Dr. Sheeja George E. v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 12TH DAY OF MARCH 2018 / 21ST PHALGUNA, 1939** **WP(C).No. 6228 of 2018** ## **PETITIONER(S)** **DR.SHEEJA GEORGE E., ASSISTANT PROFESSOR (BOTANY), S.N.COLLEGE FOR WOMEN, KOLLAM, KOLLAM DISTRICT-691 001, (FORMERLY H.S.A. (NATURAL SCIENCE) ST.AUGUSTINE'S H.S.S., AROOR, AROOR P.O., ALAPPUZHA DISTRICT-688 534).** **BY ADV.SRI.P.M.PAREETH** ## **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-695 014.** **3. DISTRICT EDUCATIONAL OFFICER, CHERTHALA, ALAPPUZHA DISTRICT-688 524.** **BY SR.GOVERNMENT PLEADER SMT.NISHA BOSE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Msd.** **02.04.2018** **WP(C).No. 6228 of 2018 (C)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** |**EXHIBIT P1**|**A TRUE PHOTOCOPY OF THE APPOINTMENT ORDER**| |---|---| ||**DATED 31-05-2008 IN RESPECT OF THE PETITIONER.**| |**EXHIBIT P1(A)**|**A TRUE PHOTOCOPY OF THE APPOINTMENT ORDER**| ||**DATED 01-06-2009 IN RESPECT OF THE PETITIONER.**| |**EXHIBIT P2**|**A TRUE PHOTOCOPY OF THE STAFF FIXATION ORDER**| ||**DATED 28-09-2010 FOR 2008-2009 IN RESPECT OF**| ||**ST.AUGUSTINE'S H.S.S. AROOR.**| |**EXHIBIT P2(A)**|**A TRUE PHOTOCOPY OF THE STAFF FIXATION ORDER**| ||**DATED 28-09-2010 FOR 2009-2010 IN RESPECT OF**| ||**ST.AUGUSTINE'S H.S.S. AROOR.**| |**EXHIBIT P2(B)**|**A TRUE PHOTOCOPY OF THE STAFF FIXATION ORDER**| ||**DATED 09-09-2010 FOR 2010-2011 IN RESPECT OF**| ||**ST.AUGUSTINE'S H.S.S. AROOR.**| |**EXHIBIT P3**|**A TRUE PHOTO COPY OF THE REVISION PETITION**| ||**DATED 05.03.2018 SUBMITTED BY THE PETITIONER.**| ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** **Msd. 02.04.2018** ## **ANIL K. NARENDRAN, J. ------------------------------------------W.P.(C) No.6228 of 2018 ------------------------------------------Dated this the 12[th] day of March, 2018** ## **JUDGMENT** The petitioner is working as Assistant Professor (Botany) at S.N. College for women, Kollam with effect from 11.03.2016. The petitioner was initially appointed as U.P.S.A. with effect from 02.06.2008 in the additional post proposed in 2007-2008 at St.Augustine's Higher Secondary School, Aroor vide Ext.P1 order of appointment dated 31.05.2008. Thereafter, she was reappointed as High School Assistant (Natural Science) with effect from 01.06.2009 in the reversion vacancy of Smt. Rany M.J., High School Assistant (Natural Science). The additional post was not sanctioned since there was ban on sanctioning of additional post. Thereafter, the ban was lifted as per G.O.(P) No.10/10/dated 12.01.2010. Consequently, the additional post was sanctioned as evidenced by Ext.P2 staff fixation order dated 28.09.2010 in respect of St.Augustine's Higher Secondary School, Aroor, for the year 2008-2009. The said W.P.(C) No.6228 of 2018 :-2-: position continued for the year 2009-2010 and 2010-2011, as evident from Exts.P2 (a) and P2 (b). However, the 3[rd] respondent did not approve the appointment of the petitioner for the period from 02.06.2008 to 31.05.2011 since the manager of the school did not execute the bond as stipulated in G.O.(P) No.10/10/dated 12.01.2010 . 2. The petitioner has approached this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 (a) to the extent it approves the appointment as U.P.S.A. only from 01.06.2011 and denies approval for the period from 02.06.2008 to 31.05.2011. The petitioner has also sought for a declaration that she is entitled to get her appointment from 02.06.2008 to 31.05.2011 approved on regular pay scale as U.P.S.A. for the period from 02.06.2008 to 31.05.2009 and as H.S.A.(Natural Science) from 01.06.2009 to 31.05.2011 and there is no reason to deny the said approval and the action of the 3[rd] respondent in having denied the approval is illegal and arbitrary. The petitioner has also sought for other consequential reliefs. W.P.(C) No.6228 of 2018 :-3-: 3. Now the petitioner has submitted Ext.P3 revision petition dated 05.03.2018 aggrieved by the approval granted in Ext.P1 (a) to the extent of denying the approval from 02.06.2008 to 31.05.2011 and seeking approval of appointment for the aforesaid period and for disbursement of consequential benefits including the arrears of pay and other allowances. Ext.P3 revision petition is filed under Rule 92 of Chapter XIV A of the Kerala Education Rules (KER). 4. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents. 5. In support of the claim made by the petitioner for approval of her appointment on regular basis from 02.06.2008 to 31.05.2011, the petitioner would rely on the judgment of this Court in **Kerala Aided L.P. and U.P. School Mangers Association v. State of Kerala (ILR 2016 (1) Kerala 590)** . Sub-paragraph (iii) of Paragraph 84 of the said judgment reads thus: “84 (iii) The amendments made to the KER as per S.R.O.No.485/2014 [G.O.(P) No.154/2014/G.Edn. dated 11.08.2014] would have only prospective application. W.P.(C) No.6228 of 2018 :-4-: The amendment made by Rules 2(1), 2(2)(a), 2(2)(b) and 2(3) of the Amendment Rules of 2014 would stand set aside, as being arbitrary and unreasonable. Amendment Rule 2(4) introduces Chapter XXI to the KER in which Chapter, Rules 1 to 6 would stand set aside, again as being arbitrary and unreasonable. Rule 7 in Chapter XXI alone would be sustained. Amended Rule 2(5)(a) and 2 (5)(b) would be sustained. Amended Rule 2(5)(c), being the substitution of Rule 12 of KER would also be sustained; but, however, finding the effective strength of pupils reckoned for the academic year 201011, made permanent; as being ultra vires the provisions of the KE Act and the other provisions of the KER, as also running counter to the provisions of the RTE Act. The procedure for staff fixation orders based on UID would stand sustained. Amended Rule 2(5)(2)(d) would be sustained, while clause (e) of the said Rule would stand set aside.” 6. The petitioner would also rely on the judgment of this Court dated 18.2.2015 in W.P.(C)No.4643/2012, wherein it has been held that appointment has to be approved and arrears paid to the petitioners therein treating that the Manager has executed bond and his obligation for appointing protected teachers is in force. The said judgment was followed in the judgment dated 15.6.2015 in W.P.(C)No.32727/2011. W.A.No.931/2016 filed by the State W.P.(C) No.6228 of 2018 :-5-: challenging the said judgment in W.P.(C)No.32727/2011 ended in dismissal by judgment dated 24.7.2017 and paragraph 3 of the said judgment reads thus; “3. Heard. We notice that the only ground on which approval to the appointment of the first respondent has been declined is that the Manager had failed to execute a bond as contemplated by the Government Order dated 12.01.2010. According to the learned Government Pleader, the judgment of the learned Single Judge causes prejudice to the interests of the Government. We do not agree. The learned Single Judge has taken care to safeguard the interests of the State by providing that the State would be entitled to proceed as though a bond had been executed by the Manager as stipulated by the Government Order dated 12.01.2010.” 7. The learned Senior Government Pleader would submit that the 1[st] respondent shall consider Ext.P3 revision petition filed by the petitioner and pass appropriate orders thereon, within a time limit to be fixed by this Court. Having considered the submission made by the learned counsel on both sides, this writ petition is disposed of by directing the 1[st] respondent to consider and pass appropriate orders on Ext.P3 revision petition filed by the petitioner, strictly in accordance with law, taking note of the W.P.(C) No.6228 of 2018 :-6-: law laid down by this Court in the decisions referred to supra. Necessary orders in this regard shall be passed, with notice to the petitioner and after affording her an opportunity of being heard, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. 9. Based on the orders so passed by the 1[st] respondent, the 3[rd] respondent District Educational Officer shall disburse the consequential monetary benefits payable to the petitioner, within two months thereafter. All legal and factual contentions raised by the petitioners are left open to be raised before the 1[st] respondent at appropriate stage. Sd/- **ANIL K. NARENDRAN JUDGE** bpr