Maya T.S. v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945** **WP(C) NO. 36042 OF 2018** ## **PETITIONER:** MAYA T.S., H.S.A. (SOCIAL STUDIES), S.N.TRUSTS H.S.S. NATTIKA, NATTIKA P.O., THRISSUR-680566. BY ADVS. KALEESWARAM RAJ VARUN C.VIJAY A.ARUNA THULASI K. RAJ RIYA RAYMOL IYPE MAITREYI SACHIDANANDA HEGDE ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM- 695001. 3 DEPUTY DIRECTOR OF EDUCATION, THRISSUR- 680001. 4 DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD- 680506. 5 MANAGER, SN TRUST SCHOOL, KOLLAM- 691001. BY ADVS. SMT.NISHA BOSE, SENIOR GOVERNMENT PLEADER SRI.A.N.RAJAN BABU SRI.P.GOPALAKRISHNAN (MVA) SRI.A.R.EASWAR LAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 36042 OF 2018 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------W.P.(C)No. 36042 of 2018** **---------------------------------------------Dated this the 22[nd] day of March, 2023** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) To declare that the petitioner is entitled to get her appointment as H.S.A (Social Studies) in the 5th respondent's school approved for the period from 15-07-2002 to 7-3-2006._ _(ii) To issue a writ of certiorari quashing Ext.P2, P3, P4, P8 and P17 as unjust, illegal and untenable._ _(iii) To issue a writ of certiorari quashing Ext.P11 and P12 to the extent to which they deny approval of appointment of the petitioner as HSA(Social studies) from 15-07-2002 to 7-3-2006._ _(iv) To issue a writ of mandamus directing the 1st respondent to pass orders approving appointment of the petitioner with effect from 1507-2002 to 07-3-2006._ _(v) To issue such other orders directions or writs as may be prayed for and that this Hon'ble_ WP(C) NO. 36042 OF 2018 3 _Court may deem fit on the facts and circumstances of the case.”[SIC]_ 2. The petitioner was appointed as H.S.A. (Social Studies) as per Ext.P1 order. Ext.P2 proposal for approval of appointment of the petitioner was rejected stating that there was no vacancy to accommodate the petitioner and since the said School was newly opened, vacancies should have been filled up from protected teachers. It is the case of the petitioner that going by the relevant government orders, the petitioner was entitled to be appointed as H.S.A.(Social studies) during the academic year 20022003. It is also the case of the petitioner that, similar persons like the petitioner were extended the said benefit as per Exts.P13 and P14 and got their appointment approved. The petitioner is also entitled to get the said benefit is the submission. In Ext.P15 judgment, this Court had specifically directed the 1[st] WP(C) NO. 36042 OF 2018 4 respondent to consider the claim of the petitioner for approval with effect from 15.07.2002 adverting to Ext.P14 Government Order and by invoking Rule 3 Chapter I KER, by providing necessary relaxation. Ext.P17 is now issued by the Government in violation of the directions contained in Ext.P15 judgment, is the submission. Aggrieved by Ext.P17 and seeking a direction to the first respondent to approve the appointment of the petitioner with effect from 15.07.2002 to 07.03.2006, this writ petition is filed. 3. Heard counsel appearing for the petitioner and the learned Government Pleader. 4. The petitioner earlier approached this Court with a writ petition and this Court disposed of that writ petition as per Ext.P15 judgment. It will be better to extract the relevant portion of the above judgment: _“3. From the orders impugned in this writ_ WP(C) NO. 36042 OF 2018 5 _petition, I see that the petitioner has been denied approval with effect from 15.07.2002 on two grounds. The first is that there were no additional divisions in the school to accommodate the petitioner in the post of HSA(SS). The second is that since the school being a newly opened school, under the provisions of the Government Order applicable, the Manager ought to have appointed protected teachers and not teachers from open market._ _4. I have considered the contentions of the parties quite in extenso. As regards the question of appointments to newly opened school is concerned, this issue has been considered by this Court in_ _**State of Kerala v. Nadeera** (2013 (2) KLT 88), wherein the law has been declared that the obligation of the Manager to appoint a protected teacher in a newly opened school would arise only when the educational authorities forward to the Manager a list of such teachers and if the Manager does not appoint from such list. In the case at hand, I am told that no such list was forwarded to the Manager and, therefore, that the Manager was incapacitated to make any such appointment in terms of the Government Order. The action of the Manager cannot be found fault with in view of the affirmative declaration of this Court in_ _**Nadeera** (supra)._ _5. As regards the objection with respect to absence of additional divisions to accommodate the_ WP(C) NO. 36042 OF 2018 6 _petitioner is concerned, the learned counsel for the petitioner asserts that as per the revised staff fixation order for the year 2002-03 there were two posts of HSA(SS) and two posts of HSA(English). He says that against the sanctioned posts of HSA(SS) three teachers were appointed but that as against the two posts of HSA (English) there was only one teacher. He, therefore, maintains that the petitioner, who was accommodated as the third teacher in the post of HSA(SS), was entitled to continue since she could have been appointed against the available post of HSA(English). He avouches that the school had sufficient students warranting subject requirement to have the third post of HSA(SS)._ _6. Even though the assertions of the petitioner being as above, I do not see that the Government has considered this issue in its logical perspective at all. I notice that, in the impugned orders, this issue has not gained the attention of the Government. Therefore, I am of the view that this is a matter that will have to be reconsidered by the Government adverting to Exhibit P14, which is stated to be an order issued by the Government in similar circumstances accommodating teachers who were situated similar to the petitioner._ _In such circumstances, I order this writ petition directing the competent Secretary of the Government of Kerala to consider the claim of the petitioner for_ WP(C) NO. 36042 OF 2018 7 _approval as HSA(SS) with effect from 15.07.2002, namely the date of Exhibit P1 order, on the touch stone of the issue as to whether there were sufficient posts of HSA to accommodate her._ _I make it clear that the issue regarding newly opened school shall not be considered or adverted to since this is an issue that has already been considered and concluded upon by me in this judgment as above._ _The competent Secretary shall, therefore, consider the case of the petitioner, after affording an opportunity of being heard to her, as expeditiously as possible but not later than three months from the date of receipt of a copy of this judgment, adverting to Exhibit P14 Government Order as also the assertion of the petitioner that there were enough posts and subject requirement in the school to accommodate the third post of HSA(SS). This consideration shall be made by the Government keeping in mind the provisions of Rule 3 Chapter I of the KER which authorises the Government to pass appropriate and consequential orders taking into account the requirements of the school and the specific circumstances mentioned by the petitioner in this writ petition._ _To pave way for a fresh consideration at the hands of the competent Secretary of the Government of Kerala, I quash Exhibit P8 order, however, clarifying that I have not considered the merits of that_ WP(C) NO. 36042 OF 2018 8 _order. I deem it appropriate to quash the same so that the issues can be considered afresh by the competent Secretary without being in any manner trammeled by what is stated therein.”_ 5. Based on Ext.P15 judgment, the Government passed Ext.P17 order. The discussion and conclusion of the Government in Ext.P17 is extracted hereunder: _“Government have directed the DEO to consider the appointment of Smt.Maya T.S as per the provisions of G.O(MS) 19/09/G.Edn dated 09/02/2009, if she is otherwise eligible as per the provisions of the Kerala Educational Rules. Based on the Government direction, the DEO already approved the appointment of the petitioner w.e.f. 9/3/2006 onwards as HSA (SS) vide Order B5/3837/2010/DDis dated 02/09/2011. Hence the request of the petitioner in the hearing to approve the appointment of the petitioner as HSA(SS) against the sanctioned post of HSA (English) from 15/7/2002 onwards by relaxing the subject ratio requirement cannot be considered even on leniency. The assertion of the petitioner that there were enough posts and subject requirement in the school to accommodate the third_ WP(C) NO. 36042 OF 2018 9 _post of HSA(SS) is not correct as there were only two posts of HSA(SS) in the school in year 2002-03, which were occupied by seniors to her. In this backdrop, the request is not a considerable one and hence rejected and order accordingly._ _The directions of the Hon'ble High Court of Kerala in the judgment read as second paper above are thus complied with.”_ 6. I am of the considered opinion that the Government has not considered the matter in the right perspective and also adverting the directions issued by this Court in Ext.P15 judgment. Moreover, Exts.P13 and P14 orders are also to be considered by the Government while deciding the matter. To facilitate the Government to reconsider the matter, Ext.P17 can be set aside. Therefore, this writ petition is disposed of in the following manner: i. Ext.P17 is set aside. ii. The 1[st] respondent is directed to WP(C) NO. 36042 OF 2018 10 reconsider the matter in the light of the specific directions in Ext.P15 judgment and also in the light of Exts.P13 and P14 orders. iii. Before passing final orders, an opportunity of hearing should be given to the petitioner. iv. The above exercise shall be completed by the 1[st] respondent, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a certified copy of this judgment. v. The petitioner will produce a certified copy of this judgment along with a copy of this writ petition before the 1[st] respondent for compliance. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM WP(C) NO. 36042 OF 2018 11 ## **APPENDIX OF WP(C) 36042/2018** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |EXHIBIT P1|TRUE COPY OF THE ORDER DATED| ||15.07.2002 ISSUED BY THE 5TH| ||RESPONDENT.| |EXHIBIT P2|TRUE COPY OF THE ORDER DATED| ||103.03.2003 ISSUED BY THE 4TH| ||RESPONDENT.| |EXHIBIT P3|TRUE COPY OF THE ORDER DATED| ||26.06.2004 ISSUED TO THE 5TH| ||RESPONDENT.| |EXHIBIT P4|TRUE COPY OF THE ORDER DATED| ||08.07.2005 ISSUED BY THE 2ND| ||RESPONDENT.| |EXHIBIT P5|TRUE COPY OF THE REVISION PETITION| ||DATED 10.08.2005 PREFERRED BY THE| ||MANAGER BEFORE THE 1ST RESPONDENT.| |EXHIBIT P6|TRUE COPY OF THE REPRESENTATION| ||DATED 10.02.2006 SUBMITTED BY THE| ||PETITIONER BEFORE THE HON'BLE| ||MINISTER FOR EDUCATION.| |EXHIBIT P7|TRUE COPY OF THE COMMUNICATION DATED| ||25.04.2006 ISSUED BY THE 1ST| ||RESPONDENT.| |EXHIBIT P8|TRUE COPY OF G.O(RT)NO.3042/2006| ||DATED 17.07.2006.| |EXHIBIT P9|TRUE COPY OF THE REPRESENTATION| ||DATED 31.08.2006 SUBMITTED BY THE| ||PETITIONER.| |EXHIBIT P10|TRUE COPY OF THE REPRESENTATION| ||DATED 18.12.2006 SUBMITTED BY THE| WP(C) NO. 36042 OF 2018 12 5TH RESPONDENT. EXHIBIT P11 TRUE COPY OF THE LETTER DATED 28.04.2009 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P12 TRUE COPY OF THE ORDER DATED 02.09.2011. EXHIBIT P13 TRUE COPY OF G.O(RT)NO.3501/04 DATED 10.08.2004. EXHIBIT P14 TRUE COPY OF THE G.O(RT)NO.4883/05 DATED 17.10.2005. EXHIBIT P15 TRUE COPY OF THE JUDGMENT DATED 24.05.2017 IN W.P.(C)NO.1250/2014. EXHIBIT P16 TRUE COPY OF THE LETTER NO.A1/263/2017/G.EDN DATED 25.11.2017. EXHIBIT P17 TRUE COPY OF G.O(RT)NO.4316/2018/G.EDN DATED 22.10.2018. RESPONDENT EXHIBITS: NIL //TRUE COPY// PA TO JUDGE