K.P. Jaisiya v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 11TH DAY OF NOVEMBER 2013/20TH KARTHIKA, 1935 WP(C).No. 9942 of 2013 (P) --------------------------- PETITIONER(S): - ------------------ K.P.JAISIYA, AGED 27 YEARS WIFE OF ANSARI, LOWER PRIMARY SCHOOL ASSISTANT AIDED MAPPILA LOWER PRIMARY SCHOOL, THARAYITTAL KONDOTTY EDUCATION SUB DISTRICT MALAPPURAM DISTRICT. BY ADVS.SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): - ------------------- 1. THE STATE OF KERALA - REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695001. ## 2. THE ASSISTANT EDUCATIONAL OFFICER KONDOTTY, MALAPPURAM DISTRICT-673638. ## 3. THE MANAGER AIDED MAPPILA LOWER PRIMARY SCHOOL, THARAYITTAL KONDOTTY EDUCATION SUB DISTRICT MALAPPURAM DISTRICT-673638. R3 BY ADV. SRI.BABU S. NAIR R3 BY ADV. SRI.K.RAKESH R1,2 BY GOVERNMENT PLEADER SRI.P.M.SANEER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-11-2013 ALONG WITH W.P.(C).NO.10100 OF 2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9942 of 2013 (P) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------ EXHIBIT P1-TRUE COPY OF THE APPOINTMENT ORDER DATED 7-6-2007 OF THE MANAGER AND APPROVAL THEREOF. - EXHIBIT P2-TRUE COPY OF THE ORDER NO. 49229/L3/06/GE DATED 25-5-2007 OF THE GOVERNMENT. - EXHIBIT P3-TRUE COPY OF THE LETTER NO.14002/H2/06/G.EDN DATED 5-4-2006 OF THE GOVERNMENT. - EXHIBIT P4-TRUE COPY OF THE ORDER NO. F4/34993/2009/DPI DATED 14-8-2009 OF THE GOVERNMENT. - EXHIBIT P5-TRUE COPY OF THE DECISION REPORTED IN 2009(2) K.L.T. 604 DATED 6-4-2009. - EXHIBIT P6- TRUE COPY OF THE G.O.(P)NO. 56/2011/G.EDN DATED 26-2-2011 OF THE GOVERNMENT. - EXHIBIT P7-TRUE COPY OF THE ORDER NO. 6984/B1/2012 G.EDN DATED 6-2-2013 OF THE GOVERNMENT. - EXHIBIT P8-TRUE COPY OF THE DECISION REPORTED IN 2013(1) I.L.R. KER 913 DATED 22-2-2013. RESPONDENT(S)' EXHIBITS:NIL ------------------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T.RAVIKUMAR, J.** ## **--------------------------------------W.P.(C).Nos.9942 & 10100 OF 2013 --------------------------------------Dated this 11[th] day of November, 2013** ## **JUDGMENT** The petitioner in the former writ petition is a Lower Primary School Assistant in Aided Mappila Lower Primary School, Tharayittal in Malappuram District and the petitioner in the latter writ petition is a High School Assistant (Physical Science) in St.Francis High School for Girls, Mattom in Thrissur District. Though they are working in different schools in different categories on account of the commonness in their claims and contentions these petitions are taken up for joint consideration and disposal. 2. I will narrate the grievances of the former writ petitioner first along with the circumstances that led to the issuance of the impugned orders. In the former writ petition the petitioner was appointed as LPSA, allegedly against a regular vacancy by the 3[rd] respondent therein. The said appointment was approved from 7.06.2007 to 30.4.2008 on daily wage basis and from 1.6.2008 on regular basis in terms of G.O.(P) **W.P.(C).9942 & 10100/13** 2 No.104/2008/G.Edn dated 10.6.2008. The appointment of the petitioner as LPSA was effected prior to the issuance of the said G.O. dated 10.6.2008. The 3[rd] respondent manager submitted a representation after the issuance of G.O.(P) No.56/11/G.Edn dated 26.2.2011 clarifying that approval to appointments made against retirement/resignation/death/long leave vacancies and additional division vacancies which would continue beyond 31[st] March, could be given subject to Rule 49 of Chapter XIV-A, KER and further that approval could also be granted on regular basis in respect of appointments having a length more than 8 months. The said representation submitted on 18.3.2011 was rejected holding that the said G.O. dated 26.2.2011 got no retrospective effect. Feeling aggrieved by the same the petitioner preferred an appeal dated 10.5.2012. The same was rejected by the Government as per Ext.P7 order, referred as such in the said writ petition, holding that G.O.(P) No.56/11/G. Edn dated 26.2.2011 got no retrospective effect and virtually, relying on G.O.(P) No.104/08/G. Edn dated 10.6.2008. According to the petitioner the period from 7.6.2007 is liable to be approved on **W.P.(C).9942 & 10100/13** 3 regular basis in the light of the directions in **State of Kerala V. Sneha Cheriyan** reported in **ILR 2013(1) Kerala 193** . In the latter writ petition the 5[th] respondent manager appointed the petitioner as HSA (Physical Science) against a vacancy occurred from 1.8.2010 to 31.7.2012. In fact, taking note of the rider in G.O.(P) No.104/2008/G.Edn dated 10.6.2008 the 5[th] respondent issued Ext.P2 order appointing the petitioner on daily wage basis from 2.8.2010 to 31.3.2011 and the same was approved by the 4[th] respondent therein, as per Ext.P2 referred as such in the said writ petition. It was thereafter that the aforementioned G.O. 56/2011/G. Edn dated 26.2.2011 was issued and taking note of the said G.O. the Manager issued Ext.P4 revised appointment order appointing the petitioner from 2.8.2010 to 31.7.2012. Ext.P4 was returned by the DEO, the 4[th] respondent as per Ext.P5 stating that it could not be considered without an appellate order. Feeling aggrieved by the same the petitioner in the latter writ petition filed Ext.P6 revision petition before the Government and then on being aggrieved by the delay moved W.P.(C) No. 15472/2011. The said writ petition was disposed of **W.P.(C).9942 & 10100/13** 4 as per Ext.P7 judgment with a direction to the Government to dispose of Ext.P6 revision petition. Ext.P6 revision petition was then considered by the Government and it was rejected as per Ext.P8 order holding that G.O.(P) No.56/11/G.Edn dated 26.2.2011 got no retrospective effect. Consequently, the manager issued fresh appointment order from 1.6.2011. However, the 4[th] respondent declined to approve the same as per Ext.P9. Aggrieved by the same the petitioner preferred Ext.P10 revision petition before the Director of Public Instructions and consequently the appointment of the petitioner from 1.6.2011 to 31.7.2012 was approved on a scale of pay as per Ext.P12. The contention of the petitioner is that he is entitled to get approval to his appointment with effect from 2.8.2010 to 31.7.2011 on a scale of pay. The contention of the petitioner is founded on the decision of the Hon'ble Apex Court in **Sneha Cheriyan'** s case Supra). Evidently, against the order passed by the Director in Ext.P12 the petitioner has not moved the Government for consideration of his claim as aforesaid in the light of the decision in **Sneha Cheriyan'** s case (supra). In the **W.P.(C).9942 & 10100/13** 5 former writ petition the petitioner had in fact approached the Government and her request was rejected as per Ext.P7 order. It is thus obvious from the facts expatiated earlier that in the former writ petition the challenge of the petitioner is against Ext.P7 and in the latter writ petition the challenge of the petitioner is against Ext.P8 order. Evidently, the petitioners herein had approached the Government with the aforesaid claims relying on the decision in **Unninarayanan v. State of Kerala** reported in **2009 (2) KLT 604** . Virtually, their claims were rejected holding that G.O.(P) No.56/2011/G.Edn dated 26.2.2011 got no retrospective effect. True that the appeals preferred against the decision in **Unninarayanan** 's case (supra) and connected cases were allowed by the Hon'ble Supreme Court and the judgments were set aside. At the same time, it is evident from the decision in **Sneha Cheriyan** 's case (supra) that those cases were disposed of with specific directions. As noticed hereinbefore, in the former writ petition, the decision in Ext.P7 was rendered prior to the judgment in **Sneha Cheriyan** 's case (supra) and in the latter writ petition, the petitioner is yet **W.P.(C).9942 & 10100/13** 6 to approach the Government raising grievances against Ext.P12 in the light of **Sneha Cheriyan** 's case (supra). True that the matter was found against the petitioner as per Ext.P8 order. In such circumstances, I am inclined to dispose of these writ petitions as hereunder:- In W.P.(C).No.9942 of 2013, to enable the Government to consider the claim of the petitioner in the light of the decision in **Sneha Cheriyan** 's case (supra), Ext.P7 order is set aside and the case of the petitioner raised in the petition/appeal dated 10.5.2012 which culminated in Ext.P7 for approval of appointment on regular basis from 7.6.2007 shall be reconsidered in the light of the decision in **Sneha Cheriyan** 's case (supra). In W.P.(C).No.10100 of 2013, the petitioner will be at liberty to raise his grievances against Ext.P12 order by filing proper petition before the Government and seeking for consideration of the question of approval of appointment from 2.8.2010 on regular basis in the light of **Sneha Cheriyan** 's case (supra). In case the petitioner in the latter writ petition files such a petition within a period of two weeks from the date of **W.P.(C).9942 & 10100/13** 7 receipt of a copy of this judgment, the same shall be considered in accordance with law and taking into account **Sneha Cheriyan** 's case (supra). In both the cases, such consideration in the light of the aforesaid directions shall be done expeditiously, at any rate, within three months from the date of receipt of a copy of this judgment. ## **Sd/C.T.RAVIKUMAR, JUDGE** ## **dlk/spc** # **W.P.(C).9942 & 10100/13** 8 # **W.P.(C).9942 & 10100/13** 9 # **W.P.(C).9942 & 10100/13** 10