Kerala High Court
The Secretary To Govt.Of Kerala vs Relmy Alet Xavier on 4 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 4TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943
WA NO. 1453 OF 2021
AGAINST THE JUDGMENT DATED 14.07.2021 IN WP(C).NO.3357/2021 OF
HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 TO 3 IN WP(C):
1 THE SECRETARY TO GOVERNMENT
GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DIRECTOR OF GENERAL EDUCATION,
DIRECTORATE OF GENERAL EDUCATION, JAGATHY,
THIRUVANANTHAPURAM-695014.
3 THE DISTRICT EDUCATIONAL OFFICER
ERNAKULAM-682011.
BY SR. GOVERNMENT PLEADER SRI.A.J.VARGHESE
RESPONDENTS/PETITIONER & 4TH RESPONDENT IN WP(C):
1 RELMY ALET XAVIER, W/O.HENRY AUSTIN,
KURISADY HOUSE, 47/91 A 1,
KARSHAKA ROAD, VADUTHALA, KOCHI-682023.
2 THE MANAGER,
ST.MARYS HIGH SCHOOL, KANNAMALY-682006.
BY ADVS.
SRI.ARUN.B.VARGHESE
SRI.AISWARYA V.S.
SRI.VARNA MANOJ
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
04.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
:2:
W.A.No.1453 of 2021
JUDGMENT
A.K.Jayasankaran Nambiar, J.
The State is in appeal before us, aggrieved by the judgment dated
14.07.2021 in WP(C).No.3357 of 2021 of the learned Single Judge.
2. The brief facts necessary for disposal of the Writ Appeal are as
follows:
The writ petitioner was working as a High School Teacher in the
St.Mary's High School, Kannamaly, pursuant to Ext.P4 appointment
order dated 29.06.2020 that was to take effect from 30.04.2020
inasmuch as the retirement vacancy to which she was accommodated
arose with effect from that date. When the said appointment order was
forwarded for approval, the same was rejected by the educational
authorities on the contention that no approval could be granted when
the schools in the State were physically closed on account of the
COVID-19 pandemic protocols. On finding that, Exts.P5 and P6
rejection orders were based on the reasoning contained in instructions
W.A.No.1453 of 2021
from the Government, as re-iterated subsequently in Ext.P8
Government Order dated 22.01.2021, the petitioner approached this
Court through W.P(C).No.3357 of 2021 impugning Exts.P5, P6 and P8
and seeking a direction to the 3 rd respondent to accept the proposal of
appointment of the petitioner to the post of H.S.A (Social Science) in
the St.Mary's High School, Kannamaly and approve the same. During
the pendency of the Writ Petition, a memo was filed by the Senior
Government Pleader bringing on record Government Orders dated
06.07.2021 and 07.07.2021, which clarified that in the case of those
teachers, who could not be appointed in the schools in the State in the
academic year 2020-2021 and 2021-2022, on account of the directions
given in the earlier Circular dated 22.01.2021, the Government had
decided that approval would be granted on their subsequent
appointments, notwithstanding that some of them may have crossed the
age limit for appointment during the said academic years, on condition
that the approval to their appointment would only be with effect from
15.07.2021. The same Government Order also clarified and reiterated
that for the purpose of regularising their appointments, the staff
fixation orders that prevailed in the schools during the academic year
2019-2020 would enure and continue to hold for the academic years
2020-2021 and 2021-2022 as well.
W.A.No.1453 of 2021
3. The learned Single Judge, who considered the matter took note
of the subsequent Government Orders produced by the Government
through the memo aforementioned and found that creating two classes
of teachers, namely, those who were appointed in the academic year
2020-2021 and those who were to be appointed in the academic year
2021-2022 was not legally proper because there was no intelligible
differentia that justified a classification of the two categories of
teachers when viewed against the object to be achieved by the State. It
was, in particular, noted that the schools had remained physically
closed only on account of the COVID-19 pandemic protocols and not
because there was any sanction to do so under the Kerala Education
Rules. The learned Judge also took note of the fact that it was taking
note of the possibility of the appointment of the petitioner being
rejected on the ground of her being over-aged that she was appointed
with effect from 30.04.2020 and not 15.07.2020 as would otherwise
have been done in the normal course. The learned Single Judge found
that to deny approval to the appointment of the writ petitioner would be
unjust and, resultantly, allowed the Writ Petition by setting aside
Exts.P5, P6 and P8 and directing the 3 rd respondent District
Educational Officer to reconsider the request for approval of the
W.A.No.1453 of 2021
petitioner's appointment pursuant to Ext.P4 within a period of two
months from the date of receipt of the judgment.
4. Before us, it is the submission of Sri.A.J.Varghese, the learned
Senior Government Pleader appearing on behalf of the appellants that
the learned Judge erred in assuming that there was no interdiction of
any sort to the making of any appointments to the post of teaching staff
in the schools in the State in the academic year 2020-2021. He makes a
pointed reference to Ext.P8 to demonstrate that there was indeed such
a restriction imposed by the Government when it stated unambiguously
that appointments to posts, other than that of Headmaster/
Headmistress and non-teaching staff, should not be effected in the
academic year. It is his contention, however, that the appointment of
the respondent/writ petitioner could, be approved with effect from
15.07.2021 since the subsequent Government Order dated 06.07.2021
read with the Government Order dated 28.09.2021, produced as
Annexure -A1 along with the Writ Appeal, would confer such a benefit
on the writ petitioner notwithstanding that she would have been over-
aged under normal circumstances.
5. We have considered the rival submissions and we find that it is
W.A.No.1453 of 2021
not in dispute in the instant case that the respondent/writ petitioner
was in fact appointed as a teacher in the school by Ext.P4 appointment
order dated 29.06.2020 albeit with effect from 30.04.2020. The
retrospective effect given to the appointment order appears to have
been to overcome the difficulty that would otherwise have been faced
by the writ petitioner consequent to her having crossed the age limit of
43 years (inclusive of the period of relaxation permitted to members of
the Latin Catholic community) well before 29.06.2020 the date of
Ext.P4 appointment order.
6. Before the learned Single Judge the dispute was essentially
with regard to the effective date of appointment of the petitioner as to
whether it was from the date of arising of the vacancy on 30.04.2020 or
the date of Ext.P4 appointment order namely, 29.06.2020. If the latter
date was taken as the relevant date the respondent/writ petitioner
would have had to be seen as over-aged for appointment. It was
noticing the anomaly that would result from recognising an
appointment of the respondent/writ petitioner to a vacancy that existed
from 30.04.2020 under circumstances where she would be within the
age limit on the date of arising of vacancy, but over-aged on the date of
actual appointment, that the learned Single Judge found that her
W.A.No.1453 of 2021
appointment had to be seen as with effect from 30.04.2020 for the
purpose of saving the appointment rather than denying her the
appointment. It was accordingly that the learned Single Judge allowed
the Writ Petition as noticed above.
7. Although before us, the main contention urged by the learned
Government Pleader is with regard to the writ petitioner being over-
aged as on the date of the appointment order, and further, that the
appointment of the petitioner in the academic year 2020-2021 was in
the wake of the prohibitory order issued by the Government as regards
the making of appointments (Ext.P8), we find that Ext.P8 order itself
was dated 22.01.2021, by which time the respondent/writ petitioner
already been appointed on 29.06.2020. We also find from a perusal of
Annexure -A1 Government Order dated 28.09.2021 produced by the
learned Senior Government Pleader that the Government had
considered it necessary to grant an age relaxation in respect of actual
appointments effected in the academic year 2021-2022 to those
persons, who had not crossed the maximum age for appointment by
01.01.2020 provided they were appointed before 01.01.2021. Inasmuch
as the Government Order dated 06.07.2021 had already recognised the
entitlement of those who could not be appointed to vacancies that arose
W.A.No.1453 of 2021
in the academic year 2020-2021 to an appointment and approval
thereof in the academic year 2021-2022, with effect from 15.07.2021,
we are of the view that in the case of the respondent /writ petitioner, by
applying the same yardstick as contained in the Government Orders
referred above, the approval to the appointment effected through
Ext.P4 must take effect from 15.07.2020. This is because the
appointment of the respondent/writ petitioner having been effected
before the coming in to force of Ext.P8 prohibitory order, would get
legitimised through the Government Orders dated 06.07.2021,
07.07.2021 and 28.09.2021 respectively. A cumulative reading of the
directions in these latter Government Orders would clothe the
appointment of the respondent/writ petitioner with the legitimacy that
is due to it and the approval in our view should be granted with effect
from 15.07.2020, as against 15.07.2021 which the Government
concedes can be granted to her in terms of the Government Orders
referred above. Accordingly, we hold that while it is not in dispute,
pursuant to the Government Orders produced before us that the
approval of the appointment of the respondent/writ petitioner would
even otherwise be recognized with effect from 15.07.2021, on the
peculiar facts of the instant case where the appointment of the
respondent/writ petitioner was effected before Ext.P8 order of the
W.A.No.1453 of 2021
Government and in circumstances were the learned Single Judge in the
impugned judgment found that there was no basis for the classification
of teachers appointed in the academic year 2020-2021 and 2021-2022
respectively for the purposes of extending the benefits offered by the
Government taking note of the COVID-19 pandemic situation, the
respondent/writ petitioner's appointment should get approval with
effect from 15.07.2020. We, accordingly, find that there is no reason to
interfere with the judgment of the learned Single Judge and while
dismissing the Writ Appeal, we direct that the District Educational
Officer, Ernakulam to approve the appointment of the respondent/writ
petitioner, pursuant to Ext.P4 appointment order, with effect from
15.07.2020. The District Educational Officer shall pass orders as
directed within a period of two months from the date of receipt of a
copy of the judgment and the monetary benefits including arrears
flowing from the said order shall be paid to the writ petitioner within a
further period of three months.
8. While parting with this Appeal and at the request of the
learned Senior Government Pleader we deem it necessary to clarify
that while the learned Single Judge had quashed Ext.P8 order in the
judgment impugned in this Writ Appeal, we are of the view that the
W.A.No.1453 of 2021
instant is a case where the restrictions imposed through Ext.P8 did not
apply to the writ petitioner who was appointed in the school well before
the date of Ext.P8. We, therefore, vacate that finding of the learned
Single Judge that quashes Ext.P8 Government Order as the same was
not required for granting the reliefs in the present case. Save for this
limited modification as regards the findings in respect of Ext.P8
Government Order the Writ Appeal is otherwise dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
MOHAMMED NIAS C.P.
JUDGE
mns
W.A.No.1453 of 2021
APPENDIX
PETITIONER'S ANNEXURE:
ANNEXURE A1: A TRUE COPY OF GOVERNMENT ORDER
GO(MS)NO.203/2021/GENERAL EDUCATION DEPARTMENT DATED
28.09.2021
RESPONDENT'S ANNEXURE:NIL
//TRUE COPY//
P.A TO JUDGE
