Banazir.R v State of Kerala and Ors

**WP(C) NO. 3177 OF 2021 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 2[ND] DAY OF SEPTEMBER 2021 / 11TH BHADRA, 1943 WP(C) NO. 3177 OF 2021** ## **PETITIONER/S:** BANAZIR.R, AGED 49 YEARS, W/O.SHAJAHAN, NEW MANZIL, MANAMKUZHI.PO, MAVELIKKARA, (WORKING AS U.P.S.A, T.M.V.M.HIGH SCHOOL, VETTIYAR,PIN-690588). BY ADVS. LINDONS C.DAVIS SMT.E.U.DHANYA ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014. 3 DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KODIVEEDU, ALAPPUZHA-688001. 4 DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA, ALAPPUZHA DT.-690101. 5 MANAGER, T.M.V.M.HIGH SCHOOL, VETTIYAR, PIN-690588. **WP(C) NO. 3177 OF 2021 2** SRI BIJOY CHANDRAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 3177 OF 2021** **3** ## **JUDGMENT** The petitioner states that she was initially appointed in the T.M.V.M. High School, Vettiyar, an aided school, under the management of the 5th respondent towards a leave vacancy for the period from 1.12.2005 to 30.11.2010 as per Ext.P1 order of appointment. She states that though the appointment of the petitioner to the leave vacancy was approved till 30.11.2010, she was retrenched from service, as the teacher who had availed leave rejoined service on 04.06.2008. According to the petitioner, in view of the above, the petitioner became a claimant for future vacancies as per Rule 51A of Chapter XIV A of the KER. On 04.06.2008, she was appointed to an additional division vacancy for the academic year 2008-2009 as per Ext.P3 order dated 04.06.2008. The petitioner states that the appointment was rejected by the 4th respondent as per Ext.P4 order on the ground that there was no sanctioned post. Though the manager had preferred an appeal, the same was dismissed by Ext.P5 order and the same was confirmed by the 1st respondent by Ext.P6 order. Later, in view of G.O.(P) No.10/10/G.Edn. dated 12.1.2010, the appointment of the petitioner was approved w.e.f. 01.06.2011. Her grievance is that approval was not granted for the period from 04.06.2008 to 31.05.2011. The petitioner contends that in the light of **WP(C) NO. 3177 OF 2021** **4** Ext.P8 judgment by the Division Bench of this Court in W.A. No.300/2019 and connected cases dated 09.08.2019, the appointment has to be approved even in the cases of non-execution of the bond by the Managers treating that the Managers are deemed to have executed the bond they would be obliged to make appointments from the list of protected teachers, equal to the number of appointments approved during the ban period. It is in the afore circumstances, that the petitioner is before this Court seeking directions. 2. Sri. Lindons C Davis, 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 hands, equal to the number of appointments approved during the ban period. In order to substantiate his contention, the learned counsel would rely on the law laid down by this Court in Ext.P8 judgment. It is submitted by the learned counsel that the 4th respondent be directed to consider Ext.P7 representation in the light of the above precedent. 3. The learned Government Pleader submitted that all appointments in additional division vacancies are liable to be apportioned in the ratio of 1:1 **WP(C) NO. 3177 OF 2021** **5** and if the appointment of the protected hand 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. 4. Having considered the contentions advanced, there appears to be considerable merit in the submissions made by the learned counsel. 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], and in the judgment dated 9.8.2019 in WA No.332 of 2017 and connected cases have 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. I am of the opinion that having regard to the view taken by this Court in identical cases, the respondents were bound to pass orders by deeming that the Managers had executed the bond and also that they would be obliged to make appointments from the list of protected hands equal to the number of **WP(C) NO. 3177 OF 2021** **6** appointments approved during the ban period. 5. In that view of the matter, this writ petition is disposed of by issuing the following directions: 1. There will be a direction to the 4th respondent to consider Ext.P7 request made by the 5th respondent, as per procedure and in strict adherence to the provisions of law. An opportunity of being heard, either physically or virtually, shall be afforded to the Manager and the petitioner or her authorised representative. 2. While considering Exhibit P7, the 1st respondent shall deem that the Manager executed the bond and also that they would be obliged to make appointments from the list of protected hands to the number of appointments approved during the ban period. Needless to mention, the order passed as aforesaid would be subject to the final orders to be rendered by the Hon’ble Supreme Court in the petition filed by the Managers. 3. Orders, as directed above, shall be passed expeditiously, in any event, within a period of three months from the date of **WP(C) NO. 3177 OF 2021** **7** production of a copy of this judgment. 4. The petitioner shall produce a copy of the writ petition along with the judgment before the concerned respondent for further action. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** NS **WP(C) NO. 3177 OF 2021 8** ## **APPENDIX OF WP(C) 3177/2021** PETITIONER (S) EXHIBITS : EXHIBIT P1 A COPY OF THE APPOINTMENT ORDER DATED 14.08.2006. EXHIBIT P2 A COPY OF THE APPOINTMENT ORDER DATED 1.6.2007. EXHIBIT P3 A COPY OF THE APPOINTMENT ORDER DATED 4.6.2008. EXHIBIT P4 A COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 18.12.2008. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 28.02.2009 OF THE 3RD RESPONDENT. EXHIBIT P6 A COPY OF THE ORDER DATED 28.7.2009 OF THE 1ST RESPONDENT. EXHIBIT P7 A COPY OF THE REQUEST OF THE MANAGER TO THE 4TH RESPONDENT DATED 14.6.2010. EXHIBIT P8 A COPY OF THE JUDGMENT IN WA NO.2504/2018 DATED 09.08.2019. EXHIBIT P9 A COPY OF G.O(P)NO.2/2018/G.EDN. DATED 16.2.2018. RESPONDENT (S) EXHIBITS : NIL