A. Salikutty v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 12TH DAY OF OCTOBER 2017/20TH ASWINA, 1939** ## **WP(C).No. 36971 of 2015 (V)** **----------------------------** ## **PETITIONER :** **----------------------** **A.SALIKUTTY, WIFE OF MATHEW JOSEPH,AGED 48 YEARS, HIGH SCHOOL ASSISTANT(MALAYALAM) ST. ALOYSIUS HIGHER SECONDARY SCHOOL, KOLLAM, (RESIDING AT THENGUVILA THEKKETHIL, P.O.KUMBALAM,(VIA) MULAVANA, KOLLAM DISTRICT-691 503.** ## **BY ADVS.SRI.V.A.MUHAMMED SRI.M.SAJJAD** **RESPONDENT(S):** **---------------------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM-695 014.** **3. THE DEPUTY DIRECTOR OF EDUCATION, THEVALLAY, KOLLAM DISTRICT-691 009.** **4. THE DISTRICT EDUCATIONAL OFFICER, KOLLAM DISTRICT-691 009.** **5. THE CORPORATE MANAGER, CATHOLIC SCHOOLS, BISHOP'S HOUSE, KOLLAM DISTRICT-691 007.** **R1 TO R4 BY SR GOVERNMENT PLEADER SMT. MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C).No. 36971 of 2015 (V) ---------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ---------------------------------------** **EXT.P1. TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 2-6-2008. EXT.P2. TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 2-3-2015, WITHOUT ANNEXURE. EXT.P3. TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 16337 OF 2009 (J) DATED 9-7-2010. EXT.P3(A). TRUE COPY OF THE JUDGMENT IN WPC 6039/2012 DATED 18-2-2015. EXT.P3(B). TRUE COPY OF THE JUDGMENT IN WPC NO. 15998/2015(Y) DATED 28-7-2015. EXT.P4. TRUE COPY OF THE G.O.(RT) NO.4844/2015/G.EDN. DATED 13-10-2015 OF THE GOVERNMENT.** **RESPONDENT(S)' EXHIBITS: NIL ------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **P.V.ASHA, J.** ## **W.P.(C) No.36971 of 2015** ## **Dated this the 12[th] day of October, 2017** ## **JUDGMENT** The petitioner was appointed as HSA (Malayalam) in the 5[th] respondent's School as per Ext.P1 order dated 2.6.2008 in the additional post created for the year 2006-2007. This appointment was approved as per endorsement dated 2.1.2012 in Ext.P1 with effect from 1.6.2011 in tune with Circular No.H2-35920/11 dated 14.12.2011 of the Director of Public Instructions. Aggrieved by the denial of approval with effect from the initial date of appointment, namely 2.6.2008, the petitioner has moved the Government with revision petition. That revision petition was rejected. This writ petition is filed seeking directions to the respondents to approve her appointment with effect from 2.6.2008. 2. The Government have filed a counter affidavit stating that the appointment of the petitioner was not liable to be approved in view of the ban order issued in G.O(P) No.317/2005/G.Edn dated 17.8.2005. It is also stated that the Manager did not execute a bond when the order of ban was lifted conditionally as per G.O.(P) No.10/2010/G.Edn dated 12.1.2010. The cases in which approval was limited from 1.6.2011 has already been considered by me in my judgment dated 28.6.2017 in WP(C) No.34935 of 2016. 3. Petitioner was appointed at a time when there was justification W.P.(C) No.36971/15 **==> picture [14 x 10] intentionally omitted <==** for sanctioning a post of HSA. At the same time the Manager filled up the vacancy in gross disobedience of the orders issued by Government, imposing ban on filling up of vacancy in additional divisions. As per the provisions contained in Rule 1 of Chapter XIVA KER, the Manager has to fill up the vacancy in an aided school only in accordance with the rules as well as the orders issued by Government from time to time. In June 2008, the ban order issued on 17.08.2005 was in force and Manager ought not have filled up the additional division vacancy. When the Government lifted the ban conditionally, by issuing G.O.(P) No.10/10/G.Edn dated 12.01.2010, the Managers did not execute any bond agreeing to fill up equal number of vacancy by appointing protected teachers. The Managers of various Schools challenged the order unsuccessfully. It was upheld by this court by a common judgment dated 16.03.2011 in a batch of writ petitions reported in _**Eravannoor A.U.P. School v. State of Kerala: 2011 (3) KLT SN 89 (C.No. 91)**_ **.** The Division Bench of this Court affirmed that by the judgment in _**Nair Service Society v. Government of Kerala [2015(2) KLT 625]**_ **.** It was held that the provisions of the Kerala Education Act and rules do not confer any absolute or unbridled right on the Manager of an aided school to make appointment of teachers and that the Managers have to fill up the vacancies strictly in W.P.(C) No.36971/15 **==> picture [14 x 10] intentionally omitted <==** accordance with the provisions of the Kerala Education Act, Rules and the executive orders and instructions issued from time to time either by the Government or the Director of Public Instruction, as provided in Sub-rule (1) and (4) of R.1 of Chapter XIVA of K.E.R. This Court found that orders banning appointment were perfectly within the competence of Government. In the meanwhile Government had issued G.O.(P) No.199/11/G.Edn dated 1.10.2011, introducing teachers' package and directing approval of appointment of the teachers who were continuing without salary, protected hands, etc. with effect from 01.06.2011. Based on those orders all the teachers including the petitioner who was continuing in the additional division vacancy without approval got her appointment approved from 01.06.2011. Even though the approval was confined to the period from 01.06.2011, Government did not take a decision on the question of the service rendered by these teachers prior to 01.06.2011. They have been consistently adopting the stand that the question regarding that would be decided later. The fact that there was justification for sanctioning the posts for their appointments is not disputed. 4. Now the contention of the learned Counsel for the petitioner that approval is granted to several teachers on the basis of the directions of this Court in several cases, requires to be examined. W.P.(C) No.36971/15 **==> picture [14 x 10] intentionally omitted <==** 5. In the common judgment dated 18.02.2015 in W.P.(C) No.4643 of 2013 and connected cases, a learned Single Judge of this Court directed that if the Manager has not executed the bond, appointments shall be approved with effect from the date of their appointment, treating that the Manager has executed the bond and his obligation to appoint protected teachers is in force. 6. By judgment dated 28.07.2015, another learned Single Judge, taking note of the earlier judgments in the case of similarly situated teachers, directed approval of an appointment made on 4.06.2007 in an additional division vacancy, leaving it open to the educational authorities to enforce the conditions in the bond. 7. In the judgment dated 29.03.2017 in W.P(C) No.1552 of 2012, another learned Single Judge directed approval and consequential disbursement of salary to teachers similarly situated. 8. The learned Counsel for the petitioner submitted that similar directions are issued in several other cases also and the directions are implemented in most of the cases. Moreover, even Government have not taken any decision that the service rendered by the teachers prior to 01.06 2011 should not be recognised for any purpose. The Government have been stating that a general decision would be taken in the matter. W.P.(C) No.36971/15 **==> picture [14 x 10] intentionally omitted <==** 9. In view of the fact that several of these judgments are already implemented and several similarly situated teachers got approval and payment of salary towards the pre-June 2011 service in additional division vacancies, I am of the considered view that there is no reason why the petitioner in this case should be subjected to a different treatment, for the very same reasons viz. ban on appointments and non-execution of bonds. Even according to Government, as per the circular dated 25.10.2011 and subsequent proceedings, the question relating to the service rendered by these teachers for the period prior to 01.06.2011 would be considered when a general decision is taken by Government. That means, the Government do not have a case that these teachers have not worked or that there were no posts for them for their appointments. 10. Once it is found that the Manager appointed the petitioner in gross disobedience to the order issued by Government, imposing ban on appointment i.e in violation of the provisions contained in Rule 1 of Chapter XIVA of KER, it is open for the official respondents to take action against the Manager, who is party to this writ petition, in accordance with the provisions in Chapter III Rule 7 of KER and also to enforce the conditions in the bond or to get the loss caused to Government on account of that, recouped by them. W.P.(C) No.36971/15 **==> picture [14 x 10] intentionally omitted <==** 11. In these circumstances, the denial of approval to the appointment of the petitioner for the period prior to 01.06.2011 is arbitrary and unsustainable. In the above circumstances, the writ petition is allowed to the extent of directing approval of appointment of the petitioner for the period from 2.6.2008, based on Ext.P1. The petitioner shall be entitled to the consequential benefits and the respondents shall disburse the same within a period of four months, from the date of receipt of copy of a judgment. The writ petition is disposed of as above. Sd/- **P.V.ASHA JUDGE** rkc