GIRIJA.V.K v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945 ``` ## **`WP(C) NO. 3407 OF 2019`** ## **`PETITIONER:`** ``` GIRIJA.V.K, AGED 42 YEARS H.S.A (HINDI), KADACHIRA HIGHER SECONDARY SCHOOL, KADACHIRA P.O.KANNUR-670 621. BY ADVS. KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA KUM.THULASI K. RAJ SMT.RIYA RAYMOL IYPE ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695 001.` - `2 DEPUTY DIRECTOR OF EDUCATION, KANNUR` - `3 DISTRICT EDUCATIONAL OFFICER, KANNUR` - `4 THE MANANGER, KADACHIRA HIGHER SECONDARY SCHOOL, KADACHIRA P.O.KANNUR-670 621` - `5 HEAD MASTER, KADACHIRA HIGHER SECONDARY SCHOOL, KADACHIRA P.O.KANNUR 670 621.` - `6` **`ADDL. R6 IMPLEADED`** ``` SHESH KRISHNAN AGED 37 YEARS WORKING AS L.G.HINDI, KADACHIRA HIGHER SECONDARY SCHOOL, RESIDING AT SOUPARNIKA, MANATHANA.P.O. KANNUR DISTRICT, PIN – 670674 (ADDL. R6 IS IMPLEADED AS PER ORDER DATED 25.03.2019 ON I.A. NO.1/2019) ``` ``` BY ADVS. ``` WP(C) No. 3407 of 2019 : 2 : ``` SRI.T.RAMESH BABU FOR R5 R.SURENDRAN FOR R6 KUM.S.MAYUKHA SR.GP – SRI. JOBY JOSEPH ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No. 3407 of 2019 : 3 : ## **VIJU ABRAHAM , J. =========================== WP(C) No. 3407 of 2019 ============================ Dated this the 17[th] day of August, 2023** ## **J U D G M E N T** The above writ petition is filed challenging Exts P8, P10 and P13 orders and for a consequential direction to respondent Nos. 2 and 3 to approve the appointment of the petitioner as HSA (Hindi) with effect from 01.01.2019 based on Ext P4 judgment issued by the Apex Court and to disburse salary to the petitioner attached to the post of HSA (Hindi) with effect from 01.01.2019. 2. Short facts necessary for disposal of the writ petition are as follows. Petitioner was appointed as HSST (Economics) on 19.09.2011 towards appointment from open market on the ground that going by the ratio of 1:3 prescribed under Chapter XXXII Rule 4 of Kerala Education Rules, a candidate like the petitioner could be appointed from open market. Another teacher namely Reshma Parayil filed WP(C) No. 23783/2013 challenging the appointment of the petitioner on the ground that the post is one to be filled up by appointing her through by transfer since according to her the said post was due to a high school teacher for whom the 25% quota was due as per the rules. WP(C) No. 3407 of 2019 : 4 : 3. Ultimately, the Government as per order dated 01.01.2014 has directed the management to fill up the post of HSST (Economics) through by transfer of Reshma Parayil. Petitioner challenged the said Government order by filing WP(C) No. 30707/2014 and as per Ext P2 judgment the appointment of the petitioner herein was upheld. Against which Writ Appeal No. 1504/2015 was filed by Reshma Parayil which was disposed of as per Ext P3 judgment whereby Ext P2 judgment was set aside. The petitioner challenged Ext P3 judgment by filing SLP No. 27838/2016 which was disposed of as per Ext P4 judgment wherein it was held that the petitioner herein has no right to hold the post of Higher Secondary School Teacher (Economics) and that Smt. Reshma Parayil was to be appointed and thereby affirmed the decision in Ext P3 judgment. However in view of the fact that the petitioner has been working in the school as HSST (Economics) ever since 2011 and that the petitioner had approved service since 26.08.2013 the Apex Court further directed in Ext P4 judgment as follows; _“ In the ends of justice, we, however, observe that the appellant, if willing to work on the post, at present, held by the respondent No.1, the respondents shall adjust her and allow her to work on the post occupied by the respondent No.1 w.e.f. the same date, i.e. 01.01.2019”_ It was made clear by the Apex Court that the above direction is being given in the peculiar circumstances of the present case and WP(C) No. 3407 of 2019 : 5 : shall not be treated as any precedent. The petitioner submits that based on the said direction issued by the Apex Court in Ext P4 judgment, the management had a duty to adjust the petitioner as HSA (Hindi) and the Educational Officers have a duty to approve the said appointment of the petitioner. 4. Thereafter, as per Ext P5 order the petitioner was appointed in the school as HSA (Hindi) with effect from 01.01.2019 as directed in Ext P4 judgment. The said appointment was placed before the Educational Authorities for approval. However the same was rejected by the 3[rd] respondent as per Ext P8 for the reason that petitioner is not qualified for being appointed as HSA (Hindi) as per the provisions of Chapter XXXI Rule 2(iv) of KER. Petitioner submits that her qualification are (i) M.A. in Economics, (ii) B.Ed in Social Science, (iii) SET in Economics. According to Rule 2(iv) of Chapter XXXI KER the qualification for appointment of HSA (Hindi) is as follows; _“ A degree in Hindi conferred or recognised by the Universities in Kerala; or_ _A title of Oriental learning in Hindi awarded or recognised by the Universities in Kerala, or_ _Praveen of the Dakshina Bharat Hindi Prachar Sabha, Madras with a pass in the S.S.L.C Examination conducted by the Commissioner for Government Examination, Kerala, or its equivalent; or Sahithyacharya of Kerala Hindi Prachar Sabha with a pass in S.S.L.C Examination conducted by the Commissioner for Government Examination, Kerala or its equivalent.”_ WP(C) No. 3407 of 2019 : 6 : Petitioner submits that the rule also mandate that the candidate should have a B.Ed degree which need not be necessary in Hindi. Petitioner admits that she does not have a degree in Hindi nor she has any qualification equivalent to degree in Hindi as indicated in the rule. However she has recently got admission for the course of Praveen conducted by the Dakshina Bharat Hindi Prachar Sabha, Madras, which is a qualification equivalent to degree in Hindi and on acquiring the same, petitioner will be qualified for appointment as HSA (Hindi) since she is having a B.Ed in Social Science. Petitioner further contend that for appointment of HSA in languages, going by the present rules, B.Ed degree need not be in that language but could be any B.Ed. The said preposition has been upheld by this Court in _**Sindhu v. Kerala Public Service Commission [2001 (2) KLT 507]**_ and also in _**Girija v. State of Kerala [2000 (3) KLT 658].**_ Eventhough the petitioner is not required to acquire the said qualification, as per the direction in Ext P4 judgment of the Apex Court, petitioner submits that she is willing to acquire the same as evident from the fact that she has already joined the course which is essentially a correspondence course. The claim of the petitioner was directed to be reconsidered as per judgment in WP(C) No. 3407/2019 and pursuant to the same Ext P13 order was issued again rejecting the claim of the petitioner for appointment. WP(C) No. 3407 of 2019 : 7 : 5. Petitioner submits that none of the reasons stated in Ext P13 is valid and the rejection as is evident from Ext P13 is absolutely arbitrary and unjust. Petitioner further contends that the relief granted to the petitioner by the Apex Court was taking into consideration the fact that petitioner has been working as HSST since 2011 and also taking into consideration the said particular circumstance that the said order issued invoking the power under Article 142 of the Constitution of India. The petitioner has also a contention that since invoking the power under Article 142 of the Constitution, the Apex Court has directed the appointment of the petitioner in the post of HSA, the authorities cannot sit over the same and reject the approval of appointment of the petitioner as is done in Exts P8 and P13 and contend that the said action itself amounts to violation of the orders passed by the Apex Court in Ext P4 judgment. The petitioner relies on _**Delhi Judicial Service Association v. State of Gujarat [1991 Criminal Law Journal, 3086]**_ wherein it is reiterated that once the Apex Court has seisin of the matter before it, it has power to issue any order or direction to do “complete justice”. Petitioner also relies on the judgment in _**Union Carbide Corporation v. Union of India [1992 AIR 248], B.Venkataramana v. State of Madras [AIR 1951 SC 229], Suman Gupta v. State of Jammu and Kashmir [AIR 1979 SC 765], P. Rajendran v. State of Madras [AIR 1968 SC 1012],**_ WP(C) No. 3407 of 2019 : 8 : _**State of Kerala v. T.P. Roshana [AIR 1979 SC 765]**_ and _**State of Madhya Pradesh v. Ram Ratan [AIR 1980 SC 1650]**_ in support of his contentions. 6. Petitioner further submits that during the pendency of the above writ petition, petitioner acquired Rashtra Bhasha Praveen Examination 2021 and has produced Ext P12 provisional certificate dated 06.12.2021 which show that she has passed Rashtra Bhasha Praveen Examination conducted in 2021. Date of issuance of the said certificate is shown as 06.10.2021. The petitioner further submits that as per Ext P19 Government Order, the Government has extended the time upto June 2023 for acquiring K-TET qualification. Petitioner also submits that she is now fully qualified for being appointed as an HSA (Hindi) since she has obtained Ext P12 certificate from the Dakshina Bharath Hindi Prachara Sabha, Madras that she has passed Rashtra Sabha Praveen and therefore the petitioner is entitled for approval of her appointment atleast with effect from 06.10.2021, the date of Ext P12. Petitioner further contend that a review petition was filed by the State seeking review as R.P. No. 1625/2019 seeking review of Ext P4 judgment, for getting a clarification that only if the petitioner is qualified for the post HSA (Hindi) she can be accommodated in that vacancy or atleast when the petitioner acquires qualification to the post of HSA (Hindi) then alone she can be accommodated as aforesaid. WP(C) No. 3407 of 2019 : 9 : Therefore, petitioner contend that the review petition has been filed specifically touching upon the lack of qualification of the petitioner. But the Apex Court considered the review petition and dismissed the same as per Ext P18 order dated 23.07.2019. On the basis of the same, petitioner would contend that the Educational Authorities cannot sit in appeal over the directions issued by the Apex Court which has attained finality and the action evidenced by Exts P18 and P13 are absolutely arbitrary and unjust and amounts to contempt since the said orders have been issued in clear violation of Ext P4 judgment by the Apex Court. Though the State sought for a review specifically on the reasons stated in Exts P8 and P13, the review petition was also dismissed as per Ext P18. 7. The 6[th] respondent has filed a detailed counter affidavit wherein it is contended that the petitioner is not qualified for being appointed as HSA (Hindi). It is a contention of the 6[th] respondent that, had this aspect of lack of qualification of the petitioner is brought to the notice of the Apex Court, the Court ought not have granted the concession now granted to the petitioner and the order has been obtained suppressing material facts. The claim of the 6[th] respondent is that she is working as Lower Grade Hindi Teacher in Kadachira Higher Secondary School and she is fully qualified for being appointed as HSA (Hindi) and if the petitioner is not WP(C) No. 3407 of 2019 : 10 : appointed to the said post as directed in Ext P4 judgment of the Apex Court, she is entitled for promotion to the said post. 8. The 2[nd] respondent has also filed a detailed counter affidavit wherein it is contended that the petitioner was not having the academic qualification to the post of HSA (Hindi) and though the Apex Court has directed the appointment of the petitioner as HSA (Hindi) with effect from 01.01.2019, the petitioner being not qualifed, her appointment cannot be approved. It is further submitted that, though the petitioner has submitted copy of her admission form for the Hindi course, she will be qualified to the post of HSA (Hindi) only after her successful completion of degree course and after production of the original certificate which is recognised by the university concerned. Petitioner also does not have K-TET qualification which is mandatory for her appointment and that the appointment can be approved only after acquiring requisite qualification by the petitioner. 9. I have heard the rival contentions of parties. 10. The Apex Court as per Ext P4 judgment issued the following direction. _“18. Learned counsel for the appellant lastly has submitted that appellant has been working and satisfactorily discharging her duties for last more than 5 years and respondent may get another chance for being appointed by transfer when any other vacancy arises on the post of Higher Secondary School Teacher (Economics). We do not find any substance in the above submission when as per Rule 4(2), the respondent was entitled for_ WP(C) No. 3407 of 2019 : 11 : _appointment by transfer, which claim has been accepted by the State Government, the claim of respondent cannot be negated on the premise as contended by the appellant. Learned counsel for the respondent, however, during submissions has fairly submitted that she has no objection, if the appellant is adjusted on the post, which is at present held by the respondent.”_ The Government have taken a stand that the petitioner was not qualified for being appointed as HSA (Hindi) at the time when the direction was issued in Ext P4 judgment by the Apex Court and thereupon they sought for review of the judgment filing R.P. No. 1625/2019 specifically raising the objection regarding the qualification of the petitioner for being appointed as HSA (Hindi). The Apex Court has rejected the review petition as per order dated 23.07.2019. It is well settled that under Article 141, the order passed by the Supreme Court is the law of the land, and as per Article 142 of the Constitution of India, the Apex Court has power to issue any order or direction to do complete justice in the matter. The Apex Court in _**Delhi Judicial Service Association’s**_ case supra have considered the power of the Apex Court under Article 142 of Constitution of India and held in para 51 as follows; _“This Court’s power under Article 142(1) to do “complete justice” is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional powers of this Court. Once this Court has seisin of a cause or matter before it, it has power to issue any order or direction to do “complete justice” in the matter. This constitutional power of the Apex Court cannot be limited or restricted by provisions contained in statutory law”._ WP(C) No. 3407 of 2019 : 12 : After the Apex Court has issued directions as per Ext P4 and the review petition filed by the State has been dismissed as per order dated 23.07.2019, it is arbitrary and unjust on the part of the education authorities to reject the approval of appointment of the petitioner as per Exts P8 and P13. The action of the educational authorities is not only arbitrary and unjust, it is a clear case of disobedience to the order passed by the Apex Court which is nothing but contempt of Court. 11. The petitioner submits that she acquired the qualification of Rashtra Bhasha Praveen from the Dakshina Bharath Hindi Prachar Sabha, Madras as is evident from Ext P12 provisional certificate dated 06.10.2021 and she submits that though the Apex Court has directed his appointment as HSA (Hindi) with effect from 01.01.2019 she is limiting her claim for appointment only from the date on which Ext P12 provisional certificate was issued i.e. from 06.10.2021. It is also pertinent to note that the State has filed review petition R.P. No. 1625/2019 seeking a clarification from the Apex Court that only if the petitioner is qualified for the post of HSA (Hindi) she can be accommodated in that vacancy or atleast when petitioner acquires qualification for the post of HSA (Hindi), then alone she can be accommodated to that post. That being the stand taken by Government in the review petition, now the petitioner has been fully qualified as per Ext P12 and Government itself have WP(C) No. 3407 of 2019 : 13 : given extension of time for passing the K-TET Examination as per P19, and based on the submission made by the learned Counsel for the petitioner that she may be granted approval of appointment from the date on which Ext P12 provisional certificate was issued, I am of the opinion that there can be no delay in approval of the appointment of the petitioner from the date of Ext P12. If the 6[th] respondent is aggrieved by Ext P4 order passed by the Apex Court, it is for the 6[th] respondent to approach the Apex Court and seek modification of the order if so advised. Therefore, Exts P8 and P13 are set aside with a consequential direction to the 3[rd] respondent to approve the appointment of the petitioner with effect from 06.10.2021, the date of issuance of Ext P12 as agreed to by the Counsel for the petitioner, within a period of one month from the date of receipt of a copy of this judgment. All consequential benefits due to the petitioner including arrears of salary shall be paid to the petitioner within the said period of time. With the above said direction, the writ petition is disposed of. **Sd/VIJU ABRAHAM JUDGE** sbk/- WP(C) No. 3407 of 2019 : 14 : ## **`APPENDIX OF WP(C) 3407/2019`** - `PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 17.10.2013 IN WPC NO 23783/2013` - `EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 27.3.2015 IN WPC NO 30707/2014` - `EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 17.8.2016 IN WA NO 1504/2015` - `EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 4.12.2018 IN SLP NO 27838/2016 OF THE HON'BLE SUPREME COURT OF INDIA.` - `EXHIBIT P5 TRUE COPY OF THE APPOINTMENT ORDER DATED 31.12.2018 ISSUED BY THE MANAGER` - `EXHIBIT P6 TRUE COPY OF THE STATEMENT OF CHANGE OF STAFF` - `EXHIBIT P7 TRUE COPY OF THE APPLICATION FOR APPROVAL OF APPOINTMENT` - `EXHIBIT P8 TRUE COPY OF THE ORDER NO B2/101/2019 DATED 31.1.2019` - `EXHIBIT P9 TRUE COPY OF THE APPLICATION FROM SUBMITTED BY THE PETITIONER TO NATIONAL HINDI COLLEGE, TALIPARAMBA FOR THE COURSE OF PRAVEEN CONDUCTED BY THE DAKSHINA BHARAT HINDI PRACHAR SABHA.` - `Exhibit P10 TRUE COPY OF COPY OF SSLC CERTIFICATE OF 1992 OF THE PETITIONER.` - `Exhibit P11 TRUE COPY OF DEGREE CERTIFICATE IN SOCIAL STUDIES DATED 2/7/2003 OF THE PETITIONER.` - `Exhibit P12 TRUE COPY OF THE PROVISIONAL CERTIFICATE DATED 06.10.2021.` - `Exhibit P13 TRUE COPY OF THE ORDER DATED 11.02.2022 ISSUED BY THE DEO.` - `Exhibit P14 TRUE COPY OF THE B.ED CERTIFICATE OF THE PETITIONER.` - `Exhibit P15 TRUE COPY OF G.O.(MS) NO.179/2021/GEDN DATED 18/8/2021` - `Exhibit P16 TRUE COPY OF G.O.(MS) NO.194/2019/GEDN DATED 15/11/2019` - `Exhibit P17 TRUE COPY OF G.O.(MS) NO.58/2021/GEDN DATED 12/2/2021` - `RESPONDENT EXHIBITS Exhibit R6(c) A true copy of the certificate dated 2611-2008, evidencing Diploma in Language Education in Hindi issued by the Board of Public Examinations, Kerala in favour of` WP(C) No. 3407 of 2019 : 15 : ``` Respondent No.6 Exhibit R6(a)A true copy of the appointment order dated 30-1-2012 with order of approval Exhibit R6(b)A true copy of the degree certificate in Rashtrabhasha Praveen dated 3-1-2009 issued by the Dakshin Bharath Hindi Prachar Sabha, Madras in favour of Respondent No.6 PETITIONER EXHIBITS Exhibit P 18A true copy Of the judgment in R.P No 1625/2019 dated 23.07.2019 OF THE SUPREME COURT OF INDIA Exhibit P 19A true copy Of the Government order No..Go (Ms)/15/2023/G.Edn dated 17.02.2023 issued by the General Education Department , ```