Kerala High Court

The Manager vs The State Of Kerala on 15 February, 2024

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
           THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
    THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
                      WP(C) NO. 20092 OF 2022

PETITIONERS :-

     1     THE MANAGER
           KIZHAKKE PALATT SANKARA MENON MEMORIAL HIGH SCHOOL,
           VARODE, OTTALAPALAM, PALAKKAD DISTRICT - 679101.

     2     R. SUDHA,, AGED 42 YEARS, D/O. K RAMANKUTTY,
           HST (SOCIAL SCIENCE) ,KIZHAKKE PALATT SANKARA MENON
           MEMORIAL HIGH SCHOOL, VARODE, OTTALAPALAM,
           PALAKKAD DISTRICT - 679101.

           BY ADV R.K.MURALEEDHARAN


RESPONDENTS :-

     1     THE STATE OF KERALA
           REP BY SECRETARY TO GENERAL EDUCATION DEPARTMENT,
           SECRETARIAT, THIRUVANANTHAPURAM - 695001.

     2     THE DIRECTOR OF GENERAL EDUCATION,
           DIRECTORATE OF GENERAL EDUCATION, JAGATHI,
           THIRUVANANTHAPURAM-695014.

     3     THE DEPUTY DIRECTOR OF EDUCATION,
           OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION PALAKKAD,
           PALAKKAD DISTRICT - 678001

     4     THE DISTRICT EDUCATIONAL OFFICER,
           OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,
           OTTALAPALAM, PALAKKAD DISTRICT - 679101



           SMT.K.G.SAROJINI, GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 20092 OF 2022
                                   2




                            JUDGMENT

The first petitioner is the Manager of the School and the second

petitioner was appointed when a teacher by the name of Sunanda availed

leave from 29-7-2019 preparatory to retirement (LPR) under Rule 72 of

Part I KSR. The proposal for approval was submitted on 03.01.2020, but

the same was rejected on the ground that the petitioner could have been

appointed only on a daily wage basis to a vacancy for a period of less

than one academic year. By Ext.P7, the Government finally rejected the

revision and the proposal for approval of the second petitioner's

appointment adding a further reason that since the School was upgraded

after 1979, a protected teacher ought to have been appointed Chapter V

Rule 6 of the KER.

2. The first petitioner Manager submits that the appointment of

the second petitioner in the LPR vacancy which commenced on

29.07.2019 and the teacher who took leave did not rejoin on 31.05.2020

and therefore, the appointment of the second petitioner is continuous

from 29.07.2019 and which spread over to the next academic year. The WP(C) NO. 20092 OF 2022

petitioner also submits that in view of the Covid pandemic, there was a

lockdown from March 2020 and School was not reopened during the

academic year 2020-21. The Government had issued orders not to fill up

the vacancies of teachers except for non-teaching staff and head teachers

with a further direction that the staff fixation order of the year 2019-20

will continue order. It is only w.e.f 15.07.2021 based on the Government

Order dated 06.07.2021 that permission was granted to make

appointments. The petitioners submit that in identical cases, by Ext.P6

appointment order, the appointment of one Muhammed Khaleefa K as

Physical Education Teacher w.e.f. 17.07.2017 when one

K.V.Manikandan, PET availed leave preparatory to retirement from

04.07.2017 to 31.05.2018, was approved which is evident from Ext.P6 .

The petitioners submit that the same treatment should have been

accommodated to the second petitioner as well. The learned counsel

submits that the vacancy in which the petitioner was appointed is a

retirement vacancy, and as such, the second petitioner is entitled to

approval. Accordingly, he seeks quashing of Ext.P7 order of the first

respondent declining approval on the ground mentioned and seeks for

approval of appointment of the second petitioner as HST (SS) appointed WP(C) NO. 20092 OF 2022

as per Ext.P1 from 29.07.2019 onwards on a regular scale of pay with all

consequential benefits.

3. The Government has filed a counter contending that the

vacancy arising from the leave preparatory for the retirement period shall

not be considered as an establishment vacancy and since the vacancies so

created are not considered regular vacancies as per KSR Rule 72. The

Government submits that there is a chance of the reinstatement of an

officer, who goes on leave before retirement. Appointments in the leave

vacancy and regular vacancy shall be treated separately. However

Paragraph 15 of the counter affidavit reads as follows:-

"15. In the above circumstances the appointment of the 2nd petitioner can

be as below:-

1. The appointment of 2nd petitioner from the period of LPR from

29/07/2019 to closing date 19-20 (closed on 20/03/2020 due to Covid

19) considered to be treated as daily wage basis and the 1st petitioner

should submit the appointment proposal in the manner of entitling leave

vacancy as per G.O.(Rt) 3748/2023/G.Edn dated 23/06/2023.

2. It cannot be denied that the appointment is governed by the rules and

orders and the conditions prevailing at the time of appointment and the

staff fixation. Order continuing in the Year of 2021-22, Government

permitted to make appointments with effect from 15/07/2021 treating it as WP(C) NO. 20092 OF 2022

established vacancy on the regular basis. The 1st petitioner has to submit

fresh proposal appointing the 2nd petitoner w.e.f. 15/07/2021 onwards in

regular basis.

3. Apart from this the matter of appointment of the 2nd petitioner from

15/07/2021 onwards can be considered and approval can be granted

provisionally as per the conditions laid down by the existing Court Orders

and guidelines of Government with effect from 15/07/2021 in terms of the

Reservation for Persons with Disabilities Act."

4. Heard Sri. R.K. Muralidharan, the learned counsel for the

petitioner and Smt.Sarojini K.G, the learned Government Pleader.

5. In view of the averments in the counter affidavit that the

appointment of the second petitioner during the period of LPR from

29.07.2019 to 20.03.2020 (school was closed due to the Covid pandemic)

can be considered treating the same as on daily wages and as far as

regular appointment from 15.07.2021 is concerned, the first petitioner has

to submit a fresh proposal and the said proposal could be considered by

the Government in terms of the applicable regulations.

6. The fact remains that the petitioner had continuous service

from 29.07.2019 in the vacancies that arose on 01.06.2020. Under such

circumstances, the Government will reconsider the revision preferred by WP(C) NO. 20092 OF 2022

the petitioner. The first petitioner, the Manager also submits that a

vacancy is already set apart for a protected teacher and the objection to

that extent stands rectified. The learned counsel for the petitioners

however submits that if the second petitioner's case is treated as a fresh

appointment w.e.f 01.06.2020 disregarding her previous appointment, she

will be treated as overaged and therefore, requested for a direction to the

Government to exercise its power under Rule 3 of Chapter I of KER for

granting exemption offering relaxation to the extent necessary. No doubt,

the Government has the power to dispense with or relax the requirements

of any rule to such extent and subject to such conditions as they may

consider necessary for dealing with the case in a just and equitable

manner. In the instant case, since the petitioner did work from 29.07.2019

if the power of relaxation is not exercised by the Government, there is

every likelihood of the second petitioner being put to difficulties. Under

such cases, it is expected that the Government invoke its power of

relaxation sympathetically as far as the second petitioner is concerned, on

the facts and circumstances of the instant case.

Accordingly, Ext.P7 is quashed. There will be a direction to the

Government to reconsider the case of granting approval of the second WP(C) NO. 20092 OF 2022

petitioner on the first petitioner Manager submitting an appropriate

proposal. The Government shall consider the case of the second

petitioner for appointment on a regular basis from 15.07.2021 as HST

(Social Science) based on the observations made above. It shall be done

at any rate, within a period of three months from the date of receipt of a

copy of this judgment. The consequential benefits shall depend on the

orders should be passed as directed above and in case, the approval is

granted, the benefits shall be granted within a further period of two

months thereafter

The writ petition is allowed as above.

Sd/-

MOHAMMED NIAS C.P.

JUDGE SMA WP(C) NO. 20092 OF 2022

PETITIONER EXHIBITS :-

Exhibit P1 A TRUE COPY OF THE APPOINTMENT ORDER OF 2ND PETITIONER IN FORM 27 DATED 29.07.2019

Exhibit P2 A TRUE COPY OF THE ORDER NO. K.DIS/ 14670/19 OF THE 4TH RESPONDENT DATED 03.01.2020

Exhibit P3 A TRUE COPY OF THE ORDER NO. B5/211940/ 2020 OF THE 3RD RESPONDENT DATED 12.10.2020

Exhibit P4 A TRUE COPY OF THE ORDER NO. EM1/232926 /2021 DATED 02.04.2021 ISSUED BY THE 2ND RESPONDENT

Exhibit P5 A TRUE COPY OF THE GO(MS) NO. 28/2021/ G.EDN DATED 22.01.2021 ISSUED BY THE GOVERNMENT

Exhibit P6 A TRUE COPY OF THE APPOINTMENT ORDER OF MOHAMMAD KHALEEFA AS PHYSICAL EDUCATION TEACHER (PET) DATED 17.07.2017 AND THE PROCEEDINGS OF APPROVAL DATED 05.04.2019

Exhibit P7 A TRUE COPY OF THE GO(RT) NO.

6165/2021/G.EDN DATED 31.12.2021 ISSUED BY THE 1ST RESPONDENT

Exhibit P8 A TRUE COPY OF THE BOND EXECUTED BY THE MANAGER

RESPONDENT EXHIBITS :-