Sindhu M.K. vs State Of Kerala
2021 Latest Caselaw 4595 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

          THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

   TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942

                   WP(C).No.461 OF 2021(G)

PETITIONER :-

            SINDHU M.K., AGED 47 YEARS, W/O.SURESH M.K.,
            HIGH SCHOOL ASSISTANT (NATURAL SCIENCE),
            R.P.M. HIGHER SECONDARY SCHOOL, PANANGATTIRI,
            KOLLENGODE - 678 506, RESIDING AT MDATHAT,
            MOOCHIKKAL, PANANGATTIRI, PALAKKAD - 678 506.

            BY ADVS.
            SRI.U.BALAGANGADHARAN
            SMT.S.ANJUSHA

RESPONDENTS :-

      1     STATE OF KERALA
            REPRESENTED BY ITS SECRETARY,
            GENERAL EDUCATION DEPARTMENT,
            GOVERNMENT SECRETARIAT (ANNEX),
            THIRUVANANTHAPURAM - 695 001.

      2     DIRECTOR OF GENERAL EDUCATION
            THIRUVANANTHAPURAM - 695 014.

      3     DEPUTY DIRECTOR OF EDUCATION
            PALAKKAD - 678 001.

      4     DISTRICT EDUCATIONAL OFFICER
            PALAKKAD - 678 001.

      5     THE MANAGER
            R.P.M. HIGHER SECONDARY SCHOOL, PANANGATTIRI,
            KOLLENGODE - 678 506, RESIDING AT MDATHAT,
            MOOCHIKKAL, PANANGATTIRI, PALAKKAD - 678 506.

            SRI.T.RAJASEKHARAN NAIR, SR.GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 09.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C).No.461 OF 2021(G)

                                      -: 2 :-


                                 JUDGMENT

Dated this the 9th day of February, 2021

This writ petition is filed seeking the following reliefs :-

"1. Call for the records leading to Exhibit P5 and set aside the same by issuing writ in the nature of certiorari.

2. Writ in the nature of mandamus commanding 4 th respondent to approve the appointment of the petitioner from 1.6.2010 and grant all consequential benefits including back wages.

3. Declare that the appointment of the petitioner is liable to be approved in the post of H.S.A. (Natural Science) with effect from 1.6.2010 with all consequential benefits including arrears of pay and allowances."

2. Heard the learned counsel for the petitioner and the

learned Government Pleader.

3. It is submitted by the learned counsel for the petitioner

that the petitioner was appointed as HSA (Natural Science) in a

newly sanctioned post on 1.6.2010. It is submitted that the

petitioner's appointment was approved only with effect from

1.6.2011. Though the matter was taken up before the Government

and was directed to be considered, Ext.P5 order has been passed

on 11.4.2019 stating that the petitioner's appointment cannot be

approved. The reason stated in Ext.P5 for not approving the

petitioner's appointment is as follows :- WP(C).No.461 OF 2021(G)

"The matter was examined in detail. It is found even though the District Educational Officer has reported that the Manager has not executed the bond as per G.O(P) 10/10/G.Edn., at the time of hearing, he admitted that the Manager has appointed a protected teacher. Moreover, there was a sanctioned post to accommodate Smt.M.K.Sindhu during 2010-11.

This being a newly opened School, attracts the decisions in Nadeera's Case. But since the date of appointment is after 19-11-2009, the date from which it was stipulated that any appointment in such schools can only be approved w.e.f. the date on which a protected teacher is appointed, the petitioners could not be approved w.e.f. the actual date of appointment; Judgment in Nadeera's Case has applicability only for appointments made up to 19-11-2009.

In the circumstances the request in the Exhibit P5 revision petition is rejected. The direction in the aforesaid judgment is complied with accordingly."

4. It is submitted by the learned counsel for the petitioner

that the Manager had, as a matter of fact, appointed a protected

teacher in the school in March, 2010 and the said teacher was

available in the school at the time when the petitioner was

appointed on 1.6.2010. It is stated that thereafter, another

protected teacher had been appointed in the academic year

2010-11 as is evident from Ext.P8. It is stated that even thereafter

another protected teacher had been appointed as HSA (Physical

Science) in the school as is evident from Ext.P9. It is, therefore, WP(C).No.461 OF 2021(G)

contended that the findings in Ext.P5 are completely erroneous and

that the 1st respondent ought to have approved the appointment of

the petitioner with effect from 1.6.2010 taking note of the fact that

a protected teacher had been appointed in the school as on the

date of the petitioner's appointment on 1.6.2010. It is submitted

that the ground that there is a challenge against G.O(P)

10/10/G.Edn. dated 12.1.2010 cannot be a reason for refusing to

approve the appointment of the petitioner from 1.6.2010, in view of

the fact that protected teachers had been appointed in the school.

It is further contended that even otherwise, deeming that the

Manager had executed a bond, the petitioner's appointment is

liable to be approved from 1.6.2010.

5. The learned Government Pleader submits that there

were two objections for approving the petitioner's appointment

with effect from 1.6.2010. It is stated that the school being in the

category of newly opened school, one protected teacher was

compulsorily to be appointed before the petitioner's appointment

could be approved with effect from 1.6.2010. It is further

submitted that since the appointment of the petitioner was against

an additional division vacancy, the appointment can be approved

only if the first vacancy is filled up by appointing a protected WP(C).No.461 OF 2021(G)

teacher and the petitioner can be appointed only against the

second vacancy.

6. I have considered the contentions advanced. The

petitioner was admittedly appointed as HSA (Natural Science) with

effect from 1.6.2010. It is evident from the documents produced by

the petitioner that as on the date when the petitioner was

appointed there was already a protected teacher working in the

school as is evident from Ext.P7. If that be so, the reason stated in

Ext.P5 for refusing to approve the appointment of the petitioner

from 1.6.2010 is completely unsustainable. More over, it appears

from Ext.P8 that there is a further appointment of a protected

teacher in the academic year 2010-11 itself. Further a protected

teacher has been appointed in the school by Ext.P9 also.

In the above view of the matter, I am of the opinion that

since there was a protected teacher in service as on the date when

the petitioner was appointed and since two appointments of

protected teachers had thereafter also been made in the school,

the contention raised that the petitioner's appointment cannot be

approved with effect from 1.6.2010 is completely unsustainable.

Ext.P5 order is, therefore, set aside. There will be a direction to

the respondents to approve the appointment of the petitioner as WP(C).No.461 OF 2021(G)

HSA (Social Science) with effect from 1.6.2010 and to grant all

attendant benefits to her. Necessary shall be done by the

respondents without delay and the benefits shall be disbursed

within a period of three months from the date of receipt of a copy

of this judgment.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/11.2.2021 WP(C).No.461 OF 2021(G)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY THE STAFF FIXATION ORDER DATED 23.09.2010 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P2 A TRUE COPY OF THE MINUTES NOTED IN INSPECTION BOOK OF 5TH RESPONDENT SCHOOL DATED 30.06.2011.

EXHIBIT P3 A TRUE COPY OF APPOINTMENT ORDER DATED 01.06.2010 ISSUED BY THE 5TH RESPONDENT WITH ENDORSEMENT OF 4TH RESPONDENT DATED 09.04.2012.

EXHIBIT P4 A TRUE COPY OF JUDGMENT DATED 20.01.2017 IN W.P.

(C) 2059/2017 OD THIS HON'BLE COURT.

EXHIBIT P5 A TRUE COPY OF GOVT. ORDER (RT) NO.1373/2019/GEDN DATED 11.04.2019

EXHIBIT P6 A TRUE COPY OF LETTER OF FIRST RESPONDENT DATED 17.05.2019.

EXHIBIT P7 A TRUE COPY OF RELIEVING ORDER DATED 18.03.2010 ISSUED BY THE H.M.ANANGANADI H.S.PANAMANNA.

EXHIBIT P8 A TRUE COPY OF RELIEVING ORDER DATED 22.02.2011 ISSUED BY H.M., HSS, KERALASSERY.

EXHIBIT P9 A TRUE COPY OF RELIEVING ORDER DATED 08.09.2016 ISSUED BY THE H.M., KCPH SCHOOL, KAVASSERY.

//True Copy//

P.A. To Judge