Consolidated W.P.(C). Nos. 42495/2018 (J), 1765/2019 (U) and 21016/2020 (B) – Manager, BET Upper Primary School Velichikala; Khayis A.S.; Rejeena S. & Shakeela A. v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942** ## **WP(C).No.42495 OF 2018(J)** ## **PETITIONER:** **MANAGER, BET UPPER PRIMARY SCHOOL VELICHIKALA P.O., KUNDUMAM, KOLLAM.** **BY ADVS. SRI.R.KRISHNA RAJ SMT.E.S.SONI SMT.KUMARI SANGEETHA S.NAIR** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO TO GOVERNEMNT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT ANNEX, THIRUVANANTHAPURAM.** - **2 THE DIREICTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM.** - **3 THE DEPUTY DIRECTOR OF EDUCATION THEVALLY, KOLLAM-691 009.** - **4 THE ASSISTANT EDUCATION OFFICER KUNDARA.** - **5 KHAYIS A.S. UPPER PRIMARY ASSISTANT (ON SUSPENSION), BET UP SCHOOL, KUDUMON, KOLLAM-691 523.** **R1-4 BY GOVERNMENT PLEADER R5 BY ADV. SRI.ELVIN PETER P.J. R5 BY ADV. SRI.K.R.GANESH** ## **OTHER PRESENT:** ## **GP -SUNIL KURIAKOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2411-2020, ALONG WITH WP(C).1765/2019(U), WP(C).21016/2020(B), THE COURT ON 12-01-2021 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942** ## **WP(C).No.1765 OF 2019(U)** ## **PETITIONER:** **KHAYIS.A.S AGED 35 YEARS S/O. ABDUL SALAM, VADAKKEVEEDU, KUNDUMON, VELICHIKKALA P.O, KOLLAM 691 573.** **BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SMT.N.R.REESHA** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL**| ||**EDUCATION DEPARTMENT, SECRETARY,**| ||**THIRUVANANTHAPURAM 695 001.**| |**2**|**THE DEPUTY DIRECTOR OF EDUCATION,**| ||**OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION,**| ||**KOLLAM 691 501**| |**3**|**THE ASSISTANT EDUCATIONAL OFFICER,**| ||**KUNDARA 691 501**| |**4**|**THE MANAGER,**| ||**BET UPPER PRIMARY SCHOOL, KUNDUMON,**| ||**VELICHIKKALA P.O, KOLLAM 691 573.**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2411-2020, ALONG WITH WP(C).42495/2018(J), WP(C).21016/2020(B), THE COURT ON 12-01-2021 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942** ## **WP(C).No.21016 OF 2020(B)** ## **PETITIONERS:** |**1**|**REJEENA S**| |---|---| ||**AGED 39 YEARS**| ||**UPST AWAITING APPROVAL, BET UPS, KUNDUMON,**| ||**NEDUMPANA, KOLLAM RESIDING AT HILAL**| ||**MANZIL,KARALIKONAM, ARKKANNOOR P.O.,KOLLAM-691390**| |**2**|**SHAKEELA.A.,**| ||**UPST AWAITING APPROVAL, BET UPS, KUNDUMON,**| ||**NEDUMPANA, KOLLAM RESIDING AT THAIKKAD HOUSE,**| ||**KUNDUMON, VELICHIKKALA P.O., KOLAM-691 573**| **BY ADVS. SRI.C.UNNIKRISHNAN (KOLLAM) SRI.M.R.SUDHEENDRAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY , GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEX (II)TRIVANDRUM-695 001** - **2 THE DIRECTOR OF GENERAL EDUCATION, JAGATHI, TRIVANDRUM-695014** - **3 THE ASST. EDUCATIONAL OFFICER, OFFICE OF THE ASST, EDUCATIONAL OFFICER, KUNDARA, KOLLAM-691 501** - **4 THE MANAGER, BET UPS, KUNDUMON, NEDUMPANA, KOLLAM 691 501** - **5 KHAISE AS, VADAKKEVEEDU, KUNUMON, VELICHIKKALA P.O., KOLLAM691 573** **R4 BY ADV. SRI.R.KRISHNA RAJ R4 BY ADV. SMT.E.S.SONI R4 BY ADV. SMT.KUMARI SANGEETHA S.NAIR** ## **R5 BY ADV. SRI.ELVIN PETER P.J. R5 BY ADV. SRI.K.R.GANESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2411-2020, ALONG WITH WP(C).42495/2018(J), WP(C).1765/2019(U), THE COURT ON 12-01-2021 DELIVERED THE FOLLOWING:** W.P.(C).No.42495/18 & con.cases 5 ## **JUDGMENT** **[ WP(C).42495/2018, WP(C).1765/2019, WP(C).21016/2020 ]** **Dated this the 12[th] day of January 2021** - 1.Heard the the learned counsel appearing on all sides. - 2.The question raised in these writ petitions is with regard to a teacher working in a leave vacancy in an aided school to be shifted to a regular vacancy in the same cadre during the currency of the initial appointment. 3. The petitioner in WP(C) No.1765 of 2019 was appointed as UPSA in the B.E.T. UPS, Kundumon, Kollam from 28 07.2011 till the vacancy exists by Ext.P1. The said appointment stood approved on 31.03.2012. A regular vacancy of UPSA arose in the school on 02.06.2014. Another vacancy also arose due to the promotion of the senior most teacher. The petitioner raised a claim for appointment from 02.06.2014 in the regular vacancy. Ext.P2 Government Order dated 09.11.1999 clarifying that leave substitutes should be regularised against W.P.(C).No.42495/18 & con.cases 6 first arising permanent vacancies was relied on. However, the Manager appointed the petitioners in WP(C) No.21016 of 2020 against the two regular vacancies and the petitioner was sent out of service when the teacher who availed leave rejoined duty on 01.01.2018. In the meanwhile, disciplinary proceedings was initiated by the Manager against the petitioner which ultimately ended by Ext.P7 order. Petitioner was reinstated and all monetary benefits were paid. Thereafter, the Government considered the claim of the petitioner for appointment in the regular vacancy which arose in the school and passed Ext.P8 order directing the appointment of the petitioner. The petitioner seeks implementation of the said order. The Manager challenged the order in WP(C) No.42495 of 2018. The later appointees filed WP(C) No.21016 of 2020,also raising a challenge to the order of the Government. 4. The learned counsel for the Manager (petitioner in W.P.(C) No.42495 of 2018) contends that the Manager is the appointing authority in respect of posts in aided schools as is ## W.P.(C).No.42495/18 & con.cases 7 evident from Section 11 of the Kerala Education Act. It is submitted that the power of appointment can be circumscribed only by statutory claims in the nature of Rule 51A of Chapter XIVA, KER and an executive order cannot fetter the statutory right of the Manager to make appointments against vacancies which arise before the statutory claim arises due to the teacher appointed in the leave vacancy becoming thrown out of service due to termination of the vacancy. It is submitted that the petitioner in W.P.(c).No.1765/2019 had raised a claim for appointment to a vacancy which arose in 2019 thus waiving any earlier claim. It is contended that the fresh appointments made in 2014 are liable to be approved. The petitioners in WP(C) No.21016 of 2020, who are the fresh hands appointed in 2014 support these contentions. 5. The learned counsel for the petitioner in WP(C) No.1765 of 2019, relies on the Government Order dated 09.11.1999 and a decision of this Court reported in **Subhash Chandran v, State of Kerala** (2013 (2) KLT 502) to contend that he is W.P.(C).No.42495/18 & con.cases 8 entitled for appointment against the vacancy which arose on 02.06.2014. It is contended that the power of appointment of the Manager under Section 11 of the Act is specifically made subject to the “rules and conditions laid down by the Government’. It is submitted that as all matters where the rules are silent, the Government has the power to pass executive orders which shall be binding on the Manager of aided schools. It is further contended that **Subhash Chandran v. State of Kerala** (supra) has specifically considered the issue and held that the Manager, who is not the paymaster is not entitled to contend that an approved hand should wait until he/she is thrown out of service before an appointment can be claimed regularly, even where a regular vacancy arises during the course of the temporary employment. 6.The learned Government Pleader submits that Ext.P2 is a Government Order passed after considering all implications and that it is binding on the Manager. It is submitted that the applicability of the Government Order has been properly considered by the Government. W.P.(C).No.42495/18 & con.cases 9 7. On an anxious consideration of the factual and legal aspects of the case, I find that the Government Order dated 09.11.1999 is an executive order which regulates the mode of filling up of vacancies where there is an approved temporary teacher working under the same management. The power of the Manager to make appointment is specifically subject to the “rules and conditions” laid down by the Government. This Court in **Subhash Chandran v. State of Kerala** (supra) specifically found that the Manager, who is not the paymaster in respect of posts in aided schools is liable to make appointments in compliance with the Rules and the other conditions laid down by the Government. This aspect has been specifically considered by the Government in the impugned order. The request made by the teacher for accommodation in a subsequently arising vacancy during the pendency of the writ petition filed by him seeking implementation of the orders of the Government, cannot be relied on by the Manager to deny the appointment directed to be made by the Government. W.P.(C).No.42495/18 & con.cases **==> picture [12 x 8] intentionally omitted <==** 8. In the result, W.P.(C).No.1765 of 2019 is allowed. The 4[th] respondent is directed to adjust the appointments made in accordance with the directions contained in the Government Order. The appointments of the petitioners in W.P. (C).No.21016 of 2020 shall also be appropriately regulated against the leave vacancies and the regular vacancies which arose in 2014 and 2019 respectively. The Educational Authorities shall approve the appointments within one month from the date of receipt of a copy of the judgment. Monetary benefits shall be disbursed within three months thereafter. W.P.(C).No.42495 of 2018 is, accordingly, dismissed. **==> picture [21 x 9] intentionally omitted <==** ## **Anu Sivaraman, Judge** sj W.P.(C).No.42495/18 & con.cases 11 ## **APPENDIX OF WP(C) 42495/2018** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 COPYOF THE ORDER OF AEO 28.7.2016. EXHIBIT P2 COPY OF THE ORDER OF AEO 27.7.2016. EXHIBIT P3 COPY OF THE APPOINTMENT ORDER OF KHAYIS 28.7.2011. EXHIBIT P4 COPY OF THE APPROVAL ORDER OF AEO 28.7.2011. EXHIBIT P5 COPY OF APPEAL EXHIBIT P6 COPY OF THE APPEAL EXHIBIT P7 COPY OF THE ORDER OF DEO 11.11.2016. EXHIBIT P8 COPY OF THE REVISION PETITION 7.9.2017. EXHIBIT P9 COPY OF THE JUDGMENT IN WPC 32896/17 16.1.2017. EXHIBIT P10 COPY OF THE GOVERNMENT ORDER 7.11.2018. EXHIBIT P11 COPY OF THE CLAIM OF THE 5TH RESPONDENT 5.1.2018. EXHIBIT P12 COPY OF THE ORDER DATE17.06.2014. EXHIBIT P13 COPY OF THE GOVERNMENT ORDER DATE 29.01.2016.** W.P.(C).No.42495/18 & con.cases 12 ## **APPENDIX OF WP(C) 1765/2019** **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF ORDER DATED 28-7-2011 ISSUED BY THE 4TH RESPONDENT** **EXHIBIT P2** **TRUE COPY OF G.O(MS) NO 275/99/G.EDN. DATED 9-11-1999 ISSUED BY THE GOVERNMENT.** **EXHIBIT P3** **TRUE COPY OF THE ORDER DATED 11-11-2016 ISSUED BY THE DEO, KOLLAM** **EXHIBIT P4** **TRUE COPY OF THE ORDER DATED 5-4-2017 ISSUED BY THE DPI.ROSHNY SYAM,** **EXHIBIT P5** **TRUE COPY OF THE REPORT DATED 16-062017 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P6** **TRUE COPY OF THE REPORT DATED 10-112017 IN W.P(C) NO. 21182/17 OF THIS HON'BLE COURT.** **EXHIBIT P7** **TRUE COPY OF THE REPORT DATED 18-022018 SUBMITTED BY THE 3RD RESPONDENT** **EXHIBIT P8** **TRUE COPY OF THE ORDER DATED 7-11-2018 ISSUED BY THE 1ST RESPONDENT.** W.P.(C).No.42495/18 & con.cases 13 ## **APPENDIX OF WP(C) 21016/2020** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER DATED 02.06.2014 ISSUED BY THE 4TH RESPONDENT TO THE 1ST PETITIONER EXHIBIT P2 A TRUE COPY OF THE APPOINTMENT ORDER DATED 02.06.2014 ISSUED BY THE 4TH RESPONDENT TO THE 2ND PETITIONER EXHIBIT P3 A TRUE COPY OF THE APPOINTMENT ORDER DATED 28.07.2011 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT EXHIBIT P4 A TRUE COPY OF THE APPOINTMENT ORDER DATED 28.07.2011 CONTAINING THE APPROVAL NOTED OF THE 3RD RESPONDENT EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 17.06.2014 OF THE ADDITIONAL DIRECTOR OF GENERAL EDUCATION (ACADEMIC) EXHIBIT P6 A TRUE COPY OF THE PRESENTATION SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT DATED 16.09.2014 EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 27.07.2016 ISSUED BY THE 4TH RESPONDENT EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 28.07.2016 ISSUED BY THE 4TH RESPONDENT EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 05.04.2017 OF THE SECOND RESPONDENT EXHIBIT P10 A TRUE COPY OF THE ORDER DATED 07.11.2018 OF THE FIRST RESPONDENT** W.P.(C).No.42495/18 & con.cases 14 **EXHIBIT P11 A TRUE COPY OF THE RELIEVING ORDER DATED 21.12.2017 ISSUED TO THE 5TH RESPONDENT BY THE MANAGER WHEN POOKUNJU REPORTED FOR DUTY** **EXHIBIT P12 A TRUE COPY OF THE GO(P) 29/2016/G.EDN DATED 29.01.2016** **EXHIBIT P13 A TRUE COPY OF THE REQUEST DATED 05.01.2018 SUBMITTED BY THE 5TH RESPONDENT** **EXHIBIT P14 A TRUE COPY OF THE PETITION DATED 11.02.2019 SUBMITTED BY THE 4TH RESPONDENT MANAGER TO THE 2ND RESPONDENT** True copy PS to Judge