUR
               DISTRICT, REP BY THE POWER OF ATTORNEY HOLDER,
               SAFEERA A, AGED 45 YEARS, D/O P.IBRAHIM, RESIDING
               AT RASHIKA, NALUTHARA P.O.MAHE, NALUTHARA,
               PUDUCHERRY-673 310.

               BY ADVS.
               SRI.M.SASINDRAN
               SRI.V.VENUGOPAL

RESPONDENTS:

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

      2        THE DISTRICT EDUCATIONAL OFFICER,
               THALASSERY, KANNUR-670 101.

      3        THE ASSISTANT EDUCATIONAL OFFICER,
               THALASSERY NORTH, KANNUR-670 101.

      4        SUBINA P,
               KUNNUMMAL HOUSE, P.O.VADAKKUMPAD-670 105, KANNUR
               DISTRICT


THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-
01-2021, ALONG WITH WP(C).25622/2020(C), THE COURT ON 3-02-2021
DELIVERED THE FOLLOWING:
 W.P.(C).Nos.25622/2020 & 1143/2021
                                      3

                         ANU SIVARAMAN, J.
                    = = = = = = = = = = = = = = =
              W.P.(C).Nos.25622 of 2020 and 1143 of 2021
                   = = = = = = = = = = = = = = = =
                Dated this the 3rd day of February, 2021

                                 JUDGMENT

1. W.P.(C).No.25622 of 2020 is filed challenging Exhibit P10 and

seeking directions to the 3rd respondent to approve the

appointment of the petitioner de hors Exhibit P10. A

declaration is also sought for that the 5 th respondent is not

entitled to be appointed as LPST in the vacancy in which the

petitioner has been appointed, since she does not have the

required qualification.

2. W.P.(C).No.1143 of 2021 is filed by the manager of the school

challenging the very same Government order and seeking

substantially the same prayers.

3. Heard learned counsel for the petitioners, the learned

Government Pleader and the learned counsel appearing for

the party respondent. The parties and documents are being

referred to in this judgment as in W.P.(C).No.25622 of 2020 for

convenience, unless otherwise specifically mentioned. W.P.(C).Nos.25622/2020 & 1143/2021

4. The petitioner in W.P.(C).No.25622/2020 was appointed as LPST

on 28.6.2019. Ext P1 is the appointment order. The

appointment order shows that it was in the retirement vacancy

of Smt.P.K.Vasantha that the petitioner was appointed. The said

appointment was not approved. It is stated that the school was

an uneconomic school till 31.3.2019. In the year 2013, the 5 th

respondent had been appointed as LPST in the school. The

appointment was approved only on daily wages. It is stated that

the 5th respondent was unqualified, as she has not passed the K-

TET examination. Several communications were issued to her

requiring her to produce her K-TET certificate. It is stated that

Exhibit P5 letter had been issued by the manager informing her

that she was not eligible to continue in the post and she was

removed from service of daily wage teacher. It is submitted

that it was on the school becoming an economic school that

regular appointments could have been made by the manager

and therefore, the petitioner was regularly appointed by Exhibit

P1. Relying on Exhibits P6, it is contended that the educational

authorities had also permitted the manager to make fresh

appointments to sanctioned posts available after the school had W.P.(C).Nos.25622/2020 & 1143/2021

become economic. The manager had submitted Exhibit P7

request before the DEO for terminating the daily wage

appointment of the 5th respondent and for effecting fresh

appointment. By Exhibit P8 proceedings dated 11.12.2019, the

DEO found that it is only when appointments are made on a

regular basis on a scale of pay and such appointments are

approved that the benefits under the KER would be available to

the teacher. The manager was, therefore, permitted to make

appointments to vacancies in the school, which has become

economic from 1.6. 2019, by appointing qualified persons. It is

submitted that the 5th respondent thereafter acquired the

qualification only with effect from 31.5.2020. Thereafter,

Exhibit P10 order was passed by the Government finding that

the 5th respondent had been appointed on 3.6.2013 and the

appointment was limited as daily wages only because the

school was an uneconomic school. It was found that there was

no necessity for separate appointment orders in each year and

since the 5th respondent's appointment was otherwise in order

and since she has acquired the qualification of K-TET in May

2020, the said appointment is liable to be approved. W.P.(C).Nos.25622/2020 & 1143/2021

5. The learned counsel for the petitioners in these cases would

contend that the order of the Government is illegal and

perverse and is liable to be set aside. It is contended that

there was no competent revision petition preferred against the

orders of the DEO directing fresh appointment to the post with

effect from 1.6.2019. It is further contended that the

respondents had been waiting for the 5 th respondent to

acquire the qualification and that the orders now passed

amount to approval of appointment of a teacher, who was

completely unqualified. It is further contended that the 5 th

respondent's letter referred to in the impugned order is only a

letter producing her K-TET qualification and that since she

was not qualified as on the date of occurrence of vacancy, the

appointment was not liable to be approved.

6. The learned counsel for the petitioner in W.P.(C).No.25622 of

2020 relies on a decision of this Court in W.P.(C).No.

28679/2012 rendered on 8.12.2017 and contends that there

can be no exception from the K-TET qualification, which is a

mandatory qualification.

W.P.(C).Nos.25622/2020 & 1143/2021

7. A counter affidavit has been placed on record by the 5 th

respondent in W.P.(C).No.25622 of 2020. It is contended that

the petitioner in the writ petition had been appointed against a

non-existent vacancy, since the retirement vacancy of

Smt.P.K.Vasantha had been filled up by appointing

Smt.Bindu.C on 3.6.2013 itself. It is submitted that the

further retirement vacancy of Smt.P.Nalini was filled up by

appointing the 5th respondent. It is submitted that the 5 th

respondent, who was appointed with effect from 3.6.2013 was

entitled to the orders of exception granted by the Government

for acquisition of the K-TET qualification and that since the

qualification had been acquired in May 2020, she was fully

eligible for approval with effect from 3.6.2013. It is submitted

that the attempt of the Manager is only to fill up the very same

vacancy in which the 5th respondent was appointed w.e.f.

3.6.2013. The said appointment was approved on daily wage

basis only because the school was uneconomic. It is submitted

that in view of the fact that the appointment was to a

substantive vacancy, it is liable to be approved from the date W.P.(C).Nos.25622/2020 & 1143/2021

of appointment and the underhand attempts of the writ

petitioner and the manager are completely misconceived and

writ petitions are to be dismissed with exemplary cost.

8. It is submitted that Exhibit P13 judgment produced by the

petitioner does not consider the question of exemption from K-

TET qualification at all and that the extension has been

extended to the teachers appointed till 31-3-2019. The

petitioner, being a teacher appointed on 3.6.2013, was fully

eligible for the exemption and would be entitled to approval

even if she had not acquired the qualification in May 2020.

9. The learned Government Pleader also supports the decision of

the Government. The mere fact that a revision petition has

not been referred in the impugned order of the Government

would be no ground to invalidate an order which is otherwise

perfectly legal and valid. It is contended that all the factual

aspects of the matter had been taken into account and since

the 5th respondent was appointed against a regular retirement

vacancy on 3.6.2013, the attempt of the manager to terminate W.P.(C).Nos.25622/2020 & 1143/2021

the said appointment on the ground that it is only on daily

wages and to make a fresh appointment in the same vacancy is

completely untenable in law.

10.The 4th respondent has filed a counter affidavit producing a

copy of the proceedings dated 7.1.2021 by which the

appointment order is sought to be corrected by stating that

the appointment is against the retirement vacancy of

Smt.P.Nalini, LPST.

11.I have considered the contentions advanced. It is admitted

that 5th respondent was appointed as LPST on 3.6.2013 in the

retirement vacancy of Smt.P.Nalini, LPST. The appointment

was approved on daily wages, in view of the fact that school

was an uneconomic school. That does not mean that the

appointment of the 5th respondent was not a regular

appointment. When the school became economic, the teacher

who had been appointed against the regular vacancy would

have the right to regularisation on a scale of pay. However, by

Exhibits P6 and P9, it appears that the DEO has taken a stand W.P.(C).Nos.25622/2020 & 1143/2021

that since the approval was granted only on daily wages the

manager could have a right to fill up the post with effect from

1.6.2019 by making further appointments. Rule 92 of Chapter

XIVA KER provides for a revision suo motu or otherwise by the

Government. Even if it is contended that there was no valid

revision petition preferred by the petitioner before the

Government, The Government in exercise of its power under

Rule 92 cannot be faulted in having exercised the power to

correct an order which was per se illegal.

12.The Government Orders with regard to exemption from

acquisition of qualification of K-TET specifically refers to

appointments made before 31.3.2019. The 5 th respondent,

being a teacher who was appointed on 3.6.2013, would

undoubtedly, be eligible for the exemption, provided in the

Government Orders. In view of the fact that the 5 th respondent

had acquired the qualification of K-TET in May 2020 and had

admittedly produced evidence of the same before the

Government, there is absolutely no illegality vitiating the order

of the Government.

W.P.(C).Nos.25622/2020 & 1143/2021

The writ petitions, therefore, fail and the same are,

accordingly, dismissed.

sd/-

Anu Sivaraman, Judge

sj/ APPENDIX OF WP(C) 25622/2020 PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER DATED 28.06.2019 ISSUED BY THE 4TH RESPONDENT MANAGER

EXHIBIT P2 A TRUE COPY OF THE APPROVAL OF APPOINTMENT OF THE 5TH RESPONDENT AS L.P.S.A ON DAILY WAGE BASIS

EXHIBIT P3 TRUE COPY OF THE COMMUNICATION ISSUED BY THE HEADMISTRESS DATED 31.05.2019

EXHIBIT P4 TRUE COPY OF THE COMMUNICATION ISSUED BY THE MANAGER DATED 04.06.2019

EXHIBIT P5 A TRUE COPY OF THE LETTER ISSUED BY THE MANAGER TO THE 5TH RESPONDENT

EXHIBIT P6 TRUE COPY OF THE COMMUNICATION TO THE 3RD RESPONDENT TO THE 4TH RESPONDENT DATED 22.06.2019

EXHIBIT P7 A TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT DATED 09.07.2019

EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 11.12.2019 OF THE 2ND RESPONDENT TO THE 3RD RESPONDENT

EXHIBIT P9 TRUE COPY OF THE COMMUNICATION DATED 01.01.2020 OF THE 3RD RESPONDENT

EXHIBIT P10 A TRUE COPY OF THE ORDER NO.GO(RTO) NO.3065/2020/G.EDN DATED 12.11.2020

EXHIBIT P11 A TRUE COPY OF THE GO(MS) NO.194/2019/G.EDN DATED 15.11.2019

EXHIBIT P12 A TRUE COPY OF THE CIRCULAR NO.631703/J2/16/G.EDN DATED 1/8/2016

EXHIBIT P13 A TRUE COPY OF THE JUDGMENT IN WPC NO.28679/2012 DATED 8/12/2017 RESPONDENTS EXHIBITS

EXT.R5(A) TRUE COPY OF THE APPOINTMENT ORDER DATED 3.6.2013 ISSUED BY THE FORMER MANAGER OF THE SCHOOL WITH DECLARATION TO SMT.BINDU C

EXT.R5(B) TRUE COPY OF THE STAFF STATEMENT AS ON 1.6.2012-13 TO 2019-20 ISSUED BY THE 3RD RESPONDENT.

EXT.R5(C) TRUE COPY OF THE REPLY DATED 28.6.2019 SUBMITTED BY THE 5TH RESPONDENT.

EXT.R5(D) TRUE COPY OF THE REPLY DATED 8.8.2019 ISSUED BY BY THE 3RD RESPONDENT.

EXT.R5(E) TRUE COPY OF THE ORDER DATED 16.1.2020 ISSUED BY THE 1ST RESPONDENT EXT.R5(F) TRUE COPY OF THE TRAINED TEACHERS' CERTIFICATE ISSUED BY THE 1ST RESPONDENT. EXT.R5(G) TRUE COPY OF THE K TET ELIGIBILITY SUBMITTED BY THE 1ST RESPONDENT.

EXT.R5(H) TRUE COPY OF THE REQUEST DATED 20.6.2019 SUBMITTED BY THE 5TH RESPONDENT TO THE 2ND RESPONDENT.

EXT.R5(I) TRUE COPY OF THE LETTER PREPARED BY THE PTA CERTIFYING THAT THE PETITIONER IS NOT A TEACHER OF THE SCHOOL.

EXT.R5(J) TRUE COPY OF THE STAFF FIXATION ORDER DATED 19/7/2019 ISSUED BY THE 3RD RESPONDENT. EXT.R4(C) TRUE COPY OF THE PROCEEDINGS NO.1/2020-2021 DATED 7.1.2021 OF THE 4TH RESPONDENT.

APPENDIX OF WP(C) 1143/2021 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE PETITIONER APPOINTING THE 4TH RESPONDENT ON DAILY WAGE BASIS

EXHIBIT P2 TRUE COPY OF THE LETTER ISSUED BY THE HEADMISTRESS TO THE PETITIONER

EXHIBIT P3 TRUE COPY OF THE LETTER DATED 4.6.2019 TO THE 4TH RESPONDENT

EXHIBIT P4 TRUE COPY OF THE LETTER DATED NIL TO THE 4TH RESPONDENT

EXHIBIT P5 TRUE COPY OF THE COMMUNICATION NO B/2143/19 DATED 22.6.2019 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER.

EXHIBIT P6 TRUE COPY OF THE APPOINTMENT ORDER DATED 28.6.2019 ISSUED TO SUJISHA P.

EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS NO 1/2020-2021 OF THE PETITIONER DATED 7.1.2021 IN RECTIFYING THE EXT P6 APPOINTMENT ORDER

EXHIBIT P8 TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 9.7.2019

EXHIBIT P9 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 11.12.2019 VIDE LETTER NO B5/4107/19

EXHIBIT P10 TRUE COPY OF THE COMMUNICATION NO B/X/N.DIS DATED 1.1.2020 OF THE 3RD RESPONDENT

EXHIBIT P11 TRUE COPY OF THE GO(RT) NO 3065/2020/G.EDN DATED 12.11.2020 OF THE 1ST RESPONDENT

TRUE COPY

PS TO JUDGE