Nisha G. Kizhak kedath v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942** ## **WP(C).No.6070 OF 2012(G)** ## **PETITIONER:** **NISHA G. KIZHAKKEDATH W/O.JOJO GEORGE, VELUTHAMANUKAL, KATTUKODE, VADAKKANCHERRY P.O., NOW WORKING AS H.S.A. PHYSICAL SCIENCE AT C.A.H.S. AYAKKAD, PALAKKAD.** **BY ADV. SRI.PAULSON THOMAS** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL EDUCATION, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001.** - **2 THE DIRECTOR OF PUBLICE INSTRUCTION THIRUVANANTHAPURAM-695 001.** - **3 THE DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION, PALAKKAD-678 001.** - **4 THE DISTRICT EDUCATIONAL OFFICER PALAKKAD- 678 001.** - **5 MANAGER C.A.HIGH SCHOOL, AYAKKAD, AYAKKAD P.O., PALAKKAD DISTRICT 678 005** ## **SRI P M MANOJ SR GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.6070 OF 2012 2** ## **JUDGMENT** The petitioner says that she was appointed as a High School Teacher (HST) in Physical Science in “C.A. High School”, Ayakkad, Palakkad, in a temporary promotion vacancy on 19.6.2006. She asserts that this vacancy arose consequent to the promotion of another teacher by name Smt.K.K.Jayasree and that said teacher retired only on 31.5.2007, and another teacher was appointed to her place, thus giving rise to a substantial vacancy, to which she was, thereafter, appointed regularly with effect from 01.06.2007. 2. The petitioner says that, therefore, her appointment from 19.6.2006 is continuous and ought not to have been limited to 31.3.2007, since the vacancy caused by the promotion of Smt.K.K.Jayasree continued until 31.5.2007. The petitioner, therefore, prays that her approval from 19.6.2006 to 31.5.2007 be directed to be considered, though ## **WP(C).No.6070 OF 2012 3** conceding that in the writ petition what has been sought for is approval until 31.3.2007, which she explains is because of her appointment being limited to that date. She, however, submits that limiting the appointment in this manner was unnecessary in view of the afore circumstances, and that this has now caused severe prejudice to her, since it has been found by the Government that said period of appointment is a few days short of 8 months and that, therefore, she is not entitled for approval, going by Ext.P7 Government order. 3. The petitioner, therefore, prays that Ext.P9 order issued by the Government in a Revision Petition filed by her be set aside, especially because, pending this writ petition, the Hon'ble Supreme Court has declared the law in _**State of Kerala v. Sneha Cheriyan [2013 (1) KLT 755]**_ that even appointments made for less than eight months and to the end of an Academic Year are ## **WP(C).No.6070 OF 2012 4** deserving of being approved, notwithstanding its duration. 4. In response, the learned Senior Government Pleader - Sri.P.M.Manoj, submitted that the petitioner had earlier approached this Court and obtained Ext.P6 judgment, wherein, her approval from 19.6.2006 to 31.3.2007 was directed to be considered, on the assertion that she had been appointed substantively with effect from 1.6.2007. 5. The learned Senior Government Pleader submitted that it is based on the directions in the said judgment that the competent Educational Authorities and the Government issued subsequent orders finding that, since the petitioner did not have a tenure of 8 months or more, approval cannot be granted to it, based on the mandate of Ext.P7. 6. However, to a pointed question, the learned Senior Government Pleader conceded that the declarations in _**Sneha Cheriyan**_ ## **WP(C).No.6070 OF 2012 5** (Supra) have substantial bearing in this case; but prayed that this Court may not speak about it affirmatively and that, if it is found so necessary, Government is willing to reconsider the matter taking note of the petitioner's contention, that the vacancy from 19.06.2006 continued until 31.05.2007. 7. When I consider the afore submissions, it is indubitable that the petitioner was appointed by the Manager of the School from 19.06.2006 to 31.03.2007 in a temporary promotion vacancy of Smt.K.K.Jayasree. However, since the petitioner says that said teacher retired only on 31.05.2007, I am of the view that Government must reconsider whether the petitioner's approval should be granted until that date, rather than 31.03.2007, particularly because she was subsequently appointed in a regular vacancy with effect from 01.06.2007, when another teacher was promoted to the place of Smt.K.K.Jayasree on ## **WP(C).No.6070 OF 2012 6** that date. 8. That apart, as I have already said above, the ratio in _**Sneha Cheriyan**_ (Supra) is certainly to the benefit of the petitioner; but obviously Government could not have adverted to it, while Ext.P9 had been issued, since said judgment was delivered thereafter. 9. I am, therefore, of the firm view that Government must reconsider the matter and take note of all the claims of the petitioner, including that the vacancy from 19.6.2006 continued till 31.5.2007 and that she worked in the capacity as a High School Teacher uninterruptedly until then. In the afore circumstances, I order this writ petition and set aside Ext.P9; with a consequential direction to the Government to reconsider the claims of the petitioner in the manner above, after affording her and the Manger of the School an opportunity of being heard – either physically or through video ## **WP(C).No.6070 OF 2012 7** conferencing – thus culminating in an appropriate order thereon, as expeditiously as possible, but not later than three months from the date of receipt of a copy of this judgment. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** **MC/11.2.2021** **WP(C).No.6070 OF 2012 8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 19.6.2006 OF THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE ORDER OF THE DEO DATED 28.6.2007. EXHIBIT P3 TRUE COPY OF THE APPEAL BEFORE THE D.D. DATED 12.7.2007 SUBMITTED BY THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS OF THE GOVT. DATED 15.3.2008. EXHIBIT P5 TRUE COPY OF THE G.O. (P) NO.169/2004 GEN.EDN. DATED 15.6.2004. EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WP(C)35690/2009 DATED 6.4.2011. EXHIBIT P7 TRUE COPY OF THE GO(P) NO.56/11/G.EDN. DATED 26.2.2011. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER PURSUANT TO P6 DATED 25.5.2011. EXHIBIT P9 TRUE COPY OF THE IMPUGNED G.O.(RT) NO.4836/2011/G.EDN. DATED 4.11.2011.**