Deepthi V.C. and others v. Assistant Educational Officer, Alathur and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939** **WP(C).No. 4341 of 2017 (P) ---------------------------** **PETITIONER(S)/PETITIONERS: -------------------------** **1.DEEPTHI V.C., AGED 29 YEARS, L.P.S.A., AIDED LOWER PRIMARY SCHOOL, MODAPPALLUR (SOUTH), MODAPPALLUR P.O., ALATHUR.** ## **2.P.R.SAJITHA,** **L.P.S.A.,AIDED LOWER PRIMARY SCHOOL, MODAPPALLUR (SOUTH), MODAPPALLUR P.O., ALATHUR.** - **3.SRUTHI S.,** **L.P.S.A., AIDED LOWER PRIMARY SCHOOL, MODAPPALLUR (SOUTH), MODAPPALLUR P.O., ALATHUR.** - **4.SHEEJA S.,** **L.P.S.A., AIDED LOWER PRIMARY SCHOOL, MODAPPALLUR (SOUTH), MODAPPALLUR P.O., ALATHUR.** ## **BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** - **1.ASSISTANT EDUCATIONAL OFFICER, ALATHUR-678541.** - **2.DISTRICT EDUCATIONAL OFFICER, PALAKKAD-675001.** - **3.DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-1, PIN-695014.** **WP(C).No. 4341 of 2017 (P)** **---------------------------** ## **4. STATE OF KERALA,** **REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001.** ## **5. MANAGER,** **L.P.S.A., AIDED LOWER PRIMARY SCHOOL, MODAPPALLUR (SOUTH), MODAPPALLUR P.O., ALATHUR.** **R1-R4 BY SR.GOVERNMENT PLEADER** **SMT. MARY BEENA JOSEPH R5 BY ADVS.SRI.LINDONS C.DAVIS SMT.E.U.DHANYA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **WP(C).No. 4341 of 2017 (P)** ## **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER ISSUED BY THE MANAGER DATED 29.9.2006 EXHIBIT P2 TRUE COPY OF THE ASSISTANT EDUCATIONAL OFFICER REJECTING THE APPROVAL OF APPOINTMENT OF THE 1ST PETITIONER EXHIBIT P3 TRUE COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER DATED 13.4.2007** - **EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 14.11.2007** - **EXHIBIT P5 TRUE COPY OF THE ASSISTANT EDUCATIONAL OFFICER, ALATHUR DATED 26.12.2007** - **EXHIBIT P6 TRUE COPY OF THE APPOINTMENT ORDER OF THE 3RD PETITIONER DATED 9.11.2009** - **EXHIBIT P7 TRUE COPY OF THE ORDER OF THE A.E.O. DATED 10.2.2010** - **EXHIBIT P8 TRUE COPY OF THE ORDER OF THE CONTROLLING OFFICER DATED 1.12.2008** - **EXHIBIT P9 TRUE COPY OF THE ORDER OF THE APPELLATE AUTHORITY, REJECTING THE APPROVAL OF APPOINTMENT OF THE 4TH PETITIONER** - **EXHIBIT P10 TRUE COPY OF THE GOVERNMENT ORDER, GO(P) NO.10/10/GEN. EDN. DATED 12.1.2010** - **EXHIBIT P11 TRUE COPY OF THE INTERIM ORDER PASSED BY THE HON'BLE SUPREME COURT** - **EXHIBIT P12 TRUE COPY OF THE GOVERNMENT ORDER DATED 25.10.2011** - **EXHIBIT P13 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 11.8.2014 IN WP(C)NO.9262/2012** ## **WP(C).No. 4341 of 2017 (P)** **--------------------------** **EXHIBIT P14 TRUE COPY OF THE JUDGMENT DATED 28.7.2015 IN WP(C)NO.15998/2015** **EXHIBIT P15 TRUE COPY OF THE REVISION PETITION DATED 30.8.2016 FILED BY THE 1ST PETITIONER EXHIBIT P16 TRUE COPY OF THE REVISION PETITION DATED 30.8.2016 FILED BY THE 2ND PETITIONER EXHIBIT P17 TRUE COPY OF THE REVISION PETITION DATED 30.8.2016 FILED BY THE 3RD PETITIONER EXHIBIT P18 TRUE COPY OF THE REVISION PETITION DATED 30.8.2016 FILED BY THE 4TH PETITIONER EXHIBIT P19 TRUE COPY OF GOVERNMENT ORDER GO(RT.) NO.4350/16/G. EDN. DATED 24.12.2016** ## **RESPONDENT(S)' EXHIBITS** ## **-----------------------** ## **NIL** ## **TRUE COPY** **P.S. TO JUDGE** **EL** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.4341 of 2017-P ------------------------------------------- _Dated this the 30[th] day of June, 2017_ ## _**JUDGMENT**_ The petitioners were appointed as LPSA under the 5[th] respondent's school as per orders Ext.P1 dated 29.09.2006, Ext.P4 dated 14.11.2007, Ext.P6 dated 09.11.2009 and an order dated 02.06.2008 respectively against anticipated additional division vacancies. Their appointments were not approved on the ground of ban on appointment against additional division vacancies and non execution of bond by the Manager, later in 2010. Their appointments were later approved with effect from 01.06.2011, on introduction of teachers' package. 2. The 1[st] respondent has filed a counter affidavit stating that appointments of the petitioners were made at a time when there was a ban on appointment in additional division vacancies as per G.O(P). No.317/85/G.Edn dated 17.8.2005. Even though the ban was lifted as per G.O(P).No.10/10/G.Edn dated 12.01.2010, the Manager did not execute a 2 W.P(C) No.4341 of 2017-P bond agreeing to appoint equal number of protected teachers against additional divisions and to make appointments in the ratio of 1:1 between the fresh appointees and protected teachers against future vacancies. The appointments of petitioners 1 to 3 were approved w.e.f 1.6.2011 on introduction of teachers package. In the case of the 4[th] petitioner, it is stated that she was on leave without allowance for the period from 1.6.2011 to 25.10.2011 and, therefore, her appointment was approved on daily wages for the period from 27.10.2011 to 31.3.2012. It is further stated that the Government examined the case of the petitioners and rejected their requests for approval with effect from the initial date of their appointment, as there is no general rule framed by the Government to approve the prior service of the teachers. 3. Heard the learned counsel for the petitioners as well as the learned Government Pleader and considered the contentions raised on either side. 4. The only ground on which approval is denied to the petitioners is that there was a ban on appointment and that the Manager did not execute any bond in terms of G.O(P) 10/10/G.Edn dated 12.01.2010. 5. The petitioners were appointed at a time when there was W.P(C) No.4341 of 2017-P 3 justification for sanctioning the respective posts in which they were appointed; but there was a ban on appointment. The Manager filled up the vacancies in gross disobedience of the orders issued by the Government, imposing ban on filling up of vacancies in additional divisions. As per the provisions contained in Rule 1 of Chapter XIVA of KER, the Managers are to fill up the vacancies in an aided school only in accordance with the rules as well as the orders issued by the Government from time to time. The ban was lifted as per G.O(P)No.10/10/G.Edn dated 12.01.2010-Ext.P10 on condition that the Manager has to execute a bond agreeing to fill up equal number of vacancies by appointing protected teachers and agreeing to fill up future vacancies in the ratio of 1:1 with a protected teacher in every alternate vacancy. 6. The Managers of various Schools challenged the order unsuccessfully. Ext.P10 Government Order dated 12.01.2010 was upheld by this Court by a common judgment dated 16.03.2011 in a batch of writ petitions reported in **Eravannoor A.U.P. School v. State of Kerala: 2011 (3) KLT SN 89 (C.No. 91).** The Division Bench of this Court affirmed that by the judgment in **Nair Service Society v. Government of Kerala [2015 (2) KLT 625].** It was held that the provisions of the Kerala Education Act 4 W.P(C) No.4341 of 2017-P and rules do not confer any absolute or unbridled right on the Manager of an aided school to make appointment of teachers and that the Managers have to fill up the vacancies strictly in accordance with the provisions in the Kerala Education Act, Rules and the executive orders and instructions issued from time to time either by the Government or the Director of Public Instructions, as provided in Sub-rule (1) and (4) of R.1 of Chapter XIVA of K.E.R. This Court found that orders banning appointment were perfectly within the competence of the Government. In the meanwhile, the Government had issued G.O.(P) No.199/11/G.Edn dated 1.10.2011 (Ext.P11), introducing teachers' package and directing approval of appointment of the teachers, who were continuing without salary, protected hands, etc. with effect from 01.06.2011. Based on those orders all the teachers including the petitioners, who were continuing in additional division vacancies without approval, got their appointments approved from 01.06.2011. Even though the approval was confined to the period from 01.06.2011, the Government did not take a decision that the service prior to 01.06.2011 rendered by these teachers cannot be recognised at all. Right from October 2011, they have been consistently adopting the stand that the question regarding that would be decided later. In Ext.P19 order passed on W.P(C) No.4341 of 2017-P 5 24.12.2016, the Government says there is no general rule framed for approving the service prior to 01.06.2011. The fact that there was justification for sanctioning the posts for their appointments is not disputed. **7** . Now the contention of the learned Counsel for the petitioners that approval is granted to several teachers on the basis of the directions of this Court in several cases, requires to be examined. 8. In the common judgment dated 18.02.2015 in W.P.(C) No.4643 of 2013 and connected cases, a learned Single Judge of this Court directed that if the Manager has not executed the bond, the appointments shall be approved with effect from the date of their appointment, treating that the Manager has executed the bond and his obligation to appoint protected teachers is in force. 9. By judgment dated 28.07.2015, another learned Single Judge, taking note of the earlier judgments in the case of similarly situated teachers, directed approval of an appointment made on 4.06.2007 in an additional division vacancy, leaving it open to the educational authorities to enforce the bond. 10. In the judgment dated 29.03.2017 in W.P(C) No.1552 of 2012, another learned Single Judge directed approval and consequential 6 W.P(C) No.4341 of 2017-P disbursement of salary to teachers similarly situated. 11. The learned Counsel for the petitioners submitted that similar directions are issued in several other cases also and the directions are implemented in most of the cases. Moreover, even Government have not taken any decision that the service rendered by the teachers prior to 01.06.2011 should not be recognised for any purpose. The Government has been stating that a general decision would be taken in the matter. 12. In view of the fact that several of these judgments are already implemented and several similarly situated teachers got approval and payment of salary towards the service prior to 01.06.2011, in additional division vacancies, I am of the considered view that there is no reason why the petitioners in these cases should be subjected to a different treatment, for the very same reasons viz. ban on appointments and non-execution of bonds. Even according to the Government, the question relating to the service rendered by these teachers for the period prior to 01.06.2011 is to be considered when a general decision is taken by the Government. That means that the Government do not have a case that these teachers have not worked or that there were no posts for them for their appointments. W.P(C) No.4341 of 2017-P 7 13. Once it is found that the Manager appointed the petitioners in gross disobedience to the orders issued by the Government, imposing ban on appointments i.e in violation of the provisions contained in Rule 1 of Chapter XIVA of KER, it is open for the official respondents to take action against the Managers, who are parties to this writ petition, in accordance with the provisions in Chapter III Rule 7 of KER and also to enforce the conditions in the bond, treating that the Managers have executed the bond or to get the loss caused to the Government on account of that, recouped by them. ## 14. In these circumstances, i) the orders Exts.P2,P3, P5, P7,P8 and P9 passed by the respondents to the extent they denied approval to petitioners' appointment for the period prior to 01.06.2011 will stand set aside. ii) there shall be a direction to the 2[nd] respondent to issue revised orders approving the appointments of the petitioners in accordance with the orders of their appointments in Exts.P1, P4, P6 and the order dated 01.12.2008, covered by Ext.P8 order and iii) to re-fix their pay based on such revised approval and to grant them all consequential benefits and disburse the arrears of pay due to them, W.P(C) No.4341 of 2017-P 8 accordingly, within a period of four months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_