Jaina Jose.C vs The State Of Kerala
2022 Latest Caselaw 6226 Ker

WP(C) NO. 6934 OF 2022            1



            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
     FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
                     WP(C) NO. 6934 OF 2022


PETITIONER/S:

    1     JAINA JOSE.C
          AGED 40 YEARS
          W/O. SURAJ SIMON, UPSA, ST. M.M C U P SCHOOL,
          KANIPAYUR, THRISSUR DISTRICT-680 517
          (RESIDING AT CHERUVATHUR HOUSE, PORKKALANGAD,
          KUNNAMKULAM, THRISSUR DISTRICT 680 517)

    2     LEENA C.J
          AGED 44 YEARS
          W/O. BINU P ABRAHAM, UPSA, ST. M.M M C U P SCHOOL,
          KANIPAYUR, THRISSUR DISTRICT 680 517 (RESIDING AT
          PULIKKOTTIL HOUSE, PAZHANJI,
          THRISSUR DISTRICT 680 542)

    3     LEYA PAUL P
          AGED 40 YEARS
          W/O. ANIL K SAMUEL, UPSA, ST. M.M M C U P SCHOOL,
          KANIPAYUR, THRISSUR DISTRICT 680 517
          (RESIDING AT KOLLANOOR HOUSE, KUNNAMKULAM,
           THRISSUR DISTRICT 680 505

          BY ADVS.
          V.RAJASEKHARAN NAIR
          M.H.SHAJAHAN RAWTHER


RESPONDENT/S:

    1     THE STATE OF KERALA
          REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
          GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE II,
          THIRUVANANTHAPURAM 695 001

    2     THE DIRECTOR OF GENERAL EDUCATION,
          JAGATHY, THIRUVANANT4HAPURAM 695 014
 WP(C) NO. 6934 OF 2022            2



    3     THE DISTRICT EDUCATIONAL OFFICER
          CHAVAKKAD, THRISSUR DISTRICT 680 506

    4     THE ASSISTANT EDUCATIONAL OFFICER
          KUNNAMKULAM, THRISSUR DISTRICT 680 503

    5     MANAGER
          ST. M.M C U P SCHOOL, KANIPAYUR,
          THRISSUR DISTRICT 680 517

    6     THE HEADMASTER
          ST. M.M C U P SCHOOL, KANIPAYUR,
          THRISSUR DISTRICT 680 517



          SRI PREMCHAND R NAIR, SR GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 6934 OF 2022                     3



                                 JUDGMENT

The petitioners contend that they were working as UPSAs in the St.

M.M.C.U.P. School, Kanipayur. According to the 1st petitioner, she was

appointed as UPSA in the aforesaid school against an anticipated additional

division vacancy with effect from 17.08.2006 as per Ext.P1 order. The 2nd

petitioner was appointed as UPSA in the aforesaid school with effect from

11.09.2006 onwards against an additional division vacancy as per Ext.P5 order

and the 3rd petitioner was appointed as UPSA in the aforesaid school with

effect from 01.06.2007 onwards against an additional division vacancy as per

Ext.P12 order.

2. The grievance of the petitioners is with regard to the refusal on the

part of the respondents to grant approval of their appointments for the period

from 17.08.2006 to 31.05.2007, 11.09.2006 to 01.06.2008 and 01.06.2007 to

01.06.2009 respectively.

3. It is contended by the petitioners that the Government had, as per

G.O.(P) No.317/2005/G.Edn. dated 17.8.2005, imposed a ban on the

appointment of teachers and non-teaching staff in additional division vacancies.

Later, by G.O.(P) No.10/10/G.Edn. dated 12.1.2010, the ban on appointments

was lifted subject to certain conditions. One among the conditions was that the

Managers should execute a consent letter undertaking that in future vacancies,

protected teachers equal to the number of teachers, appointed to the additional

division vacancies during the period 2006-07 to 2009-10, would be appointed.

Thereafter, the Government issued G.O.(P)No.199/2011/G.Edn dated

01.06.2011 approving the recommendations for implementation of the

comprehensive teacher's package for appointment of deployed/protected

teachers. The petitioners were also included in the package and their

appointments were regularised with effect from 1.6.2011. According to the

petitioners, similarly placed teachers had approached this Court and by various

judgments, this Court had directed the respondents to approve the appointment

from the date of appointment by deeming that the manager has executed the

bond. It is contended that the petitioners have filed Exhibits P19, P20, and P21

representations before the Government seeking approval of their appointments

treating that the manager has executed the bond.

4. Sri. V. Rajasekharan Nair, the learned counsel appearing for the

petitioners 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. Though various other prayers were sought, when the

matter came up for consideration, the learned counsel appearing for the

petitioners submitted that the representations submitted by the petitioners be

heard and disposed of in the light of the law laid down by this court.

5. The learned Government Pleader, on instructions, 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.

6. In the nature of the order that I propose to pass, notice to the party

respondents is dispensed with.

7. I have considered the submissions advanced. The writ petitioners

were appointed during the period when the ban, pursuant to G.O.(P)

No.10/10/G.Edn. Dated 12.1.2010, was in force. The appointments of the

petitioners were approved only with effect from 1.6.2011 on the ground that

there was a ban on appointments at the time of their initial appointment and

that the Manager had failed to execute the bond in terms of G.O.(P)No.10/10. 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 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. Insofar as the pendency of the petitions

instituted by the Managers before the Hon'ble Apex Court is concerned, the

orders passed shall be subject to the final orders that may be passed by the

Apex Court in the pending litigation.

8. 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) The 1st respondent is directed to take up consider and pass

orders on Exhibits P19, P20, and P21 representations filed

by the petitioners with notice to the petitioners 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.

b) While considering the representations, 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. It is made clear that the

orders passed by the 1st respondent shall be subject to

the final orders passed by the Apex Court in the pending

petitions.

c) It would be open to the petitioners 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 NS

APPENDIX OF WP(C) 6934/2022

PETITIONER(S) EXHIBITS :

Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 17-08-2006

Exhibit P2 TRUE COPY OF ORDER NO. B1/502/07/K.DIS DATED 22-06-2007 BY THE DEO, CHAVAKKAD

Exhibit P3 TRUE COPY OF THE REVISION PETITION DATED 12-07-2007 SUBMITTED BEFORE THE DIRECTOR, BY THE MANAGER

Exhibit P4 TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 01-06-2007

Exhibit P5 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 11-09-2006

Exhibit P6 TRUE COPY OF THE ORDER NO. B 3260/2006/L.DIS DATED 03-01-2007 OF THE AEO KUNNAMKULAM

Exhibit P7 TRUE COPY OF THE ORDER NO. B1/501/07/K.DIS DATED 23-06-2007 OF THE DEO, CHAVAKKAD

Exhibit P8 TRUE COPY OF THE ORDER NO.

F2/77777/07/DPI/K/DIS DATED 17-03-2008

Exhibit P9 TRUE COPY OF THE APPOINTMENT ORDER OF 2ND PETITIONER DATED 01-06-2007

Exhibit P10 TRUE COPY OF THE ORDER NO. B 2480-

2007/L.DIS DATED 29-12-2007 BY THE AEO, KUNNAMKULAM

Exhibit P11 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 02-06-2008

Exhibit P12 TRUE COPY OF THE APPOINTMENT ORDER OF THE 3RD PETITIONER DATED 01-06-2007

Exhibit P13 TRUE COPY OF THE ORDER NO.

B/2483/2007/K.DIS DATED 29-12-2007 BY THE AEO KUNNAMKULAM

Exhibit P14 TRUE COPY OF THE ORDER NO.

B1/1431/08/K.DIS DATED 15-11-2008 BY THE DEO, CHAVAKKAD

Exhibit P15 TRUE COPY OF THE APPOINTMENT ORDER OF THE 3RD PETITIONER DATED 02-06-2008

Exhibit P16 TRUE COPY OF THE ORDER NO.B/1820/08/L.DIS DATED 10-10-2008 BY THE AEO, KUNNAMKULAM

Exhibit P17 TRUE COPY OF THE APPOINTMENT ORDER OF THE 3RD PETITIONER DATED 01-06-2009

Exhibit P18 TRUE COPY OF THE JUDGMENT IN W.A NO.

2290/2015 DATED 25-07-2017.

Exhibit P19 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE GOVERNMENT DATED 01-02-2022 (WITHOUT EXHIBITS)

Exhibit P20 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE GOVERNMENT DATED 01-02-2022 (WITHOUT EXHIBITS)

Exhibit P21 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD PETITIONER BEFORE THE GOVERNMENT DATED 01-02-2022 (WITHOUT EXHIBITS)

RESPONDENT(S) EXHIBITS : NIL