K.M. Anandavally v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942** ## **WP(C).No.14682 OF 2019(I)** ## **PETITIONERS:** **K.M.ANANDAVALLY AGED 63 YEARS W/O.SASIDHARAN, KUNNUVILLA VEEDU, NEDUGOLAM P.O., SOUTH PARAVOOR, KOLLAM, FORMERLY WORKING AS P.T.C.M., CHEMPAKASSERY T.T.I., BHOOTHAKULAM, KOLLAM DISTRICT, PIN-691302.** **BY ADVS. SRI.M.T.SURESHKUMAR SRI.R.RENJITH SMT.MANJUSHA K** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** - **2 THE DIRECTOR OF PUBLIC INSTRUCTION, DIRECTORATE OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM, PIN-695001.** - **3 THE DISTRICT EDUCATIONAL OFFICER, KOLLAM, PIN-691001.** - **4 THE JOINT MANAGERS, CHEMPAKASSERI SCHOOLS, BHOOTHAKULAM, KOLLAM DISTRICT, PIN-691302.** - **5 DEEPU KUMAR, P T C M, CHEMPAKASSERY T.T.I., BHOOTHAKULAM, KOLLAM DISTRICT, PIN-691302.** - **6 ADDL.R6.RENJU.G.K AGED 32 YEARS S/O.GOPINATHA KURUP, PART TIME CONTINGENT MENIAL (PTCM), TEACHERS TRAINING INSTITUTE, CHEMPAKASSERY, BHOOTHAKULAM P.O., KOLLAM** WP(C).No. 14682 OF 2019 2 **DISTRICT, PIN-691 302. IMPLEADED AS ADDL.R6 AS PER ORDER DATED 20-08-2019 IN IA 2/19** **R4-5 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R4-5 BY ADV. SMT.N.SANTHA R4-5 BY ADV. SRI.V.VARGHESE R4-5 BY ADV. SRI.PETER JOSE CHRISTO R4-5 BY ADV. SRI.S.A.ANAND R4-5 BY ADV. SMT.L.ANNAPOORNA R4-5 BY ADV. SHRI.VISHNU V.K. R6 BY ADV. MURALI PALLATH R6 BY ADV. SMT.RAVEENA V.V.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-11-2020, THE COURT ON 18-11-2020 DELIVERED THE FOLLOWING:** WP(C).No. 14682 OF 2019 3 ## **ANU SIVARAMAN, J.** **- - - - - - - - - - - - - - - - - - - - -** W.P.(C) No.14682 of 2019 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 6[th] day of January, 2021 ## JUDGMENT This writ petition is filed seeking the following ## prayers:- (i) Declare that the petitioner is entitled to be appointed as PTCM in Chembakassery T.T.I under the 4[th] respondent management against the resultant vacancy arose out of promotion given to Smt.Shamla with effect from 01.06.2017. (ii) Declare that the appointment of the 5[th] respondent is null and void. (iii) Call for the records leading to Exhibit P14 and may quash the same by issuing a writ in the nature of certiorari. (iv)Issue a writ in the nature of mandamus commanding the respondents 1 to 3 to realize the loss caused to the Government, from the 4[th] respondent, treating that the same as arrears on Land Revenue,as provided under the statute. (v) Issue a writ in the nature of mandamus commanding the 4[th] respondent to compensate the petitioner for denial of employment. WP(C).No. 14682 OF 2019 4 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. The learned counsel for the petitioner submits that the petitioner was appointed as P.T.C.M in the Chembakassery T.T.I managed by the 4[th] respondent w.e.f. 01.06.2002. It is submitted that while she was awaiting for approval, she was denied employment w.e.f. 11.12.2003. On representation being submitted by the petitioner, an enquiry was conducted by the Deputy Director of Education, Ext.P4 report was submitted. It was found in Ext.P4 that the petitioner was terminated without any reason and that she is entitled to reinstatement. By Ext.P5 letter dated 22.07.2008, the Government required the Director of Public Instruction to instruct the Manager to reinstate the petitioner. By Ext.P6, the DEO approved the petitioner's appointment and also directed the Manager to reinstate the petitioner. 4. Smt.Shamla, who was appointed as P.T.C.M in the petitioner's place, had challenged Ext.P6 order by filing W.P. WP(C).No. 14682 OF 2019 **==> picture [8 x 9] intentionally omitted <==** (C) No.32103/2008 while the petitioner filed W.P.(C) No.20306/2009 seeking the benefits of approval. The writ petitions were heard together and Ext.P7 common judgment was rendered directing the approval of the petitioner's appointment from 01.06.2002 to 10.12.2003 and payment of salary for the said period. It is contended that approval was granted by the Educational Authorities as directed. It is stated that a vacancy of P.T.C.M arose in the school on 01.06.2017. The petitioner raised a claim for appointment, which was allowed by the DEO by Ext.P9. When the order was not implemented, the petitioner filed W.P.(C) No.11222/2018 wherein it was contended by the Manager that statutory revision petitions had been filed against Ext.P9. By Ext.P13 judgment dated 03.07.2018, the writ petition was disposed of directing the consideration of the revision petitions filed by respondents 4 & 5 by the Government, after hearing all concerned. Ext.P14 order passed by the Government allowing the revision petitions WP(C).No. 14682 OF 2019 6 and rejecting the claim of the petitioner is under challenge herein. 5. The learned counsel for the petitioner submits that the petitioner admittedly has approved service as part time contingent menial in the T.T.I from 01.06.2002 to 10.12.2003. It is, therefore, contended that the petitioner's claim for appointment against the vacancy of P.T.C.M which arose on 01.06.2017 is a statutory claim and, as such, the rejection of such claim without any valid reason was unwarranted. It is further contended that the revision petitions filed against Ext.P9 were highly belated and that the conduct of the Manager was clearly against the provisions of the Act and Rules. 6. The learned counsel for the petitioner placed reliance on an unreported judgment of this Court in W.P.(C) No.9446/2006 to contend that approval granted to an appointment cannot be reopened in Revision by the Government after a long lapse of time. In W.A No.595/2008, WP(C).No. 14682 OF 2019 7 by judgment dated 13.03.2008, a Division Bench of this Court held that though there is no time limit prescribed in Rule 92, Chapter XIVA, KER, the power of revision can be exercised only within a reasonable time limit. A decision of a Division Bench of this Court in Manager M.M.H.S vs. Deputy Director (1994 KHC 82) is also relied on to contend that where appointments under Rule 51A of Chapter XIVA of KER are denied, the wronged teacher is entitled to claim damages from the Manager for the delay in granting appointment. 7. A counter affidavit is filed on behalf of respondents 4 & 5. It is contended that even in Ext.P4 enquiry report, there is clear reference to the fact that the petitioner had produced a 'Jathakam' showing her date of birth as 08.05.1962 and two school admission registers showing two other dates, ie; 03.12.1963 and 03.12.1956 respectively. It is stated that when she was confronted with the differing dates in the documents produced by her, the WP(C).No. 14682 OF 2019 8 petitioner had abandoned her job and it was in the above background that the proposal for approval was withdrawn by the Manager. Ext.R4(C) which is a copy of the counter affidavit filed by the Joint Managers in W.P.(C) No.32103/2008 is produced and relied on in support of these contentions. It is submitted that a reading of Ext.P7 judgment would reveal that these facts were noticed by this Court and approval was granted to the appointment of the petitioner from 01.06.2002 to 10.12.2003 for the limited purpose of permitting her to draw salary. It is submitted that the fact that this Court did not interfere with the appointment of Smt.Shamla w.e.f 16.07.2007 would show that the approval granted to the petitioner was for the limited purpose of salary and that the claim raised now is therefore totally misconceived. It is further submitted that the claim is clearly barred by the principles of res judicata and constructive res judicata. It is submitted that several appointments had been made in non teaching WP(C).No. 14682 OF 2019 9 posts after the petitioner left the post and the claim now raised against a post in 2017 is clearly on an experimental basis and is devoid of merits. 8. The 6[th] respondent has also filed a counter affidavit supporting the Manger. 9. I have considered the contentions advanced. Though a reply affidavit is filed by the petitioner to the counter affidavit filed on behalf of respondents 4 & 5, the contentions that the petitioner had produced three conflicting proofs of date of birth and that she abandoned service stand uncontroverted. I notice that the approval granted to the petitioner's appointment by Ext.P6 was subject to challenge and it was only by Ext.P7 judgment that the issue was considered by this Court. A reading of paragraph 5 of Ext.P7 and the directions therein would show that the approval to the petitioner's appointment was for the limited purpose of enabling her to draw salary for the period from 01.06.2002 to 10.12.2003. The subsequent WP(C).No. 14682 OF 2019 **==> picture [16 x 9] intentionally omitted <==** appointment of Smt.Shamla was left undisturbed. It is, therefore, clear that the petitioner's claim for preferential appointment is totally misconceived. 10. The decisions relied on by the petitioner refer to cases where approved appointments, which were not subjected to challenge being unsettled after decades. That is not the case here. It is only by Ext.P9 order that the petitioner's appointment stood approved pursuant to Ext.P7. The contention with regard to long unexplained delay in filing revision petition is therefore not applicable in the instant case. 11. The Government, in Ext.P14 considered the contentions of the parties in detail and found that this Court had not accepted the claim of the petitioner for preferential appointment against the post which arose in 2007. It was therefore found that the petitioner had no claim against posts arising thereafter either. All the relevant facts were considered in the impugned order. In WP(C).No. 14682 OF 2019 **==> picture [16 x 9] intentionally omitted <==** the facts and circumstances of the instant case, I am of the opinion that the preferential claim raised by the petitioner is totally misconceived. I find no patent illegality in the impugned order warranting interference. The writ petition fails and the same is accordingly dismissed. Sd/- ANU SIVARAMAN JUDGE bng WP(C).No. 14682 OF 2019 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE COMMUNICATION DATED 31.10.2003 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.** **EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 12.2.2004 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P2(A) TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 12.2.2004 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** **EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE REPRESENTATION DATED 15.9.2004 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE ENQUIRY REPORT DATED 17.6.08 PREPARED BY THE DEPUTY DIRECTOR OF EDUCATION, TRIVANDRUM. EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE COMMUNICATION DATED 22.7.08 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE ORDER DATED 30.9.08 PASSED BY THE 3RD RESPONDENT APPROVING THE APPOINTMENT OF THE PETITIONER. EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT ON 17.12.2016 IN WPC NO.20306 OF 2009. EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE COMMUNICATION NO.B4/6345/2017/KDS DATED 3.11.2017 ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE OFFICE OF THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE ORDER NO.B4/4977/2017 DATED 27.11.2017 PASSED BY THE 3RD RESPONDENT.** WP(C).No. 14682 OF 2019 13 - **EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE COMMUNICATION NO.B4/4977/2017 DATED 5.1.2018 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P11 TRUE PHOTOSTAT COPY OF THE PETITION DATED 24.2.2018 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA.** - **EXHIBIT P12 TRUE PHOTOSTAT COPY OF THE REPLY NO.VA1/15730/2018/DPI DATED 6.3.2018 GIVEN BY THE PUBLIC INFORMATION OFFICER OF THE OFFICE OF THE 2ND RESPONDENT.** - **EXHIBIT P13 TRUE PHOTOSTAT COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT ON 3.7.2018 IN WP(C) NO.11222 OF 2018.** - **EXHIBIT P14 TRUE PHOTOSTAT COPY OF THE ORDER NO.1230/2019 GENERAL EDUCATION DATED 30.3.2019 PASSED BY THE 1ST RESPONDENT.** **RESPONDENTS EXHIBITS:** - **EXHIBIT R6(a) TRUE COPY OF ORDER NO.JM/KJ/02/2018 DATED 01/06/2018 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT R6(b) TRUE COPY OF APPOINTMENT ORDER DATED 05/09/2005 IN RESPECT OF SRI.C.ANIL KUMAR.** - **EXHIBIT R6(c) TRUE COPY OF APPOINTMENT ORDER DATED 16/07/2007 ISSUED BY THE 4TH RESPONDENT.** - **EXHIBIT R4(a) TRUE COPY OF THE APPOINTMENT ORDER DATED 01-06-2018.** **EXHIBIT R4 (b) TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 5TH RESPONDENT IN WP(C) No.11222/2018 OF THIS HON'BLE COURT. EXHIBIT R4(c) TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE JOINT MANAGERS IN WP(C) NO.32103/2008 OF THIS HON'BLE COURT.**