Kerala High Court
Vijeesh K vs State Of Kerala on 23 November, 2021
WP(C) NO. 26225 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
WP(C) NO. 26225 OF 2021
PETITIONER/S:
VIJEESH K
AGED 38 YEARS
S/.SUBRAMANIAN P.M., UPPER PRIMARY SCHOOL
ASSISTANT, AUP SCHOOL, KUNNAMANGALAM,
KOZHIKODE 673 571, RESIDING AT KIZHAKKEKUNATH,
CHERUKULATHOOR, KOZHIKODE-673 008.
BY ADVS.
B.HARISH KUMAR
ANJALY JOSEPH
RESPONDENTS :
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 ASSISTANT EDUCATIONAL OFFICER
KUNNAMANGALAM, KOZHIKODE 673 571
3 MANAGER
KUNNAMANGALAM AUP SCHOOL, KUNNAMANGALAM,
KOZHIKODE 673 571
4 ANUSREE V.
UPPER PRIMARY SCHOOL ASSISTANT,
KUNNAMANGALAM AUP SCHOOL, KUNNAMANGALAM,
KOZHIKODE 673 571
5 DHANYA T.
UPPER PRIMARY SCHOOL ASSISTANT, KUNNAMANGALAM AUP
SCHOOL, KUNNAMANGALAM, KOZHIKODE 673 571
WP(C) NO. 26225 OF 2021 2
6 RASMI T.
LOWER PRIMARY SCHOOL ASSISTANT,
KUNNAMANGALAM AUP SCHOOL,
KUNNAMANGALAM, KOZHIKODE 673 571
SRI. BIJOY CHANDRAN, SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 26225 OF 2021 3
JUDGMENT
The petitioner states that he was appointed on 02.06.2008 in an
additional vacancy in the Kunnamangalam AUP School, an aided school
under the management of the 3rd respondent. However, his appointment
was approved only with effect from 1.6.2011 by including him in the
teacher's package. Being aggrieved, the petitioner is stated to have preferred
Ext.P9 revision petition before the 1st respondent. The petitioner contends
that respondents 4 to 6 are much junior to the petitioner and pursuant to
Ext.P7 judgment of this Court issued in a Writ Petition filed by the said
respondents, Ext.P8 order has been passed by the Government granting
approval of their appointment from the initial date. The petitioner contends
that he had joined in 2008-2009 whereas the other respondents had joined
much later. In this writ petition, the petitioner has sought for quashing
Ext.P8 order and also for directions to the 1st respondent to consider Ext.P9
revision petition in an expeditious manner.
2. Sri. B. Harish Kumar, the learned counsel submitted that the
Government had, as per G.O (P) No.317/2005/G.Edn. dated 17.8.2005,
imposed a ban on the appointment of teachers and non-teaching staff in
additional division vacancies. Later, by G.O.(P) No.10/10/G.Edn. dated
12.1.2010, the ban on appointments was lifted subject to certain conditions.
One among the conditions was that the Managers should execute a consent
letter undertaking that in future vacancies, protected teachers equal to the
number of teachers, appointed to the additional division vacancies during the
period 2006-07 to 2009-10, would be appointed. The 3rd respondent failed
to execute the bond as required in the Government Order. Thereafter, the
Government issued G.O.(P)No.199/2011/G.Edn dated 01.06.2011 approving
the recommendations for implementation of the comprehensive teacher's
package for appointment of deployed/protected teachers. The petitioner was
also included in the package and his appointment was regularised with effect
from 1.6.2011. According to the petitioner, the respondents 4 to 6, who are
much junior to the petitioner, have been granted approval from the initial
date and the same would prove destructive to the service advancement
prospects of the petitioner. The learned counsel contends that it is settled by
now that even in cases wherein, bonds have not been executed by the
Manager, the Managers would be deemed to have executed the bond and
they would be obliged to make appointments from the list of protected
teachers, equal to the number of appointments approved during the ban
period.
3. The learned Government Pleader submitted that all
appointments in additional division vacancies are liable to be apportioned in
the ratio of 1:1 and if the appointment of the protected teacher is not done
as provided in G.O.(P) No.10/10/G.Edn. dated 12.1.2010, then the Manager
ought to have executed a bond stating that such appointments would be
made in accordance with the provisions of the Government Order. It is
further submitted that some of the Managers have challenged G.O.(P)
No.10/10/G.Edn. dated 12.1.2010 and those matters are now pending before
the Apex Court. It is further submitted that it is for the 1st respondent to
consider whether the petitioner would be entitled to the benefits of G.O.(P)
No.10/10/G.Edn.
4. I have considered the submissions advanced. The petitioner
asserts that he was appointed during the period when the ban was in force.
The question as to whether the above Government Order would apply to the
petitioner herein has to be ascertained by the 1st respondent while
considering the revision petition. As rightly contended by the learned
counsel, a Division Bench of this Court in State of Kerala and Ors. v.
V.S.Suma Devi and Ors. [judgment dated 1.8.2017 in W.A.No.2111/2015],
has held that in the case of non-execution of the bond by the Managers, it
should be deemed that bonds have been executed and the Managers would
be obliged to make an equal number of appointments when the
appointments to additional vacancies made during the ban period are
approved. Insofar as the pendency of the petitions instituted by the
Managers before the Hon'ble Apex Court is concerned, the orders passed
shall be subject to the final orders that may be passed by the Apex Court in
the pending litigation.
5. After having carefully evaluated the contentions raised in this
writ petition, the submissions made across the Bar and the facts and
circumstances, I am of the view that this writ petition can be disposed of by
issuing the following directions:
a) The 1st respondent is directed to take up Exhibit P9 revision
petition submitted by the petitioner and pass orders with
notice to the petitioner as well as the respondents 3 to 6
and take a decision, as per procedure and in accordance
with the law. Appropriate orders shall be passed
expeditiously, in any event, within a period of three
months from the date of receipt of a copy of this
judgment.
b) While considering the petition, the Secretary to Government
shall consider whether G.O.(P) No.10/10/G.Edn. dated
12.1.2010 would apply and if it applies, the 1st
respondent shall be free to reckon that the Managers
would be deemed to have executed the bond and also
that they would be obliged to make appointments from
the list of protected teachers equal to the number of
appointments approved during the ban period. The fact
that the petition challenging G.O.(P) No.10/10 filed by the
Managers is pending consideration of the Hon'ble
Supreme Court shall not be taken as a ground to deny the
benefits to the petitioners. It is made clear that the
orders passed by the 1st respondent shall be subject to
the decision of the Hon'ble Supreme Court in the pending
petitions.
c) It would be open to the petitioner to produce a copy of the
writ petition along with the judgment before the
concerned respondent for further action.
The writ petition is disposed of.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
IAP
APPENDIX OF WP(C) 26225/2021
PETITIONER(S) EXHIBITS :
EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER DATED
02/6/08 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE PROCEEDINGS DATED
14/7/2009 ISSUED BY THE DPI (ACADEMIC),
THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE TEACHER'S ROLL AS ON
1/6/2011 AT KUNNAMANGALAM AUP SCHOOL,
SANCTIONED POSTS IN THE SCHOOL DURING
2010-11
EXHIBIT P4 A TRUE COPY OF THE APPLICATION FOR THE
APPROVAL OF APPOINTMENT DATED 14/7/11.
EXHIBIT P5 A TRUE COPY OF THE PROCEEDINGS OF THE 3RD
RESPONDENT DATED 5/10/2011.
EXHIBIT P6 A TRUE COPY OF THE PROCEEDINGS DATED
19/10/11 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P7 A TRUE COPY OF THE JUDGMENT PASSED BY THIS
HON'BLE COURT DATED 9/7/21.
EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 23/10/21
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P9 A TRUE COPY OF THE REVISION PETITION DATED
18/11/21 PRODUCED BEFORE THE 1ST
RESPONDENT.
EXHIBIT P10 A TRUE COPY OF THE JUDGMENT DATED
25/7/2017 PASSED BY THIS HON'BLE COURT.
EXHIBIT P11 A TRUE COPY OF THE GO(P) NO.4/2021 G.EDN.
DATED 6/2/2021 ISSUED BY THE 1ST
RESPONDENT.
RESPONDENT(S) EXHIBITS : NIL
