Kerala High Court
State Of Kerala vs State Of Kerala on 5 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
OP(KAT).No.372 OF 2020
AGAINST THE INTERIM ORDER DATED 16.01.2020 & 04.06.2020 IN OA
NO.1957/2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS NO.1 TO 3 IN O.A:
1 STATE OF KERALA
REPRESENTED BY THE SECRETRY, GENERAL EDUCATION
DEPARTMENT, STATUE, THIRUVANANTAHPURAM,
KERALA 695 001
2 DIRECTOR OF GENERAL EDUCATION,
OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION,
JAGATHI, THIRUVANANTHAPURAM, KERALA 695 014
3 DEPUTY DIRECTOR OF EDUCATION,
OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,
THODUPUZHA, IDUKKI, KERALA 685 584
BY GOVERNMENT PLEADER
RESPONDENTS/APPLICANT & RESPONDENTS NO.4 & 5 IN O.A:
1 SYAM KUMAR S.V.
AGED 33 YEARS
S/O. SADASIVAN, RESIDING AT KULATHINKARA PUTHEN
VEEDU, KUDAVOOR P.O, THONNAKKAL, THIRUVANANTHAPURAM,
KERALA 695 313
2 THE KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY, THULASI HILLS, PATTOM
PALACE P.O, THIRUVANANTHAPURAM, KERALA 695 004
3 DISTRICT OFFICER,
THE KERALA PUBLIC SERVICE COMMISSION, DISTRICT
OFFICE, KOTTAYAM, KERALA 686 004
R1 BY ADV. SRI.P.RAMAKRISHNAN
R1 BY ADV. SRI.T.C.KRISHNA
O.P (KAT) 372 of 2020
2
SRI.P.C.SASIDHARAN, SC
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 05.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P (KAT) 372 of 2020
3
ALEXANDER THOMAS & T.R.RAVI, JJ.
==================================
O.P (KAT) 372 of 2020
==================================
Dated this the 05th day of January, 2021
JUDGMENT
The prayer in the aforecaptioned Original Petition filed under
Articles 226 & 227 of the Constitution of India is as follows :
".................. to stay the implementation of the direction in Exhibits
P2 & P3 order in O.A.No.1957/2019 of the Kerala Administrative
Tribunal, Thiruvananthapuram, pending disposal of the above
original petition (KAT)."
2. Heard Sri.B.Vinod, learned Government Pleader appearing
for the petitioners, Sri.P.Ramakrishnan, learned counsel appearing for
contesting respondent No.1/original applicant before the Tribunal and
Sri.P.C.Sasidharan, learned Standing Counsel appearing for Kerala
Public Service Commission appearing for respondent Nos.2 & 3.
3. The petitioners herein (State of Kerala & others) are
aggrieved by the impugned Ext.P-2 interim order dated 16.01.2020 and
the impugned Ext.P-3 interim order dated 04.06.2020, both rendered
by the Kerala Administrative Tribunal in O.A No.1957/2019 filed by
contesting respondent No.1 herein. Contesting respondent No.1 herein
O.P (KAT) 372 of 2020
has filed Ext.P-1 O.A No.1957/2019 before the Kerala Administrative
Tribunal, Thiruvananthapuram Bench, with the following main
prayers :
"A. To call for records connecting to Annexure A4 and to quash the
same to the extent it denied appointment to the applicant on the
ground that there are no vacancies consequent to the abolishment
of post, overlooking the Government orders providing various
relaxations/modifications to the existing rules.
B. To declare that the applicant is eligible and entitled to be
appointed in the vacancy of Physical Education Teacher - UP-
Malayalam Medium reported and notified in Annexure A1 or any
other vacancy that would be created by application of provision
for clubbing as per the various Governments orders on this behalf.
C. To direct the 2nd and 3rd respondents to appoint the applicant to
the post of Physical Education Teacher -UP- Malayalam Medium,
after making necessary arrangements for clubbing different
sections of school/s by following the relevant Government orders.
D. To declare that the applicant is eligible and entitled to be given all
and every benefit including seniority and other service and
monetary benefits, on the basis of the advice date, even if he is
issued appointment order only later, as the delay happened solely
due to the mistake and laches on the part of the department in
applying the provisions existing for the appointment/retention of
Specialist teachers."
4. The Tribunal has initially passed Ext.P-2 interim order
dated 16.01.2020, whereby it was ordered that since the applicant is a
candidate, who has already been advised by the Kerala Public Service
Commission for the post of Physical Education Teacher, Upper Primary
School (Malayalam Medium), Idukki District on 14.02.2019 and as he
has not been given appointment order even after the expiry of about one
O.P (KAT) 372 of 2020
year and as the advice for appointment made by the Public Service
Commission is to be honoured, the denial of appointment due to the
non-issuance of the appointment order by the appointing authority
cannot be accepted. Hence, the Tribunal has granted the interim order
at Ext.P-2 directing that the respondents therein shall ensure that
appropriate orders granting the appointment to the petitioner are
issued before the next posting date. Later, the Tribunal has passed the
impugned Ext.P-3 interim order dated 04.06.2020, whereby, it was
ordered that 2nd & 3rd respondents therein (2nd & 3rd petitioners herein)
are directed to ensure that appointment order is issued to the applicant
therein (contesting respondent No.1 herein), without any further delay.
5. The case of contesting respondent No.1 herein is that he was
duly included in the rank list prepared by the respondent-Kerala Public
Service Commission for advice and appointment to the post of Physical
Education Teacher, Upper Primary School, Malayalam Medium, Idukki
District, which came into force on 17.01.2018 and he was having rank
No.2 in the rank list. Further that, a vacancy was already reported and
pending in the respondent-Kerala Public Service Commission, to which
the Service Commission had issued advice memo ordering that rank
O.P (KAT) 372 of 2020
No.1 in the rank list should be appointed to the said vacancy in
question. Further that, the said advised candidate, who is having rank
No.1 had not reported for duty within the stipulated time and
thereupon, the competent authority of the department had issued the
necessary requisition to the respondent-Kerala Public Service
Commission about the factum of the non-joining of duty vacancy
pertaining to the non-joining of duty of rank No.1, who is the advised
candidate. Thereafter, the respondent-Public Service Commission has
advised the petitioner herein for the said vacancy, as he was having rank
No.2 and as per his turn. That therefore, the appointing authority and
the competent authority of the State Government were legally obliged to
ensure that the appointment order is also issued to the original
applicant, who is the advised candidate and that therefore, the interim
order passed by the Tribunal does not require any legal interdiction.
6. Per contra, Sri.B.Vinod, learned Government Pleader
appearing for the petitioners-State authorities would point out that it is
true that the vacancy in question was earlier reported to the Public
Service Commission. That later, the vacancy in question should be
abolished due to staff fixation order and it appears that formal
O.P (KAT) 372 of 2020
intimation was not then sent by the department to the Public Service
Commission intimating about the abolition of the post and not to advise
any candidate therefrom, as the vacancy in question was already
abolished. That it is thereafter that rank No.1 in the present rank list
has been advised, which resulted in non-joining of his duty. That in
view of the conventions as between the appointing authority and the
Public Service Commission, the appointing authority has sent the
necessary report regarding the non-joining of duty by the first advised
candidate. Simultaneously, the department had also sent a report as
per Ext.P6 dated 19.01.2020 intimating the Public Service Commission
about the factum regarding the abolition of abovesaid vacancy in
question, etc.
7. Further that, the main claim of the petitioner is on the basis
of Annexure-A9 G.O(Rt.) No.111/2017/GEDN dated 07.09.2017
regarding clubbing of posts and that the said scheme made by the State
Government as per Annexure-A9 government order dated 07.09.2017 is
pertaining only for the limited purpose of granting benefit for protecting
teachers in the Government schools and the aided school and the said
scheme, as per Annexure-A9 cannot be pressed into service, for a
O.P (KAT) 372 of 2020
creation of a vacancy, which is already abolished for the purpose of
advising and appointing a fresh candidate, etc. Hence, it is pointed out
by the learned Government Pleader that the legal basis pursuant to
which the Tribunal has granted the impugned order, is not tenable for
the simple reason that Annexure-A9 will not be applicable to the facts
and circumstances of this case, inasmuch as the present case does not
deal the claim of a protected teacher. Further, it is pointed out that the
Tribunal has gone wrong in granting the impugned interim orders,
which amounts to granting the main reliefs in the main matter in the
original application, etc.
8. After hearing both sides, this Court is of the considered view
that it may not be right and proper for this Court to enter into the
merits of the controversy in this lis, lest, it may prejudice any of the
parties herein. However, we find force in the submission made by the
learned Government Pleader that the interim orders now granted by the
Tribunal virtually amounts to granting the main reliefs in the main
matter in the original application. Hence, we are inclined to take the
view that the matter could be remitted to the Tribunal to ensure the
adjudication of the various issues and render a final order in the matter,
O.P (KAT) 372 of 2020
without much delay.
9. Accordingly, for effectuating such a remit, we order that the
impugned interim orders are Exts.P-2 & P-3 rendered by the Kerala
Administrative Tribunal in O.A.No.1957/2019, will stand set aside with
the direction that the Tribunal may take all reasonable endeavours
possible in the circumstances to ensure the early disposal of the main
matter in O.A.No.1957/2019, after hearing both sides, without much
delay, preferably within a period of six weeks from the date of
production of a certified copy of this judgment. In order to obviate the
further delay, we order that the petitioners herein (State authorities)
shall immediately complete the necessary pleadings, within ten days
and without even waiting for a certified copy of this judgment. Advance
copy of such pleadings of the petitioners herein shall be given to the
counsel for the 1st respondent herein, in order to avoid any further
delay. The 1st respondent herein, may file his rejoinder to any such reply
statement, within one week thereafter.
10. Having regard to the nature of the facts and circumstances
of this case, the Tribunal may ensure that top priority is accorded to this
case, to ensure its early disposal, without any further delay. We make it
O.P (KAT) 372 of 2020
clear that we have not entered into the merits of the controversy in any
manner and none of the observations and findings made by this Court
hereinabove, shall even be remotely construed as an opinion made by
this Court regarding the merits of the main controversy, which would
fall exclusively within the domain and province of the Tribunal, as the
court of first instance.
11. The Registry will forward a copy of this judgment to the
Kerala Administrative Tribunal, Thiruvananthapuram Bench, for
necessary information.
With these observations and directions, the above Original
Petition will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R.RAVI, JUDGE
vgd
O.P (KAT) 372 of 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF O.A NO. 1957/2019 ALONG
WITH ITS ANNEXURES
ANNEXURE A1 THE TRUE COPY OF THE NOTIFICATION IN
CATEGORY NO.013/2014 DATED 15-03-2014
ANNEXURE A2 THE TRUE COPIES OF THE RANKED LIST
BEARING NO.24/2018/SSV & CAT NO.013/2014
DATED 17-01-2018
ANNEXURE A3 THE TRUE COPY OF ADVICE BEARING FILE NO.
IDB(3) 1349/09 DATED 14-02-2019
ANNEXURE A4 THE TRUE COPY OF LETTER NO. A3/5555/18
DATED 26-03-2019 ISSUED BY 3RD PETITIONER
ANNEXURE A5 THE TRUE COPY OF QUERY UNDER RTI ACT
DATED 02-08-2019 SUBMITTED BY BABY USHA
TO 3RD PETITIONER.
ANNEXURE A6 THE TRUE COPY OF THE REPLY RECEIVED DATED
22-08-2019
ANNEXURE A7 THE TRUE COPY OF THE QUERY DATED 02-08-
2019 SUBMITTED BY BABY USHA TO 2ND
PETITIONER.
ANNEXURE A8 THE TRUE COPY OF REPLY BEARING
NO.H4/29495/2019/2019/DGE DATED 13-08-
ANNEXURE A9 THE TRUE COPY OF G.O(P) NO.
111/2017/G.EDN DATED 07-09-2017
ANNEXURE A10 THE TRUE COPY OF THE APPOINTMENT CHART
WITH RESPECT TO THE APPOINTMENT OF SMT.
SINI PAUL WHO WAS ADVISED ON 03-05-2016
ANNEXURE A 11 THE TRUE COPY OF G.O(RT) NO. 807/91/GEDN
DATED 14-03-1991
O.P (KAT) 372 of 2020
ANNEXURE A12 THE TRUE COPY OF G.O(MS) NO.
390/2002/G.EDN DATED 27-11-2002
EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER DATED
16-01-2020 IN O.A NO. 1957/2019
EXHIBIT P3 TRUE COPY OF THE INTERIM ORDER DATED
04-06-2020 IN O.A NO. 1957/2019
EXHIBIT P4 TRUE COPY OF THE ANNEXURE SHOWING
STUDENTS STRENGTH APPENDED TO THE
FIXATION ORDER 2015-16
EXHIBIT P5 TRUE COPY OF THE ORDER NO.B/5097/16
DATED 19.01.2017
EXHIBIT P6 TRUE COPY OF THE LETTER NO.A3/5555/2018
DATED 19.01.2019
