Aby George v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 20[TH] DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943 WP(C) NO. 14872 OF 2021** ## **PETITIONER:** ABY GEORGE AGED 42 YEARS S/O.C.K.GEORGE, HIGH SCHOOL TEACHER (MATHEMATICS), ST.MARY'S HIGHER SECONDARY SCHOOL, ARAKULAM , IDUKKI, IDUKKI DISTRICT, RESIDING AT CHANDRAKUNNEL HOUSE, URUMBIL PALA, THODUPUZHA EAST P.O., IDUKKI DISTRICT-685 585 BY ADVS. T.MADHU J.PRAKASH C.VADAKKAN C.R.SARADAMANI SHAHID AZEEZ CHANDRALEKHA SANU ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 THE DIRECTOR GENERAL OF EDUCATION, OFFICE OF THE DIRECTOR GENERAL OF EDUCATION, VAZHUTHACAUD P.O., THIRUVANANTHAPURAM-695 014 3 THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM, KOTTAYAM P.O., KOTTAYAM DISTRICT-686 001 4 THE DISTRICT EDUCATION OFFICER, KANJIRAPPALLY, PONKUNNAM P.O., KOTTAYAM DISTRICT-686 506 WP(C) NO. 14872 OF 2021 **==> picture [8 x 9] intentionally omitted <==** - 5 THE DISTRICT EDUCATIONAL OFFICER, KOTTAYAM, KOTTAYAM P.O.,-686 001 - 6 THE DISTRICT EDUCATIONAL OFFICER, PALA, PALA P.O., KOTTAYAM DISTRICT-686 575 - 7 THE DISTRICT EDUCATIONAL OFFICER, THODUPUZHA, IDUKKI DISTRICT-685 584 - 8 THE ASSISTANT EDUCATIONAL OFFICER, ARAKULAM, IDUKKI DISTRICT-685 591 - 9 THE MANAGER CORPORATE AGENCY, DIOCESE OF PALA, PALA P.O., KOTTAYAM DISTRICT-686 575 BY ADV GOVERNMENT PLEADER SMT NISHA BOSE SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 14872 OF 2021 3 ## **JUDGMENT** The petitioner states that he was appointed as HSA in an additional Division vacancy in the St.Paul’s High School with effect from 20.06.2006. Later, he was reappointed to the above post and continued till 31.3.2008. On 2.6.2008, he was again appointed to the very same post and he continued till 31.3.2009. Thereafter from 1.6.2009, the petitioner was appointed to the above post and continued till 31.3.2010. The grievance of the petitioner concerns the non approval of the appointment of the petitioner and the rejection orders passed by the 4th respondent declining approval on account of the economic ban imposed by the Government. 2. The petitioner states that he was later appointed as UPST in the St. Sebastian Higher Secondary School, Kadanadu on 1.6.2010 and as Upper Primary School Assistant at the St. George Upper Primary School, Moolamattam on 4.6.2012. His appointment was approved by Ext.P8 and P9 orders. WP(C) NO. 14872 OF 2021 4 3. Smt. Saradamani.C.R., the learned counsel appearing for the petitioner submitted that the Government had, as per G.O (P) No.317/2005/G.Edn. dated 17.8.2005, imposed a ban on the appointment of teachers and non-teaching staff in additional division vacancies. It was in the said circumstances that the approval of the appointment of the petitioner was initially turned down. Later, by G.O.(P) No.10/10/G.Edn. dated 12.1.2010, the ban on appointments was lifted subject to certain conditions. One among the conditions was that the Managers should execute a consent letter undertaking that in future vacancies, protected teachers equal to the number of teachers, appointed to the additional division vacancies during the period 2006-07 to 2009-10, would be appointed. The Manager failed to execute the bond as required in the Government order. Thereafter the Government issued G.O.(P) No.199/2011/G.Edn dated 01.10.2011 approving the recommendations for implementation of the comprehensive WP(C) NO. 14872 OF 2021 **==> picture [8 x 9] intentionally omitted <==** teacher’s package for appointment of deployed/protected teachers. 4. According to the petitioner, teachers similarly placed as the petitioner had approached this Court and by Ext.P12 to P15 judgments, this Court had directed the respondents to approve the appointment from the date of appointment by deeming that the manager had executed the bond. In the light of the law laid down by this Court, the petitioner approached the 1st respondent and filed Ext.P16 revision petition. Later, pursuant to directions issued by this Court as per Ext.P17 judgment, the revision petition was taken up and the same was rejected by Ext.P18 order. The only reason stated in Ext.P18 is that the Manager had not executed the bond and that this Court while disposing of Ext.P17 judgment, had not ordered the 1st respondent to consider the deeming provision. The learned counsel contends that it is settled by now that even in cases wherein, bonds have not been executed by the Manager, the WP(C) NO. 14872 OF 2021 6 Managers would be deemed to have executed the bond and they would be obliged to make appointments from the list of protected teachers, equal to the number of appointments approved during the ban period. 5. The learned Government Pleader submitted that all appointments in additional division vacancies are liable to be apportioned in the ratio of 1:1 and if the appointment of the protected teacher is not done as provided in G.O.(P) No.10/10/G.Edn. dated 12.1.2010, then the Manager ought to have executed a bond stating that such appointments would be made in accordance with the provisions of the Government Order. It is further submitted that some of the Managers have challenged G.O.(P) No.10/10/G.Edn. dated 12.1.2010 and those matters are now pending before the Apex Court. It is further submitted that it is for the 1st respondent to consider whether the petitioners would be entitled to the benefits of G.O.(P) No.10/10/G.Edn. WP(C) NO. 14872 OF 2021 **==> picture [8 x 9] intentionally omitted <==** 6. I have considered the submissions advanced. The petitioners claim that they were appointed during the period when the ban was in force. As rightly contended by the learned counsel, a Division Bench of this Court in **State of Kerala and** **Ors. v. V.S.Suma Devi and Ors** . [judgment dated 1.8.2017 in W.A.No.2111/2015] have held that in the case of non-execution of the bond by the Managers, it should be deemed that bonds have been executed and the Managers would be obliged to make an equal number of appointments when the appointments to additional vacancies made during the ban period are approved. 7. After having carefully evaluated the contentions raised in this writ petition, the submissions made across the Bar and the facts and circumstances, I am of the view that there was no justification on the part of the 1st respondent in rejecting the revision petition on the ground that the Manager has not executed the bond and that this Court had not directed to pass WP(C) NO. 14872 OF 2021 8 orders by deeming that the bond was executed by the manager. This Court in Suma Devi (supra) has held that even in the case of non-execution of the bond by the Managers, it should be deemed to have been executed and they would be obliged to make an equal number of appointments when the appointments to additional vacancies during the ban period are approved. 8. In that view of the matter, I am of the view that Ext.P18 order cannot be sustained and the same will stand set aside. The 1st respondent shall reconsider Ext.P16 revision petition filed by the petitioner and pass fresh orders for which the following directions are issued. a) There will be a direction to the 1st respondent to reconsider the Ext.P16 revision petition in the light of the law laid down by this Court in Suma Devi (supra) and in Ext.P12 to P15 judgment and pass fresh orders with notice to the petitioner as well as the 9th respondent and take a decision, as WP(C) NO. 14872 OF 2021 9 per procedure and in accordance with the law. b) Orders shall be passed expeditiously, in any event, within a period of four months from the date of receipt of a copy of this judgment. c) While considering the revision petitions the Secretary to Government shall consider whether G.O.(P) No.10/10/G.Edn. dated 12.1.2010 would apply and if it applies, the 1st respondent shall be free to reckon that the Managers would be deemed to have executed the bond and also that they would be obliged to make appointments from the list of protected teachers equal to the number of appointments approved during the ban period. d) The fact that the petition challenging G.O.(P) No.10/10 filed by the Managers is pending consideration of the Hon’ble Supreme Court shall not be taken as a ground to deny the benefits to the petitioners if they are otherwise entitled to. It is WP(C) NO. 14872 OF 2021 **==> picture [15 x 9] intentionally omitted <==** made clear that the orders passed by the 1st respondent shall be subject to the decision of the Hon’ble Supreme Court in the pending petitions. e) It would be open to the petitioners to produce a copy of the writ petition along with the judgment before the concerned respondent for further action. The writ petition is disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V,** **JUDGE** AJ WP(C) NO. 14872 OF 2021 11 ## **APPENDIX OF WP(C) 14872/2021** PETITIONER EXHIBITS - Exhibit P1 THE TRUE COPY OF THE ORDER DATED 6/2/2006 BEARING NO.B3/538/2006/K.DIS ISSUED BY THE SIXTH RESPONDENT - Exhibit P2 THE TRUE COPY OF THE APPOINTMENT ORDER DATED 20.6.2006 ISSUED BY THE NINTH RESPONDENT - Exhibit P3 THE TRUE COPY OF THE APPOINTMENT ORDER DATED 15.6.2006 ISSUED BY THE NINTH RESPONDENT - Exhibit P4 THE TRUE COPY OF THE ORDER DATED 30/6/2008 BEARING NO.B4/4495/08/K.DIS OF THE FOURTH RESPONDENT - Exhibit P5 THE TRUE COPY OF THE ORDER DATED 6/2/2009 BEARING NOB5/15586/08/K.DIS OF THE THIRD RESPONDENT - Exhibit P6 THE TRUE COPY OF THE ORDER DATED 10.12.2010 BEARING NO B4/4104/10/K.DIS OF THE FOURTH RESPONDENT Exhibit P7 THE TRUE COPY OF THE APPOINTMENT ORDER DATED 1.6.2010 ISSUED BY THE NINTH RESPONDENT AND THE APPROVED ORDER NO.B3/2887/2010/K.DIS DATED 10.10.2010 ISSUED BY THE SIXTH RESPONDENT Exhibit P8 THE TRUE COPY OF THE ORDER NO. B3/2915/2011/K.DIS DATED 15.12.2011 ISSUED BY THE SIXTH RESPONDENT Exhibit P9 THE TRUE COPY OF THE APPOINTMENT AND APPROVAL ORDER NO.C/849/12/K.DIS DATED 15.3.2013 OF THE SEVENTH RESPONDENT WP(C) NO. 14872 OF 2021 12 |Exhibit P10|THE TRUE COPY OF THE APPOINTMENT AND| |---|---| ||APPROVAL ORDER NO.D4/6553/15/K.DIS DATED| ||30.11.2016 ISSUED BY THE EIGHT RESPONDENT| |Exhibit P11|THE TRUE COPY OF THE GOVERNMENT ORDER DATED| ||12.1.2010 BEARING NO.G.O(P) NO.10/10/E.DN| |Exhibit P12|THE TRUE COPY OF THE JUDGMENT DATED| ||18.2.2015 IN WPC NO.6039/2012 ON THE FILES| ||OF THIS HONOURABLE COURT| |Exhibit P13|THE TRUE COPY OF THE JUDGMENT DATED| ||28.7.2015 IN WPC NO.15998/2015 ON THE FILES| ||OF THIS HONOURABLE COURT| |Exhibit P14|THE TRUE COPY OF THE JUDGMENT DATED| ||17.11.2016 IN WPC NO.3383/2013 ON THE FILES| ||OF THIS HONOURABLE COURT| |Exhibit P15|THE TRUE COPY OF THE JUDGMENT DATED| ||25.7.2017 IN WA NO.2290/2015 ON THE FILES| ||OF THIS HONOURABLE COURT| |Exhibit P16|THE TRUE COPY OF THE REVISION PETITION| ||DATED 15.11.2019 FILED BY THE PETITIONER| ||BEFORE THE FIRST RESPONDENT| |Exhibit P17|THE TRUE COPY OFF THE JUDGMENT DATED| ||5.2.2020 IN WPC NO.3161/2020 ON THE FILES| ||OF THIS HONOURABLE COURT| |Exhibit P18|THE TRUE COPY OF THE ORDER| ||NO.1908/2021/G.EDN DATED 24.2.2021 OF THE| ||FIRST RESPONDENT| |Exhibit P19|THE TRUE COPY OF THE CERTIFICATE DATED NIL| ||ISSUED BY THE HEADMASTER, ST.PAULS HIGHER| ||SECONDARY SCHOOL, VALIYAKUMARAMANGALAM|