Kerala High Court
Elizabeth Varghese vs The State Of Kerala on 12 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942
WP(C).No.37235 OF 2018(D)
PETITIONER:
ELIZABETH VARGHESE
AGED 42 YEARS
W/O. SAJI VARGHESE, KANNOTH HOUSE, MANJADI,
THIRUVALLA - 691 105,
PATHANAMTHITTA (LOWER PRIMARY SCHOOL ASSISTANT,
MAR THOMA LOWER PRIMARY SCHOOL, CHIRAYIRAMPU)
BY ADV. SRI.S.SUBHASH CHAND
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM - 695 001
2 THE DIRECTOR OF PUBLIC INSTRUCTION,
OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION,
THIRUVANANTHAPURAM, PIN-695001.
3 THE DISTRICT EDUCATIONAL OFFICER,
OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
THIRUVALLA, PIN-689101.
4 THE ASSISTANT EDUCATIONAL OFFICER,
OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER,
PULLAD, PIN-689548.
5 THE CORPORATE MANAGER,
MAR THOMA AND EVANGELICAL ASSOCIATION (MT AND EA)
SCHOOLS CORPORATE MANAGEMENT,
SCS CAMPUS, THIRUVALLA, PIN-689101.
R1-4 BY GOVERNMENT PLEADER
R5 BY ADV. SRI.V.A.MUHAMMED
R5 BY ADV. SRI.V.RAJASEKHARAN NAIR
SR.GP - SRI. P.M.MANOJ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.37235 OF 2018
2
JUDGMENT
The petitioner has approached this Court
for the second time, after having obtained
Ext.P20 judgment in the first round of
litigation.
2. In Ext.P20, this Court had found
that the petitioner's initial appointment in
'Mar Thoma Lower Primary School',
Chirayirampu, was before the said school
became an "uneconomic one", but that the
Director of General Education (DGE) granted
approval to her as a Lower Primary School
Assistant from 12.09.2011 to 31.03.2012 only
on daily wages, because she was appointed
with effect from the former date.
3. Noticing the afore specific
circumstances and facts involved in the
case, I had made it clear in Ext.P20 that,
since the vacancy arose on 18.04.2011, much
before the School had been rendered an
"uneconomic one" and since it arose within
WP(C).No.37235 OF 2018
the Academic Year 2010-11, the Government
must reconsider the matter. The specific
intent of this Court, as is clear from
Ext.P20, was that, even though the
petitioner was appointed only on 12.09.2011,
since the vacancy arose on 18.04.2011, her
approval cannot be held up saying that the
School is an "uneconomic one".
4. I had also noticed in the judgment
that an identically placed Teacher, by name
Smt.Jyotsana, had been granted approval,
which had been admitted by the Government by
saying that it was done solely on account of
the directions of this Court in another writ
petition, namely W.P.(C).No.480/2012. I had,
however, found this submission of the
Government to be incorrect, since in the
judgment, this Court had only directed them
to consider and pass orders on the revision
petition filed by Smt.Jyotsana, which had
then led to the order approving her; and
WP(C).No.37235 OF 2018
hence that it could never have been said
that her approval was based on specific
directions from this Court.
5. However, in the order resultantly
issued, Government has virtually stated more
or less on identical terms as the order
which was quashed in Ext.P20 judgment; and
while doing so, they have relied on Ext.P22
order, dated 09.11.2016.
6. Obviously, therefore, the
directions in Ext.P20 judgment cannot be
seen to have been properly complied with;
and in any event of the matter, as is
evident from Ext.R1(b) circular issued by
the Government on 10.05.2012 - produced
along with the counter affidavit filed by
the 1st respondent - the Director of Public
Instructions [now re-designated as the
Director of General Education (DGE)] is
empowered to conduct a review of similar
appointments and approve on a regular basis,
WP(C).No.37235 OF 2018
if the student strength is within the
minimum required in the Schools. It is also
clarified therein that in case any Teacher
has been appointed in excess of this, they
shall be treated as approved on daily wages
and shifted to the list of retrenched
Teachers, so that after their training, they
can be deployed from the Teachers Bank to
Schools and regular approval given.
7. Distressingly, none of these
aspects have been considered by the
Government while Ext.P21 order has been
issued; and I, therefore, cannot grant
support to the same.
8. That apart, as has been already
said above, ex facie, I cannot find favour
with Ext.P21, because it has been issued in
complete disregard to the directions in
Ext.P20 judgment.
In the afore circumstances, I order this
writ petition and set aside Ext.P21; with a
WP(C).No.37235 OF 2018
consequential direction to the Government to
reconsider the claim of the petitioner,
implicitly adverting to the observations of
this Court in Ext.P20 judgment, as also the
contents of Ext.R1(b) circular dated
10.05.2012.
The afore exercise shall be completed by
the Government as expeditiously as is
possible, but not later than two months from
the date of receipt of a copy of this
judgment.
I make it clear that even though I was
initially persuaded to grant affirmative
orders in favour of the petitioner on
account of the manner in which Ext.P21 has
now been issued, I have chosen not to do so,
since I still have hope that the Government
will advert to all the relevant inputs and
issue appropriate orders.
It is also needless to say that if,
through the afore exercise, the petitioner's
WP(C).No.37235 OF 2018
claim for approval is granted, then all
consequential benefits shall be disbursed to
her without any avoidable delay, but not
later than two months thereafter.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
MC/18.2.2021
WP(C).No.37235 OF 2018
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED
EXHIBIT P2 TRUE COPY OF THE ORDER OF APPOINTMENT DATED
12/9/2011
EXHIBIT P3 TRUE COPY OF THE GOVERNMENT ORDER BEARING
GO (MS) NO. 258/90/G.EDN. DATED 15/12/1990.
EXHIBIT P4 TRUE COPY OF THE DECLARATION DATED
12/9/2011 SUBMITTED IN TERMS OF EXT. P3
GOVERNMENT ORDER.
EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER BEARING
GO(MS) NO.259/06/G.EDN. DATED 12/10/2006
ALONG WITH ENGLISH TRANSLATION
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 6/9/2012
EXHIBIT P7 TRUE COPY OF THE GOVERNMENT ORDER BEARING
GO(P) NO.199/2011/G.EDN DATED 1/10/2011.
EXHIBIT P8 TRUE COPY OF THE GOVERNMENT ORDER DATED
EXHIBIT P9 TRUE COPY OF THE CIRCULAR NO.
58604/J2/12/G.EDN. DATED 6/11/2012 ISSUED
EXHIBIT P10 TRUE COPY OF THE REVISION DATED 8/11/2012
SUBMITTED BY RESPONDENT NO. 5 BEFORE
RESPONDENT NO. 2.
EXHIBIT P11 TRUE COPY OF THE STATUTORY REVISION
PETITION SUBMITTED BY THE PETITIONER BEFORE
RESPONDENT NO. 2 DATED 15/12/2012
(EXCLUDING ANNEXURES).
EXHIBIT P12 TRUE COPY OF THE JUDGMENT PASSED BY THE
HONOURABLE COURT IN WP(C) NO. 2423/2013 (C)
DATED 28/1/2013.
EXHIBIT P13 TRUE COPY OF THE ORDER NO.
F3/12489/13/DPI/K.DIS. DATED 25/4/2013
WP(C).No.37235 OF 2018
EXHIBIT P14 TRUE COPY OF THE ORDER GO(RT)
NO.1706/12/G.EDN. DATED 9/4/2012 ISSUED BY
EXHIBIT P15 TRUE COPY OF THE STATUTORY REVISION
PETITION DATED 25/8/2013 SUBMITTED BY THE
PETITIONER (EXCLUDING THE ANNEXURES) BEFORE
RESPONDENT NO.1)
EXHIBIT P16 TRUE COPY OF THE SAID JUDGMENT DATED
3/6/2014 PASSED BY THIS HON'BLE COURT IN
WP(C) NO.14007 OF 2014
EXHIBIT P17 TRUE COPY OF THE HEARING NOTE DATED
20/9/2014.
EXHIBIT P18 TRUE COPY OF THE GOVERNMENT ORDER BEARING
GO(RT) NO.4386/2014/G.EDN. DATED
21/10/2014.
EXHIBIT P19 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN WP(C) NO.480/2012.
EXHIBIT P20 TRUE COPY OF THE JUDGMENT DATED 19/7/2017
PASSED BY THIS HON'BLE COURT IN WP(C)
NO.31643 OF 2014 (E).
EXHIBIT P21 TRUE COPY OF THE ORDER DATED 7/9/2018
PASSED BY RESPONDENT NO. 1.
EXHIBIT P22 TRUE COPY OF THE GOVERNMENT CIRCULAR
BEARING NO. 951951/J2/16/G.EDN. DATED
9/11/2016.
EXHIBIT P23 TRUE COPY OF THE APPOINTMENT ORDER DATED
12/09/2011 ISSUED BY RESPONDENT NO.5.
EXHIBIT P24 TRUE COPY OF THE GOVERNMENT ORDER BEARING
G.O.(RT) NO.762/2014/G.EDN. DATED
14/02/2011.
EXHIBIT P25 TRUE COPY OF THE APPOINTMENT ORDER DATED
12/09/2011 ISSUED BY RESPONDENT NO.5.
EXHIBIT P26 TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT)
NO.3112/2016/G.EDN. DATED 27/09/2016.
EXHIBIT P27 TRUE COPY OF THE JUDGMENT DATED 18/10/2019
PASSED BY THIS HON'BLE COURT IN WRIT
PETITION BEARING WPC.NO.36765/2016(U).
WP(C).No.37235 OF 2018
EXHIBIT P28 TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT)
NO.1700/2020/G.EDN. DATED 26/05/2020.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(a) TRUE COPY OF CIRCULAR NO.4545/J2/2007/G.EDN
DATED 18.05.2007
EXHIBIT R1(B) TRUE COPY OF CIRCULAR
NO.13402/J2/2012/G.EDN DATED 10.05.2012
