Manager vs The State Of Kerala
2021 Latest Caselaw 1011 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

              THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

   TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942

                      WP(C).No.42495 OF 2018(J)


PETITIONER:

               MANAGER, BET UPPER PRIMARY SCHOOL
               VELICHIKALA P.O., KUNDUMAM, KOLLAM.

               BY ADVS.
               SRI.R.KRISHNA RAJ
               SMT.E.S.SONI
               SMT.KUMARI SANGEETHA S.NAIR

RESPONDENTS:

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

      2        THE DIREICTOR OF PUBLIC INSTRUCTIONS
               THIRUVANANTHAPURAM.

      3        THE DEPUTY DIRECTOR OF EDUCATION
               THEVALLY, KOLLAM-691 009.

      4        THE ASSISTANT EDUCATION OFFICER
               KUNDARA.

      5        KHAYIS A.S.
               UPPER PRIMARY ASSISTANT (ON SUSPENSION),
               BET UP SCHOOL, KUDUMON, KOLLAM-691 523.

               R1-4 BY GOVERNMENT PLEADER
               R5 BY ADV. SRI.ELVIN PETER P.J.
               R5 BY ADV. SRI.K.R.GANESH

OTHER PRESENT:

               GP -SUNIL KURIAKOSE

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-
11-2020, ALONG WITH WP(C).1765/2019(U), WP(C).21016/2020(B), THE
COURT ON 12-01-2021 DELIVERED THE FOLLOWING:
                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

              THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

   TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942

                       WP(C).No.1765 OF 2019(U)


PETITIONER:

               KHAYIS.A.S
               AGED 35 YEARS
               S/O. ABDUL SALAM, VADAKKEVEEDU, KUNDUMON,
               VELICHIKKALA P.O, KOLLAM 691 573.

               BY ADVS.
               SRI.ELVIN PETER P.J.
               SRI.K.R.GANESH
               SMT.N.R.REESHA

RESPONDENTS:

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

      2        THE DEPUTY DIRECTOR OF EDUCATION,
               OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
               KOLLAM 691 501

      3        THE ASSISTANT EDUCATIONAL OFFICER,
               KUNDARA 691 501

      4        THE MANAGER,
               BET UPPER PRIMARY SCHOOL, KUNDUMON,
               VELICHIKKALA P.O, KOLLAM 691 573.


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-
11-2020, ALONG WITH WP(C).42495/2018(J), WP(C).21016/2020(B),
THE COURT ON 12-01-2021 DELIVERED THE FOLLOWING:
                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

           THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

   TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942

                      WP(C).No.21016 OF 2020(B)


PETITIONERS:

      1        REJEENA S
               AGED 39 YEARS
               UPST AWAITING APPROVAL, BET UPS, KUNDUMON,
               NEDUMPANA, KOLLAM RESIDING AT HILAL
               MANZIL,KARALIKONAM, ARKKANNOOR P.O.,KOLLAM-691390

      2        SHAKEELA.A.,
               UPST AWAITING APPROVAL, BET UPS, KUNDUMON,
               NEDUMPANA, KOLLAM RESIDING AT THAIKKAD HOUSE,
               KUNDUMON, VELICHIKKALA P.O., KOLAM-691 573

               BY ADVS.
               SRI.C.UNNIKRISHNAN (KOLLAM)
               SRI.M.R.SUDHEENDRAN

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY THE SECRETARY , GENERAL EDUCATION
               DEPARTMENT, SECRETARIAT ANNEX (II)TRIVANDRUM-695
               001

      2        THE DIRECTOR OF GENERAL EDUCATION,
               JAGATHI, TRIVANDRUM-695014

      3        THE ASST. EDUCATIONAL OFFICER,
               OFFICE OF THE ASST, EDUCATIONAL OFFICER, KUNDARA,
               KOLLAM-691 501

      4        THE MANAGER,
               BET UPS, KUNDUMON, NEDUMPANA, KOLLAM 691 501

      5        KHAISE AS,
               VADAKKEVEEDU, KUNUMON, VELICHIKKALA P.O., KOLLAM-
               691 573

               R4 BY ADV. SRI.R.KRISHNA RAJ
               R4 BY ADV. SMT.E.S.SONI
               R4 BY ADV. SMT.KUMARI SANGEETHA S.NAIR
             R5 BY ADV. SRI.ELVIN PETER P.J.
            R5 BY ADV. SRI.K.R.GANESH

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-
11-2020, ALONG WITH WP(C).42495/2018(J), WP(C).1765/2019(U), THE
COURT ON 12-01-2021 DELIVERED THE FOLLOWING:
 W.P.(C).No.42495/18 & con.cases
                                     5


                                  JUDGMENT

[ WP(C).42495/2018, WP(C).1765/2019, WP(C).21016/2020 ]

Dated this the 12th day of January 2021

1. Heard the the learned counsel appearing on all sides.

2. The question raised in these writ petitions is with regard to a

teacher working in a leave vacancy in an aided school to be

shifted to a regular vacancy in the same cadre during the

currency of the initial appointment.

3. The petitioner in WP(C) No.1765 of 2019 was appointed as

UPSA in the B.E.T. UPS, Kundumon, Kollam from 28 07.2011

till the vacancy exists by Ext.P1. The said appointment stood

approved on 31.03.2012. A regular vacancy of UPSA arose in

the school on 02.06.2014. Another vacancy also arose due to

the promotion of the senior most teacher. The petitioner raised

a claim for appointment from 02.06.2014 in the regular

vacancy. Ext.P2 Government Order dated 09.11.1999

clarifying that leave substitutes should be regularised against W.P.(C).No.42495/18 & con.cases

first arising permanent vacancies was relied on. However, the

Manager appointed the petitioners in WP(C) No.21016 of 2020

against the two regular vacancies and the petitioner was sent

out of service when the teacher who availed leave rejoined

duty on 01.01.2018. In the meanwhile, disciplinary

proceedings was initiated by the Manager against the

petitioner which ultimately ended by Ext.P7 order. Petitioner

was reinstated and all monetary benefits were paid.

Thereafter, the Government considered the claim of the

petitioner for appointment in the regular vacancy which arose

in the school and passed Ext.P8 order directing the

appointment of the petitioner. The petitioner seeks

implementation of the said order. The Manager challenged the

order in WP(C) No.42495 of 2018. The later appointees filed

WP(C) No.21016 of 2020,also raising a challenge to the order

of the Government.

4. The learned counsel for the Manager (petitioner in W.P.(C)

No.42495 of 2018) contends that the Manager is the

appointing authority in respect of posts in aided schools as is W.P.(C).No.42495/18 & con.cases

evident from Section 11 of the Kerala Education Act. It is

submitted that the power of appointment can be

circumscribed only by statutory claims in the nature of Rule

51A of Chapter XIVA, KER and an executive order cannot

fetter the statutory right of the Manager

to make appointments against vacancies which arise before

the statutory claim arises due to the teacher appointed in the

leave vacancy becoming thrown out of service due to

termination of the vacancy. It is submitted that the petitioner

in W.P.(c).No.1765/2019 had raised a claim for appointment to

a vacancy which arose in 2019 thus waiving any earlier claim.

It is contended that the fresh appointments made in 2014 are

liable to be approved. The petitioners in WP(C) No.21016 of

2020, who are the fresh hands appointed in 2014 support

these contentions.

5. The learned counsel for the petitioner in WP(C) No.1765 of

2019, relies on the Government Order dated 09.11.1999 and a

decision of this Court reported in Subhash Chandran v,

State of Kerala (2013 (2) KLT 502) to contend that he is W.P.(C).No.42495/18 & con.cases

entitled for appointment against the vacancy which arose on

02.06.2014. It is contended that the power of appointment of

the Manager under Section 11 of the Act is specifically made

subject to the "rules and conditions laid down by the

Government'. It is submitted that as all matters where the

rules are silent, the Government has the power to pass

executive orders which shall be binding on the Manager of

aided schools. It is further contended that Subhash

Chandran v. State of Kerala (supra) has specifically

considered the issue and held that the Manager, who is not the

paymaster is not entitled to contend that an approved hand

should wait until he/she is thrown out of service before an

appointment can be claimed regularly, even where a regular

vacancy arises during the course of the temporary

employment.

6. The learned Government Pleader submits that Ext.P2 is a

Government Order passed after considering all implications

and that it is binding on the Manager. It is submitted that the

applicability of the Government Order has been properly

considered by the Government.

W.P.(C).No.42495/18 & con.cases

7. On an anxious consideration of the factual and legal aspects of

the case, I find that the Government Order dated 09.11.1999

is an executive order which regulates the mode of filling up of

vacancies where there is an approved temporary teacher

working under the same management. The power of the

Manager to make appointment is specifically subject to the

"rules and conditions" laid down by the Government. This

Court in Subhash Chandran v. State of Kerala (supra)

specifically found that the Manager, who is not the paymaster

in respect of posts in aided schools is liable to make

appointments in compliance with the Rules and the other

conditions laid down by the Government. This aspect has been

specifically considered by the Government in the impugned

order. The request made by the teacher for accommodation in

a subsequently arising vacancy during the pendency of the

writ petition filed by him seeking implementation of the orders

of the Government, cannot be relied on by the Manager to

deny the appointment directed to be made by the Government. W.P.(C).No.42495/18 & con.cases

8. In the result, W.P.(C).No.1765 of 2019 is allowed. The 4 th

respondent is directed to adjust the appointments made in

accordance with the directions contained in the Government

Order. The appointments of the petitioners in W.P.

(C).No.21016 of 2020 shall also be appropriately regulated

against the leave vacancies and the regular vacancies which

arose in 2014 and 2019 respectively. The Educational

Authorities shall approve the appointments within one month

from the date of receipt of a copy of the judgment. Monetary

benefits shall be disbursed within three months thereafter.

W.P.(C).No.42495 of 2018 is, accordingly, dismissed.

Sd/-

Anu Sivaraman, Judge

sj W.P.(C).No.42495/18 & con.cases

APPENDIX OF WP(C) 42495/2018 PETITIONER'S EXHIBITS:

EXHIBIT P1 COPYOF THE ORDER OF AEO 28.7.2016.

EXHIBIT P2 COPY OF THE ORDER OF AEO 27.7.2016.

EXHIBIT P3 COPY OF THE APPOINTMENT ORDER OF KHAYIS 28.7.2011.

EXHIBIT P4 COPY OF THE APPROVAL ORDER OF AEO 28.7.2011.

EXHIBIT P5                  COPY OF APPEAL

EXHIBIT P6                  COPY OF THE APPEAL

EXHIBIT P7                  COPY OF THE ORDER OF DEO 11.11.2016.

EXHIBIT P8                  COPY OF THE REVISION PETITION 7.9.2017.

EXHIBIT P9                  COPY OF THE JUDGMENT IN WPC 32896/17
                            16.1.2017.

EXHIBIT P10                 COPY OF THE GOVERNMENT ORDER 7.11.2018.

EXHIBIT P11                 COPY OF THE CLAIM OF THE 5TH RESPONDENT
                            5.1.2018.

EXHIBIT P12                 COPY OF THE ORDER DATE17.06.2014.

EXHIBIT P13                 COPY OF THE GOVERNMENT ORDER DATE
                            29.01.2016.
 W.P.(C).No.42495/18 & con.cases




              APPENDIX OF WP(C) 1765/2019
PETITIONER'S EXHIBITS:

EXHIBIT P1                  TRUE COPY OF ORDER DATED 28-7-2011
                            ISSUED BY THE 4TH RESPONDENT

EXHIBIT P2                  TRUE COPY OF G.O(MS) NO 275/99/G.EDN.
                            DATED 9-11-1999 ISSUED BY THE
                            GOVERNMENT.

EXHIBIT P3                  TRUE COPY OF THE ORDER DATED 11-11-2016
                            ISSUED BY THE DEO, KOLLAM

EXHIBIT P4                  TRUE COPY OF THE ORDER DATED 5-4-2017
                            ISSUED BY THE DPI.ROSHNY SYAM,

EXHIBIT P5                  TRUE COPY OF THE REPORT DATED 16-06-
                            2017 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P6                  TRUE COPY OF THE REPORT DATED 10-11-
                            2017 IN W.P(C) NO. 21182/17 OF THIS
                            HON'BLE COURT.

EXHIBIT P7                  TRUE COPY OF THE REPORT DATED 18-02-

2018 SUBMITTED BY THE 3RD RESPONDENT

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 7-11-2018 ISSUED BY THE 1ST RESPONDENT.

W.P.(C).No.42495/18 & con.cases

APPENDIX OF WP(C) 21016/2020 PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER DATED 02.06.2014 ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER

EXHIBIT P2 A TRUE COPY OF THE APPOINTMENT ORDER DATED 02.06.2014 ISSUED BY THE 4TH RESPONDENT TO THE 2ND PETITIONER

EXHIBIT P3 A TRUE COPY OF THE APPOINTMENT ORDER DATED 28.07.2011 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT

EXHIBIT P4 A TRUE COPY OF THE APPOINTMENT ORDER DATED 28.07.2011 CONTAINING THE APPROVAL NOTED OF THE 3RD RESPONDENT

EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 17.06.2014 OF THE ADDITIONAL DIRECTOR OF GENERAL EDUCATION (ACADEMIC)

EXHIBIT P6 A TRUE COPY OF THE PRESENTATION SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT DATED 16.09.2014

EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 27.07.2016 ISSUED BY THE 4TH RESPONDENT

EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 28.07.2016 ISSUED BY THE 4TH RESPONDENT

EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 05.04.2017 OF THE SECOND RESPONDENT

EXHIBIT P10 A TRUE COPY OF THE ORDER DATED 07.11.2018 OF THE FIRST RESPONDENT W.P.(C).No.42495/18 & con.cases

EXHIBIT P11 A TRUE COPY OF THE RELIEVING ORDER DATED 21.12.2017 ISSUED TO THE 5TH RESPONDENT BY THE MANAGER WHEN POOKUNJU REPORTED FOR DUTY

EXHIBIT P12 A TRUE COPY OF THE GO(P) 29/2016/G.EDN DATED 29.01.2016

EXHIBIT P13 A TRUE COPY OF THE REQUEST DATED 05.01.2018 SUBMITTED BY THE 5TH RESPONDENT

EXHIBIT P14 A TRUE COPY OF THE PETITION DATED 11.02.2019 SUBMITTED BY THE 4TH RESPONDENT MANAGER TO THE 2ND RESPONDENT

True copy

PS to Judge