Relmy Alet Xavier vs Secretary To Government
2021 Latest Caselaw 14571 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
         WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                          WP(C) NO. 3357 OF 2021
PETITIONER:

              RELMY ALET XAVIER, AGED 40 YEARS
              W/O HENRY AUSTIN, KURISADY HOUSE,
              47/91 A 1, KARSHAKA ROAD,
              VADUTHALA AKOCHI-682 023.

              BY ADVS.
              VIJU ABRAHAM
              SRI.ALBERT V.JOHN
              SMT.ROSHNI MANUEL
              SMT.VARNA MANOJ


RESPONDENTS:

     1        SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,
              GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

     2        THE DIRECTOR OF GENERAL EDUCATION,
              DIRECTORATE OF GENERAL EDUCATION, JAGATHY,
              THIRUVANANTHAPURAM-695 014.

     3        DISTRICT EDUCATION OFFICER,
              ERNAKULAM-682 011.

     4        MANAGER, ST MARYS HIGH SCHOOL,
              KANNAMALY-682 006.

              BY ADVS

               SRI.RUBEN GEORGE ROCK

               SRI. P.M.MANOJ - SR.GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 3357/21
                                             2



                             JUDGMENT

The petitioner, who is stated to be working as

a High School Teacher in the 'St.Mary's High

School', Kannamaly, has approached this Court

impugning Exts.P5 and P6, as per which, her

appointment in the school through Ext.P4 with

effect from 03.04.2020 in a retirement vacancy -

caused on the superannuation of a teacher by name

Sophiyamma C.J. - has been rejected saying that no

approval can be granted when the schools are

physically closed on account of the Covid-19

pandemic protocols.

2. Sri.Viju Abraham - learned counsel for the

petitioner, asserts that his client was originally

appointed as an Upper Primary School Teacher in a

school during the academic year 2013-15, but that

the same was not approved on account of a division

fall. He says that she was, thereafter, appointed

as a High School Teacher in the 'St.Mary's High WPC 3357/21

School, Kannamaly', through Ext.P4 with effect

from 03.04.2020, but this has now been rejected

through the impugned orders. He, therefore, prayed

that this Writ Petition be allowed and the

impugned orders be set aside, leading to his

client's approval being granted in terms of law.

He added that the case of the petitioner is

particularly hard because she has now become over-

aged, though she was within eligible age limit

when she was appointed through Ext.P4 in April

2020.

3. Sri.P.M.Manoj - learned Senior Government

Pleader, responded to the afore submissions of

Sri.Viju Abraham by saying that the Government has

now come forward with a fresh order, bearing

number GO(Rt)3287/2021/G.Edn dated 06.07.2021,

whereby all appointments in schools for the

academic year 2021-22, consequent to death,

retirement or resignation have been allowed to be

made and that approval to the same will also be WPC 3357/21

granted. He, therefore, prayed that no further

orders be granted in this case.

4. The afore submissions of the learned

Senior Government Pleader renders it luculent that

if the petitioner is to be appointed in the

academic year 2021-22, she would not encounter any

obstacle for obtaining approval as per the

Government Order. But, in this case, the

petitioner was appointed with effect from

03.04.2020 in a retirement vacancy and it would,

therefore, appear that in terms of the Government

Order mentioned above, her case cannot be

considered.

5. I cannot find this stand of the

Government - of creating two classes of teachers,

namely those who were appointed in the academic

year 2020-21 and those who are to be appointed in

2021-22 - to concede to any ineligibility

differentia because, though not physically, the WPC 3357/21

Schools were working in the academic year 2020-21.

The schools remained physically closed only on

account of the COVID-19 pandemic protocols and not

because there was any sanction to do so under the

KER. The legal provisions continued without any

interdiction and that when vacancies arose, the

Managers were without any statutory inhibition to

make appointments nor has any Government Order

been brought to my notice which restricted such

power of the Managers. However, such appointments

are now denied approval citing that the schools

were not physically open due to COVID-19 pandemic

restrictions. However, the government is unable to

inform this Court how this is legally tenable,

especially when it has not issued any proceedings

directing the Managers not to make appointments.

6. In the afore perspective, when one

examines the case of the petitioner, it would

project itself to be harsh on her because, at the

time when she was appointed on 03.04.2020, she was WPC 3357/21

fully qualified and eligible, but in the academic

year 2020-21, she would become over aged. The

apparent reasoning of the Government, as has been

argued by the learned Senior Government Pleader,

is that there was no workload on the teachers for

the academic year 2020-21 and therefore, that no

existing vacancy could have been filled up.

However, as I have already said above, no legal

interdiction was brought on any Manager, either by

the Government through their orders or through a

statutory mechanism, to stop such appointments;

and consequently, therefore, the stand of the

Government cannot obtain legal favour.

7. Even though I have said as above, I

clarify that this Court is concerned only about

the case of the petitioner, particularly that she

is now over-aged for being appointed during the

academic year 2021-22.

Resultantly, I am of the strong opinion

that the petitioner is entitled to relief; and WPC 3357/21

thus allow this writ petition and set aside

Exhibit P8, consequently directing the third

respondent District Educational Officer to

reconsider the request for approval of her

appointment pursuant to Exhibit P4, adverting to

the above observations, thus leading to an

appropriate order thereon, as expeditiously as is

possible, but not later than two months from the

date of receipt of a copy of this judgment.

Needless to say, consequent to the afore

directions, Exhibits P5 and P6 will stand quashed

and the third respondent will grant approval to

the petitioner, subject to all other conditions

being satisfied, from the date of Exhibit P4,

without referring to her age at present.

Sd/-

RR                                           DEVAN RAMACHANDRAN
                                                    JUDGE
 WPC 3357/21


               APPENDIX OF WP(C) 3357/2021

PETITIONER EXHIBITS:

EXHIBIT P1        TRUE COPY OF THE DEGREE CERTIFICATE
                  DATED 24.8.2000

EXHIBIT P2        TRUE COPY OF THE DEGREE CERTIFICATE
                  DATED 6.9.2010

EXHIBIT P3        TRUE COPY OF THE PROVISIONAL

CERTIFICATE OF K-TET(CATEGORY 111) EXAMINATION DATED 30.5.2020

EXHIBIT P4 TRUE COPY OF THE ORDER OF APPOINTMENT DATED 29.6.2020 ISSUED BY THE 4TH RESPONDENT

EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 13.10.2020 ISSUED BY THE 2ND RESPONDENT

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 20.10.2020 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 15.12.2020 IN WPC NO 26194/2020

EXHIBIT P8 TRUE COPY OF THE GOVERNMENT ORDER DATED 22.1.2020