Niyas K. P. and Arshad N. K. v. State of Kerala and Others

**WP(C) NO. 29334 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 17[TH] DAY OF DECEMBER 2021 / 26TH AGRAHAYANA, 1943** ## **WP(C) NO. 29334 OF 2021** ## **PETITIONERS :** 1 NIYAS K. P. AGED 39 YEARS S/O. PACKER KUTTY, JUNIOR ARABIC TEACHER, POONATH NELLISSERY AUP SCHOOL, POONATH P. O., KOZHIKODE DISTRICT. 2 ARSHAD N. K. AGED 34 YEARS S/O. MUHAMMAD ALI, LPSA, POONATH NELLISSERY AUP SCHOOL, POONATH P. O., KOZHIKODE DISTRICT. BY ADV R.K.MURALIDHARAN ## **RESPONDENTS :** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM - 695 001. 2 DIRECTOR OF GENERAL EDUCATION OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, JAGATHI, THIRUVANANTHAPURAM - 695 014. 3 THE DISTRICT EDUCATIONAL OFFICER THAMARASSERY, KOZHIKODE DISTRICT - 673004. 4 ASSISTANT EDUCATIONAL OFFICER, PERAMBRA, KOZHIKODE DISTRICT - 673525. 5 THE MANAGER POONATH NELLISSERY AUP SCHOOL, PONNOTH P.O., KOZHIKODE DISTRICT - 673580. SMT. NISHA BOSE, SR. GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 29334 OF 2021** **2** ## **JUDGMENT** Under challenge in this petition is Ext.P9 order passed by the 1st respondent as per which, the request made by the petitioners for approval of their appointment from the initial date of their appointment was rejected by the 1st respondent on the ground that the Manager has not executed the bond as per G.O.(P) No.10/10/G.Edn. dated 12.1.2010. 2. The petitioners contend that the 1st petitioner was appointed as Junior Arabic Teacher in the Poonath Nellissery AUP School with effect from 29.07.2008 in an additional division vacancy as per Ext.P1 order. The 2nd petitioner, on the other hand, was appointed as LPSA with effect from 25.06.2008 as per Ext.P3 order. The proposal for approval of the appointment of the petitioners were rejected by the 4th respondent by Ext.P4 and P4(a) orders. The appeals preferred by the 5th respondent were also rejected. Being aggrieved, the petitioners are stated to have preferred revision petitions before the 1st respondent, which stands rejected by Ext.P9 order. The solitary reason for rejection is that the Manager has not executed the bond as per G.O.(P) No.10/10/G.Edn. dated 12.1.2010, and also that the petitioners were included in the Teachers Package. 3. It is contended by the petitioners that the Government had, as **WP(C) NO. 29334 OF 2021** **3** 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. It was in the said circumstances that the approval of the appointment of the petitioners was initially turned down. 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 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. The Manager failed to execute the bond as required in the Government order. Thereafter the Government issued G.O.(P) No.199/2011/G.Edn dated 01.10.2011 approving the recommendations for implementation of the comprehensive teacher’s package for appointment of deployed/protected teachers. 4. According to the petitioners, teachers similarly placed as the petitioners 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. In the light of the law laid down by this Court, the petitioners approached the 1st respondent and filed a representation. Later, pursuant to directions issued by this Court in Ext.P8 judgment, the revision petitions were taken up and the same was rejected. The petitioners contend that the order passed by **WP(C) NO. 29334 OF 2021** **4** the 1st respondent is in clear violation of the law laid down by this Court in Ext.P10 judgment. 5. 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 further submitted that Ext.P9 order was passed on 28.6.2014 and no justifiable reason is stated by the petitioners for not challenging the order earlier. 6. In response, it is submitted by Sri. R.K. Muralidharan that copy of Ext.P9 order was received only when one of the petitioners filed a request before the Government under the RTI Act. The learned counsel would refer to Ext.P9 communication issued by the Public Information Officer on 22.9.2021 to explain the delay. 7. I have considered the submissions advanced. The petitioners claim that they were appointed during the period when the ban was in force. As rightly contended by the learned counsel, a Division Bench of this **WP(C) NO. 29334 OF 2021** **5** 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] and in Ext.P10 judgment have 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. 8. 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 there was no justification on the part of the 1st respondent in rejecting the representation filed by the petitioners on the ground that the Manager had not executed the bond. In Ext.P10 judgment of a Division Bench of this Court relying on the law laid down in **Suma Devi** (supra) had held that even in the case of non-execution of the bond by the Managers, it should be deemed to have been executed and they would be obliged to make an equal number of appointments when the appointments to additional vacancies during the ban period are approved. 9. In that view of the matter, I am of the view that Ext.P9 order cannot be sustained. Ext.P9 order will stand set aside. The 1st respondent shall reconsider the revision petition and pass fresh orders for which the following directions are issued. **WP(C) NO. 29334 OF 2021** **6** a) There will be a direction to the 1st respondent to reconsider the revision petition referred to in Ext.P8 judgment in the light of the law laid down by this Court in **Suma Devi** (supra ) and in Ext.P10 judgment and pass fresh orders with notice to the petitioners as well as the 5th respondent and take a decision, as per procedure and in accordance with the law. b) 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 petitions the Secretary to Government shall consider whether G.O.(P) No.10/10/G.Edn. dated 12.1.2010 would apply and if it applies, the 1st respondent shall be free to reckon that the Manager 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. d) The fact that the petition challenging G.O.(P) No.10/10 filed by the Managers is pending consideration of the Hon’ble Supreme Court shall not be taken as a ground to deny the benefits to the petitioners if they are otherwise entitled to. It is made clear that the orders passed by the 1st respondent shall be subject to the decision of the Hon’ble Supreme Court in the pending petitions. **WP(C) NO. 29334 OF 2021** **7** e) It would be open to the petitioners 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** IAP **WP(C) NO. 29334 OF 2021** **8** ## **APPENDIX OF WP(C) 29334/2021** PETITIONER(S) EXHIBITS : EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER IN FORM 27 DATED 29.07.2008 ISSUED BY THE 5TH RESPONDENT MANAGER. EXHIBIT P2 A TRUE COPY OF THE RELEVANT PAGES OF THE STAFF FIXATION ORDER NO.DDIS-B-2566/2008 OF THE SCHOOL FOR THE YEAR 2008-09 DATED 04.08.2008. EXHIBIT P3 A TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER IN FORM 27 DATED 25.06.2008 ISSUED BY THE 5TH RESPONDENT MANAGER. EXHIBIT P4 TRUE COPY OF THE ORDER NO.B3003/2008 DATED 29.08.2008 OF THE 4TH RESPONDENT. EXHIBIT P4(a) TRUE COPY OF THE ORDER NO.B-2433/2008 DATED 14.11.2008 OF THE 4TH RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE REVISION PETITION DATED 26.11.2009 SUBMITTED BEFORE THE GOVERNMENT. EXHIBIT P6 A TRUE COPY OF GO(P) NO.10/10/G.EDN. DATED 12.01.2010 OF GOVERNMENT. EXHIBIT P7 A TRUE COPY OF THE ORDERS OF THE 1ST RESPONDENT DATED 11.05.2010 AND THE DDE DATED 03.06.2010 AND THE DIRECTION OF THE 4TH RESPONDENT DATED 21.06.2010. EXHIBIT P8 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.2995/2014 DATED 30.01.2014. **WP(C) NO. 29334 OF 2021** **9** EXHIBIT P9 EXHIBIT P9 A TRUE COPY OF THE COVERING LETTER DATED 22.09.2021 OF THE 4TH RESPONDENT ALONG WITH THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 28.06.2014 RECEIVED UNDER THE RTI ACT. EXHIBIT P10 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WA NO.931/2016 DATED 24.07.2017. RESPONDENT(S) EXHIBITS : NIL