T.Nicy Baby vs The State Of Kerala
2021 Latest Caselaw 1567 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942

                      WP(C).No.28866 OF 2012(G)


PETITIONER:

               T.NICY BABY, AGED 30 YEARS,
               W/O.ABHILASH P.VARGHESE,
               LOWER PRIMARY SCHOOL ASSISTANT, N.L.P.SCHOOL
               (NATIONAL LOWER PRIMARY SCHOOL), MANALY,
               KECHERY, THRISSUR DISTRICT.

               BY ADVS. SRI.V.A.MUHAMMED
                        K.E.HAMSA

RESPONDENTS:

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

      2        THE DISTRICT EDUCATIONAL OFFICER,
               CHAVAKKAD, THRISSUR DISTRICT-680506.

      3        THE ASSISTANT EDUCATIONAL OFFICER,
               KUNNAMKULAM-680 503, THRISSUR DISTRICT.

      4        THE MANAGER, N.L.P.SCHOOL, MANALY,
               KECHERY-680501, THRISSUR DISTRICT.

      5        SMT.PRAJEESH THAMBI, LOWER PRIMARY SCHOOL ASSISTANT,
               N.L.P.SCHOOL, MANALY, KECHERY - 680 501,
               THRISSUR DISTRICT.

               BY ADVS. SRI.T.ISSAC
                        SRI.V.MADHUSUDHANAN
                        SRI.PRAMJI PAUL VAZHAPPILLY
                        SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD         ON
15.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.28866 OF 2012(G)

                                 -2-



                              JUDGMENT

Dated this the 15th day of January 2021

The petitioner says that she was

appointed as a Lower Primary School Assistant

(LPSA) in the National Lower Primary School,

Kechery, Thrissur - of which the 4th

respondent is the Manager - and that she was

accommodated against an additional division

vacancy for the academic year 2006 - 2007.

2. She says that she has been continuing

in service without break ever since

05.06.2002 and that on account of the

retirement of the Headmistress of the School

on 31.03.2010, a vacancy of Lower Primary

School Assistant arose w.e.f. 01.06.2010 and

that she ought to have been adjusted against

the said vacancy in view of the various WP(C).No.28866 OF 2012(G)

judgments, including in Geetha S. v. Geo

Thomas K. and Others [2009 (4) KHC 296 (DB)].

She alleges that the Manager, however, did

not do so, but that he appointed the 5 th

respondent and contends that this is against

Rule 51A Chapter XIVA of the Kerala Education

Rules (KER).

3. The petitioner says that she,

therefore, moved the 3rd respondent -

Assistant Educational Officer at first, but

that when it was rejected, she was

constrained to file a statutory Revision

before the Government, followed by W.P.

(C).No.3303/2011 before this Court, which had

been disposed of with a direction to the

Government to consider and dispose of the

said Revision.

4. The petitioner says that in purported

compliance of the directions of this Court,

the Government has now issued Ext.P10 order, WP(C).No.28866 OF 2012(G)

rejecting the proposal for approval of her

appointment w.e.f. 05.06.2002, solely for the

reason that the Manager has not executed a

bond, as is required under G.O.(P)

No.10/10/G.Edn dated 12.01.2010.

5. The petitioner, therefore, prays that

Ext.P15 be set aside, particularly because,

in similar circumstances, this Court has

issued Ext.P14 judgment, directing

consideration of the claim of the petitioners

therein - who are similarly situated -

affirmatively in terms of the directions in

G.O.(P).No.10/10/G.Edn 12.01.2010.

6. Sri.P.M.Manoj - the learned Senior

Government Pleader, submitted that a counter

affidavit has been filed on behalf of the

first respondent, wherein, it has been

averred that the fourth respondent had

appointed the petitioner in an anticipated

additional division vacancy w.e.f. WP(C).No.28866 OF 2012(G)

05.06.2006, which was, however, rejected

because the proposal had not been submitted

within the time stipulated as per Rule 8(1)

Chapter XIVA of the KER. He affirmed that a

vacancy arose in the School subsequently, on

account of the retirement of the Headmistress

and that it was filled up by promoting the

senior most LPSA, which give rise to a

vacancy in such post.

7. The learned Senior Government Pleader

submitted that the 4th respondent - Manager

instead of appointing the petitioner in the

afore mentioned vacancy, appointed the 5th

respondent, who was a fresh hand, which led

the petitioner to approach this Court by

filing W.P.(C). No. 31331/2010 seeking

approval, and same was disposed of with a

direction to the 3rd respondent to consider

her representation. He submitted that the 3rd

respondent, pursuant to the afore directions, WP(C).No.28866 OF 2012(G)

conducted a hearing and issued orders

rejecting the appointment of the 5th

respondent as LPSA, because it had been made

over-looking the rightful claim of the

petitioner. He concluded his submissions by

saying that the Government has gone through

all the relevant aspects and inputs that are

applicable and found that since the

petitioner was appointed in anticipated

additional vacancy and since the said vacancy

was not sanctioned - the Manager having not

executed the bond as stipulated in G.O.

(P).No.10/10/G.Edn dated 12.01.2010 - her

approval could not be granted, since there

was no sanctioned post to accommodate her

w.e.f. 05.06.2006. He, therefore, prayed

that this writ petition be dismissed.

8. I have considered the afore

submissions of the learned Senior Government

Pleader very carefully and have also examined WP(C).No.28866 OF 2012(G)

the various materials available on record.

9. It is evident from the impugned

orders that the petitioner's approval has not

been granted solely because the Manager of

the School had not executed a bond in terms

of G.O.(P).No.10/10/G.Edn dated 12.01.2010.

However, it is without doubt that this Court

has, in a catena of judgments, directed

consideration of the approval of appointments

in such similar matters, deeming that the

Manager had executed a bond in terms of the

afore-mentioned Government Order. The

Educational Authorities, however, has not

done so, and have rejected the petitioner's

approval merely on the ground that no such

bond has been executed by the Manager.

10. I am, therefore, certainly of the

view that the impugned orders are improper,

particularly when the question of the Manager

deemed to have executed a bond has not been WP(C).No.28866 OF 2012(G)

considered by the Authorities until now.

Consequently, I am of the firm view that the

petitioner is entitled to have her case

considered on such terms.

In the afore circumstances and for the

reasons above, I allow this writ petition and

set aside Ext.P15 Government Order; with a

consequential direction to the competent

Secretary of the Government to reconsider the

Revision of the petitioner, after affording

her, as well as the Manager an opportunity of

being heard - either physically or through

video conferencing - thus culminating in an

appropriate order thereon, as expeditiously

as 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 advert to the impact of WP(C).No.28866 OF 2012(G)

G.O.(P).No.10/10/G.Edn dated 12.01.2010, and

will be at liberty, subject to his version,

to deem that the Manager has executed the

bond in terms of the said Government Order.

After I dictated this judgment, the

learned counsel for the petitioner submitted

that since the petitioner is a Rule 51A

claimant, it may not be necessary for the

Manager to execute a bond in terms of the

aforementioned Government Order.

Needless to say, if the petitioner is

found to be a Rule 51A claimant, as is

claimed by her through Ext.P1 - on account of

the prior approved service - then this

contention will also be kept in mind by the

Secretary concerned, while the afore

mentioned exercise is completed.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C).No.28866 OF 2012(G)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE STAFF FIXATION ORDER 2006-

2007 DATED 28/11/2006.

EXHIBIT P3 TRUE COPY OF THE STAFF FIXATION ORDER 2007-

2008 DATED 06/11/2007.

EXHIBIT P4 TRUE COPY OF THE STAFF FIXATION ORDER 2008-

2009 DATED 07/10/2008.

EXHIBIT P5 TRUE COPY OF THE GO(MS) NO.275/99/G.EDN.

DATED 09/11/1999 OF THE GOVERNMENT.

EXHIBIT P6 TRUE COPY OF THE DECISION REPORTED IN 2009(4)KHC 296 DATED 30/09/2009.

EXHIBIT P7 TRUE COPY OF THE APPEAL FILED BEFORE THE 3RD RESPONDENT DATED 24/09/2010.

EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WPC NO.31330/2010 OF THIS HON'BLE COURT DATED 19/10/2010.

EXHIBIT P9 TRUE COPY OF THE ORDER NO. E-3243 / 2010/K.DIS. DATED 27/11/2010 OF THE 3RD RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 07/12/2010.

EXHIBIT P11 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 05/06/2006.

EXHIBIT P12 TRUE COPY OF THE ORDER NO. E-6223/2011 DATED 28/12/2011 OF THE 3RD RESPONDENT.

EXHIBIT P13 TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 20/06/2012.

EXHIBIT P14 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC NO.3303/2011 DATED 27/06/2012.

EXHIBIT P15 TRUE COPY OF THE GO(RT) NO.5377/2012/G.EDN.

DATED 09/11/2012 OF THE GOVERNMENT. WP(C).No.28866 OF 2012(G)

EXHIBIT P16 TRUE COPY OF THE GO(RT) NO.622/11/G.EDN.

DATED 14/02/2011 OF THE GOVERNMENT.

RESPONDENT'S/S EXHIBITS : NIL.

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