Kerala High Court

State Of Kerala vs State Of Kerala on 10 March, 2021

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
            THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                    &
                  THE HONOURABLE MR. JUSTICE GOPINATH P.
       WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942
                             WA.No.68 OF 2021
AGAINST THE JUDGMENT DATED 24-07-2020 IN WP(C) 8269/2020(G) OF HIGH COURT
                                OF KERALA
APPELLANTS/RESPONDENTS 1 TO 5:

        1       STATE OF KERALA
                REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION
                DEPARTMENT, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM - 695001,

        2       THE DIRECTOR OF GENERAL EDUCATION
                DIRECTORATE OF GENERAL EDUCATION,
                THIRUVANANTHAPURAM - 695014,

        3       THE DEPUTY DIRECTOR OF EDUCATION
                CIVIL STATION, ERNAKULAM - 682030.

        4       THE DISTRICT EDUCATIONAL OFFICER,
                OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
                ERNAKULAM - 682011.

        5       THE ASSISTANT EDUCATIONAL OFFICER,
                VYPEEN, EDAVANAKKAD, ERNAKULAM DISTRICT - 682502.

                BY GOVERNMENT PLEADER SMT. RAJI T. BHASKAR

RESPONDENTS/PETITIONER & 6TH RESPONDENT:

        1       FELICIA MARIA JOSEPH
                AGED 41 YEARS, W/O. JOSEMON M.T,
                U.P.S.T. ST.GREGORY'S UP SCHOOL, KUZHUPPILLY,
                ERNAKULAM DISTRICT, MAZHIVANCHERY HOUSE,
                AYYAMPILLY P.O, ERNAKULAM - 682501.

        2       THE MANAGER
                ST.GREGORY'S U.P SCHOOL,
                KUZHUPPILLY, ERNAKULAM - 682501.

               R1 BY ADV. SRI.ELVIN PETER P.J.
               R1 BY ADV. SRI.K.R.GANESH
               R2 BY ADV. SRI.N.K.SUBRAMANIAN
     THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA No.68/2021                         -2-

                              JUDGMENT

Dated this the 10th day of March, 2021 Gopinath, J:

This appeal is filed by the State of Kerala and its officers

challenging the direction issued by a Learned Single Judge of this Court,

directing the approval of the appointment of one Felicia Maria Joseph as

an Upper Primary School Assistant (U.P.S.A), in the St.Gregory's U.P

School, Kuzhuppilly, with effect from 1-6-2016.

2. Felicia Maria Joseph, the 1st respondent in this appeal was

initially appointed as U.P.S.A on 03-06-2013 in the leave vacancy of one

Jiby Varghese. That appointment was to continue till 30-09-2017. This

spell of appointment in the leave vacancy was duly approved. In the

meanwhile, consequent to retirement of one Lissy P.C, the 1 st respondent

was appointed as U.P.S.A, on a permanent basis, with effect from 01-06-

2016. This appointment was not approved and was rejected by the

Assistant Educational Officer (AEO) through Ext.P3 order dated 31-10-

2016, on the ground that there were no government orders for approval of

the appointment. By an order dated 24-11-2016 an appeal to the District

Educational Officer (DEO) was rejected on the ground that the staff

fixation for the years 2016-17 had not been completed. An appeal was

preferred to the Director of Public Instructions (DPI) against the order of

DEO dated 24-11-2016. When the appeal was pending a fresh proposal was

given to the AEO since the staff fixation for 2016-17 had been completed by

that time. This proposal was rejected by Ext.P5 for the same reason as in

Ext.P3. An appeal was preferred to the DEO who, by Ext.P6 order, found

that the action of the AEO in rejecting the approval was against the

instructions of the Director of Public Instructions and further directed that

the question of approval of the 1 st respondent be reconsidered by the AEO

and if there is no other objection to the approval, the same was directed to

be granted.

3. Even after Ext.P6 order the AEO did not take any action. The

then AEO approached the Director of Public Instructions through a

representation to recall the observations made against his conduct in

Ext.P6. The husband of the 1st respondent also approached the DPI with a

representation regarding the approval of the appointment 1 st respondent.

Through Ext.P7 order, the DPI again directed the AEO to reconsider the

matter. Whereupon, through Ext.P8 order dated 18-05-2019 the approval

of appointment of the 1st respondent was rejected on the ground that she

did not have K-TET qualification. This was ignoring the exemption that

was available to 31-03-2019 for acquiring the K-TET qualification through

Ext.P9 order dated 15-11-2019 of the Government. By that order the last

date for acquisition of K-TET qualification in respect of those appointed till

31-03-2019 was extended till the commencement of the academic year

2020-2021 i.e. till 01-06-2020. An appeal against Ext.P8 order before the

DEO was rejected on the ground that the 1 st respondent has to approach the

DPI. Through Ext.P13 order dated 17-12-2019 the DPI remanded the

matter to the AEO for fresh consideration in accordance with the terms of

the Government order dated 15-11-2019. The AEO thereafter passed

Ext.P14 order dated 05-02-2020 rejecting the approval of appointment of

the 1st respondent for totally new reasons. The principal reason now

indicated was that there were appointments made earlier by the Manager

which was against the provisions contained in the Rules and instructions

issued by the Government from time to time and hence there was no post

to which the 1st respondent could have been appointed. Impugning Ext.P.14

order, the 1st respondent approached this court through W.P (C)

No.8269/2020.

4. On a consideration of the matter the learned Single Judge

found that the objection raised by the AEO in Ext.P14 has no merit

especially since the earlier appointments which were found to be in excess

had already been approved and also noting that the Manager had issued

Ext.p15 proceedings on the basis of the directions issued by the AEO. As for

the objections regarding Smt. Shiny Vargheese and Smt. Shiny George the

learned Judge found that those teachers had been appointed in 1996 &

1999 and their qualifications were, at that point of time, sufficient for

appointment as LPSA. The Learned Single Judge noted that no objections

were raised regarding their shifting as LPSA by the Manager (on 01-11-

2000) for nearly 20 years. Therefore, the learned Judge quashed Ext.P14

and directed the approval of the 1 st respondent with effect from 01-06-

2016. The official respondents in the writ petition are therefore in appeal

challenging the directions issued by the learned Single Judge.

5. The learned Government Pleader referred to the grounds raised

in the writ appeal and sought to justify Ext.P14 order. She vehemently

contends that this was not a case where the AEO had taken different

objections at different points of time and that each objection raised by the

AEO was valid with reference to the Rules and instructions issued by the

Government from time to time. She would submit that the earlier

appointments made by the Manager were contrary to the Rules and this

has resulted in a situation where there were excess appointments, as a

result of which there was no vacancy against which the 1 st respondent could

be accommodated. She would submit that the Government was being

burdened with unnecessary financial commitments on account of illegal

appointments and therefore the Department must be permitted to ensure,

if necessary, by taking action against the Manager, that the appointments

made are strictly in accordance with the Rules and instructions issued by

the Government from time to time.

6. Per contra, the learned counsel appearing for the 1st respondent

submits with reference to various orders issued by the AEO and the orders

in appeal, revision etc. (which we have already referred to above) that each

time when the question of approval of the 1 st respondent was placed before

the AEO, the officer was coming up with different reasons to deny approval

of appointment. He would submit that this is a case where the 1 st

respondent was appointed to an established vacancy which arose on

account of the retirement of Lissy P.C. with effect from 01-06-2016. He

would also submit that the reason now found by the AEO in Ext.P14 cannot

be sustained for the reason that the AEO was obviously trying to rake up

issues regarding appointment of other teachers by the Manager after the

same had been duly approved by the educational authorities. He would

therefore submit that even assuming that those appointments were in any

way illegal or against Rules, such appointments having been approved, it is

not proper or legal for the AEO to now seek to establish that there was no

vacancy to which the 1st respondent can be validly appointed and approved.

7. We have considered the contentions raised by either side. On a

perusal of the orders issued by the AEO from time to time and whenever

the question of approval of the 1 st respondent was placed before the officer,

we have no hesitation to hold that each time the proposal was put up, the

AEO came up with different reasons to deny approval of the appointment.

In the first instance the ground was that there were no Government orders

permitting approval of appointment during the relevant year. Thereafter

the objection taken was that the 1 st respondent did not have the necessary

qualifications. After the DPI found that the time limit for acquiring K-TET

qualification has been extended, the AEO came up with yet another reason

that the appointments earlier made by the Manager many years ago were

illegal and improper as a result of which there was no vacancy against

which the 1st respondent could have been appointed. As rightly found by the

learned Single Judge the Manager had already, and on the directions of the

AEO, adjusted the appointments already made which is evident from

Ext.P15. Regarding the objection raised with reference to the appointments

of Smt. Shiny Vargheese and Smt. Shiny George the learned Single Judge

has correctly found that those appointments were made in the year 1996 &

1999 and approved and any objection against the adjustment of those

teachers as LPSA's, after nearly a period of 20 years cannot be a reason to

deny approval to the appointment of the 1 st respondent. Noticing the

conduct of the A.E.O, we are in this case reminded of the illuminating ratio

of a Constitution Bench of the Supreme Court in Bhopal Sugar

Industries Ltd. v. ITO, (1960) 40 ITR 618 where, noticing the failure on

the part of an officer in implementing the orders of a superior Tribunal, it

was held: -

"8. We think that the learned Judicial Commissioner was clearly in error in holding that no manifest injustice resulted from the order of the respondent conveyed in his letter dated March 24, 1955. By that order the respondent virtually refused to carry out the directions which a superior tribunal had given to him in exercise of its appellate powers in respect of an order of assessment made by him. Such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic

principles in the administration of justice based as it is in this country on a hierarchy of courts. If a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of its appellate powers, the result will be chaos in the administration of justice and we have indeed found it very difficult to appreciate the process of reasoning by which the learned Judicial Commissioner while roundly condemning the respondent for refusing to carry out the directions of the superior tribunal, yet held that no manifest injustice resulted from such refusal."

This case is a classic example of the AEO refusing to implement the orders

of a superior appellate authority under one pretext or the other. This is, as

noticed by the Supreme Court in Bhopal Sugar Industries Ltd.

(supra) 'in effect a denial of justice, and is furthermore destructive of

one of the basic principles in the administration of justice, based as it is in

this country, on a hierarchy of courts.'

8. Considering the submission of the learned Government Pleader

that the question of earlier appointments being illegal and contrary to the

Rules, we notice that no action whatsoever has been taken either against

the officer who approved the appointments or against the Manager in

accordance with the provisions contained in Rule 7 of Chapter III of the

Kerala Education Rules. We do not deem it necessary to say anything

further regarding those appointments or examine the question further as

none of the teachers who were allegedly appointed contrary to Rules and

instructions issued by the Government and educational authorities are

parties to the proceedings. Further as noticed by the Learned Single Judge,

a re-opening of such issues belatedly and after nearly 20 years had passed

and after such appointments had been approved is not possible. In so far as

the appointment of the 1st respondent is concerned it was against a

retirement vacancy which, it is not disputed, arose with effect from

01-06-2016. It is also not disputed before us that the 1 st respondent has

now acquired the K-TET qualification within the time permitted by the

Government in Ext.P9 Government order. Therefore, we see no reason to

interfere with the direction issued by the learned Single Judge to approve

the appointment of the 1st respondent with effect from 01-06-2016.

However we leave it open to the Educational Authorities to examine any

future appointments that may be made by the Manager and determine

whether such appointments need be approved or not pending the

adjustment/regularization of appointments made earlier, allegedly against

the Rules and instructions.

9. We had, noticing the conduct of the AEO from time to time (we

are told that different officers occupied the post of AEO during the relevant

period) issued the following interim order dated 23-02-2021:-

Further to our order dated 19.2.2021, the Assistant Educational Officer, Vypeen has passed an order approving the appointment of the 1st respondent subject to the result of this Writ Appeal. A copy of that order has been placed before us by the learned Government Pleader. A reading of the order shows that the objection raised earlier regarding the approval of the appointment

of the 1st respondent was that she had not acquired K.TET qualification. It is also recorded in the order that teachers appointed prior to 2019-2020 have time up to 2020-2021 to obtain the qualification. The learned counsel for the 1st respondent submits that the time has still been extended further and also that insofar as the 1st respondent is concerned, she has already obtained K.TET qualification. The learned Counsel for the 1st respondent shall place on record a copy of the Certificate showing that the 1 st respondent has been successful in the K. TET examination.