Ambili Vasudevan Karayil vs State Of Kerala
2021 Latest Caselaw 1743 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.18343 OF 2020(P)


PETITIONER:

               AMBILI VASUDEVAN KARAYIL, AGED 49 YEARS
               W/O. SUCHIND, LPSA, AMUP SCHOOL, KOORIKUZHI,
               THRISSUR.

               BY ADVS.
               SRI.K.B.GANGESH
               SMT.SMITHA CHATHANARAMBATH
               SMT.ATHIRA A.MENON

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY THE SECRETARY TO GOVERNMENT,
               DEPARTMENT OF GENERAL EDUCATION,
               THIRUVANANTHAPURAM - 695001.

      2        THE ASSISTANT EDUCATIONAL OFFICER,
               AEO OFFICE, VALAPPAD, THRISSUR- 680567.

               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:
 WP(C).No.18343 OF 2020(P)

                                          2


                                  JUDGMENT

Dated this the 18th day of January 2021

The petitioner is stated to be working as a Lower

Primary School Teacher (LPSA) in the AMUP School,

Koorikuzhi, Thrissur and has approached this Court

impugning Exts.P4 and P5, which denies approval to her

appointment solely for the reason that the Manager of the

School has not executed a bond in terms of G.O.

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

2. The petitioner asserts that the reasons stated in

Exts.P4 and P5 are untenable and not applicable to her, since

she is protected by the declarations of law made by this Court

in Exts.P6 and P7 judgments, wherein, it has been held that

the appointment of Teachers like the petitioner are liable to

be approved, deeming that the Manager has executed a bond

in terms of the aforementioned Government Order.

3. The learned counsel for the petitioner,

Sri.K.B.Gangesh, adds to the above submissions by saying

that, in fact, his client is not even governed by G.O.

(P)No.10/10/G.Edn. dated 12.01.2010, since in the light of

Ext.P3 order passed by the second respondent revising the WP(C).No.18343 OF 2020(P)

fixation of staff of the School for the years 2004-05 to 2008-

09, his client cannot be treated as an appointee into an

additional vacancy that arose in the academic year 2009-10

and that she has been accommodated into a retirement

vacancy during the academic year 2008-09 itself. The learned

counsel alleges that Exts.P4 and P5 orders were issued

without even considering these facts; and thus prays that

Exts.P4 and P5 be set aside and the respondents be directed

to approve the appointment of his client with effect from the

date of her initial appointment.

4. The learned Senior Government Pleader,

Sri.P.M.Manoj, submitted that a counter affidavit has been

filed on record wherein the following has been stated:

"2. The above Writ Petition is preferred by the LPSA of A.M.U.P. School, Koorikuzhi, Thrissur. The grievance voiced in the Writ Petition is the non- approval of appointment during the academic year 2009-10 and 2010-11 in the light of Exhibit P3 without service break and the issuance of Exhibit P4 order and seeks for a direction to quash Exhibit P4 and P5 orders passed by the 1st and 2nd respondents respectively.

3. The petitioner was originally appointed as LPST w.e.f. 04.07.2000 in regular basis and the same was approved by this respondent. Thereafter in the year 2004-05 the Super Check Cell visited the School and verified the strength and found bogus admissions and directed to abolish excess divisions and to revise the staff fixation order. The Director of Public Instructions abolished five posts of primary teachers.

That order was challenged by the petitioner before WP(C).No.18343 OF 2020(P)

this Hon'ble court and ended up in Exhibit P1 Judgment.

4. On the basis of provision contained in G.O.(P) No.199/2011/G.Edn dated 01.10.2011 by including the petitioner in teachers' package and approving her appointment w.e.f 01.06.2011. As per G.O.(Rt) N0.441/2011 the staff fixation order was revised and additional division was allowed in compliance with G.O.(P) No.10/10 G.Edn dated 12.01.2010. Accordingly Manager submitted the proposal for the appointment of the petitioner from 01.06.2009 onwards, whereas not executed the bond as contemplated under G.O.(P) No.10/10 G.Edn dated 12.01.2010. Therefore the said proposal was rejected by this respondent. On including the petitioner in teachers package the appointment was approved w.e.f. 01.06.2011 as per Order No.C/4945/2011 dated 23.12.2011. It is an admitted fact that even after applying 1:40 ratio to retain the petitioner as the petitioner was not eligible for protection since she was appointed in the year 1999 and the appeal preferred against the said rejection of approval was also rejected. Therefore proposal given by the Manager for additional division during the academic year 2009-10 can be treated as fresh proposal. In fact the petitioner was thrown out from the academic year 2004-05. Therefore petitioner was not entitled for continued approval of appointment with effect from the academic year 2009-10 in the absence of bond executed by the Manager for appointment of protected teacher in the additional divisional vacancy ratio 1: 1.

5. The petitioner had preferred a petition before the Government for continued approval of service without break. In Exhibit P4 order Government also considered the matter and petitioner is accommodated in an additional division vacancy that arose in the School during the academic year 2009-10. In the said situation the Manager of the Aided School is bound to execute bond. At this juncture it is to submit that the appeal preferred by the Government before the Hon'ble Supreme Court in this matter is pending consideration and the order will be passed subject to the result of Special Leave Petition. This is the circumstance in which Exhibits P4 and P5 orders are issued. Hence there is no arbitrariness as alleged WP(C).No.18343 OF 2020(P)

by the petitioner in not approving the appointment with effect from 2009-10 in the additional division vacancy."

5. The learned Senior Government Pleader further

submitted that since the proposal given by the Manager for

additional division during the academic year 2009-10 can only

be treated as a fresh proposal, the petitioner was not eligible

for continued approval of appointment with effect from the

year 2009-10 in the absence of the bond executed by the said

Manager. He, therefore, prayed that this writ petition be

dismissed.

6. I have considered the afore submissions and have also

examined the materials available on record.

7. It is indubitable that the petitioner's contention is not

merely based on G.O.(P)No.10/10/G.Edn. Dated 12.01.2010,

but she also has a specific case that she cannot be treated as

a teacher who has been appointed against the additional

division vacancy. However, from Exts.P4 and P5, I do not see

any of such matters being considered by the competent

Educational Authorities or by the Government and in fact,

even on the question of execution of bond by the Manager,

nothing has been mentioned therein as to why it could not be WP(C).No.18343 OF 2020(P)

presumed that he has executed it, as has been permitted by

this Court in various judgments before.

8. I am, therefore, of the firm view that Exts.P4 and P5

cannot find favour in law and that the Government must

reconsider the matter, taking note of the afore submissions of

the petitioner and after hearing her.

In the afore circumstances, I order this writ petition and

set aside Ext.P4; with a consequential direction to the

Government to reconsider the claim of the petitioner, taking

note of her contention that she ought not to have been

construed as a Teacher who has been appointed against an

additional division vacancy on account of Ext.P3 staff fixation

order and also by giving her the benefit of G.O.

(P)No.10/10/G.Edn. Dated 12.01.2010, after considering

whether the Manager can be deemed to have executed a bond

in terms of the said order.

Resultantly, the respondents are directed to complete

the afore exercise as expeditiously as is possible, but not later

than three months from the date of receipt of a copy of this

judgment, after affording an opportunity of being heard to the

petitioner and the Manager of the School - either physically WP(C).No.18343 OF 2020(P)

or through video conferencing - leading to an appropriate

decision thereon, during which process the competent

Secretary of the Government will be entitled to deem that the

Manager has executed a bond in terms of G.O.

(P)No.10/10/G.Edn. Dated 12.01.2010, subject to his version.

                                               Sd/- DEVAN RAMACHANDRAN

    Stu                                                 JUDGE
 WP(C).No.18343 OF 2020(P)





                               APPENDIX
    PETITIONER'S EXHIBITS:

    EXHIBIT P1        TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
                      COURT IN WP(C) NO. 16379/2009 DATED
                      04.03.2016.

    EXHIBIT P2        TRUE COPY OF THE STAFF FIXATION ORDER ISSUED

BY THE 2ND RESPONDENT ON 18.07.2011 FOR THE ACADEMIC YEAR 2009-10.

EXHIBIT P3 TRUE COPY OF THE ORDER DATED 03.09.2016 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P4 TRUE COPY OF GOVERNMENT ORDER NO.2099/2019/G.EDN DATED 30.06.2019.

EXHIBIT P5 TRUE COPY OF ORDER NO.C/4960/18/L.DIS DATED 04.11.2019 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WP(C) NO.

10607/2020 DATED 28.07.2020.

EXHIBIT P7 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WA NO.931/2016 DATED 24.07.2017.