Arun V. v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 3[RD] DAY OF AUGUST 2021 / 12TH SRAVANA, 1943** **WP(C) NO. 969 OF 2019** ## **PETITIONER:** **ARUN.V., S/O.R.VIJAYAN PILLAI, AMABAZHAVELIL HOUSE, EDAMATTOM PO, KOTTAYAM (LOWER PRIMARY SCHOOL ASSISTANT, KRISHNA VILASAM SOUTH (KVS) LOWER PRIMARY SCHOOL, ELAMGULAM)** **BY ADVS. S.SUBHASH CHAND V.P.SHEEJA** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM - 695 001.** - **3 THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), KOTTAYAM - 686 001.** - **4 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KANJIRAPPALY - 686 501.** - **5 THE ASSISTANT EDUCATIONAL OFFICER, OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, KANJIRAPPALLY - 686 501.** - **6 THE MANAGER, THE KRISHNA VILASAM SOUTH (KVS) LOWER PRIMARY SCHOOL, ELAMGULAM, NARIYANANI PO, KOTTAYAM - 686 506.** - **BY ADVS.SRI.V.VENUGOPAL, GP SRI.SHINDO VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 969 OF 2019** **-2-** ## **JUDGMENT** The petitioner, who was working as a Lower Primary School Teacher in 'Krishnavilasam South (KVS) Lower Primary School', Elamgulam, has approached this Court impugning Exts.P5 and P7 orders, as per which, his approval with effect from 29.10.2012 has been denied, citing that the school in question is a 'newly opened one' and therefore, that only a protected teacher could have been appointed; and further that the school did not have sufficient student strength for him to be granted substantive appointment, thus he being deserving of offered approval only on daily wages with effect from 29.12.2012. 2. The petitioner says that impugned orders are illegal because, when he had earlier approached this Court by filing W.P(C)No.6516/2014, Ext.P4 judgment had been **WP(C) NO. 969 OF 2019** **-3-** delivered, directing the Government to reconsider the matter taking note of the judgment of this Court in **Nadeera v State of Kerala** (2011 (3) KLT 790) and **Moosakutty v. District Educational** **Officer** (2009 (3) KLT 863), which declares the law that unless the Educational Authorities had forwarded a list of protected teachers to the Manager, the approval of a teacher made by him cannot be interdicted. 3. The petitioner also has a case that impugned orders are unlawful for the additional reason that it relies on Ext.P6 circular, which is issued in the year 2016, to deny approval to his appointment made four years earlier to it. He, therefore, prays that Exts.P5 and P7 be set aside and the competent Authority be directed to grant him approval from the date of his initial appointment. 4. I have heard Sri.S.Subhash Chand – learned ## **WP(C) NO. 969 OF 2019** **-4-** counsel for the petitioner and Sri.V.Venugopal – learned Government Pleader appearing on behalf of the official respondents. 5. The learned Government Pleader, thereafter, added that a counter affidavit has been filed by the 5[th] respondent, wherein, it has been explained that, even prior to the appointment of the petitioner on 29.12.2012, Government had issued circular dated 10.05.2012 and GO(MS) No.92/10/G.Edn dated 04.06.2010, mandating that the vacancies which arose consequent to the ‘abolishment of shift’ can be filled up only in the case of death, retirement, resignation, promotion, transfer and leave exceeding eight months, _albeit_ on daily wages. He, therefore, prayed that the relief sought for in the writ petition be not granted. 6. As the afore narration would show that two basic issues are involved in this case: namely, ## **WP(C) NO. 969 OF 2019** **-5-** (a) whether the Manager was justified in appointing the petitioner to a vacancy which arose on account of the abolishment of the shift system; and (b) whether the rigour of Ext.P6 circular, dated 09.11.2016, which mandates that a minimum number of students is required for granting regular approval, would apply to the petitioner; who was appointed much before its date. 7. As far as the first contention is concerned, as rightly stated by Sri.S.Subhash Chand, the matter is covered by Ext.P4 judgment, which directed the Government to consider whether the declarations of law in **Moosakutty** (supra) and **Nadeera** (supra) would apply. 8. Interestingly, as is evident from Ext.P5, Government found that the competent educational Authorities had not forwarded a list of 'Protected Teachers' to the Manager; and obviously, therefore, the rigour of the afore two judgments ## **WP(C) NO. 969 OF 2019** **-6-** would apply in its full force to the facts of this case. 9. That said, as regards the afore second issue projected by the petitioner, I find favor with him because, Ext.P6 circular, dated 09.11.2016, has been applied to deny substantive approval to his appointment made in the year 2012, saying that the School did not have sufficient students to accommodate him. It is needless to say and without requirement of any elaboration, that a circular which was issued four years after the petitioner was appointed, could not have been applied against him to hold that his approval can only be on daily wages. 10. The afore two issues being so answered, it becomes indubitable that petitioner is entitled to the reliefs sought for in this writ petition and that the impugned orders are rendered wholly unsustainable, particularly because, the ## **WP(C) NO. 969 OF 2019** **-7-** Government unequivocally admits, in Ext.P5, that no list of 'Protected Teachers' had been forward to the Manager, by the competent educational Authorities at the relevant time. 11. That being so said, as regards the contentions of the learned Government Pleader based on the Government Circular dated 10.05.2012 and Order dated 04.06.2010, the rigour of the same, namely to appoint teachers in specified circumstances only on daily wages, cannot be accepted after the amendment of the Constitution of India, bringing in Article 21A thereof, consequent to which the Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE) was brought into effect. 12. This is because, the appointment of a teacher on daily wages cannot be stipulated by the Government through a circular or an order contrary to the provisions of the afore Act and the ## **WP(C) NO. 969 OF 2019** **-8-** constitutional provisions and am, therefore, of the firm view that, even if these circular and order are stated to be in force even now, it would not have any impact on the case of the petitioner. This is more so because, nowhere in the impugned orders has the afore circular or Government Order been even referred to, much less adverted to, but this contention has been impelled by the official respondents only in their counter affidavit and anywhere else. It is now well settled, without requirement of further expatiation, that no order can be sustained before this Court on subsequent pleadings and averments in the counter affidavits, and that same will have to be justified on the basis of its own contents (see for support, ## **Mohinder Singh Gill v. Chief Election Commissioner** [1978 (1) SCC 405]) I, therefore, repel these contentions as being without any basis. In the afore circumstances and being guided by ## **WP(C) NO. 969 OF 2019** **-9-** the judgments of this Court in **Nadeera** (supra) and **Moosakutty** (supra), I allow this writ petition and set aside Exts.P5 and P7 to the extent to which it has granted approval to the petitioner only on daily wage basis; with a consequential direction to the 5[th] respondent – Assistant Educational Officer, to reconsider the proposal for approval to the petitioner and issue an appropriate order granting substantive approval to his appointment with effect from the year 2012, as expeditiously as is possible, but not later than two months from the date of receipt of a copy this judgment. Resultantly, all consequential benefits thereto will be disbursed to the petitioner within a further period of three months thereafter. ## **Sd/DEVAN RAMACHANDRAN JUDGE** akv **-10-** ## **WP(C) NO. 969 OF 2019** ## **APPENDIX OF WP(C) 969/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE APPOINTMENT ORDER DATED 29.10.2012 ISSUED BY RESPONDENT NO.6.** **EXHIBIT P2 TRUE COPY OF THE STAFF FIXATION ORDER DATED 28.3.2011 ISSUED BY RESPONDENT NO.6 PERTAINING TO KVS LOWER PRIMARY SCHOOL, ELAMGULAM.** **EXHIBIT P3 TRUE COPY OF THE QUESTION SUBMITTED UNDER RIGHT TO INFORMATION ACT, 2005 BY ONE SRI. MANISH HARIDAS DATED 9.5.2014.** - **EXHIBIT P3 TRUE COPY OF THE REPLY TO EXT.P3 BY THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF RESPONDENT NO.3.** - **EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 10.3.2014 IN W.P.(C).NO.6516 OF 2014 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 14.5.2018 ISSUED BY RESPONDENT NO.1.** - **EXHIBIT P6** - **TRUE COPY OF THE GOVERNMENT CIRCULAR DATED 9.11.2016 ISSUED BY RESPONDENT NO.1.** - **EXHIBIT P7 TRUE COPY OF THE APPROVED APPOINTMENT ORDER DATED 29.10.2012 OF THE PETITIONER UPON WHICH THE ORDER DATED 18.6.2018 OF RESPONDENT NO.5 IS ENDORSED.** **EXHIBIT P8 TRUE COPY OF THE CIRCULAR DATED 10.5.2012 ISSUED BY RESPONDENT NO.1.**