Hareesh S.R. and Renjish K.S. v. State of Kerala and Others (WP(C). Nos. 955 & 962 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940** ## **WP(C).No. 955 of 2019** ## **PETITIONER/S:** **HAREESH S.R., AGED 40 YEARS S/O.P.N.SIVASANKARA PILLA, RADHA VIHAR, ADAYAMON P.O., THATTATHUMALA, THIRUVANANTHAPURAM, PIN-695614.** **BY ADVS. SRI.K.SHIBILI NAHA SMT.A.LOWSY** ## **RESPONDENT/S:** ||**1**|**STATE OF KERALA,**| |---|---|---| |||**REPRESENTED BY SECRETARY,**| |||**GENERAL EDUCATION DEPARTMENT,**| |||**THIRUVANANTHAPURAM - 695001.**| ||**2**|**DIRECTOR OF PUBLIC INSTRUCTIONS,**| |||**THIRUVANANTHAPURAM - 695001.**| ||**3**|**DEPUTY DIRECTOR OF EDUCATION,**| |||**THIRUVANANTHAPURAM – 695001.**| ||**4**|**DISTRICT EDUCATIONAL OFFICER,**| |||**ATTINGAL – 695 001.**| ||**5**|**MANAGER,**| |||**SSPB HIGH SCHOOL, KADAKKAVUR,**| |||**THIRUVANANTHAPURAM, PIN – 695 306.**| ||**6**|**SREELA R.V.,**| |||**KARTHIKA, ANDOORKONAM, POTHENCODE,**| |||**THIRUVANANTHAPURAM.**| |*****|**ADDL.R7 **|**RAHUL.S,**| |||**AGED 34 YEARS,**| |||**S/O.R.SADASIVAN NAIR,**| |||**'SAGARA', PUNNAMOODU,**| |||**VARKKALA, PIN – 695 141,**| |||**THIRUVANANTHAPURAM DISTRICT.**| **WP(C).Nos. 955 & 962 of 2019** **2** *** ADDL.R7 IMPLEADED AS PER ORDER DT.05.02.2019 IN I.A.NO.1/19 IN W.P.(C) 955/19.** **BY ADVS. SRI.V.A.MUHAMMED SRI.T.V.AJAYAKUMAR SRI.M.SAJJAD SRI.B.UNNIKRISHNA KAIMAL, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.03.2019, ALONG WITH WP(C).962/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos. 955 & 962 of 2019** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940** **WP(C).No. 962 of 2019** ## **PETITIONER/S:** **RENJISH K.S., AGED 42 YEARS S/O.S.KRISHNANKUTTY NAIR, SREESAILAM, ADAYAMON P.O., THATTATHUMALA, THIRUVANANTHAPURAM, PIN-695614.** **BY ADVS. SRI.K.SHIBILI NAHA SMT.A.LOWSY** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY,**| ||**GENERAL EDUCATION DEPARTMENT,**| ||**THIRUVANANTHAPURAM. PIN-695 001.**| |**2**|**DIRECTOR OF PUBLIC INSTRUCTIONS,**| ||**THIRUVANANTHAPURAM. PIN-695 001.**| |**3**|**DEPUTY DIRECTOR OF EDUCATION,**| ||**THIRUVANANTHAPURAM. PIN-695 001.**| |**4**|**DISTRICT EDUCATIONAL OFFICER,**| ||**ATTINGAL. PIN-695 001.**| |**5**|**MANAGER,**| ||**SSPB HIGH SCHOOL, KADAKKAVUR,**| ||**THIRUVANANTHAPURAM, PIN-695306.**| |**6**|**SREELA R.V.,**| ||**KARTHIKA, ANDOORKONAM, POTHENCODE,**| ||**THIRUVANANTHAPURAM. PIN-695 001.**| **WP(C).Nos. 955 & 962 of 2019** **4** *** ADDL.R7 RAHUL.S, AGED 34 YEARS, S/O.R.SADASIVAN NAIR, 'SAGARA', PUNNAMOODU, VARKKALA, PIN – 695 141, THIRUVANANTHAPURAM DISTRICT.** *** ADDL.R7 IMPLEADED AS PER ORDER DT.13.02.2019 IN I.A.NO.1/19 IN W.P.(C) 962/19.** **BY ADVS. SRI.T.V.AJAYAKUMAR SRI.B.UNNIKRISHNA KAIMAL, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.03.2019, ALONG WITH WP(C).955/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).Nos. 955 & 962 of 2019** **5** ## **JUDGMENT** **Petitioners in both these writ petitions are aggrieved by Ext.P13 order passed by the Government on the Revision Petitions filed by the Manager as well as teachers appointed in the 5[th] respondent School.** **2. Petitioners in both these writ petitions were appointed as UPSAs in the 5[th] respondent School. Even though they claim that their appointments were made in the year 2012 and that they have been working as UPSAs from 2012 onwards, the orders of their appointments which are marked as Ext.P1 in either of these writ petitions were issued only on 31.07.2013. Both these appointments were made against vacancies which arose on promotion of HSA (Malayalam).** **3. When proposals for approval of** **appointments were re-submitted, appointment of Hareesh S.R, was stated to have been made against the vacancy which arose on promotion of** **WP(C).Nos. 955 & 962 of 2019** **6** **Sreedeviamma and in the case of Renjish K.S, it was stated to be against the promotion vacancy of Jayasankar.G. Petitioners have produced an attendance register. According to petitioners the Manager has got their attendance marked in the attendance register from 2012 onwards and their signatures in this register would prove that they had been working from 2012 onwards.** **4. However, the Manager has issued orders of appointment only in the year 2013. The Manager had submitted the proposal for approval subsequent to Government Order issued on 29.01.2016. The DEO rejected/returned the proposal for approval stating that there is no established vacancy. The Manager took up the matter in appeal in respect of 18 such appointments.** **5. The Deputy Director of Education rejected the appeal filed against denial of approval to 18 appointments made by the Manager, as per Ext.P3 order passed on 11.07.2017. This order refers to** **WP(C).Nos. 955 & 962 of 2019** **7** **the Staff Fixation made in the School from 201112 onwards. The Deputy Director of Education has referred to the 36 proposals received from the Manager during the period from 2011-12 to 2015-16 out of which approval was granted in respect of 3; approval was declined as against 22 appointments, against which Manager preferred appeal in respect of 18 appointments; proceedings were pending in respect of 11 appointments. The Deputy Director had also noticed that the separate attendance registers are maintained in the School, with 54 teachers marking their attendance in one register and 25 unapproved teachers marking attendance in another register. Based on this, explanation was called for from the Headmaster. The DDE found that the promotion of Jayasankar as well as that of Sreedeviamma as HSA were yet to be approved. Therefore appeal with respect to petitioners' appointments were rejected. Taking note of the report of the DEO that there was large scale bogus admissions, the** **WP(C).Nos. 955 & 962 of 2019** **8** **DDE directed the DEO to review the staff fixation orders for the years 2012-13 to 2015-16 and thereafter to consider the proposal for approval.** **6. The DEO revised the Staff Fixation as per Ext.P6 proceedings on 11.08.2017, on the basis of Ext.P3 order, in which one post of UPSA was reduced. On the basis of revised staff fixation proceedings the Government had as per order dated 18.07.2018 (Ext.P10) order rejected the claim of the petitioners for approval.** **7. However on appeal against the revised staff fixation, DPI, found that the original staff fixation orders issued on 26.04.2016 were correct and issued Ext.P11 order on 11.09.2018, cancelling Ext.P6 revised Staff Fixation proceedings and restoring the earlier orders.** **8. Pointing out that the 2 additional posts of UPSA and additional posts of HSA sanctioned in Ext.P4 Staff Fixation proceedings for the year 2012-13 issued on 26.04.2016, which continued without change in Ext.P5 Staff Fixation for the** **WP(C).Nos. 955 & 962 of 2019** **9** **year 2013-14, petitioners filed W.P.(C) No.21463 of 2018 claiming approval in the light of the original Staff Fixation orders. In view of the cancellation of revised Staff Fixation subsequent to the order of Government, this court set aside Ext.P10 order of Government and directed the Government to pass fresh orders after hearing all concerned in the light of the DPI's order. Government passed Ext.P13 order rejecting their request as it was found that the vacancies against which the petitioners appointments were made were yet to be established. Government found the discrepancies in the proposal submitted for approval each time, as to the nature of vacancies against which appointments were made. It was also found that several appointments were made against the very same vacancies; approval was yet to be made against appointments made in 2012-13.** **9. It was found that Ms.Deepa Ravindran, Bindu Lakshmi J.J and Sreela R.V were eligible for approval as against the posts available in** **WP(C).Nos. 955 & 962 of 2019** **10** **2012-13. Ms.Sreela R.V and Rahul.S, had requested that they may be considered against the vacancies which arose after 2012-13. In the case of Smt.Asha Rani also, it was found that her appointment can be approved as and when the promotion of Smt.Jayalakshmi was approved. In the case of the petitioners in both these writ petitions, it was found that sufficient number of posts were not available.** **10. The contention raised by the petitioners in these writ petitions is that there were already 15 persons on the roll at the time of the appointment of the 6[th] respondent. Therefore, as there were only 18 posts, 3 more appointments alone would have been admissible. Petitioners claim that in case the 6[th] respondent is granted approval, there would be 19 appointments/teachers against 18 posts.** **11. The 6[th] respondent has filed a counter affidavit stating that his appointment was in 2012-13 and petitioners who were appointed only** **WP(C).Nos. 955 & 962 of 2019** **11** **in 2013, as evident from Ext.P8 order of appointment, cannot have any claim as against his appointment in 2012.** **12. The additional 7[th] respondent Sri.Rahul.S, has got impleaded in the writ petition. According to him, he was appointed in the year 2012 and is entitled to approval as against one of the vacancies.** **13. The petitioners are challenging Ext.P13 order on the ground that the approval, if granted to the respondent no.6, would result in excess number of teachers than the 18 numbers of sanctioned posts. Petitioners also claimed that Government did not consider their claim as against the vacancies which arose on promotion of UPSAs as HSA Malayalam as in the case of Smt. Sreedeviamma, against which they were appointed.** **14. From the documents produced by the petitioners, it is evident that their appointments were made only in the year 2013. Even though the attendance register has been** **WP(C).Nos. 955 & 962 of 2019** **12** **produced, where they have been marking their attendance from 2012 onwards, the petitioners have not even substantiated their claim or even pointed out the vacancies against which they could have been appointed. The only order they have produced is Ext.P1 in both cases, in which they are stated to have been appointed against promotion vacancies which arose in 2013. At the same time, the 6[th] respondent as well as the additional 7[th] respondent claimed that they were appointed in the year 2012.** **15. The 6[th] respondent was appointed as per Ext.R6(a) order dated 16.07.2012. Going by the dates of orders of appointment issued, the petitioners would have a claim only after appointment /approval is granted to respondents 6 and 7.** **16. As rightly pointed out by the learned counsel for the 6[th] respondent relying on Ext.R6(b) judgment dated 21.12.2009 in W.P.(C) No.35993/2008, a person who was appointed at** **WP(C).Nos. 955 & 962 of 2019** **13** **earlier point of time is entitled to be considered for approval in preference to those appointed later.** **17. The petitioners have got a contention that since they were appointed against regular vacancies their appointments were liable to be approved in preference to those appointments made against additional vacancies. But no provision is seen for giving any such preference to the appointments made against promotion vacancies. The Manager ought to have made appointments and placed the proposal for approval in the order in which appointments were made, in tune with the dicta in the judgment of the Division Bench of this Court in** _**Geetha.S v. Geo Thomas.K and Others**_ **: 2009 (4) KLT 296, which was followed in the judgment in W.P.(C) No.35993/2008.** **Therefore there is nothing in Ext.P13, which warrants interference by this Court. Petitioners shall be free to raise all their contentions in case there are further vacancies** **WP(C).Nos. 955 & 962 of 2019** **14** **in the School. It is made clear that this judgment shall not stand in the way of considering the case of the petitioners in case there are established vacancies in accordance with the staff fixation.** **Accordingly, these writ petitions are** ## **dismissed.** **Sd/P.V.ASHA JUDGE** WW **WP(C).Nos. 955 & 962 of 2019** **15** ## **APPENDIX OF WP(C) 955/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER ALONG WITH THE LETTER OF THE MANAGER. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 19.10.2016 OF THE 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ORDER NO.B4/24146/2016 DATED 11.7.2017 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. EXHIBIT P4 TRUE COPY OF THE STAFF FIXATION ORDER ISSUED BY THE 4TH RESPONDENT FOR THE ACADEMIC YEAR 2012-13 DATED 26.4.2016. EXHIBIT P5 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE YEAR 2013-14 NO.B2/4268/2015/D. DIS DATED 26.4.2016. EXHIBIT P6 TRUE COPY OF THE REVISED STAFF FIXATION ORDER NO.B2/4690(C)/2017/D. DIS DATED 11.8.2017. EXHIBIT P7 TRUE COPY OF THE REVISION FILED BY THE PETITIONER DATED 10.10.17. EXHIBIT P8 TRUE COPY OF THE REVISION FILED BY THE MANAGER AGAINST EXHIBIT P6 STAFF FIXATION ORDER. EXHIBIT P9 TRUE COPY OF THE RELEVANT EXTRACT OF THE ATTENDANCE REGISTER MAINTAINED IN 5TH RESPONDENT'S SCHOOL. EXHIBIT P10 TRUE COPY OF THE GOVERNMENT ORDER NO.G.O. (P)2705/2018/G.EDN DATED 18.7.2018. EXHIBIT P11 TRUE COPY OF THE ORDER DATED 11.9.2018 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS.** **WP(C).Nos. 955 & 962 of 2019** **16** **EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN W.P. (C)NO.27463/2018 DATED 22.10.18.** **EXHIBIT P13 TRUE COPY OF THE GOVERNMENT ORDER G.O.(P) NO.5445/2018/G.EDN DATED 27.12.2018. EXHIBIT P14 TRUE COPY OF THE STAFF STATEMENT FOR THE ACADEMIC YEAR 2012-13.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R-6(A) TRUE COPY OF THE APPOINTMENT ORDER OF THE 6TH RESPONDENT DATED 16.07.2012. EXHIBIT R-6(B) TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.35993/2008 DATED 21.12.2009. EXHIBIT R-6(C) TRUE COPY OF THE ORDER NO.EM 1-9869/08/ DPI/K.DIS. DATED 22.04.2008 OF THE DIRECTOR.** **WP(C).Nos. 955 & 962 of 2019** **17** ## **APPENDIX OF WP(C) 962/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER ALONG WITH THE LETTER OF THE MANAGER.** **EXHIBIT P2 TRUE COPY OF THE REJECTION ORDER OF THE D.E.O. ATTINGAL DATED 25.10.2016.** **EXHIBIT P3 TRUE COPY OF THE ORDER NO.B4/24146/2016 DATED 11.7.2017 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. EXHIBIT P4 TRUE COPY OF THE STAFF FIXATION ORDER ISSUED BY THE 4TH RESPONDENT FOR THE ACADEMIC YEAR 2012-13 DATED 26.4.2016. EXHIBIT P5 TRUE COPY OF THE STAFF FIXATION ORDER FOR THE YEAR 2013-14 BEARING NO.B2/4268/2015/D. DIS DATED 26.4.2016. EXHIBIT P6 TRUE COPY OF THE REVISED STAFF FIXATION ORDER NO.B2/4690(C)/2017/D. DIS DATED 11.8.2017. EXHIBIT P7 TRUE COPY OF THE REVISION FILED BY THE PETITIONER. EXHIBIT P8 TRUE COPY OF THE REVISION FILED BY THE MANAGER AGAINST EXHIBIT P6 STAFF FIXATION ORDER. EXHIBIT P9 TRUE COPY OF THE RELEVANT EXTRACT OF THE ATTENDANCE REGISTER MAINTAINED IN 5TH RESPONDENT'S SCHOOL. EXHIBIT P10 TRUE COPY OF THE GOVERNMENT ORDER NO. G.O. (P) 2705/2018/G.EDN. DATED 18.7.2018. EXHIBIT P11 TRUE COPY OF THE ORDER DATED 11.9.2018 ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS.** **WP(C).Nos. 955 & 962 of 2019** ## **18** **EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.27463/2018.** **EXHIBIT P13 TRUE COPY OF THE GOVERNMENT ORDER G.O. (P) NO.5445/2018/G.EDN. DATED 27.12.2018. EXHIBIT P14 TRUE COPY OF THE STAFF STATEMENT OF THE ACADEMIC YEAR 2012-13.** **RESPONDENT'S/S EXHIBITS: EXHIBIT R-6(A) TRUE COPY OF THE APPOINTMENT ORDER OF THE 6TH RESPONDENT DATED 16.07.2012. EXHIBIT R-6(B) TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.35993/2008 DATED 21.12.2009. EXHIBIT R-6(C) TRUE COPY OF THE ORDER NO.EM 1-9869/08/ DPI/K.DIS. DATED 22.04.2008 OF THE DIRECTOR.**