Reetha.R vs State Of Kerala
2024 Latest Caselaw 14155 Ker

Kerala High Court

Reetha.R vs State Of Kerala on 29 May, 2024

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946
                       WP(C) NO. 24097 OF 2021
PETITIONER:

          REETHA.R
          AGED 30 YEARS
          WIFE OF S. RATHEESH, ASSISTANT TEACHER,
          KITTA THARAKAN SENIOR BASIC SCHOOL, KARIPPODE,
          KOLLENGODE, PALAKKAD DISTRICT 678 503

          BY ADV V.A.MUHAMMED


RESPONDENTS:

    1     THE STATE OF KERALA
          REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
          GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE II,
          THIRUVANANTHAPURAM 695 001

    2     THE DIRECTOR OF GENERAL EDUCATION,
          JAGATHY, THIRUVANANTHAPURAM 695 014

    3     THE DEPUTY DIRECTOR OF EDUCATION
          CIVIL STATION, KUNNATHURMEDU, PALAKKAD 678 001

    4     THE DISTRICT EDUCATIONAL OFFICER
          MUNICIPAL COMPLEX, ROBINSON ROAD,
          SULTANPET, PALAKKAD 678 014

    5     THE ASSISTANT EDUCATIONAL OFFICER
          ANAMARI ROAD, KOLLENGODE,
          PALAKKAD DISTRICT 678 506

    6     THE MANAGER
          KITTA THARAKAN SENIOR BASIC SCHOOL, KARIPPODE,
          KOLLENGODE, PALAKKAD DISTRICT 678 503

    7     THE HEADMASTER
          KITTA THARAKAN SENIOR BASIC SCHOOL, KARIPPODE,
          KOLLENGODE, PALAKKAD DISTRICT 678 503
 WP(C) NO. 24097 OF 2021,
WP(C) NO. 23102 OF 2023 &
WP(C) NO. 24814 OF 2021

                                     2

    8          SMT. SARANYA U
               LPSA. KITTA THARAKAN SENIOR BASIC SCHOOL,
               KARIPPODE, KOLLENGODE, PALAKKAD DISTRICT 678
               503

               BY ADVS.
               NISHA BOSE - GOVERNMENT PLEADER
               SAJAN VARGHEESE K.
               U.BALAGANGADHARAN
               LIJU. M.P


        THIS    WRIT    PETITION     (CIVIL)    HAVING      COME   UP   FOR
ADMISSION       ON   29.05.2024,     ALONG     WITH    WP(C).23102/2023,
24814/2021,       THE   COURT   ON   THE     SAME     DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 24097 OF 2021,
WP(C) NO. 23102 OF 2023 &
WP(C) NO. 24814 OF 2021

                               3


          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
       THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946
                    WP(C) NO. 23102 OF 2023
PETITIONER:

           REETHA.R
           AGED 33 YEARS
           W/O RATHEESH.S, ASSISTANT TEACHER, K.T. SENIOR
           BASIC SCHOOL, KARIPPODE, KOLLENGODE P.O.,
           PALAKKAD DISTRICT, PIN - 678506

           BY ADVS.
           GEORGE ABRAHAM
           JOBY D JOSEPH
           MARY CATHERINE PRIYANKA P.S.


RESPONDENTS:

    1      STATE OF KERALA
           REPRESENTED BY SECRETARY TO GOVERNMENT,
           GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
           THIRUVANANTHAPURAM, PIN - 695001

    2      THE DIRECTOR OF GENERAL EDUCATION
           JAGATHY, THIRUVANANTHAPURAM, PIN - 695014

    3      THE DEPUTY DIRECTOR OF EDUCATION
           CIVIL STATION, PALAKKAD DISTRICT, PIN - 678001

    4      THE DISTRICT EDUCATIONAL OFFICER
           MUNICIPAL COMPELX, ROBINSON ROAD,
           PALAKKAD DISTRICT, PIN - 678014

    5      THE ASSISTANT EDUCATIONAL OFFICER
           ANAMARI ROAD, KOLLENGODE, PALAKKAD DISTRICT,
           PIN - 678506
 WP(C) NO. 24097 OF 2021,
WP(C) NO. 23102 OF 2023 &
WP(C) NO. 24814 OF 2021

                                  4



    6          THE MANAGER
               K.T. SENIOR BASIC SCHOOL, KARIPPODE,
               KOLLENGODE P.O., PALAKKAD DISTRICT, PIN -
               678506

    7          SMT. SARANYA.U
               LPSA, K.T. SENIOR BASIC SCHOOL, KARIPPODE,
               KOLLENGODE P.O., PALAKKAD DISTRICT, PIN -
               678506


               BY ADVS.
               SAJAN VARGHEESE K. K
               BALAGANGADGARAN UNIKKAT
               LIJU. M.P(K/3405/1999)
               NISHA BOSE - GOVERNMENT PLEADER


        THIS    WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 29.05.2024, ALONG WITH WP(C).24097/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) NO. 24097 OF 2021,
WP(C) NO. 23102 OF 2023 &
WP(C) NO. 24814 OF 2021

                               5



          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
       THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946
                    WP(C) NO. 24814 OF 2021
PETITIONER:

           SARANYA. U
           AGED 32 YEARS
           W/O SUBRAMANIAN V, ASSISTANT (LPSA), K.S.B
           SCHOOL, KARIPPODE, PALAKKAD-678503, RESIDING AT
           DEVI NILAYAM, EAST VILLAGE, PALLAVUR P.O,
           PALAKKAD-678688.

           BY ADV U.BALAGANGADHARAN


RESPONDENTS:

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

    2      THE DIRECTOR OF GENERAL EDUCATION
           (FORMER DIRECTOR OF PUBLIC INSTRUCTIONS),
           D.P.I.OFFICE, JAGATHY, THIRUVANANTHAPURAM-
           695014.

    3      THE DEPUTY DIRECTOR OF EDUCATION (D.D.E)
           CIVIL STATION, PALAKKAD-678001.

    4      THE DISTRICT EDUCATIONAL OFFICER (D.E.O)
           MUNICIPAL BUILDING, ROBINSON ROAD, PALAKKAD-
           678001.

    5      THE ASSISTANT EDUCATIONAL OFFICER (A.E.O)
           KOLLENGODE, PALAKKAD-678506.
 WP(C) NO. 24097 OF 2021,
WP(C) NO. 23102 OF 2023 &
WP(C) NO. 24814 OF 2021

                                  6



    6          THE MANAGER
               K.S.B.SCHOOL, KARIPPODE, PALAKKAD-678503.
    7          REETA R.
               UPSA, K.S.B.SCHOOL, KARIPODE, PALAKKAD-678503.


               BY ADVS.
               SAJAN VARGHEESE K.
               LIJU. M.P(K/3405/19
               JOPHY POTHEN KANDANKARY
               NISHA BOSE - GOVERNMENT PLEADER


        THIS    WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 29.05.2024, ALONG WITH WP(C).24097/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) NO. 24097 OF 2021,
WP(C) NO. 23102 OF 2023 &
WP(C) NO. 24814 OF 2021

                                  7

                             JUDGMENT

[WP(C) Nos.24097/2021, 23102/2023, 24814/2021]

In all the three writ petitions, the common issue that arises

pertains to the appointment of the petitioners herein, as

LPST/UPST, in K.S.B. School, Karippode, which is managed by

the sixth respondent in W.P(C) No.24814/2021. For convenience,

the parties herein are referred to on the basis of their respective

ranks in W.P(C) No.24814/2021 and the Exts are also referred to as

per the said writ petition, unless specifically mentioned otherwise.

2. The facts which led to the filing of these writ petitions

are as follows: The petitioner, i.e. the petitioner in W.P(C)

No.24814/2021 and the seventh respondent in the said writ petition

were appointed as per Ext.P3 on 01.06.2017 as LPST/UPST

respectively. Initially, the appointment of the petitioner was against

a Head Teacher vacancy (HTV), whereas the appointment of the

seventh respondent was against the retirement vacancy of one

Prasannakumari. Even though the approval of the appointment of

the seventh respondent was granted initially, later on account of WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021

certain audit objections, as there was some confusion as to whether

the post from which the said Prasannakumari retired was that of

UPST or LPST, it was cancelled. Similarly, with regard to the

appointment of the petitioner, even though the same was originally

made against an HTV, later, Ext.P1(a) corrigendum was issued by

the Manager wherein the said appointment was sought to be made

against the post of the said Prasannakuamari. The approval of the

said appointment was, however, rejected. The same was taken up

before the Government by the petitioner, which ultimately resulted

in Ext.P6 directing the Manager to issue a formal appointment order

in Form No.27 and to approve the appointment of the petitioner.

The claim of the seventh respondent was rejected in the said order.

W.P(C) No.24814/2021 was submitted by the petitioner seeking

implementation of Ext.P6, whereas W.P(C) No.24097/2021 was

filed by the seventh respondent in W.P(C) No.24814/2021,

challenging Ext.P6 order as well as the audit objection on the basis

of which, the approval of the seventh respondent was cancelled. WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021

3. During the pendency of these writ petitions, some

orders were passed by the authorities concerned on the basis of the

interim order passed by this Court in W.P(C) No.24097/2021 which

was challenged by the seventh respondent by filing W.P(C) No.

23102/2023. The order impugned in W.P(C) No.23102/2023 is

Ext.P8 therein. As all these writ petitions pertain to the appointment

of the petitioners herein, all these cases are being heard and

disposed of together. All the parties have filed counter affidavits in

the writ petitions highlighting their contentions.

4. Heard Sri.U.Balagangadharan, learned counsel

appearing for the petitioner in W.P(C) No.24814/2021, Sri.M.

Sajjad, learned counsel for the seventh respondent in W.P(C)

No.24814/2021, Dr George Abraham learned counsel for the

petitioner in W.P(C) No.24097/2021 and W.P(C) No.23102/2023,

who is also the seventh respondent in W.P(C) No.24814/2021 and

Sri.Sajan Varghese K. learned counsel appearing for the Manager.

5. On going through the entire materials placed before this WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021

Court and in the light of facts brought out, these writ petitions can

be disposed of, without considering the respective contentions

raised by the petitioners on merits. This is because, it is pointed out

that, in the School concerned, a total of ten vacancies and eight

vacancies are available for LPST and UPST respectively. There is

no dispute that, as of now eight Teachers are working as LPST for

the academic year 2017-18. It was pointed out by the petitioner by

filing I.A. 1/2024 that, out of the ten posts, one vacancy became

vacant consequent to the resignation of one C.R. Ragesh on

28.06.2016. The other vacancy occurred consequent to the

retirement of Prasannakumari. Now the basic dispute in these writ

petitions pertains to the claims put forward by the petitioner and the

seventh respondent as against the vacancy consequent to the

retirement of Prasannakumari. However, it is discernible from the

records that, in addition to the vacancy arose on account of the said

Prasannakumari, there is a further vacancy available consequent to

the resignation of C.R. Ragesh.

WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021

6. It is to be noted in this regard that, earlier when the

matter came up for consideration, this Court, taking note of the

aforesaid aspect, passed an interim order on 19.10.2023, directing

the fifth respondent to consider whether the petitioner in W.P(C)

No.24814/2021 can be accommodated in the vacancy available. In

compliance of the said interim order, the fifth respondent passed an

order dated 20.03.2024 which is produced by the Manager in

W.P(C) No.24097/2021 along with I.A. No.1/2024 as Ext.R6(b).

Even though the said order was passed after hearing the parties

concerned, it was found that the petitioner cannot be

accommodated. However, the crucial aspect to be noticed is that, in

Ext.R6(b) order, the vacancy that arose consequent to the

resignation of Ragesh C.R. was not taken into consideration. It is

admitted by all the parties except the official respondents that, the

vacancy consequent to resignation of Ragesh C.R. remains vacant,

and therefore the petitioner can be accommodated in the said post.

As Ext R6(b) order does not contain any consideration of the said WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021

aspect, the Manager has already submitted Ext.R6(b) representation,

which is dated 06.05.2024.

7. Thus, as it is evident from the records that two

vacancies of LPST are available in the School as of now, the

petitioner as well as the seventh respondent can be accommodated

in their respective posts. However, while considering the said

aspects, the question relating to the confusion created with regard to

the nature of the post i.e. whether it is LPST or UPST may also

arise. It is pointed out that even though the appointment of the

seventh respondent was initially made against that vacancy by

making it as UPST and the same was approved, by the authorities

concerned, it was later cancelled on the basis of the audit objection.

The learned counsel for the seventh respondent points out that, such

a procedure was not legally sustainable as the Audit Department

does not have the authority to raise such an objection and according

to the learned counsel the said issue is covered in his favour as per

the judgment rendered by this Court in Somanatha Panicker v. WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021

State of Kerala [1997 (1) KLT 305] and Usuvathunnisa v. Asst.

Educational Officer [1990 (2) KLT 530].

8. As the said issue also has to be decided for resolving

disputes raised by the petitioner as well as the seventh respondent in

this case, it is only proper that a decision on all these issues be taken

by the Government by considering Ext.R6(b).

In such circumstances, these writ petitions are disposed of

directing first respondent to consider and pass orders on Ext.R6(b)

in WP(C) No 24097 of 2021 submitted by the Manager of the

School and to take a decision on the following questions:

i The approval granted to the seventh respondent in the

post of UPST and the sustainability of cancellation of

the same on the basis of the audit objection shall be

considered by the first respondent after adverting to the

decisions relied on by the seventh respondent.

ii The right of the petitioner in WP(C) No 24814/2021 to

get her appointment as against the vacancy arose WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021

consequent to the resignation of Ragesh C.R. approved,

shall also be considered.

iii The orders on the same in accordance with law, shall be

passed by the first respondent after hearing the

petitioner, the Manager of the School and the seventh

respondent. The decision in this regard shall be taken

untrammelled by the findings in Ext.P6 in W.P(C)

No.24814/2021 and Ext.P8 in W.P(C) No.23102/2023,

within a period of three months from the date of receipt

of the copy of the judgment.

Sd/-

ZIYAD RAHMAN A.A. JUDGE scs WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021

APPENDIX OF WP(C) 23102/2023

PETITIONER EXHIBITS Exhibit P1 . A COPY OF THE APPOINTMENT ORDER DATED 1/6/2017 ISSUED BY THE MANAGER Exhibit P2 A COPY OF THE APPOINTMENT ORDER OF SMT. SARANYA.U DATED 1/6/2017 Exhibit P3 A COPY OF THE AUDIT OBJECTION NO.B/828/2019 DATED 23/11/2020 RAISED BY THE AUDIT DEPARTMENT WITH TYPED COPY Exhibit P4 A COPY OF THE JUDGMENT IN W.P.(C) NO.

28721/2020 DATED 22/12/2020 Exhibit P5 A COPY OF THE INTERIM ORDER PASSED BY THE HON'BLE COURT IN W.P.(C) NO. 24097/2021 DATED 3-11-2021 Exhibit P6 A COPY OF THE STAFF FIXATION ORDER NO.B/41244/2022 DATED 5/8/2022 Exhibit P7 A COPY OF THE INTERIM ORDER IN W.P.(C) NO. 24097/2021 DATED 21/2/2023 PASSED BY THE HON'BLE COURT Exhibit P8 A COPY OF THE GOVERNMENT ORDER, G.O(P) NO.3909/2023/GEDN DATED 3/7/2023 Exhibit P9 A COPY OF THE ORDER, G.O(MS) NO.

275/2021/ G.EDN. DATED 6/12/2021 Exhibit P10 A COPY OF THE ORDER, G.O.(P) NO.

4/2021/ G.EDN. DATED 6/2/2021 Exhibit P11 A COPY OF THE ORDER, G.O.(P) NO.

2/2023/ G.EDN. DATED 23/3/2023 RESPONDENT EXHIBITS EXHIBIT R 7 [ A ] A TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT)NO.4151/2021/G.EDN DATED 18.09.2021 EXHIBIT R 7 [ B ] A TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2017 ISSUED TO THE 7TH RESPONDENT EXHIBIT R 7 [ C ] A TRUE COPY OF THE CORRIGENDUM LETTER DATED 04.12.2020 ISSUED BY THE MANAGER TO THE AEO WP(C) NO. 24097 OF 2021, WP(C) NO. 23102 OF 2023 & WP(C) NO. 24814 OF 2021

APPENDIX OF WP(C) 24814/2021

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2017 ISSUED BY THE 6TH RESPONDENT.

Exhibit P1(A) A TRUE COPY OF THE LETTER OF CORRIGENDUM DATED 04.12.2020 ISSUED BY THE 6TH RESPONDENT.

Exhibit P2 A TRUE COPY OF THE STAFF FIXATION FOR THE YEAR 2017-18 DATED 16.12.2017 ISSUED BY THE 5TH RESPONDENT.

Exhibit P3 A TRUE COPY OF THE APPOINTMENT ORDER OF THE 7TH RESPONDENT DATED 1.06.2017 CARRYING ENDORSEMENT OF AEO.

Exhibit P4        A TRUE COPY OF THE LETTER ISSUED BY
                  THE 5TH RESPONDENT TO HEADMASTER OF
                  K.S.B.SCHOOL,        KARIPODE       DATED
                  23.11.2020.
Exhibit P5        A TRUE COPY OF THE ORDER DATED
                  10.02.2020 OF THE 2ND RESPONDENT.
Exhibit P6        A TRUE COPY OF THE ORDER DATED
                  18.09.2021 OF THE 1ST RESPONDENT.
RESPONDENT
EXHIBITS
Exhibit R6(a)     TRUE   COPY OF    THE JUDGMENT      DATED
                  23.02.2021      PASSED      IN      WP(C)
                  NO.14955/2020 ON THE FILE OF THIS
                  HONOURABLE COURT.
 WP(C) NO. 24097 OF 2021,
WP(C) NO. 23102 OF 2023 &
WP(C) NO. 24814 OF 2021




                 APPENDIX OF WP(C) 24097/2021

PETITIONER EXHIBITS
Exhibit P1        TRUE COPY OF THE APPOINTMENT ORDER

DATED 01-06-2017 ALONG WITH APPROVAL RECORDED THEREON Exhibit P2 TRUE COPY OF THE APPOINTMENT ORDERS OF SMT.PRASANNAKUMARI DATED 04-06-1990 Exhibit P3 TRUE COPY OF THE APPOINTMENT ORDER OF SMT. PRASANNAKUMARI DATED 04-06-1990 Exhibit P4 TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF SMT. PRASANNAKUMARI.

Exhibit P5        TRUE COPY OF THE LETTER NO. B/828/2019
                  DATED    23-11-2020   OF    THE    AEO,

KOLLENGODE ADDRESSING THE HEADMASTER Exhibit P6 TRUE COPY OF THE RELEVANT PAGE OF THE AUDIT OBJECTION RAISED AGAINST THE PETITIONER.

Exhibit P7 TRUE COPY OF THE JUDGMENT IN WP(C) NO.

28721/2020 DATED 22-12-2020 Exhibit P8 TRUE COPY OF THE APPOINTMENT ORDER OF SMT. SARANAYA U DATED 01-06-2017 Exhibit P9 TRUE COPY OF THE G.O(RT) NO 4151/2021/G.EDN DATED 18-09-2021 Exhibit P10 TRUE COPY OF THE DECISION REPORTED IN 2014(4) KHC 822 Exhibit P11 TRUE COPY OF THE GO(RT) NO.

3256/2021 /G.EDN DATED 05-07-2021 RESPONDENT EXHIBITS Exhibit R6(b) TRUE COPY OF THE REPRESENTATION DATED 06-05-2024 SUBMITTED BEFORE THE FIRST RESPONDENT.