JIKSY JOSE CHOONDAL v. STATE OF KERALA AND OTHERS

## **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. 21312 of 2016 (L)** **----------------------------** **PETITIONER(S): -------------** **JIKSY JOSE CHOONDAL, UPPER PRIMARY SCHOOL ASSISTANT, ST.FRANCIS HIGH SCHOOL FOR GIRLS, MATTOM P.O., THRISSUR DISTRICT.** **BY ADVS.SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN** **RESPONDENT(S):** **--------------** **1.STATE OF KERALA,** **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2.THE DIRECTOR OF PUBLIC INSTRUCTIONS, DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM 695 014.** - **3.THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR 680 506.** **4.THE MANAGER, ST.FRANCIC HIGH SCHOOL FOR GIRLS, MATTOM, THRISSUR 680 602.** **R1-R3 BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL** **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. 21312 of 2016 (L)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 13.6.2007 ISSUED TO THE PETITIONER** - **P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 3/6/2008 ISSUED TO THE PETITIONER** - **P3 TRUE COPY OF THE ORDER NO.D.DIS/6524/07/RA2/DPI DATED 4.2.2008 OF THE 2ND RESPONDENT** - **P4 TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 10.03.2015** - **P5 TRUE COPY OF THE GOVERNMENT ORDER NO.GO(RT) NO.5020/2015/G.EDN DATED 21.10.2015** - **P6 TRUE COPY OF THE ORDER NO.B6/5740/15/K.DIS DATED 18.1.2016 OF THE 3RD RESPONDENT** - **P7 TRUE COPY OF THE STAFF FIXATION ORDER NO.D.DIS B64436/06 DATED 25.11.2006 FOR THE PERIOD 2006-2007** - **P8 TRUE COPY OF THE STAFF FIXATION ORDER NO. D.DIS B65002/2007 DATED 31.7.2007 FOR THE PERIOD 2007-2008** **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** **TRUE COPY** **P.S. TO JUDGE** ## **EL** ## **P.V.ASHA, J.** ## **--------------------------------------------W.P.(C). No. 21312 of 2016 ----------------------------------------------** Dated this the 28[th] day of June, 2017 ## **JUDGMENT** The petitioner, who is working as UPSA in an aided School under the 4[th] respondent, was appointed as such as per Exts.P1 order of the Manager on 13.06.2007, in an additional division vacancy. From 03.06.2008 onwards she was shifted to a retirement vacancy, as per Ext P2 order. Her appointment against the retirement vacancy was initially approved on daily wages for the period from 3.6.2008 to 31.03.2009 and on regular scale of pay from 01.06.2009 onwards. Later approval was granted on regular scale of pay from 03.06.2008. This writ petition is filed praying for a direction to the respondents to approve her appointment from 13.06.2007 onwards, while challenging the orders rejecting approval from the initial date of her appointment in Ext P1. 2. The order approving her appointment on regular scale of pay from 3.06.2008 was issued on 18.01.2016, based on the orders passed in her revision petition before the Government. The petitioner claims approval of her appointment from 13.06.2007. **W.P.(C). No. 21312 of 2016** **2** 3. The 3[rd] respondent has filed a counter affidavit saying that the appointment on 13.06.2007 was against additional division vacancy, overlooking the ban on appointments ordered in G.O. (P) No. 317/85/G.Edn dated 17.08.2005 issued by Government. Thereafter Government had by 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 a ratio of 1:1 shall be maintained between the fresh appointees and protected teachers, while filling up the vacancies arising thereafter. The Manager did not execute any bond in this case. 4. However, Government thereafter issued G.O.(P) No.199/11/G.Edn dated 01.10.2011, 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. Accordingly appointment of teachers who were appointed in additional divisional vacancies, were approved with effect from 01.06.2011. 5. The case of the petitioner is that the refusal on the part of Manager to execute a bond cannot be a reason for denying approval and salary. Petitioner points out that there **3** ## **W.P.(C). No. 21312 of 2016** were sufficient number of pupils justifying sanction of additional division, as evident from the staff fixation orders Ext P7 and P8 for the academic years 2006-07 and 2007-08. 6. The 4[th] respondent Manager has not filed any counter affidavit. 7. I have considered the pleadings and contentions on either side. Petitioner was appointed against a vacancy in anticipation of sanctioning of an additional division, at a time when there was a 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 issued G.O.(P) 10/10/G.Edn dated 12.01.2010 lifting 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 Government order, issued on 12.01.2010 was upheld by this Court and the appeals from that were dismissed by the judgment reported in **Nair Service Society v. Government of Kerala [2015(2) KLT 625].** In the meanwhile Government had issued G.O.(P) **W.P.(C). No. 21312 of 2016** **4** 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 who were continuing in additional division vacancies without approval got their appointments approved from 01-06.2011. In the letter no. 60930/J2/11/G.Edn dated 25.10.2011, Government informed the Director of Public Instructions that the government order dated 12.01.2010 and the earlier ban orders ceased to have any effect on issuance of the order dated 01.10.2011 and the question regarding the approval of service prior to 01.6.2011 would be taken on a case to case basis on amendment of KER. Government continue to hold the same view even after about 6 years. 8. It is seen that this Court has in a series of judgments directed approval of appointments made against additional division vacancies and payment of salary for the period prior to 01.06.2011 notwithstanding the non-execution of bond by the Manager. 9. Petitioner was appointed at a time when there was justification for an additional post. At the same time the Manager filled up the vacancy in gross disobedience of the **W.P.(C). No. 21312 of 2016** **5** orders issued by Government. As per the provisions contained in Rule 1 of Chapter XIVA of KER, vacancies in an school shall be filled up in accordance with the rules as well as the orders issued by Government. In June 2007, the ban order issued on 17.08.2005 was in force and the Manager ought not have filled up the vacancy which arose on account of additional division. Again when the Government lifted the ban conditionally, by issuing order on 12.1.2010, the Manager ought to have executed the bond agreeing to fill up equal number of vacancies by appointing protected teachers. The Manager did not even challenge the order. The Government order issued on 12.01.2010 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 **6** ## **W.P.(C). No. 21312 of 2016** 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. 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. 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 **W.P.(C). No. 21312 of 2016** **7** enforce 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 submit that 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 30.06 2011 should not be recognised for any purpose. The Government have been stating that a general decision would be taken in the matter. 15. In view of the fact that several of these judgments are already implemented and several similarly situated teachers got approval and payment of salary towards the preJune 2011 service in additional division vacancies, despite the adamant stand of the Managers in making appointment during the ban period and in not executing the bond, I am of the considered view that there is no reason why the petitioner in this case should be subjected to a different treatment. Even according to Government the question relating to the service rendered by these teachers for the period prior to 01.06.2011 **W.P.(C). No. 21312 of 2016** **8** would be considered when a general decision is taken by Government. 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 Rule 1 of Chapter XIVA of KER, it is open for the official respondents to take action against the Manager for the disobedience, in accordance with the provisions in chapter III Rule 7 and also to enforce the conditions in the bond or to get the loss caused to Government on account of that, recouped by him. In this case the Manager has not entered appearance, so far; he has not filed any counter affidavit also. In these circumstances, it is declared that the denial of approval to petitioner's appointment from 13.06.2007 is unsustainable. There shall be a direction to the 3[rd] respondent to issue revised orders approving the appointment of the petitioner with effect from 13.06.2007, the date of her initial appointment in Ext.P1 and to re-fix her pay based on such revised approval and to grant her all benefits consequent to that and to disburse the arrears of pay due to her, accordingly, within a period of three months from the date of receipt of a **9** ## **W.P.(C). No. 21312 of 2016** copy of this judgment. The Writ Petition is allowed as above. Sd/- **P.V.ASHA, Judge** lsn