Jeena Jose v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 27TH DAY OF NOVEMBER 2017/6TH AGRAHAYANA, 1939** ## **WP(C).No. 23145 of 2015 (P) --------------------------** ## **PETITIONER(S):** ## **-------------** **JEENA JOSE, AGED 38 YEARS D/O.JOSE, DRAWING TEACHER, ST.JOSEPH'S GIRLS HIGH SCHOOL, MUNDAKAYAM, KOTTAYAM DISTRICT, PIN-686 513, RESIDING AT PANTHALLOORPARAMBIL, PUNCHAVAYAL(P.O), KOTTAYAM DISTRICT, PIN-686 513.** ## **BY ADVS.SRI.K.ABDUL JAWAD SRI.MATHEW A KUZHALANADAN SMT.V.K.ANJU** ## **RESPONDENT(S):** ## **--------------** ## **1. THE STATE OF KERALA** - **REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM, PIN-695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695 001.** **3. THE DEPUTY DIRECTOR OF EDUCATION KOTTAYAM-686 001.** **4. THE DISTRICT EDUCATIONAL OFFICER KANJIRAPPALLY, KOTTAYAM DISTRICT-686 001.** **5. THE CORPORATE EDUCATIONAL AGENCY OF SCHOOLS DIOCESE OF VIJAYAPURAM, VIJAYAPURAM BISHOP'S HOUSE, KOTTAYAM, PIN-686 001.** ## **6. THE HEADMASTER** **ST.JOSEPH'S GIRLS HIGH SCHOOL, MUNDAKAYAM, KOTTAYAM DISTRICT, PIN-686 513.** ***The name and address of the 4[th] respondent is corrected by inserting the words “The District Educational Officer, Kottayam” in place of the words The District Educational Officer, Kanjirappally as per the order dated 10.01.2018 in I.A No.59/2018.** **sd/Assistant Registrar** **R5,R6 BY ADV. SRI.V.M.KURIAN R1-R4 BY ADV. GOVERNMENT PLEADER SRI. E.S ASHRAF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 23145 of 2015 (P)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **P1-TRUE COPY OF THE APPOINTMENT ORDER DTD. 28.11.2005.** **P2- TRUE COPY OF THE PROCEEDINGS BY ORDER NO.B4/4541/10/K.DIS. DATED 2.7.2010 OF THE 3RD RESPONDENT.** **P3- TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 19.11.2011.** **P4- TRUE COPY OF THE ORDER NO.B4/11047/11/KDis. DTD. 10.01.2012 ISSUED BY THE 3RD RESPONDENT.** **P5- TRUE COPY OF THE ORDER NO.B4/12390/2009 DTD. 17.09.2009 ISSUED BY THE 3RD RESPONDENT.** **P6- TRUE COPY OF THE ORDER NO.ET(2)47819/09/DPI/K.Dis, ISSUED BY THE 2ND RESPONDENT, DTD. 05.10.2009.** **P7- TRUE COPY OF THE PETITION DTD. 5.6.2013 SUBMITTED BY THE PETITIONER.** **P8- TRUE COPY OF THE ORDER NO.38015/K3/2003/G.EDN. DTD. 28.10.2013.** **P9- TRUE COPY OF THE G.O.(P) NO.10/10 G.EDN. DTD. 12.01.2010.** ## **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------** ## **//TRUE COPY//** ## **PA TO JUDGE** **sab** ## **ANU SIVARAMAN, J. -------------------------------------------------W.P.(C) No.23145 OF 2015** **--------------------------------------Dated this the 27[th] day of November, 2017** ## **J U D G M E N T** ## The prayers in this writ petition are as follows: “i. To call for the records leading to Exhibits-P5, P6 and P8 and to quash them and other proceeding and consequential orders, if any, by issuing a writ of certiorari; ii. To declare that the petitioner is entitled to approval of service from 2008-2009 onwards and to get consequential benefits; iii. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 3 to pass orders of approval of service of the petitioner for the period 2008-2009, 2009-2010 and 2010-2011 and to disburse all service benefits including arrears of salary to the petitioner forthwith; iv. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 3 to count the services of the petitioner for the period 2006-2007 along with the services of 2008-2011 for all service benefits; v. To declare that the petitioner is entitled to get salary for the period 2007-2008 and thereby order to pay the said salary to the petitioner, already recovered from her;” 2. The petitioner contends that she was appointed as Drawing Teacher in the High School section of the St. Joseph's Girls High School, Mundakayam with effect from 28.11.2005. The said appointment was duly approved. However, it is stated that in respect of the staff fixation for the year 2008-09, there was a division fall and W.P.(C) No.23145 OF 2015 2 consequential reduction of a post of Drawing Teacher in the St. Joseph's Convent Girls High School, Kottayam under the same Educational Agency. Since the teacher working in the St. Joseph's Convent Girls High School, Kottayam was a senior hand, her lien was shifted to the St. Joseph's Girls High School, Mundakayam and the petitioner's appointment was terminated for want of vacancy. However, it is contended that thereafter, for the year 2008-2009 onwards one vacancy of Drawing Teacher, High school arose in the St. Joseph's Convent Girls High School, Kottayam. The said vacancy was available for the subsequent years as well. The petitioner contends that she was entitled for reappointment and approval of her appointment for the academic year 2008-09 onwards. However, though the Manager had appointed her as Drawing Teacher against the vacancy available in the St. Joseph's Convent Girls High School, Kottayam from the academic year 2008-09, the said appointment was not approved on the ground that there was a ban on appointments. It was later contended by the DEO that the appointment of the petitioner could be approved only on the Corporate Manager submitting an undertaking as provided in the Government Order dated 12.1.2010. W.P.(C) No.23145 OF 2015 3 Though the matter was taken in appeal and revision by the Manager, the same were rejected by Ext.P8 order dated 28.10.2013. The Government informed the petitioner as follows: “During 2007-08 there were no post of Drawing Teacher in the school and hence there was no scope for any appointment during the year. During 2008-09 and 2009-2010 there was sufficient strength and period for sanctioning the Drawing Teacher. But then it was not sanctioned due to the ban of appointment vide G.O (P) No.317/2005, dated 17.8.2005. During 2010-2011 the post was sanctioned with direction to make appointment as per the condition stipulated in G.O (P) No.10/2010 dated 12/01/2010. But the Manager did not take any steps accordingly. Since the G.O.(P) NO.10/10/G.Edn, dated 12/01/2010 was in force upto 01/10/2011, and the Manager had not submitted the bond as per G.O.(P) No.10/10/G.Edn, your request for approval of appointment from 01/06/2008 cannot be considered and is therefore rejected.” 2. The petitioner contends that since it is not in dispute that there was a post of Drawing Teacher available in the school from 2008-09, the petitioner's appointment against the post should have been approved. The learned counsel for the petitioner relies on the decision of the Division Bench of this Court in W.A No.2290 of 2015 to contend that even in cases where the Management did not execute a bond as stipulated in Government Order dated 12.01.2010, the department should proceed as though the Manager had executed the bond. It was stated that the teachers who had been appointed in available vacancies W.P.(C) No.23145 OF 2015 4 should not be made to suffer due to the refusal of the Managers to execute bonds. It is stated that in several decisions of this Court had directed the approval of appointment in similar cases. With regard to prayer Nos.4 and 5, it is contended by learned counsel for the petitioner that the issue is covered by the decision of this Court reported in **Muhammed Kunhi v. State of Kerala (2011 (3) KLT 147)** . The learned counsel for the petitioner also relies on the decision of this Court in **Usuvathunnisa v. Asst. Educational Officer (1990 (2) KLT 530).** 3. A counter affidavit has been filed on behalf of the 3[rd] respondent contending that the Manager had not executed the bond to the effect that protected teachers would be appointed in terms of G.O.(P) No.10/10/G.Edn dated 12.01.2010 and therefore the petitioner's appointment as Drawing Teacher from the academic year 2008-09 could not be approved. 4. The learned counsel appearing for the 5[th] respondent, Manager would contend that the issue of execution of bond in terms of G.O.(P) No.10/10/G.Edn dated 12.01.2010 is pending before the Apex Court in an S.L.P and the very question whether such a bond should be insisted W.P.(C) No.23145 OF 2015 5 upon is still hanging fire. It is contended that since the petitioner in the writ petition was appointed against a clear sanctioned vacancy, the said appointment should be approved without insisting as the bond. 5. I have considered the contentions advanced. As regards the question of approval of appointment of the petitioner with effect from 2008-2009 onwards, I am of the opinion that the petitioner who had been appointed against a regular vacancy is entitled for approval of appointment going by the decisions of this Court which are relied on by the learned counsel for the petitioner. The petitioner cannot be denied the benefit of approval for the sole reason that the Manager had refused to execute the bond. In the above view of the matter, I am of the opinion that the appointment of the petitioner as Drawing Teacher from 2008-09 onwards is liable to be approved. 6. In the above view of the matter, the impugned orders are set aside and the 4[th] respondent is directed to approve the appointment of the petitioner as Drawing Teacher in the St. Joseph's Convent High School, Kottayam from the academic year 2008-09 onwards. Orders in this regard shall be passed by the 4[th] respondent within a period W.P.(C) No.23145 OF 2015 6 of two months from the date of receipt of a copy of this judgment. Consequential benefits shall be calculated and disbursed to the petitioner within a further period of two months thereafter. With regard to the claim of the petitioner that she is entitled to count the period of interruption of service also towards pensionary benefits, it is for the petitioner to take up the issue with the Government. If the petitioner makes a representation pointing out her grievances in this regard with all materials she seeks to rely on, the said request shall be taken up by the Government and considered in accordance with law. The writ petition is disposed of accordingly. Sd/- **ANU SIVARAMAN JUDGE** sab