Asha Gopinath v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945`** ## **`WP(C) NO. 37660 OF 2022`** ## **`PETITIONER/S:`** ``` ASHA GOPINATH, AGED 48 YEARS AWIFE OF ANILKUMAR GR HIGH SCHOOL TEACHER (MATHEMATICS) AMRITA SANSKRIT HIGHER SECONDARY SCHOOL, PARIPPALLY KOLLAM, DISTRICT-691 574. BY ADVS. ``` ``` V.A.MUHAMMED M.SAJJAD ``` ## **`RESPONDENT/S:`** - `1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT,` - `GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE II, THIRUVANANTHAPURAM-695 001` - `2 THE DIRECTOR OF GENERAL EDUCATION, (HIGHER SECONDARY EDUCATION WING),HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM695014.` - `3 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION` - `HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-695 014.` - `4 THE DISTRICT EDUCATIONAL OFFICER CIVIL STATION, KOLLAM-691013.` - `5 THE MANAGER, AMRITA SANSKRIT HIGHER SECONDARY SCHOOL, PARIPPALLY, KOLLAM DISTRICT-691 574.` - `6 THE PRINCIPAL, AMRITA SANSKRIT HIGHER SECONDARY SCHOOL, PARIPPALLY, KOLLAM DISTRICT-691 574.` - `7 THE HEADMASTER/VICE PRINCIPAL, AMRITA SANSKRIT HIGHER SECONDARY SCHOOL,` 2- W.P.(C). No. 37660 of 2022 ``` PARIPPALLY, KOLLAM DISTRICT-691 574. ``` ``` 8ADDL.R8: NARAYANI E.S. DEPUTY DIRECTOR (EXAMINATION IN THE DIRECTOR GENERAL OF EDUCATION (HIGHER SECONDARY WING), THIRUVANANTHAPURAM ADDL. R8 IS SUO MOTU IMPLEADED AS PER ORDER DATED 24.11.2022 IN WP(C) NO. 37660/2022. ``` ``` BY ADV ADVOCATE GENERAL OFFICE KERALA ``` ## **`OTHER PRESENT:`** ``` SRI.K.M.FAISAL, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3- W.P.(C). No. 37660 of 2022 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== W.P.(C) No. 37660 of 2022 ============================================================= Dated this the 10[th] day of April, 2023 ## **JUDGMENT** The above writ petition is filed with following prayers: _“(i) call for the records relating to Exhibit P-4 and set aside the original of the same by the issue of a writ of certiorari or appropriate writ or order._ _(ii) issue a writ of mandamus or other appropriate writ, order or direction commanding the 3[rd] Respondent to grant approval to the by-transfer appointment of the Petitioner as HSST (Maths) from 19.07.2021 and forthwith._ _(iii) issue a writ of mandamus or other appropriate writ order or direction commanding the Respondents to disburse the salary of the Petitioner in the cadre of HSA until her by transfer appointment as HSST is approved in the light of Exhibits P-9 to P-12._ _(iv) issue a writ of mandamus or other appropriate writ, order or direction commanding the 1[st] Respondent to consider and pass appropriate orders upon Exhibit P-8 after affording an opportunity of being heard to the Petitioner within a time limit duly taking note of Exhibits P-5 to P-7, pending disposal of the Writ Petition._ 4- W.P.(C). No. 37660 of 2022 _(v) pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case.” (sic)_ 2. When this writ petition came up for consideration on 23.11.2022 this Court passed the following order: _“I have heard Sri. Rajasekharan Nair, the learned counsel appearing for the petitioner, and the learned Government Pleader._ _2. I find that it was by Ext.P3 order dated 19.07.2021 that the petitioner, being qualified, was granted by-transfer appointment as HSST (Mathematics) effective from the said date. The assertion of the petitioner is that for the grant of approval, a proposal was made by the manager before the Regional Deputy Director (RDD), the 3[rd] respondent herein. However, by Ext.P4 order, the proposal was rejected, stating the following reasons. For the purpose of convenience, Ext.P4 is extracted in full._ ആശ മേൽ സൂചന പ്രകാരം താങ്കൾ സമർപ്പിച്ച ശ്രീമതി. ഗ എച കണക ോപിനാഥന്റെ ച.എസസ.എസ്.ടി തസ്തികയിലേ ക്കുള്ള നിയമനം സർക്കാർ പ്രതിനിധി ഉൾപ്പെ ടുന്ന സെ ലക്ഷൻ കമ്മിറ്റി അംഗീകാരം നൽകാത്ത ക നിയമനമായതിനാലും ആയതിലേ ക നാളിതുവരെ സർക്കാർ പ്രതിനിധിയെ സർക്കാർ അനുവദിച ഉത്തരവായിട്ടില്ലാത് ിനാലും പ്രസ് നിയമനാംഗീകാര അപേ ക്ഷ പരിഗണനാർഹമല്ല എന്നറിയിക്കുന്നു. അപേ ക്ഷയും അനുബന്ധരേഖകളും ഇതതോടടൊപ്പം മടക്കുന്നു. 5- W.P.(C). No. 37660 of 2022 _3. The learned counsel points out that the 3[rd] respondent has refused to grant approval on the ground that even for transfer appointments, a selection committee consisting of a Government nominee has to be constituted. According to the learned counsel, this Court in Jollyamma v Thomas v. State of Kerala and Ors. [Neutral Citation No.2022/KER/58659], which was rendered following the law laid down in judgment dated 16.09.2020 in W.A.No. 280/2020 held that a selection committee with a Government nominee could not be insisted on, since they are already in service and they have entered into service through a selection process. This Court had also held that the selection committee, in terms of Chapter XXXII of the KER is required only for the direct recruitment of Higher Secondary School Teachers, and the constitution of a selection committee with a Government nominee is not required in the case of appointment by by-transfer mode. According to the learned counsel, passing of the impugned order without taking note of the law laid down by this Court should invite proceedings in contempt._ _4. I take serious notice of the callous manner in which the above order was passed by the 3rd respondent. A perusal of the order would reveal that the same was issued by Narayani E.S., Regional Deputy Director, Office of the RDD, Higher Secondary Education. The learned Government Pleader submits that the said officer is now functioning as Deputy Director (Examination) in the Director General of Education (Higher Secondary Wing), Thiruvananthapuram. I, suo motu, implead Narayani E.S., Deputy Director (Examination) in the Director General of Education (Higher Secondary Wing), Thiruvananthapuram, as an additional respondent._ 6- W.P.(C). No. 37660 of 2022 _The learned Government Pleader shall intimate the aforesaid Narayani E.S, the fact that she has been impleaded in her personal capacity. She shall file an affidavit before this Court as to the reasons why she has proceeded to ignore the law laid down in judgment dated 22.08.2019 in W.P.© No. 21194/2019, the judgment of a Division Bench of this Court in W.A.No. 280/2020 and Jollyamma v Thomas v. State of Kerala and Ors. [Neutral Citation No. 2022/KER/58659], which all reiterate the very same position._ _Post on 04.01.2023.”_ 3. Thereafter the 8[th] respondent filed an affidavit as directed by this Court in which Ext.R8(a) is produced by which Ext.P4 is withdrawn. In Ext.R8(a) it is clearly stated that the proposal for approval of the petitioner is pending consideration before the 3[rd] respondent. If that be so, this writ petition itself can be disposed of directing the 3[rd] respondent to pass appropriate orders in the proposal for approval, taking into account Ext.P13. Therefore, this writ petition is disposed of in the following manner: 7- W.P.(C). No. 37660 of 2022 1. The 3[rd] respondent is directed to pass appropriate orders in the proposal for approval of the petitioner, in the light of Ext.P13, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. 2. The petitioner will produce a stamped certified copy of this judgment together with a copy of this writ petition before the 3[rd] respondent for compliance. sd/- **P.V.KUNHIKRISHNAN JUDGE** das 8- W.P.(C). No. 37660 of 2022 ## **`APPENDIX OF WP(C) 37660/2022`** |`PETITIONER EXHIBITS`|`PETITIONER EXHIBITS`| |---|---| |`Exhibit P1`|`TRUE COPY OF THE APPOINTMENT ORDER OF`| ||`THE PETITIONER DATED 03.06.2004`| |`Exhibit P2`|`TRUE COPY OF THE APPOINTMENT ORDER OF`| ||`THE PETITIONER DATED-17.07.2007`| |`Exhibit P3`|`TRUE COPY OF THE APPOINTMENT ORDER OF`| ||`THE PETITIONER(BY PROMOTION AS HSST)`| ||`DATED 19.07.2021`| |`Exhibit P4`|`TRUE COPY OF THE LETTER NO. TRO-`| ||`10/8119/2022/RDD/HSE DATED 04.02.2022`| ||`OF THE 3RD RESPONDENT`| |`Exhibit P5`|`TRUE COPY OF THE JUDGMENT IN W.P. (C)`| ||`NO. 21194/2019 DATED 22.08.2019`| |`Exhibit P6`|`TRUE COPY OF THE ORDER IN R.P. NO.`| ||`1122/2019 IN W.P. (C) NO. 21194/2019`| ||`DATED 13.01.2020`| |`Exhibit P7`|`TRUE COPY OF THE JUDGMENT IN W.A. NO.`| ||`280/2020 DATED 16.09.2020`| |`Exhibit P8`|`TRUE COPY OF THE REVISION PETITION`| ||`FILED BEFORE THE GOVERNMENT DATED`| ||`31.10.2022 (COURIER RECEIPT AFFIXED)`| ||`(WITHOUT EXHIBITS)`| |`Exhibit P9`|`TRUE COPY OF THE JUDGMENT IN W.P. (C)`| ||`NO. 33755/2016 DATED 07.12.2016`| |`Exhibit P10`|`TRUE COPY OF THE JUDGMENT IN W.P. (C)`| ||`NO. 32084/2017 DATED 09.10.2017`| |`Exhibit P11`|`TRUE COPY OF THE INTERIM ORDER IN W.P.`| ||`(C) NO. 27366/2022 DATED 31.08.2022`| |`Exhibit P12`|`TRUE COPY OF THE JUDGMENT IN W.P. (C)`| ||`NO. 31861/2022 DATED 26.10.2022.`| |`Ext. P-13`|`TRUE COPY OF THE G.O. (MS.) NO.`| ||`16/2023/GEDN DATED 20.02.2023`| |`RESPONDENT EXHIBITS`|| |`Exhibit R8(a)`|`True copy of the letter No.TRO-`| ||`10/8725(01)/2022/RDD/HSE dated29.12.22`|