Midhun Roshan vs The State Of Kerala
2021 Latest Caselaw 1737 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                      WP(C).No.21389 OF 2013(W)


PETITIONER:

               MIDHUN ROSHAN, AGED 31 YEARS,
               W/O.SOJEN JOSE,
               HIGH SCHOOL ASSISTANT (ENGLISH),
               ST.JOSEPH'S HIGH SCHOOL, MATHILAKAM,
               THRISSUR DISTRICT.

               BY ADVS.
               SRI.V.A.MUHAMMED
               SRI.M.SAJJAD

RESPONDENTS:

      1        THE STATE OF KERALA
               REPRESENTEDBY THE SECRETARY TO GOVERNMENT,
               GENERAL EDUCATION DEPARTMENT, SECRETRIAT,
               THIRUVANANTHAPURAM-695 001.

      2        THE DIRECTOR OF PUBLIC INSTRUCTIONS
               JAGATHY, THIRUVANANTHAPURAM-695 014.

      3        THE DEPUTY DIRECTOR OF EDUCATION
               THRISSUR AT AYYANTHOLE-680 003.

      4        THE DISTRICT EDUCATIONAL OFFICER
               IRINJALAKUDA, THRISSUR DISTRICT-680 121.

      5        THE MANAGER, ST.JOSEPH'S HIGH SCHOOL,
               MATHILAKAM, THRISSUR DISTRICT-680 685.


               SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 21389/13
                                      2


                                   JUDGMENT

The petitioner says that she was appointed

as a High School Teacher (HST) against various

leave vacancies in the year 2006-2009 and that

they were all approved through Exts.P1, P2 and

P3 and that she was subsequently appointed as

an Upper Primary School Teacher (UPST) on

12.06.2009 and was thereafter promoted as a

High School Teacher with effect from

01.06.2010. She says that, however, her

promotion as HST in English was approved only

with effect from 01.06.2011, citing the reason

that there was a ban of appointments during

the period when she was initially engaged.

2. The learned counsel for the petitioner

- Sri.M.Sajjad, asserts that the

aforementioned ban is not applicable to the

approval of promotion of teachers under Rule

43 Chapter XIVA of the Kerala Education Rules

(KER for short) or to whose appointments are WPC 21389/13

made under Rule 51A of the said Rules. He

asserted that his client is a Rule 43 claimant

and therefore, that even going by the order of

ban, her appointment could not have been

denied approval.

3. As an alternative contention,

Sri.Sajjad submitted that, in any event of the

matter, going by GO(P)No.10/10/G.Edn. dated

12.01.2010, which lifted the ban of

appointments, his client ought to have been

given the benefit of approval of her

appointment thereunder, after construing that

the Manager had executed a bond in terms of

the conditions therein. He, therefore, prayed

that Ext.P17, which is the final order of the

Government, be set aside and his client's

proposal for appointment be directed to be re-

considered in view of her contention that she

is a Rule 43 claimant, who has got a superior

right than a protected teacher; and also that WPC 21389/13

she is entitled to be granted the benefit of

the afore Government Order.

4. In response, the learned Senior

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

that Ext.P17 has been issued by the Government

after considering all the relevant aspects and

after verifying the various appointments made

by the Manager of the School. He submitted

that while working as a UPST, the petitioner

was appointed as an HST with effect from

01.06.2010, even though the Manager had

executed a bond that he will appoint equal

number of protected teachers. He submitted

that it is, therefore, that the appointment of

the petitioner with effect from 01.06.2010 as

HST was not approved, while such benefit has

been granted with effect from 01.06.2011. He,

therefore, prayed that this Writ Petition be

dismissed.

5. Even when I hear the learned Senior WPC 21389/13

Government Pleader on the afore lines, the

fact remains that the petitioner's specific

contention is that she is a Rule 43 promotee,

who is entitled to superior status than a

protected teacher. She relies on various

judgments in substantiation and adds that

since the Manager had already executed a bond

in terms of GO(P)No.10/10/G.Edn, dated

12.01.2010, her appointment deserves to be

approved on such basis also.

6. However, when I examine Ext.P17 Order,

it is noticed that these aspects have not been

considered by the Government and that all

which is stated therein is that a senior

claimant, namely Sri.K.G.Antony, was included

in the teacher's package and approved with

effect from 01.06.2011 and therefore, that the

appointment of the petitioner, who is junior

to him, with effect from 12.06.2009 as UPST

cannot be approved. It is nevertheless WPC 21389/13

conceded in Ext.P17 that the Manager had

executed a bond as per GO(P)No.10/10/G.Edn.

dated 12.01.2010 to the effect that he will

appoint a protected teacher on 01.06.2010; but

the question of the petitioner's claim under

Rule 43 has not been even adverted to in the

said order.

7. I am, therefore, of the firm view that

Ext.P17 cannot find favour in law and that the

Government must reconsider the matter, thus

leading to a fresh order.

In the afore circumstances, I order this

writ petition and set aside Ext.P17; with a

consequential direction to the competent

Secretary of the Government to reconsider the

Revision filed by the petitioner, after

affording an opportunity of being heard to her

and to the Manager - either physically or

through video-conferencing - thus culminating

in an appropriate order thereon as WPC 21389/13

expeditiously as is possible, but not later

than three months from the date of receipt of

a copy of this judgment.

I make it clear that even though I have

recorded the contentions of the petitioner as

afore, I have not considered them on their

merits and that it will be up to the competent

Secretary of the Government to take an

appropriate decision, adverting also to the

various precedents that may be placed before

him by the petitioner or by the Manager.

Sd/-

                                         DEVAN RAMACHANDRAN
      RR                                        JUDGE
 WPC 21389/13



                           APPENDIX
      PETITIONER'S/S EXHIBITS:

      EXHIBIT P1        EXHIBIT P1.TRUE OF THE APPOINTMENT
                        ORDER OF THE PEITIONER DATED
                        5/6/2006.

      EXHIBIT P2        EXHIBIT P2.TRUE OF THE APPOINTMENT
                        ORDER OF THE PEITIONER DATED
                        6/6/2007.

      EXHIBIT P3        EXHIBIT P3.TRUE OF THE APPOINTMENT
                        ORDER OF THE PEITIONER DATED
                        11/6/2008

      EXHIBIT P4        EXHIBIT P4.TRUE OF THE DECLARATION
                        (BOND) OF THE MANAGER.

      EXHIBIT P5        EXHIBIT P5.TRUE OF THE ORDER NO.B4-

4580/11/L.DIS DATED 4/11/2011.

EXHIBIT P6 EXHIBIT P6.TRUE OF THE ORDER OF THE DEPUTY DIRECTOR OF EDUCATION DATED 7/2/2012.

EXHIBIT P7 EXHIBIT P7.TRUE OF THE ORDER NO.B2-

2260/12/K.DIS DATED 29/2/2012 OF THE DEPUTY DIRECTOR.

EXHIBIT P8 EXHIBIT P8.TRUE OF THE APPOINTMENT ORDER OF THE PEITIONER DATED 1/6/2010.

EXHIBIT P9 EXHIBIT P9.TRUE OF THE DECISION REPORTED IN 2011 (4) KLT 365 DATED 29/9/20111.

EXHIBIT P10 EXHIBIT P10.TRUE OF THE JUDGMENT IN WPC NO.15525/2010-M, DATED 30/11/2011.

EXHIBIT P11 EXHIBIT P11.TRUE OF THE JUDGMENT IN WPC NO.34604/2008-T, DATED 18/10/2011.

WPC 21389/13

EXHIBIT P12 EXHIBIT P12.TRUE OF THE JUDGMENT IN WPC NO.11779/2010-V, DATED 25/1/2012.

EXHIBIT P13 EXHIBIT P13.TRUE OF THE JUDGMENT IN WPC NO.3689/2011 DATED 3/11/2011.

EXHIBIT P14 EXHIBIT P14.TRUE OF THE JUDGMENT IN WPC NO.26543/2010 DATED 30/11/2011.

EXHIBIT P15 EXHIBIT P15.TRUE OF THE G.O.

(RT)NO.622/11/G.EDN DATED 14/2/2011 OF THE GOVERNMENT

EXHIBIT P16 EXHIBIT P16.TRUE OF THE DECISION REPORTED IN 1993 (2) KLT SHORT NOTES 27 DATED 2/8/1993.

EXHIBIT P17 EXHIBIT P17.TRUE OF THE G.O.

(RT)NO.2922/2013/G.EDN DATED 15/7/2013 OF THE GOVERNMENT