Beena Valiyaparambath v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944** ## **WP(C) NO. 33593 OF 2022** ## **PETITIONER:** BEENA VALIYAPARAMBATH AGED 47 YEARS HIGH SCHOOL ASSISTANT (ENGLISH), SREE NARAYANA TRUST HIGHER SECONDARY SCHOOL, THOTTADA, KANNUR DISTRICT-670007. BY ADVS. POOVAMULLE PARAMBIL ABDULKAREEM K.N.KUMARASWAMY SARMA ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 DIRECTOR OF GENERAL EDUCATION, OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM - 695014. 3 DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KANNUR-670001. 4 DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, KANNUR-670002. 5 MANAGER, S. N. TRUST SCHOOLS, P. B. NO.63, KOLLAM-691001. BY ADV A.N.RAJAN BABU SMT.SURYA BINOY, SENIOR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 33593 OF 2022 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C)No. 33593 of 2022** **---------------------------------------------Dated this the 14[th] day of March, 2023** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) To issue a writ of certiorari to quash Exts.P2, P7 & P9 and to the extent of denial of approval in Ext. P1, as it is illegal and unjustifiable._ _(ii) To issue a writ of mandamus or any other appropriate writ or order or direction directing the 4th respondent to approve the appointment of the petitioner as H.S.A (English) with effect from 10/11/2008 to 31/05/2011 and to disburse all consequential monitory benefits due to her forthwith._ _(iii) To declare that the petitioner is entitled to get approval to her post H.S.A (English) with effect from 10/11/2008 onwards in the light of Exts. P4, P11 Judgments and P12 communication issued by the 4th respondent._ _(iv) To dispense with filing of translation of vernacular documents._ _(v) To mould and grant such other reliefs,_ WP(C) NO. 33593 OF 2022 3 _as this Hon'ble Court shall deem just and proper in the interest of justice, including costs.”[SIC]_ 2. The petitioner is presently working as H.S.A (English) in SN Trust HSS, Nattika, Trissur. She was initially appointed in the additional Division vacancy in SN Trust HSS, Thottada, Kannur from 10.11.2008 onwards as H.S.A (English). This appointment was rejected by the official respondents on the ground that she was accommodated in the newly created post during the economic ban and the 5[th] respondent failed to execute the bond in terms of GO(P) No. 10/10/G.Edn. dated 12.01.2010. However, her appointment was approved with effect from 01.06.2011 onwards under the Teachers' Package. According to the petitioner, identical cases were considered by this Court in several writ petitions and writ appeals and it was held that approval can be granted assuming that the Manager has executed a bond as stipulated in GO (P) No. 10/10/G.Edn. dated WP(C) NO. 33593 OF 2022 4 12.01.2010. Hence, the petitioner approached the 1[st] respondent as well as this Court by filing revision petition and writ petition. This Court as per Ext.P6 Judgment directed the 1[st] respondent to consider Ext.P5 revision petition deeming that the Manager executed the bond. However the 1[st] respondent rejected the revision petition by Ext.P7 holding that the Manager is a party to the SLP filed against GO (P) No. 10/10/G.Edn. dated 12.01.2010 and obtained stay against clause 5 & 6 of the said Government order. The petitioner again approached this Court assailing Ext.P7 order and obtained Ext.P8 Judgment. The 1[st] respondent again turned down the claim of the petitioner stating that the School is a pre-degree delinked one and Ext.P10 will not apply to the case of the petitioner. It is also stated that her junior's appointment was approved because there was a direction issued by this Court, but in the case of the petitioner there is no such direction. Hence this writ WP(C) NO. 33593 OF 2022 5 petition is filed. 3. Heard counsel appearing for the petitioner and the learned Government Pleader. I also heard the counsel appearing for the 5[th] respondent. 4. It is an admitted fact that, in several cases this Court directed the Educational authorities to approve the appointment deeming that the Manager executed the bond in terms of G.O. (P)No.10/10/G.Edn. dated 12.01.2010. Ext.P11 is a judgment delivered by this Court as far as another teacher of the same School is concerned. It will be better to extract the relevant portion of Ext.P11 judgment: _“6. From Ext.P4 it is seen that the reason for declining approval to petitioner's appointment was that protected teacher was not appointed since the School was a new School. The appointment was not against any additional division vacancy and denial of approval was not based on any ban on appointments in such vacancies. The petitioner was appointed as HSA in English in the year 2009. The post of HSA in English was introduced only in 2002 by way of_ WP(C) NO. 33593 OF 2022 6 _G.O(Ms) No.11/02/G.Edn dated 07.01.2002. At the relevant time only those teachers who were having 7 years service as on 01.07.1998 alone were eligible for protection. As far as HSA (English) is concerned it was practically impossible to have any teacher in English eligible for protection at the time when the petitioner was appointed in 2009. Therefore there was no reason for denying the approval to the appointment of the petitioner. Even otherwise the respondents do not_ _have a case that the Manager had made an appointment after the list of protected teachers was furnished to him. This Court has already held in_ _**Minimole vs. State of Kerala: 2012(4)KLT SN 32** that the vacancy of HSA (English) would not be filled up by any teacher qualified in other subjects. In these circumstances it was not a case where the Manager should have asked to execute a bond as the G.O. dated 12.01.2010 does not apply to the present case._ _In the above circumstances, denial of approval of appointment of the petitioner for the period from 01.06.2009 is unsustainable. Orders Exts.P7 as well as Ext.P9 to the extent it denies approval from 01.06.2009 shall stand set aside. The DEO shall issue revised orders approving the appointment of the petitioner with effect from 01.06.2009 and grant her all consequential benefits. Orders shall be passed on approval within a period of one month from the date of receipt of a copy of the judgment and consequential benefits shall be granted to the_ WP(C) NO. 33593 OF 2022 7 ## _petitioner within a further period of three months.”_ 5. Ext.P4 is the Division Bench judgment of this Court in which the appeal filed by the State against the appointment of teachers in the same School was considered and the decision of the learned Single Judge was upheld by this Court. In the light of the above judgments, I think the reasoning in Ext.P9 will not stand. Ext.P9 is to be set aside. The petitioner is entitled for approval with effect from the date of appointment itself. The 4[th] respondent has to pass appropriate consequential orders. Therefore, this writ petition is allowed in the following manner: i. Ext.P2, P7 and P9 are quashed to the extent of denial of approval in Ext.P1 from the date of appointment. ii. The 4[th] respondent is directed to approve the appointment of the petitioner as WP(C) NO. 33593 OF 2022 8 H.S.A (English) with effect from the date of appointment as per Ext.P1, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment. iii. Based on the above order, consequential benefits shall also be disbursed to the petitioner, within a period of two months from the date on which the above order is passed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM WP(C) NO. 33593 OF 2022 9 ## **APPENDIX OF WP(C) 33593/2022** ## PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE APPOINTMENT ORDER| |---|---| ||DATED 10/11/2008 ISSUED BY THE 5TH| ||RESPONDENT| |EXHIBIT P2|TRUE COPY OF THE ORDER NO.B5/1194/08| ||K.DIS DATED 29/12/2009 ISSUED BY THE| ||4TH RESPONDENT IS 3PRODUCED ALONG| ||WITH TYPED COPY| |EXHIBIT P3|TRUE COPY OF THE ORIGINAL STAFF| ||FIXATION ORDER NO.B5/7421/08 DATED| ||31/07/2008 FOR THE YEAR 2008-09| ||ISSUED BY THE 4TH RESPONDENT| |EXHIBIT P4|TRUE COPY OF THE JUDGMENT DATED| ||26/7/2017 IN W.A. NO. 2592/2015| ||PASSED BY THIS HON'BLE COURT| |EXHIBIT P5|TRUE COPY OF THE REVISION PETITION| ||DATED 28.10.2020N SUBMITTED BY THE| ||1ST PETITIONER BEFORE THE 1ST| ||RESPONDENT| |EXHIBIT P6|TRUE COPY OF THE JUDGMENT DATED| ||10.11.2020 IN WPC NO.24286/2020| ||ISSUED BY THIS HON'BLE COURT.| |EXHIBIT P7|TRUE<br>COPY<br>OF<br>THE<br>G.O(RT)| ||NO.5050/2021/G.EDN. DATED 10/11/2021| ||ISSUED BY THE 1ST RESPONDENT.| |EXHIBIT P8|TRUE COPY OF THE JUDGMENT DATED| ||24/06/2022 IN WP(C) NO.29040/2021| ||ISSUED BY THIS HON'BLE COURT| |EXHIBIT P9|TRUE COPY OF THE G.O(RT)NO.| ||5897/2022/GEDN<br>DATED<br>11/10/2022| ||ISSUED BY THE 1ST RESPONDENT| |EXHIBIT P10|TRUE COPY OF THE G.O (MS)| WP(C) NO. 33593 OF 2022 10 NO.4/2021/GEDN DATED 06/02/2021 ISSUED BY THE 1ST RESPONDENT EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 05/08/2020 IN WP(C) NO.22748/2019 ISSUED BY THIS HON'BLE COURT EXHIBIT P12 TRUE COPY OF THE LETTER LETTER NO.A5/4656/10 DATED 19/07/2010 ISSUED BY THE PUBLIC INFORMATION OFFICER ATTACHED TO THE 4TH RESPONDENT RESPONDENT EXHIBITS: NIL //TRUE COPY// PA TO JUDGE