High Court of KeralaSingle Judge2012-11-12Writ petition allowed. No cost.

Habna Jose v. Director of Public Instructions, Thrissur District Educational Officer, Corporate Manager, Corporate Educational Agency, Archdiocese of Thrissur, and State of Kerala

Case / Petition Number:W.P.(C) No. 795/2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. R. Ramachandra Menon, J.
Judgment Date: 2012-11-12
Court Decision / Holding: Writ petition allowed. Exts. P3, P5 and P6 are set aside. The respondents are directed to pass appropriate orders to approve the petitioner’s appointment with effect from 12 June 2008 and to grant all consequential benefits flowing therefrom. The proceedings shall be finalized and disbursement effected at the earliest, within three months from the date of receipt of a copy of this judgment.
Final Disposition: Writ petition allowed. No cost.

Parties to the Case

Appellants / Petitioners

Habna Jose, W/o. Dr. Arun Raphel, Kundukulangara Paramban House, Chiyyaram.P.O. Thrissur-680 026

Respondents

Director of Public Instructions, Jagathy, Trivandrum-695001
District Educational Officer, Thrissur-680001
Corporate Manager, The Corporate Educational Agency, Archdiocese of Thrissur-680001
State of Kerala, represented by the Secretary to Government, General Education Department, Thiruvananthapuram, Pin 695001

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Mathew Sebastian

Counsels for Respondents

• Smt. Lowsy A., Government Pleader (R1)
• Sri. KuriAn George Kannathanam (Sr.), for R3
• Sri. Tony George Kannathanam, for R3
• Sri. Jiji Thomas, for R3

Case Synopsis & Summary

Habna Jose, the petitioner, challenged the withholding of salary and denial of her appointment as a Higher Secondary School Assistant (H.S.A.) in the 3rd respondent school. She was appointed on 12 June 2008 and her probation was declared on 1 September 2010 (Ext. P2). The salary of six teachers, including the petitioner, was withheld by Ext. P3. The petitioner submitted Ext. P4 representations, but Ext. P5 dated 20 April 2011 rejected her claim, and Ext. P6 dated 12 May 2011 stayed the DEO’s order only as to others, not the petitioner. The petitioner contends there was no undeployed protected teacher in the Educational District to fill the vacancy and that the Manager’s appointment of several persons, including herself, was justified since no protected teacher list had been furnished. The 3rd respondent contends that appointments of 11 H.S.A.s after the petitioner’s appointment were approved (Exts. R3(a)–R3(q)) and that about sixty-one teachers in Corporate Management also received approvals (R3(r)). It is argued that vacancies were filled from Rule 43 or Rule 51A claimants or by those who became excess. The State did not file counter-affidavits for over a year. Relying on Moosakutty v. D.E.O., Wandoor (2009(3) KLT 863) and Nadeera v. State of Kerala (2011 (3) KLT 790), the Court allows the petition, sets aside Exts. P3, P5 and P6, and directs the respondents to approve the petitioner’s appointment from 12 June 2008 with all consequential benefits, to be disbursed within three months.

Provisions of Law Cited

Rule 43Rule 51A

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that since there was no undeployed protected teacher available in the Educational District, the Manager’s appointment of persons, including the petitioner, should be approved. She argues that withholding her salary and the rejection of her representation (Exts. P3, P5) are discriminatory because several juniors and others in similar situations were approved, as evidenced by Exts. R3(a)–R3(q) and R3(r). She relies on precedents such as Moosakutty v. D.E.O., Wandoor (2009(3) KLT 863) and Nadeera v. State of Kerala (2011 (3) KLT 790) to justify approval of appointments where undeployed protected teachers are unavailable, seeking immediate relief and back benefits.

Contentions of Respondents

The respondents argue that the 3rd respondent Manager acted within the cadre’s vacancy-filling framework, citing that around eleven H.S.A.s were approved after the petitioner’s appointment (Exts. R3(a)–R3(q)) and that about sixty-one teachers in corporate management were approved as well (Ext. R3(r)). They state that no undeployed protected teacher list was furnished, and vacancies were filled by Rule 43 or Rule 51A claimants or by those who became excess in their own schools, hence there was justification for the appointments. They emphasize that the Department did not file counter-affidavits for over a year, and that the Supreme Court declined to interfere in similar matters after appeal. They rely on the factual matrix to oppose the relief sought. ”},

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Moosakutty v. District Educational Officer, Wandoor	2009(3) KLT 863	Positive	Cited by the petitioner and relied upon to justify approval of appointments when no undeployed protected teacher is available.
Nadeera v. State of Kerala	2011 (3) KLT 790	Positive	Cited as supportive authority for approving appointments under the circumstances described.

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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 P.R.RAMACHANDRA MENON** ## **MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934** ## **WP(C).No. 795 of 2011 (Y) ------------------------------------** ## **PETITIONER(S):** ## **-----------------------** **HABNA JOSE, W/O. DR. ARUN RAPHEL, KUNDUKULANGARA PARAMBAN HOUSE,CHIYYARAM.P.O. THRISSUR-680 026.** ## **BY ADV. SRI.MATHEW SEBASTIAN** ## **RESPONDENT(S):** ## **-------------------------** **1. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, TRIVANDRUM-695001.** **2. THE DISTRICT EDUCATIONAL OFFICER, THRISSUR-680 001.** **3. THE CORPORATE MANAGER, THE CORPORATE EDUCATIONAL AGENCY, ARCHDIOCESE OF THRISSUR-680001.** ## **ADDL. R4 IMPLEADED** **4. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM, PIN 695 001.** **R1,2 BY GOVERNMENT PLEADER SMT.LOWSY A.** - **R3 BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (SR.) R3 BY ADV. SRI.TONY GEORGE KANNANTHANAM R3 BY ADV. SRI.JIJI THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.795/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** ## **P1:- COPY OF THE APPOINTMENT ORDER OF THE 3RD RESPONDENT.** ## **P2:- COPY OF THE PROCEEDINGTS OF THE 3RD RESPONDENT DT.D 1.9.2010.** **P3:- COPY OF THE ORDER OF THE 2ND RESPONDENT DTD. 22.10.2010.** **P4:- COPY OF THE REPRESENTATION SUBMITTED ON 8.11.2010 BEFORE THE IST RESPONDENT.** ## **P5:- COPY OF THE REPLY DTD. 20.4.2011.** **P6:- COPY OF THE ORDER DTD. 12.5.2011 OF THE SECRETARY TO THE GOVERNMENT.** **P7:- COPY OF LETTER DTD. 20.11.2010 FROM THE STATE PUBLIC INFORMATION OFFICER.** **P8:- COPY OF THE LETTER DTD NIL FROM THE PUBLIC INFORMATION OFFICER, DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD.** ## **P9:- COPY OF THE LETTER NO.45129/A1/2010/G.EDN. DTD. 15.9.2010.** ## **RESPONDENT'S EXHIBITS:-** **R3(a):- COPY OF THE APPOINTMENT ORDER DTD. 17.6.2008 ISSUED TO SMT.JEENA JOSE.** **R3(b):- COPY OF THE APPOINTMENT ORDER DTD. 19.6.2008 ISSUED TO SRI. FRANCIS K.K.** **R3(c):- COPY OF THE APPOINTMENT ODER DT.D 7.7.2008 ISSUED TO SMT. NICY M.RAPHAEL.** **R3(d):- COPY OF THE APPOINTMENT ORDER DTD. 3.11.2008 ISSUED TO SMT.AJITH M.R.** **R3(e):- COPY OF THE APPOINTMENT ORDER DTD. 10.6.2009 ISSUED TO SMT. SHALLY T.VARGHESE.** **R3(f):- COPY OF THE APPOINTMENT ORDER DTD. 10.6.2009 ISSUED TO SMT.RENJINI PAUL M.** **R3(g):- COPY OF THE APPOINTMENT ORDER DTD 18.6.09 ISSUED TO SMT.BEENA KURIAKOSE.** **R3(h):- COPY OF THE APPOINTMENT ORDER DTD. 2.11.2009 ISSUED TO SMT.SINI SEBASTIAN.** **tss** ## **W.P.(C) NO.795/2011** **R3(i):- COPY OF THE APPOINTMENT ORDER DTD. 30.12.2009 ISSUED TO SMT. JAI MARY MANJALY.** **R3(j):- COPY OF THE APPOINTMENT ORDER DTD. 4.6.2010 ISSUED TO SMT.JESSY K.JOSE.** **R3(k):- COPY OF THE APPOINTMENT ORDER DTD. 30.6.2010 ISSUED TO SMT. REENA K.F.** **R3(l):- COPY OF THE APPOINTMENT ORDER DTD. 13.6.2008 ISSUED TO SMT. BINDU PETER.** **R3(m):- COPY OF THE APPOINTMENT ORDER DTRD. 25.6.2008 ISSUED TO SMT. ANU DAVIS.** **R3(n):- COP0Y OF THE APPOINTMENT ORDER DTD. 3.6.2009 ISSUED TO SMT. JOSEPHINE SEBASTIAN.** **R3(o):- COPY OF THE APPOINTMENT ORDER DTD. 1.6.2010 ISSUED TO SMT. SINI SEBASTIAN.** **R3(p):- COPY OF THE APPOINTMENT ORDER DTD. 1.6.2010 ISSUED TO SMT. RENJINI PAUL.** **R3(q):-COPY OF THE ORDER NO.B4-7022/10/K.DIS OF THE DEO, CHAVAKKAD DTD. 14.10.2010.** **R3(r):- COPY OF THE DETAILS OF APPROVAL OF TEACHERS.** **//TRUE COPY//** ## **P.A. TO JUDGE** **tss** ## **P.R. RAMACHANDRA MENON, J.** ## **---------------------------------------** ## **W.P.(C). No. 795 of 2011 ---------------------------------------Dated this the 12[th] day of November, 2012** ## **JUDGMENT** Approval of appointment of several person-s who stand juniors to the petitioner is the subject matter of dispute in this writ petition. 2. The petitioner was appointed as H.S.A in the 3[rd] respondent School on 12.6.2008 and the probation was declared as per Ext.P2 order dated 1.9.2010. However, the salary payable to six teachers including the petitioner came to be withheld as per Ext.P3. Being aggrieved of the said proceedings, the petitioner preferred Ext.P4 representation. But, as per Ext.P5 dated 20.4.2011, the claim of the petitioner was rejected. It also remains a fact that, as per Ext.P6 order dated 12.5.2011 passed by the additional 4[th] respondent, Ext.P3 order passed by the DEO came to the stayed, except in the case of the petitioner. According to the petitioner, all the remaining 5 persons were much juniors to the petitioner and there was absolutely no rhyme or reason to show discrimination to the petitioner. W.P.C. No. 795 of 2011 -2- 3. It is the case of the petitioner that, there was no undeployed protected teacher available in the Educational District and that no list of such teacher was ever furnished by the Educational Officer or the 3[rd] respondent Manager. This being the position, the course pursued by the 3[rd] respondent Manager in appointing the persons concerned including the petitioner cannot be found fault with; submits the learned counsel for the petitioner. 4. Despite the pendency of the matter for more than one year, no counter affidavit has been filed by the Departmental Authorities/State. The 3[rd] respondent/Manager has filed a counter affidavit and also an additional counter affidavit referring to the actual facts and figures. It has been asserted in paragraph '8' of the additional counter affidavit that, appointments of 11 H.S.As. made after the appointment of petitioner in the very same school stand approved as borne by Exts. R3(a) to R3(k). It is stated in the next paragraph that, appointment of 'six' Physical Science H.S.As made under various schools belonging to the Corporate Management after the appointment of petitioner, also W.P.C. No. 795 of 2011 -3- has been approved by virtue of Exts. R3(l) to R3(q) orders. The 3[rd] respondent adds in paragraphs 10 and 11 that, vacancies that arose in the Schools under the Management were filled up with Rule 43 or 51 A claimants or with those who became excess in their own schools due to staff fixation; that there was no undeployed protected teacher available and that the petitioner was appointed on 12.6.2008 and further that the Educational Authorities has never brought to the notice of the 3[rd] respondent as to the availability of any undeployed protected teacher in the Educational District, when the vacancy arose and appointment was given to the petitioner. 5. The above factual averments in the writ petition as well as in the counter affidavit/additional counter affidavit filed by the 3[rd] respondent have not been controverted by the Departmental Authorities/State so far. It is also brought to the notice of this Court by the learned counsel for the petitioner and also the learned counsel for the 3[rd] respondent that, if no undeployed protected hand is available in the Educational District and the factual position is brought to the notice of the Manager, the W.P.C. No. 795 of 2011 -4- appointment given by the Manager is liable to be approved and it cannot be bad in any circumstance referring to non appointment of any protected teacher. Reliance is sought to be placed on the decision rendered by this Court in **Moosakutty v. District Educational Officer, Wandoor (2009(3) KLT 863)** . The learned counsel for the 3[rd] respondent submits that, the State, after losing the battle in the appeal in similar case, had taken up the matter before the Apex Court, where interference was declined and the SLP was dismissed. Further reliance is sought to be placed on the decision rendered by this Court in **Nadeera** **V. State of Kerala (2011 (3) KLT 790).** The learned counsel for the 3[rd] respondent also brought to the notice of this Court that, approval of the appointments have already been made in respect of the teachers appointed in the schools belonged to the Corporate Management as borne by Ext.R3(r), wherein a total of about 'sixty one' teachers are enlisted and that all of them were appointed after the appointment given to the petitioner on 12.6.2008. In the above circumstance, this Court finds that, the W.P.C. No. 795 of 2011 -5- petitioner is entitled to succeed. Accordingly, the impugned orders Exts. P3, P5 and P6 are set aside and the respondents are directed to pass appropriate orders to approve the appointment of the petitioner with effect from 12.6.2008 and to grant all consequential benefits flowing therefrom. The proceedings shall be finalized and disbursement shall be effected at the earliest, at any rate, within 'three months' from the date of receipt of a copy of this judgment. Writ petition is allowed. No cost. **P.R. RAMACHANDRA MENON, JUDGE.** Kp/-