High Court of KeralaSingle Judge2013-12-06Petitions disposed of; impugned daily-wage appr...

A.J. Rekha v. State of Kerala and Others

Case / Petition Number:WP(C).No.17403 of 2009 (U)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
Judgment Date: 2013-12-06
Court Decision / Holding: Consequent to the quashing of the impugned orders to the extent they approved appointments on daily wage basis, the Government shall reconsider the approvals afresh in light of Sneha Cheriyan's case (supra) and the decision in W.P.(C) No.17893 of 2013, and pass appropriate orders expeditiously, within four months from receipt of a copy of this judgment. Any recovery proposed pursuant to the impugned orders shall be kept in abeyance until such orders are issued; the question of recovery will depend on the final determination in the respective petitions.
Final Disposition: Petitions disposed of; impugned daily-wage approvals quashed to the extent of daily-wage approval; Government directed to reconsider approvals afresh in light of Sneha Cheriyan and W.P.(C) No.17893 of 2013 within four months; recovery stayed pending fresh orders.

Parties to the Case

Appellants / Petitioners

A.J. Rekha, W/o Sudheesh Shenoy, Aged 33 years, Upper Primary School Assistant, TD High School, Mattancherry, Kochi-682 002

Respondents

The State of Kerala, represented by the Secretary to Government General Education Department, Secretariat, Trivandrum
The Director of Public Instruction, Jagathy, Trivandrum-14
The Deputy Director of Education, Kakkanad, Ernakulam
The District Educational Officer, Ernakulam District
The Headmistress, TD High School, Mattancherry, Kochi-682 002

Legal Representation & Advocates

Counsels for Petitioners

• Sri V.A. Muhammed
• Sri K.E. Hamza

Counsels for Respondents

• Sri S.B. Premachandra Prabhu
• Sri P.M. Saneer

Case Synopsis & Summary

This batch of writ petitions challenges the manner in which appointments of teaching staff in aided schools have been approved. The petitioners argue that, in light of the Supreme Court's decision in State of Kerala and Others v. Sneha Cheriyan (2013 (1) KHC 660), appointment approvals should be granted on the scale of pay from the date of appointment, including vacancies arising beyond regular posts. They contend that initial approvals were confined to daily-wage basis despite established vacancies or re-opening of sanctioned positions, and rely on GO Nos. 169/2004/G. Edn, 104/2008/G. Edn and 144/2013/G. Edn to argue the invalidity of such limitations. The respondents maintain the validity of approvals under existing Kerala Education Rules (KER) and associated government orders, and urge deference to the procedures already followed. The court relies on Sneha Cheriyan and related decisions (including W.P.(C) No.17893 of 2013) to hold that the challenged daily-wage approvals require re-examination. Accordingly, the judgment quashes the impugned orders to the extent they grant daily-wage approvals and directs the Government to reconsider such approvals afresh in light of Sneha Cheriyan, with fresh orders to be issued within four months, keeping any potential recovery in abeyance until final determination in each case.

Provisions of Law Cited

Kerala Education Rules (KER), Chapter XIV-A, Rules 49, 53, 51AKER (Kerala Education Rules)G.O.(P) No.169/2004/G. EdnG.O.(P) No.104/2008/G.EdnG.O.(P) No.144/2013/G.Edn

Submissions & Arguments

Contentions of Appellants / Petitioners

The Petitioners contend that, in view of Sneha Cheriyan's case, appointments should be approved on the scale of pay from the date of appointment, with vacancies created by death, retirement, promotion, etc., treated as regular posts. Approvals granted only on daily-wage basis are unsustainable in light of the directions in Sneha Cheriyan's case; reliance on GO Nos. 104/2008 and 144/2013 should be reconsidered and the issue of daily-wage approvals re-examined.

Contentions of Respondents

The Respondents argue that approvals were issued under the Kerala Education Rules and the cited Government Orders; Sneha Cheriyan's case does not warrant blanket reversal of past actions; the W.P.(C) No.17893 of 2013 and related judgments provide the precedent that GO 144/2013 cannot govern all cases; the authorities should be afforded opportunity to adjust according to the established rules and vacancies; the petitions deserve dismissal or limited relief.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
State of Kerala and Others v. Sneha Cheriyan	2013 (1) KHC 660	Positive	Supreme Court decision relied upon and followed to direct reconsideration of appointments, establishing the controlling principles for pay-scale from date of appointment.
Unninarayanan v. State of Kerala	2009 (2) KLT 604	Overruled	Sneha Cheriyan's decision allowed appeals against this decision, signaling a departure from Unninarayanan's approach.
W.P.(C) No.17893 of 2013	—	Positive	Judgment in this petition is cited as supporting the stance that GO No.144/2013 cannot govern the appointments, and it reinforces the fresh consideration mandated by Sneha Cheriyan.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 6TH DAY OF DECEMBER 2013/15TH AGRAHAYANA, 1935** ## **WP(C).No. 17403 of 2009 (U)** **----------------------------** ## **PETITIONER(S):** ## **------------------** **A.J.REKHA,W/O.SUDHEESH SHENOY, AGED 33 YEARS, UPPER PRIMARY SCHOOL ASSISTANT T.D.HIGH SCHOOL, MATTANCHERRY, KOCHI-682 002.** **BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA** ## **RESPONDENT(S):** - **-------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14.** **3. THE DEPUTY DIRECTOR OF EDUCATION, KAKKANAD, ERNAKULAM.** ## **4. THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM DISTRICT.** **5. THE HEADMISTRESS,T.D.HIGH SCHOOL, MATTANCHERRY, KOCHI-682 002.** - **R5 BY ADV. SRI.S.B.PREMACHANDRA PRABHU R2 BY SR. GOVERNMENT PLEADER P.M. SANEER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-12-2013, ALONG WITH W.P.(C) NO.32588 OF 2010 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 17403 of 2009 (U)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE G.O.(P) NO.169/2004/G. EDN. OF THE GOVERNMENT** **EXT.P2: TRUE COPY OF THE G.O.(P) NO.104/2008/G. EDN. OF THE GOVERNMENT EXT.P3: TRUE COPY OF THE ORDER OF APPOINTMENT OF THE PETITIONER. EXT.P4: TRUE COPY OF THE ORDER NO.B2/22393/07 OF THE 3RD RESPONDENT. EXT.P5: TRUE COPY OF THE ORDER NO.B6/8118/07/L.DIS OF THE DIST. EDUCATIONAL OFFICER.** **EXT.P6: TRUE COPY OF THE ORDER NO.19451/L3/G.EDN. OF GOVT. EXT.P7: TRUE COPY OF THE ORDER NO.37234/L3/08/G.EDN OF GOVT. EXT.P8: TRUE COPY OF THE DECISION REPORTED IN 2009 (2) KLT 604** ## **RESPONDENTS EXHIBITS: NIL** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **dlk** ## **C.T.RAVIKUMAR, J.** ------------------------------------------------------------ W.P.(C).Nos.17403 of 2009, 32588 of 2010, 3235, 19017 of 2011, 876, 2907, 3023, 3101, 30464 of 2012, 347, 646, 1112, 2472, 2487, 2790, 3832, 4833, 4943, 5160, 7040, 9831 & 12663 of 2013 ------------------------------------------------------------Dated 6[th] December, 2013 ## **JUDGMENT** These writ petitions carry common grievances under similar circumstances and therefore, they were taken up for joint hearing and disposal. The petitioners are aggrieved by the manner and nature of approval of their appointments. The contention of the petitioners is that in the light of the decision of the Hon'ble Supreme Court in **State of Kerala and Others** Vs **Sneha Cheriyan** reported in **2013 (1) KHC 660** they are entitled to get their appointments approved on a scale of pay basis from the date of appointments. Evidently, it was declined pertaining to the initial period of appointments and the initial periods were approved only on daily wage basis. In the light of the decision in **Sneha Cheriyan's** case (supra), more particularly of the directions in paragraph 26 of the said decision it is contended that the action on the part of the respondents in limiting the approval to the appointments, in relation to the initial periods or such other relevant periods on daily wage basis disregarding the nature of vacancy as also the appointment is unsustainable. It is also contended that it was done so either relying on G.O.(P)No.104/2008/G.Edn dated 10.06.2008 disregarding the WP(C).No.17403 of 2009 & connected cases 2 decision in **Sneha Cheriyan's** case (supra) or on a wrong understanding of the same or relying on G.O.(P)No.144/2013/G.Edn dated 22.04.2013. 2. I have heard the learned counsel for the petitioners and also the learned Government Pleader. It is the common contention of the petitioners that in view of the decision of the Hon'ble Apex Court in **Sneha Cheriyan's** case (supra) the respondent authorities could not rely on G.O.(P)No.104/ 2008/G.Edn. dated 10.06.2008 any further and as per the decision of this Court in W.P.(C)No.17893 of 2013 setting aside G.O.(P)No.144/2013/G.Edn. dated 22.04.2013 the said G.O. dated 22.4.2013 also could not be relied on, for deciding the nature of approval to be granted legally, to the appointments of the petitioners in respect of the periods presently approved only on daily wage basis. In **Sneha Cheriyan's** case (supra) the Hon'ble Apex Court allowed the appeals with the following directions:- “We are, therefore, inclined to allow these appeals and set aside the judgment of the Division Bench with the following directions:- - “i) A teacher, who was relieved from service under Rules 49 and 53 of Chapter XIV-A of the KER, is entitled to get preference for appointment under Rule 51A only if the teacher has a minimum prescribed continuous service in an academic year as on the date of relief. - ii) The Manager of an aided school can, however, appoint WP(C).No.17403 of 2009 & connected cases 3 teachers in vacancies occurred due to death, retirement, promotion, resignation, long-term leave etc, provided they are established vacancies and the approval can be granted subject to the conditions under Rule 49 of Chapter XIV-A of the KER. - iii) Approval can also be granted to appointments made to the approved vacancies arising and continuing beyond 31[st] March due to sanctioning of additional divisions. - iv) The Manager can make appointments in school even if the duration of which is less than one academic year but on daily wage basis and if the duration of vacancy exceeds one academic year that can be filled up on scale of pay basis. - v) The Manager is free to appoint teachers on a regular basis from the re-opening date itself against regular established vacancies and need not wait for the appointments till completion of the staff fixation as per the KER. - vi) Teachers who have been appointed in the midst of the academic year and not completed the requisite minimum continuous service before vacation will not be entitled to get vacation salary.” ## 3. In the light of the decision in **Sneha Cheriyan's** case (supra) carrying the aforesaid specific directions it is contended that merely because of the fact that the appeal against the decision in **Unninarayanan** v. **State of Kerala** reported in **2009 (2) KLT 604** was allowed it shall not be understood as one restoring G.O.(P)No.104/ 2008/G.Edn. dated 10.06.2008. A scanning of the decision in **Sneha Cheriyan's** case (supra) would make the said position beyond any WP(C).No.17403 of 2009 & connected cases 4 doubt. That apart, this position has been made abundantly clear in the judgment in W.P.(C)No.17893 of 2013 besides setting aside G.O.(P) No.144/2013/G.Edn. dated 22.04.2013. In the circumstances, the impugned orders in all these writ petitions to the extent they approved the appointments of the petitioners on daily wage basis without bestowing consideration in the light of the decision in **Sneha Cheriyan's** case (supra) call for interference. So also, in the light of the judgment in W.P.(C)No.17893 of 2013, G.O.(P)No.144/2013/G.Edn. dated 22.04.2013 could not be relied on to limit the appointments of the petitioners on daily wage basis. In other words, the question whether the period/periods in question approved only on daily wage basis requires re-consideration in the light of the aforesaid decisions. To enable such consideration these writ petitions are disposed of as hereunder:- ## W.P.(C)No.17403 of 2009 Exts.P4, P5, P6 and P7 are quashed to the extent they approved the appointment of the petitioner from 7.7.2005 to 31.3.2006 on daily wage basis. ## W.P.(C)No.32588 of 2010 Exts.P5 and P6 are quashed to the extent they order approval of appointment of the petitioner from 28.6.2006 to 31.3.2007 on daily wage basis. WP(C).No.17403 of 2009 & connected cases 5 ## W.P.(C)No.3235 of 2011 Exts.P1, P3, P4, P5 and P6 are quashed to the extent they approved the appointment of the petitioner from 27.11.2007 to 31.3.2008. on daily wage basis. ## W.P.(C)No.19017 of 2011 Exts.P1, P2 & P4 are quashed. ## W.P.(C)No.876 of 2012 Ext.P3 is quashed to the extent it approved the appointment of the petitioner from 3.6.2008 to 31.3.2009 on daily wage basis. ## W.P.(C)No.2907 of 2012 Ext.P1, P2, P3, P4 and P5 are quashed to the extent they approved the appointments of the petitioners on daily wage basis. ## W.P.(C)No.3023 of 2012 Exts.P1, P2 and P6 are quashed to the extent they approved the appointment of the petitioner only on daily wage basis from 7.9.2009 to 31.3.2010. ## W.P.(C)No.3101 of 2012 Ext.P2 is quashed to the extent it approved the appointment of the petitioner from 27.6.2007 to 3.12.2008 n daily wage basis. ## W.P.(C)No.30464 of 2012 Ext.P1 is quashed to the extent it approved the appointment of the petitioner from 19.1.2012 to 30.4.2012 on daily wage basis. WP(C).No.17403 of 2009 & connected cases 6 ## W.P.(C)No.347 of 2013 Ext.P1 is quashed to the extent it approved the appointment of the petitioner from 15.7.2007 on daily wage basis. ## W.P.(C)No.646 of 2013 Ext.P1 is quashed to the extent it approved the appointment of the petitioner from 27.7.2009 to 31.3.2010 on daily wage basis. ## W.P.(C)No.1112 of 2013 Ext.P31 is quashed to the extent it directs to approve the appointment of the petitioner on daily wage basis from 1.7.2008. ## W.P.(C)No.2472 of 2013 Ext.P3 to the extent it approved the appointment of the petitioner for the period from 18.6.2007 to 31.5.2008 on daily wage basis, is quashed. ## W.P.(C)No.2487 of 2013 Ext.P2 is quashed to the extent it approved the appointment of the petitioner from 6.6.2008 to 31.3.2009 on daily wage basis. ## W.P.(C)No.2790 of 2013 Ext.P1 is quashed to the extent it approved the appointment of the petitioner from 29.7.2009 to 31.3.2010 on daily wage basis. ## W.P.(C)No.3832 of 2013 Ext.P1 is quashed to the extent it approved the appointment of the petitioner from 29.6.2009 to 31.3.2010 only on daily wage basis. WP(C).No.17403 of 2009 & connected cases 7 ## W.P.(C)No.4833 of 2013 Ext.P1 to the extent it approved the appointment of the first petitioner from 9.6.2008 to 31.3.20098 on daily wage basis and Ext.P2 to the extent it approved the appointment of the second petitioner from 7.6.2010 to 31.3.2011, only on daily wage basis, are quashed. ## W.P.(C)No.4943 of 2013 Ext.P5 is quashed to the extent it approved the appointment of the petitioner from 10.10.2008 to 31.3.2009 on daily wage basis. ## W.P.(C)No.5160 of 2013 Ext.P1 is quashed to the extent it approved the appointment of the petitioner from 25.6.2009 to 31.3.2010 on daily wage basis. ## W.P.(C)No.7040 of 2013 Ext.P1 is quashed to the extent it approved the appointment of the petitioner from 29.6.2007 to 31.3.2008 on daily wage basis. ## W.P.(C)No.9831 of 2013 Exts.P2, P4, P5, P6, P7, P9, P10, P11 and P13 orders are quashed to the extent they declined approval to the appointments of the petitioners on regular basis in the respective scales of pay. ## W.P.(C)No.12663 of 2013 Ext.P1 is quashed to the extent it approved the appointment of the petitioner from 13.6.2007 to 31.3.2008 on daily wage basis. WP(C).No.17403 of 2009 & connected cases 8 Consequent to the quashing of the impugned orders in all these writ petitions to the aforementioned extent the Government shall consider the issue of approval of appointments covered by the impugned orders in all these writ petitions, which were approved only on daily wage basis, afresh in the light of the decision in **Sneha Cheriyan's** case (supra) and the decision in **W.P.(C)No.17893 of 2013** and appropriate orders shall be passed expeditiously, at any rate, within a period of four months from the date of receipt of copy of this judgment. Needless to say that recovery, if any, proposed pursuant to the impugned orders shall be kept in abeyance till orders are passed based on the directions in this judgment and the question of effecting recovery thereafter would depend upon the decision relating the petitioners in their respective cases. Sd/C.T.RAVIKUMAR Judge ## TKS ## W.P.(C)No.1112 of 2013 L The word “ **Ext.P31** ” occurring in the operative portion of page No.6 under the caption W.P.(C)No.1112/2013 in the common judgment dated 6.12.2013 in W.P.(C)No.17403/2009 and connected cases is corrected and replaced by the word “ **Ext.P1** ” as per order dated 24.1.2014 in I.A.No.1216/14 in W.P.(C)No.1112/2013.