Bindu M. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944** ## **WP(C) NO. 26600 OF 2010** ## **PETITIONER:** BINDU M, W/O.K.BAIJU, "TUSHARA",VAKKOM(PO), THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2 THE DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3 THE MANAGER SREE NARAYANA DHARMA SANGHOM TRUST, SIVAGIRI MUTT, VARKALA-695 141. 4 THE PRINCIPAL SIVAGIRI HIGHER SECONDAREY SCHOOL, SREENIVASAPURAM, VARKALA. BY ADVS. SRI.V.JAYAPRADEEP SMT.O.A.NURIYA SRI.JUSTIN JACOB, SENIOR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 26600 OF 2010 2 ## **P.V.KUNHIKRISHNAN, J.** # **-----------------------------W.P.(C).No. 26600 of 2010** **---------------------------------------------Dated this the 20[th] day of October, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) To issue a Writ of certiorari or any other appropriate Writ, Order or direction calling for the records leading to Ext.P-12 and quash the same;_ _(ii) To issue a Writ of mandamus or any other appropriate writ, order or direction directing the respondents to regularize the appointment of the petitioner as H.S.S.T. Zoology and grant her all benefits including arrears of salary ;_ _(iii) To declare that the appointment of the petitioner as H.S.S.T Zoology, made as per Ext. P-3 order is liable to be regularized in the accordance with the decision of the Hon'ble Supreme Court reported in 2001 (1) SCC 151;_ _(iv) To issue a Writ of mandamus or any other appropriate writ, order or direction, directing the respondents to disburse the arrears of salary to the petitioner from August, 2000 to March, 2002 ;And._ _(v) To grant such other and further reliefs as_ WP(C) NO. 26600 OF 2010 **==> picture [7 x 10] intentionally omitted <==** _are just, proper and necessary in the facts and circumstances of the case. ”[SIC]_ 2. The Sree Narayana Dharma Sanghom Trust, has established an aided Higher Secondary School. During the year 1997, the Government enacted the Shivagiri Mutt (Emergency Provisions) Act, 1997 and took over the Management of the Trust. Thereafter, in order to administer the Trust and its institutions, an administrator was appointed by the Government. The said administrator who was appointed by the Government was thereafter acting as the Manager of the school. The Administrator invited applications for appointment to the post of Higher Secondary School Teachers (H.S.S.T) (Zoology) in the Higher Secondary School of the Trust. The petitioner submitted an application based on the above notification and she was invited for an interview as evident by Ext.P2. It is the case of the petitioner that, after the interview and the WP(C) NO. 26600 OF 2010 4 selection process, the petitioner was appointed as H.S.S.T (Zoology) as per Ext. P-3 order. Thereafter, the Administrator appointed by the government was removed and the new Administrator took charge of the Trust. When the new Administrator took charge of the Trust, it is the case of the petitioner that, he initiated steps to fill up the post of H.S.S.T (Zoology) held by the petitioner by making fresh appointments. The petitioner joined duty as H.S.S.T. (Zoology) in the school and she worked there from August 2000 till March 2002 at Shivagiri Higher Secondary School, Varkala. It is the case of the petitioner that, thereafter, she was not allowed to continue and the petitioner has not even paid her salary for the period she had actually worked. Hence, this writ petition is filed. 3. Heard counsel appearing for the petitioner and the learned Government Pleader. I also heard the counsel appearing for the 4[th] respondent. WP(C) NO. 26600 OF 2010 5 4. This Court considered the contentions raised by the petitioner and the respondents. A perusal of Ext.P1 order passed by the Apex Court will show that, if no suitable candidates are available then the teachers can be appointed from the open market also on adhoc basis as stop gap arrangement at the recommendation of the aforesaid selection committee. This is subject to the final orders to be passed by the Apex Court. According to the petitioner, based on Ext.P1 order, the petitioner was appointed on ad hoc basis. Based on that clause in Ext.P1, the then Administrator invited applications for selection of guest teachers. The petitioner was invited for an interview by the Administrator as evident by Ext.P2 notice. Thereafter, as per Ext.P3, the petitioner was appointed as a guest teacher in Zoology in Shivagiri Higher Secondary School, Varkala. In the appointment order itself it is clearly stated that the arrangement is liable to be WP(C) NO. 26600 OF 2010 6 terminated at any time. It is also stated that the appointment is purely on adhoc basis as a stop gap arrangement and subject to the final outcome of the appeals pending before the Apex Court. It is also stated that the appointee shall not have any claim whatsoever, for future appointment of any kind by virtue of this appointment as a Guest teacher. 5. Thereafter, the Apex Court disposed of the matter and the same is reported as _**M.M.Dolichan and others v. State of Kerala and others**_ [2001 (1) SCC 151]. The relevant portion of the Apex Court judgment is extracted in Ext.P4 order. It will be better to extract Clause 1 to 4 of the judgment, which is extracted in Ext.P4 order: _“1. The appointment of all the Higher Secondary School Teachers in the aided schools who have been appointed on an adhoc basis during the pendency of the case in pursuance to the interim order dated 7.12.99 will be regularised._ _2. The appointment of the Higher Secondary_ WP(C) NO. 26600 OF 2010 7 _School Teachers in Government Schools in pursuance to the order dated 1.2.99 will also be regularised._ _3. Any appointments made in pursuance to the Government order dated 13.5.98 and continuing as on the date of the Judgment of the Supreme Court will also be regularised._ _4. No further appointments can be made from any source either in Government or Aided Schools from the date of the Judgement for a period of 3 months. The Special Rules governing to appointment of teachers in Higher Secondary will be finalised within the above time limit. ”_ 6. It is stated that the appointment of all the Higher Secondary School Teachers in the aided schools who have been appointed on an adhoc basis during the pendency of the case in pursuance to the interim order dated 7.12.99 will be regularised. Thereafter, when the petitioner's service was terminated, the petitioner submitted representation before the 2[nd] respondent. Finally, Ext.P12 order was passed rejecting the representation of the petitioner. The main reason mentioned in Ext.P12 order is that the petitioner was not WP(C) NO. 26600 OF 2010 8 recommended by a Selection Committee. Moreover, it is also stated that the appointment order is signed by the PA to the Administrator. According to the petitioner, the petitioner is not having the details of the appointment and the petitioner was appointed based on the recommendation of the Selection Committee. If that is the case, if the file relating to the same is summoned by the 2[nd] respondent, it will be clear. The 2[nd] respondent can direct the 3[rd] and 4[th] respondents to produce the file relating to the appointment of the petitioner and there can be a direction to the 2[nd] respondent to reconsider the matter, after perusing the file and after giving an opportunity of hearing to the petitioner and the Manager. Therefore, this writ petition is allowed in the following manner: i) Ext.P12 is set aside. ii) The 2[nd] respondent is directed to reconsider the matter after directing the 3[rd] and 4[th] respondents to WP(C) NO. 26600 OF 2010 **==> picture [7 x 10] intentionally omitted <==** produce the file relating to Ext.P3 appointment of the petitioner and thereafter pass appropriate orders in accordance to law. iii) Before passing final orders, an opportunity of hearing should be given to the petitioner and respondents 3 and 4. iv) The above exercise shall be completed as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO. 26600 OF 2010 10 ## **APPENDIX OF WP(C) 26600/2010** ## PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER DATED 7.12.99 IN CIVIL APPEAL NOS. 7159-7177/99 OF THE HON'BLE SUPREME COURT. EXHIBIT P2 TRUE COPY OF THE MEMO DT. 11.8.2000 TRUE COPY OF THE MEMO DT. 11.8.2000 ISSUED TO THE PETITIONER BY THE ADMINISTRATOR, SREE NARAYANA DHARMA SANGHOM TRUST. EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 18.8.2000 ISSUED TO THE PETITIONER. EXHIBIT P4 TRUE COPY OF G.O. DATED 25.11.2000. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 23.5.2002 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN OF THE INTERVIEW AND SELECTION BOARD. EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN O.P. NO. 14242/02 DATED 31.5.2002 OF THIS HON'BLE COURT. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 13.6.2002 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 10.7.2002 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 7.8.2002 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P10 TRUE COPY OF THE ORDER DATED 10.9.2002 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN O.P. NO. 36425 _/_ 02 DATED 14.1.2010 OF THIS HON'BLE COURT. EXHIBIT P12 TRUE COPY OF THE ORDER DATED 23.6.2010 ISSUED BY THE 2[ND] RESPONDENT. RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE