Fly George vs The State Of Kerala
2021 Latest Caselaw 1405 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

                       WP(C).No.9861 OF 2013(G)


PETITIONER:

               FLY GEORGE, D/O.GEORGE, HIGH SCHOOL ASSISTANT,
               SACRED HEART GIRLS HIGH SCHOOL, BHARANANGANAM,
               KOTTAYAM DISTRICT - 686 578.

               BY ADVS.
               SRI.M.V.BOSE
               SMT.NISHA BOSE
               SRI.VINOD MADHAVAN

RESPONDENTS:

      1        THE STATE OF KERALA,
               REPRESENTED BY THE SECRETARY TO GOVERNMENT,
               GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM- 695 001.

      2        THE DISTRICT EDUCATIONAL OFFICER,
               PALA - 686 001.

      3        THE MANAGER, SACRED HEART GIRLS HIGH SCHOOL,
               BHARANANGANAM, KOTTAYAM DISTRICT - 686 578.

               BY ADV. SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
14.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.9861 OF 2013(G)

                                        -2-

                                 JUDGMENT

Dated this the 14th day of January 2021

The petitioner has approached this Court

impugning Ext.P11 to the extent to which her

approval for appointment as High School

Assistant (English), in the services of the

Sacred Heart Girls High School, Kottayam -

managed by the 3rd respondent - has been

rejected with effect from 02.6.2008, but

allowed only with effect from 01.06.2011, as

is evident from Ext.P11.

2. The petitioner says that approval

from the date of her initial appointment has

been declined solely on the ground that the

vacancy arose to accommodate a HSA (English)

only from 1.6.2011, because against such

post an excess HSA (Maths) had been

accommodated, finally leading to a vacancy WP(C).No.9861 OF 2013(G)

due to the voluntary retirement of a HSA in

Maths on that date.

3. The petitioner says that, however,

while issuing Ext.P11, the Government had

omitted to notice that one additional post

of HSA was sanctioned in the School for the

academic year 2008-2009 and that there were

12 sanctioned posts of HSAs in that year,

against which only 11 teachers were working,

excluding the petitioner. She, therefore,

asserts that if the minimum subject

requirement had been taken into account, an

English teacher alone could have been

appointed and thus that she was entitled to

be granted approval in terms of the extant

law.

4. In response to the afore submissions

of Sri.Vinod Madhavan made on behalf of the WP(C).No.9861 OF 2013(G)

petitioner, the learned Senior Government

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

counter affidavit has been placed on record,

showing the staff position in the School in

the relevant academic years. He submitted

that even though one post of HSA was

sanctioned in the year 2008-2009, the second

post of HSA (English) was filled up through

the petitioner without retrenching any other

teacher, so as to handle 60 hours in

English; and that this arrangement appears

to have been made by the Manger observing

the minimum subject requirement in Physical

Science, as per Government Order,

G.O(P)No.11/2002/G.Edn. dated 7.1.2002.

5. Sri.P.M.Manoj concluded his

submissions by saying that the Educational

Authorities and the Government have,

nevertheless, rejected the approval of the WP(C).No.9861 OF 2013(G)

petitioner validly because there was a ban

of appointment in the additional vacancies

and since the Manager did not execute a

bond in terms of G.O(P)No.10/10/G.Edn. dated

12.1.2010. He, therefore, prayed that this

writ petition be dismissed.

6. Even when I hear the learned Senior

Government Pleader on the afore lines, it is

indubitable that it has been well settled

through a catena of judgments of this Court

that the Educational Authorities could

presume that the Manager had executed the

bond, as required under G.O(P) No.

10/10/G.Edn. dated 12.01.2010, if the other

criterion in the said order had been

complied with.

7. In the case at hand, the sole reason

why the petitioner's approval has been WP(C).No.9861 OF 2013(G)

denied from the date of her initial

appointment because the Manager had not

executed a bond in terms of the

aforementioned Government Order. I,

therefore, am of the firm view that the

proposal for approval of the petitioner's

appointment requires to be reconsidered and

for such purpose, Ext.P11 will require to be

set aside.

8. In the afore circumstances, I order

this writ petition and set aside Ext.P11, to

the extent to which it grants approval to

the petitioner only with effect from

1.6.2011; with a consequential direction to

the competent Secretary of the Government to

reconsider the question of approval to the

petitioner with effect from 02.06.2008,

after affording her and the Manager an

opportunity of being heard - either WP(C).No.9861 OF 2013(G)

physically or through video conferencing -

so as to culminate in an appropriate order

thereon as expeditiously as is possible, but

not later than three months from the date of

receipt of a copy of this judgment.

Needless to say, while completing the

afore exercise, the Secretary of the

Government will consider every contention of

the petitioner, including that there were

vacancies available in the School to

accommodate her and will also be eligible to

deem that the Manger had executed a bond in

terms of G.O.(P) No.10/10/G.Edn. dated

12.01.2010, subject to his version to be

recorded at the time of hearing.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C).No.9861 OF 2013(G)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF ORDER OF APPOINTMENT ORDER DATED 2/6/2008

EXHIBIT P2 TRUE COPY OF ORDER OF DEO DATED 24/11/2008

EXHIBIT P3 TRUE COPY OF ORDER OF DEPUTY DIRECTOR OF EDUCATION DATED 17/1/2009

EXHIBIT P4 TRUE COPY OF ORDER DATED 15/10/2009 DPI

EXHIBIT P5 TRUE COPY OF REVISION DATED 7/11/2009

EXHIBIT P6 TRUE COPY OF PROCEEDINGS OF DEO DATED 18/3/2010

EXHIBIT P7 EXHIBIT P7 TRUE COPY OF GOVERNMENT ORDER DATED 2/6/2004

EXHIBIT P8 TRUE COPY OF GOVERNMENT ORDER DATED 14/3/91

EXHIBIT P9 TRUE COPY OF REVISION FILED BY THE 3RD RESPONDENT DATED 17/11/2011

EXHIBIT P10 TRUE COPY OF JUDGMENT OF WPC NO.5257/2012 DATED 2.3.2012.

EXHIBIT P11 TRUE COPY OF THE GOVERNMENT ORDER 5.7.12

EXHIBIT P12 TRUE COPY OF JUDGMENT OF WA NO.1144/2010

EXHIBIT P13 TRUE COPY OF JUDGMENT OF WPC NO.9711/2012

EXHIBIT P14 EXHIBIT P14 TRUE COPY OF GOVERNMENT ORDERS ISSUED TO SIMILARLY SITUATED PERSON 18/8/2010

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE