T.D.Vincy vs State Of Kerala
2021 Latest Caselaw 18067 Ker

WP(C) NO. 14582 OF 2021      1

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
   FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943
                    WP(C) NO. 14582 OF 2021
PETITIONER/S:

          T.D.VINCY
          AGED 44 YEARS
          FULL TIME MENIAL, SREEMOOLAM SILVER JUBILEE HIGH
          SCHOOL, THYKKATTUSSERY P.O., TURAVOOR,
          ALAPPUZHA DISTRICT.

          BY ADV GEORGE ABRAHAM



RESPONDENT/S:

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

    2     DIRECTOR OF GENERAL EDUCATION,
          JAGATHY, THIRUVANANTHAPURAM - 695 033.

    3     ASSISTANT EDUCATIONAL OFFICER,
          CHERTHALA, ALAPPUZHA - 688 524.

    4     THE CORPORATE MANAGER
          ERNAKULAM - ANGAMALY ARCH DIOSIS, KALOOR, ERNAKULAM,
          COCHIN - 17.

          SMT NISHA BOSE, SR GP




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 14582 OF 2021                   2

                                       JUDGMENT

The petitioner states that she was initially appointed as Full Time Menial

in the St. Raphael's High School, Ezhupunna, an aided school, under the

management of the 4th respondent. The said appointment was made to an

additional division vacancy available in the said school during the academic

year 2009-10. The petitioner states that her appointment was initially rejected

on the ground that the Manager had not executed the bond in terms of the

Government order dated 17.8.2005. However, later, her appointment was

approved with effect from 1.6.2011 by including her in the package brought

out by the Government.

2. The petitioner contends that she is entitled to get approval from

12.6.2009 onwards. Narrating her grievances, the petitioner approached this

Court and pursuant to directions issued, in W.P(C) No.7200/2020, her

representation was considered. However, her request was rejected by Ext.P4

order holding that since the appeal filed by the Corporate Manager was

pending consideration of the Hon'ble Supreme Court, her request cannot be

acceded to. The above order is under challenge in this writ petition, which is

filed seeking the following reliefs.

(i) to issue a writ of certiorari; or any other appropriate writ, order or direction, to quash Exhibit P4 order passed by the 1st respondent.

(ii) to issue a writ of certiorari; or any other appropriate writ, order or

direction, to quash Exhibit P1 order, to the extent it denies approval of appointment of the petitioner as Full Time Menial with effect from 12.6.2009 onwards.

(iii) to issue a writ of mandamus; or any other appropriate writ, order or direction, directing the respondents to approve the appointment of the petitioner as Full Time Menial from 12.6.2009 onwards and grant all consequential benefits.

3. Dr.George Abraham, 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 hands, 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.P4 order.

4. 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 hand 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.

5. I have considered the submissions advanced. In view of the

nature of the order that I propose to pass, notice to the party respondent is

dispensed with.

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],

and in the judgment dated 9.8.2019 in WA 332 of 2017 and connected cases

have 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 Ext.P4 order passed by the 1st respondent would reveal that the main

reason for rejecting the claim is the pendency of the writ petition filed by the

Managers challenging the Government Order dated 12.1.2010. I am of the

opinion that having regard to the view taken by this Court in identical cases,

the respondents were bound to pass orders by deeming that the Managers had

executed the bond and also that they would be obliged to make appointments

from the list of protected hands equal to the number of appointments

approved during the ban period.

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 the petitioner is entitled to succeed.

1. Ext.P4 cannot be sustained and the same is set aside.

2. There will be a direction to the 1st respondent to reconsider

Ext.P2, as per procedure and in strict adherence to the

provisions of law. An opportunity of being heard, either

physically or virtually, shall be afforded to the petitioner or

her authorised representative, the Manager as well as

affected parties, if any.

3. While considering the revision petition, the 1st respondent

shall deem that the Manager executed the bond and also

that they would be obliged to make appointments from the

list of protected hands to the number of appointments

approved during the ban period. Needless to mention, the

order passed as aforesaid would be subject to the final

orders to be rendered by the Hon'ble Supreme Court in the

petition filed by the Managers.

4. Orders, as directed above, shall be passed expeditiously, in

any event, within a period of three months from the date of

production of a copy of this judgment.

5. The petitioner shall produce a copy of the writ petition along

with the judgment before the concerned respondent for

further action.

This writ petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE sru

APPENDIX OF WP(C) 14582/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER SHOWING APPROVAL OF APPOINTMENT FROM 1/6/2011.

Exhibit P2 TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER DATED 28/3/2020.

Exhibit P3 TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BEFORE THE 1ST RESPONDENT.

Exhibit P4 TRUE COPY OF THE GOVERNMENT ORDER GO(RT) NO.2827/2021/G.EDN. DATED 24/5/2021.

RESPONDENTS EXHIBITS:NIL