E. Jayasree Kunjamma & S. Beena v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942** ## **WP(C).No.28144 OF 2018(P)** ## **PETITIONERS:** - **1 E. JAYASREE KUNJAMMA AGED 56 YEARS, WIFE OF SREEKUMAR, HIGH SCHOOL ASSISTANT(MATHS)(RETIRED), HIGH SCHOOL, KOIPPALLIKARNMA, P.O., OLAKETTIYAMBALAM, KAYAMKULAM, ALAPPUZHA DISTRICT.** - **2 S.BEENA AGED 49 YEARS WIFE OF ASHOK KUMAR, HIGH SCHOOL ASSISTANT (SOCIAL SCIENCE), HIGH SCHOOL, KOIPPALLIKARNMA, P.O.OLAKETTIYAMBALAM, KAYAMKULAM, ALAPPUZHA DISTRICT.** - **BY ADVS. V.A.MUHAMMED V.RAJASEKHARAN NAIR** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001 695001** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM - 695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA - 688 001.** - **4 THE DISTRICT EDUCATIONAL OFFICER MAVELIKARA, ALAPPUZHA DISTRICT - 690 101.** - **5 THE MANAGER HIGH SCHOOL, KOIPPALLIKARNMA, P.O.OLAKETTIYAMBALAM, KAYAMKULAM, ALAPPUZHA DISTRICT - 690 510.** **WP(C).No.28144 OF 2018 2** ## **R1-4 BY GOVERNMENT PLEADER** **SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.28144 OF 2018 3** ## **JUDGMENT** The petitioners are stated to be working as High School Teachers in the services of the High School, Koippallikarma, Kayamkulam and they assert that they were appointed against a regular vacancy and a retirement vacancy respectively, during 2010 and 2011. They allege that they have, however, not been granted approval from 01/06/2011 to 31/05/2011, on the ground that protected teachers had not been appointed by the Manager in terms of G.O.(P)No.10/10/G.Edn. dated 12/01/2010 and that they, therefore, preferred a Revision Petition before the Government which also, however, has now been rejected through the impugned order, namely Ext.P12. 2. The learned counsel for the petitioners Shri.M.Sajjad, submits that the stand of the Government, as recorded in Exts.P2, P6 and P12, is contrary to law, since his clients are Rule 43 claimants and ## **WP(C).No.28144 OF 2018 4** therefore, that they ought to have been given precedence and preference over even protected teachers. He says that this has already been declared by his Court in various judgments including in _**State of Kerala v. Radhamony**_ _**Amma** [1990(1)KLT 602]_ _**and P.K.High School v.**_ _**State of Kerala** [2011(4)KLT 365]._ Shri. M.Sajjad, therefore, prays that Exts.P2,P6 and P12 be set aside and the competent Educational Authority be directed to grant approval to his clients' appointments from the dates on which they were respectively promoted. 3. In response, the learned Government Pleader - Shri.P.M.Manoj, submitted that, as is evident from Ext.P12 order, the petitioners’ appointments were made at a time when there was a ban of appointments, as ordered by the Government; and obviously, therefore, that under the rigour of G.O(P)No.10/10/G.Edn. Dated 12/01/2010, the Manager could not have appointed any person ## **WP(C).No.28144 OF 2018 5** to the vacancies except protected teachers. He submitted that, therefore, the petitioners cannot have any claim for approval to the promotions now made in their favour by the Manager and consequently, that this writ petition is without merit, thus praying that it be dismissed. 4. I have evaluated the afore submissions and have also examined the materials available on record. 5. It is evident from Exts.P2, P6 and P12 that the only reason stated by the competent Authorities, including the Government, to deny the approval of promotion to the petitioners is that it has been done by the Manager in violation of G.O. (P)No.10/10/G.Edn. Dated 12/01/2010. However, the question whether the petitioners are entitled to be considered in preference to the protected teachers - they being stated to be claimants under Rule 43 - has not been considered by the Authorities at any stage ## **WP(C).No.28144 OF 2018 6** and their approvals have been rejected solely for the reason above. 6. The specific contention of Shri.M.Sajjad, learned counsel for the petitioners, as already seen above, is that since his clients have been promoted under the benefit of Rule 43, their approvals could not have been rejected, even on the touchstone of G.O.(P)No.10/10/G.Edn. Dated 12/01/2010 and that they are entitled to be approved, even if no protected teachers had been appointed, since they have preference over them. In the afore circumstances and for the reasons above, I order this writ petition and set aside Ext.P12; with a consequential direction to the competent Secretary of the Government of Kerala to reconsider the proposal for approval of the petitioners' promotion as High School Teachers, after affording them and the Manager of the School an opportunity of being heard – either **WP(C).No.28144 OF 2018 7** physically or through video conferencing – thus culminating in an appropriate order thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. It is made clear that when the afore exercise is completed, the competent Secretary of the Government will also advert to the ratio of the judgment of this Court in _**P.K.High School**_ (Supra, as also to the contentions of the petitioners that they are Rule 43 claimants and hence entitled to be appointed in preference to the protected teachers. ## **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** **MC/18.1.2021** **WP(C).No.28144 OF 2018 8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 05/06/1995. EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 01/06/2010. EXHIBIT P3 TRUE COPY OF THE BOND DATED 15/01/2011. EXHIBIT P4 TRUE COPY OF THE G.O.(P) NO.154/2014/G.EDN. DATED 11/08/2014 OF THE GOVERNMENT. EXHIBIT P5 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 03/08/2005. EXHIBIT P6 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 01/06/2010. EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN W.P. (C) NO.16337/2009-J DATED 9/7/2010. EXHIBIT P7A TRUE COPY OF THE JUDGMENT IN W.P. (C) NO.6039/2012-D DATED 18/02/2015. EXHIBIT P7B TRUE COPY OF THE JUDGMENT IN W.P(C) NO.15998/2015-Y DATED 28/07/2015. EXHIBIT P7C TRUE COPY OF THE JUDGMENT IN W.P. (C) NO.3383/2013-W DATED 17/11/2016. EXHIBIT P8 TRUE COPY OF THE LETTER NO.60930/J2/11/G.EDN. DATED 25/10/2011 OF THE GOVERNMENT. EXHIBIT P9 TRUE COPY OF THE CIRCULAR NO.951951/J2/16/G.EDN. DATED 09/11/2016 OF THE GOVERNMENT. EXHIBIT P10 TRUE COPY OF THE REVISION PETITION SUBMITTED BEFORE THE GOVERNMENT BY THE 1ST PETITIONER DATED** **WP(C).No.28144 OF 2018 9** **20/01/2017. EXHIBIT P11 TRUE COPY OF THE REVISION PETITION SUBMITTED BEFORE THE GOVERNMENT BY THE 2ND PETITIONER DATED 20/01/2017.** **EXHIBIT P12 TRUE COPY OF THE G.O.(RT) NO.2102/2018/G.EDN. DATED 7/6/2018 OF THE GOVERNMENT. EXHIBIT P13 TRUE COPY OF THE JUDGMENT IN W.A.NO.2290/2015 DATED 25/07/2017. EXHIBIT P14 TRUE COPY OF THE STAFF FIXATION ORDER 2010-2011 OF THE 4TH RESPONDENT DATED 13/08/2010. RESPONDENT'S/S EXHIBITS:** **NIL** **MC** **(TRUE COPY) PA TO JUDGE**