High Court of KeralaSingle Judge2015-12-21Writ petition disposed of; Ext.P12 quashed; 4th...

Flexy Durom v. State of Kerala and Others

Case / Petition Number:WP(C).No. 29682 of 2011 (I)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2015-12-21
Court Decision / Holding: Quash Ext.P12; 4th respondent directed to approve the petitioner’s appointment as Lower Primary School Assistant from 01.06.2007 to 31.03.2008 and to issue orders accordingly within three months from the date of receipt of a copy of this judgment.
Final Disposition: Writ petition disposed of; Ext.P12 quashed; 4th respondent directed to approve the petitioner’s appointment from 01.06.2007 to 31.03.2008 and to issue orders within three months.

Parties to the Case

Appellants / Petitioners

Flexy Durom

Respondents

State of Kerala represented by the Secretary to Government, General Education Department, Secretariat, Thiruvananthapuram-1
Director of Public Instruction, Jagathy, Thiruvananthapuram-14
Deputy Director of Education, Kakkanad, Ernakulam-30
District Educational Officer, Ernakulam-11
Corporate Manager, Central Board of Anglo Indian Education, Perumanoor, Kochi-682015

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V. A. Muhammed
• Sri. K. E. Hamza

Counsels for Respondents

• Sri. V. K. Rafeeq
• Sri. Abraham Mathew (Vettoor)

Case Synopsis & Summary

Flexy Durom, the petitioner, sought a writ of mandamus challenging the denial of approval for her appointment as Lower Primary School Assistant (LPSA) at LAI High School, Saude, for the period 01.06.2007 to 31.03.2008, against the promotion vacancy of Jasmine Noronha who was promoted as High School Assistant (Maths) during the same period. The 4th respondent, the District Educational Officer, Ernakulam, rejected approval by Ext.P1 on the ground that the vacancy must be filled by a protected hand; Ext.P2 and Ext.P3 upheld the appeal, and Ext.P8 ultimately denied the approval after a government revision, Ext.P12. The petitioner challenged these orders, having previously filed W.P(C) No.30241/2010 and a revision challenge to Ext.P12. The central issue is whether denial of approval can be justified when a protected teacher was not appointed, particularly where no pinpointed violation by the Manager is established. The petitioner relies on State of Kerala v. Nadeera (2013 (2) KLT 88) to argue that legitimate appointments should not be aborted for administrative non-compliance by the Manager, especially when the petitioner’s appointment was regular and efficient. The Government contends that compliance with the condition of appointing a protected teacher is a prerequisite to approval. After hearing both sides, the Court quashes Ext.P12 and directs the Government to approve the petitioner’s appointment, ordering compliance within three months from receipt of the judgment.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that the matter is governed by the decision in State of Kerala v. Nadeera (2013 (2) KLT 88), and that a lack of a forwarded list of protected teachers by the department cannot justify withholding approval. Since no pinpointed violation by the Manager is shown, denying approval on the basis of the absence of a protected teacher constitutes an unfair penalty for an otherwise regular, efficient appointee. The petitioner maintains that compliance with administrative guidelines should not prejudice her legitimate benefits, particularly when the fault lies with officers rather than with the teacher concerned. The challenge to Ext.P12, which reiterates earlier findings, seeks redress by requiring approval and issuance of orders within a set timeframe, thereby preserving service benefits and preventing prejudice to the petitioner.

Contentions of Respondents

The respondents contend that approval to the promotee cannot be granted without fulfilling the condition of appointing a protected teacher as specified in the order of approval. They emphasize that the vacancy must be filled in accordance with the protected-hand requirement and that failure to appoint a protected teacher constitutes a valid ground to deny approval. The respondents also rely on government orders and the necessity of compliance with policy guidelines to justify withholding approval until the condition is met, arguing that the department is bound by the conditions stipulated in Exts. P4–P5 and related notifications.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
State of Kerala v. Nadeera	2013 (2) KLT 88	Positive	Court relied on the Nadeera decision to support the proposition that the absence of a pinpointed violation by the Manager should not lead to denial of the promotee’s approval, especially where the teacher is regularly appointed.
Decision reported in 1993(2) KLT SN P(27) SEC.(28)	1993(2)KLT SN P(27) SEC.(28)	Mentioned Only	Ext.P7 cites an earlier decision but the current judgment does not engage with its reasoning; it is referenced for background.
WPC No.21646/2010-E	EXT.P11	Positive	Judgment quashing Ext.P8 and directing reconsideration, cited as controlling authority that guided the current court to remit the matter for reconsideration.
WPC No.30241/2010-E	EXT.P13	Mentioned Only	Judgment in another writ petition cited as part of the record; not relied upon in the reasoning presented in this excerpt.
WA.178/12	EXT.P17	Mentioned Only	Judgment copy referenced; not discussed in the core reasoning within this judgment.
JUDGMENT IN 2011(3)KLT 790	EXT.P10	Mentioned Only	Cited as an decision reported; not central to the citations discussed in the reasoning here.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 21ST DAY OF DECEMBER 2015/30TH AGRAHAYANA, 1937** **WP(C).No. 29682 of 2011 (I)** **----------------------------** **PETITIONER:** **-----------** **FLEXY DUROM,W/O.WINSTON NORONHA, AGED 32 YEARS, LOWER PRIMARY SCHOOL ASSISTANT, DON BOSCO EUROPEAN PRIMARY SCHOOL, PADIYOOR, THRISSUR DISTRICT.** **BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA** **RESPONDENT(S): -------------** **1. THE STATE OF KERALA REPRESENTED BY** **THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM-14.** **3. THE DEPUTY DIRECTOR OF EDUCATION, KAKKANAD, ERNAKULAM-30.** **4. THE DISTRICT EDUCATIONAL OFFICER, ERNAKULAM-11.** **5. THE CORPORATE MANAGER, CENTRAL BOARD OF ANGLO INDIAN EDUCATION, PERUMANOOR, KOCHI-682 015.** **R1-4 BY GOVERNMENT PLEADER SRI.V.K.RAFEEK R5 BY ADV. SRI.ABRAHAM MATHEW (VETTOOR)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 29682 of 2011 (I)** ## **APPENDIX** ## _**PETITIONER(S) EXHIBITS**_ **:** **EXT.P1 : TRUE COPY OF THE ORDER NO.B6/4818/07/DIS. OF THE 4TH RESPONDENT.** **EXT.P2 : TRUE COPY OF THE ORDER NO.B2/3382/09/K.DIS OF THE 3RD RESPONDENT.** - **EXT.P3 : TRUE COPY OF THE ORDER NO.EC(3)15486/10/DPI/K.DIS OF THE 2ND RESPONDENT.** **EXT.P4 : TRUE COPY OF THE G.O.(P)NO.73/2006/G.EDN. OF THE GOVERNMENT.** **EXT.P5 : TRUE COPY OF THE CIRCULAR NO.27/J2/2006/G.EDN. OF THE GOVERNMENT.** **EXT.P6 : TRUE COPY OF THE ORDER OF APPOINTMENT AND APPROVAL THEREOF.** - **EXT.P7 : TRUE COPY OF THE DECISION REPORTED IN 1993(2)KLT SN P(27) SEC.(28).** - **EXT.P8 : TRUE COPY OF THE ORDER NO.32703/L3/10/G.EDN. OF THE GOVERNMENT.** **EXT.P9 : TRUE COPY OF THE LETTER OF THE MANAGER.** **EXT.P10: TRUE COPY OF THE DECISION REPORTED IN 2011(3)KLT 790.** **EXT.P11: TRUE COPY OF THE JUDGMENT IN WPC NO.21646/2010-E.** **EXT.P12: TRUE COPY OF THE G.O.(RT)NO.4469/2011/G.EDN. OF THE GOVERNMENT.** **EXT.P13: TRUE COPY OF THE JUDGMENT IN WPC NO.30241/2010-E.** **EXT.P14: TRUE COPY OF GO(P).178/2002/G.EDN.DT.28.6.2002** **EXT.P15: TRUE COPY OF CIRCULAR NO.74101/J2/2004/G.EDN.DT.24.1.05 EXT.P16: TRUE COPY OF GO(RT).3776/2006/G.EDN.DT.24.8.06** **EXT.P17: TRUE COPY OF THE JUDGMENT IN WA.178/12 OF THIS COURT DT.19.2.13** ## _**RESPONDENTS' EXHIBITS**_ **:NIL** ## **OKB** **True copy** **P.A. to Judge** ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## W.P.(C) No.29682 of 2011 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 21[st] day of December, 2015. ## JUDGMENT The CCPLMAI High School, Perumanoor and L.A.I. High School, Saude are two High Schools come under the 5[th] respondent Educational Agency, the Central Board of Anglo Indian Education. The petitioner was appointed as Lower Primary School Assistant (LPSA) from 01.06.2007 to 31.03.2008 in L.A.I. High School, Saude against the promotion vacancy of Smt. Jasmin Noronha, who was promoted as High School Assistant (Maths) from 01.06.2007 to 31.03.2008. The approval of her appointment was rejected by the 4[th] respondent, the District Educational Officer, Ernakulam by Ext.P1 stating that the vacancy should be filled up by a protected hand instead of the petitioner. Aggrieved by Ext.P1, though she filed appeal before the 3[rd] respondent, the 3[rd] respondent also rejected the WP(C).29682/11 **:2:** appeal by Ext.P2. Even though Ext.P2 was challenged in appeal before the 2[nd] respondent, the 2[nd] respondent also rejected the appeal by Ext.P3. Ext.P3 was challenged before the Government in revision and the Government rejected the revision by Ext.P8. Aggrieved by Ext.P8 the petitioner approached this Court by filing W.P(C) No.30241/2010 and challenged Ext.P8 order. After hearing the petitioner and the respondents this Court quashed Ext.P8 order by Ext.P11 and directed the Government to reconsider the matter after hearing the petitioner and the Manager of the School, in the light of Exts.P4 and Ext.P5 orders passed by the Government, within three months from the date of receipt of a copy of the judgment. In compliance with Ext.P11 the Government again considered the revision and passed Ext.P12 order reiterating the earlier findings in Ext.P8 order. Ext.P12 is under challenge in this writ petition. 2. Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. 3. The sum and substance of the arguments WP(C).29682/11 **:3:** advanced by the learned counsel for the petitioner is that now the matter in issue involved in this writ petition stands covered by the decision of this Court in State of Kerala v. Nadeera [2013 (2) KLT 88]. The learned counsel further contends that the department never took care to send a list of protected teachers to the 5[th] respondent Manager either before or after the appointment of the petitioner. Therefore, it cannot be said that the Manager had disobeyed the condition insisting the appointment of a protected teacher imposed for the approval of the promotee. Therefore, in the absence of a pinpointing violation of the condition imposed for the approval of the post of promotee, the approval of the petitioner cannot be postponed or denied on the ground that a protected teacher was not appointed in compliance with the condition in the order of approval of the promotee. 4. Per contra, the learned Government Pleader advanced arguments contending that unless a protected teacher was appointed in compliance with the condition in the order granting approval to the WP(C).29682/11 **:4:** promotee, no approval can be granted to the petitioner who was appointed in the post of the promotee. According to the learned Government Pleader, in that circumstance the proposition laid down in Nadeera's case (supra) cannot be applied to the instant case. 5. In view of the rival contentions raised at the Bar, the question to be considered is: whether the denial of approval of the petitioner can be justified on the ground that a protected teacher was not appointed in compliance with the condition imposed in the order approving the post of promotee? 6. It stands admitted that the petitioner was appointed as Lower Primary School Assistant from 01.06.2007 to 31.03.2008 against a sanctioned post and she was appointed against the promotion vacancy of Smt.Jasmin Noronha, who was promoted as High School Assistant from 01.06.2007 to 31.03.2008. According to the 1[st] respondent, the approval of the promotee was given on condition that the resultant vacancy, i.e., the vacancy of LPSA in L.A.I. High School, Saude, would only be filled with a protected hand and the same has not WP(C).29682/11 **:5:** been complied by the 5[th] respondent. In the above context, the proposition laid down by this Court in Nadeera's case (supra) assumes significance. The proposition that can be culled out from the above decision is that in the absence of pinpointing violation of the guidelines intentionally or negligently by the Managers, the department can blame only its officers for not implementing their own guidelines and the teachers who are appointed regularly on account of their qualification and efficiency need not lose any of the benefits available to them for no fault of theirs. Even vicariously they cannot be saddled with such disadvantage on account of no fault of the Managers of the schools. 7. In view of the above decision, the point to be considered is whether the Manager has violated the condition imposed in the order approving the promotion of the promotee. 8. Going by the counter affidavit filed by the respondents it is seen that the 1[st] respondent have no case that they have forwarded the name of a protected WP(C).29682/11 **:6:** teacher to the 5[th] respondent for appointment against the post of Smt.Jasmin Noronha, who was promoted as High School Assistant from 01.6.2007 to 31.3.2008. In the absence of such a contention, it can be safely concluded that the 3[rd] and 4[th] respondents have not forwarded the name of a protected teacher to the 5[th] respondent to appoint in the post of Smt.Jasmin Noronha. If that be so, I am of the opinion that the proposition laid down in the above decision will come into application in the instant case; i.e., in the absence of pinpointing violation of the condition imposed in the order approving the promotion of the promotee, the petitioner who was appointed in the post of promotee cannot be saddled with denial of her approval and consequential benefits. No material has been placed before this Court to show that the protected teacher could not be appointed due to the fault of the Manager. Therefore, I cannot find any fault with the Manager also for not appointing the protected teacher. However, the petitioner who was appointed regularly for the period from 1.6.2007 to WP(C).29682/11 **:7:** 31.3.2008 on account of her qualification and efficiency need not lose any of the benefits available to her for no fault of theirs. In the above view of the matter, I quash Ext.P12 and the 4[th] respondent is directed to approve the appointment of the petitioner as Lower Primary School Assistant from 01.6.2007 to 31.3.2008 and issue orders accordingly within three months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. Sd/- K. HARILAL, JUDGE okb.