Kerala High Court
The Manager vs The State Of Kerala on 6 July, 2022
WP(C) NO. 2566 OF 2021 1
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. 2566 OF 2021
PETITIONER/S:
THE MANAGER,
AL-FAROOKHIYA H.S, CHERANALLOOR,
ERNAKULAM-682 034, REPRESENTED BY CORPORATE
MANAGER, CORPORATE EDUCATIONAL AGENCY,
MARKAZU SAQUAFATHI SUNNIYYA, KARANTHOOR,
KOZHIKODE-673 571.
BY ADVS.
P.J.MATHEW
SRI.EBIN MATHEW
SMT.AKHILA SHOJI
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT ANNEX-II,
THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF GENERAL EDUCATION,
JAGATHY, THIRUVANANTHAPURAM, PIN-695 014.
3 THE DEPUTY DIRECTOR OF EDUCATION,
CIVIL STATION, ERNAKULAM, PIN-682 030.
4 THE DISTRICT EDUCATIONAL OFFICER,
ERNAKULAM, PIN-682 312.
5 SREEDEVI T,
UPST, AL-FAROOKHIYYA H.S,CHERANELLOOR,
ERNAKULAM-682 034.
WP(C) NO. 2566 OF 2021 2
6 MUHAMMED RAFIQUE C.A,
OFFICE ATTENDANT, AL-FAROOKHIYA HIGH SCHOOL,
CHERANELLOOR, ERNAKULAM-682 034.
7 AMEER M.S,
FULL-TIME MENIAL OFFICE ATTENDANT,
AL-FAROOKHIYA HIGH SCHOOL, CHERANELLOOR,
ERNAKULAM-682 034.
BY ADVS.
SRI.D.ANIL KUMAR
SRI.SAIJO HASSAN
SRI.BENOJ C AUGUSTIN
SRI.RAFEEK. V.K.
SRI.U.M.HASSAN
SMT.P.PARVATHY
SHRI.MANAS P HAMEED
SMT. NISHA BOSE, SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 2566 OF 2021 3
JUDGMENT
The instant writ petition is filed by the petitioner who functions as the
Manager of the Al-Farookhiya High School, Cheranalloor seeking a declaration
that Ext.P4 bond executed by him to accommodate equal number of
protected teachers is invalid and unenforceable and also for issuance of a
writ of mandamus commanding the respondents to approve the appointment
of respondents 5 to 7 from their respective dates of appointment and for
incidental reliefs.
2. The short facts are as under:
The petitioner herein is the Manager of Al-Farookhiya High School,
Cheranalloor. In view of the economic ban imposed by the Government, the
appointments made by the petitioner in the year 2006-2007 in anticipation of
sanctioning of additional posts were rejected by Ext.P1 order by the 4th
respondent. It is contended that during the academic year 2008-2009 and
2009-2010, two additional posts of UPSAs were lost due to division fall.
However, in view of Ext.P2 staff fixation order dated 22.03.2011 for the
academic years commencing from 2006-2007 to 2010-2011, one additional
post of HSA and two posts of UPSAs were sanctioned in respect of the
academic year 2006-2007. However, as per Ext.P3 staff fixation order for the
academic year 2012-2013, the additional posts sanctioned in 2006-2007 were
abolished. While so, a certain Sabitha Mytheen T.M., HSA working in the
school approached this Court being aggrieved by the non approval of her
post and, in compliance of the judgment rendered by this Court, the
petitioner filed Ext.P4 declaration that in future vacancies, protected teachers
would be appointed conforming to the 1:1 ratio in tune with G.O.(P)
No.10/10/G.Edn. dated 12.01.2010.
3. The petitioner contends that the posts sanctioned and approved on
the strength of Ext.P4 have all been abolished and consequently, the
teachers were absorbed in regular posts that arose due to retirement.
According to the petitioner, in view of the above turn of events, the
petitioner is not bound to appoint an equal number of protected teachers in
the school.
4. The petitioner contends that the 5th respondent, who was absorbed
in a regular vacancy with effect from 02.06.2006 approached the
Government and preferred a revision petition and pursuant to directions
issued by this Court, the 1st respondent, after considering the contentions of
all concerned, has issued Ext.P5 order directing the DEO to approve the
appointment after ensuring that the petitioner complies with the conditions
stated in Ext.P4 declaration/bond. According to the petitioner, as the teachers
were absorbed in retirement vacancies, there is no justification on the part of
the 1st respondent to insist that protected teachers should be appointed.
5. It is further contended that the petitioner had appointed the 6th
respondent after promoting him from the post of Full Time Menial (FTM) in a
retirement vacancy which arose on 31.03.2020. In the resultant vacancy
which arose due to the promotion of the 6th respondent, the 7th respondent
was appointed as FTM with effect from 17.08.2020. The proposals for
approval of the appointment of respondents 6 and 7 were rejected by the 4th
respondent by Exts.P6 and P7 orders on the ground that the petitioner had
failed to comply with the conditions of the bond.
6. The petitioner contends that as he has appointed 12 protected
teachers, the respondents are not justified in insisting that regular posts
ought to be set apart as directed in Exts.P5 to P7. It is in the afore
circumstances that the petitioner is before this Court seeking a declaration
that Ext.P4 bond is invalid and for a further direction commanding the official
respondents to approve the appointments of respondents 5 to 7 from their
respective dates of appointments.
7. A counter affidavit has been filed by the 4th respondent. After
narrating the sequence of events, it is stated that the petitioner has already
executed the bond and hence, he is bound to appoint protected teachers in
terms of G.O.(P) No.10/10/G.Edn. It is stated that the appointment of
respondents 6 and 7 were made during the academic year 2020-2021 and as
the petitioner has executed a bond declaration in terms of G.O.(P)
No.4/2021/G.Edn dated 06.02.2021, the proposal for approval of respondents
6 and 7 cannot be approved.
8. A counter affidavit has been filed by the 5th respondent wherein it
is stated that she was appointed as UPSA on 03.07.2006 against an
additional anticipated post for the academic year 2006-2007. According to the
said respondent, when the proposal for approval for the period from
03.07.2006 to 01.06.2008 was rejected, a revision petition was preferred and
pursuant to directions issued by this Court, Ext.P5 order was passed by the
1st respondent on 3.01.2020. The Manager was also heard before passing
the said order. The said order has become final. When the District
Educational Officer (DEO) refused to grant approval of the appointment of
respondents 6 and 7 for non compliance of the conditions of bond by the
Manager, the petitioner has chosen to challenge Ext.P5 order, that too after
the lapse of one year. Furthermore, instead of challenging Exts.P6 and P7
orders, which are appealable, the petitioner has chosen to challenge the said
orders belatedly before this Court. It is stated that the attempt of the
Manager is to water down the bond after obtaining the benefits of the same.
9. In the counter affidavit filed by respondents 6 and 7, they have
supported the stand of the petitioner and according to them, as additional
posts created in the academic year 2006-2007 have already been abolished
and the incumbents having been appointed in regular vacancies, the bond
executed by the Manager cannot be enforced.
10. I have heard Sri.P.J Mathew, the learned counsel appearing for the
petitioner, Sri. D. Anil Kumar, the learned counsel appearing for the 5th
respondent, Sri.Rafeek V.K., the learned counsel appearing for respondents 6
and 7, and Smt. Nisha Bose, the learned Government Pleader.
11. I have considered the submissions advanced and have perused the
records.
12. It is undisputed that the petitioner had submitted a bond
declaration undertaking that he shall appoint protected teachers on the basis
of G.O.(P) No.10/10 G.Edn. dated 12.01.2010. In terms of the bond, the
petitioner was bound to appoint protected teachers. I also find that in terms
of Ext.P5 order, the 1st respondent had directed the grant of approval of
appointment of the 5th respondent by ensuring that the manager had
executed the bond. However, from the stand taken by the Government and
also the counter affidavit of the 5th respondent, it appears that the petitioner
has not so far submitted the appointment proposal in so far as the 5th
respondent is concerned. The petitioner is bound to comply with G.O.(P)
No.4/2021 dated 06.02.2021 by virtue of which, guidelines were issued by
the Government for the approval of appointments made against additional
posts and other regular posts for the period from 2016-2017 to 2019-2020.
Undisputedly, the appointment of the 6th respondent is for the period 2020-
2021 and being a Rule 43 claimant, the said respondent has a claim to the
post of Office Attendant. I am not impressed with the contention advanced
by the learned counsel that the bond declaration executed by the petitioner
would lapse as the additional posts were abolished. No materials have been
produced before this Court by the petitioner to substantiate that he has
appointed protected teachers in compliance with the bond executed.
Furthermore, Ext.P5 order passed by the 1st respondent was issued on
03.01.2020 after hearing all concerned and it was after rejection of the
proposal for approval of the appointment of the 6th respondent that the
petitioner has chosen to challenge Ext.P5 order.
13. Having considered the entire facts, I am of the view that the
petitioner has not made out any case for the reliefs sought for. The petitioner
is bound to comply with the conditions of Ext.P4 bond. The petitioner is also
bound to submit the appointment proposal of the 5th respondent so that
steps can be taken by the educational authorities to act in terms of Ext.P5
order. Furthermore, I find that the petitioner has already challenged Ext.P6
order by preferring an appeal before the 3rd respondent and the same is
pending. In the facts and circumstances, I find no reason to interfere with
the orders passed by the respondents in exercise of the discretionary powers
under Article 226 of the Constitution of India.
This writ petition will stand dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
NS
APPENDIX OF WP(C) 2566/2021
PETITIONER(S) EXHIBITS :
EXHIBIT P1 A TRUE COPY OF THE ORDER OF THE 4TH
RESPONDENT DATED 3.6.2008
EXHIBIT P2 A TRUE COPY OF THE STAFF-FIXATION ORDER
DATED 22.3.2011 ISSUED BY THE 4TH
RESPONDENT
EXHIBIT P3 A TRUE COPY OF THE STAFF-FIXATION ORDER
FOR 2012-13.
EXHIBIT P4 A TRUE COPY OF THE DECLARATION DATED
17.12.2010 ALONG WITH TYPED COPY
EXHIBIT P5 A TRUE COPY OF ORDER DATED 3.1.2020 ISSUED
BY THE 1ST RESPONDENT
EXHIBIT P6 A TRUE COPY OF THE ORDER OF THE 4TH
RESPONDENT DATED 15.01.2021
EXHIBIT P7 TRUE COPY OF GO(P) NO.3/2017 DATED
25.2.2017 A TRUE COPY OF THE ORDER OF THE
4TH RESPONDENT DATED 31.12.2020
EXHIBIT P8 A TRUE COPY OF THE GOVERNMENT ORDER GO(P)
NO.10/2010/G.EDN DATED 12.1.2010
RESPONDENT(S) EXHIBITS :
EXHIBIT R5(a) TRUE COPY OF THE JUDGMENT IN W.P.(C)
NO.17948/2019 DATED 2.7.2019.
EXHIBIT R6(a) TRUE COPY OF APPOINTMENT ORDER DATED
17.06.2020 ISSUED BY THE PETITIONER IN
FAVOUR OF THE 6TH RESPONDENT.
EXHIBIT R6(b) TRUE COPY OF APPOINTMENT ORDER DATED
17.08.2020 ISSUED BY THE PETITIONER IN
FAVOUR OF THE 7TH RESPONDENT.
