Anitha R.K vs State Of Kerala
2022 Latest Caselaw 11329 Ker

WP(C) NO. 11776 OF 2020              1




                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
         THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
   FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
                        WP(C) NO. 11776 OF 2020


PETITIONER/S:

          ANITHA R.K.
          AGED 35 YEARS
          W/O MANIKANDAN V, UPPER PRIMARY SCHOOL TEACHER,
          P.S.A UPPER PRIMARY SCHOOL, KIZHATTUR,
          MALAPPURAM-679 325.

          BY ADVS.
          K.JAJU BABU (SR.)
          SMT.M.U.VIJAYALAKSHMI
          SRI.BRIJESH MOHAN


RESPONDENT/S:

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

    2     THE DIRECTOR OF GENERAL EDUCATION
          DIRECTORATE OF GENERAL EDUCATION,
          JAGATHI, THIRUVANANTHAPURAM-695 014.

    3     THE DEPUTY DIRECTOR OF EDUCATION,
          MALAPPURAM-676 505.

    4     THE ASSISTANT EDUCATIONAL OFFICER,
          MELATTUR, MALAPPURAM DISTRICT-679 326.
 WP(C) NO. 11776 OF 2020           2




    5     THE MANAGER,
          P.S.A UPPER PRIMARY SCHOOL, KIZHATTUR,
          MALAPPURAM-679 325.

          BY ADVS.
          SRI.L.RAM MOHAN

          SMT. MARY BEENA JOSEPH, SR. GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 11776 OF 2020                    3




                                   JUDGMENT

The petitioner states that she was appointed as Upper Primary School

Assistant with effect from 18.07.2016 in a retirement vacancy as per Ext.P1

order. However, the approval was rejected by Ext.P2 order on the ground that

the retirement vacancy, which was kept unfilled for more than one year, would

cease to exist. Though the manager preferred an appeal before the DEO, the

same was also rejected. The petitioner contends that the 4th respondent has

now issued Ext.P4 order stating that the approval of appointment can be

approved only after disposal of the Writ Appeal No.2321/2017, pending before

this Court. The petitioner contends that the said order cannot be sustained.

2. The petitioner asserts that the stand taken by the respondents while

issuing Exts.P2, P3, and P4 cannot be sustained in view of Ext.P5 order issued

by the Government wherein it has been held that the post will not cease to

exist on expiry of one year even if it is not filled up. The petitioner states that

later she has been granted approval with effect from 12.06.2018 by Ext.P6

order. Being aggrieved by the non-grant of approval with effect from

18.07.2016 to 11.06.2018, the petitioner is before this Court seeking

directions.

3. Sri. Brijesh Mohan, the learned counsel appearing for the petitioner,

would refer to Ext.P2, and it is submitted that the only reason stated therein

is based on G.O.(P) No.1201/2001 Fin. dated 22.10.2001. It is also pointed

out that a Division Bench of this Court in State of Kerala and others Vs. Jayan

and others [2009 (3) KLT 857] have taken the view that the said Government

Order would not apply to aided schools and, therefore, the order issued by

the respondents cannot be sustained under law. It is also submitted that the

same view was taken by the Government while issuing Ext.P5 order, and it

was held that in view of the law laid down in Jayan (supra), the petitioner

therein is entitled to succeed.

4. Heard the learned Government Pleader, and I have considered the

submissions advanced.

5. As rightly submitted by the learned counsel appearing for the

petitioner, Ext.P2 is based on the Government Order, which was found to be

not applicable to aided schools. The same view was taken in Ext.P5 as well.

In that view of the matter Ext.P2 cannot be sustained under law, and the

same is quashed. There will be a direction to the 4th respondent to consider

the matter and grant approval of the appointment of the petitioner in terms

of Ext.P1. All consequential benefits shall be disbursed to the petitioner. The

above exercise shall be completed within a period of three months from the

date of receipt of a copy of this judgment.

This writ petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE NS

APPENDIX OF WP(C) 11776/2020

PETITIONER(S) EXHIBITS :

EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 18.7.2016 ISSUED TO THE PETITIONER BY THE 5TH RESPONDENT EXHIBIT P2 TRUE COPY OF ORDER NO K.DIS C/1929/16 DATED 31.3.2017 ISSUED BY THE 4TH RESPONDENT EXHIBIT P3 TRUE COPY OF 2435/2018/G.EDN DATED 28.6.2018 ISSUED BY THE GOVERNMENT EXHIBIT P4 TRUE COPY OF ORDER NO C/287/2019 DATED 14.2.2019 ISSUED BY THE 4TH RESPONDENT EXHIBIT P5 TRUE COPY OF GO(RT) NO 5467/2018/G.EDN DATED 29.12.2018 ISSUED BY GOVERNMENT EXHIBIT P6 TRUE COPY OF APPOINTMENT ORDER DATED 12.6.2018 AND APPROVAL ORDER NO K.DIS C/1210/2018 DATED 30.10.2018 ISSUED BY THE 4TH RESPONDENT

RESPONDENT(S) EXHIBITS : NIL