G. Deenamma HSA (Malayalam) v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 21ST DAY OF FEBRUARY 2017/2ND PHALGUNA, 1938 WP(C).No. 12068 of 2010 (G) ---------------------------- PETITIONER(S): ------------- G.DEENAMMA HSA (MALAYALAM), ST.GREGARIOUS HIGH SCHOOL,, PULAMON, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.M.V.THAMBAN RESPONDENT(S): -------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,, THIRUVANANTHAPURAM. 2. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 4. THE CORPORATE MANAGER, MMC CORPORATE MANAGEMENT, KOTTAYAM. THE ADDRESS OF THE 4TH RESPONDENT IS CORRECTED AS “THE MANAGER, MMC CORPORATE MANAGEMENT SCHOOL, CATHOLICATE ARAMANA, DEVALOKAM, KOTTAYAM. AS PER ORDER DATED 4.3.2011 IN IA 3442/2011 5. SMT.ACCAMMA A.J., HSA (MALAYALAM), ST.GEORGE VOCATIONAL HIGHER, SECONDARY SCHOOL, CHOWALLOOR, KOLLAM DISTRICT. 6. SMT.SUDHA KOSY, HSA (MALAYALAM), ST.GEORGE VOCATIONAL HIGHER, SECONDARY SCHOOL, CHOWALLOOR, KOLLAM DISTRICT. R,R1 TO 3 BY ADV. GOVERNMENT PLEADER, SMT. MARY BEENA JOSEPH R,R5 BY ADV. SRI.S.SREEKUMAR R,6 BY ADV. SRI.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CONTD.... ## :2: WP(C).No. 12068 of 2010 (G) ---------------------------- ## APPENDIX EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 27.62005 EXHIBIT P2 TRUE COPY OF THE G.O. (P) NO. 46/2006/G.Edn. DATED 1.2.2006 EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 8.7.2008 SUBMITTED BY THE PETITIONER BEFORE THE MANAGER. EXHIBIT P4 TRUE COPY OF THE LETTER NO. B6/7967/07 DATED 6.6.2008 EXHIBIT P5 TRUE COPY OF THE G.O. (RT.) NO. 4900/09/G.Edn. DATED 23.11.2009. EXHIBIT P6 TRUE COPY OF THE REPRESENTATION ON 12.8.2009 SUBMITTED BY THE PETITIONER BEFORE THE GOVT. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DT.26.8.2009 IN WPC NO. 24562/09 EXHIBIT P8 TRUE COPY OF THE HEARING NOTE DT. 22.12.2009 SUBMITTED BY THE PETITIONER BEFORE THE HEARING OFFICER. EXHIBIT P9 TRUE COPY OF THE HEARING NOTE DT. 21.2.2009 EXHIBIT P10 TRUE COPY OF THE GO (RT.)NO. 933/2010/G.EDN. DATED 3.3.2010 RESPONDENT'S EXHIBITS : NIL ----------------------- //TRUE COPY// P.A. TO JUDGE SKS ## **ANIL K. NARENDRAN, J. ================== W.P.(C.) No. 12068 of 2010 ---------------------------------Dated this the 21[st] day of February, 2017** ## **JUDGMENT** The petitioner who was appointed as HSA (Malayalam) in Mar Augen Memorial High School, Chengamanadu under MMC Corporate Management, Kottayam represented by its Manager, 4[th] respondent herein has approached this Court in this writ petition seeking a writ of certiorari to quash Ext. P10 and seeking a declaration that he is entitled for approval of his appointment as HSA (Malayalam), in preference to the 5[th] respondent with effect from 27.06.2005; alternatively, entitled to approval from June 2006 against the post held by the 6[th] respondent, as she is senior to the 5[th] and 6[th] respondents. She has also sought for other consequential declarations/reliefs. 2. The reliefs sought for in the writ petition are W.P. (C.) No. 12068 of 2010 2 opposed by the 2[nd] respondent by filing a detailed counter affidavit. 3. I heard learned counsel for the petitioner, learned Government Pleader for respondents 1 to 3, learned counsel for the 5[th] respondent and also learned counsel for the 6[th] respondent. 4. During the course of arguments, it is submitted by the learned counsel for the petitioner that, the petitioner is confining her relief for approval of her appointment as HSA (Malayalam) with effect from 27.06.2005 and that, she is not claiming any seniority over the 5[th] respondent, who was also appointed as HSA (Malayalam) with effect from that date. The said submission made on behalf of the petitioner is recorded. 5. The pleadings and materials on record would show that the petitioner was appointed as HSA (Malayalam) in Mar W.P. (C.) No. 12068 of 2010 3 Augen Memorial High School, Chengamanadu vide Ext. P1 order of appointment with effect from 27.06.2005. The approval for the said appointment was declined on the ground that the School in question is a newly upgraded School which was started functioning after 1979 and therefore, the conditions to appoint one protected teacher as provided in G.O. (P) No. 46/2006/G.Edn. dated 01.02.2006 has to be satisfied before making any fresh appointments. While continuing as HSA (Malayalam) in Mar Augen Memorial High School, Chengamanadu, the petitioner was transferred and posted to St. Gregorious High School, Pulamon, Kottarakkara under the same Corporate Management with effect from 12.08.2007. 6. On 27.06.2005 itself, the Corporate Management appointed the 5[th] respondent as HSA (Malayalam) in St. George Vocational Higher Secondary School, Chowalloor. W.P. (C.) No. 12068 of 2010 4 Since the said School is an ancient School, which does not come under the purview of Ext. P2 Government Order dated 01.02.2006, the Educational authorities granted approval for the appointment of the 5[th] respondent. According to the petitioner, since she is the senior claimant, (taking into account her age) the Educational authorities ought not to have approved the appointment of the 5[th] respondent, while approval for her appointment with effect from the very same date was pending consideration. During June, 2006, the Corporate Management appointed the 6[th] respondent as HSA (Malayalam) in St.George Vocational Higher Secondary School, Chowalloor. 7. Claiming approval for the appointment, the 5[th] respondent approached the Government by way of a revision petition. The said revision petition was directed to be disposed of by the judgment of this Court dated 02.04.2009 W.P. (C.) No. 12068 of 2010 5 in W.P.(C.) No. 10921 of 2009. Pursuant to the direction contained in the said judgment, the Government issued Ext. P5 order dated 23.11.2009 by which District Educational Officer was directed to approve the appointment of the 5[th] respondent as HSA (Malayalam) with effect from 27.06.2005 in St. George Vocational Higher Secondary School, Chowalloor. The petitioner challenged the said Government Order in W.P.(C.) No. 34312 of 2009. During the course of arguments, it is brought to the notice of this Court that the said writ petition ended in dismissal by the judgment dated 09.07.2013. 8. The petitioner moved Ext.P6 representation dated 12.08.2009, before the Government, seeking approval for her appointment as HSA (Malayalam) with effect from 27.06.2005. Seeking disposal of the said representation, the petitioner filed W.P.(C.) No. 24562 of 2009 and the said writ W.P. (C.) No. 12068 of 2010 6 petition was disposed of by Ext. P7 judgment dated 26.08.2009, by which the Government was directed to pass appropriate orders on the said representation. Pursuant to the direction contained in the said judgment, the Government conducted a personal hearing on 21.12.2009. 9. During the course of personal hearing, the petitioner submitted Ext. P8 written submission. After considering the rival contentions, the Government issued Ext.P10 order dated 03.03.2010 rejecting the revision petition filed by the petitioner. The reason stated in Ext.P10 order to reject the approval for the appointment of the petitioner as HSA (Malayalam) with effect from 27.06.2005 was that, since the School in question is a newly opened school, in the vacancy in which the petitioner has been appointed as HSA (Malayalam), a protected teacher has to be appointed in terms of Ext. P2 Government order dated W.P. (C.) No. 12068 of 2010 7 ## 01.02.2006. 10. A counter affidavit has been filed by the 2[nd] respondent, reiterating the stand taken in Ext. P10 order. It is contended by the 2[nd] respondent that, since the School in question is a newly opened school, the 4[th] respondent Manager should have appointed a protected hand in terms of Ext. P2 Government order, instead of appointing a new recruit like the petitioner. Since the appointment of the petitioner was contrary to the mandate of Ext. P2 Government order, the Educational authorities as well as the Government rightly rejected approval for such appointment. The 4[th] respondent, Manager appointed a protected hand in Mar Augen Memorial High School, Chengamanadu only with effect from 14.01.2011. Another protected hand was appointed in St. Gregorious High School, Pulamon with effect from 03.01.2011. Since the 4[th] respondent Manager satisfied W.P. (C.) No. 12068 of 2010 8 the objection to appoint a protected hand in Mar Augen Memorial High School, Chengamanadu only on 14.01.2011, the appointment of the petitioner can be approved only with effect from 14.01.2011. 11. Since the petitioner is not claiming any seniority over the 5[th] respondent, the only question that arises for consideration in this writ petition is as to whether the petitioner is entitled for approval of her appointment with effect from 27.06.2005 based on Ext.P1 order of appointment. 12. The stand taken by the 2[nd] respondent in the counter affidavit is that, since the 4[th] respondent Manager appointed a protected hand in Mar Augen Memorial High School, Chengamanadu only on 14.01.2011, the appointment of the petitioner as HSA (Malayalam) in the said school can be approved only with effect from that date W.P. (C.) No. 12068 of 2010 9 and not with effect from 27.06.2005. The said contention is no more available to respondents 1 to 3 in view of the law laid down by this Court in **Nadeera T.S. v. State of Kerala [2011 (3) KLT 790]** and affirmed by the Division Bench in **State of Kerala v. S.Haseena and anr. [2013 (2) KHC 103].** The Division Bench held that, till 2009 there was no obligation on the part of the Manager of aided Schools to secure list of protected teachers. Therefore, if at all any obligation cast on the Managers of the Schools to secure the list of protected teacher, it commenced only in the year 2009 by circular dated 19.11.2009, which can have only prospective effect and no retrospective effect. As per Rule 6 (viii) of Chapter V of KER, the only obligation cast on the Managers of the aided Schools is that, they must appoint the protected teachers, whenever a list is sent. Beyond that, there is no other obligation cast on them. SLP (C) Nos. W.P. (C.) No. 12068 of 2010 10 28504-05 of 2013 as well as Review Petition Nos. 347-48 of 2014 filed by the State before the Apex Court against the said decision of the Division Bench also ended in dismissal. 13. In view of the law laid down by this Court in the decisions referred above, the petitioner is legally entitled for approval of her appointment as HSA (Malayalam) with effect from 27.06.2005. In the result, this writ petition is disposed of setting aside Ext. P10 order. Accordingly, the 2[nd] respondent is directed to approve the appointment of the petitioner as HSA (Malayalam) in Mar Augen Memorial High School, Chengamanadu, based on Ext. P1 order of appointment, with effect from 27.06.2005, in terms of the law laid down by the Apex Court and this Court in the decisions referred to supra. Necessary orders in this regard shall be passed within a period of three months from the date of receipt of a W.P. (C.) No. 12068 of 2010 11 certified copy of this judgment and all consequential monetary benefits shall be paid to the petitioner within a further period of one month. **Sd/ANIL K.NARENDRAN JUDGE** SKS //TRUE COPY// P.A. TO JUDGE