MAYA S. v. THE STATE OF KERALA & ORS.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V ``` ``` TUESDAY, THE 1[ST]DAY OF NOVEMBER 2022 / 10TH KARTHIKA,1944 WP(C) NO. 4570 OF 2022 ``` ## `PETITIONER/S:` ``` MAYA S. AGED 42 YEARS WIFE OF RAJESH KUMAR R., UPPER PRIMARY SCHOOL ASSISTANT, ITHITHANAM HIGHER SECONDARY SCHOOL, P.O.MALAKUNNAM, CHANGANACHERRY, KOTTAYAM DISTRICT - 686 535 (RESIDING AT NARAYANA VILASAM, P.O.MALAKUNNAM, CHANGANACHERRY, KOTTAYAM DISTRICT - 686 535). ``` ``` BY ADVS. V.A.MUHAMMED V.RAJASEKHARAN NAIR ``` ## `RESPONDENT/S:` ``` 1THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEX-II, THIRUVANANTHAPURAM - 695 001. 2THE DIRECTOR OF GENERAL EDUCATION JAGATHY, THIRUVANANTHAPURAM - 695 014. 3THE DEPUTY DIRECTOR OF EDUCATION NEAR VAYASKARAKUNNU, PULIMOOD JUNCTION, KOTTAYAM - 686 001. 4THE DISTRICT EDUCATIONAL OFFICER NEAR THIRUNAKKARA TEMPLE, KOTTAYAM - 686 001. 5THE ASSISTANT EDUCATIONAL OFFICER CHANGANACHERRY, KOTTAYAM DISTRICT - 686 101. 6THE MANAGER ITHITHANAM HIGHER SECONDARY SCHOOL/ELAMKAVU L P SCHOOL, ``` W.P. (C) No.4570 of 2022 2 ``` ITHITHANAM P.O., MALAKUNNAM, CHANGANACHERRY, KOTTAYAM DISTRICT - 686 535. ``` ``` SMT.MARY BEENA JOSEPH, SR GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON01.11.2022,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` W.P. (C) No.4570 of 2022 3 ## **JUDGMENT** The petitioner states that she was appointed as a regular Lower Primary School Assistant with effect from 25.06.2007 in the Elamkavu L.P. School, Malakunnam against an additional division vacancy during the year 2006-2007, as per Ext.P1 order. However, approval was declined in view of the restrictions imposed by the Government as per order dated 17.5.2005. Thereafter, the petitioner was reappointed as UPSA for the period from 1.6.2009 to 31.3.2010 against a promotion vacancy. The appointment made as above was approved by the DEO, as is evident from Ext.P3. The petitioner contends that on 1.6.2010, in view of her status as a Rule 51A claimant, she was reappointed as UPSA in the Ithithanam Higher Secondary School, in terms Ext.P5 order. The petitioner asserts that the appointment as aforesaid was approved only with effect from 1.6.2011 by including her in the Teachers’ package. The grievance of the petitioner concerns the non-approval of her appointment as LPSA for the period from 25.06.2007 to 31.05.2009, as UPSA from 01.04.2010 to 31.05.2010 and from 01.06.2010 to 31.05.2011. The petitioner states that seeking approval, she has preferred Ext.P16 revision petition before the 1st respondent and the same is pending. W.P. (C) No.4570 of 2022 4 2. Sri. M.Sajjad, the learned counsel appearing for the petitioner submitted that the Government, as per G.O.(P) No.317/2005/G.Edn. dated 17.08.2005, imposed a ban on the appointment of teachers and non-teaching staff in additional division vacancies. Later, by G.O.(P) No.10/10/G.Edn. dated 12.01.2010, the ban on appointments was lifted subject to certain conditions. One of the conditions was that the Managers should execute a consent letter undertaking that in future vacancies, protected teachers equal to the number of teachers appointed to the additional division vacancies during the period 2006-07 to 2009-10, would be appointed. Thereafter, the Government issued G.O.(P)No.199/2011/G.Edn dated 01.06.2011 approving the recommendations for implementation of the comprehensive teacher’s package for appointment of deployed/protected teachers. The petitioner was also included in the package and her appointment was regularised with effect from 01.06.2011. According to the petitioner, similarly placed teachers had approached this Court and by various judgments, this Court had directed the respondents to approve the appointment from the date of appointment by deeming that the manager had executed the bond. The petitioner contends that relying on the law laid down by this Court, the petitioner has preferred Ext.P16 revision petition before the 1st respondent. W.P. (C) No.4570 of 2022 5 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 W.P. (C) No.4570 of 2022 6 deemed that bonds have been executed and 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 P16 revision petition filed by the petitioner with notice to the petitioner as well as the 6th respondent and take a decision, in any event, within a period of 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 W.P. (C) No.4570 of 2022 7 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. 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** Sru W.P. (C) No.4570 of 2022 8 ## `APPENDIX OF WP(C) 4570/2022` ``` PETITIONER’S EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 25/06/2007. ``` ``` Exhibit P2TRUE COPY OF THE ORDER NO.B6/7713/07/L.DIS. DATED 12/12/2007 OF THE DEO, KOTTAYAM. Exhibit P3TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 01/06/2009. Exhibit P4TRUE COPY OF THE LETTER OF THE HEADMISTRESS DATED 31/03/2010. ``` ``` Exhibit P5TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 01/06/2010. ``` ``` Exhibit P6TRUE COPY OF THE ORDER NO.B3/11098/2011/K.DIS. DATED 10/01/2012 OF THE DEO, KOTTAYAM. Exhibit P7TRUE COPY OF THE G.O(RT) NO.1392/2021/G.EDN. DATED 11/02/2021 OF THE GOVERNMENT. Exhibit P8TRUE COPY OF THE ORDER NO.D/9439/2021 DATED 15/09/2021 OF THE AEO, CHANGANACHERRY. Exhibit P9TRUE COPY OF THE STAFF FIXATION ORDER 2007-2008 DATED 31/08/2007 OF THE AEO, CHANGANACHERRY. Exhibit P10TRUE COPY OF THE FITNESS CERTIFICATE DATED 13/07/2007. Exhibit P11TRUE COPY OF THE STAFF FIXATION ORDER 2008-2009 DATED 14/07/2008 OF THE AEO, CHANGANACHERRY. Exhibit P12TRUE COPY OF THE ORDER NO.B3/20456/2021 DATED 07/12/2021 OF THE DEO, KOTTAYAM. ``` W.P. (C) No.4570 of 2022 9 ``` Exhibit P13TRUE COPY OF THE ORDER NO.B3/20458/2021 DATED 20/09/2021 OF THE DEO, KOTTAYAM. Exhibit P14TRUE COPY OF THE STAFF LIST AS ON 01/06/2010. Exhibit P15TRUE COPY OF THE ORDER NO.B3/20459/2021 DATED 21/09/2021 OF THE DEO, KOTTAYAM. ``` ``` Exhibit P16A TRUE COPY OF THE REVISION PETITION FILED BEFORE THE GOVERNMENT DATED 10/01/2022. ``` ``` Exhibit P17TRUE COPY OF THE JUDGMENT IN WA.NO.2290/2015 DATED 25/07/2017. ``` ``` RESPONDENTS EXHIBITS : NIL ```