K.K. Bhaskaran Pillai v. State of Kerala and Others

## **C. R.** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 24TH DAY OF FEBRUARY 2015/5TH PHALGUNA, 1936 WP(C).No. 16073 of 2013 (H) --------------------------------- PETITIONER: -------------- K.K.BHASKARAN PILLAI MANAGER, E.C.E.K. UNION HIGH SCHOOL KUTHIATHODE-688533, CHEWRTHALA RESIDING AT HARITHA BHAVANAM, AROOR.P.O., CHERTHALA. BY ADV. SRI.K.N.CHANDRABABU RESPONDENTS: ----------------- 1. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETYARIAT THIRUVANANTHAPURAM-695001. 2. THE DISTRICT EDUCATIONAL OFFICER CHERTHALA, ALAPPUZHA DISTRICT. 3. TYHE DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA. 4. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM. R2 BY SR. GOVERNMENT PLEADER SRI.E.M.ABDUL KADIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-02-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16073 of 2013 (H) --------------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------------- EXT.P1 TRUE COPY OF THE ORDER OF APPOINTMENT ISSUED BY THE PETITIONER TO SMT. BABITHA B, APPOPINTING HER AS H.S.A. (MALAYALAM) IN E.C.E.K UNION HIGH SCHOOL DATED 25-1-2011. EXT.P2 TRUE COPY OF THE G.O.(P) NO. 56/2011/G.EDN. DATGED 26-2-11. EXT.P3 TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA. EXT.P4 A TRUE COPY OF THE ORDER NO.B1/5626/2011 DATED 23-1-12 ISSUED BY THIRD RESPONDENT. EXT.P5 TRUE COPY OF THE ORDER NO.EC(1)14517/2012/DPI/K.DIS DATED 13-9-12 ISSUED BY THE FOURTH RESPONDENT. EXT.P6 TRUE COPY OF THE REVISION PETITION SUBMITTED BEFORE BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P7 TRUE COPY OF TGHE ORDER NO. 51636/E3/2012/G.EDN. DATED 11-3-13 ISSUED BY THE FIRST RESPONDENT. ............. **C. R.** ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ W. P. (C) No.16073 of 2013 -----------------------------------------------Dated this the 24[th] day of February, 2015 ## **JUDGMENT** The petitioner, who is the Manager of E.C.E.K. Union High School, Kuthiathode, appointed Smt.Babitha B. as High School Assistant (Malayalam) to a permanent vacancy on 25-01-2011 by Ext.P1 appointment order dated 25-01-2011. The said permanent vacancy arose when a regular hand who was occupying that post resigned. The appointment of Smt.Babitha was approved by the second respondent, the District Educational Officer, with effect from 25-01-2011 to 31-03-2011 (excluding S.S.L.C. Examination days) on daily wages basis. Aggrieved by the order so passed by the second respondent in respect of the period of appointment of Smt.Babitha from 25-01-2011 to 31-03-2011, the petitioner preferred Ext.P3 appeal before the third respondent, the Deputy Director of Education. That appeal was rejected by Ext.P4 order dated 23-01-2012 of the third W. P. (C) No.16073 of 2013 -2- respondent. The petitioner preferred a further appeal before the fourth respondent, the Director of Public Instructions. That also came to be rejected as per Ext.P5 order dated 13-09-2012. Therefore, the petitioner preferred Ext.P6 revision petition before the first respondent Government. The revision petition also came to be rejected by the Government as per Ext.P7 order dated 11-03-2013. In these circumstances, the petitioner has preferred this writ petition praying for quashing Exts.P4, P5 and P7 orders and for a direction to approve the appointment of Smt.Babitha from 25-01-2011 to 31-03-2011 as a regular one. 2. Heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader appearing for the respondents 1 to 4. 3. Learned counsel for the petitioner submits that a regular vacancy of High School Assistant (Malayalam) arose in the School of the petitioner on 25-01-2011 when a regular hand who was occupying that post resigned from service. In the light of the specific provisions made in Ext.P2 order W. P. (C) No.16073 of 2013 -3- dated 26-02-2011 issued by the Government, the appointment of Smt.Babitha should have been approved as a regular one by the second respondent and the higher authorities also should have recognized that right of the appointee, contends the learned counsel. Ext.P2 order has been issued by the Government clarifying the orders dated 15-06-2014 and 10-06-2008 in respect of granting approval of appointment of teachers. It is specifically ordered in Ext.P2 that in regular vacancies arising by way of retirement, resignation, death, long leave and increase in divisions and continuing such vacancies beyond 31[st] March, the appointments made to such vacancies can be approved subject to Rule 49 of Chapter XIV-A of KER. Rule 49 deals with teachers who are appointed to vacancies which are not permanent. In the case on hand, this rule can have no application as the appointment made by the petitioner is to a regular vacancy. Therefore, going by the provisions contained in Ext.P2 Government Order, there is no impediment in granting approval of appointment as a W. P. (C) No.16073 of 2013 -4- regular one for the period from 25-01-2011 to 31-03-2011. 4. The second respondent has filed a counter affidavit in this case. The objection raised is that Ext.P2 order is dated 26-02-2011 and the appointment in this case was made on 25-01-2011. No retrospective operation can be given to Ext.P2. In such a circumstance, the case of the petitioner can be dealt with only in accordance with the Government Orders dated 15-06-2004 and 10-06-2008. In the light of the provisions in the Government Order dated 10-06-2008, Smt.Babitha is not entitled to approval of her appointment as a regular one for the period from 25-01-2011 to 31-03-2011, it is contended. 5. The contention so raised by the second respondent cannot be accepted for valid and genuine reasons. Ext.P2 order has been issued by the Government for rectifying the problems being created by the orders dated 15-06-2004 and 10-06-2008. Ext.P2 specifically says about granting approval of appointments made to regular vacancies. This order does not restrict such approval only to those appointments made W. P. (C) No.16073 of 2013 -5- after issuing this order. This order, in effect, clarifies, after removing the difficulties, the power of the educational authorities to grant approval of appointments made to regular vacancies. Moreover, this order does not say it will have only prospective application. The nature of the order itself shows that it will have retrospective application in the pending cases of approval. If the argument of the respondents is accepted, an anomalous situation may arise. If the appointment was made by the petitioner on 26-02-2011 or on a date thereafter, Ext.P2 will have application and the appointment will be approved as a regular one from that date. Only for the reason that the appointment was made on 25-01-2011, the entire period between 25-01-2011 to 31-03-2011 is treated as a period entitling the appointee only to daily wages. This cannot be the intention of Ext.P2 Government Order. Therefore, the argument advanced, resisting the claim of the petitioner, that Ext.P2 has only prospective operation is not legally sustainable and hence it is rejected. The view that the W. P. (C) No.16073 of 2013 -6- appointment given to Smt.Babitha has to be approved as a regular one is fortified by the decision rendered by the Honourable Supreme Court in **State of Kerala v. Sneha Cheriyan [2013 (1) KLT 755 (SC)]** . 6. For the foregoing reasons, the approval of appointment of Smt.Babitha from 25-01-2011 to 31-03-2011 only on daily wages is liable to be quashed and the petitioner is entitled to a direction to the second respondent to approve her appointment from 25-01-2011 to 31-03-2011 as a regular one. Consequently, Exts.P4, P5 and P7 are also liable to be quashed. In the result: - (1) The order dated 16-03-2011 passed by the second respondent approving the appointment of Smt.Babitha B. only on daily wage basis from - 25-01-2011 to 31-03-2011 is quashed. - (2) Exts.P4, P5 and P7 orders are also quashed. - (3) It is declared that Smt.Babitha B. is entitled to approval of her appointment as High School W. P. (C) No.16073 of 2013 -7- Assistant (Malayalam) from 25-01-2011 to 31-03-2011 as a regular one. - (4) The second respondent is directed to issue fresh orders approving the appointment of Smt.Babitha B. as High School Assistant (Malayalam) from 25-01-2011 to 31-03-2011 as a regular one. This shall be done by him within a period of two months from the date of receipt of a copy of this judgment. The service benefits of Smt.Babitha B. shall be calculated and disbursed to her on that basis. This writ petition is allowed as above. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE W. P. (C) No.16073 of 2013 -8-