Kerala High Court

Bindhu.S.S vs Principal Secretary on 15 January, 2021

              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.11768 OF 2019(U)


PETITIONER:
              BINDHU.S.S, AGED 41, D/O. SARASWATHI AMMA,
              MUNDAPLAVILA PUTHENVEEDU, AYOORKONAM, INDIRA NAGAR,
              PEROORKADA, THIRUVANANTHAPURAM - 695 005.

              BY ADVS.
              SRI.R.T.PRADEEP
              SMT.M.BINDUDAS
              SRI.K.C.HARISH
RESPONDENTS:
       1     PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT,
             SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

      2       DIRECTOR OF PUBLIC INSTRUCTION,
              OFFICE OF DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY,
              THIRUVANANTHAPURAM - 695 001.

      3       DISTRICT EDUCATIONAL OFFICER,
              OFFICE OF DISTRICT EDUCATIONAL OFFICER,
              THIRUVANANTHAPURAM - 695 001.

      4       ASSISTANT EDUCATIONAL OFFICER (NORTH),
              OFFICE OF ASSISTANT EDUCATIONAL OFFICER (NORTH),
              THIRUVANANTHAPURAM - 695 001.

      5       CORPORATE MANAGER, CORPORATE MANAGEMENT OF LUTHERAN
              SCHOOLS, INDIA EVANGELICAL LUTHERAN CHURCH,
              THIRUVANANTHAPURAM SYNOD, CALVARY LUTHERAN CHURCH,
              PEROORKADA P.O, THIRUVANANTHAPURAM - 695 005.

      6       REV.MOHANAN, CORPORATE MANAGER, CORPORATE MANAGEMENT
              OF LUTHERAN SCHOOLS, INDIA EVANGELICAL LUTHERAN
              CHURCH, THIRUVANANTHAPURAM SYNOD, CALVARY LUTHERAN
              CHURCH, PEROORKADA P.O, THIRUVANANTHAPURAM - 695 005.

      7       HEADMASTER, CONCORDIA LUTHERAN UPPER PRIMARY SCHOOL,
              PEROORKADA, THIRUVANANTHAPURAM-695 005.

              BY ADV.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.11768 OF 2019(U)

                                2

                         JUDGMENT

Dated this the 15th day of January 2021

The petitioner says that she was

originally appointed as an Upper Primary

School Assistant (U.P.S.A), in Concordia

Lutheran Upper Primary School, Peroorkada -

of which the 6th respondent is the Manager -

in a maternity leave vacancy for the period

from 01.06.2005 to 13.10.2005.

2. She says that this period has been

approved and that she was subsequently

appointed by the Manager in an additional

division vacancy from 05.06.2006 to

31.05.2007; however, approval for the same

has been rejected through Ext.P6 by the 4th

respondent - Assistant Educational Officer

solely for the reason that there was ban of

appointment imposed by the Government,

through its order No.G.O(P) No.317/85/G.Edn WP(C).No.11768 OF 2019(U)

dated 17.08.2005. The petitioner concedes

that the challenge to Ext.P6 ended against

her in Ext.P7 in the year 2013 and that she

had approached this Court by filing WP(C)

No.30920/2014 seeking the claim of Rule 51A

claimant for future vacancies which

culminated in Ext.P8 judgment.

         3.     After       saying         as      afore,        the

   petitioner        through       her    learned       counsel    -

   Sri.R.T.Pradeep           concedes           that     she     had

   issued       Ext.P9       letter        to     the     Manager

   relinquishing           her     claim     under      Rule     51A

Chapter XIVA of the Kerala Education Rules,

but asserts that this was done on account

of the pressure and influence brought on

her by the Corporate Manager who was

ordained as priest of repute. The

petitioner says that, however, she was

unable to obtain a better employment WP(C).No.11768 OF 2019(U)

thereafter and therefore, that she is still

entitled to the benefit under Rule 51A,

based on her 2nd spell of service from

05.06.2006 to 31.05.2007. She, therefore,

prays that this writ petition be allowed,

quashing Exts.P6 and P7; with a

consequential direction to the respondents

to approve her appointment between

05.06.2006 and 31.05.2007. She also prays

that the Manager be directed to appoint her

to a vacancy which is available in the year

2019-2020, construing her as a Rule 51A

claimant.

4. In response to the afore

submissions of the petitioner, the learned

Senior Government Pleader - Sri.P.M.Manoj,

submitted that the petitioner's contentions

cannot be acceded to at all because; for

one, Ext.P7 was issued as early as in the WP(C).No.11768 OF 2019(U)

year 2013, while she has chosen to

challenge it only six years later, in the

year 2019 by filing this writ petition; and

for the second, she cannot claim to be a

Rule 51A claimant, after she had issued

Ext.P9 letter relinquishing such status as

early as on 27.04.2014. He, therefore,

prayed that the writ petition be dismissed.

5. I find substantial force in the

submissions of the learned Senior

Government Pleader, because it is

indubitable that the orders challenged by

the petitioner are of the years 2007 and

2013 respectively. Further, her claim,

edificed on Rule 51A Chapter XIV of the

KER, cannot also be affirmed by this Court

at this time, because evidently, she has

issued Ext.P9 relinquishing such claim as

early as in the year 2014, but has never WP(C).No.11768 OF 2019(U)

chosen to retract from it or to challenge

it appropriately.

6. Normally, therefore, this Court

would not have been persuaded to consider

any of the reliefs sought for by the

petitioner, but taking note of the fact

that her service between 05/06/2006 and

31/05/2007 has been denied approval solely

because the Government had ordered ban of

appointments during that period, I am of

the opinion that she should be given the

lenitude of having the said services

approved, if she is otherwise eligible, on

the strength of the subsequent Government

Order, namely G.O(P)No.10/10/G.Edn. dated

12/01/2010, especially since this order is

designed to help teachers like the

petitioner whose approvals were held up

only on account of the ban ordered by the WP(C).No.11768 OF 2019(U)

Government.

7. I must, however, hasten to add that

even if the petitioner is granted approval

in terms of the directions above, her claim

under Rule 51A is left open to be decided

at appropriate stage, if she stakes claim

for further appointment under the same

management; and all her contentions and

that of the Government are left open to be

pursued by them for such purpose.

         8.    It    is     clarified         that     I     do       not

   propose     to    enter       into    the     merits      of       the

   afore      contentions         affirmatively            at     this

   stage,     because       it    is     conjectural             as    to

whether the petitioner will be offered a

further appointment by the Corporate

Manager or whether she will be able to

secure such on account of the fact that she

has now, admittedly, become overaged for WP(C).No.11768 OF 2019(U)

seeking a fresh appointment.

Resultantly and for the reasons above,

I order this writ petition and set aside

Ext.P7; with a consequential direction to

the competent Secretary of the Government

to reconsider the approval of the

petitioner for the period between

05/06/2006 and 31/05/2007 under the mandate

of G.O(P)No.10/10/G.Edn. dated 12/01/2010,

after affording an opportunity of being

heard to her as also the Corporate Manager

- either physically or through video

conferencing - thus culminating 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 the afore

exercise is completed, the Secretary of the WP(C).No.11768 OF 2019(U)

Government will be entitled to deem that

the Corporate Manager has executed a bond

in terms of the afore mentioned Government

Order, subject to his version.

At this time Shri.R.T.Pradeep, learned

counsel for the petitioner, prayed that his

client's contention as regards future

appointment to the School be allowed to be

pursued, subject to the afore decision.

It is needless to say that if the

petitioner intends to do so, she shall be

at liberty, but her fresh appointment and

approval will be subject to the decision of

the Manager and the Competent Educational

Authorities, particularly in the light of

Ext.P9 relinquishment letter.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC& akv/22.1.2021 WP(C).No.11768 OF 2019(U)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE COPY OF ORDER OF APPOINTMENT DATED 1-

6-2005 BY WHICH PETITIONER IS APPOINTED AS U.P.S.A BY 5TH RESPONDENT

EXHIBIT P2 THE COPY OF ORDER OF APPOINTMENT DATED 14-

10-2005 EXTENDING THE TENURE OF APPOINTMENT FROM 14-10-2005 TO 31-5-2006

EXHIBIT P3 THE COPY OF ORDER OF APPROVAL DATED 25-5-

2012 WHICH IS ENDORSED IN THE APPOINTMENT ORDER DATED 01-06-2005

EXHIBIT P4 THE COPY OF APPOINTMENT ORDER DATED 5-6-

2006 BY WHICH PETITIONER IS APPOINTED AS U.P.S.A IN AN ANTICIPATED ADDITIONAL DIVISION VACANCY

EXHIBIT P5 THE COPY OF STAFF FIXATION ORDER DATED 18-

11-2006 FOR THE ACADEMIC YEAR 2006-2007 WITH RESPECT TO CONCORDIA LUTHERAN UPPER PRIMARY SCHOOL, PEROORKADA

EXHIBIT P6 THE COPY OF ORDER DATED 28-2-2007 BY WHICH THE APPOINTMENT OF PETITIONER AS U.P.S.A IN THE ADDITIONAL DIVISION VACANCY WAS REJECTED BY 4TH RESPONDENT

EXHIBIT P7 THE COPY OF ORDER DATED 13-6-2013 BY WHICH THE GOVERNMENT UPHELD EXHIBIT P6

EXHIBIT P8 THE COPY OF JUDGMENT DATED 20-11-2014 IN WP(C) NO. 30920/2014

EXHIBIT P9 THE COPY OF LETTER DATED 27-10-2014 RELINQUISHING RULE 51A CLAIM BY PETITIONER.