Sheeja P.Kurian vs The State Of Kerala
2021 Latest Caselaw 14413 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                         WP(C) NO. 2920 OF 2016
PETITIONER:

           SHEEJA P.KURIAN
           AGED 43 YEARS
           W/O. JOHN SAMUEL, LOWER PRIMARY SCHOOL ASSISTANT,
           PARUMALA SEMINARY L.P SCHOOL, PARUMALA,
           PATHANAMTHITTA DISTRICT.

           BY ADV SRI.S.SUBHASH CHAND



RESPONDENTS:

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

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

     3       THE DISTRICT EDUCATIONAL OFFICER
             TIRUVALLA, PATHANAMTHITTA DISTRICT - 689 101.

     4       THE ASSISTANT EDUCATIONAL OFFICER
             TIRUVALLA, PATHANAMTHITTA DISTRICT - 689 101.

     5       THE CORPORATE MANAGER
             CATHOLICATE & M.D SCHOOLS, DEVALOKAM, KOTTAYAM -
             686 038.



           SRI. P.M.MANOJ - SR.GP


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   13.07.2021,   THE    COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 2920 OF 2016                 2



                                 JUDGMENT

A Lower Primary School Teacher in "Parumala

Seminary L.P. School, Parumala" has approached

this Court impugning Ext.P11 order of the

Government, which finds favour with the

proceedings of the Educational Authorities

denying approval to her appointment with effect

from 29/10/2012 on the ground that, since the

vacancy in question arose on abolition of the

shift system in the Schools, only a protected

teacher or a retrenched teacher could have been

accommodated.

2. The petitioner says that the view taken

by the Government in Ext.P11, as also in Exts.P2,

P3 and P4 of the Educational Authorities, is

completely untenable, particularly because there

were no retrenched teachers awaiting appointment

in the School and no list of protected teachers

was forwarded by the Educational Authorities to

the Manager at any point of time. The petitioner

asserts that, therefore, the conclusion in

Ext.P11, that only a protected teacher or a

retrenched teacher could have been appointed in

the vacancy in question, cannot hold water; and

thus prays that it be set aside.

3. I have heard Shri.Subhash Chand, learned

counsel appearing for the petitioner and

Shri.P.M.Manoj, learned Senior Government

Pleader, appearing for the official respondents.

4. Shri.P.M.Manoj attempted to support

Ext.P11 by submitting that Government had issued

an Order bearing number G.O.(P)No.92/10/G.Edn.

dated 04/06/2010, making it clear that all

vacancies which arise on account of abolishment

of the shift system can be filled up only by

retrenched teachers in the same School or by

accommodating protected teachers. He submitted

that since the Manager of the School did neither

of this, but accommodated the petitioner to the

said vacancy, it cannot be found to be legal and

therefore, that the Educational Authority and

Government were justified in issuing the impugned

orders. He, therefore, prayed that this writ

petition be dismissed.

5. Even when I hear the learned Senior

Government Pleader on the afore lines, the fact

remains that it is expressly conceded that the

School did not have any retrenched teachers at

the relevant time. As regards protected teachers,

the law is now well settled that unless the

Educational Authorities had furnished a list of

such teachers to the Manager, the rigour of the

provisions of the Government Order cannot be

applied. I am fortified in my view by the

judgments of this Court in Nadeera vs. State of

Kerala [2011(3) KLT 790] and Moosakutty Vs. DEO,

Wandoor [2009 (3) KLT 863]. .

6. I, therefore, asked the learned Senior

Government Pleader as to whether there is

anything on record to show that the competent

Educational Authorities had furnished a list of

protected teachers to the Manager at the relevant

time and whether any such teachers were awaiting

deployment in the Educational District or in the

nearby Districts. The learned Senior Government

Pleader fairly submitted that there is no such

whisper either in Ext.P11 or in the other

impugned orders and that he is, therefore, unable

to submit affirmatively either way before this

Court.

7. When I consider the afore submissions, it

is clear that the rigour of the Government Order

mentioned in Ext.P11 cannot apply to the case at

hand because; for one, there were no retrenched

teachers in the School - which fact is admitted;

and for the second, there is nothing to establish

that a list of protected teachers had been given

to the Manager.

In the afore circumstances, I am of the view

that petitioner is entitled to succeed and

consequently order this writ petition and set

aside Exts.P2, P3, P4 and P11; with a direction

to the 4th respondent - Assistant Educational

Officer to reconsider the petitioner's proposal

for approval of her appointment with effect from

29/10/20212 and issue appropriate orders thereon

as expeditiously as is possible, but not later

than one month from the date of receipt of a copy

of this judgment.

It is needless to say that once such approval

is granted to the petitioner, she will also be

entitled to all consequential benefits arising

from the same, including for future appointments

under the provisions of Rule 51A, Chapter XIVA

of the Kerala Education Rules, if she is

otherwise eligible for the same.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/14.7

APPENDIX OF WP(C) 2920/2016

PETITIONER ANNEXURE

EXHIBIT P1 - TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DT. 29.10.2012.

EXHIBIT P2 - TRUE COPY OF THE ORDER OF THE ASSISTANT EDUCTIONAL OFFICER DT. 16.11.2012.

EXHIBIT P3 - TRUE COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER DT. 18.3.2013.

P4 - TRUE COPY OF THE ORDER NO.F3/64784/13/DPI/K.DIS DT. 02.12.2013 OF THE 2ND RESPONDENT.

EXHIBIT P5 - TRUE COPY OF THE STAFF FIXATION ORDER 2010-2011 DT. 04.7.2011.

EXHIBIT P6 - TRUE COPY OF THE LETTER NO. 60930/J2/11/G.EDN DT. 25.10.2011 OF THE GOVERNMENT.

EXHIBIT P7 - TRUE COPY OF THE LETTER NO. 44977/J2/2013/G.EDN DT. 14.10.2015 OF THE GOVERNMENT.

EXHIBIT P8 - TRUE COPY OF THE RELEVANT PAGES OF G.O(P) NO. 213/2015/G.EDN DT. 06.8.2015 OF THE GOVT.

EXHIBIT P9 - TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DT. 30.5.2015.

EXHIBIT P10 - TRUE COPY OF THE REVISION PETITION SUBMITTED BEFORE THE GOVERNMENT DT. 17.8.2015.

EXHIBIT P11 - TRUE COPY OF THE GO(RT) NO. 6043/2015/G.EDN DT. 29.12.2015 OF THE GOVERNMENT.

EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN WPC NO-6805/2- 017 DATED 8.4.2019