Gigi Cherian v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 27TH DAY OF NOVEMBER 2017/6TH AGRAHAYANA, 1939** ## **WP(C).No. 38045 of 2017 (E)** **----------------------------** **PETITIONER : ----------------------** **GIGI CHERIAN, S/O. CHERIAN, AGED 49 YEARS, THAMARAKUDY HOUSE, PANIPRA P.O, ERNAKULAM DISTRICT, PIN-686 692** **BY ADVS.SRI.SALIM V.S. SRI.H.NUJUMUDEEN SMT.K.S.HASEENA** **RESPONDENT(S): ------------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001** **2. THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA-686 661** ## **3. THE TAHSILDAR,** - **KOTHAMANGALAM, PIN-686 691** **4. THE VILLAGE OFFICER, THRIKKARIYOOR, PIN-686 692** **5. THE LOCAL LEVEL MONITORING COMMITTEE, REPRESENTED BY ITS CONVENOR, AGRICULTURE OFFICER, KRISHI BHAVAN, KOTTAPPADY, PIN-686 692** ## **BY GOVERNMENT PLEADER SRI.MANURAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-11-2017,ALONG WITH WP(C) NO.37823 OF 2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 38045 of 2017 (E)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------------------------** - **EXHIBIT P1: TRUE COPY OF THE SETTLEMENT DEED NO.2910/1996 OF S.R.O KOTHAMANGALAM** **EXHIBIT P2: TRUE COPY OF THE POSSESSION CERTIFICATE DATED 21.08.2017 ISSUED BY THE 4TH RESPONDENT** **EXHIBIT P3: TRUE COPY OF THE RELEVANT PAGE OF THE BASIC TAX REGISTER ISSUED BY THE 4TH RESPONDENT** **EXHIBIT P4: TRUE COPY OF THE REPLY DATED 23.10.2017 ISSUED BY THE 5TH RESPONDENT** **EXHIBIT P5: TRUE COPY OF THE APPLICATION DATED 08.10.2017 SUBMITTED BEFORE THE 2ND RESPONDENT** **RESPONDENT(S)' EXHIBITS: NIL** **-------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **P.V. ASHA, J.** ## **---------------------** ## **W.P.(C).NO. 38045 OF 2016** **--------------------------------------** Dated this the 26[th] day of September, 2017 ## **JUDGMENT** The petitioner, who was appointed as LPSA in the 4[th] respondent, School on 21.11.2007, got her appointment approved only w.e.f. 01.06.2011. The petitioner's claim for approval of her appointment as per Ext.P1 has been rejected on the ground of ban on appointments by the Government against additional division vacancies as per G.O.(P) 317/05/G.Edn dated 17.08.2005. However, the Government, thereafter issued Ext.P3 order on 12.01.2010, lifting the ban on a condition that, the Manager shall execute a bond agreeing for appointing equal number of protected teachers in future vacancies and thereafter to apply 1:1 ratio on protected teachers and fresh hands. However, the manager did not execute a bond. It appears that W.P.(C).NO. 38045 OF 2016 2 the Manager did not challenge the Government order also. In the above circumstances, petitioner's appointment was not approved. The Government has subsequently issued orders including the teachers' package. Based on this, petitioner's appointment was approved with effect from 01.06.2011. The issue regarding the denial of approval to the appointment made against additional division vacancies, on the basis of the ban orders issued by the Government, in the order dated 17.08.2005, was already considered by me in my Judgment dated 28.06.2017 in Writ petition No. 34935/2016 and directions were issued to the respondent to approve the appointment from the date of appointment . 2. Petitioner was appointed at a time when there was justification for sanctioning a post of LPSA. At the same time the Manager filled up the vacancy in gross disobedience of the orders issued by Government, imposing ban on filling up of vacancy in W.P.(C).NO. 38045 OF 2016 3 additional divisions. As per the provisions contained in Rule 1 of Chapter XIVA of KER, the Manager has to fill up the vacancy in an aided school only in accordance with the rules as well as the orders issued by Government from time to time. In November 2007, the ban order issued on 17.08.2005 was in force and Manager ought not have filled up the additional division vacancy. When the Government lifted the ban conditionally, by issuing Ext. P3 order, on 12.01.2010, the Managers did not execute any bond agreeing to fill up equal number of vacancy by appointing protected teachers. The Managers of various Schools challenged the order unsuccessfully. Ext P3 order 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 W.P.(C).NO. 38045 OF 2016 4 provisions of the Kerala Education Act 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 of 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 Instruction, 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 Government. In the meanwhile Government had issued G.O.(P) No.199/11/G.Edn dated 1.10.2011, 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 petitioner who was continuing in the additional division vacancy without approval got her W.P.(C).NO. 38045 OF 2016 5 appointment approved from 01-06.2011. Even though the approval was confined to the period from 01.06.2011, Government did not take a decision on the question of the service rendered by these teachers prior to 01.06.2011. They have been consistently adopting the stand that the question regarding that would be decided later. The fact that there was justification for sanctioning the posts for their appointments is not disputed. 3. Now the contention of the learned Counsel for the petitioner that approval is granted to several teachers on the basis of the directions of this court in several cases, requires to be examined. 4. 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 W.P.(C).NO. 38045 OF 2016 6 the bond and his obligation to appoint protected teachers is in force. 5. By judgment dated 28.07.2015, another learned Single Judge, taking note of the earlier judgments in the case of similarly situated teachers, directed of an made on approval appointment 4.06.2007 in an additional division vacancy, leaving it open to the educational authorities to enforce the conditions in the bond. 6. In the judgment dated 29.03.2017 in W.P(C) No.1552 of 2012, another learned Single Judge directed approval and consequential disbursement of salary to teachers similarly situated. 7. The learned Counsel for the petitioner 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 W.P.(C).NO. 38045 OF 2016 7 for any purpose. The Government have been stating that a general decision would be taken in the matter. 8. Government denied the benefit of Ext P12 judgment in W.P.C No. 9262/2012, to the petitioners saying that an appeal is pending against it. But no interim orders are passed in that case. 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 preJune 2011 service in additional division vacancies, I am of the considered view that there is no reason why the petitioner in this case should be subjected to a different treatment, for the very same reasons viz. ban on appointments and non-execution of bonds. Even according to Government, as per the circular dated 25.10.2011 and subsequent proceedings, the question relating to the service rendered by these teachers for the period prior to 01.06.2011 would be considered when a general decision is taken by Government. That W.P.(C).NO. 38045 OF 2016 8 means, the Government do not have a case that these teachers have not worked or that there were no posts for them for their appointments. 9. Once it is found that the Manager appointed the petitioners in gross disobedience to the orders issued by 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 or to get the loss caused to Government on account of that, recouped by them. 10. In these circumstances, the denial of approval to the appointment of the petitioner for the period prior to 01.06.2011 is arbitrary and unsustainable. W.P.(C).NO. 38045 OF 2016 9 11. In the above circumstances, the writ petition is allowed to the extent of directing approval of appointment of the petitioner for the period from 21.11.2007, based on Ext.P1. The petitioner shall be entitled to the consequential benefits and the respondents shall disburse the same within a period of four months, from the date of receipt of copy of a judgment. Further claims raised in this writ petition are left open. Sd/- **P.V. ASHA JUDGE** //TRUE COPY// PA TO JUDGE rk