Kerala High Court
Sheeja P.Kurian vs The State Of Kerala on 24 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
WP(C) NO. 17113 OF 2022
PETITIONER:
SHEEJA P.KURIAN
AGED 49 YEARS, W/O.JOHN SAMUEL,
PUSHPAVILASAM, THEEPPUPARA P.O., EZHAMKULAM,
PATHANAMTHITTA - 691 554
(LOWER PRIMARY SCHOOL ASSISTANT,
PARUMALA SEMINARY LOWER PRIMARY SCHOOL,
PARUMALA, PATHANAMTHITTA).
BY ADV S.SUBHASH CHAND
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 THE DIRECTOR OF GENERAL EDUCATION
(FORMERLY DIRECTOR OF PUBLIC INSTRUCTIONS),
OFFICE OF THE DIRECTOR OF GENERAL EDUCATION,
JAGATHY, THIRUVANANTHAPURAM - 695 014.
3 THE DISTRICT EDUCATIONAL OFFICER
OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
THIRUVALLA - 689 101.
4 THE ASSISTANT EDUCATIONAL OFFICER
OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER,
THIRUVALLA - 689 101, PATHANAMTHITTA.
5 THE CORPORATE MANAGER
CANTHOLIC AND M.D.SCHOOLS, DEVALOKAM,
KOTTAYAM - 686 038.
6 DEPUTY DIRECTOR (EDUCATION)
OFFICE OF THE DEPUTY DIRECTOR (EDUCATION),
PATHANAMTHITTA AT THIRUVALLA - 689 101.
BY ADVS.SMT.SURYA BINOY, SR.GP
P.HARIDAS
BIJU HARIHARAN
SHIJIMOL M.MATHEW
RISHIKESH HARIDAS, P.C.SHIJIN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No.17113/2022
2
P.V.KUNHIKRISHNAN, J.
--------------------------------
W.P.(C).No.17113 of 2022
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Dated this the 24th day of February, 2023
JUDGMENT
This writ petition is filed with following prayers:
i. To issue a writ in the nature of certiorari or any
other appropriate writ or order quashing Ext.P12
order of respondent No.4 for serious violation of
Ext.P8 judgment passed by this Hon'ble Court.
ii. To issue a writ in the nature of mandamus or any
other appropriate writ or order or direction
commanding respondent Nos.1 to 4 to grant
approval to Ext.P1 appointment of the petitioner
as Lower Primary School Assistant in Parumala
Seminary Lower Primary School, Parumala and
disburse salary and allowances to her with effect
from 29.10.2012 onwards on scale of pay basis
forthwith or within such time as this Hon'ble
Court may deem fit and proper in the interest of
justice.
iii. To issue a declaration that Ext.P1 appointment of
the petitioner is liable to be approved with effect
from 29.10.2012 onwards as Lower Primary
School Assistant in Parumala Seminari Lower
Primary School, Parumala in the light of Ext.P8
WP(C).No.17113/2022
judgment passed by this Hon'ble Court and
Ext.P12 order of respondent No. 4 that was
passed contrary to Ext.P8 judgment is absolutely
arbitrary and unconstitutional for violation of
Articles 14 and 21 of the Constitution of India and
thus liable to be struck down as unconstitutional.
iv. To mould and grant such other reliefs, as this
Hon'ble Court shall deem just and proper in the
interest of justice, including costs. (SIC)
2. The Grievance of the petitioner is that, this Court,
after considering the entire aspects, delivered Ext.P8
judgment, and flouting the directions in Ext.P8, Ext.P12
order is passed.
3. Heard the learned counsel for the petitioner and
the learned Government Pleader.
4. A perusal of Ext.P12 will show that the directions
in Ext.P8 are not followed by the Officer concerned. The
Government Pleader submitted that in Ext.P8 it is not
considered whether there were protected teachers in the
very same District. According to the Government Pleader,
there were protected teachers. But a perusal of Ext.P8 will
show that, this was considered by this Court in Ext.P8
judgment. The relevant portion of Ext.P8 is extracted
WP(C).No.17113/2022
hereunder:
"5. Even when I hear the learned Senior
Government Pleader on the afore lines, the fact
remains that it is expressly conceded that the School
did not have any retrenched teachers at the relevant
time. As regards protected teachers, the law is now
well settled that unless the Educational Authorities
had furnished a list of such teachers to the Manager,
the rigour of the provisions of the Government Order
cannot be applied. I am fortified in my view by the
judgments of this Court in Nadeera vs. State of
Kerala [2011(3) KLT 790] and Moosakutty Vs.
DEO, Wandoor [2009 (3) KLT 863].
6. I, therefore, asked the learned Senior
Government Pleader as to whether there is anything
on record to show that the competent Educational
Authorities had furnished a list of protected teachers
to the Manager at the relevant time and whether any
such teachers were awaiting deployment in the
Educational District or in the nearby Districts. The
learned Senior Government Pleader fairly submitted
that there is no such whisper either in Ext.P11 or in
the other impugned orders and that he is, therefore,
unable to submit affirmatively either way before this
Court.
7. When I consider the afore submissions, it is
clear that the rigour of the Government Order
mentioned in Ext.P11 cannot apply to the case at
hand because; for one, there were no retrenched
WP(C).No.17113/2022
teachers in the School - which fact is admitted; and
for the second, there is nothing to establish that a list
of protected teachers had been given to the Manager.
In the afore circumstances, I am of the view that
petitioner is entitled to succeed and consequently
order this writ petition and set aside Exts.P2, P3, P4
and P11; with a direction to the 4 th respondent -
Assistant Educational Officer to reconsider the
petitioner's proposal for approval of her appointment
with effect from 29/10/20212 and issue appropriate
orders thereon as expeditiously as is possible, but not
later than one month from the date of receipt of a
copy of this judgment.
It is needless to say that once such approval is
granted to the petitioner, she will also be entitled to
all consequential benefits arising from the same,
including for future appointments under the
provisions of Rule 51A, Chapter XIVA of the Kerala
Education Rules, if she is otherwise eligible for the
same."
5. In the light of the above judgment, according to me,
Ext.P12 will not stand. If the Officer concerned is aggrieved
by Ext.P8 judgment, the remedy is either to file a review or file
a writ appeal. Without doing so, the Officer cannot pass an
order like Ext.P12. I am of the opinion that Ext.P12 is a clear
violation of the directions in Ext.P8 judgment. Therefore
WP(C).No.17113/2022
Ext.P12 is to be set aside and the Officer concerned has to
pass fresh orders as directed by this Court in Ext.P8 judgment.
Therefore, this writ petition is allowed in the following
manner:
1. Ext.P12 is set aside.
2. The 4th respondent is directed to pass
appropriate orders as directed in Ext.P8
judgment, as expeditiously as possible, at any
rate, within one month from the date of receipt
of a copy of this judgment.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
WP(C).No.17113/2022
APPENDIX OF WP(C) 17113/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER
DATED 29/10/2012 ISSUED BY RESPONDENT
NO.5.
Exhibit P2 TRUE COPY OF THE ORDER BEARING
D/4921/12 DATED 16/11/2012 ISSUED BY
RESPONDENT NO.4.
Exhibit P3 TRUE COPY OF THE ORDER BEARING
NO.B2/10291/12/K.DIS. DATED 18/03/2013
PASSED BY RESPONDENT NO.3.
Exhibit P4 TRUE COPY OF THE ORDER BEARING
NO.F3/64784/13/DPI/K.DIS. DATED
02/12/2013 ISSUED BY RESPONDENT NO.2.
Exhibit P5 TRUE COPY OF THE ORDER BEARING
NO.RA(1) 91013/2014/DPI/K.DIS. DATED
30/05/2015 PASSED BY RESPONDENT NO.2.
Exhibit P6 TRUE COPY OF THE ORDER BEARING GO(RT)
NO.6043/2015/G.EDN. DATED 29/12/2015
OF RESPONDENT NO.1.
Exhibit P7 TRUE COPY OF THE GOVERNMENT ORDER
BEARING GO(MS) NO.92/20/G.EDN. DATED
04/06/2010 OF RESPONDENT NO.1.
Exhibit P8 TRUE COPY OF THE JUDGMENT DATED
13/07/2021 THUS PASSED BY THIS HON'BLE
COURT IN WP(C) NO.2920/2016.
Exhibit P9 TRUE COPY OF THE RULING OF THIS
HON'BLE COURT REPORTED AS NADEERA T.S.
AND ANOTHER V. STATE OF KERALA AND
OTHERS (2011(3) KHC 650).
Exhibit P10 TRUE COPY OF THE RULING OF THIS
HON'BLE COURT REPORTED AS STATE OF
KERALA AND OTHERS V.S.HASEENA AND
ANOTHER (2013 (2) KHC 103).
Exhibit P11 TRUE COPY OF THE RULING OF THIS
HON'BLE COURT REPORTED AS MOOSAKUTTY
V. DEO, WANDOOR (2009(3) KLT 863).
Exhibit P12 RUE COPY OF THE ORDER BEARING
NO.D/18320/2021 DATED 03/02/2022
PASSED BY RESPONDENT NO.4.
