Smitha V vs State Of Kerala
2021 Latest Caselaw 20610 Ker

WP(C) NO. 11253 OF 2020        1



              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
    TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                      WP(C) NO. 11253 OF 2020
PETITIONER:

          SMITHA V.
          AGED 44 YEARS
          W/O. KRISHNAKUMAR, UPSA, ASMM HIGHER SECONDARY
          SCHOOL, ALATHUR, RESIDING AT DEVI NANDANAM,
          BEHIND ASMM HIGH SCHOOL ALATHUR P.O,
          PALAKKAD DISTRICT

          BY ADVS.
          K.MOHANAKANNAN
          SMT.T.V.NEEMA



RESPONDENTS:

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

    2     THE DIRECTOR OF EDUCATION,
          SECRETARIAT, THIRUVANANTHAPURAM 695 001

    3     DEPUTY DIRECTOR OF EDUCATION,
          CIVIL STATION, KENATHUPARAMBU,M KUNATHURMEDU,
          PALAKKAD 678 001

    4     DISTRICT EDUCATIONAL OFFICER,
          MUNICIPAL COMPLEX, ROBINSON RD, OPP. GOVERNMENT
          HOSPITAL, SANTHI NAGAR, SULTANPET, PALAKKAD, KERALA
          678 014

    5     THE DISTRICT EDUCATIONAL OFFICER, (MANAGER-IN-
          CHARGE),
          PALAKKAD, ASMM HIGHER SECONDARY SCHOOL, ALATHUR,
          PALAKKAD 678 642
 WP(C) NO. 11253 OF 2020      2



    6     DISTRICT EDUCATIONAL OFFICER, ALUVA,
          ERNAKULAM DISTRICT 683101




          SRI BIJOY CHANDRAN SR GOVERNMENT PLEADER




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 11253 OF 2020              3




                                  JUDGMENT

Challenge in this petition is mounted against Ext.P8 order passed by the

1st respondent rejecting the claim of the petitioner for approval of appointment

as UPST from the initial date of appointment in the ASMM Higher Secondary

School, Alathur.

2. The petitioner states that she was appointed as UPSA in ASMM

Higher Secondary School, Alathur with effect from 15.01.2010 in a newly

created post as is evident from Ext.P1. The appointment of the petitioner was

approved by the DEO with effect from 01.06.2011 by including her in the

Teachers Package. Being aggrieved by the refusal on the part of the

respondents in approving the appointment from the initial date of appointment,

the petitioner along with other teachers had approached this Court and filed

W.P.(C).No.412/2018. This Court by Ext.P2 judgment disposed of the matter

directing the respondents to consider the issue in the light of the law laid down

in judgment dated 25.07.2017 in W.A.No.2290/2015. The petitioner contends

that pursuant to directions as aforesaid the 1st respondent considered the

representation and the request of the petitioner was rejected on the sole

ground that the matter is now pending consideration of the Hon'ble Supreme

Court of India. The petitioner contends that the stand taken by the respondents

cannot be sustained as by Exts.P5 and P6 orders teachers similarly placed as

the petitioner was given the benefit of the law laid down by this Court in Ext.P3

judgment.

3. The petitioner contends that Ext.P4 was challenged before this

Court and pursuant to directions issued in W.P.(C) No.5135/2019, the matter

was reconsidered by the Government. However, by Ext.P8 order the request

was again rejected holding that the appointment of the petitioner though in an

additional division vacancy, as the Managers have challenged the judgment

rendered by this Court before the Apex Court, the petitioner is not entitled to

approval of her appointment from the initial date of her appointment.

4. The petitioner contends that in compliance with the direction

issued by the Division Bench in Ext.P3 judgment, the Government has granted

approval to 9 teachers by Ext.P9 proceedings and that by Ext.P10 proceeding,

Smt.Deepa.N.K another teacher similarly placed as the petitioner was granted

approval. It is in the afore circumstances that the petitioner is before this

Court seeking to quash Ext.P8 and for a further direction to the 4th respondent

to approve the appointment of the petitioner as UPST with effect from

15.01.2010 to 30.05.2011 and grant all consequential benefits.

5. A counter affidavit has been filed by the 4th respondent reiterating

that the appointment of the petitioner was against an additional post and that

the matter is pending consideration of the Hon'ble Supreme Court of India

orders could not be passed approving the appointment. It is also stated that it

is due to the appointment dispute of the teachers in the school that the

seniority list has not been finalised. It is also stated that due to the

management dispute in the Alathur ASMM HS, the respondent is the Manager

in charge of the School.

6. A reply affidavit has been filed wherein it is stated that the mere

fact that an SLP has been filed against the judgment is no reason to deny the

benefits to which the petitioner is entitled. It is also submitted that no stay has

been granted by the Hon'ble Supreme Court. It is also stated that in view of

Ext.P9 approving the appointment of teachers, there is no reason to deny the

very same relief to the petitioner.

7. Sri. K.Mohanankannan, the learned counsel appearing for the

petitioner submitted 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. The learned counsel points out that the law laid down

by this Court has not been taken note of while passing Ext.P10 order.

8. 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 and it is for the said

reason that the request was rejected.

9. I have considered the submissions advanced.

10. The writ petitioner was appointed during the period when the ban,

pursuant to G.O.(P) No.10/10/G.Edn. Dated 12.1.2010, was in force. The

appointment of the petitioner was approved only with effect from 1.6.2011 on

the ground that there was a ban on appointment at the time of her initial

appointment and that the Manager had failed to execute the bond in terms of

G.O.(P)No.10/10. The writ petition is filed seeking approval of the petitioner's

appointment with effect from the date of her initial appointment and payment

of consequential benefits due to her . 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. A mere perusal of the impugned order would show that the solitary

reason given to deny the benefit to the petitioner is that the Managers have

challenged the judgment of the Division Bench before the Apex Court and that

the said proceeding is pending. I am of the considered opinion that the

aforesaid reason cannot be a ground to reject the request made by the

petitioner. In that view of the matter, interference is warranted in this writ

petition.

Resultantly, Ext.P8 order will stand set aside. There will be a direction to

the 1st respondent to reconsider the revision petition filed by the petitioner and

pass fresh orders with notice to the petitioner as well as the 5th respondent

and take a decision, taking note of the law laid down by this Court in Suma

Devi (supra) and also in Exhibit P3 judgment. 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. While considering the revision petition, the

Secretary to Government shall bear in mind 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 petitioner. 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 NS

APPENDIX OF WP(C) 11253/2020

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE ORDER OF APPOINTMENT 15-

1-2010 OF THE PETITIONER

EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN W.P(C) NO.

412/2018 DATED 23-1-2018

EXHIBIT P3 THE JUDGMENT IN W.A 2290/2015 DATED 25-07-

EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER GO(RT) 5475/18/G.EDN DATED 29-12-2018

EXHIBIT P5 TRUE COPY OF ORDER NO. B2/1729/2015 DATED 7-12-2018 OF THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD

EXHIBIT P6 TRUE COPY OF ORDER NO. B2/591/18 DATED 12-

4-2019

EXHIBIT P7 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER ON 20-08-2019

EXHIBIT P8 TRUE COPY OF THE GOVERNMENT ORDER GO(P) 954/2020 /G.EDN DATED 25-2-2020

EXHIBIT P9 TRUE COPY OF THE GO(RT) NO 2565/2018/G.EDN DATED 9-7-2018

EXHIBIT P10 TRUE COPY OF THE GOVERNMENT LETTER DATED 25-7-2018 ADDRESSED TO THE 6TH RESPONDENT

//True copy//

PA TO JUDGE