NINU THUSHARA v. STATE OF KERALA & ORS.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 30[TH]DAY OF JUNE 2022 / 9TH ASHADHA,1944 WP(C) NO. 21354 OF 2022 ``` ## `PETITIONER/S:` ``` NINU THUSHARA W/O. MELVIN K. JOB, KODAKKADAN HOUSE, MANIKUNI, SULTAN BATHERY P.O, WAYANAD- 673 592. (HIGH SCHOOL TEACHER (PHYSICAL SCIENCE), C.M.S. HIGHER SECONDARY SCHOOL, ARAPETTA). BY ADV S.SUBHASH CHAND ``` ## `RESPONDENT/S:` |`1`|`STATE OF KERALA`| |---|---| ||`REPRESENTED BY THE SECRETARY TO GOVERNMENT,`| ||`DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT,`| ||`THIRUVANANTHAPURAM -695001.`| |`2`|`THE DIRECTOR OF GENERAL EDUCATION (FORMERLY DIRECTOR OF`| ||`PUBLIC INSTRUCTIONS),`| ||`OFFICE OF THE DIRECTOR OF GENERAL EDUCATION,`| ||`THIRUVANANTHAPURAM-695 014.`| |`3`|`THE DISTRICT EDUCATIONAL OFFICER,`| ||`OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,`| ||`THALASSERY- 670 101.`| |`4`|`THE DISTRICT EDUCATIONAL OFFICER,`| ||`OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,`| ||`TIRUR- 676 101.`| |`5`|`THE CORPORATE MANAGER,`| ||`C.S.I. SCHOOLS IN MALABAR AND WAYANAD, BANK ROAD,`| ||`KOZHIKODE - 673 001.`| ``` SRI PREMCHAND R NAIR, SR GP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 30.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 21354 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** The petitioner states that she entered into service as a High School Assistant (Physical Science) in B.E.M. High School, Vatakara, for the period from 30.6.2008 to 3.8.2008. She was appointed again as High School Assistant (Physical Science) for the period from 6.8.2008 to 18.9.2008 in B.E.M High School, Palakkad. During the academic year 2006-2007, an additional division post of High School Teacher (Physical Science) arose in B.E.M High School, Parappanangadi, and the petitioner was appointed in the said vacancy with effect from 19.9.2008 onwards. However, the 4th respondent rejected the proposal for approval on the ground that the appointment was made while the ban imposed by the Government was in force. Her grievance in this writ petition concerns the non-approval of her appointment from 19.9.2008 to 31.5.2009. 2. It is contended by the petitioner that the Government had, as per G.O.(P) No.317/2005/G.Edn. dated 17.8.2005, 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 12.1.2010, the ban on appointments was lifted subject to certain conditions. One among the conditions was that the Managers should execute a consent letter ``` WP(C) NO. 21354 OF 2022 ``` ``` 3 ``` 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. 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.P11 revision petition before the 1st respondent. It is in the afore circumstances that the petitioner is before this Court seeking a direction to the 1st respondent to consider and pass orders in the revision petition. 3. Sri. Subhash Chand S., 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 teachers, equal to the number of appointments approved during the ban period. ``` WP(C) NO. 21354 OF 2022 ``` ``` 4 ``` 4. 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 12.1.2010, 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 12.1.2010 and those matters are now pending before the Apex Court. It is submitted that if the limited request is only to consider the revision petition, there cannot be any impediment. 5. In the nature of the order that I propose to pass, notice to the party respondent is dispensed with. 6. 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 12.1.2010, was in force. The appointment of the petitioner was approved only with effect from 1.6.2011 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 1.8.2017 in ``` WP(C) NO. 21354 OF 2022 ``` ``` 5 ``` 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. 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. 7. 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 P11 revision petition filed by the petitioner 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. ``` WP(C) NO. 21354 OF 2022 ``` ``` 6 ``` - b) While considering the revision petition, the Secretary to Government shall be free to reckon 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 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 ``` WP(C) NO. 21354 OF 2022 ``` ``` 7 ``` ## `APPENDIX OF WP(C) 21354/2022` ## `PETITIONER’S EXHIBITS` |`Exhibit P1`|`TRUE COPY OF THE ORDER BEARING NO.CM/BS/HAS/`| |---|---| ||`0809/PT 17 DATED 19.09.2008, THUS ISSUED BY`| ||`RESPONDENT NO. 5.`| |`Exhibit P2`|`TRUE COPY OF THE GOVERNMENT ORDER BEARING GO(P)`| ||`NO. 10/10/G.EDN. DATED 12/1/2010 THUS ISSUED BY`| ||`RESPONDENT NO. 1.`| |`Exhibit P3`|`TRUE COPY OF THE ORDER OF APPROVAL DATED`| ||`01.06.2009 OF RESPONDENT NO.3 ENDORSED ON THE`| ||`APPOINTMENT ORDER DATED 01.06.2009.`| |`Exhibit P4`|`TRUE COPY OF THE JUDGMENT DATED 18.02.2015 IN`| ||`WP(C) NO.6039 OF 2012 (D).`| |`Exhibit P5`|`TRUE COPY OF THE JUDGMENT DATED 28.07.2015 IN`| ||`WP(C) NO. 15998 OF 2005.`| |`Exhibit P6`|`TRUE COPY OF THE JUDGMENT DATED 17.11.2016 IN`| ||`WP(C). NO.3383 OF 2013.`| |`Exhibit P7`|`TRUE COPY OF THE JUDGMENT DATED 25.07.2017 IN`| ||`WA.NO.2290 OF 2015.`| |`Exhibit P8`|`TRUE COPY OF THE JUDGMENT DATED 16.01.2018 IN`| ||`WP(C).NO.4938 OF 2014.`| |`Exhibit P9`|`TRUE COPY OF THE JUDGMENT DATED 12.03.2019 IN`| ||`WP(C).NO.7365 OF 2019.`| |`Exhibit P10`|`TRUE COPY OF THE JUDGMENT DATED 2/12/2016`| ||`PASSED BY THIS HON'BLE COURT IN W.P.(C). NO.`| ||`31225 OF 2016 (C).`| |`Exhibit P10(a)`|`TRUE COPY OF THE JUDGMENT DATED 16.06.2022 IN`| ||`W.P.(C).NO.19597/2022 OF THIS HON'BLE COURT.`| ``` WP(C) NO. 21354 OF 2022 ``` ``` 8 ``` ``` Exhibit P11 ``` ``` TRUE COPY OF THE STATUTORY REVISION PETITION DATED 6.5.2022 SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO.1. ``` ``` RESPONDENTS EXHIBITS : NIL ```