K.S.Sindhu vs State Of Kerala
2021 Latest Caselaw 17816 Ker

WP(C) NO. 14680 OF 2021            1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
         THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
                      WP(C) NO. 14680 OF 2021
PETITIONER:

           K.S.SINDHU
           AGED 46 YEARS
           W/O. MANOJ.B., H.S.A. (NATURAL SCIENCE),
           S.V.H.S.S.CLAPPANA, KARUNAGAPPALY, KOLLAM,
           RESIDING AT SUDHINALAYAM, KALLIKKAD,
           ARATTUPUZHA P.O., ALAPPUZHA

            BY ADV B.MOHANLAL



RESPONDENTS:

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

     2      THE DIRECTOR OF GENERAL EDUCATION,
            GOVERNMENT OF KERALA, JAGATHY,
            THIRUVANANTHAPURAM-695 014

     3      THE DEPUTY DIRECTOR OF EDUCATION,
            THEVALLY P.O., KOLLAM-691 009,

     4      THE DISTRICT EDUCATIONAL OFFICER,
            COLLECTORATE, CUTCHERY P.O., KOLLAM-691 013

     5      THE MANAGER,
            S.V.H.S.S., CLAPPANA, CLAPPANA P.O.,
            KARUNAGAPPALLY, KOLLAM-690 546

             SMT NISHA BOSE, SR GOVERNMENT PLEADER


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   01.09.2021,   THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 14680 OF 2021            2

                               JUDGMENT

The petitioner states that she was appointed to the post of HSA

(Natural Science) in the SVHSS, Clappana, an aided school under the

management of the 5th respondent from 5.6.2006 against the retirement

vacancy of Smt. Bhageerathi Amma. She states that pursuant to orders

issued by this Court, the appointment of the petitioner as HSA (NS) in the

school for the period from 5.6.2006 to 14.7.2007 against the retirement

vacancy of Smt. Bhageerathi Amma and from 15.7.2007 to 25.7.2010 or till

vacancy exists against the leave without allowance vacancy of Smt. R.

Deepthi, HSA (Natural Science) was approved by Ext.P1 order. Later, Ext.P3

order was issued by the 5th respondent appointing the petitioner to the

post of HSA (NS) in Ext.P2 leave vacancy of Smt. R.Deepthi in the school

for the period from 26.07.2010 to 31.05.2015. However, the appointment

was rejected on the ground that the 5th respondent did not execute the

bond in terms of G.O.(P) No.10/10/G.Edn. dated 12.1.2010. Later, by

Ext.P4 order, the 4th respondent proceeded to approve the appointment of

the petitioner, however, it was with effect from 1.6.2011. The petitioner

states that she continued to work in the school in the leave vacancy from

15.07.2007 onwards, she being a claimant under Rule 51A Chapter XIV of

the K.E.R. She states that Ext.P6 representation was then filed by the 5th

respondent requesting to approve the appointment of the petitioner for the

period from 26.7.2010 to 31.5.2011 so as to get continuity of approval till

1.6.2011. After several reminders and pursuant to orders issued by this

Court, issued Ext.P12 order wherein it is stated that since the challenge

raised by the Managers over G.O.(P) No.10/10/G.Edn. dated 12.1.2010, is

pending before the Hon'ble Supreme Court, the approval of the petitioner

could not be considered at this stage. It is in the afore circumstances that

the petitioner is before this Court seeking the following reliefs:

" (i) To call for the record leading to Exhibit-P12 Order from the 1st respondent and to quash Exhibit-P12 order to the extent it orders declining to approve the appointment of the petitioner to the post of H.S.A. (Natural Science) in the 5th respondent Aided Management School for the period from 26.07.2010 to 31.05.2011.

(ii) To issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to approve the appointment of the petitioner to the post of H.S.A. (Natural Science) in the 5th respondent Aided Management School for the period from 26.07.2010 to 31.05.2011 within a stipulated time as directed by this Hon'ble Court.

(iii) To issue a writ of mandamus or other appropriate writ, order or direction commanding the 1st respondent to reconsider Exhibit-P12 order and Exhibit-P6 appeal filed by the 5th respondent and Exhibit-P9 application filed by the petitioner within a stipulated time as directed by this Hon'ble Court after hearing the parties and approve the appointment of the petitioner to the post of H.S.A. (Natural Science) in the 5th respondent Aided Management School for the period from 26.07.2010 to 31.05.2011.

(iv) To issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to grant scale of pay to the petitioner after approval of appointment to the post of H.S.A. (Natural Science) in the 5th respondent Aided Management School

for the period from 26.07.2010 to 31.05.2011.

(v) To declare that the petitioner is entitled to get approval of appointment to the post of H.S.A. (Natural Science) in the 5th respondent Aided Management School for the period from 26.07.2010 to 31.05.2011."

2. Sri. B. Mohan Lal, 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.P12 order. The learned counsel also pointed out that in view of

Rule 43 of Chapter XIVA of the KER, the petitioner is having a statutory

right.

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.

4. By order dated 09.08.2021, this Court had directed the learned

Government Pleader to get instructions as to whether the orders have been

passed by the Government on Exts.P6 and P7. Today, when the matter

was taken up, it was submitted that Ext.P6 was filed as early as on

10.05.2013 and the records concerning the same are not traceable.

5. I have considered the submissions advanced. From Exhibit-P12

order, it appears that the request made by the petitioner herein was

rejected on the sole ground that some of the Managers had challenged GO

(P) No.10/10/G.Edn. dated 12.01.2010 and those proceedings are pending

before the Supreme Court. A perusal of Exhibit-P12 would show that

neither the petitioner herein nor the Manager was heard before orders were

passed by the Secretary.

6. 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 bond by

the Managers, it should be deemed to have been executed and they 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 Ext.P12 order would reveal that the request

made by the petitioner herein was rejected on the sole ground that the

proceedings challenging the Government Order were pending before the

Supreme Court. Furthermore, it is apparent from Exhibit-P12 that no

opportunity was granted either to the petitioner or to the Manager to

substantiate their respective contentions. In that view of the matter, Exhibit-

P12 order cannot be sustained.

7. 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) Ext.P12 order passed by the 1st respondent will stand set

aside.

b) The 1st respondent is directed to reconsider Ext.P6 appeal

filed by the 5th respondent and Ext.P9 application filed

by the petitioner and pass 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). 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.

c) While considering the representation, 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.

d) 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 DSV

APPENDIX OF WP(C) 14680/2021

PETITIONER'S EXHIBITS:

Exhibit P1 THE TRUE COPY OF THE ORDER NO.B4/1769/2009/K.DIS DATED 23.06.2009 ISSUED BY THE 4TH RESPONDENT

Exhibit P2 THE TRUE COPY OF THE G.O(RT) NO.2040/10/G.EDN DATED 15.05.2010 ISSUED BY THE GOVERNMENT

Exhibit P3 THE TRUE COPY OF THE APPOINTMENT ORDER DATED 26.07.2010 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER

Exhibit P4 THE TRUE COPY OF THE ORDER NO.2717/A3/2012/G.EDN DATED 26.12.2012 ISSUED BY THE GOVERNMENT TO THE 4TH RESPONDENT

Exhibit P5 THE TRUE COPY OF THE ORDER NO.B4/1445/2013/K.DIS DATED 27.02.2013 ISSUED BY THE 4TH RESPONDENT

Exhibit P6 THE TRUE COPY OF THE APPEAL DATED 10.05.2013 FILED BY THE 5TH RESPONDENT MANAGER BEFORE THE 1ST RESPONDENT

Exhibit P7 THE TRUE COPY OF THE REMINDER NO.SV/059/2014 DATED 05.04.2014 SUBMITTED BY THE 5TH RESPONDENT TO THE 1ST RESPONDENT

Exhibit P8 THE TRUE COPY OF ORDER NO.B4/5220/2016 DATED 17.08.2016 ISSUED BY THE 4TH RESPONDENT

Exhibit P9 THE TRUE COPY OF THE REPRESENTATION DATED 23.11.2017 SUBMITTED BY THE PETITIONER TO THE HON'BLE MINSTER OF EDUCATION

Exhibit P10 THE TRUE COPY OF G.O(MS) NO.1733/2018/G.EDN DATED 16.02.2018 ISSUED BY THE GOVERNMENT

Exhibit P11 THE TRUE COPY OF G.O(MS) NO.2042/2018/G.EDN DATED 02.06.2018

ISSUED BY THE GOVERNMENT

Exhibit P12 THE TRUE COPY OF THE ORDER NO.A3/54/2018/G.EDN DATED 13.09.2018 ISSUED BY THE GOVERNMENT TO THE PETITIONER

Exhibit P13 THE TRUE COPY OF THE COMMON JUDGMENT DATED 09.08.2019 W.A.NO.300/2019 AND OTHER CONNECTED CASES OF THIS HON'BLE COURT

RESPONDENTS EXHIBITS:NIL