Haridasan M. and Pramod S. v. The Manager, Sabari Charitable Trust Schools; Assistant Educational Officer, Kuzhalmannam; District Educational Officer, Palakkad; Director of Public Instructions, Thiruvananthapuram; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 28TH DAY OF JUNE 2017/7TH ASHADHA, 1939** **WP(C).No. 34935 of 2016 (N) ----------------------------** ## **PETITIONER(S)/PETITIONERS:** **-------------------------** **1. HARIDASAN M., AGED 41 YEARS, S/O.MUTHU, UPPER PRIMARY SCHOOL ASSISTANT,S ABARI VALOOR LAKSHAMANAN NAIR MEMORIAL UPPER PRIMARY SCHOOL, VILAYAN CHATHANNOOR, VILAYANNOOR POST, THENKURISSY, PALAKKAD DISTRICT.** **2. PRAMOD.S,AGED 35 YEARS, S/O SUNDARAN PILLAI, LOWER PRIMARY SCHOOL ASSISTANT, SABARI VALOOR LAKSHMANAN NAIR MEMORIAL UPPER PRIMARY SCHOOL, VILAYAN CHATHANNOOR, VILAYANNOOR POST, THENKURISSY, PALAKKAD DISTRICT.** ## **BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** - **1.THE MANAGER, SABARI CHARITABLE TRUST SCHOOLS, SRIKAMAL,COMMONWEALTH ENCLAVE, OLAVAKKKODE,PALAKKAD.2.** - **2.THE ASSISTANT EDUCATIONAL OFFICER, KUZHALMANNOM.** - **3.THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD.** - **4.THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **EL** **WP(C).No. 34935 of 2016 (N)** **----------------------------** - **5.STATE OF KERALA,** **REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **R2-R5 BY SR.GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.05.2017, THE COURT ON 28.06.2017 DELIVERED THE FOLLOWING:** **EL** ## **WP(C).No. 34935 of 2016 (N)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 1ST PETITIONER** **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 2ND PETITIONER EXHIBIT P3 TRUE COPY OF THE CONSOLIDATED STAFF FIXATION ORDER 2011 FOR THE ACADEMIC YEARS 2006-07 TO 2010-11 PASSED BY THE ASSISTANT EDUCATIONAL OFFICER DATED 23.12.2011** - **EXHIBIT P4 TRUE COPY OF ORDER OF THE ASSISTANT EDUCATIONAL OFFICER,KUZHALMANNAM DATED 6.1.2007** - **EXHIBIT P5 TRUE COPY OF ORDER DATED 11.1.2007 OF THE ASSISTANT EDUCATION OFFICER,KUZHALMANNAM** - **EXHIBIT P6 TRUE COPY OF ORDER OF THE DISTRICT EDUCATIONAL OFFICER,PALAKKAD DATED 30.6.2007** - **EXHIBIT P7 TRUE COPY OF THE ORDER OF THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD DATED 19.6.2007** - **EXHIBIT P8 TRUE COPY OF ORDER OF THE DIRECTOR OF PUBLIC INSTRUCTION DATED 3.10.2007** - **EXHIBIT P9 TRUE COPY OF THE GOVERNMENT ORDER,G.O.(P) 10/10/G.EDN DATED 12.1.2010** - **EXHIBIT P10 TRUE COPY OF GOVERNMENT CIRCULAR DATED 25.10.2011** - **EXHIBIT P11 TRUE COPY OF GOVERNMENT CIRCULAR DATED 10.4.2012** - **EXHIBIT P12 TRUE COPY OF JUDGMENT IN W.P.(C)9262/12** - **EXHIBIT P13 TRUE COPY OF THE GO(RT)NO.3337/16/G.EDN. DATED 7/10/2016.** **RESPONDENT(S)' EXHIBITS ----------------------NIL TRUE COPY** **P.S. TO JUDGE** **EL** ## **P.V.ASHA, J.** **--------------------------------------------W.P.(C). No. 34935 of 2016 ----------------------------------------------** Dated this the 28[th] day of June, 2017 ## **JUDGMENT** The petitioners who are working as UPSA and LPSA respectively in Sabari Valoor Lakshmanan Nair Memorial Upper Primary School, were appointed in the respective posts as per Exts.P1 and P2 orders of the Manager on 12.06.2006 and 13.06.2006 respectively. Their appointments were approved only with effect from 01.06.2011 as evident from the endorsement in Exts.P1 and P2 respectively. The writ petition is filed challenging Ext P13 order rejecting their claim for approval from the date of their appointment and seeking directions for approval from the date of their initial appointments from 12.06.2006 and 13.06.2006 respectively and for payment of salary for the period up to 31.05.2011. The petitioners had approached the educational authorities seeking payment of salary which ultimately culminated in Ext.P13 Government Order rejecting their requests. 2. In Ext.P13, the Government, while upholding the orders passed by the educational authorities, found that when petitioners were appointed in June 2006, there was a **W.P.(C). No. 34935 of 2016** **2** ban on appointments against the filling up of additional division vacancies, ordered in G.O. (P) No. 317/85/G.Edn dated 17.8.2005 by Government. Thereafter Government had by Ext P9 order- G.O.(P) 10/10/G.Edn dated 12.01.2010 lifted the ban on condition that the Managers of these Schools shall execute a bond agreeing to accommodate equal number of protected teachers against future vacancies and thereafter to maintain a ratio of 1:1 between the fresh appointees and protected teachers, while filling up the vacancies arising thereafter. The Manager did not execute any bond; he filed a writ petition challenging the Government order issued on 12.01.2010. The writ petition as well as the writ appeals filed by the Managers were dismissed, upholding the power of Government to impose ban and conditions to lift the ban. 3. However, Government thereafter issued G.O.(P) No.199/11/G.Edn dated 01.10.2011, introducing teachers' package and directing approval of appointments of the teachers who were continuing without salary, protected hands, etc with effect from 01.06.2011. Accordingly appointment of the petitioners who were appointed in additional divisional vacancies, were approved with effect from 1.06.2011. Now the claim of the petitioners is for approval with effect from 12.06. **W.P.(C). No. 34935 of 2016** **3** 2006 and 13.06.2006. 4. In the revision petition before Government , petitioners relied on the judgment Ext P12, in which this court directed approval of an appointment made, when the ban was in force. But government rejected their revision petition as per Ext.P13 order stating that writ appeal filed against Ext P12 judgment is pending. Petitioners point out that Government had in Ext P10 circular issued on 25.10.2011 made it clear that the Ext P9 government order and the earlier ban orders ceased to have any effect on issuance of the order dated 1.10.2011 and the question regarding the approval of service prior to 1.6.2011 would be taken on a case to case basis on amendment of KER. 5. The respondents have filed a counter affidavit stating that the approval cannot be granted as claimed by them, since the Managers had appointed them contrary to the Government Order banning appointments and the Managers have not executed the bonds as provided in G.O.(P) 10/10/G.Edn dated 12.01.2010. 6. Petitioners rely on Ext.P12 judgment of this court in W.P.C No. 9262/2012, the benefit of which was denied by the Government on the ground that Writ Appeal has been filed. It is pointed out by the learned counsel for the petitioners that **W.P.(C). No. 34935 of 2016** **4** there is no stay of operation of the judgment Ext.P12. 7. The 1[st] respondent Manager has not filed any counter affidavit. 8. I have considered the contentions raised on either side. It is seen that this Court had issued orders directing approval of appointments in the case of similarly situated teachers, notwithstanding the refusal on the part of Managers to execute the bond. 9. Petitioners were appointed at a time when there was justification for sanctioning the respective posts. At the same time the Manager filled up the vacancies in gross disobedience of the orders issued by Government, imposing ban on filling up of vacancies in additional divisions. As per the provisions contained in Rule 1 of Chapter XIVA of KER, the Managers are to fill up the vacancies in an aided school only in accordance with the rules as well as the orders issued by Government from time to time. In June 2006, the ban order issued on 17.08.2005 was in force and Manager ought not have filled up the additional division vacancies. When the Government lifted the ban conditionally, by issuing Ext P9 order, on 12.01.2010, the Managers did not execute any bond agreeing to fill up equal number of vacancies by appointing protected teachers. The **5** ## **W.P.(C). No. 34935 of 2016** Managers of various Schools challenged the order unsuccessfully. Ext P9 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 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 **W.P.(C). No. 34935 of 2016** **6** the petitioners who were continuing in additional division vacancies without approval got their appointments approved from 01-06.2011. Even though the approval was confined to the period from 01.06.2011, Government did not take a decision that the service prior to 01.06.2011 rendered by these teachers cannot be recognised at all. Right from October 2011, they have been consistently adopting the stand that the question regarding that would be decided later. The fact that there were justification for sanctioning the posts for their appointments is not disputed. 10. Now the contention of the learned Counsel for the petitioners that approval is granted to several teachers on the basis of the directions of this court in several cases, requires to be examined. 11. 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 the bond and his obligation to appoint protected teachers is in force. **7** ## **W.P.(C). No. 34935 of 2016** 12. By judgment dated 28.07.2015, another learned Single Judge, taking note of the earlier judgments in the case of similarly situated teachers, directed approval of an appointment made on 4.06.2007 in an additional division vacancy, leaving it open to the educational authorities to enforce the conditions in the bond. 13. 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. 14. The learned Counsel for the petitioners 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 for any purpose. The Government have been stating that a general decision would be taken in the matter. 15. 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 **W.P.(C). No. 34935 of 2016** **8** 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 petitioners in these cases 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 evident from Ext P10 letter 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 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. 16. 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. **9** ## **W.P.(C). No. 34935 of 2016** 17. In these circumstances, Ext.P13 and the orders passed by the respondents to the extent they denied approval to petitioners' appointment for the period prior to 01.06.2011 will stand set aside. There shall be a direction to the 2[nd] respondent to issue revised orders approving the appointments of the petitioners in accordance with their appointments in Exts.P1 and P2 orders and to re-fix their pay based on such revised approval and to grant them all benefits consequent to that and disburse the arrears of pay due to them, accordingly, within a period of four months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- **P.V.ASHA, Judge** lsn