Muhammed Kunhi C v State of Kerala and Others

**WP(C) NO. 17560 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. 17560 OF 2021** ## **PETITIONER/S:** **MUHAMMED KUNHI C, AGED 41 YEARS, CLERK, SIR SYED HIGHER SECONDARY SCHOOL, KARIMBAM P.O., TALIPARAMBAM, KANNUR DISTRICT – 670141.** **BY ADV R.KRISHNAKUMAR (CHERTHALA)** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETERIAT, THIRUVANANTHAPURAM – 695001.** - **2 DIRECTOR OF GENERAL EDUCATION, OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM 695 014** - **3 DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, KANNUR 670 001** - **4 DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, TALIPARAMBA, KANNUR DISTRICT 670 141.** - **5 MANAGER SIR SYED HIGHER SECONDARY SCHOOL, KARIMBAM P.O, TALIPARAMBA, KANNUR 670 141** - **6 HEAD MASTER SIR SYED HIGHER SECONDARY SCHOOL, KARIMBAM P.O, TALIPARAMBA, KANNUR 670 141.** **SMT NISHA BOSE, SR GP** **WP(C) NO. 17560 OF 2021 2** **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. 17560 OF 2021 3** **JUDGMENT** The petitioner states that he is working in the Sir Syed Higher Secondary School, an aided school under the management of the 5th respondent from 17.6.2005 onwards in a newly created post. He was appointed as per Ext.P1 order. However, Ext.P1 was rejected by Ext.P2 order on the ground that the post needed to be filled up by protected hands as the school is a newly opened school. The said order was challenged in appeal and by Ext.P3 order, the appeal was rejected. Later, approval was granted with effect from 2.2.2006 by Ext.P4 order. Later, the petitioner was promoted as L.D.Clerk from 5.10.2006 onwards in a newly created post as per Ext.P5 order. However, Ext.P5 order was rejected by the 4th respondent on the ground that the post had to be filled up with protected hands. Though the petitioner pursued the matter by filing an appeal and thereafter by preferring a revision petition as Ext.P7, it was rejected by Ext. P8 order. While approval of the petitioner was pending consideration, the 1st respondent came out with G.O.(P) No.10/10/G.Edn. dated 12.1.2010 and based on the same, the 4th respondent revised the staff fixation orders for the academic years 2006-2007 to 2009-2010. The petitioner contends that pointing out the lifting of the economic ban and the introduction of teachers package, the petitioner approached the 1st respondent and filed Ext.P10 revision petition. Pursuant to orders passed by this Court, the revision petition was taken up and considered by the 1st respondent and Ext.P12 order was passed rejecting the revision petition. The 4th respondent was directed to **WP(C) NO. 17560 OF 2021 4** take a decision after examining the bond executed by the 5th respondent. The petitioner contends that based on Ext.P12, the 4th respondent has issued Ext.P13 order rejecting the claim of the petitioner on the ground that the bond executed by the 5th respondent is not sufficient to grant approval to the petitioner for the period prior to 1.6.2011. It is in the afore circumstances that the petitioner is before this Court seeking the following reliefs: (i)to issue a writ of certiorari or any other appropriate writ to quash Exts.P12 and P13 orders and to extent the denial of approval in Ext.P5 as it is illegal and unjustifiable (ii) to issue a writ of mandamus or any other appropriate writ or order or direction directing the 4th respondent to approve the appointment of the petitioner as Lower Division Clerk from 5.10.2006 to 31.5.2011 and to disburse all consequential monitory benefits due to him forthwith. (iii) to issue a writ of mandamus or any other appropriate writ or order or direction directing the 1st respondent to reconsider Ext.P10 revision petition with deeming provision as expeditiously as possible. (iv) to declare that the petitioner is entitled to get approval to his post in the light of Ext.P14 judgment. 2. Sri. R. Krishnakumar, 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 hands, equal to the number of appointments approved during the ban period. The learned counsel points out that the law **WP(C) NO. 17560 OF 2021 5** laid down by this Court has not been taken note of while passing Exts.P12 and P13 orders. 3. The learned Government Pleader submitted that 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 12.1.2010 and those matters are now pending before the Apex Court. 4. I have considered the submissions advanced. 5. 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 the bond by the Managers, it should be 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. A mere perusal of Ext.P13 order passed by the 4th respondent would reveal that the insufficiency of the bond executed by the Manager was the sole reason for denying the approval. In that view of the matter, Ext.P13 order cannot be sustained. 6. After having carefully evaluated the contentions raised in this writ petition, the submissions made across the Bar and the facts and circumstances, **WP(C) NO. 17560 OF 2021 6** I am of the view that this writ petition can be disposed of by issuing the following directions: - a) Ext.P13 order passed by the 4th respondent will stand set aside. - b) The 1st respondent is directed to reconsider the Ext.P10 revision petition 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. - c) While considering the revision petition, 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 hands equal to the number of appointments approved during the ban period. It is made clear that the orders passed as aforesaid are subject to the final decision to be rendered by the Hon’ble Supreme Court in the matters which are said to be pending. - d) It would be open to the petitioner to produce a copy of the **WP(C) NO. 17560 OF 2021 7** 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 **WP(C) NO. 17560 OF 2021 8** ## **APPENDIX OF WP(C) 17560/2021** ## **PETITIONER EXHIBITS** **Exhibit P1 A TRUE COPY OF THE APPOINTMENT ORDER DT 17-06-2005 ISSUED BY THE 5TH RESPONDENT.** **Exhibit P2 A TRUE COPY OF THE ORDER NO. B4/9103/2006/K.DIS DATED 09-04-2007 ISSUED BY THE 4TH RESPONDENT.** - **Exhibit P3 A TRUE COPY OF THE ORDER NO. B4/9340/07/K.DIS DATED 23-07-2007 ISSUED BY THE 3RD RESPONDENT** - **Exhibit P4 A TRUE COPY OF THE ORDER NO. B1/925/15/K/DIS. DATED 13-04-2015 ISSUED BY THE 4TH RESPONDENT** **Exhibit P5 A TRUE COPY OF THE APPOINTMENT ORDER DATED 05-10-2006 ISSUED BY THE 5TH RESPONDENT** - **Exhibit P6 A TRUE COPY OF THE ORDER NO. B4/9107/2006/K.DIS DATED 09-04-2007 ISSUED BY THE 4TH RESPONDENT.** **Exhibit P7 A TRUE COPY OF THE REVISION PETITION DATED 09-08-2007 SUBMITTED BY THE 5TH RESPONDENT Exhibit P8 A TRUE COPY OF THE ORDER NO. EM(3)/58928/07/DPI/K.DIS DATED 14-02-2008 ISSUED BY THE 2ND RESPONDENT.** - **Exhibit P9 A TRUE COPY OF THE REVISED STAFF FIXATION ORDER NO. B4/3264/10/K DIS DATED 12-1-2011 OF THE 4TH RESPONDENT** - **Exhibit P10 A TRUE COPY OF THE REVISION PETITION DATED 11-10-2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT** **Exhibit P11 A TRUE COPY OF THE JUDGMENT DATED 07-102020 IN W.P(C) NO. 240/2020 ISSUED BY THIS HON'BLE COURT** **Exhibit P12 A TRUE COPY OF THE G.O(RT) NO. 1427/2021/G.EDN DATED 12-02-2021 ISSUED BY THE 1ST RESPONDENT.** **WP(C) NO. 17560 OF 2021 9** **Exhibit P13** **A TRUE COPY OF THE ORDER NO. B1/1277/20/A.DIS DATED 26-03-2021 ISSUED BY THE 4TH RESPONDENT** **Exhibit P14** **A TRUE COPY OF THE JUDGMENT DATED 26-072017 IN W.A NO. 2592/2015 PASSED BY THIS HON'BLE COURT** **Exhibit P15** **A TRUE COPY OF THE JUDGEMENT DATED 30-102020 IN W.P(C) NO. 22764/2020 OF THIS HON'BLE COURT.** - **Exhibit P16 A TRUE COPY OF THE JUDGEMENT DATED 09-072021 IN W.P.C NO 12602/2021 OF THIS HON'BLE COURT.** - **Exhibit P17 A TRUE COPY OF THE ORDER NO. K. DIS B1/7292/18 DATED 20-07-2019 ISSUED BY THE 4TH RESPONDENT.** - **Exhibit P18 A TRUE COPY OF THE ORDER NO. B1/5829/2019 K.DIS DATED 20-02-2020 ISSUED BY THE 4TH RESPONDENT.** ## **RESPONDENTS EXHIBITS:NIL**