Joji P.D. v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942** **WP(C).No.15988 OF 2013(W)** ## **PETITIONER:** **JOJI P.D., AGED 36 YEARS,** **WIFE OF BIJU KANNATH, LOWER GRADE HINDI TEACHER, ST.ANTONY'S HIGHER SECONDARY SCHOOL, PUDUKKAD, THRISSUR - 680 301.** ## **BY ADV. SRI.V.A.MUHAMMED** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM - 695 014.** - **3 THE DEPUTY DIRECTOR OF EDUCATION THRISSUR AT AYYANTHOLE - 680 003.** - **4 THE DISTRICT EDUCATIONAL OFFICER, IRINJALAKUDA, THRISSUR DISTRICT - 680 121.** - **5 THE ASSISTANT EDUCATIONAL OFFICER, THRISSUR EAST - 680 020.** - **6 THE ASSISTANT EDUCATIONAL OFFICER, KUNNAMKULAM, THRISSUR DISTRICT - 680 503.** - **7 THE ASSISTANT EDUCATIONAL OFFICER, CHERPU, THRISSUR DISTRICT - 680 561.** - **8 THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, ARCHDIOCESE OF THRISSUR, CATHOLIC ARCHBISHOP'S HOUSE, THRISSUR - 680 005.** - **BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (Sr) SRI.TONY GEORGE KANNANTHANAM SRI. P.M.MANOJ - SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.15988 OF 2013(W)** **2** ## **J U D G M E N T** ## **Dated this the 8[th] day of March 2021** The petitioner says that she was appointed as a Lower Grade Hindi Teacher in the “St.Antony's Higher Secondary School”, Thrissur, in a leave vacancy between 27.10.2004 and 31.03.2005, as is evident from Ext.P1 and that the said appointment was approved, as is clear from the endorsements contained therein. 2. The petitioner says that after her approval was so granted on a scale-of-pay basis, the Manager appears to have filed a petition before the Director of Public Instructions, [now designated as Director of General Education (DGE)] to treat her approval only on daily-wage-basis and not on regular basis; but that this was denied, which then made him approach the Government. She says that subsequently, the Government issued Ext.P11 accepting the plea of the Manager, thus converting her approval to be on daily-wage-basis; and therefore, that she has been constrained to come to this Court against the said order. **WP(C).No.15988 OF 2013(W)** **3** 3. The petitioner thereafter, submits that subsequently, she was appointed by the Manager from 07.06.2012 till 31.03.2013 to a regular vacancy, but that this appointment has been denied approval through Ext.P16, saying that the said vacancy is less than a year duration. The petitioner asserts that on account of the affirmative declarations of the Hon'ble Supreme Court in **State of Kerala v. Sneha Cheriyan [2013 (1)** **KLT 755],** Ext.P6 is in error. She thus prays that the same be also set aside. 4. I have heard Sri.M.Sajjad, learned counsel for the petitioner; Sri.Tony George Kannanthanam, learned counsel appearing for the Corporate Manager and the learned Senior Government Pleader, Sri.P.M.Manoj, appearing for the official respondents. 5. Sri.Tony George Kannanthanam, learned counsel appearing for the 8th respondent, submitted that even if the petitioner's contentions against Ext.P11 is accepted by this Court, her second prayer to approve Exts.P2, P14 and P15 appointments, namely from **WP(C).No.15988 OF 2013(W)** **4** 11.01.2008 to 14.02.2008; 13.10.2008 to 05.02.2009 and from 03.11.2011 to 22.11.2011 on regular basis cannot be granted in the light of the Government Orders dated 15.06.2004 and 10.06.2008, as also the amendment to Rule 7A(3) and the first proviso to Rule 51A of Chapter XIVA of the KER and he relies on the judgment in **Sneha Cheriyan** _(supra)_ to contend that after the amendment to Rule 7A(3) of Chapter XIVA of the KER, the period of appointment is less than one academic year, it cannot be approved on regular basis. He added that this is the same position with respect to the appointment of the petitioner from 07.06.2012 which she again contended cannot be granted. 6. In reply, Sri.M.Sajjad, learned counsel for the petitioner submitted that his client is only seeking regular approval from 07.06.2012 to 31.03.2013, since the post was substantive in nature and therefore, that as per **Sneha Cheriyan** _(supra),_ this is certainly permissible. 7. As is evident from the above, the petitioner **5** ## **WP(C).No.15988 OF 2013(W)** has approached this Court with broadly two contentions: a) that her approval between 18.06.2008 and 29.08.2008 be declared to be on scale-of-pay basis and that Ext.P11 order of the Government be set aside. b) that Exts.P14 and P15 approval be set aside, to the extent to which it has been granted on daily wage basis between 13.10.2008 to 05.02.2009 and between 3.11.2011 to 22.12.2012; and the respondents be directed to approved it on regular basis, adverting to the judgment of the Hon'ble Supreme Court in **Sneha Cheriyan** _(supra_ ). 8. On the first limb of the contention of the petitioner, there is no doubt that through Ext.P1, she was originally granted approval for the spell between 18.06.2008 and 29.08.2008 on a scale-of-pay basis, but that this was undone by the Government through Ext.P11, based on the Government Order bearing number G.O.(P)No.169/04/G.Edn dated 15.06.2004, which mandated that the claim for reappointment under Rule **WP(C).No.15988 OF 2013(W)** **6** 51A of the KER will limited to those who have been appointed against regular/leave vacancies having a duration of not less than one academic year. 9. However, it is admitted that the statutory amendment to the KER, consequent to this Government Order, was introduced only with effect from 27.04.2005; and it has been now well settled, through a catena of judgments including Exts.P12 and P13, that the amendment can only be prospective and resultantly that the vacancies which arose before it, which were of less than an academic year, should be given the benefit of the provisions of the unamended stipulations in the KER. This Court, has time and again held that an executive order issued by the Government cannot fetter or abrogate statutory provisions and obviously therefore, the petitioner's contentions against Ext.P11 based on Exts.P12 and P13 judgments of this Court is on firm ground. **10.** As regards the second limb of the petitioner's contention - that Exts.P14 and P15 orders **WP(C).No.15988 OF 2013(W)** **7** are bad, to the extent to which it grants only dailywage-basis approval to her appointment between 13.10.2008 and 05.02.2009 and between 03.11.2011 and 22.12.2011, is concerned, I am certain that this must engage the attention of Government appropriately, since the real question involved in this case is whether the benefit of Rule 51A of Chapter XIVA of the KER, obtained by her through Ext.P1 order, would enure to her even after the 2005 amendments to the KER came into force. 11. This is because the 8[th] respondent maintains that, even if Ext.P11 is found to be without error and the petitioner is entitled (without being admitted) to Rule 51A claim as regards her approval through Ext.P1 order, she would not be entitled to the same claim for any vacancy that arose after the 2005 amendment to the KER. 12. There is yet other reason why this Court feels that the matter should be reconsidered by Government, which is that, at the time when this writ **8** ## **WP(C).No.15988 OF 2013(W)** petition was filed, the third prayer made by the petitioner was that the 8[th] respondent – Corporate Manager, be directed to grant appointment to her from 07.06.2012 on regular basis. 13. However, it has now been brought on record, through the counter affidavit of the 8[th] respondent, that the period of appointment of the petitioner between 07.06.2012 and 31.03.2013 had been offered to her through Ext.R8(a) appointment order only on daily wage basis, and that it has been approved on such basis by the competent Educational Agency. Obviously, this will also have to be considered by the Government when a full reconsideration of the petitioner's claim are to be made. Resultantly, I order this writ petition and set aside Ext.P11; with a consequential direction to the Government to reconsider the petitioner's claim for approval of her appointment on Scale-of-Pay basis for the period between 18.06.2008 - 29.08.2008; 13.10.2008 **WP(C).No.15988 OF 2013(W)** **9** - 05.02.2009; 03.11.2011 - 22.12.2011 and between 07.06.2012 – 31.03.2013. In order to pave way for a consideration as afore, I make it clear that the approvals granted through Exts.P14, P15 and R8(k) would be reconsidered by the competent Authority; and if it is found that the petitioner is entitled to a claim under Rule 51A of Chapter XIVA of the KER, then the said orders will be appropriately modified. Of course, the Government will also keep in mind the specific contention of the petitioner that, as is evident from Ext.P16, the vacancy which arose on 07.06.2012 was a regular one; and therefore, that she is entitled to be appointed to it on substantial basis. This writ petition is thus ordered. **Sd/DEVAN RAMACHANDRAN JUDGE** RP/RR/akv **WP(C).No.15988 OF 2013(W)** **10** ## **To be spoken to on 26.03.2021** This matter has been listed today at the request of Sri.Tony George Kannamthanam – learned counsel for the 8th respondent, who submitted that certain factual issues had been omitted to be brought to the notice of this Court while the judgment was delivered on 08.03.2021. Today, Sri.Kurian George Kannamthanam – learned Senior Counsel submitted that even if it is assumed that Ext.P11 order is bad and that the petitioner is entitled to Rule 51A claim - with respect to her appointment between 27.10.2004 to 31.03.2005 - it would not inure to her the said benefit for any appointment from 18.06.2008 because, after the amendments to the KER had come into force, the petitioner should also satisfy the specific conditions therein, which she has not. The learned Senior Counsel submitted that through Ext.P5, the Director of Public Instructions [now designated as Director of General **WP(C).No.15988 OF 2013(W)** **11** Education (DGE)] had erroneously allowed the Rule 51A claim of the petitioner and had directed the Educational Authorities to approve the said period on scale-of-pay basis. He further submitted that the subsequent appointment of the petitioner, vide Exts.P14 and P15, were only on daily-wage-basis, since the benefit of Rule 51A could not have inured to her and that this is more so because, her subsequent appointment between 07.06.2012 to 31.03.2013 – which has not been challenged before this Court – has been approved on daily wage basis only, as mandated by Ext.R8(a) order produced by his client, along with the counter affidavit. He, therefore, submitted that these specific aspects may also be directed to be kept in mind by the Government when the matter is reconsidered in terms of the afore directions, particularly because his client also has a case that there are Rule 43 claimants and other senior claimants, who have superior rights than the petitioner for the vacancies in question. **WP(C).No.15988 OF 2013(W)** **12** When I hear the Senior Counsel as afore, I have no doubt that since this Court has already directed the Government to reconsider the whole matter, every aspect - including those now contended on behalf of the 8th respondent - must be kept in mind by the competent Authority. I, therefore, clarify that the directions in this judgment shall be construed by the competent Authority to understand that the issues relating to the claims of the petitioner under Rule 51A – with specific reference to the amendments of the KER in the year 2005 - shall be decided, adverting to the afore submissions of the 8th respondent, that she had not satisfied the imperative conditions stipulated in the said provision. **Sd/DEVAN RAMACHANDRAN JUDGE** **WP(C).No.15988 OF 2013(W)** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 27.10.2004** **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 11.1.2008** **EXHIBIT P3 TRUE COPY OF THE ORDER NO.B11091/2009/K.DIS DATED 29.4.2009 OF THE DISTRICT EDUCATIONAL OFFICER.** **EXHIBIT P4 TRUE COPY OF THE REVISION PETITION DATED 15.6.2009 SUBMITTED BY CORPORATE MANAGER. EXHIBIT P5 TRUE COPY OF THE ORDER NO.F2/62927/2009/DPI/K.DIS DATED 24.5.2010 EXHIBIT P6 TRUE COPY OF THE LETTER NO.75863/E1/2011/G.EDN DATED 25.2.2012 OF THE GOVERNMENT. EXHIBIT P7 EXT.P-7 TRUE COPY OF THE LETTER NO.24045/E1/2011/G.EDN DATED 19.11.2011 OF THE GOVERNMENT. EXHIBIT P8 TRUE COPY OF THE LETTER NO.B3/3764/12 DATED 13.3.2012 OF THE DEPUTY DIRECTOR OF EDUCATION EXHIBIT P9 TRUE COPY OF THE HEARING NOTICE NO.24691/E1/2012/G.EDN DATED 26.5.2012 OF THE GOVERNMENT EXHIBIT P10 TRUE COPY OF THE REVIEW PETITION DATED 12.4.2012 SUBMITTED BY THE CORPORATE MANAGER. EXHIBIT P11 TRUE COPY OF THE G.O(RT) NO.2307/2013/G.EDN DATED 1.6.2013 EXHIBIT P12 TRUE COPY OF THE JUDGEMENT DATED 27.7.2006 IN WPC NO.32706/2005 (R)** **WP(C).No.15988 OF 2013(W)** **14** **IN WPC NO.16821/2008 (C)** **EXHIBIT P14 TRUE COPY OF THE APPOINTMENT ORDER DATED 13.10.2008 OF THE PETITIONER** **EXHIBIT P15 TRUE COPY OF THE APPOINTMENT ORDER DATED 3.11.2011 OF THE PETITIONER EXHIBIT P16 TRUE COPY OF THE ORDER NO.C-1930/12/K.DIS. DATED 4.3.2013 OF THE ASSISTANT EDUCATIONAL OFFICER. EXHIBIT P17 TRUE COPY OF THE APPEAL FILED BEFORE THE DISTRICT EDUCATIONAL OFFICER THRISSUR DATED 15.3.2013** - **EXHIBIT P18 TRUE COPY OF THE APPOINTMENT ORDER DATED 3.6.2013 OF THE PETITIONER** - **EXHIBIT P19 TRUE COPY OF THE REVISION PETITION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 21.10.2012** - **EXHIBIT P20 TRUE COPY OF THE G.O(P) NO.31/2006/G.EDN DATED 19.1.2006 OF THE GOVERNMENT.** **RESPONDENT'S/S EXHIBITS :** - **EXHIBIT R8(A) COPY OF THE ORDER DATED 15.6.2004 OF THE GENERAL EDUCATION (J) DEPARTMENT.** - **EXHIBIT R8(B) COPY OF THE ORDER DATED 10.6.2008 OF THE GENERAL EDUCATION (J) DEPARTMENT.** - **EXHIBIT R8(C) COPY OF REQUEST DATED 31.5.2010 FROM THE PETITIONER TO THE 8TH RESPONDENT.** - **EXHIBIT R8(D) COPY OF LETTER DATED 5.6.2010 FROM THE 8TH RESPONDENT.** **EXHIBIT R8(E) COPY OF LETTER DATED 14.6.2010 ISSUED TO THE 8TH RESPONDENT.** **EXHIBIT R8(F) COPY OF LETTER DATED 17.6.2010 ISSUED TO THE 8TH RESPONDENT.** **WP(C).No.15988 OF 2013(W)** **15** **EXHIBIT R8(G)** **COPY OF LETTER DATED 19.6.2010 ISSUED TO THE 8TH RESPONDENT.** **EXHIBIT R8(H) COPY OF THE REQUEST DATED 22.6.2010 FROM THE 8TH RESPONDENT TO THE GOVERNMENT.** - **EXHIBIT R8(I) COPY OF THE REVIEW PETITION DATED 12.4.2012 BY THE 8TH RESPONDENT TO THE GOVERNMENT.** - **EXHIBIT R8(J) COPY OF THE HEARING REPORT DATED 6.7.2012 SUBMITTED BY THE 8TH RESPONDENT BEFORE THE GOVERNMENT.** - **EXHIBIT R8(K) COPY OF THE APPOINTMENT ORDER DATED 7.6.2012 SHOWING THE PETITIONER'S APPOINTMENT.** - **EXHIBIT R8(L) COPY OF THE APPOINTMENT ORDER DATED 1.4.2011 SHOWING THE ONE RIJO PAUL APPOINTMENT.** **EXHIBIT R8(M) COPY OF APPOINTMENT ORDER DATED 2.4.2011 SHOWING THE ONE PAULSON T.V. APPOINTMENT.** **EXHIBIT R8(N) COPY OF APPOINTMENT ORDER DATED 24.9.2004 SHOWING THE ONE PREETHA JOSE APPOINTMENT.** - **EXHIBIT R8(O) COPY OF THE ORDER DATED 27.6.2013 ISSUED BY THE GOVERNMENT.** - **EXHIBIT R8(P) COPY OF LETTER NO. 44977/J2/2013/G.EDN DATED 14.10.2015 OF GENERAL EDUCATION (J) DEPT.** **EXHIBIT R8(Q)** **COPY OF ORDER DATED 10.1.2019 ISSUED BY THE ADDL. DIRECTOR OF PUBLIC INSTRUCTION.** //TRUE COPY// P.A. TO JUDGE