Anuja Abraham v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942** ## **WP(C).No.4853 OF 2013(F)** ## **PETITIONER:** **ANUJA ABRAHAM, MUNDIYANICKAL, ANICKADU EAST P.O, KOTTAYAM – 686 503.** ## **BY ADV. SRI.ISAAC KURUVILLA ILLIKAL** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTION (GENERAL) DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHI, THIRUVANANTHAPURAM - 695 001.** - **3 THE DEPUTY DIRECTOR OF EDUCATION, THODUPUZHA, IDUKKI DISTRICT.** - **4 THE DISTRICT EDUCATION OFFICER, KATTAPPANA, IDUKKI DISTRICT.** - **5 THE CORPORATE MANAGER, CORPORATE MANAGEMENT OF SCHOOLS, DIOCESE OF KANJIRAPILLY, KANJIRAPILLY P.O.** **BY ADV. SRI.P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.4853 OF 2013(F)** **-2-** ## **JUDGMENT** ## **Dated this the 19th day of February 2021** The petitioner says that she was appointed as a High School Assistant (HSA) in English, in a regular vacancy in 'St.Mary's Higher Secondary School', Marykulam, with effect from 01.06.2010; but that approval of her appointment was denied by respondents 3 and 4 for the reason that a protected teacher had not been appointed by the Manager of the School to the vacancy set apart for appointment of a Sewing Teacher in the School. 2. The petitioner, however, concedes that, with effect from 04.06.2011, she joined another School under the same Educational Agency, when a regular vacancy arose therein; and therefore, prays that her appointment for the period from 01.06.2010 to 03.06.2011 be approved since the Manager was incapacitated from appointing a protected sewing teacher because, no such person was available in the Educational District and no list of such persons had ## **WP(C).No.4853 OF 2013(F)** **-3-** been forwarded to him by the Department. 3. The petitioner thus asserts that she is entitled to have her appointment between 01.06.2010 and 03.06.2011 approved on the strength of the judgment of this Court in **Moosakutty v. DEO, Wandoor** [2009 (3) KLT 863] **and T.S.Nadeera v. State of Kerala** [2011(3) KLT 790]. The petitioner, therefore, prays that Exts.P2 and P5 be set aside and respondents be directed to approve her appointment from 01.06.2010 to 03.06.2011, on regular basis and to release the salary and other benefits for said period. 4. In response to the afore submissions, the learned Senior Government Pleader – Sri.P.M.Manoj, submitted that a counter affidavit has been filed on record, wherein, it has been averred that, since the Manager had not appointed any protected teacher in 'St.Mary's High School', Marykulam, to the post of Sewing Teacher earmarked for such purpose, the petitioner's approval could not be granted. 5. He further submitted that the second respondent had, thereafter, directed the fourth ## **WP(C).No.4853 OF 2013(F)** **-4-** respondent to approve the appointment of the petitioner with effect from 01.06.2011, subject to the condition that she had been included in the “Teacher's Package”, as per Government Order bearing No.G.O(P)No.199/2011/G.Edn dated 01.10.2011; but that, during this period, the petitioner had been appointed in 'Deepa High School', Kushithola, as an HSA (English) and consequently, that she could not be included so. The learned Senior Government Pleader, therefore, prayed that this writ petition be dismissed. 6. In reply, Sri.Issac Kuruvilla Illikal - learned counsel appearing for the petitioner, submitted that the afore mentioned Government Order, which has been produced on record as Ext.P10, does not have any retrospective effect and therefore, that same cannot be made applicable to his client’s appointment. 7. The learned counsel then reiteratingly asserted that his client is entitled to approval with effect from her initial date of appointment on 01.06.2010, since the Manager could not have appointed ## **WP(C).No.4853 OF 2013(F)** ## **-5-** anybody to the post of Sewing Teacher for the specific reason that no list of such protected teachers had been made available by the Department to him at the relevant time. He, therefore, ingeminatingly prayed that this writ petition be allowed and the reliefs sought for by his client be granted. 8. When I assess the afore submissions, it is without doubt that there is clear dispute of fact between the rival parties as to whether the Department had furnished the Manager with the list of protected teachers to be appointed to the post of Sewing Teacher at the relevant time. While the petitioner asserts otherwise, Government has not answered it specifically in their counter pleadings. Of course, the petitioner says that the averments in paragraph 4 of the counter affidavit can only be an admission by the Government that there was no such list of teachers; but the learned Government Pleader submits that this is not an admission, but was only on record of the contention of the petitioner. **==> picture [376 x 11] intentionally omitted <==** ## **WP(C).No.4853 OF 2013(F)** **-6-** issue requires to be considered by the competent Authority in the light of the judgment of this Court in **Moosakutty (supra)** and **T.S.Nadeera (supra).** In the afore circumstances, I set aside Ext.P5 and consequently direct the third respondent – Deputy Director of Education, Thodupuzha, to reconsider the petitioner’s claim for approval of the period in question, after affording her, as also the Manager, an opportunity of being heard – either physically or through video conferencing – thus culminating in an appropriate order thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. Needless to say, while the afore exercise is completed, the third respondent will advert specifically to the ratio in **Moosakutty (supra)** and **T.S.Nadeera (supra)** and will also take into account the petitioner’s specific contention that the Manager had not been forwarded with the list of protected teachers at the relevant time. As a necessary corollary, I make it clear that ## **WP(C).No.4853 OF 2013(F)** **-7-** grant of approval to the petitioner with effect from 01.06.2010 by the second respondent through Ext.P7 would be subject to the decision to be taken in terms of the afore directions; and that if the petitioner is found eligible to be accorded approval of her appointment with effect from 01.06.2010, same will be granted to her notwithstanding Ext.P7. The writ petition is thus disposed of. **Sd/DEVAN RAMACHANDRAN JUDGE** akv ## **WP(C).No.4853 OF 2013(F)** ## **-8-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE MEMO OF APPOINTMENT ISSUED BY THE 5TH RESPONDENT DATED 27.05.2010. EXHIBIT P2 PHOTOCOPY OF THE ORDER OF THE 4TH RESPONDENT DATED 9.2.2011. EXHIBIT P3 PHOTOCOPY OF THE CIRCULAR NO. 38929/J/2009/G EDN DATED 19.11.2009. EXHIBIT P4 PHOTOCOPY OF G.O.(P) NO. 46/2006/G. EDN DATED 1.02.2006. EXHIBIT P4 (A) PHOTOCOPY OF THE ORDER NO. B 5/9694/2008 ISSUED BY THE 3RD RESPONDENT DATED 30/7/2008. EXHIBIT P5 PHOTOCOPY OF THE ORDER OF THE 3RD RESPONDENT DATED 29/08/2011. EXHIBIT P6 PHOTOCOPY OF THE REVISION PETITION FIELD BY THE PETITIONER DATED 7.02.2012. EXHIBIT P7 PHOTOCOPY OF THE ORDER OF THE 2ND RESPONDENT DATED 23.07.2012. EXHIBIT P8 PHOTOCOPY OF THE REPRESENTATION FILED BEFORE THE 1ST RESPONDENT DATED 14.1.2013. EXHIBIT P9 PHOTOCOPY OF THE CIRCULAR NO. 74101/J2/2004/G.EDN DATED 24.1.2005. EXHIBIT P10 PHOTOCOPY OF G.O.(P) 199/11/G.EDN DATED 1.10.2011.** ## **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// P.A. TO JUDGE