K.S. Sindhu v. State of Kerala and Others

**WP(C) NO. 14680 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943** ## **WP(C) NO. 14680 OF 2021** ## **PETITIONER:** K.S.SINDHU AGED 46 YEARS W/O. MANOJ.B., H.S.A. (NATURAL SCIENCE), S.V.H.S.S.CLAPPANA, KARUNAGAPPALY, KOLLAM, RESIDING AT SUDHINALAYAM, KALLIKKAD, ARATTUPUZHA P.O., ALAPPUZHA BY ADV B.MOHANLAL ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 THE DIRECTOR OF GENERAL EDUCATION, GOVERNMENT OF KERALA, JAGATHY, THIRUVANANTHAPURAM-695 014 3 THE DEPUTY DIRECTOR OF EDUCATION, THEVALLY P.O., KOLLAM-691 009, 4 THE DISTRICT EDUCATIONAL OFFICER, COLLECTORATE, CUTCHERY P.O., KOLLAM-691 013 5 THE MANAGER, S.V.H.S.S., CLAPPANA, CLAPPANA P.O., KARUNAGAPPALLY, KOLLAM-690 546 SMT NISHA BOSE, SR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 14680 OF 2021** **2** **JUDGMENT** The petitioner states that she was appointed to the post of HSA (Natural Science) in the SVHSS, Clappana, an aided school under the management of the 5th respondent from 5.6.2006 against the retirement vacancy of Smt. Bhageerathi Amma. She states that pursuant to orders issued by this Court, the appointment of the petitioner as HSA (NS) in the school for the period from 5.6.2006 to 14.7.2007 against the retirement vacancy of Smt. Bhageerathi Amma and from 15.7.2007 to 25.7.2010 or till vacancy exists against the leave without allowance vacancy of Smt. R. Deepthi, HSA (Natural Science) was approved by Ext.P1 order. Later, Ext.P3 order was issued by the 5th respondent appointing the petitioner to the post of HSA (NS) in Ext.P2 leave vacancy of Smt. R.Deepthi in the school for the period from 26.07.2010 to 31.05.2015. However, the appointment was rejected on the ground that the 5th respondent did not execute the bond in terms of G.O.(P) No.10/10/G.Edn. dated 12.1.2010. Later, by Ext.P4 order, the 4th respondent proceeded to approve the appointment of the petitioner, however, it was with effect from 1.6.2011. The petitioner states that she continued to work in the school in the leave vacancy from 15.07.2007 onwards, she being a claimant under Rule 51A Chapter XIV of the K.E.R. She states that Ext.P6 representation was then filed by the 5th respondent requesting to approve the appointment of the petitioner for the **WP(C) NO. 14680 OF 2021** **3** period from 26.7.2010 to 31.5.2011 so as to get continuity of approval till 1.6.2011. After several reminders and pursuant to orders issued by this Court, issued Ext.P12 order wherein it is stated that since the challenge raised by the Managers over G.O.(P) No.10/10/G.Edn. dated 12.1.2010, is pending before the Hon’ble Supreme Court, the approval of the petitioner could not be considered at this stage. It is in the afore circumstances that the petitioner is before this Court seeking the following reliefs: “ (i) To call for the record leading to Exhibit-P12 Order from the 1st respondent and to quash Exhibit-P12 order to the extent it orders declining to approve the appointment of the petitioner to the post of H.S.A. (Natural Science) in the 5th respondent Aided Management School for the period from 26.07.2010 to 31.05.2011. (ii) To issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to approve the appointment of the petitioner to the post of H.S.A. (Natural Science) in the 5th respondent Aided Management School for the period from 26.07.2010 to 31.05.2011 within a stipulated time as directed by this Hon’ble Court. (iii) To issue a writ of mandamus or other appropriate writ, order or direction commanding the 1st respondent to reconsider Exhibit-P12 order and Exhibit-P6 appeal filed by the 5th respondent and Exhibit-P9 application filed by the petitioner within a stipulated time as directed by this Hon’ble Court after hearing the parties and approve the appointment of the petitioner to the post of H.S.A. (Natural Science) in the 5th respondent Aided Management School for the period from 26.07.2010 to 31.05.2011. (iv) To issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to grant scale of pay to the petitioner after approval of appointment to the post of H.S.A. (Natural Science) in the 5th respondent Aided Management School **WP(C) NO. 14680 OF 2021** **4** for the period from 26.07.2010 to 31.05.2011. (v) To declare that the petitioner is entitled to get approval of appointment to the post of H.S.A. (Natural Science) in the 5th respondent Aided Management School for the period from 26.07.2010 to 31.05.2011.” 2. Sri. B. Mohan Lal, 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 Manager, 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 points out that the law laid down by this Court has not been taken note of while passing Ext.P12 order. The learned counsel also pointed out that in view of Rule 43 of Chapter XIVA of the KER, the petitioner is having a statutory right. 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 12.1.2010, 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) **WP(C) NO. 14680 OF 2021** **5** No.10/10/G.Edn. dated 12.1.2010 and those matters are now pending before the Apex Court. 4. By order dated 09.08.2021, this Court had directed the learned Government Pleader to get instructions as to whether the orders have been passed by the Government on Exts.P6 and P7. Today, when the matter was taken up, it was submitted that Ext.P6 was filed as early as on 10.05.2013 and the records concerning the same are not traceable. 5. I have considered the submissions advanced. From Exhibit-P12 order, it appears that the request made by the petitioner herein was rejected on the sole ground that some of the Managers had challenged GO (P) No.10/10/G.Edn. dated 12.01.2010 and those proceedings are pending before the Supreme Court. A perusal of Exhibit-P12 would show that neither the petitioner herein nor the Manager was heard before orders were passed by the Secretary. 6. A Division Bench of this Court in **State of Kerala and Ors. v.** **V.S.Suma Devi and Ors** . [judgment dated 1.8.2017 in W.A.No.2111/2015], has held that in the case of non-execution of bond by the Managers, it should be deemed to have been executed and they would be obliged to make an equal number of appointments when the appointments to additional vacancies made during the ban period are approved. A mere perusal of Ext.P12 order would reveal that the request **WP(C) NO. 14680 OF 2021** **6** made by the petitioner herein was rejected on the sole ground that the proceedings challenging the Government Order were pending before the Supreme Court. Furthermore, it is apparent from Exhibit-P12 that no opportunity was granted either to the petitioner or to the Manager to substantiate their respective contentions. In that view of the matter, ExhibitP12 order cannot be sustained. 7. 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) Ext.P12 order passed by the 1st respondent will stand set aside. - b) The 1st respondent is directed to reconsider Ext.P6 appeal filed by the 5th respondent and Ext.P9 application filed by the petitioner and pass orders with notice to the petitioner as well as the 5th respondent and take a decision, taking note of the law laid down by this Court in - **Suma Devi** (supra). Orders shall be passed expeditiously, in any event, within a period of three months from the date of receipt of a copy of this judgment. **WP(C) NO. 14680 OF 2021** **7** - c) While considering the representation, the Secretary to Government shall bear in mind that the Managers would be deemed to have executed the bond and also that they would be obliged to make appointments from the list of protected teachers equal to the number of appointments approved during the ban period. - d) 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** DSV **WP(C) NO. 14680 OF 2021** **8** ## **APPENDIX OF WP(C) 14680/2021** PETITIONER'S EXHIBITS: Exhibit P1 THE TRUE COPY OF THE ORDER NO.B4/1769/2009/K.DIS DATED 23.06.2009 ISSUED BY THE 4TH RESPONDENT Exhibit P2 THE TRUE COPY OF THE G.O(RT) NO.2040/10/G.EDN DATED 15.05.2010 ISSUED BY THE GOVERNMENT - Exhibit P3 THE TRUE COPY OF THE APPOINTMENT ORDER DATED 26.07.2010 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER - Exhibit P4 THE TRUE COPY OF THE ORDER NO.2717/A3/2012/G.EDN DATED 26.12.2012 ISSUED BY THE GOVERNMENT TO THE 4TH RESPONDENT - Exhibit P5 THE TRUE COPY OF THE ORDER NO.B4/1445/2013/K.DIS DATED 27.02.2013 ISSUED BY THE 4TH RESPONDENT - Exhibit P6 THE TRUE COPY OF THE APPEAL DATED 10.05.2013 FILED BY THE 5TH RESPONDENT MANAGER BEFORE THE 1ST RESPONDENT - Exhibit P7 THE TRUE COPY OF THE REMINDER NO.SV/059/2014 DATED 05.04.2014 SUBMITTED BY THE 5TH RESPONDENT TO THE 1ST RESPONDENT - Exhibit P8 THE TRUE COPY OF ORDER NO.B4/5220/2016 DATED 17.08.2016 ISSUED BY THE 4TH RESPONDENT - Exhibit P9 THE TRUE COPY OF THE REPRESENTATION DATED 23.11.2017 SUBMITTED BY THE PETITIONER TO THE HON'BLE MINSTER OF EDUCATION - Exhibit P10 THE TRUE COPY OF G.O(MS) NO.1733/2018/G.EDN DATED 16.02.2018 ISSUED BY THE GOVERNMENT - Exhibit P11 THE TRUE COPY OF G.O(MS) NO.2042/2018/G.EDN DATED 02.06.2018 **WP(C) NO. 14680 OF 2021** **9** ISSUED BY THE GOVERNMENT Exhibit P12 THE TRUE COPY OF THE ORDER NO.A3/54/2018/G.EDN DATED 13.09.2018 ISSUED BY THE GOVERNMENT TO THE PETITIONER Exhibit P13 THE TRUE COPY OF THE COMMON JUDGMENT DATED 09.08.2019 W.A.NO.300/2019 AND OTHER CONNECTED CASES OF THIS HON'BLE COURT RESPONDENTS EXHIBITS:NIL