Kerala High Court
Shimna D.K vs State Of Kerala on 29 October, 2021
WP(C) NO. 23647 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WP(C) NO. 23647 OF 2021
PETITIONER/S:
1 SHIMNA D.K.,
AGED 42 YEARS,
W/O. SHAJU, UPSA, NANMINDA EAST AUP SCHOOL,
BALUSSERY, KOZHIKODE.
2 ANUPRIYA R.,
AGED 33 YEARS,
W/O. SUDEESH KUMAR, LPSA, NANMINDA EAST AUP SCHOOL,
BALUSSERY, KOZHIKODE.
3 ASHTAMY R.C.,
AGED 37 YEARS,
W/O. RAJESH, UPSA, NANMINDA EAST AUP SCHOOL,
BALUSSERY, KOZHIKODE.
BY ADV R.K.MURALEEDHARAN
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GENERAL EDUCATION
DEPARTMENT, THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF GENERAL EDUCATION,
OFFICE OF THE DIRECTOR OF GENERAL EDUCATION,
JAGATHI, THIRUVANANTHAPURAM-695014.
3 THE ASSISTANT EDUCATIONAL OFFICER,
OFFICEOF AEO, BALUSSERY, CALICUT-673004.
4 THE MANAGER,
NANMINDA EAST AUP SCHOOL, BALUSSERY,
KOZHIKODE-673616.
SMT NISHA BOSE, SR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 23647 OF 2021 2
JUDGMENT
The petitioners state that they were appointed in the Nanminda East
AUP School, Kozhikode District with effect from 05.06.2006, 04.06.2007 and
02.06.2008 respectively as per Exhibit-P1 series orders. The petitioners
contend that the proposal for approval was rejected by the 4th respondent by
Exhibit P3 order. Later, the 1st petitioner was appointed in a regular vacancy
and the petitioners 2 and 3 were appointed in additional division vacancies by
Exts.P4, P5 and P7 orders. The petitioners contend that the 3rd respondent
rejected the proposal for approval on the ground that there was no sanctioned
vacancy to accommodate the petitioners in view of the ban imposed by the
Government vide G.O. (P) No.317/2005/G.Edn.dated 17.8.2005. 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 4th 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 01.10.2011 approving the recommendations for
implementation of the comprehensive teacher's package for appointment of
deployed/protected teachers. According to the petitioners, teachers who are
similarly placed as the petitioners had approached this Court and by Exhibit
P10 judgment, a Division Bench of this Court had occasion to hold that in 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. Highlighting all these aspects, the
petitioners are stated to have preferred separate revision petitions as
Exts.P11, P11(a) and P11(b) before the 1st respondent. According to the
petitioners, without taking note of any of these aspects and ignoring the law
laid down by this Court in Ext.P10, the revision petition filed by the 1st
petitioner was remanded back to the 2nd respondent on the ground that the
1st petitioner had not exhausted her remedy by approaching the 2nd
respondent. The petitioners contend that no notice was issued to the 1st
petitioner by the 1st respondent before passing Ext.P12 communication. This
is clearly against the principles of natural justice and against the spirit of Rule
92 of Chapter XIVA of the KER is the contention. It is in the afore
circumstances that the petitioners are before this Court seeking to quash
Ext.P12 order and for incidental reliefs.
2. Sri. R.K.Muralidharan, the learned counsel appearing for the
petitioners submitted that Ext.P12 order cannot be sustained for violation of
the principles of natural justice. It is contended that dismissal of the revision
petition filed by the 1st petitioner alone will have an adverse impact on the
revision petitions filed by petitioners 2 and 3 as well. It is further submitted
that the 1st respondent was duty-bound to consider the revision petition on its
merits without remanding the matter in a mechanical manner.
3. The learned senior Government Pleader fairly submitted that in the
facts and circumstances, the revision petitions filed by the petitioners ought to
have been considered in the light of the law laid down by this Court.
4. I have considered the submissions advanced. I find that the
petitioners have all preferred separate revision petitions before the 1st
respondent seeking approval of their appointment with effect from the initial
date of appointment. Their prayer in the revision petitions filed under Rule 92
of Chapter XIVA of the KER was for considering their prayer in the light of the
law laid down by this Court and subsequent Government Orders. Ext.P12
letter of remand only says that the 1st petitioner had approached the 1st
respondent without exhausting her remedies as per the KER. There is no case
for the respondents that the petitioner was heard in the revision petition
before the said decision was taken. Having considered the facts and
circumstances, I am of the considered opinion that the 1st respondent has
erred in remanding the matter without hearing the version of the 1st
petitioner.
In view of the aforesaid discussion, I am of the view that the impugned
order warrants interference by this Court. Ext.P12 will stand set aside. The 1st
respondent is directed to reconsider Ext.P11 revision petition and pass fresh
orders in accordance with law, taking note of the law laid down by this Court
in Ext.P10 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. It is made clear that 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 petitioners. However, it is made clear that the order passed by
the 1st respondent shall be subject to the final orders to be passed by the
Apex Court in the proceedings initiated by the Managers.
The writ petition is disposed of.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
DSV
APPENDIX OF WP(C) 23647/2021
PETITIONER (S) EXHIBITS:
Exhibit P1 TRUE COPY OF APPOINTMENT ODER OF THE 1ST
PETITIONER DATED 05/06/2006.
Exhibit P1(a) TRUE COPY OF APPOINTMENT ORDER OF THE 2ND
PETITIONER DATED 04/06/2007.
Exhibit P1(b) TRUE COPY OF APPOINTMENT ORDER OF THE 3RD
PETITIONER DATED 02/06/2008.
Exhibit P2 A TRUE COPY OF THE STAFF FIXATION ORDER OF
THE SCHOOL FOR THE YEAR 2006-07 DATED
14/11/2006.
Exhibit P3 A TRUE COPY OF THE ORDER REJECTING THE
PROPOSAL DATED 04/12/2006.
Exhibit P4 A TRUE COPY OF THE APPOINTMENT ORDER OF
THE 1ST PETITIONER DATED 01/06/2007 AND
THE PROCEEDING OF APPROVAL OF THE 3RD
RESPONDENT.
Exhibit P5 A TRUE COPY OF THE ORDER DATED 11/07/2007.
Exhibit P6 A TRUE COPY OF THE ORDER OF APPOINTMENT
DATED 02/06/2008 AND THE ORDER OF APPROVAL
Exhibit P7 A TRUE COPY OF THE APPOINTMENT ORDER DATED
02/06/2008 OF THE 3RD PETITIONER.
Exhibit P8 A TRUE COPY OF THE ORDER DATED 17/10/2008
OF THE 3RD RESPONDENT.
Exhibit P9 TRUE COPY OF THE PROCEEDINGS OF APPROVAL
OF 3RD PETITIONER DATED 30/12/2011 BY THE
3RD RESPONDENT ALONG WITH TYPED COPY.
Exhibit P10 A TRUE COPY OF THE JUDGMENT IN WA
NO.931/2016 DATED 24/07/2017.
Exhibit P11 TRUE COPY OF THE REVISION PETITION FILED
BY THE 1ST PETITIONER BEFORE THE 1ST
RESPONDENT DATED 04/08/2021 (WITHOUT
ANNEXURES).
Exhibit P11(a) TRUE COPY OF THE REVISION PETITION FILED
BY THE 2ND PETITIONER BEFORE THE 1ST
RESPONDENT DATED 19/04/2021 (WITHOUT
ANNEXURES)
Exhibit P11(b) TRUE COPY OF THE REVISION PETITION FILED
BY THE 3RD PETITIONER BEFORE THE 1ST
RESPONDENT DATED 10/04/2021 (WITHOUT
ANNEXURES)
Exhibit P12 A TRUE COPY OF THE COMMUNICATION DATED
20/09/2021 BY THE 1ST RESPONDENT.
RESPONDENT (S) EXHIBITS: NIL
