Simy Anto A vs State Of Kerala
2021 Latest Caselaw 5512 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942

                       WP(C).No.5565 OF 2018(U)

PETITIONERS:

      1        SIMY ANTO A, HSST JUNIOR (PHYSICS), KCPHSS,
               KAVASSERY,PALAKKAD- 678 543RESIDING AT
               CHIRAYATH MANJAYIL HOUSE,CHURCH ROAD,
               MUKKATTUKARA, THRISSUR- 680 651

      2        BINI.K.NAIR, HSST JUNIOR (CHEMISTRY)KCPHSS,
               KAVASSERY, PALAKKAD- 678 543RESIDING AT "SRUTHY"
               MYTHRI NAGAR,KALAMANI KAVASSERY, ALATHUR,
               PALAKKAD- 678 543

               BY ADVS.
               SRI.ELVIN PETER P.J.
               SRI.K.R.GANESH

RESPONDENTS:

      1        STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
               GOVERNMENT,GENERAL EDUCATION DEPARTMENT,
               SECRETARIAT,THIRUVANANTHAPURAM

      2        THE DIRECTOR OF HIGHER SECONDARY EDUCATION
               DIRECTORATE OF HIGHER SECONDARY EDUCATION,
               HOUSING BOARD BUILDING, IIND FLOOR, THAMPANOOR,
               PANAVAILA ROAD, SANTHI NAGAR, THYCAUD,
               THIRUVANANTHAPURAM- 695 001

      3        THE REGIONAL DEPUTY DIRECTOR
               HIGHER SECONDARY EDUCATION,B2 BLOCK,
               CIVIL STATION, MALAPPURAM- 676 505

      4        THE MANAGER, KCPHSS, KAVASSERY,
               PALAKKAD- 678 543

               BY ADVS.
               SRI.G.KEERTHIVAS
               SRI.P.R.VENKATESH
               SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD         ON
16.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 5565/18
                                      2



                                 JUDGMENT

The petitioners are stated to be working

as Higher Secondary School Teachers (HSST) in

Physics and Chemistry respectively in

'KCPHSS', Kavassery, Palakkad, and they have

approached this Court impugning Exts.P10 and

P11, which grants them approval in service

only with effect from 14.09.2015, though they

assert that they were appointed as early as on

07.10.2013. They, therefore, pray that the

impugned orders be set aside and the competent

Educational Authorities be directed to grant

them approval with effect from 07.10.2013,

being the date on which they were initially

appointed, as is evident from Exts.P3 and P4

respectively.

2. In response to the afore submissions

made on behalf of the petitioners by their

learned counsel - Smt.Priya Kaimal, the

learned Senior Government Pleader - WPC 5565/18

Sri.P.M.Manoj, submitted that a counter

affidavit has been filed on record, wherein it

has been explained that the posts in question

were created only on 28.07.2015, pursuant to

Ext.P6 Government Order; and therefore, that

the Manager of the School could not have

appointed anybody prior to that date. He

submitted that, as per the Government Orders

in force at that time, the Manager could have

only engaged teachers as Guest Lecturers to

conduct classes and therefore, that

appointment of the petitioners with effect

from a date prior to Ext.P6 is untenable.

3. Sri.P.M.Manoj further explained that,

after Ext.P6 order has been issued, the

Manager made a notification on 13.08.2015 to

fill up the vacancies which were created under

it and that a Selection Committee was

constituted only on 12.09.2015, leading to the

petitioners, along with others, to be WPC 5565/18

appointed on 14.09.2015. He submitted that,

therefore, neither the petitioners nor the

Manager can seek that the appointments be

given retrospective effect from 07.10.2013,

when the selection itself was conducted only

on 12.09.2015 and the petitioners were

admittedly appointed, consequent to it, on

14.09.2015. He, therefore, prayed that this

Writ Petition be dismissed.

4. Sri.G.Keerthivas - learned counsel

appearing for the Manager of the School,

submitted that appointments were made by his

client in the year 2013 in anticipation of the

posts being created and that through Ext.P6,

same was done by the Government giving

retrospective effect from 15.07.2013. He

submitted that it was in such circumstances

that his client conducted a fresh selection

process in September 2015, wherein, the

petitioners were found eligible to be WPC 5565/18

appointed and granted appointment resultant to

such process on 14.09.2015. He contended that

since the posts were created with effect from

15.03.2013, the petitioners are certainly

entitled to be granted approval at least from

07.10.2013, since as is evident from Exts.P3

and P4, they have been in continuous service

from that date. He, therefore, prayed that

this Writ Petition be allowed, as has been

prayed for by the petitioners.

5. I have examined the impugned orders

and have also gone through the pleadings and

materials available on record.

6. The order of the Government, namely

Ext.P12, makes it clear that since the

petitioners were appointed as HSST(Junior)

only through the selection process conducted

by the Manager on 12.09.2015, they cannot

impel any claim for being approved from a date

prior to that.

WPC 5565/18

7. At first blush, this position of the

Government certainly looks acceptable, but

certain peculiar facets of this case will also

require to be taken into account - which is

that the petitioners were, in fact, appointed

on 07.10.2013 by the Manager, anticipating

that posts will be created. Of course, it is

the specific case of the learned Senior

Government Pleader that before the posts were

created the Manager could have only engaged

the petitioners as Guest Lecturers and had the

said posts, thereafter, created only with

prospective effect, this argument would have

certainly stood firm and would have obtained

the approval of this Court.

8. However, the peculiar circumstance of

this case is that the petitioners were, in

fact, appointed on 07.10.2013 and pertinently

Ext.P6 order was issued by the Government on

28.07.2015, granting teaching posts with WPC 5565/18

effect from 15.07.2013, which is, evidently, a

date anterior to the appointment of the

petitioners. Obviously, therefore, if a

vacancy had to be filled up with effect from

15.07.2013, then certainly there ought to have

been teachers working in the School from that

date, who would have required to be eligible

to stake claim for approval with effect from

the date on which they were so appointed.

9. In the case at hand, the petitioners

are stated to have been appointed as per

Exts.P3 and P4 on 07.10.2013 and they say that

they have been continuing in service ever

since, until they were again appointed by the

Manager after the selection process on

14.09.2015. Ineluctably, therefore, they are

justified in seeking approval from the date on

which they were appointed, since they were

continuing in service throughout and since

Ext.P6 creates the posts with effect from WPC 5565/18

15.07.2013.

10. However, I notice from Ext.P11

impugned order that these aspects have not

been considered by the 3rd respondent-Regional

Deputy Director, but has chosen to reject the

petitioners' request for approval with effect

from 07.10.2013, solely on the ground that the

posts were created, through Ext.P6, only after

28.07.2015. The said Authority, however, seem

to be forgetting that these posts were, in

fact, created with effect from 15.07.2013.

11. I am, therefore, of the view that the

entire matter requires to be reconsidered by

the 3rd respondent, taking note of the afore

observations and after affording the parties

necessary opportunity of being heard.

In the afore circumstances, I order this

writ petition and set aside Ext.P11 issued by

the 3rd respondent-Regional Deputy Director;

with a consequential direction to the said WPC 5565/18

Authority to reconsider the matter and take a

fresh decision on the claims of the

petitioners, after affording them an

opportunity of being heard.

Needless to say, while completing the

afore exercise, the 3rd respondent will also

advert to Ext.P12 order issued by the

Government, which is relied upon by the

petitioners to show that in similar

circumstances approvals were granted from the

date on which initial appointments were made.

Sd/-

                                          DEVAN RAMACHANDRAN
       RR                                              JUDGE
 WPC 5565/18




                            APPENDIX
       PETITIONER'S/S EXHIBITS:

       EXHIBITP1         TRUE COPY OF THE NOTIFICATION

PUBLISHED IN MATHRUBHUMI DAILY DATED14-03-2012 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P2 TRUE COPY OF THE SELECT LIST PREPARED BY THE SELECTION COMMITTEE

EXHIBITP3 TRUE COPY OF THE APPOINTMENT ORDER DATED 7-10-2013 ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER

EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER DATED 7-10-2013 ISSUED BY THE 4TH RESPONDENT TO THE 2ND PETITIONER

EXHIBITP5 TRUE COPY OF THE G.O(MS) NO.211/2013/G.EDN. DATED 15-07-2013

EXHIBIT P6 TRUE COPY OF THE G.O(MS) NO.202/2015/G.EDN DATED 28-07-2015

EXHIBITP7 TRUE COPY OF THE ORDER NO.F/8730/2015/RDD/HSE/MLPM DATED 29-03-2016 ISSUED BY THE 3RD RESPONDENT

EXHIBITP8 TRUE COPY OF THE ORDER NO.F/8844/2015/RDD/HSE/MLPM DATED 29-03-2016 ISSUED BY THE 3RD RESPONDENT

EXHIBITP9 TRUE COPY OF THE CLARIFICATION FORWARDED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT DATED 07-09-2016

EXHIBITP10 TRUE COPY OF THE COMMUNICATION DATED 23-11-2017 SENT BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT

EXHIBIT P11 TRUE COPY OF THE COMMUNICATION DATED 18-10-2018 SENT BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT WPC 5565/18

EXHIBITP12 TRUE COPY OF G.O(RT) NO.3468/2017/GEDN DATED 3-10-2017

EXHIBIT P13 TRUE PHOTOCOPY OF THE ORDER G.O.(RT) NO.4122/2013/G.EDN. DATED 5/10/2013 ISSUED BY THE GOVERNMENT