N. Bindu v. State of Kerala & others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933** **WP(C).No. 10194 of 2006(L)** **--------------------------------------** ## **PETITIONER(S):** **----------------------** **N. BINDU, HIGH SCHOOL ASSISTANT (ENGLISH), R.M. HIGH SCHOOL, MELATTUR, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI.** ## **RESPONDENT(S):** ## **--------------------------** **1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPT., GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM.** **3. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM.** **4. THE DISTRICT EDUCATIONAL OFFICER, MALAPPURAM.** **5. THE MANAGER, R.M. HIGH SCHOOL, MELATTUR, MALAPPURAM DISTRICT.** ## **6. SRI.SUGUNA PRAKASH, HSA (NATURAL SCIENCE),** **R.M. HIGH SCHOOL, MELATTUR, MALAPPURAM DISTRICT.** **7. SRI.K.M. SHANAVAS, HSA (PHYSICAL SCIENCE),** - **R.M. HIGH SCHOOL, MELATTUR, MALAPPURAM DISTRICT.** **R1 TO R4 BY GOVT. PLEADER MR.BIJOY CHANDRAN. R5 BY ADV. SRI.V.G.ARUN. R6 BY ADV. SRI.N.MANOJ KUMAR, SMT.JAYASREE MANOJ.** **R7 BY ADV. SRI.P.C.SASIDHARAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** **WP(C).No. 10194 of 2006(L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **EXT.P1: COPY OF THE G.O.(MS) NO.11/2002/GEN. EDN. DATED 07/01/2002 ISSUED BY THE 1ST RESPONDENT.** **EXT.P2: COPY OF THE REQUEST DATED 28/05/2002 SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT.** **EXT.P3: COPY OF THE APPOINTMENT ORDER DATED 05/06/2002 ISSUED BY THE 5TH RESPONDENT.** **EXT.P4: COPY OF THE STAFF FIXATION ORDER NO.D.DIS.B5/5822/2002 DATED 10/01/2003 FOR THE YEAR 2002-2003.** **EXT.P5: COPY OF THE ORDER APPROVING THE APPOINTMENT OF THE 6TH RESPONDENT AS HIGH SCHOOL ASSISTANT (SOCIAL STUDIES) DATED 28/01/2004 BY THE 4TH RESPONDENT.** **EXT.P6: COPY OF THE ORDER NO.EM4-9094/2004/DPI/KDIS. DATED 09/03/2004 ISSUED BY THE 2ND RESPONDENT.** **EXT.P7: COPY OF THE ORDER NO.B2/21103/03/K.DIS. DATED 12/03/2004, ISSUED BY THE 3RD RESPONDENT.** **EXT.P8: COPY OF THE REVISION DATED 01/04/2004 FILED BY THE PETITIONER AGAINST EXT.P6 BEFORE THE 1ST RESPONDENT.** **EXT.P9: COPY OF THE ORDER NO.39419/E.2/04/GEN. EDN. DATED 13/08/2004 ISSUED BY THE GOVERNMENT TO THE 4TH RESPONDENT.** **EXT.P10: COPY OF THE ORDER NO.23457/E2.05/GEN. EDN. DATED 17/05/2005 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT.** **EXT.P11: COPY OF THE ORDER NO.23457/E2./GEN. EDN. DATED 03/01/2006 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R7(a): COPY OF THE PROCEEDINGS ISSUED BY D.E.O. MALAPPURAM DATED 10/11/2000.** **EXT.R7(b): COPY OF THE PROCEEDINGS OF THE D.E.O. DATED 11/09/2002.** **EXT.R7(c): COPY OF THE ORDER OF THE D.P.I. DATED 07/03/2005.** **EXT.R7(d): COPY OF THE PROCEEDINGS OF THE D.E.O. DATED 30/03/2005.** **ANNEXURE R6(a): COPY OF THE ORDER DATED 24/11/2003 ISSUED BY 3RD RESPONDENT.** **EXT.R5(a): COPY OF THE APPOINTMENT ORDER DATED 07/06/2002.** **(P.T.O.)** **WP(C).No. 10194 of 2006(L)** **EXT.R5(b): COPY OF THE APPOINTMENT ORDER DATED 09/12/2002.** **EXT.R5(c): COPY OF THE APPOINTMENT ORDER OF THE 7TH RESPONDENT DATED 07/06/2002.** **EXT.R5(d): COPY OF THE LETTER DATED 21/07/2002.** **EXT.R6(b): COPY OF THE ORDER DATED 08/02/2008. EXT.R6(c): COPY OF THE ORDER DATED 22/05/2008. EXT.R6(d): COPY OF THE APPOINTMENT ORDER DATED 28/02/2008.** **//TRUE COPY//** **P.A. TO JUDGE** **rs** ## **S. SIRI JAGAN, J.** ------------------------------------------- ## W.P.(C) No.10194 of 2006 ---------------------------------------------Dated this the 23[rd] day of September, 2011 ## **JUDGMENT** On 7.1.2002, the Government of Kerala issued Ext.P1 Government Order creating a new cadre of HSAs (English) in aided and Government Schools. In Ext.P1 order, the following directions were issued: “xxx xxx xxx xxx 3. Government have examined these proposals in detail and are pleased to order as follows. (a) new cadre of HSAs(English) will be created in the Aided and Government Schools by re-allocating the periods of English now allocated to the core subjects (Maths, Science and Social Studies) in a phased manner, without causing retrenchment in existing HSAs (core subjects). The new cadre will be created by appointing/promoting qualified hands against the vacancies caused by retirement/additional division/Resignation/leave observing the minimum subject ratio requirement between Maths, Science and Social Studies with a view to achieve the object of distribution of posts envisaged in the table given in the appendix. (b) The qualification to the post of HSAs (English) will be fixed as follows. (i) A Degree in English language and Literature. (ii) B.Ed/BT/LT/ with English as Optional subject conferred or recognised by any of the Universities in Kerala. In the absence of those with qualifications in item (ii) Candidates with B.Ed/BT/LT in any other subject conferred or recognised by any of the Universities in Kerala will be considered. (c) The present order of subjects of Science, W.P.(C)No.10194/06 2 Maths and Social Studies followed for staff fixation of HSA (Core subjects) will be revised as Social Studies, General Science and Maths as a temporary measure so as to achieve the creation of a separate cadre of the HSA (English) and the D.P.I. Will be authorised to issue specific orders in this regard. (d) In order to implement the orders at para 3 (a) above a temporary ban of promotion of claimants as per Rule 43 of Chapter XIV A KER will be imposed, exempting those who have the prescribed qualification to be posted as HSA (English). (e) The above Scheme will be implemented from the academic year 2002-2003.” In the aided school managed by the 5[th] respondent there arose a vacancy, which should have been filled up by a teacher having qualifications for appointment as HSA (English), in accordance with Ext.P1 Government Order. The petitioner was a UPSA working in the same school. The petitioner does possess the qualifications for being appointed as a HSA (English). Accordingly, by Ext.P3 appointment order, the petitioner was appointed as an HSA (English) in the 5[th] respondent's School. That appointment was not approved, stated to be on the ground that, for such appointment prior permission was not obtained from the Government. Subsequently, a learned Single Judge of this Court held that Ext.P1 Government Order cannot be implemented without 3 W.P.(C)No.10194/06 amending the Kerala Education Rules. In accordance with the learned Single Judge decision, the petitioner was reverted to the post of UPSA. The petitioner and others challenged that judgment in an appeal, which resulted in the Division Bench decision of this Court in _**Anitha John**_ v. _**Eldhose Mathew**_ [2002(3) KLT 974]. In that judgment, while upholding Ext.P1 Government Order, the Division Bench directed that those teachers who were appointed on the basis of the above Government Order and terminated or reverted on the basis of the judgment of the learned Single Judge shall be reinstated forthwith. It was also stated that consequently if teachers are appointed in their place on the basis of the impugned judgment, they shall be reverted or retrenched as the case may be. The 7[th] respondent was appointed by the Manager on 7.6.2002, to the post to which the petitioner was originally appointed on 5.6.2002. It appears that, in the meanwhile, the Manager had shifted the petitioner to some other leave vacancy which was also not approved. In accordance with the judgment in _**Anitha John's**_ case (Supra), the petitioner approached the Government and the Government issued W.P.(C)No.10194/06 4 Exts.P9, P10 and P11 directions to the District Educational Officer and the Deputy Director of Education to approve the appointment of the petitioner as HSA (English) in terms of G.O.(P)No.169/04/G.Edn. dated 15.6.2004, if otherwise she is eligible and report compliance. In the meanwhile the petitioner was appointed as HSA with effect from 2.6.2003 which appointment has been approved also. The petitioner now seeks service benefits with effect from 5.6.2002 in the English cadre vacancy created by Ext.P1. Therefore, the petitioner has filed this writ petition seeking the following reliefs: “i. Issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 4 and 5 to implement Exts.P9 to P11 and take immediate steps for approval of the appointment of the petitioner as per Ext.P3 with all consequential benefits including arrears of salary; ii. Declare that the appointment of the petitioner as High School Assistant (English) as per Ext.P3 is liable to be approved by the fourth respondent and the petitioner is entitled for all consequential benefits including arrears of salary; iii. Issue a writ of mandamus or any other appropriate writ, order or direction directing the 4[th] respondent to approve the appointment of the petitioner as High School Assistant (English) as per Ext.P3 and grant her all consequential benefits including seniority and arrears of salary.” 2. The 4[th] respondent - District Educational Officer has W.P.(C)No.10194/06 5 filed a counter affidavit practically admitting the petitioner's claim. The 4[th] respondent has specifically stated that the appointment of the petitioner to the post with effect from 5.6.2002 was in order. Of course, the petitioner originally claimed appointment in preference to the 6[th] respondent as well. But, in view of the documents now produced by the 6[th] respondent by which the Government has approved the appointment of the 6[th] respondent with effect from 15.7.1999, which has become final, the petitioner now confines the petitioner's relief against the 7[th] respondent alone, who was appointed in the vacancy to which the petitioner was originally appointed on 5.6.2002. 3. The 7[th] respondent has filed a counter affidavit, wherein the stand taken by the 7[th] respondent is that insofar as the 7[th] respondent's appointment and approval by the Director of Public Instruction by Ext.R7(c) order dated 7.3.2005, has not been challenged, the petitioner cannot now claim precedence over the 7[th] respondent in the matter of appointment to the vacancy which arose on 5.6.2002. 4. The 5[th] respondent Manager has filed a counter W.P.(C)No.10194/06 6 affidavit, wherein he would take the stand that the petitioner's appointment on 5.6.2002 was found to be irregular, since the 7[th] respondent had a better claim for appointment to that post and therefore, the petitioner was shifted to a leave vacancy which arose on 9.12.2002 and the 7[th] respondent was appointed to that vacancy. But, it is admitted that the petitioner was reverted pursuant to the decision of the learned Single Judge setting aside Ext.P1 Government Order. 5. I have considered the rival contentions in detail. I am of opinion that the petitioner is entitled to succeed in this writ petition. Nobody disputes before me that, in view of the Division Bench decision in _**Anitha John's**_ case (Supra), in the vacancy which arose on 5.6.2002 only a teacher having the qualifications to be appointed as an English cadre HSA could have been appointed. The 7[th] respondent admittedly does not have the qualifications prescribed for an English cadre HSA. Therefore, as on 5.6.2002 the Manager could not have appointed anybody other than the petitioner because the petitioner was the only qualified person available for appointment on that day and the petitioner was actually W.P.(C)No.10194/06 7 appointed to the vacancy, which arose on 5.6.2002. That being so, the Manager cannot now be heard to contend that since the 7[th] respondent was senior to the petitioner, the Manager thought it fit to shift the petitioner to a leave vacancy from 7.6.2002, which if accepted, would amount to Ext.P1 order. 6. I do not find any merit in the contention of the 7[th] respondent that, since the the petitioner has not challenged the appointment and approval of the 7[th] respondent, the petitioner cannot now claim that the petitioner should be accommodated in the vacancy which arose on 5.6.2002. The appointment of the 7[th] respondent was approved only on 7.3.2005, although the 7[th] respondent was appointed on 7.6.2002. That approval was subsequent to the judgment in _**Anitha John's**_ case (Supra). The petitioner is seeking implementation of the direction in the _**Anitha John's**_ case (Supra), wherein the Division Bench directed as follows in paragraph 12: “12. We have already found that there are no Government Orders or provisions in the Kerala Education Rules which prescribe qualifications for H.S.A (English). Instructions were issued by the Government W.P.(C)No.10194/06 8 for the first time for filling up the gap in the Rules and S.10 of the Act empowers the Government to fix qualifications for teachers. The Director of Public Instructions also endorsed the same and issued directions to implement the Government Order. We are of the view that the policy decision of the Government cannot be interfered with by this Court after having held that it is a laudable object especially when conscious effort is made by the Government to make necessary rules and Government order was issued in that attempt to implement policy to avoid hardship as a temporary measure. We also record the submission made by the learned Government Pleader that the Rules in this regard will be framed within three months from today. Since we are upholding the validity of the Government Order challenged, those teachers who were appointed on the basis of the above Government Order and terminated or reverted on the basis of the impugned judgment shall be reinstated forthwith. Consequently if teachers are appointed in their place on the basis of the impugned judgment, they shall be reverted or retrenched as the case may be. However, if teachers have been appointed under Rr.43 and 51A of the Rules already on or before the date of this judgment, without implementing the Government Order at all, they should be protected by extending the protection of Cl.3(a) without affecting the rights of the teachers already appointed on the basis of the Government Order whether they are continuing or not are not.” ## (underlining supplied) That decision which was in writ appeals filed by the petitioner and others, has to be implemented which can be done only by reinstating the petitioner to the vacancy which arose with effect from 5.6.2002. The fact that the petitioner did not challenge the appointment of the 7[th] respondent or the approval of her appointment cannot be an impediment for 9 W.P.(C)No.10194/06 implementing judgment of the Division Bench in favour of the petitioner. In fact, the Government also has directed the same, which has not been challenged by the 7[th] respondent. In fact the petitioner's right for reinstatement to the vacancy which arose on 5.6.2002 has been upheld even before the approval of appointment of the 7[th] respondent which was being diligently followed up by the petitioner. Therefore, the approval of the appointment of the 7[th] respondent subsequent to the Division Bench judgment cannot affect the claim of the petitioner, even if she has not challenged the said approval. Insofar as nobody now disputes the fact that the vacancy which arose on 5.6.2002 could have been filled up only by an English cadre teacher and the 7[th] respondent is not qualified to be an English teacher, I am of opinion that, in accordance with the Division Bench decision, the petitioner is entitled to be reinstated, on the basis of the petitioner's appointment with effect from 5.6.2002 as HSA (English). The petitioner is entitled to approval of the said appointment also with effect from 5.6.2002. 7. In the above circumstances, the writ petition is W.P.(C)No.10194/06 10 allowed of with the following directions: The 5[th] respondent shall issue an order reinstating the petitioner as HSA (English) with effect from 5.6.2002 and forward the same to the 4[th] respondent District Education Officer for approval within two weeks from today. The 4[th] respondent shall approve the same within another two weeks therefrom. The petitioner would be entitled to all consequential service benefits arising from such appointment and approval. If the 7[th] respondent has to be consequently retrenched or reverted, it would be open to the 5[th] respondent to accommodate the 7[th] respondent in any other vacancy available to which the 7[th] respondent can be accommodated. ## **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.10194/06 11 W.P.(C)No.10194/06 12