Jolly Varghese v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 16TH DAY OF DECEMBER 2013/25TH AGRAHAYANA, 1935 WP(C).No. 17080 of 2013 (H) ---------------------------- PETITIONER(S): ----------------- JOLLY VARGHESE W/O.BABU THOMAS, PAWVOTHIL HOUSE, NIRANAM P.O THIRUVALLA (UPPER PRIMARY SCHOOL ASSISTANT ST. MARY'S HIGH SCHOOL, NIRANAM), 689 621. BY ADVS.SRI.S.SUBHASH CHAND SRI.SHINDO VARGHESE RESPONDENT(S): - ------------------- ## 1. THE STATE OF KERALA - REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF GENERAL EDUCATION GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHI, THIRUVANANTHAPURAM - 695 014. 3. THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION) PATHANAMTHITTA AT THIRUVALLA- 689 101. 4. DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER THIRUVALLA - 689 101. 5. MANAGER, - ST. MARY'S HIGH SCHOOL, NIRANAM - 689 621 PATHANAMTHITTA. R5 BY ADV. SRI.P.HARIDAS R1 TO 4 BY GOVERNMENT PLEADER SRI.P.M.SANEER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-12-2013, ALONG WITH WPC. 17197/2013, WPC. 17303/2013, WPC. 17982 OF 2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17080 of 2013 (H) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------ - EXHIBIT P1: TRUE COPY OF THE APPOINTMENT ORDER DATED 20.6.2007 ISSUED BY RESPONDENT NO.5. - EXHIBIT P2: TRUE COPY OF THE PROCEEDINGS DATED 15.3.2011 ISSUED BY RESPONDENT NO.5. - EXHIBIT P3: TRUE COPY OF THE GOVERNMENT ORDER BEARING GO(P) NO.10/10/G.EDN DATED 12.1.2010. - EXHIBIT P4: TRUE COPY OF THE BOND EXECUTED BY RESPONDENT NO.5 IN TERMS OF EXT.P3 GOVERNMENT ORDER. - EXHIBIT P5: TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WP(C)NO.13293/2009. - EXHIBIT P6: TRUE COPY OF THE GOVERNMENT ORDER DATED 5.7.2012 PASSED BY RESPONDENT NO.1. - EXHIBIT P7: TRUE COPY OF THE APPROVED APPOINTMENT ORDER DATED 15.3.2011 ON WHICH THE ORDER DATED 24.8.2012 HAS BEEN ENDORSED. - EXHIBIT P8: TRUE COPY OF THE GOVERNMENT ORDER BEARING GO(P) NO.104/2008/G.EDN. DATED 10.6.2008. - EXHIBIT P9: TRUE COPY OF THE GOVERNMENT ORDER BEARING GO(P) NO.56/11/G.EDN DATED 26.2.2011. - EXHIBIT P10: TRUE COPY OF THE JUDGMENT DATED 30.10.2012 PASSED BY THIS HON'BLE COURT IN WP(C)NO.25330/2012. - EXHIBIT P11: TRUE COPY OF THE RULING IN STATE OF KERALA & ORS IN SNEHA CHERIYAN AND ANOTHER (2013) 5 SCC 160. - EXHIBIT P12: TRUE COPY OF GO(P) NO.144/2013/G.EDN. DATED 22.4.2010 PASSED BY RESPONDENT NO.1. - EXHIBIT P12(A): TRUE COPY OF ORDER NO.B5/2010/3(I) DATED 5.6.2013 PASSED BY RESPONDENT NO.4. - EXHIBIT P13:TRUE COPY OF JUDGMENT DATED 1.11.2013 PASSED BY THIS HON'BLE COURT IN W.P.(C).NO.17893/2013. RESPONDENT(S)' EXHIBITS:NIL ----------------------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J.** ## **==========================** ## **W.P.(C). Nos.17080, 17303, 17197 & 17982 OF 2013** ## **==========================** Dated this the 16[th ] day of December, 2013 ## **JUDGMENT** These writ petitions carry common grievances under similar circumstances and therefore, they were taken up for joint hearing and disposal. In fact, a batch of writ petitions carrying exactly similar issues filed by similarly situated persons were already disposed of by me by a common judgment dated 6.12.2013 and therefore, these writ petitions can also be disposed of on the same lines. The petitioners herein are aggrieved by the manner and nature of approval of their appointments. The contention of the petitioners is that in the light of the decision of the Hon'ble Supreme Court in **State of Kerala and Others** Vs **Sneha Cheriyan** reported in **2013 (1) KHC 660** they are entitled to get their appointments approved on a scale of pay basis from the date of appointments. Evidently, it was declined pertaining to **W.P.(C).17080/13 & conn.** 2 the initial period of appointments or such other relevant periods and those periods were approved only on daily wage basis. In the light of the decision in **Sneha Cheriyan's** case (supra), more particularly of the directions in paragraph 26 of the said decision, it is contended that the action on the part of the respondents in limiting the approval to the appointments, in relation to the initial periods or such other relevant periods on daily wage basis disregarding the nature of vacancy as also the appointment is unsustainable. It is also contended that it was done so either relying on G.O.(P)No.104/2008/G.Edn dated 10.06.2008 disregarding the decision in **Sneha Cheriyan's** case (supra) or on a of the same or on wrong understanding relying G.O.(P) No.144/2013/G.Edn dated 22.04.2013. 2. I have heard the learned counsel for the petitioners and also the learned Government Pleader. It is the common contention of the petitioners that in view of the decision of the Hon'ble Apex Court in **Sneha Cheriyan's** case (supra), the respondent authorities could **W.P.(C).17080/13 & conn.** 3 not rely on G.O.(P)No.104/ 2008/G.Edn. dated 10.06.2008 any further and as per the decision of this Court in W.P.(C)No.17893 of 2013 setting aside G.O.(P)No.144/2013/G.Edn. dated 22.04.2013 the said G.O. dated 22.4.2013 also could not be relied on, for deciding the nature of approval to be granted legally, to the appointments of the petitioners in respect of the periods presently approved only on daily wage basis. In **Sneha Cheriyan's** case (supra), the Hon'ble Apex Court allowed the appeals with the following directions:- “We are, therefore, inclined to allow these appeals and set aside the judgment of the Division Bench with the following directions:- - “i) A teacher, who was relieved from service under Rules 49 and 53 of Chapter XIV-A of the KER, is entitled to get preference for appointment under Rule 51A only if the teacher has a minimum prescribed continuous service in an academic year as on the date of relief. - ii) The Manager of an aided school can, however, appoint teachers in vacancies occurred due to death, retirement, promotion, resignation, long-term leave etc, provided they are established vacancies and the approval can be granted subject to the conditions under Rule 49 of Chapter XIV-A of the KER. **W.P.(C).17080/13 & conn.** 4 - iii) Approval can also be granted to appointments made to the approved vacancies arising and continuing beyond 31[st] March due to sanctioning of additional divisions. - iv) The Manager can make appointments in school even if the duration of which is less than one academic year but on daily wage basis and if the duration of vacancy exceeds one academic year that can be filled up on scale of pay basis. - v) The Manager is free to appoint teachers on a regular basis from the re-opening date itself against regular established vacancies and need not wait for the appointments till completion of the staff fixation as per the KER. - vi) Teachers who have been appointed in the midst of the academic year and not completed the requisite minimum continuous service before vacation will not be entitled to get vacation salary.” - case - 3. In the light of the decision in **Sneha Cheriyan's** (supra) carrying the aforesaid specific directions, it is contended that merely because of the fact that the appeal against the decision in **Unninarayanan** v. **State of Kerala** reported in **2009 (2) KLT 604** was allowed it shall not be understood as one restoring G.O.(P) **W.P.(C).17080/13 & conn.** 5 No.104/ 2008/G.Edn. dated 10.06.2008. A scanning of the decision in **Sneha Cheriyan's** case (supra) would make the said position beyond any doubt. That apart, this position has been made abundantly clear in the judgment in W.P.(C)No.17893 of 2013 besides setting aside G.O.(P)No.144/2013/G.Edn. dated 22.04.2013. In the circumstances, the impugned orders in all these writ petitions to the extent they approved the appointments of the petitioners on daily wage basis without bestowing consideration in the light of the decision in **Sneha Cheriyan's** case (supra) call for interference. So also, in the light of the judgment in W.P.(C)No.17893 of 2013, G.O.(P) No.144/2013/G.Edn. dated 22.04.2013 could not be relied on to limit the appointments of the petitioners on daily wage basis. In other words, the question whether the period/periods in question approved only on daily wage basis requires re-consideration in the light of the aforesaid decisions. As noticed hereinbefore, similar writ petitions moved by similarly situated persons were already disposed of by a common judgment dated 6.12.2013. To enable such consideration **W.P.(C).17080/13 & conn.** 6 these writ petitions are disposed of as hereunder:- ## W.P.(C)No.17080 of 2013 Ext.P12 (a) order is quashed to the extent it virtually ordered approval of appointment of the petitioner on daily wage basis from 20.6.2007 to 31.3.2008 and limiting the approval of appointment on regular basis from 2.6.2008 onwards and causing break in service from 1.4.2008 to 1.6.2008 by restoring Ext.P7. ## W.P.(C)No.17303 of 2013 Ext.P8 (a) order is quashed to the extent it virtually ordered approval of appointment of the petitioner on daily wage basis from 18.7.2007 to 31.3.2008 and limiting the approval of appointment on regular basis from 1.6.2008 onwards and causing break in service from 1.4.2008 to 31.5.2008 by restoring Ext.P1. ## W.P.(C)No.17197 of 2013 Ext.P6 (a) order is quashed to the extent it virtually ordered approval of appointment of the petitioner on daily wage basis from 1.11.2007 to 31.3.2008 and limiting the approval of appointment on regular basis **W.P.(C).17080/13 & conn.** 7 from 2.6.2008 onwards and causing break in service from 1.4.2008 to 1.6.2008 by restoring Ext.P1. ## W.P.(C)No.17982 of 2013 Ext.P8 (a) order is quashed to the extent it virtually ordered approval of appointment of the petitioner on daily wage basis from 19.6.2009 to 31.3.2009 and limiting the approval of appointment on regular basis from 1.6.2010 onwards and causing break in service from 1.4.2010 to 31.5.2010 by restoring Ext.P1. Consequent to the quashing of the impugned orders and also the directions issued in these writ petitions to the aforementioned extent, the Government shall consider/re-consider the issue of approval of appointments covered by the impugned orders in these writ petitions for the periods mentioned hereinbefore, which were approved only on daily wage basis, afresh in the light of the decision in **Sneha Cheriyan's** case (supra) and the decision in **W.P.(C)No.17893 of 2013** and appropriate orders shall be passed expeditiously, at any rate, **W.P.(C).17080/13 & conn.** 8 within a period of four months from the date of receipt of copy of this judgment. Needless to say that recovery, if any, proposed pursuant to the impugned orders shall be kept in abeyance till orders are passed based on the directions in this judgment and the question of effecting recovery and re-fixation of salary thereafter would depend upon the decision relating the petitioners in their respective cases. **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** ## **spc/** **W.P.(C).17080/13 & conn.** 9 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **W.P.(C).17080/13 & conn.** 10