Neeny Mol K.J. v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` TUESDAY, THE 25[TH] DAY OF JULY 2023 / 3RD SRAVANA, 1945 WP(C) NO. 12296 OF 2020 ``` ## **`PETITIONER:`** ``` NEENY MOL K.J.,HIGH SCHOOL ASSISTANT (MATHS), ST.JOSEPH'S HIGH SCHOOL, CHULLIKKAL, P O MATTANCHERRY, ERNAKULAM DISTRICT-682002. ``` ``` BY ADV P.M.PAREETH ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.`** - **`2 DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM-695014.`** - **`3 DISTRICT EDUCATIONAL OFFICER, ERNAKULAM, ERNAKULAM DISTRICT-682011.`** - **`4 GENERAL MANAGER CORPORATE EDUCATIONAL AGENCY, DIOCESE OF COCHIN, CATHOLIC CENTRE, THOPPUMPADY, COCHIN-682005. R1 TO R3 BY SR.GP - BIMAL K.NATH`** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.12296 of 2020 2 ## **VIJU ABRAHAM, J.** **................................................................. W.P.(C) No.12296 of 2020 .................................................................** Dated this the 25[th] day of July, 2023 ## **JUDGMENT** The above writ petition is filed seeking to quash Exts.P1 and P5 and for a further direction to the 3[rd] respondent to approve the appointment of the petitioner as U.P.S.A for the period from 01.06.2010 to 31.05.2011 and to disburse all the arrears of salary and allowances. 2. The petitioner is presently working as HSA (Maths) at St. Joseph's High School, Chullikkal. Petitioner was appointed as UPSA as per Ext.P1 appointment order w.e.f. 01.06.2010 at St. Peter's H.S.S, Kumbalangi in the vacancy of one Smt. Jenny Vincent, U.P.S.A. who was transferred and posted as UPSA in St.Augustin's H.S.S., Aroor. A perusal of the approval order endorsed in Ext.P1 would reveal that the approval was limited from 01.06.2011 onwards. Petitioner submits that there is absolutely no reason for not approving the appointment of the petitioner from 01.06.2010 to 31.05.2011. Earlier the staff fixation orders for 2010- 2011 were not issued since there was a ban of appointment. Thereafter the ban was lifted as per G.O.(P) No.10/10/G.Edn dated 12.01.2010 and consequently the posts were WP(C) No.12296 of 2020 3 sanctioned as is evident from Ext.P2 staff fixation order for the academic year 2010-2011 of St.Peter's H.S.S., Kumbalangi. Even thereafter the 3[rd] respondent did not approve the appointment of the petitioner for the abovesaid period. Another reason stated by the respondents for not approving the said period of appointment was an amendment to the KER which was made as per G.O.(P) No.154/2014/G.Edn. dated 11.08.2014 wherein Clause (e) of Rule 2(5) (2) was introduced, which mandates that the teachers of the aided schools included in the appended list of G.O.(P) No.199/11/GEdn dated 01.10.2011 stand approved w.e.f. 01.06.2011 on condition that the educational officers concerned shall ensure that they are appointed against the regular vacancies and they are otherwise qualified, with a further rider that their prior service shall not be reckoned for any service benefits but shall only be deemed to commence afresh w.e.f 01.06.2011. Petitioner submits that the respondents cannot now rely on the said clause to deny the benefit due to the petitioner inasmuch as the said clause has been set aside by this Court in _**Kerala Aided L.P. and U.P. School Managers Association v. State of Kerala (2016 (1)**_ _**KLT 213)**_ . Aggrieved by the same petitioner filed Ext.P3 revision petition before the 1[st] respondent Government which was directed to be disposed of as per Ext.P4 judgment, but the same was rejected by Ext.P5 order dated 07.09.2018. Petitioner contended that this Court WP(C) No.12296 of 2020 4 while disposing of the writ petition as per Ext.P4 has entered into various findings which are in favour of the petitioner and the Government was directed to consider the claim of the petitioner strictly in accordance with law and after taking note of the law laid down in the decisions referred to in the judgment. Petitioner submits that the said direction has not been complied with and Ext.P5 order has to be interfered since no valid reasons have been stated to reject the claim of the petitioner. 3. A counter affidavit has been filed on behalf of the 3[rd] respondent wherein it is contended that there is no bar existing in the year for staff fixation but there was ban in creation of additional divisions and posts from 2006-2007 to 2009-2010. The 4[th] respondent ignored this position and appointed many teachers in additional posts in the school under his management during these years and the said appointments were not approved by the department. Later the said restriction of sanctioning of additional divisions and posts was lifted as per G.O.(P) No.10/10/G.Edn dated 12.01.2010 subject to the condition that in order to approve the appointments made in the additional posts, the Manager should submit an affidavit in stamp paper agreeing to absorb protected teachers in the vacancies that will arise in the school under the management from the academic year 2010-2011 onwards equal to the number of teachers appointed in the additional posts from 2006-2007 to 2009-2010. The 4[th] WP(C) No.12296 of 2020 5 respondent was reluctant to submit an affidavit in this regard and the appointments made during 2006-2007 to 2009-2010 were not approved. Petitioner was appointed in the year 2010-2011 and she was junior to the teachers appointed in the additional posts in the previous years. It is further submitted that the appointment of Smt.Jenny Vincent, UPSA in the vacancy from 09.10.2007 to 31.05.2010, who was subsequently transferred to St.Augustin's HSS, Aroor from 01.06.2010 was also not approved. The further stand taken in the counter affidavit is that even though this Court has directed the 1[st] respondent to consider and pass orders on Ext.P3 revision petition, no order was passed by this Court in Ext.P4 to the effect that approval should be granted to the petitioner considering that the Manager has executed a bond as directed in the Government Order. 4. Heard the learned counsel appearing for the petitioner as well as the learned Government Pleader. 5. A perusal of Ext.P5 would reveal that two reasons have been stated for not approving the appointment of the petitioner. Firstly, as on the date of appointment of the petitioner, the appointment of Smt.Jeny Vincent in whose transfer vacancy the petitioner was appointed was rejected for the reason that the school did not have the necessary infrastructure facilities for sanctioning of an additional division even though there was sufficient number of students for sanctioning an WP(C) No.12296 of 2020 6 additional division and the second reason is that as per G.O.(P) No.317/2005/G.Edn. dated 17.08.2005 there was ban of appointment for the period from 2006-2007 onwards. In the counter affidavit filed by the 2[nd] respondent in W.P.(C)No.561 of 2021 filed by the said Jenny Vincent in whose transfer vacancy the petitioner was appointed, it is clarified that an additional post of UPSA was sanctioned in St.Peter's HSS, Kumbalangi w.e.f. 15.07.2009 since the Manager had provided the accommodation facility during the academic year 2009-2010. Therefore the contention of the respondents that there was no accommodation facility in the school to sanction a new division and consequently for not approving the appointment of the petitioner, w.e.f. 01.06.2010 cannot be sustained. 6. It is pertinent to note that in respect of Smt.Jenny Vincent the appointment for the period from 01.06.2009 to 31.05.2010 was approved as per order No.B3/9722/2018/K.Dis. dated 06.07.2019 (which is produced as Ext.P3 in W.P.(C) No.561 of 2021 filed by Jenny Vincent) and it is for the period from 01.06.2010 to 31.05.2011 that the petitioner has claimed approval of appointment as UPSA. It is an admitted case that the direction in G.O.(P) No.154/2014/G.Edn. dated 11.08.2014 that prior service shall not be taken for any service benefits and the petitioner shall be deemed to be appointed afresh from 01.06.2011 onwards is not sustainable in view of the judgment in WP(C) No.12296 of 2020 7 _**Kerala Aided L.P. and U.P. School Managers Association'**_ s case supra. Even though a reason has been stated in Ext.P5 that there is no sufficient infrastructure for the school to sanction the additional divisions from 2007-2008 onwards it could be seen that the appointment of one Smt.Jenny Vincent for the period from 01.06.2009 to 31.05.2010 has been approved as per order No.B3/9722/2018/K.Dis. dated 06.07.2019. Therefore lack of infrastructure for the school for sanction of an additional division cannot be taken as a reason for rejecting the approval of appointment of the petitioner w.e.f. 01.06.2010. Now the only reason for rejecting the approval of appointment as per Ext.P5 is non-execution of the bond by the Manager as provided in G.O.(P) No.10/10/G.Edn. Dated 12.01.2010. The stand taken in Ext.P5 that there is no specific direction in Ext.P4 judgment that approval should be granted deeming that the Manager has executed a bond cannot be a reason for not granting the benefit to the petitioner and the Government while considering Ext.P3 revision ought to have taken into consideration the judgment in W.A.No.931 of 2016 which is extracted in Ext.P5 Government Order. Since the directions issued by this Court in various judgments including the directions in W.A.No.931 of 2016 were directed to be considered by the Government as per Ext.P4 judgment, the stand taken by the Government in Ext.P5 that there is no specific direction for approving the appointment of the petitioner cannot be accepted and the WP(C) No.12296 of 2020 8 Government has not properly complied with the directions issued by this Court in Ext.P4 judgment. In view of the above facts and circumstances the above writ petition is disposed of quashing Exts.P1 and P5 orders with a consequential direction to the 1[st] respondent to reconsider the claim of the petitioner for approval of appointment as UPSA for the period from 01.06.2010 to 31.05.2011 and take a final decision in the matter after affording an opportunity of being heard to the petitioner and a decision in this regard shall be taken within an outer time limit of three months from the date of receipt of a copy of the judgment. Writ petition is disposed of as above. Sd/- **VIJU ABRAHAM** **JUDGE** cks WP(C) No.12296 of 2020 9 ## **`APPENDIX OF WP(C) 12296/2020`** ``` PETITIONER EXHIBITS EXHIBIT P1A TRUE PHOTOCOPY OF THE APPOINTMENT ORDER DATED 01.06.2010 IN RESPECT OF THE PETITIONER WITH ENDORSEMENT OF APPROVAL, DATED 31.01.2012. ``` ``` EXHIBIT P2A TRUE PHOTO COPY OF THE STAFF FIXATION ORDER DATED 12.08.2010 FOR 2010-11 IN RESPECT OF ST.PETERS HIGHER SECONDARY SCHOOL, KUMBALANGI. ``` ``` EXHIBIT P3A TRUE PHOTO COPY OF THE REVISION PETITION DATED 04.03.2018 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. ``` ``` EXHIBIT P4A TRUE PHOTOCOPY OF THE JUDGMENT DATED 16.03.2018 IN WP(C) NO.8930/2018. EXHIBIT P5A TRUE PHOTOCOPY OF THE GO(RT) NO. 3409/2018/GEDN DATED 07.09.2018. ```