Ancy Thomas vs The State Of Kerala
2021 Latest Caselaw 15693 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
                       WP(C) NO. 25373 OF 2013
PETITIONER:

           ANCY THOMAS, AGED 42 YEARS, WIFE OF VINOY SEBASTIAN,
           HIGH SCHOOL ASSISTANT (MALAYALAM), NIRMALA HIGH SCHOOL,
           ETTAM MILE, THARIYODE, WAYANAD DISTRICT - 673 575.

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


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 DEPUTY DIRECTOR OF EDUCATION,
           WAYANAD AT KALPETTA - 673 121.

    4      THE DISTRICT EDUCATIONAL OFFICER,
           WAYANAD AT KALPETTA - 673 121.

    5      THE MANAGER,
           NIRMALA HIGH SCHOOL, ETTAM MILE, THARIYODE, WAYANAD
           DISTRICT - 673 575.

    6      THE HEADMASTER,
           NIRMALA HIGH SCHOOL, ETTAM MILE, THARIYODE, WAYANAD
           DISTRICT - 673 575.

           BY ADV.SRI. P.M.MANOJ - SR.GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 25373 OF 2013
                                   -2-

                                JUDGMENT

The petitioner says that she was appointed as

a High School Teacher in Malayalam in the services

of 'Nirmala High School', Wayanad, from 21.01.1997

to 25.03.1997 which was approved by the 4th

respondent-District Educational Officer (DEO); and

that she was, thereafter, appointed from

31.12.1997 to 27.03.1998 and from 18.06.2001 till

the end of that academic year, as is evident from

Exts.P2 and P3 respectively, which appointments

were also approved.

2. The petitioner submits that even though

she was appointed thereafter from 02.06.2004

onwards, she was granted approval only with effect

from 01.02.2006, as is clear from Ext.P4; and

resultantly impugns Exts.P3 and P4, asserting that

she was entitled to be appointed continuously from

18.06.2001 without any limitation in the period WP(C) NO. 25373 OF 2013

and that, in such event, she would have got salary

for the months of April-May 2004 as also from June

2004, to 31.01.2006.

3. The petitioner says that she, therefore,

preferred Ext.P5 before the Government, but that

no action has been taken upon it until now.

4. The petitioner, further alleges that, even

when Ext.P5 representation was pending before the

Government, the 2nd respondent - Director of Public

Instructions [now re-designated as Director of

General Education(DGE)] has issued Ext.P6

cancelling her approval covered by Ext.P3 and

points out that this has been done apparently on

the basis of a Government Letter dated 04.07.2012

referred therein. She asserts that she was never

given a copy of the said letter by the Government,

nor was ever notified that her approval has been

cancelled and contends that this could not have

been done in any case, because the approval WP(C) NO. 25373 OF 2013

covered by Ext.P3 having been properly sanctioned,

its cancellation can only be for the specified

reasons enumerated in the Kerala Education Rules

(KER), and that too by the DGE, under Rule 8A of

Chapter XIVA of the KER. She submits that Ext.P6,

which cancelled her approval on the dictation of

the Government is, therefore, completely illegal;

and thus pray that same be set aside.

5. Smt.P.A.Jenzia - learned counsel appearing

for the petitioner, in addition to the above,

submitted that her client's request for continuous

approval of service from 18.06.2001 is imminently

deserving on being granted because, in Exts.P7 and

P8, such benefits had been granted to similarly

placed persons.

6. Smt.P.A.Jenzia then asserted that since

Ext.P6 would result in recovery of amounts paid to

her validly when she was in approved service, it

is rendered illegal on that Court also because WP(C) NO. 25373 OF 2013

such recovery is prohibited on account of the

various judgments of this Court, namely, Samual

John and another v. State of Kerala [2002 (2) KER

369]; Satyapalan v. Deputy Director of Education

[1998 (1) KLT 399]; Stanley v. State of Kerala

[2000 (2) KLT 431; Jayasree v. State of Kerala

[2002 (3) KLT 803] and Mohan v. State of Kerala

[1990 (2) KLJ 869]. She thus reiteratingly prayed

that Ext.P6 be set aside and the respondents be

directed to grant vacation salary to her client

for the month of April and May 2004, as also

salary from June 2004 to 31.01.2006, within a time

frame to be fixed by this Court.

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

Pleader, in response, submitted that, as is

evident from Ext.P3, the appointment of the

petitioner was approved with effect from

18.06.2001 till 31.05.2004, against the leave

vacancy of a certain Smt.Saramma. He then WP(C) NO. 25373 OF 2013

explained that, at the time when the petitioner

was appointed from 18.06.2001, two Protected High

School Assistants in Malayalam were awaiting

absorption in the Wayanad District and therefore,

that her appointment could not to have been

approved by the competent Authority, as has been

done earlier. He submitted that, therefore, the

DGE was completely without error in having issued

Ext.P6 and prayed that this writ petition be

dismissed.

8. I have carefully examined Ext.P6, which is

impugned in this writ petition and it is limpid

therefrom that the petitioner's approval from

18.06.2001 has been directed to be cancelled

solely because there were two protected High

School Teachers awaiting absorption in the Wayanad

District. The order then goes to say that the

Government have, by their letter No.59115/E3/03/GE

dated 04.07.2012, directed to cancel the approval WP(C) NO. 25373 OF 2013

granted to the petitioner with effect from

18.06.2001 till 31.05.2004.

9. The above being so recorded, it does not

require a great amount of elaboration to hold that

when a statutory duty is vested in an Authority,

it was up to him to take an independent decision

on the matters within his jurisdiction; but what I

see from Ext.P6 is that the DGE had cancelled

approval to the petitioner based on the Government

Letter above referred. This is crucial because, it

is admitted before me that any such cancellation

could have been ordered by the DGE only under the

provisions of Rule 8A of Chapter XIVA of the KER;

and I, therefore, fail to understand how the said

Authority has merely followed a Government Order,

which appears to dictate to him to act in a

particular manner. This is impermissible in law

and cannot, therefore, find my favour.

10. That said, the petitioner's specific case WP(C) NO. 25373 OF 2013

is that she is entitled to vacation salary for the

months of April and May 2004, and also for the

salary from June 2004 to 31.01.2006. These issues,

of course, will depend upon the validity of the

approval granted to her from 18.06.2001 to

31.05.2004.

11. As regards the contents of Ext.P6 on its

merits, it is now well settled, through various

judgments of this Court in Nadeera v. State of

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

Wandoor [2009 (3) KLT 863] that unless it is

demonstrated that a list of the Protected Teachers

had been forwarded to the Manager of the School by

the educational Authorities concerned at the

relevant time, the appointments made by him cannot

be denied approval.

12. In the case at hand, as is manifest from

Ext.P6, the approval to the appointment of the

petitioner from 18.06.2001 has been cancelled WP(C) NO. 25373 OF 2013

citing the reason that there were two 'Protected

Teachers' awaiting absorption in the Wayanad

District. However, there is nothing on record or

even in the said order to even indicate that the

competent educational Authorities had notified the

Manager appropriately about this at the relevant

time.

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

entire matter will require to be reconsidered by

the DGE.

Resultantly, this writ petition is allowed and

Ext.P6 is set aside; with a consequential

direction to the DGE to reconsider the claim of

the petitioner with respect to her approval from

18.06.2001 and for payment of vacation salary for

the months of April and May, 2004, as also for the

salary from June 2004 to 31.01.2006, after

affording her and the Manager of School an

opportunity of being heard - either physically or WP(C) NO. 25373 OF 2013

through video conferencing - thus culminating in

an appropriate order thereon, within a period of

three months from the date of receipt a copy of

this judgment.

Needless to say, if, after the afore exercise,

the petitioner is found entitled to relief, then

all resultant benefits shall be released to her

without any avoidable delay, but not later than

two months thereafter.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv/RR WP(C) NO. 25373 OF 2013

APPENDIX OF WP(C) 25373/2013

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 21.01.1997 AND APPROVAL THEREOF.

EXHIBIT P2. TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 31.12.1997 AND APPROVAL THEREOF.

EXHIBIT P3. TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 18.06.2001 AND APPROVAL THEREOF.

EXHIBIT P4. TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 02.06.2004 AND APPROVAL THEREOF.

EXHIBIT P5. TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER DATED 10.04.2007 BEFORE THE GOVERNMENT.

EXHIBIT P6. TRUE COPY OF THE ORDER OF THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTIONS DATED 04.07.2013.

EXHIBIT P7. TRUE COPY OF THE G.O.

(RT)NO.3867/2000/G.END. DATED 20.09.2000 OF THE GOVERNMENT.

EXHIBIT P8. TRUE COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER DATED 22.09.2006.

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE