JULIYA JANNET AUSTIN v. STATE OF KERALA and OTHERS

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 13[TH]DAY OF JANUARY 2023 / 23RD POUSHA,1944 ``` ## **`WP(C) NO. 33746 OF 2022`** ## **`PETITIONER:`** ``` JULIYA JANNET AUSTIN AGED 45 YEARS W/O. VINEETH WINSTON, 29/648, GEEYAR RIVER VIEW GARDENS, WEST YAKKARA, PALAKKAD - 678 001. (HIGH SCHOOL TEACHER (MALAYALAM), B.E.M. HIGHER SECONDARY SCHOOL, PALAKKAD). BY ADV S.SUBHASH CHAND ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001. ``` - `2 THE DIRECTOR OF GENERAL EDUCATION (FORMERLY DIRECTOR OF PUBLIC INSTRUCTIONS), OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, THIRUVANANTHAPURAM-695 014.` - `3 THE DEPUTY DIRECTOR (EDUCATION), OFFICE OF THE DEPUTY DIRECTOR (EDUCATION), PALAKKAD-678 001.` 2 W.P.(C) No.33746/2022 - `4 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD- 678 001.` - `5 THE CORPORATE MANAGER, C.S.I SCHOOLS IN MALABAR AND WAYANAD, BANK ROAD, KOZHIKODE-673 001,` ## **`OTHER PRESENT:`** ``` SMT NISHA BOSE SR GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON13.01.2023,THECOURTONTHESAMEDAY DELIVERED THE FOLLOWING: ``` W.P.(C) No.33746/2022 3 ## **J U D G M E N T** The petitioner states that she was appointed as Lower Primary School Assistant in B.E.M. Lower Primary School, Manjeri, with effect from 19.10.2000. She asserts that she was regularly appointed as LPSA with effect from 18.06.2002. Thereafter, she was promoted as High School Assistant (Malayalam) at the B.E.M. High School, Palakkad, with effect from 08.12.2006. According to the petitioner, the approval for the period from 08.12.2006 to 23.11.2008 stands rejected on the ground that the Manager has failed to execute the bond in terms of G.O.(P) No.10/10 dated 12.01.2010. The petitioner asserts that she has preferred Ext.P14 statutory revision petition before the 1st respondent and requests that directions be issued to the 1st respondent to consider the same and take a decision. 2. Sri.Subhash Chand, the learned counsel appearing for the petitioner, submitted that it is settled by now that even in cases wherein bonds have not been executed by the Managers, the Managers would be deemed to have executed the bond, and they would be obliged to make appointments from the list of protected teachers, equal to the number of appointments approved during the ban period. The learned counsel submits that directions be issued to the 1st respondent to consider Ext.P7 in the light W.P.(C) No.33746/2022 4 of the settled precedents. 3. The learned Government Pleader submitted that all appointments in additional division vacancies are liable to be apportioned in the ratio of 1:1 and if the appointment of the protected teacher is not done as provided in G.O.(P) No.10/10/G.Edn. dated 12.01.2010, then the Manager ought to have executed a bond stating that such appointments would be made in accordance with the provisions of the Government Order. It is further submitted that some of the managers have challenged G.O.(P) No.10/10/G.Edn. dated 12.01.2010, and those matters are now pending before the Apex Court. 4. I have considered the submissions advanced. The writ petitioner was appointed during the period when the ban, pursuant to G.O.(P) No.10/10/G.Edn. Dated 12.01.2010, was in force. The appointment of the petitioner was approved only with effect from 01.06.2011 on the ground that there was a ban on appointments at the time of her initial appointment and that the Manager had failed to execute the bond in terms of G.O.(P)No.10/10. A Division Bench of this Court in **State of Kerala and Ors. v. V.S.Suma Devi and Ors** . [judgment dated 01.08.2017 in W.A.No.2111/2015], has held that in the case of non-execution of the bond by the Managers, it should be deemed that bonds have been executed and W.P.(C) No.33746/2022 5 the Managers would be obliged to make an equal number of appointments when the appointments to additional vacancies made during the ban period are approved. Insofar as the pendency of the petitions instituted by the Managers before the Hon’ble Apex Court is concerned, the orders passed shall be subject to the final orders that may be passed by the Apex Court in the pending litigation. 5. After having carefully evaluated the contentions raised in this writ petition, the submissions made across the bar, and the facts and circumstances, I am of the view that this writ petition can be disposed of by issuing the following directions: - a) The 1st respondent is directed to take up, consider and pass orders on Exhibit P14 statutory revision petition filed by the petitioner with notice to the petitioner as well as the 6th respondent and take a decision, taking note of the law laid down by this Court in Exhibits P6 to P13 judgments. Orders shall be passed expeditiously, in any event, within four months from the date of receipt of a copy of this judgment. - b) While considering the representation, the Secretary to Government shall be free to reckon that the manager would be deemed to have executed the bond and also that they would be obliged to make appointments from the list of W.P.(C) No.33746/2022 6 protected teachers equal to the number of appointments approved during the ban period. It is made clear that the orders passed by the 1st respondent shall be subject to the final orders passed by the Apex Court in the pending petitions. c) It would be open to the petitioner to produce a copy of the writ petition along with the judgment before the concerned respondent for further action. The writ petition is disposed of. sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** PS/13/1/2022 W.P.(C) No.33746/2022 7 ## **`APPENDIX OF WP(C) 33746/2022`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE APPOINTMENT ORDER DATED 05.10.2006, THUS ISSUED BY RESPONDENT NO. 5. Exhibit P2TRUE COPY OF THE GOVERNMENT ORDER BEARING GO(P) NO. 10/10/G.EDN. DATED 12/1/2010 THUS ISSUED BY RESPONDENT NO. 1. Exhibit P2(a)TRUE COPY OF THE APPOINTMENT ORDER DATED 08.12.2006 THUS ISSUED BY RESPONDENT NO.5. Exhibit P3TRUE COPY OF ORDER BEARING NO.K.DIS-B6/227/07 DATED 20.02.2007 OF RESPONDENT NO.4. Exhibit P4TRUE COPY OF THE ORDER BEARING NO. EM5/17977/ 08/DPI/KDIS DATED 30.08.2008 THUS PASSED BY RESPONDENT NO.2. Exhibit P5TRUE COPY OF THE ORDER DATED 02.06.2008 THUS ISSUED BY RESPONDENT NO.5. Exhibit P6JUDGMENT DATED 18.02.2015 IN WP(C).NO.6039 OF 2012 (D) AND CONNECTED MATTERS. Exhibit P7TRUE COPY OF THE JUDGMENT DATED 28.07.2015 IN WP(C)NO. 15998 OF 2005. Exhibit P8TRUE COPY OF THE JUDGMENT DATED 17.11.2016 IN WP(C).NO.3383 OF 2013. Exhibit P9 TRUE COPY OF THE JUDGMENT DATED 25.07.2017 ``` W.P.(C) No.33746/2022 8 ``` IN W.A.NO.2290 OF 2015. ``` ``` Exhibit P10TRUE COPY OF THE JUDGMENT DATED 16.01.2018 IN WP(C) NO.4938 OF 2014. ``` ``` Exhibit P11TRUE COPY OF THE JUDGMENT DATED 12.03.2019 IN WP(C).NO.7365 OF 2019. Exhibit P12TRUE COPY OF THE JUDGMENT DATED 2/12/2016 PASSED BY THIS HON'BLE COURT IN W.P.(C). NO. 31225 OF 2016 (C). ``` ``` Exhibit P13TRUE COPY OF THE JUDGMENT DATED 16.06.2022 IN W.P. (C).NO.19597/2022 OF THIS HON'BLE COURT. ``` ``` Exhibit P14TRUE COPY OF THE STATUTORY REVISION PETITION DATED 6.9.2022 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.1. ```