Kerala High Court

Aswathy S vs Secretary To Government on 12 January, 2023

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
    THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
                       WP(C) NO. 25717 OF 2015
PETITIONER:

          ASWATHY S
          SD/O. P.SASIDHARAN, UPSA, NALANDAVTEACHER TRAINING
          INSTITUTE, NANDIYODU, PACHA P.O., PALODE, NEDUMANGAD
          TALUK RESIDING AT THOPPIL VEEDU, PUTHUKULANGARA P.O.,
          NEDUMANGAD TALUK.
          BY ADVS.
          SRI.K.SIJU
          SRI.S.ABHILASH
          SRI.B.SUGATHAN


RESPONDENTS:

    1     SECRETARY TO GOVERNMENT
          GENERAL EDUCATION DEPARTMENT.
    2     THE DIRECTOR OF PUBLIC INSTRUCTION
          JAGATHY, THIRUVANANTHAPURAM - 695 014.
    3     THE DEPUTY DIRECTOR OF EDUCATION
          KOCHAR ROAD, VALIYASALA, THIRUVANANTHAPURAM - 695 036.
    4     THE DISTRICT EDUCATIONAL OFFICER
          ATTINGAL - 695 101.
    5     THE MANAGER
          NALANDA TEACHER TRAINING INSTITUTE, NANDIYODU, PACHA
          P.O., PALODE, NEDUMANGAD TALUK - 695 562.


          SRI.JOBY JOSEPH,SENIOR GOVERNMENT PLEADER



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.25717 of 2015
                                           2



                                  JUDGMENT

Dated this the 12th day of January, 2023

This writ petition is filed by the petitioner seeking the

following reliefs:

i. To call for records leading to Ext.P2, P3, P4 and P10 and by issuing a writ of certiorari quash Ext.P2, P3, P4 and P10 to the extent of it does not approve the service of the petitioner from 2.7.2007 to 1.6.2011.

ii. To issue a writ of mandamus directing the respondents 1 to 4 to modify Ext.P5 order to the extent of approving the appointment of the petitioner from her date of appointment, i.e 2.7.2007. iii. To issue a direction to the respondents 1 to 4 to approve and regularize the appointment of the petitioner as UPSA in the 5th respondent's school for a period from 2.2.2007 to 1.6.2011 and to pay the benefits to her.

iv. To pass such other relief's that this Hon'ble court deems fit and proper.

2. Basic material facts for the disposal of the writ

petition are as follows:

W.P.(C) No.25717 of 2015

The petitioner has been appointed as UPSA in the

Nalanda Teacher Training Institute, Nedumangad Taluk,

Thiruvananthapuram- 5th respondent with effect from

02.07.2007 against an additional post anticipated to be

sanctioned during the year 2007-2008. The said

appointment was rejected by the educational authority

since there has been a ban on creation of additional posts.

3. Subsequently, the said ban was lifted as per

GO(P)No.10/10/G.Edn dated 12.01.2010. So approval of

the appointment of the petitioner with effect from

02.07.2007 was sought again in terms of the said G.O, but

again approval was rejected without justification.

4. According to the petitioner, in the meantime, a

junior appointee whose appointment was rejected on the

ground that petitioner's appointment had not been

approved, moved the Government for getting her

appointment approved. The Government, in Ext.P2 order,

have ordered that the appointment of the petitioner and

that of the junior appointee could not be approved, since W.P.(C) No.25717 of 2015

no protected teacher has been appointed in terms of Rule

6(viii) Chapter V KER and GO(P) No.46/2006/G.Edn dated

01.02.2006.

5. Thereafter, the Government introduced the education

package as per GO(P) No.199/2011/G.Edn dated

01.10.2011. According to the petitioner, though the

petitioner's appointment does not fall under the said

package, her appointment has been approved with effect

from 01.06.2011 instead of approving it with effect from

02.07.2007 leaving her service of four years unapproved.

Even though a review petition was filed, it was also

rejected as per Ext.P4 order. It is also contended that the

stand of the Government is against the principle laid down

by this Court in Exts.P6 and P7 judgments in W.A

No.178/2012 dated 19.02.2013 and W.P(C)No.19619/2008

dated 01.03.2013.

6. Even though the petitioner again approached the

State Government with Ext.P8 review petition, it was also

dismissed on the ground that the manager did not execute W.P.(C) No.25717 of 2015

a bond as required under GO(P)No.10/10 and issued an

Ext.P10 order. Therefore, it is aggrieved by Exts.P3, P4

and P10 orders, the writ petition is filed.

7. No counter affidavit filed by the respondent.

However, the subject issue with respect to execution of the

bond by the management was considered by a Division

Bench of this Court in the judgment in W.A No.2290/2015

dated 25.07.2017. In order to have a clear appreciation of

the facts and circumstances, it is better that the relevant

portion of the said judgment is extracted.

"The first respondent was appointed as a High School Assistant (English) (HSA for short) on 01.07.2009 in an additional vacancy. The 2nd respondent was appointed on 01.06.2010 as an Upper Primary School Assistant (UPSA for short). The 3rd respondent was appointed on 05.10.2007 as an HSA (English). The 4th respondent was appointed as an HSA on 01.07.2009. The 5th respondent was appointed as HSA (Social Science) in an additional division vacancy. The 6 respondent was appointed as UPSA on 01.06.2010. The 7 respondent was appointed as an HSA (Mathematics) on 01.07.2009. The 8th respondent was appointed as HSA on 25.06.2007. Later on, she was appointed on 02.06.2008 to a regular vacancy. The 9th W.P.(C) No.25717 of 2015

respondent was appointed on 01.07.2009 as an HSA (English) to an additional vacancy. The 10th respondent was appointed as an HSA Malayalam on 27.06.2007. The appointments of respondents 1 to 10 were not approved by the authorities for the reason that, there was a ban against fresh appointments during the relevant period, imposed by the Government. Subsequently, the Government brought out G.O.(P) No.10/10/G.Edn dated 12.01.2010 directing that such appointments shall be approved provided, the Manager executes a bond undertaking to appoint protected teachers in all future vacancies in the School. The Manager in this case did not execute such a bond. Therefore, respondents 1 to 10 were not granted the benefit of the said Government Order. It was aggrieved by the said action, they had filed the Writ Petition. The learned Single Judge has allowed the Writ Petition directing the Government to grant approval to respondents 1 to 10, as though the Manager had executed a bond as stipulated by the Government Order.

3. According to the learned Government Pleader, the direction of the learned, Single Judge causes substantial prejudice to the Government. This is for the reason that, the Government is not in a position to compel the Manager to grant appointment to protected teachers in the said school, as stipulated by the Order dated 12.01.2010.

However, we do not find any substance in the said apprehension. We notice from a perusal of the judgment appealed against that, the learned Single Judge has taken care to protect the interests of the Government by W.P.(C) No.25717 of 2015

providing that the Government could proceed in the matter as though the Manager had executed a bond as stipulated by the Government Order dated 12.01.2010. The teachers are the persons who would suffer due to the refusal of the appellants to approve their appointments. In view of the above, we do not find any grounds to interfere with the judgment of the learned Single Judge. The Government shall be at liberty to enforce the provisions of the Government Order dated 12.01.2010 as though the Manager had executed the bond that is stipulated by the provisions thereof. The above aspect is made clear."

8. On a perusal of the judgment rendered by the

Division Bench, it is categoric and clear that, insofar as the

execution of the bond is concerned, as stipulated by the

GO(P)No.10/10/G.Edn., it is declared to be executed.

9. In my considered opinion, the proposition of law laid

down by the Division Bench of this Court in the judgment

in W.A No. 2290/2015, cited supra squarely applies to the

facts and circumstances of this case. The said judgment of

the Division Bench is followed by a learned single judge in

In view of the proposition of the law, I am of the W.P.(C) No.25717 of 2015

considered opinion that the petitioner is also entitled to

succeed in terms of the Division Bench judgment referred

to above.

In that view of the matter, the writ petition will stand

allowed; and there will be a consequential direction to the

education authority to do the necessary in terms of the

GO(P)No.10/10/G.Edn. and the proposition of the law laid

down in the judgment above; and thus, grant the approval

as sought by the petitioner.

Sd/-

SHAJI P. CHALY

JUDGE AP W.P.(C) No.25717 of 2015

APPENDIX OF WP(C) 25717/2015

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF ORDER DT. 15.1.2008 OF THE 4TH RESPONDENT.

EXHIBIT P2 A TRUE COPY OF THE BOND ENTERED INTO BY T HE MANAGER ON 10.1.2011.

EXHIBIT P3 A TRUE COPY OF GO(RT) NO. 1050/2011/G.EDN DT. 16.3.2011.

EXHIBIT P4 A TRUE COPY OF THE ORDER G.O(RT) NO.

5423/2012/G EDN DT. 15.11.2012.

EXHIBIT P5 TRUE COPY OF ORDER NO. D.DIS/B4/1108/2011 DT. 02.12.2011 OF THE 4TH RESPONDENT. EXHIBIT P6 TRUE COPY OF COMMON JUDGMENT DT. 19.2.2013 IN WA NO. 178/2012 AND WA NO. 739/2012 THE DIVISION BENCH OF THIS HON.COURT.

EXHIBIT P7 TRUE COPY OF JUDGMENT DT. 01.3.2013 IN WPC NO. 19619/2008.

EXHIBIT P8 TRUE COPY OF THE REVIEW PETITION DT.

27.11.2014.

EXHIBIT P9 A TRUE COPY OF THE JUDGMENT DT. 04.12.2014 IN WPC NO. 30485/2014.

EXHIBIT P10 A TRUE COPY OF GO(RT) NO. 1747/2015/G.EDN DT/ 12/5/2015.

EXHIBIT P11 A TRUE COPY OF THE LETTER DT. 25.10.2011 OF THE 1ST RESPONDENT.

EXHIBIT P12 A TRUE COPY OF GO(P) NO. 10/10/G EDN DT.

12.1.2010.