Kerala High Court
The Assistant Educational ... vs The Assistant Educational ... on 22 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942
WA.No.2329 OF 2018
AGAINST THE JUDGMENT DATED 23.2.2018 IN WP(C) 1658/2016(F) OF HIGH
COURT OF KERALA
APPELLANTS/RESPONDENTS 1 TO 4 IN WPC:
1 THE ASSISTANT EDUCATIONAL OFFICER,
PERINTHALMANNA-679322.
2 THE DISTRICT EDUCATIONAL OFFFICER,
MALAPPURAM-676505.
3 THE DIRECTOR OF PUBLIC INSTRUCTION,
THIRUVANANTHAPURAM-695001.
4 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY,
GENERAL EDUCATION DEPARTMENT,
THIRUVANANTHAPURAM-695001.
BY SRI. A. J. VARGHESE-SR. G.P.
RESPONDENTS/PETITIONER & 5TH RESPONDENT IN WPC:
1 VIVEK. V,AGED 26, S/O.KUNHIRAMAN, U.P.S.A., AIDED
MAPPILA UPPER PRIMARY SCHOOL, IRAVIMANGALAM, (VIA)
PERINTHALMANNA.
2 THE MANAGER, AIDED MAPPILA UPPER PRIMARY SCHOOL,
IRAVIMANGALAM, PERINTHALMANNA-679322.
R1 BY ADV. SRI.GEORGE ABRAHAM(BY ORDER)
R2 BY ADV. SRI.V.A.MUHAMMED
R2 BY ADV. SRI.M.SAJJAD
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.2329/2018
2
JUDGMENT
Dated this the 22nd day of January 2021
Shaffique, J
This appeal has been filed by the State and its Officers
challenging the judgment dated 23.2.2018 in W.P.(C).No.1658/2016 by
which the learned Single Judge issued a direction to approve the
appointment of the petitioner and to grant him all consequential
benefits.
2. The petitioner was appointed by the Manager with effect
from 1.6.2010 as per Ext.P1. But the approval was granted only from
1.6.2011. Though several representations were submitted by the
petitioner, ultimately the claim had been rejected on the ground that
the Manager did not execute a bond for appointing protected teachers
as contemplated under GO(P) No.10/10/Gen.Edn dated 12.1.2010.
3. There is no dispute about the fact that this Court had
consistently held that even though the Manager has not executed a
bond, that cannot be a reason for denying approval and salary to the
teachers appointed against a regular sanctioned vacancies. The
learned Single Judge also placed reliance on the Division Bench
judgment of this Court in W.A.No.2592/2015.
4. The learned Government Pleader however challenged the
W.A.No.2329/2018
impugned judgment placing reliance on the reply affidavit filed on
20.11.2019 along with certain additional documents and tried to
emphasise the point that the petitioner could not have been appointed
as per Ext.P1 in the vacancy of Smt. Baby Girija who was working at
that time as UPSA, whereas the petitioner was appointed as LPSA.
5. The documents relied upon by the learned Government
Pleader indicates that there had been certain difference in the
sanctioned post as far as UPSA is concerned. We don't think that we
will be justified in considering those matters at this stage of the
proceedings as the only reason stated for denying approval of the
petitioner was that the bond was not executed by the Manager. It is
trite that respondents cannot improve their case which has not been
stated in the impugned orders.
6. Learned Government Pleader would however submit that
approval of Sri.Vivek V, by including him in the teachers package was
apparently a mistake and the Government should be given an
opportunity to correct the same invoking Rule 8A of Chapter XIVA of
KER. If any such procedure is available with the Government, nothing
prevents the Government from invoking the same. But such a
procedure shall be invoked only after notice to the concerned parties
and strictly in accordance with law.
7. Learned counsel appearing on behalf of the 1st
respondent/writ petitioner would submit that as far as the appointment
W.A.No.2329/2018
of petitioner is concerned, there cannot be any dispute at all. The
Government had approved various appointments taking into account
the total vacancies without any bifurcation as either LPSA or UPSA.
The learned counsel appearing for the Manager also brought to our
notice a recent Government Order dated 17.2.2020, wherein also the
Government had taken such a view.
8. Be that as it may, having regard to the factual aspects
involved in the case and the limited scope of judicial exercise involved
in the matter, we don't find any error being committed by the learned
Single Judge in issuing the impugned judgment. We make it clear that
nothing prevents the Government from invoking Rule 8A of Chapter
XIVA KER, if at all any mistake had occurred. We also make it clear
that it shall be deemed that the Manager has executed the bond.
The writ appeal is disposed of accordingly.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
GOPINATH P.
kp True copy JUDGE
P.A. To Judge
W.A.No.2329/2018
APPENDIX
APPELLANTS' EXHIBITS:
ANNEXURE A1(1) TRUE COPY OF THE STAFF FIXATION ORDER FOR
THE YEAR 2005-06.
ANNEXURE A1(2) TRUE COPY OF THE DETAILS OF TEACHERS DURING
THE ACADEMIC YEAR 2005-06.
ANNEXURE A1(3) TRUE COPY OF THE STAFF FIXATION ORDER FOR
THE ACADEMIC YEAR 2006-07.
ANNEXURE A1(4) TRUE PHOTOCOPY OF THE APPOINTMENT ORDER
DATED 5.6.2006 OF SMT. SHENCY AUGUSTINE.
ANNEXURE A1(5) TRUE PHOTOCOPY OF THE APPOINTMENT ORDER OF
SHRI PADMARAJAN.
ANNEXURE A1(6) TRUE PHOTOCOPY OF THE STAFF LIST FOR THE
ACADEMIC YEAR 2006-07.
ANNEXURE A1(7) TRUE PHOTOCOPY OF THE STAFF FIXATION ORDER
FOR THE ACADEMIC YEAR 2007-08.
ANNEXURE A1(8) TRUE PHOTOCOPY OF THE LIST OF TEACHERS FOR
THE ACADEMIC YEAR 2007-08.
ANNEXURE A1(9) TRUE PHOTOCOPY OF THE STAFF FIXATION ORDER
FOR THE YEAR 2008-09.
ANNEXURE A1(10) TRUE PHOTOCOPY OF THE DETAILED LIST OF
TEACHERS FOR THE ACADEMIC YEAR 2008-09.
ANNEXURE A1(11) TRUE PHOTOCOPY OF THE STAFF FIXATION ORDER
FOR THE ACADEMIC YEAR 2009-10.
ANNEXURE A1(12) TRUE PHOTOCOPY OF THE DETAILS OF THE STAFF
LIST FOR THE ACADEMIC YEAR 2009-10.
ANNEXURE A1(13) TRUE PHOTOCOPY OF THE STAFF FIXATION ORDER
FOR THE ACADEMIC YEAR 2010-11.
ANNEXURE A1(14) TRUE PHOTOCOPY OF THE DETAILS OF THE STAFF
LIST FOR THE ACADEMIC YEAR 2010-11.
ANNEXURE A1(15) TRUE PHOTOCOPY OF THE STATEMENT OF FIXATION
OF PAY SUBMITTED BY SMT. BABY GIRIJA.
