Anju.P. vs The State Of Kerala
2021 Latest Caselaw 5344 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

          THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

   MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942

                   WP(C).No.894 OF 2021(J)

PETITIONERS :-

      1     ANJU.P., AGED 35 YEARS
            W/O.DHANIL P., UPPER PRIMARY SCHOOL ASSISTANT,
            TRK HIGH SCHOOL, VANIYAMKULAM,
            PALAKKAD DISTRICT - 679 522.

      2     JAYASREE.M., AGED 34 YEARS
            W/O.RAJESH BALAKRISHNAN,
            UPPER PRIMARY SCHOOL ASSISTANT, TRK HIGH SCHOOL,
            VANIYAMKULAM, PALAKKAD DISTRICT - 679 522.

            BY ADVS.
            SRI.V.A.MUHAMMED
            SRI.M.SAJJAD

RESPONDENTS :-

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

      2     THE DIRECTOR OF GENERAL EDUCATION,
            JAGATHY, THIRUVANANTHAPURAM - 695 014.

      3     THE DEPUTY DIRECTOR OF EDUCATION,
            PALAKKAD - 678 001.

      4     THE DISTRICT EDUCATIONAL OFFICER,
            OTTAPPALAM, PALAKKAD - 679 101.

      5     THE MANAGER,
            TRK HIGH SCHOOL, VANIYAMKULAM,
            PALAKKAD DISTRICT - 679 522.

      6     THE HEADMASTER,
            TRK HIGH SCHOOL, VANIYAMKULAM,
            PALAKKAD DISTRICT - 679 522.

      7     SRI.KRISHNAKUMAR.K.,
            UPPER PRIMARY SCHOOL ASSISTANT, TRK HIGH SCHOOL,
            VANIYAMKULAM, PALAKKAD DISTRICT - 679 522.
 WP(C).No.894 OF 2021(J)

                              -: 2 :-


       8      SRI.SABITHA.A.
              UPPER PRIMARY SCHOOL ASSISTANT, TRK HIGH SCHOOL,
              VANIYAMKULAM, PALAKKAD DISTRICT - 679 522.

              BY SRI.T.RAJASEKHARAN NAIR,   SR GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.894 OF 2021(J)

                                        -: 3 :-


                                   JUDGMENT

Dated this the 15th day of February, 2021

This writ petition is filed seeking the following reliefs :-

"(i) call for the records relating to Exhibit P5 and set aside the original of the same to the extent it refused to sanction 20 divisions in the UP section during the academic year 2015-16 by the issue of writ of certiorari or other appropriate writ or order.

(ii) issue a writ of mandamus or other appropriate writ, order or direction commanding the 4th Respondent to sanction 20 divisions in the UP Section of the School and corresponding posts for the academic year 2015-16.

(iii) call for the records relating to Exhibits P6, P8, P9 and P10 and set aside the originals of the same by the issue of writ of certiorari or other appropriate writ or order.

(iv) issue a writ of mandamus or other appropriate writ, order or direction commanding the 1st Respondent to take a decision on Exhibit P19 adverting to Exhibit P12 to P17 with notice to the petitioners, within a time limit."

2. Heard the learned counsel for the petitioners and the

learned Government Pleader.

3. It is submitted that the petitioners were appointed as

Upper Primary School Teachers in the 5 th respondent's school in

promotion vacancies. Ext.P1 order dated 1.6.2016 and Ext.P1(a)

order dated 15.7.2016 are the appointment orders of the

petitioners. It is submitted that the 7th and 8th respondents were

also appointed against two other promotion vacancies. It is stated WP(C).No.894 OF 2021(J)

that the appointment of the petitioners were not approved on the

ground that admissible divisions during the year 2015-16 were not

sanctioned. It is stated that the Director General of Education,

instead of rectifying the defect in the staff fixation order for the

year 2015-16, directed the regularisation of the appointment of the

7th and 8th respondents against the vacancies to which the

petitioners were appointed. It is stated that a revision petition had

been preferred before the Government, which has now been

disposed of by Ext.P10 directing the accommodation of

respondents 7 and 8 against the posts to which the petitioners

were appointed, without hearing the petitioners. It is submitted by

the learned counsel for the petitioners that Exts.P12 to P17

Government Orders have been issued in respect of other schools in

identical situation and that had the petitioners been put on notice,

the factual aspects of the matter could have been brought before

the Government and all appointments could have been approved.

4. The learned Government Pleader was required to get

instructions as to whether the petitioners were put on notice before

Ext.P10 order was passed. It is submitted that the petitioners were

not put on notice, but, the Manager as well as respondents 7 and 8

were heard.

WP(C).No.894 OF 2021(J)

5. Having considered the contentions advanced, I find that

Ext.P10 order has worked to the disadvantage of the petitioners

since respondents 7 and 8 have been directed to be adjusted

against the vacancies to which the petitioners had already been

appointed. Since Ext.P10 order specifically states that respondents

7 and 8 are to be accommodated against the vacancies which arose

on 1.6.2016 and 14.7.2016, which arose due to promotion, the

petitioners who had already been appointed against the said

vacancies and whose appointments were awaiting approval were

also liable to be heard. In view of the fact that the order has

worked to the disadvantage of the petitioners, it was only proper

that the petitioners ought to have been heard. The petitioners

have taken out notice of this writ petition to the Manager as well as

respondents 7 and 8, but, there is no appearance for the said

respondents.

In the above view of the matter and in view of the fact

that Ext.P10 is decidedly an order adverse to the interest of the

petitioners, I am of the opinion that the issue is liable to be

considered with notice to the petitioners also. Ext.P10, which has

been issued admittedly without hearing the petitioners and which

directs the accommodation of respondents 7 and 8 against the

vacancies to which the petitioners had been appointed, is, WP(C).No.894 OF 2021(J)

therefore, one issued without hearing the petitioners and

considering their contentions.

In the result, Ext.P10 order is set aside. There will be a

direction to the 1st respondent to consider the question with regard

to approval of appointments of the petitioners and respondents 7

and 8 with notice to the petitioners as well as respondents 5 to 8.

The petitioners' contention with regard to Exts.P12 to P17 shall

also be taken note of while passing orders as directed above.

Appropriate orders shall be passed after hearing the parties

through any appropriate means including video conferencing,

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/16.2.2021 WP(C).No.894 OF 2021(J)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 01.06.2016

EXHIBIT P1(a) TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 15.07.2016

EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER OF THE 7TH REPSONDENT DATED 01.06.2016

EXHIBIT P2(a) TRUE COPY OF THE ORDER NO.D.DIS B3/3116/2016 DATED 29.03.2017 ISSUED BY THE DEO, OTTAPALAM

EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2016 OF THE 8TH RESPONDENT

EXHIBIT P3(a) TRUE COPY OF THE ORDER NO.D.DIS.B3/3437/2016 DATED 25.05.2017 ISSUED BY THE DEO, OTTAPALAM

EXHIBIT P4 TRUE COPY OF THE OBJECTION VIDE LETTER NO.B3/6000/2017 DATED 28.10.2017 ISSUED TO THE HEADMASTER BY THE DEO, OTTAPALAM

EXHIBIT P5 TRUE COPY OF THE STAFF FIXATION ORDER NO.D.DIS/B3/4395/15 DATED 13.04.2016 FOR THE ACADEMIC YEAR 2015-16

EXHIBIT P6 TRUE COPY OF THE ORDER NO.B3/8843/2016/K.DIS DATED 10.08.2016 OF THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD

EXHIBIT P7 TRUE COPY OF THE ORDER NO.B3/6693/16(2) DATED 03.01.2017 ISSUED BY THE DEO, OTTAPALAM

EXHIBIT P8 TRUE COPY OF THE ORDER NO.RA(1) 47356/2018/DPI/D.DIS DATED 01.10.2018 OF THE DIRECTOR

EXHIBIT P9 TRUE COPY OF THE ORDER NO. EM (1) 80970/17/DPI/KDIS DATED 03.07.2018 ISSUED BY THE DIRECTOR

EXHIBIT P10 TRUE COPY OF THE GOVERNMENT ORDER GO(RT) NO.516/2020/G.EDN DATED 28.01.2020

EXHIBIT P11 TRUE COPY OF THE ORDER NO.D.DIS /B3?3434/2016 DATED 28.09.2020 OF THE 4TH RESPONDENT WP(C).No.894 OF 2021(J)

EXHIBIT P11(a) TRUE COPY OF THE ORDER NO.D.DIS B3/1695/2019 DATED 28.09.2020 OF THE RESPONDENT

EXHIBIT P12 TRUE COPY OF THE GO.(RT) O.519/2014/G.EDN DATED 31.01.2014

EXHIBIT P13 TRUE COPY OF THE DECISION REPORT IN 2009(3) KLT 857 DATED 13.01.2009

EXHIBIT P14 TRUE COPY OF THE G.O(RT) NO.4784/2017/G.EDN DATED 13.12.2017

EXHIBIT P15 TRUE COPY OF THE G.O(RT) NO.202/2020/G.EDN DATED 13.01.2020

EXHIBIT P16 TRUE COPY OF THE G.O(RT) NO.252/2020/G.EDN DATED 15.01.2020

EXHIBIT P17 TRUE COPY OF THE GO(RT) NO.3136/2020/G.EDN DATED 24.11.2020

EXHIBIT P18 TRUE COPY OF THE APPOINTMENT ORDER OF THE 7TH RESPONDENT DATED 01.09.2015

EXHIBIT P19 TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONERS BEFORE THE GOVERNMENT DATED 30.12.2020

//TRUE COPY//

P.A. TO JUDGE