Ancy v. State of Kerala and Others

**WP(C) NO. 28914 OF 2021 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 15[TH] DAY OF DECEMBER 2021 / 24TH AGRAHAYANA, 1943 WP(C) NO. 28914 OF 2021** ## **PETITIONER/S:** ANCY AGED 51 YEARS D/O. THOMAS, UPST, ST. MARY'S CGHSS, ERNAKULAM, (RESIDING AT CARMELITE PROVINCIAL HOUSE, KOCHI - 682001). BY ADVS. T.T.MUHAMOOD V.E.ABDUL GAFOOR A.MOHAMMED SAVAD NAZEER HUZAIN.H T.R.VISHNU ## **RESPONDENTS :** |1|THE STATE OF KERALA| |---|---| ||REPRESENTED BY ITS SECRETARY TO GOVERNMENT,| ||GENERAL EDUCATION DEPARTMENT,| ||GOVERNMENT SECRETARIAT,| ||THIRUVANANTHAPURAM - 695 001.| |2|THE DIRECTOR OF GENERAL EDUCATION,| ||DIRECTORATE OF GENERAL EDUCATION, JAGATHY,| ||THIRUVANANTHAPURAM - 695 014.| |3|THE DEPUTY DIRECTOR OF EDUCATION| ||OFFICE OF THE DDE, ERNAKULAM - 680 003.| |4|THE DISTRICT EDUCATIONAL OFFICER| ||OFFICE OF THE DEO, ERNAKULAM - 680 003.| |5|THE MANAGER| ||ST. LFHS NARAKKAL, ERNAKULAM - 682505.| **WP(C) NO. 28914 OF 2021 2** SMT NISHA BOSE, SR. GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 28914 OF 2021 3** ## **JUDGMENT** The petitioner states that she was appointed as HSA (Physical Science) in the LFHS, Narakkal with effect from 18.12.2006 against an additional division vacancy. However, in view of the economic ban imposed by the Government, approval was rejected. Though the petitioner had challenged the said order, the same was also rejected. The petitioner contends that in the light of Exts.P4, P5 Government orders and Ext.P6 judgment rendered by this Court, there is no impediment in approving the appointment of the petitioner for the period from 18.12.2006 to 31.05.2010. Stating all these aspects, the petitioner is stated to have preferred Ext.P7 revision petition before the 1st respondent which is pending. The prayer in this writ petition is for expeditious consideration of the revision petition within a timeframe with due notice. 2. It is contended by the petitioner 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. 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 5th **WP(C) NO. 28914 OF 2021 4** respondent failed to execute the bond as required in the Government Order. Thereafter, the Government issued G.O.(P)No.199/2011/G.Edn. dated 01.06.2011 approving the recommendations for implementation of the comprehensive teacher’s package for appointment of deployed/protected teachers. While so, the petitioner was appointed as UPSA in the St. George UPS, Poonithura with effect from 1.6.2010 and the said appointment was approved. According to the petitioner, similarly placed teachers had approached this Court and by various judgments, this Court had directed the respondents to approve the appointment from the date of appointment by deeming that the manager has executed the bond. The petitioner contends that relying on the law laid down by this Court, the petitioner has preferred a revision petition before the 1st respondent. It is in the afore circumstances that the petitioner is before this Court seeking a direction to the 1st respondent to consider and pass orders in the revision petition. 3. Sri. T.T. Muhamood, the learned counsel appearing for the petitioner submitted that it is settled by now that even in cases wherein, bonds have not been executed by the Manager, the 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. 4. The learned Government Pleader submitted that all appointments in **WP(C) NO. 28914 OF 2021 5** 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. 5. I have considered the submissions advanced. The writ petitioner was appointed during the period when the economic ban imposed by the Government was in force. 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], has 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. Insofar as the pendency of the petitions instituted by the Managers before the Hon’ble Apex Court is concerned, the orders shall be passed subject to the final orders that may be passed by the Apex Court in the pending litigation. 6. 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 this writ petition can be disposed of by issuing the **WP(C) NO. 28914 OF 2021 6** following directions: - a) The 1st respondent is directed to take up consider and pass orders on Exhibit P7 revision petition filed by the petitioner with notice to the petitioner as well as the 5th respondent and take a decision, taking note of the law laid down by this Court in **Suma Devi** (supra). Orders shall be passed expeditiously, in any event, within a period of three months from the date of receipt of a copy of this judgment. - b) While considering the petition, 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. The fact that the petition challenging G.O.(P) No.10/10/G.Edn. dated 12.1.2010 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 petitioner. It is made clear that the orders passed by the 1st respondent shall be subject to the decision of the Hon’ble **WP(C) NO. 28914 OF 2021 7** Supreme Court in the pending petitions. c) It would be open to the petitioner 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** NS **WP(C) NO. 28914 OF 2021 8** ## **APPENDIX OF WP(C) 28914/2021** PETITIONER(S) EXHIBITS : - EXHIBIT P1 TRUE COPY OF STAFF -FIXATION ORDER NO.D.DIS. B3-5994/2006 DATED 30.11.2006 ISSUED BY THE 4TH RESPONDENT, SHOWING THE SANCTION OF ADDITIONAL DIVISION VACANCY. - EXHIBIT P2 TRUE COPY OF THE ORDER NO.D.DIS.B3/13826/2006 DATED 12.06.2007 (WITH TYPED COPY). - EXHIBIT P3 TRUE COPY OF ORDER NO.B2-17333/2007/K.DIS. DATED 01.12.2007 ISSUED BY THE 3RD RESPONDNET (WITH TYPED COPY). - EXHIBIT P4 TRUE COPY OF GO(P) NO.10/10/G.EDN. DATED 12.01.2010. - EXHIBIT P5 TRUE COPY OF GO(RT) NO.565/2020/G.EDN. DATED 30.01.2020 (WITH TYPED COPY). - EXHIBIT P6 TRUE COPY OF JUDGMENT OF THE DIVISION BENCH OF THIS HON'BLE COURT DATED 25.07.2017 IN WA NO.2290/2015. - EXHIBIT P7 TRUE COPY OF REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT 16.10.2021. - EXHIBIT P8 TRUE COPY OF JUDGMENT DATED 30.11.2021 IN WPC NO.27038/2021. RESPONDENT(S) EXHIBITS : NIL