Kerala High Court
Shankini.M. Raj vs State Of Kerala on 16 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
WP(C) NO. 26661 OF 2023
PETITIONER:
SHANKINI.M. RAJ,
AGED 28 YEARS
W/O. AJOY JOSHI,
RESIDING AT KOOVAPARAMBIL HOUSE,
MOOTHAKUNNAM.P.O.,
ERNAKULAM DISTRICT, PIN - 683516
BY ADVS.
ELVIN PETER P.J.
K.R.GANESH
GOURI BALAGOPAL
ABHIJITH.K.ANIRUDHAN
SREELEKSHMI A.S.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DIRECTOR OF GENERAL EDUCATION,
DIRECTORATE OF GENERAL EDUCATION,
THIRUVANANTHAPURAM, PIN - 695014
3 THE DISTRICT EDUCATIONAL OFFICER
MARINE DRIVE, KOCHI,
ERNAKULAM, PIN - 682011
4 THE CORPORATE MANAGER
SDPY SCHOOLS,
-2-
WP(C)No.26661 of 2023
SREE NARAYANA NAGAR,
PALLURUTHY,
KOCHI, PIN - 682006
BY ADVS.
P.MOHANDAS(ERNAKULAM)
K.SUDHINKUMAR(K/572/2014)
SABU PULLAN(K/35/2001)
GOKUL D. SUDHAKARAN(K/000886/2016)
R.BHASKARA KRISHNAN(K/000891/2016)
BHARATH MOHAN(K/1392/2020)
R4 BY SRI.K.P.SATHEESAN (SR.)(S-242)
SRI.PREMCHAND R NAIR, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.02.2024, THE COURT ON 16.02.2024 DELIVERED THE FOLLOWING:
-3-
WP(C)No.26661 of 2023
MOHAMMED NIAS C.P., J.
---------------------
WP(C)No.26661 of 2023
---------------------------
Dated this the 16th day of February, 2024
JUDGMENT
The petitioner was first appointed as UPST in the school under the
corporate manager-ship of the fourth respondent on 1.6.2015 in a vacancy that
arose on the promotion of Smt. Shiji M.M., UPST, as HSA (English). Shiji M.M.
was promoted as HSA (English) in an anticipated vacancy during the academic
year 2015-2016. However, the said post was not sanctioned for the year 2015-
2016, and accordingly, the appointment of the petitioner as UPST with effect from
1.6.2015 was not approved, and the third respondent rejected the same as per
orders dated 27.10.2016. Thereafter, the Manager, again anticipating the
sanctioning of the post of HSA for the academic year 2016-2017, promoted Shiji.
M.M., and in the resultant vacancy, the petitioner was appointed as UPST as per
order dated 1.6.2016, Ext.P1. No staff fixation order for the academic year 2016-
2017 was issued within the time stipulated, and when Ext.P1 order of
appointment order was forwarded for approval, the same was directed to be
resubmitted as and when the staff fixation order was issued.
2. The staff fixation order for the academic year 2016-2017 was issued
on 15.7.2016, and a post of HST (English) was sanctioned and the appointment of
Shiji. M.M. was approved, and consequently, the appointment of the petitioner
also ought to have been approved. As stated earlier, the staff fixation order for
the academic year 2016-2017 was delayed when another regular vacancy of UPST
arose on 1.6.2017. The Manager, without shifting the petitioner to the said
regular vacancy, appointed one Smt.Faseela C.M., as UPST. The petitioner was
discharging her duties as UPST pursuant to Ext.P1 order. In the meantime,
another regular vacancy of UPST arose on the school 1.6.2017 and the fourth
respondent manager, without shifting the petitioner to said regular vacancy
pending approval of her appointment, appointed Faseela. C.M. The proposal for
approval of the appointment of Faseela C.M. was rejected by orders dated
26.10.2018 on the ground that the appointment of the petitioner, who was senior,
was pending approval. The petitioner submits that she was continuously
discharging her duties as UPST with effect from 1.6.2016 in the school and had
marked the attendance till 23.09.2017., on which day she applied for maternity
leave for her confinement from 23.9.2017 up to 21.03.2018. Since there were
some complications post-delivery, the petitioner had to apply for leave without
allowance from 23.09.2017 up to 23.08.2018. As the fourth respondent was not
allowing the petitioner to rejoin duties and was not appointing in the regular
vacancy, the petitioner had filed a representation before the third respondent
dated 1.6.2018, which was directed to be considered by this Court by Ext.P2
judgment. When the petitioner approached the school on 1.6.2018, the petitioner
was served with a copy of the proceedings dated 31.05.2016 by the fourth
respondent terminating the services of the petitioner as UPST with effect from
1.6.2016. Thereafter, as directed in Ext.P2 judgment, the third respondent heard
the matter and set aside the proceedings of the fourth respondent, terminating
the service of the petitioner and directing the fourth respondent to re-consider
the same by Ext.P3 proceedings. Again the Manager issued proceedings dated
14.3.2019 terminating the services of the petitioner as UPST and declared the
appointment of the Smt.Faseela C.M. as UPST in the vacancy that arose on
1.6.2017 by Ext.P4 proceedings. The petitioner then approached this Court
challenging Ext.P4 and also the appointment of Faseela C.M. as UPST with effect
from 1.6.2017 by filing WP(C)No.12077/2019, which was disposed of by judgment
dated 24.9.2020, Ext.P5.
3. The third respondent pursuant to Ext.P5 order passed Ext.P6 on
30.01.2021, directed the fourth respondent to submit the appointment order of
the petitioner for approval with effect from 15.7.2016. The fourth respondent
challenged Ext.P6 order by filing a revision before the second respondent, and
pursuant to the directions of this Court in Ext.P7 judgment, the second
respondent heard the parties and passed Ext.P8 order affirming Ext.P6 order and
rejected the appeal filed by the manager. The petitioner challenged Ext.P8 order
in a revision petition, which was directed to be disposed of by this Court in the
Ext.P9 judgment. Smt Faseela C.M. had also filed a revision against the orders not
approving her appointment with effect from 1.6.2017. Pursuant to the said
directions, and without the hearing the petitioner, the revision filed by the
manager was allowed setting aside Ext.P8 by order dated 16.3.2023, which is
marked as Ext.P11, which is challenged in this writ petition.
4. The fourth respondent manager has filed a counter affidavit
contending that the petitioner, despite the appointment on 1.6.2015 as well as on
1.6.2016, does not have any approved service. She is also not a claimant either
under Rule 43 or Rule 51A of Chapter XIV-A KER, and therefore, she does not
have any right to get an appointment in any of the future vacancies arising in the
school since she does not have any approved service in the year 2015-2016.
Similarly, for the regular vacancies of UPST that arose on 1.6.2017, the manager
appointed Faseela C.M., as the petitioner did not have any prior approved
service. It is stated that though the petitioner was appointed as UPST on
1.6.2015 in an anticipated vacancy, the said vacancy did not result, and as the
appointment was again made anticipating a vacancy on 1.6.2017 was not finalised
for want of staff fixation order, the approval of the petitioner was returned. Thus,
it is the submission of the manager that she does not have any approved service
and, therefore not entitled to claim the vacancy which arose on 1.6.2016 and
1.6.2017 and defended Ext.P11 order.
5. A counter affidavit has also been preferred on behalf of the first
respondent, contending that the appointment of the petitioner for the earlier
period was not approved and the authority did not consider the request for leave.
The petitioner had abstained from school from 23.9.2017 and the fourth
respondent has terminated the service of the petitioner with effect from 1.6.2016.
It is also stated that since the petitioner does not have approved service, Rule 51A
of Chapter XIV-A KER cannot be invoked by her claiming appointment, and
accordingly, the first respondent Government tried to sustain Ext.P11.
6. It is seen that this Court had issued notice to the manager and noting
that there was a refusal to accept the notice, declared that the service on the
fourth respondent manager was complete, proceeded to hear and allowed the writ
petition. Subsequently, a review was filed as RP No.1102/2023, and this Court
found that since there was no personal service of notice on the fourth respondent
manager, allowed the review petition and the judgment dated 26.9.2023 was
recalled.
7. Learned counsel for the petitioner, Sri. Elvin Peter P.J. argues that the
findings in Ext.P5 judgment, which has become final inter partes, found that the
appointment of Shiji. M.M. was approved, and there was an established vacancy
to approve the appointment of the petitioner for the academic year 2016-2017 to
accommodate the petitioner. These facts are stated in Ext.P11, the impugned
order and Exts.P6 and P9 called for no interference at the hands of the
Government. He also argues that Ext.P1 was without notice the petitioner and
was passed in the revision preferred by another teacher, Faseela C.M. He also
contends that Ext.P11 r and the counter-affidavits of the Manager and on behalf
of the Government would show as if the claim of the petitioner is under Rule 51A
of Chapter XIV-A KER, whereas the petitioner had not claimed any benefits under
Rule 51A but sought approval of the appointment made by the manager under
Rule 7 of Chapter XIV-A KER to an anticipated vacancy and which was approved
later.
8. Learned senior counsel Sri.K.P.Satheesan, instructed by Sri. Sudhin
Kumar submits that the petitioner's appointment was never approved, and in the
absence of the petitioner having any approved service, she cannot claim any right
either under Rule 43 or 51A of Chapter XIV A KER. It is also argued that her
services were terminated, and therefore, the Government is right in passing
Ext.P11 order that interfered with the termination order issued by the manager
apart from finding that the appointment of the petitioner is to be approved.
9. Sri. Premchand R Nair, the learned senior Government Pleader, also
supported Ext.P11, the impugned order, on the same ground that the petitioner
did not have approved service.
10. After hearing the learned counsel on all sides, it is relevant to extract
the findings in Ext.P5 judgment, which became final interparties.
"8. In the above view of the matter, I am of the opinion that it is
for the petitioner to establish before the Educational authorities in a
properly constituted appeal as against Ext.P6 that the appointment
of Shiji.M.M as HST for the academic year 2016-217 stood
approved and therefore there was an established vacancy to approve
the appointment of the petitioner as per Ext.P2. If the petitioner
succeeds in establishing the existence of the vacancy to which she
was appointed, the petitioner would be entitled to appropriate
reliefs.
In the above view of the matter, the petitioner is permitted to file an
appeal before the 2nd respondent as against Ext.P6 order issued by
the 1st respondent. The petitioner is also free to produce documents
to show that the appointment of Shiji M.M as HSST in whose
vacancy she had been appointed as UPSA by Ext.P2 order stands
approved. In case the petitioner establishes before the 2nd
respondent that there was an established vacancy to accommodate
her in the academic year 2016-17 the question of her approval shall
be duly considered by the 2nd respondent with notice to the
petitioner as well as the 1st respondent. It is made clear that since
the appointment of the 4th respondent in a vacancy on 01.06.2017 is
unconnected with the petitioner's appointment by Ext.P2, the
approval of appointment of the 4th respondent need not await the
orders on the appeal to be preferred by the petitioner as against
Ext.P6. It will be open to the Educational Authority to consider the
claim of the petitioner for approval against the promotion vacancy
consequent to a retirement which occurred on 01.06.2017."
11. A reading of the above in unmistakable terms holds that if the
petitioner can establish the fact that the appointment of Shiji M.M. as HSST was
approved, which will give rise to an established vacancy to accommodate the
petitioner in the academic year 2016-2017, her approval ought to be duly
considered. Since these two facts, namely, approval of the appointment of Shiji
M.M., as HSST stands approved, which in turn gives rise to an established
vacancy to accommodate the petitioner for the academic year 2016-2017, and
when both these facts are stated in Ext. P11 itself in favour of the petitioner,
there cannot be any reason not to approve the appointment of the petitioner as
rightly done in Ext.P6 and P8 orders, which were wrongly interfered with by the
Government while passing Ext.P11 order.
12. The argument of the senior counsel, Sri.Satheesan K.P., as well as the
Government Pleader, that the petitioner does not have approved service cannot be
accepted as much by the findings of this Court in Ext.P5 judgment as by the fact
that the petitioner was appointed to an anticipated vacancy. It is also to be noticed
that the contention of the learned senior counsel that the petitioner cannot raise
any claim under Rule 51A based on Rule 7A(3) of Chapter XIV-A KER also cannot
be accepted as the petitioner does not make any claim under Rule 51A of Chapter
XIV A KER. The manager is estopped from raising such a plea after being a party
to Ext.P5, which has become final. The findings in Ext.P6 and Ext.P8 that the
termination of the service of the petitioner by the manager was wrong; is only to
be upheld. Given the specific findings in Ext.P5 judgment stated above, and also
the orders of the educational authorities, Ext.P6, which was confirmed in Ext.P8,
there was no reason for upsetting the same by Ext.P11 order much less without
notice to the petitioner. Learned senior counsel also placed reliance on the
judgment in Manager, VKNM Vocational Higher Secondary School v. State
of Kerala and others 2016(1) KHC 430] , which considered the case of claims
under Rule 51A of Chapter XIVA KER. This judgment does not apply to the facts of
the case for the reasons already mentioned above.
13. Under such circumstances, the writ petition is only to be allowed.
Ext.P11 is quashed. There will be a direction to respondents 1 to 3 to approve the
appointment of the petitioner as UPST with effect from 15.7.2016. The petitioner
is also entitled to all the consequential benefits, including seniority, from the said
date. Appropriate orders in this regard shall be passed within three months from
the date of receipt of a copy of this judgment.
The writ petition is allowed as above.
Sd/-
MOHAMMED NIAS C.P.,
JUDGE
dlk/13.2.2024
APPENDIX OF WP(C) 26661/2023
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED
01.06.2016 ISSUED BY THE 4TH RESPONDENT
APPOINTING THE PETITIONER AS UPST.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 30.10.2018 IN
W.P.(C) NO. 35311/2018 OF THIS HON'BLE COURT.
EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS NO. B2-
8074/18/K.DIS. DATED 05.01.2019 OF THE 3RD
RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS NO. C/28/19 DATED
14.03.2019 OF THE 4TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 24.09.2020 IN
W.P.(C) NO. 12077/2019 OF THIS HON'BLE COURT.
EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS NO. B2-
1072/19/K.DIS, DATED 30.01.2021 OF THE 3RD
RESPONDENT PASSED IN PURSUANCE OF EXT.P5
JUDGMENT.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 10.08.2021 IN
W.P.(C) NO. 16083/2021 OF THIS HON'BLE COURT.
EXHIBIT P8 TRUE COPY OF THE ORDER NO. E C3/9298/2021/D.G.E.
DATED 03.02.2022 OF THE 2ND RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 24.06.2022 IN
W.P.(C) NO. 20392/2022 OF THIS HON'BLE COURT.
EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 25.11.2022 PASSED
BY THIS HON'BLE COURT IN W.P.(C) NO. 37982/2022.
EXHIBIT P11 TRUE COPY OF THE ORDER G.O.(RT.) NO.
1942/2023/GEDN DATED 16.03.2023 ISSUED BY THE 1ST
RESPONDENT.
RESPONDENTS EXHIBITS
EXHIBIT-R4(A) TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE
PETITIONER BY THE 4TH RESPONDENT DATED 1-6-2016
EXHIBIT-R4(B) TRUE COPY OF THE ORDER ISSUED BY THE 3RD
RESPONDENT DATED 10-09-2018 RETURNING THE
PROPOSAL OF APPOINTMENT OF THE PETITIONER FOR
APPROVAL
