Cont.Case (C) No.2368 of 2019 in WA No.343/2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA, 1941** **Con.Case(C).No.2368 OF 2019 IN WA. 343/2016 AGAINST THE JUDGMENT IN WA 343/2016 OF HIGH COURT OF KERALA DATED 14.6.2018** ## **PETITIONERS/RESPONDENTS 1 TO 28 IN WA:** |**1**|**SUBAIR,**| |---|---| ||**AGED 34 YEARS**| ||**KIZHAKKEPARAMBIL,**| ||**JR.LANGUAGE TEACHER (HINDI),**| ||**MMETHS, MELMURI, MELMURI.P.O, 676 517.**| |**2**|**MOOSA MUSTHAJIB,**| ||**AGED 32 YEARS, HSA(DRAWING),**| ||**MMETHS, MELMURI, MELMURI PO-676 517.**| |**3**|**RESTHINA K K,**| ||**AGED 33 YEARS,**| ||**UPSA, MMETHS, MELMURI, MELMURI PO-676 517.**| |**4**|**KHALID K,**| ||**AGED 32 YEARS,**| ||**HSA(PHYSICAL SCIENCE),**| ||**MMETHS, MELMURI, MELMURI PO-676 517.**| |**5**|**MUNEER C.T.,**| ||**AGED 33 YEARS**| ||**HSA(PET), MMETHS, MELMURI, MELMURI PO-676 517.**| |**6**|**SAIFUDHEEN T.M.**| ||**AGED 32 YEARS**| ||**JR. LANGUAGE TEACHER(HINDI),**| ||**MMETHS, MELMURI, MELMURI PO-676 517.**| |**7**|**RAMLA T.P,**| ||**AGED 32 YEARS**| **2** ## **Cont.Case (C)No.2368 of 2019** - **UPSA, MMETHS, MELMURI, MELMURI PO-676 517.** - **8 UMMU HABEEBA AGED 33 YEARS JR. LANGUAGE TEACHER(ARABIC), MMETHS, MELMURI, MELMURI PO-676 517.** - **9 SREERANJINI K.R AGED 34 YEARS HSA(NEEDLE) MMETHS, MELMURI, MELMURI PO-676 517.** - **10 SURVANA P., AGED 33 YEARS UPSA MMETHS, MELMURI, MELMURI PO-676 517.** - **11 JASEENA BACKER P., AGED 33 YEARS UPSA, MMETHS, MELMURI, MELMURI PO-676 517.** - **12 ASHIQ P., AGED 34 YEARS, UPSA(PET), MMETHS, MELMURI, MELMURI PO-676 517.** - **13 UMMER C.K, AGED 33 YEARS UPSA MMETHS, MELMURI, MELMURI PO-676 517.** - **14 SHAMEENA P., AGED 34 YEARS UPSA, MMETHS, MELMURI, MELMURI P O-676 517.** - **15 SHARAFUNNEESA K.M, AGED 32 YEARS MMETHS, MELMURI, MELMURI PO-676 517.** - **16 SINDHU SUNDAR T P, AGED 33 YEARS, UPSA, MMETHS, MELMURI, MELMURI PO-676 517.** - **17 SHAMEEMA K., AGED 33 YEARS UPSA, MMETHS, MELMURI, MELMURI PO-676 517.** - **18 MUHAMMED YONUS N.K, AGED 33 YEARS UPSA MMETHS, MELMURI, MELMURI PO-676 517.** ## **Cont.Case (C)No.2368 of 2019** **3** |**19**|**FEBIN K,**| |---|---| ||**AGED 32 YEARS,**| ||**UPSA, MMETHS, MELMURI, MELMURI PO-676 517.**| |**20**|**DEEPA M,**| ||**AGED 33 YEARS,**| ||**UPSA, MMETHS, MELMURI, MELMURI PO-676 517.**| |**21**|**JAMEELA V.K,**| ||**AGED 32 YEARS**| ||**UPSA,MMETHS, MELMURI, MELMURI PO-676 517.**| |**22**|**MUHAMMED ASHRAF C,**| ||**AGED 32 YEARS,**| ||**UPSA, MMETHS, MELMURI, MELMURI P O-676 517.**| |**23**|**SHABEER P,**| ||**AGED 33 YEARS,**| ||**UPSA, MMETHS, MELMURI, MELMURI P O-676 517.**| |**24**|**MOHAMMED SHEREEF N,**| ||**AGED 33 YEARS,**| ||**HSA(ENGLISH), MMETHS, MELMURI, MELMURI P O-676 517.**| |**25**|**CICI JOSEPH,**| ||**AGED 33 YEARS,**| ||**UPSA, MMETHS, MELMURI, MELMURI P O-676 517.**| |**26**|**NASEERA O.P,**| ||**AGED 33 YEARS,**| ||**UPSA, MMETHS, MELMURI, MELMURI P O-676 517.**| |**27**|**BAVA CHEROOR,**| ||**AGED 35 YEARS,**| ||**UPSA MMETHS, MELMURI, MELMURI P O-676 517.**| |**28**|**ABOOBACKER SIDDEQ,**| ||**AGED 33 YEARS,**| ||**UPSA, MMETHS, MELMURI, MELMURI P O-676 517.**| ||**BY ADVS.**| ||**SRI.T.T.MUHAMOOD**| ||**SRI.A.RENJITH**| ||**SRI.V.E.ABDUL GAFOOR**| ||**SRI.A.MOHAMMED SAVAD**| ||**SRI.C.Y.VINOD KUMAR**| ||**SRI.JAYENDRAN KOCHOTH**| **Cont.Case (C)No.2368 of 2019** **4** ## **RESPONDENTS/APPELLANTS 1 & 4 IN WRIT APPEAL:** - **1 DR.SHAJAHAN IAS, (AGE & FATHER'S NAME NOT KNOWN TO TEH PETITIONERS) THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 SMT.SASIPRABHA, (AGE & FATHER'S NAME NOT KNOWN TO TEH PETITIONERS) THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM-676 505.** **R1-2 BY SR. G.P. SRI.A.J.VARGHESE** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 09.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Cont.Case (C)No.2368 of 2019 5** ## **JUDGMENT** Dated this the 9[th] day of December, 2019 ## **S.Manikumar, C.J.** Instant Contempt Case is filed alleging non-compliance of the judgment made in W.A.No.343 of 2016 dated 14.6.2018. 2. Taking note of a decision of this court in **State of Kerala v. Nadeera** reported in **2013 (2) KLT 88** , a learned single Judge of this court by order dated 15.10.2015 in W.P.(C)No.27503 of 2014, set aside Ext.P2 order and issued directions to modify Ext.P1 series orders of the 1[st] respondent, granting approval to the appointment of the writ petitioners from the date of their respective appointment. Writ court further directed respondent No.1 therein to disburse salary/arrears of salary, if any, within a period of three months from the date of receipt of a certified copy of the judgment. Being aggrieved, State of Kerala and three others, have filed W.A.No.343 of 2016. 3. Adverting to the rival submissions, a Honourable Division Bench of this court by judgment dated 14.6.2018 in W.A.No.343 of 2016, while dismissing the appeal, directed approval of the appointment as expeditiously as possible, but not later than three months from the date of receipt of a copy of the judgment. Honourable Division Bench has further directed that all consequential orders relating to pay and benefits of respondents 1 to 28 **Cont.Case (C)No.2368 of 2019** therein/writ petitioners will stand regulated and modulated consequent to the orders of approval to be issued by the competent authority. 4. On 14.11.2019, when the Contempt Case came up for hearing, we passed the following order: “Alleging disobedience of the judgment dated 14/6/2018 passed in WA No.343 of 2016, the present contempt case is filed. 2. Learned Senior Government Pleader Sri.Aravind Kumar Babu, who takes notice on behalf of respondents, submitted that Government have already issued orders vide GO(Rt) No.2698/2019/G.Edn (E) Department dated 4/7/2019, which reads thus: ## “ **GOVERNMENT OF KERALA** ## Summary General Education -aided— implementation of the order of the Hon'ble High Court in WA No. 343/2016 filed by the State against the judgment dated 15.10.2015 in WP(C) No. 27503/2014 filed by Sri. Subair & others MMETHS, Melmuri, Malappuram - orders issued ----------------------------------------------------------------------------- ## General Education (E) Department G.O(Rt) No.2698/2019/G.Edn Thiruvananthapuram Dated 4.7.2019 ----------------------------------------------------------------------------- Ref: 1. Judgment dated 15.10.2015 in WP © 27503/ 14 filed by Sri.Subair & others, MMETHS, Melmuri Malappuram before the Hon'ble High Court. 2. Judgment dated 14.06.2018 in WA No. 343/2016 filed by the State against the Judgment dated 15.10.2015 in WP(C)27503/14. **Cont.Case (C)No.2368 of 2019** **7** 3. Letter dated 13.06.2019 issued by the manager, MMETHS Melmuri Malappuram. 4. Report of the Deputy Director of Education, Malappuram. ## **ORDER** The Hon'ble High Court as per judgment dated 14.06.2018 in WA No.343/2016 filed by the State against the judgment dated 15.10.2015 in WP(c) No. 27503/14 filed by Sri Subair and others ordered to approve the appointment of the petitioners from the date of their appointment in the light of the decision in Moosakutty Vs District Education Officer, Wandoor (2009 (3) KLT 863), Nadeera vs. State of Kerala (2011 (3) KLT 790) as no argument have been raised by the department to the effect that the list of protect teachers were made available to the Manager at the time of making appointments. It was held that the Manager can be held liable for violation of the direction only in case the list of protected teachers were made available to the Manager and the Manager made appointment from open market without appointing from the list of protected teacher made available. The matter was examined in detail based on the documents available. The Hon'ble High Court as per judgment dated 15.10.2015 in WP(c) No. 27503/14 filed by Sri.Subair and others ordered to approve the appointment of the petitioners from the date of their appointment, holding that the list of protected teachers are available only with the respective educational officers and the Manager of newly opened schools would come to know about the same only when the list is made available to the Manager on time and in case the list were not made available the issue will come within the purview of Nadeera vs State of Kerala (2011(3) KLT 790). It **Cont.Case (C)No.2368 of 2019** **8** was also held that, if the protected teachers are not available in the educational district, the same will come within the purview of Moosakutty Vs District Education Officer, Wandoor (2009 (3) KLT 863). The writ appeal filed by the State against the said judgment was dismissed by the Hon'ble High Court as per judgment dated 14.06.2018. The appointment of the petitioners in the writ petition were made during the year 200607 - 2009-10, when there was restriction in making appointment. It is seen that the appointment of those teachers were approved from 01.06.2011 as per G.O(P) No. 199/2011/G.Edn. As per G.O(P)No.178/2002/G.Edn the vacancies during the said period have to be filled up by appointing protected teachers and the Deputy Director of Education were ordered to make available the list of protected teachers to the Manager. As no additional division vacancies were sanctioned during the year 2006-07 to 2009-10, the Deputy Director Education, Malappuram did not make available the list of protected teacher to the Manager of the said school. The Hon'ble High Court ordered to approve the appointment of the petitioners from the date of their appointment, holding that the list of protected teachers have to be made available to the Manager though the managers have to fill up all the vacancies in newly opened school by the protected teachers as per G.O(P) No. 178/2002/G.Edn. Therefore the Director of General Education is directed to take action to approve the appointment of the petitioners from the date of their appointment in the light of the observation in the judgment dated 15.10.2015 in WP(c) No. 27503/14 and judgment dated 14.06.2018 in WA No.343/2016 and in the light of the decision in Moosakutty Vs District Education Officer, Wandoor (2009 (3) KLT 863), **Cont.Case (C)No.2368 of 2019** **9** Nadeera Vs. State of Kerala (2011 (3) KLT 790). Accordingly the direction contained in the judgment read as 2[nd] paper above is hereby complied with. (By order of the Governor) Chithra K.Divakaran Under Secretary” Consequently, the 2[nd] respondent, Smt.Sasiprabha, the District Educational Officer, Malappuram has to approve the appointment of the contempt petitioners and it will be done within two weeks. Learned Government Pleader submitted that compliance report will also be filed. Post on 29/11/2019.” 5. Based on the proceedings of the District Educational Officer, Malappuram (Ext.R2(a)) filed along with an affidavit of the District Educational Officer, Malappuram, Mr.A.J.Varghese, learned Senior Government Pleader submitted that respondent No.2 (alleged contemnor) has issued orders approving the appointments of the writ petitioners. Insofar as the direction to pay the arrears of salary and other benefits, he further submitted that based on the bills submitted by the Headmasters of the respective schools, where the writ petitioners are working, to the treasury, the amounts will be sanctioned and paid. 6. It is evident from the material on record that the respective schools are not made as parties in this Contempt petition and orders directing official respondents to approve the appointments of the writ petitioners have been issued. **Cont.Case (C)No.2368 of 2019** **10** In the light of the above, instant Contempt petition does not survive. It is accordingly closed. However, it is open to the writ petitioners to approach the Headmasters of the respective schools, where they are working, to seek for disbursement of the arrears of salary and other benefits. On such request, the Headmasters of the schools should act as per the directions of this court, stated supra. Sd/- **S.Manikumar, Chief Justice** Sd/- **A.M.Shaffique, Judge** **vpv** **Cont.Case (C)No.2368 of 2019** **11** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A TRUE COPY OF JUDGMENT DATED 15.10.2015 IN WP(C) NO.27503/2014. ANNEXURE B TRUE COPY OF JUDGMENT DATED 14.06.2018 IN WA NO.343/2016. ANNEXURE C TRUE COPY OF GO(RT) NO.2698/2019/G.EDN DATED 04.07.2019 WITH TRANSLATION.** **/TRUE COPY/** **P.A. TO JUDGE**