Ciney Elizabeth Abraham v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 27[TH] DAY OF FEBRUARY 2023 / 8TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 6631 OF 2023`** ## **`PETITIONER:`** ``` CINEY ELIZABETH ABRAHAM AGED 52 YEARS W/O. SUNIL K. JOHN, KOTTEKANDATHIL HOUSE, AYMANAM PO, KOTTAYAM – 686015 (HIGH SCHOOL TEACHER (MATHS) BIG HIGH SCHOOL, PALLOM) ``` ``` BY ADV S.SUBHASH CHAND ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001` - `2 THE DIRECTOR OF GENERAL EDUCATION (FORMERLY DIRECTOR OF PUBLIC INSTRUCTION), OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM - ., PIN - 695014` - `3 THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), ALAPPUZHA, PIN - 689001` - `4 THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, MAVELIKKARA, PIN - 689101` - `5 THE CORPORATE MANAGER CMS SCHOOLS, CSI DIOCESAN OFFICE, CATHEDRAL ROAD, KOTTAYAM -, PIN - 686001 BY ADV.SMT. NISHA BOSE, SR GOVERNMENT PLEADER` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.6631/2023 **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.6631 of 2023** **---------------------------------------------Dated this the 27[th ] day of February, 2023** ## **JUDGMENT** This writ petition is filed with following prayers: - i. To issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P18 order in the light of Ext.P19, P19(a) and Exts.P11 to P16 judgments of this Hon’ble Court. - ii. To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent No. 1 to consider and pass final orders on Ext. P20 representation in the light of the law laid down by this Hon'ble Court in Exts. P19, P11 to P16 judgments and Ext.P19(a) Government Order with notice and opportunity of hearing to the petitioner and respondent No. 5. untrammeled by anything contained in Ext.P19 Government Order, within such time as this Hon'ble Court may deem fit and proper in the interest of justice. - iii. To issue a writ in the nature of mandamus or any other appropriate writ or order directing respondent Nos. 1 to 4 to approve Ext.P3 appointment of the petitioner as High School WP(C).No.6631/2023 **3** Assistant (Maths) in the additional division vacancy under Rule 43 of Chapter XIV A KER in the light of the law laid down by this Hon'ble Court in Exts. P19, P11 to P16 judgments and Ext.P19(a) Government Order with notice and opportunity of hearing to the petitioner and respondent No. 5, untrammeled by anything contained in Ext.P18 Government Order, within such time as this Hon'ble Court may deem fit and proper in the interest of justice. iv. v. To issue a declaration that the petitioner is entitled to have her appointment as High School Assistant (Maths) in BH Higher Secondary School, Mavelikkara as evidenced by Ext. P3 with effect from 1/6/2010 to 31/5/2011 in the light of Exts. P19, P11 to P16 judgments and Ext.P19(a) Government Order as granted to similarly situated teachers appointed in additional division vacancies and denial of the same is absolutely arbitrary and unconstitutional being violative of Articles 14 and 21 of the Constitution of India rendering the same liable to be struck down by this Hon'ble Court. To mould and grant such other reliefs, as this Hon'ble Court shall deem just and proper in the interest of justice, including costs. vi. Dispense with the production of English translation of documents in vernacular language. (SIC) WP(C).No.6631/2023 **4** 2. Petitioner is working as High School Assistant (Maths) in BIG High School, Pallom under the 5[th] respondent, the Corporate Manager. The petitioner commenced her regular service as a Lower Primary School Assistant with effect from 08.11.2004 and the said appointment was approved by the Assistant Educational Officer, Pampady as evident by Ext.P2 appointment order. While she was thus working in the said post of Lower Primary School Assistant, there arose an additional division vacancy of High School Assistant (Maths) in B.H. Higher Secondary School, Mavelikkara with effect from 01.06.2010. The said additional division post was sanctioned as per Exts.P4 and P5 staff fixation orders. So much so, the petitioner was promoted under Rule 43 Chapter XIV A KER by Ext.P3 appointment order and posted as High School Assistant (Maths) with effect from 01.06.2010 as per Ext.P3 appointment order. However, it is submitted that, by Exts.P6 and P7, respondent Nos.3 and 4 rejected her appointment on the main ground that the 5[th] respondent did not execute the requisite bond under Ext.P10 Government Order bearing GO(P) No. 10/10/G.Edn. dated WP(C).No.6631/2023 **5** 12.01.2010. According to the petitioner, as the issue in that regard was covered by Exts.P11 to P16 judgments, the petitioner has approached this Court and by Ext.P17 judgment, this Court was pleased to direct the 1[st] respondent to consider and pass final orders on her revision petition after affording an opportunity of hearing. While so, it is submitted that, in Ext.P17 judgment, this Court did not direct the 1[st] respondent to consider her approval in Ext.P3 additional division promotion in the light of the principle of deemed execution of bond by the 5[th] respondent. That being so, the 1[st] respondent rejected her revision petition as per Ext.P18 order. The petitioner submitted that ignoring the fact that the petitioner was a Rule 43 claimant and the entire issue was covered by Ext.P19 judgment of this Court, the 1[st] respondent dismissed the revision. Therefore it is submitted that Ext.P18 will not stand. Hence the petitioner submitted Ext.P20 representation before the 1[st] respondent. The grievance of the petitioner is that the same is not considered. Hence this writ petition. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. WP(C).No.6631/2023 **6** 4. This Court in **Secretary, Corporate Management of Schools Under the Society of the Order of Sacred Transfiguration Pathanapuram v. State of Kerala [2023 (2) KHC 46]** , held that in a promotion under Rule 43 Chapter XIVA KER, GO(P) No.10/10/G.Edn. dated 12.01.2010 is not applicable. Relevant portion of the judgment is extracted hereunder: “6. The right of the 2[nd] petitioner who is a claimant under Rule 43 will not be affected by G.O(P) 10/10. It is a well settled position that an executive order issued by the state will not override a statutory rule (see the judgment in **Unni Narayanan K. and Others v. State of Kerala and Others [2009 (2) KHC 550], Moosakutty Pothuvalappan v. District Educational Officer, Wandoor and Others [2009 (3) KHC 446] and State of West Bengal and Another v. Madan Mohan Ghosh and Others [2002 (9) SCC 177])** . Moreover, on a reading of G.O. (P). No.52/11/G.Edn dated 26.02.2011, G.O.(P). No.56/11/G.Edn dated 26.02.2011 and G.O. (MS)No.347/98/G.Edn dated 01.09.1988, it is clear that a Rule 43 Chapter XIV (A) KER claimant has got preference in appointment. Therefore G.O(P) 10/10 is not a reason to deny the approval of the 2[nd] petitioner’s promotion with effect from 01.06.2010 who was a claimant under Rule 43 Chapter XIV (A) WP(C).No.6631/2023 **7** KER. The right of a teacher under Rule 43 Chapter XIV (A) KER cannot be infringed by the state through an executive order. Therefore the prayers in this writ petition are to be allowed.” 5. In the light of the same, the matter is to be considered by the Government. To facilitate the Government to reconsider the matter, Ext.P18 can be quashed. Therefore, this writ petition is allowed in the following manner: 1. Ext.P18 is set aside. 2. The 1[st] respondent is directed to consider and pass appropriate orders in Ext.P20, in the light of the principle laid down by this Court in **Secretary, Corporate Management of Schools Under the Society of the Order of Sacred Transfiguration Pathanapuram v. State of Kerala [2023 (2) KHC 46]** ,, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. 3. While deciding the matter, the 1[st] respondent will also deem it necessary that the Manager WP(C).No.6631/2023 **8** executed the bond as per GO(P) No.10/10/G.Edn. dated 12.01.2010. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV WP(C).No.6631/2023 **9** ## **`APPENDIX OF WP(C) 6631/2023`** ## `PETITIONER EXHIBITS` |`Exhibit P1`|`A TRUE COPY OF THE APPROVED`| |---|---| ||`APPOINTMENT ORDER DATED 12.06.2001`| ||`THUS ISSUED BY RESPONDENT NO.5 AND`| ||`APPROVED BY THE DISTRICT EDUCATIONAL`| ||`OFFICER, KOTTAYAM`| |`Exhibit P2`|`A TRUE COPY OF THE REGULAR APPROVED`| ||`APPOINTMENT ORDER THUS ISSUED BY`| ||`RESPONDENT NO.5 AND APPROVED BY THE`| ||`ASSISTANT EDUCATIONAL OFFICER, PAMPADY`| ||`AS LOWER PRIMARY SCHOOL ASSISTANT IN`| ||`CMS LOWER PRIMARY SCHOOL, MEENADOM`| ||`EAST`| |`Exhibit P3`|`A TRUE COPY OF THE APPOINTMENT ORDER`| ||`DATED 1/6/2010 THUS ISSUED BY`| ||`RESPONDENT NO.5`| |`Exhibit P4`|`TRUE COPY OF THE STAFF FIXATION ORDER`| ||`ISSUED BY RESPONDENT NO. 4 FOR THE`| ||`ACADEMIC YEARS 2009 - 2010 IN RESPECT`| ||`OF B.H HIGHER SECONDARY SCHOOL,`| ||`MAVELIKKARA DATED 20/7/2010`| |`Exhibit P5`|`TRUE COPY OF THE STAFF FIXATION ORDER`| ||`ISSUED BY RESPONDENT NO. 4 FOR THE`| ||`ACADEMIC YEARS 2010 - 2011 IN RESPECT`| ||`OF B.H HIGHER SECONDARY SCHOOL,`| ||`MAVELIKKARA DATED 4/1/2011`| |`Exhibit P6`|`A TRUE COPY OF THE ORDER DATED`| ||`15/3/2011 THUS PASSED BY RESPONDENT`| ||`NO.4`| |`Exhibit P7`|`A TRUE COPY OF THE ORDER DATED`| ||`29.07.2011 THUS PASSED BY RESPONDENT`| ||`NO.3`| |`Exhibit P8`|`A TRUE COPY OF THE APPROVED`| ||`APPOINTMENT ORDER DATED 1/6/2011 THUS`| ||`ISSUED BY RESPONDENT NO.5`| |`Exhibit P9`|`A TRUE COPY OF THE APPROVED`| ||`APPOINTMENT ORDER DATED 3/6/2013 THUS`| ||`ISSUED BY RESPONDENT NO. 5`| |`Exhibit P10`|`A TRUE COPY OF THE GOVERNMENT ORDER`| ||`BEARING GO (P) NO.10/10/G.EDN. DATED`| WP(C).No.6631/2023 **10** ``` 12/1/2010 BY WHICH GOVERNMENT HAVE LIFTED THE BAN IN RESPECT OF APPOINTMENTS EFFECTED IN ADDITIONAL DIVISION VACANCIES ``` - `Exhibit P11 A TRUE COPY OF THE JUDGMENT DATED 18.02.2015 IN WP(C).NO.6039 OF 2012` - `Exhibit P12` - `Exhibit P13` - `Exhibit P14` - `Exhibit P15` - `Exhibit P16` - `Exhibit P17` - `A TRUE COPY OF THE JUDGMENT DATED 28.07.2015 IN WP(C).NO.15998 OF 2005 A TRUE COPY OF THE JUDGMENT DATED 17.11.2016 IN WP(C).NO.3383 OF 2013` - `A TRUE COPY OF THE JUDGMENT DATED 25.07.2017 IN W.A.NO.2290 OF 2015` - `A TRUE COPY OF THE JUDGMENT DATED 16.01.2018 IN WP(C).NO.4938 OF 2014` - `A TRUE COPY OF THE JUDGMENT DATED 12.03.2019 IN WP(C).NO.7365 OF 2019` - `A TRUE COPY OF THE JUDGMENT DATED 26/07/2017 IN W.P.(C).NO.24710/2017 (K) OF THIS HON'BLE COURT` - `Exhibit P18 A TRUE COPY OF THE ORDER BEARING GO(RT) NO.4080/2018/G.EDN DATED 09/10/2018 THUS PASSED BY RESPONDENT NO.1` - `Exhibit P19` - `Exhibit P19(a)` - `Exhibit P20` - `A TRUE COPY OF THE RULING REPORTED AS MANAGER, P.K. HIGH SCHOOL AND OTHERS V. STATE OF KERALA AND OTHERS (2011 (4) KHC 179)` - `A TRUE COPY OF THE GOVERNMENT ORDER BEARING GO NO.4043/2019/G.EDN. DATED 9/10/2019 THUS PASSED BY RESPONDENT NO.1` - `A TRUE COPY OF THE REPRESENTATION DATED 06/01/2023 THUS SUBMITTED BY THE PETITIONER TO RESPONDENT NO.1`