Aswathy M.S vs State Of Kerala
2022 Latest Caselaw 8442 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
      THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
  WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944

                  WP(C) NO. 23272 OF 2018

PETITIONER/S:

           ASWATHY M.S
           AGED 34 YEARS
           W/O. SUNIL KUMAR,
           AGED 34 YEARS, U.P.S.A,
           S.V.P.H.S VADAKKUMTHALA,CHAVARA,
           KARUNAGAPPALLY, KOLLAM,
           RESIDING AT MADATHIL VEEDU,
           VADAKKUMATHALA.P.O., KARUNAGAPPALLY, KOLLAM.

           BY ADV SRI.B.MOHANLAL

RESPONDENT/S:

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

    2      THE DIRECTOR OF PUBLIC INSTRUCTIONS
           JAGATHY.P.O.,THIRUVANANTHAPURAM-695 014

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

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

    5      THE MANAGER
           S.V.P.M.H.S, VADAKKUMTHALA,
           VADAKKUMTHALA.P.O., KARUNAGAPPALLY,
           KOLLAM- 690536

    6      SMT. NUSRATH AHAMMED
           U.P.S.A., S.V.P.M.H.S, VADAKKUMTHALA,
           RESIDING AT MUNDAYIL HOUSE,VADAKKUMTHALA.P.O.,
           KARUNAGAPPALLY, KOLLAM- 690 536.
 WP(C) NOs. 23272 & 26881 OF 2018

                                   2


              BY ADVS.
              GOVERNMENT PLEADER
              M.R.ANISON
              SRI.S.ABDUL RAZZAK
              V.BHARGAVI (PANANGAD)

              SMT NISHA BOSE SR GP


        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
   ADMISSION ON 06.07.2022, ALONG WITH WP(C).26881/2018, THE
   COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NOs. 23272 & 26881 OF 2018

                                   3



               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
     WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944

                       WP(C) NO. 26881 OF 2018

   PETITIONER/S:

                NUSRATH AHAMMED
                AGED 30 YEARS
                W/O. MR. JASSIM,
                MUNDAYIL HOUSE, UPSA, SVPM.H.S.,
                VADAKKUMTHALA P.O., KARUNAGAPPLY,
                KOLLAM. 690 536.

                BY ADV SRI.S.ABDUL RAZZAK

   RESPONDENT/S:

       1        THE MANAGER, SVPM .H.S.
                VADAKKUMTHALA P.O, KARUNAGAPALLY,
                KOLLAM. 690 536.

       2        THE DISTRICT EDUCATIONAL OFFICER
                KOLLAM 691 013.

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

       4        THE DIRECTOR OF PUBLIC INSTRUCTION
                THIRUVANANTHAPURAM - 695 014.

       5        GOVERNMENT OF KERALA
                GENERAL EDUCATION DEPARTMENT,
                REPRESENTED BY SECRETARY TO GOVERNMENT,
                GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM - 695 001.
 WP(C) NOs. 23272 & 26881 OF 2018

                                   4


       6      ASWATHY M.S.
              MADATHIL VEEDU, VADAKKUMTHALA P.O,
              KARUNAGAPPALLY, KOLLAM 690 536.

              BY ADVS.
              M.R.ANISON
              GOVERNMENT PLEADER
              SRI.B.MOHANLAL
              V.BHARGAVI (PANANGAD)


        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
   ADMISSION ON 06.07.2022, ALONG WITH WP(C).23272/2018, THE
   COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NOs. 23272 & 26881 OF 2018

                                       5


                                  JUDGMENT

W.P.(C) No. 23272/2018 is filed by Smt. Aswathy M.S., who is

working as UPSA in S.V.P.M.H.S., Vadakkumthala, seeking approval of her

appointment with effect from 3.7.2017. She has also sought for

implementing Ext.P7 order as per which, the Manager has been directed

by the Deputy Director to cancel the approval of appointment of Smt.

Nusrath Ahammed, the 6th respondent in the said writ petition.

2. W.P.(C) No. 26881/2018 is filed by Smt. Nusrath Ahammed,

seeking to quash Ext.P8 order issued by the Deputy Director ordering the

cancellation of the approval and Ext.P10 order issued by the DPI refusing

to interfere with the said order on the ground that the Deputy Director had

passed the order based on court orders and therefore, no interference is

warranted.

3. As common issues are involved, both these writ petitions are

taken up and disposed of by a common judgment. The parties and

exhibits shall be described as in W.P.(C) No. 26881/2018.

4. Smt. Aswathy and Smt. Nusrath were fresh hands, who were

appointed as UPSTs in the school during the academic year 2017-2018.

The appointment of Smt.Nusrath as UPSA was approved with effect from

5.7.2017. However, the proposal for approval of Smt. Aswathy was

rejected for want of vacancy. Smt. Aswathy preferred a representation WP(C) NOs. 23272 & 26881 OF 2018

before the Educational Authorities seeking to cancel the grant of approval

to Smt. Nusrath. While so, the Manager submitted a request before the

DEO, wherein it is stated that some error had crept in while issuing the

appointment order in respect of Smt. Aswathy and it was mentioned

therein that the nature of vacancy against which appointment was made

was erroneously furnished as the promotion vacancy of Sri. Rajeev

Chandran Pillai and the said vacancy was not available as on 3.7.2017. It

was also stated therein that the appointment of Smt. Aswathy has to be

considered against the vacancy which arose due to the promotion of Smt.

Sheela Chandran. A request was also made to cancel the approval of the

appointment granted to Smt. Nusrath Ahammed with effect from 5.7.2017

against the vacancy caused due to the promotion of Smt. Sheela Chandran

and to consider the appointment of Smt. Aswathy against that vacancy

with effect from 3.7.2017. The Manager further requested that the

appointment of Smt. Nusrath Ahammed be considered for approval with

effect from 15.7.2017 against one of the additional vacancies sanctioned

for 2017-2018.

5. Seeking expeditious consideration of the request made by the

Manager, Smt. Aswathy approached this court and filed a writ petition and

pursuant to Ext.P7 judgment, Ext.P8 order was passed by the Deputy

Director ordering the 4th respondent to cancel Ext.P3 approval granted to WP(C) NOs. 23272 & 26881 OF 2018

Smt. Nusrath Ahammed. When no action was taken, Smt. Aswathy

preferred a representation before the DEO seeking emergent action.

6. Smt. Nusrath Ahammed, being aggrieved by the order passed

by the Deputy Director, preferred a revision petition before the Director.

However, the said revision petition was refused to be considered by the

Director on the sole ground that the Deputy Director had passed the order

pursuant to the directions issued by this Court in W.P.(C) No.7197/2018.

Smt. Nusrath contends that this Court had only directed the Deputy

Director to consider the matter on its merits and therefore, there was no

justification on the part of the Director in not considering the legality of the

orders passed by the Subordinate authority.

7. In the counter affidavit filed by the Manger, it is pointed out

that ten more regular UPSA vacancies arose in the school during the year

2018-2019 onwards which were filled up by the Manager. Due to the

pendency of the above writ petitions, the approval of their appointment

has not been granted to date.

8. I have considered the submissions advanced.

9. I find that, the main grievance of Smt. Nusrath is that the

revision petition filed by her before the DPI challenging the order passed

by the Deputy Director cancelling her approval was rejected on the sole

ground that the Deputy Director had passed the order pursuant to the WP(C) NOs. 23272 & 26881 OF 2018

directions issued by this Court in W.P.(C) No. 7197/2018. From Ext.P7

judgment, I find that this Court had not issued any positive directions to

cancel the approval but had only directed the DDE to consider the

representation and to pass orders after hearing all concerned. There

appears to be considerable merit in the submission of Sri. Razzak that

serious prejudice has been caused to Smt. Nusrath owing to the failure of

the DPI to consider the grievances of the petitioner on its merits. I am of

the view that Ext.P10 order passed by the DPI cannot be sustained as the

said authority has abdicated its duty by not considering the issue on its

merits.

10. I take notice of the contention of Smt. V.P.Seemanthini, the

learned Senior counsel appearing for the Manager, that the approval of the

teachers appointed by the Manager is not being granted by the

educational authorities on the ground of the pendency of these writ

petitions. However, unless the matter is heard on its merits by the DPI,

grant of approval may not be possible as it may lead to other vexing issues

as pointed out by the learned counsel. I am of the view that it would be in

the interest of all concerned to set aside Ext.P10 order and to issue

directions to the DGE to consider the revision petition afresh, after

affording an opportunity to all the parties to advance their contentions. WP(C) NOs. 23272 & 26881 OF 2018

11. 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.P10 order in W.P.(C) 26881/2018 will stand quashed.

b) There will be a direction to the 4th respondent to reconsider and pass appropriate orders on Ext.P9 revision petition filed by the petitioner in W.P.(C.) No. 26881/2018, after affording an opportunity of being heard, either physically or virtually, to the petitioners in both the writ petitions, the Manager and other affected parties, if any.

c) Orders, as directed above, shall be passed expeditiously, in any event, within a period of two months from the date of production of a copy of this judgment.

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.

This writ petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE

avs WP(C) NOs. 23272 & 26881 OF 2018

APPENDIX OF WP(C) 26881/2018

PETITIONER EXHIBITS

EXHIBIT P1 PHOTOCOPY OF DEGREE OF MASTER OF SCIENCE

EXHIBIT P2 PHOTOCOPY OF DEGREE OF MASTER OF EDUCATION

EXHIBIT P3 PHOTOCOPY OF APPOINTMENT ORDER DATED 05/07/2017 WITH APPROVAL ORDER.

EXHIBIT P4 PHOTOCOPY OF APPOINTMENT ORDER DATED 03/07/2017

EXHIBIT P5 PHOTOCOPY OF REVISION PETITION BY R6 TO R4 DATED 17/02/2018.

EXHIBIT P6 PHOTOCOPY OF REPORT BY R2 TO R4, DATED 16/03/2018.

EXHIBIT P7 PHOTOCOPY OF JUDGMENT DATED 02/03/2018 IN WP(C) NO. 7197/2018.

EXHIBIT P8 PHOTOCOPY OF ORDER NO. B3/3841/2018/K. DIS. DATED 14/05/2018.

EXHIBIT P9 PHOTOCOPY OF PETITIONER'S REVISION PETITION DATED 11/06/2018 BEFORE R4.

EXHIBIT P10 PHOTOCOPY OF ORDER NO. DPI/82261/2018/ETI DATED 18/07/2018.

RESPONDENT EXHIBITS

Exhibit R1(a) A TRUE COPY OF THE APPROVAL ORDER OF THE PETITIONER BEARING NO.B5/101633/2020 DATED 04.10.2020 ISSUED BY THE 2ND RESPONDENT.

Exhibit R1(b) A TRUE COPY OF THE APPROVAL ORDER OF THE 6TH RESPONDENT BEARING NO.B5/101630/2020 DATED 04.10.2020 ISSUED BY THE 2ND RESPONDENT.

Exhibit R1(c) A TRUE COPY OF THE ORDER BEARING NO.B1/12711/2020 DATED 17.02.2021 ISSUED BY THE 3RD RESPONDENT. WP(C) NOs. 23272 & 26881 OF 2018

Exhibit R1(d) A TRUE COPY OF THE ORDER BEARING NO.B5/3056/2021/K.DIS DATED 22.09.2021 ISSUED BY THE 2ND RESPONDENT.

Exhibit R6(A) TRUE COPY OF THE G.O(MS) 275/1999/G.EDN. DATED 09/11/1999 ISSUED BY THE GOVERNMENT WP(C) NOs. 23272 & 26881 OF 2018

APPENDIX OF WP(C) 23272/2018

PETITIONER EXHIBITS

EXHIBIT P1 THE TRUE COPY OF APPOINTMENT ORDER DATED 3.7.2017 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER AND ITS APPROVAL ORDER

EXHIBIT P2 THE TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 5TH RESPONDENT TO THE AND ITS APPROVAL ORDER

EXHIBIT P3 THE TRUE COPY OF THE JUDGMENT DATED 21.12.2009 IN WPC NO.35993/2008 OF THIS HON'BLE COURT

EXHIBIT P4 THE TRUE COPY OF THE REPRESENTATION DATED 17.2.2018 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS

EXHIBIT P5 THE TRUE COPY OF THE REQUEST DATED 18.2.2018 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 3RD RESPONDENT

EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT DATED 2.3.2018 IN WPC NO 7197/2018 OF THIS HON'BLE COURT

EXHIBIT P7 THE TRUE COPY OF THE ORDER NO.B3/3841/2018/K.DIS DATED 14.5.2018 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P8 THE TRUE COPY OF THE REPRESENTATION DATED 30.6.2018 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT

RESPONDENT EXHIBITS

Exhibit R5(a) A TRUE COPY OF THE ORDER BEARING NO.B1/12711/2020 DATED 17.02.2021 ISSUED BY THE 3RD RESPONDENT.

Exhibit R5(b) A TRUE COPY OF THE PROPOSAL SUBMITTED BY THIS RESPONDENT BEFORE THE 4TH RESPONDENT DATED 20.10.2020 WP(C) NOs. 23272 & 26881 OF 2018

Exhibit R5(c) A TRUE COPY OF THE JUDGMENT DATED 12.08.2021 IN W.P.(C.) NO. 16566/2021

Exhibit R5(d) A TRUE COPY OF THE ORDER BEARING NO.B5/3056/2021/K.DIS DATED 22.09.2021 ISSUED BY THE 4TH RESPONDENT.

Exhibit R5(e) A TRUE COPY OF THE APPROVAL ORDER OF THE 6TH RESPONDENT BEARING NO.B5/101630/2020 DATED 04.10.2020 ISSUED BY THE 4th RESPONDENT.

Exhibit R5(f) A TRUE COPY OF ORDER OF THE PETITIONER BEARING NO.B5/101633/2020 DATED 04.10.2020 ISSUED BY THE 4TH RESPONDENT.