Binu.P v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **THURSDAY, THE 4TH DAY OF JULY 2013/13TH ASHADHA, 1935** ## **WP(C).No. 2224 of 2012 (C)** **--------------------------------------** ## **PETITIONER:** - **-------------------** **BINU.P, U.P.S.A, HIGH SCHOOL CHETTIKULANGARA, RESIDING AT PUTHIYAVEETTIL THEKKETHIL, MANGAMKUZHY P.O., MAVELIKKARA.** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL), SRI.A.R.DILEEP, SMT.NAVA VARGHESE, SRI.MANU SEBASTIAN.** ## **RESPONDENT:** **---------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY SECRETARY TO GOVERNMENTIN THE DEPARTMENT OF GENERAL EDUCATION , GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM-695 001.** ## **3. DEPUTY DIRECTOR OF EDUCATION,** - **OFFICE OF DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA-688 001.** **4. DISTRICT EDUCATIONAL OFFICER, OFFICE OF D.E.O, MAVELIKKARA-690 101.** ## **5. MANAGER,** **HIGH SCHOOL CHETTIKULANGARA, MAVELIKKARA-690 101.** **6. P.S.SREELEKHA, U.P.S.A, HIGH SCHOOL CHETTIKULANGARA, MAVELIKKARA-690 101.** **R1 TO R4 BY GOVERNMENT PLEADER SRI. RAMPRASAD UNNI, R5 BY ADVS. SRI.B.ASHOK SHENOY,** **SRI.THOMAS P.MAKIL, SMT.LAKSHMI B.SHENOY, SRI.ABU MATHEW,** **SRI.K.V.GEORGE.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.2224/2012-C:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1: A TRUE COPY OF FIXATION OF ESTABLISHMENT OF THE SCHOOL FOR THE YEAR 2007-08.** - **EXHIBIT P2: A TRUE COPY OF FIXATION OF ESTABLISHMENT FOR THE YEAR 2008-09.** - **EXHIBIT P3: A TRUE COPY OF ORDER NO.K.DIS.B6/6104/2007 DATED 25/3/2009 ISSUED BY THE 4TH RESPONDENT REJECTING THE APPROVAL OF APPOINTMENT OF THE PETITIONER.** - **EXHIBIT P4: A TRUE COPY OF REVISION FILED BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P5: A TRUE COPY OF ORDER OF APPOINTMENT DATED 15/7/2009 EVIDENCING APPROVAL OF APPOINTMENT BY 4TH RESPONDENT.** - **EXHIBIT P6: A TRUE COPY OF ORDER NO.6/3857/10 DATED 27/12/2010 BY 4TH RESPONDENT.** - **EXHIBIT P7: A TRUE COPY OF ORDER NO.2911/H2/10/G.EDN.DATED 7/10/2010 BY 1ST RESPONDENT.** - **EXHIBIT P8: A TRUE COPY OF ORDER NO.32808/H2/09 G.EDN.DATED 17/6/2009 BY 1ST RESPONDENT.** - **EXHIBIT P9: A TRUE COPY OF G.O.(RT)NO.5255/2011/G.EDN.DATED 25/11/2011.** - **EXHIBIT P10: A TRUE COPY OF ORDER NO.K.DIS.3887/2011 DATED 24/11/2011 BY 4TH RESPONDENT.** - **EXHIBIT P11: A TRUE COPY OF APPEAL SUBMITTED BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P12: A TRUE COPY OF G.O.(P)NO.199/2-11/G.EDN.DATED 1/10/2011.** - **EXHIBIT P13: A TRUE COPY OF COMMUNICATION DATED 3/12/2011.** - **EXHIBIT P14: A TRUE COPY OF APPEAL SUBMITTED AGAINST THE NONINCLUSION OF PETITIONER IN THE LIST OF TEACHERS PUBLISHED BY 2ND RESPONDENT.** - **EXHIBIT P15: A TRUE COPY OF ORDER NO.18985/H2/12/G. EDN. DTD. 01/08/2012.** - **EXHIBIT P16: A TRUE COPY OF G.O.(P).NO.10/10 GEN. EDN. DTD. 12/01/2010.** - **EXHIBIT P17: A TRUE COPY OF COMMUNICATION NO.16250/CMPGRC/SK/2012/GAD DTD. 30/04/2013 BY THE R1.** - **EXHIBIT P18: A TRUE COPY OF STAFF FIXATION ORDER FOR 2009-10.** **Prv.** ## **W.P.(C).NO.2224/2012-C:** **EXHIBIT P19: A TRUE COPY OF STAFF FIXATION ORDER FOR 2010-11. EXHIBIT P20: A TRUE COPY OF STAFF FIXATION ORDER FOR 2011-12.** **RESPONDENTS' EXHIBIT:** **EXT.R1.A: GOVERNMENT LETTER NO.18985/L2/12/G. EDN. DTD. 01/08/12.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **A.M. SHAFFIQUE, J** ## **---------------------------------------** ## **W.P.(C). NO. 2224 OF 2012** **----------------------------------------** Dated this the 4[th ] day of July, 2013 ## **JUDGMENT** The petitioner challenges Ext. P3, P6 and P10 orders by which his appointment had not been regularised by the educational authorities despite he being appointed to the post as UPSA in the school managed by the 5[th] respondent. The petitioner also challenges the appointment of the 6[th] respondent on the basis of enquiry conducted in terms of Ext. P7 and P8 and the order issued at Ext. P9. The facts involved in the case would disclose that the petitioner was appointed in an additional vacancy with effect from 25.07.2007 to 14.07.2009 in terms of Ext. P1 and P2. But the same was not approved by the Government. Later he was appointed in a leave vacancy from 15.07.2009 to 01.06.2010 and in another leave vacancy from 01.06.2010 to 27.12.2011. Thereafter, he was appointed against the promotion vacancy of Smt. Lekshmi from 01.06.2011. But W.P.(C). NO. 2224 OF 2012 **2** his appointments were not approved on the ground that those vacancies were not regular vacancies except in respect of the leave vacancy from 15.07.2009 to 01.06.2010. However, in the counter affidavit filed by the Government at paragraph 9 it is stated that the appointment of the petitioner against an established vacancy for the period from 25.07.2007 to 14.07.2009 was liable to be approved and it was only on account of the lapse on the part of the 5[th] respondent in executing a bond as insisted on G.O.(P) No. 10/10/G. Edn dated 12.01.2010 that paved way for rejection of the said post. Therefore, the only question as far as the appointment of the petitioner to the established vacancy from 25.07.2007 to 14.07.2009 is concerned is on the 5[th] respondent giving a declaration as stated in the Government Order. 2. In respect of the period from 01.06.2010 to 27.12.2011 the approval was rejected in terms of Ext. P6. Two reasons were stated, one is that the management has not submitted the declaration in terms of Government Order W.P.(C). NO. 2224 OF 2012 **3** dated 12.01.2010 referred above and that the appointment of the junior claimant Smt. Sindhu from 01.06.2010 was rejected. It is submitted by the learned counsel for the petitioner that subsequently the appointment of Smt. Sindhu had been approved and regularised as seen from the counter affidavit filed by the 1[st] respondent in which it is stated that Smt. Sindhu has been approved and what remains is only the first objection. Therefore as far as petitioner's approval for the period from 25.07.2007 to 14.07.2009 and 01.06.2010 to 27.12.2011 is concerned what requires is only a declaration from the Manager and therefore if appropriate directions are issued in that line, definitely the educational authorities are bound to approve the appointment of the petitioner. 3. In regard to the appointment of the petitioner from 01.06.2011 onwards the issue is with reference to the absence of established vacancy. In fact the 6[th] respondent was on unauthorised leave from 12.09.2001 onwards. She was appointed in a regular vacancy only on 05.06.2000 and W.P.(C). NO. 2224 OF 2012 **4** even without getting sanction of leave she remained absent from 12.09.2001 onwards. Later by Ext. P7 dated 07.10.2010 the Government called upon the District Educational Officer to make necessary arrangements to readmit the 6[th] respondent as provided under paragraph 54(6) of the Manual of Disciplinary Proceedings. It was also informed that disciplinary action should be taken against her for imposing major penalty and action should be finalised by inflicting major penalty after complying with the due procedures. In fact much earlier to Ext. P7, Ext. P8 had been issued on 17.06.2009 calling upon the District Educational Officer to take disciplinary action against the 6[th] respondent. Apparently, when no action was taken in that regard Ext. P7 came to be issued. Subsequently, it seems that some disciplinary action was taken against the 6[th] respondent imposing a punishment of barring two increments. This matter was taken up at government level and Ext. P9 is an order dated 25.11.2011 of the Government wherein, it is stated that the 6[th] respondent's appointment W.P.(C). NO. 2224 OF 2012 **5** was approved only on 02.12.2004 and she entered on leave from 12.09.2001 onwards without getting sanction. The disciplinary proceedings were taken against her and later the same was reviewed and she re-joined duty on 03.01.2011. Thereafter, disciplinary proceedings were finalised and two increments were barred with cumulative effect. The Government regularised the unauthorised absence of the 6[th] respondent from 12.09.2001 to 02.01.2011. The petitioner impugns the above Government Order on the basis of Rule 56(4) of Chapter XIV A of KER which reads as under:- “Rule 56(4):A Teacher shall cease to be in service after a continuous absence of 5 years whether with or without leave.” 4. In fact a learned Single Judge of this Court in **Elsy** **P. Oomman v. State of Kerala [2011 (1) KLT 491]** had formed an opinion that even though there is a specific provision by which a person who is in unauthorised absence shall automatically cease to be in service after 5 years of W.P.(C). NO. 2224 OF 2012 **6** unathorised absence, an enquiry in that regard has to be conducted by the educational authorities. On a perusal of the facts involved in that case would show that the petitioner in that case was granted leave and she only wanted extension of leave which was denied by the Management and thereafter she remained out of service for more than 5 years. It was also a case where the Manager did not permitted her to re-join the duty. That is not the situation here. This is a case in which even before her appointment was approved by the Government she went on unauthorised leave for about 10 years and therefore the Rule 56(4) squarely applies. When there is a specific Rule which says that even without conducting an enquiry a teacher who is in unauthorised absence ceases to be in service if the unauthorised absence was beyond five years, the Rule has to be strictly applied. That being the situation, I do not think that the educational authorities and the Government were justified in regularising the absence of the 6[th] respondent and providing a minor punishment. If the W.P.(C). NO. 2224 OF 2012 **7** Rule applies, the 6[th] respondent had no other option other than to leave the service. That being the situation, the entire proceedings by which the 6[th] respondent was permitted to join service is bad in law and liable to be set aside. 5. In that view of the matter, this writ petition is disposed of as follows:- i) The 5[th] respondent shall give necessary declaration in terms of G.O.(P) No. 10/10/G. Edn dated 12.01.2010 (i.e., Ext. P16) to the educational authorities within a period of one month from the date of receipt of a copy of this judgment and on receipt of the same the educational authorities shall approve the appointment of the petitioner for the period which had been requested for by the Management with continuity in service from 25.07.2007. ii) The proceedings at Ext. P9 is hereby quashed. The respondent authorities are directed to inform the 6[th] respondent that she is terminated from service on the basis W.P.(C). NO. 2224 OF 2012 **8** of Rule 56(4) of the Chapter XIV A of KER. iii) Exts. P3, P6 and P10 are quashed and the educational authorities are directed to approve the appointment of the petitioner with effect from 01.06.2011. Appropriate orders may be passed within a period of two months from the date of receipt of a copy of this judgment. sd/- **A.M. SHAFFIQUE JUDGE** DCS