N.P. Safeer Fasal v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 31ST DAY OF OCTOBER 2017/119TH KARTHIKA, 1939** **WP(C).No. 12221 of 2015 (C)** **-----------------------------------------** **PETITIONER(S) :** **------------------------** **N.P.SAFEER FASAL, HSA(ARABIC), SN TRUST HIGHER SECONDARY SCHOOL, CHELANNUR, KANNANGARA, KOZHIKODE-673 616.** **BY ADVS. SRI.AUGUSTINE JOSEPH SRI.K.S.ROCKEY SRI.TONY AUGUSTINE** **RESPONDENT(S) :** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE- 671 001.** **3. THE MANAGER, SN TRUST SCHOOLS, KOLLAM- 691 001.** **R1 & R2 BY SR. GOVERNMENT PLEADER SRI.BIJOY CHANDRAN R3 BY ADV. SRI.A.N.RAJAN BABU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-10-2017, ALONG WITH W.P(C).NO. 13824 OF 2015 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** ## **WP(C).No. 12221 of 2015 (C)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXT.P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2007 OF THE PETITIONER.** **EXT.P2 TRUE COPY OF THE ORDER DATED 31.03.2008 FROM THE 2ND RESPONDENT. EXT.P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2010 FROM THE 3RD RESPONDENT.** **EXT.P4 TRUE COPY OF THE ORDER DATED 28.06.2012 FROM THE 2ND RESPONDENT. EXT.P5 TRUE COPY OF THE ORDER DATED 20.03.2015 OF THE 1ST RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** **Msd.** ## **P.V.ASHA, J.** ## **W.P.(C) Nos.12221, 13823, 13824, 13841, 17215 & 17667 of 2015** ## **Dated this the 31[st] day of October, 2017** ## **JUDGMENT** In all these cases petitioners are High School Assistants in various subjects. All of them are working under the 3[rd] respondent except the petitioner in WP(C) No.17667 of 2015, who is working under the 4[th] respondent. They were appointed with effect from 1.6.2007, 27.7.2006, 24.8.2005, 19.10.2005, 27.7.2006 and 27.7.2006 respectively against additional division vacancies which arose in the School. Appointments were not approved on the ground that there was a ban on appointment. Subsequently, when the ban was lifted, the approval was again declined on the ground that bond was not executed as per G.O(P)No.10/10/G.Edn dated 12.01.2010. It is pointed out that there had been vacancies admissible to petitioners for appointment except for the condition imposed by the Government. I have already considered similar cases and directed approval of such cases with effect from respective dates. 2. The 2[nd] respondent has filed a counter affidavit stating that appointments of the petitioners were made at a time when there was a ban on appointment in additional division vacancies as per G.O(P). W.P.(C) Nos.12221, 13823, 13824, 13841, 17215 & 17667 of 2015 **==> picture [14 x 9] intentionally omitted <==** No.317/85/G.Edn dated 17.8.2005. Even though the ban was lifted as per G.O(P).No.10/10/G.Edn dated 12.01.2010, the Manager did not execute a bond agreeing to appoint equal number of protected teachers against additional divisions and to make appointments in the ratio of 1:1 between the fresh appointees and protected teachers against future vacancies. The appointments of petitioners were approved w.e.f 1.6.2011 on introduction of teachers package. It is further stated that the petitioners are not entitled to get their appointment approved with effect from their dates of appointment, since the Manager refused to execute a bond. 3. Though the 3[rd] respondent has filed a counter affidavit, nothing is stated as to the appointment made contrary to the ban order or why a bond was not executed when the ban was lifted conditionally. 4. Heard the learned counsel for the petitioners, the learned Government Pleader and the learned counsel for the 3[rd] respondent and considered the contentions raised on either side. 5. The only ground on which approval is denied to the petitioners is that there was a ban on appointment and that the Manager did not execute any bond in terms of G.O(P) 10/10/G.Edn dated 12.01.2010. W.P.(C) Nos.12221, 13823, 13824, 13841, 17215 & 17667 of 2015 **==> picture [14 x 9] intentionally omitted <==** 6. The petitioners were appointed at a time when there was justification for sanctioning the respective posts in which they were appointed; but there was a ban on appointment. The Manager filled up the vacancies in gross disobedience of the orders issued by the Government, imposing ban on filling up of vacancies in additional divisions. As per the provisions contained in Rule 1 of Chapter XIVA of KER, the Managers are to fill up the vacancies in an aided school only in accordance with the rules as well as the orders issued by the Government from time to time. The ban was lifted as per G.O(P) No.10/10/G.Edn dated 12.01.2010 on condition that the Manager has to execute a bond agreeing to fill up equal number of vacancies by appointing protected teachers and agreeing to fill up future vacancies in the ratio of 1:1 with a protected teacher in every alternate vacancy. 7. The Managers of various Schools challenged the order unsuccessfully. The Government Order dated 12.01.2010 was upheld by this Court by a common judgment dated 16.03.2011 in a batch of writ petitions reported in _**Eravannoor A.U.P. School v. State of Kerala: 2011 (3) KLT SN 89 (C.No. 91)**_ **.** The Division Bench of this Court affirmed that by the judgment in _**Nair Service Society v. Government of Kerala [2015(2) KLT 625].**_ It was held that the W.P.(C) Nos.12221, 13823, 13824, 13841, 17215 & 17667 of 2015 **==> picture [14 x 9] intentionally omitted <==** provisions of the Kerala Education Act and rules do not confer any absolute or unbridled right on the Manager of an aided school to make appointment of teachers and that the Managers have to fill up the vacancies strictly in accordance with the provisions in the Kerala Education Act, Rules and the executive orders and instructions issued from time to time either by the Government or the Director of Public Instructions, as provided in Sub-rule (1) and (4) of R.1 of Chapter XIVA of K.E.R. This Court found that orders banning appointment were perfectly within the competence of the Government. In the meanwhile, the Government had issued G.O.(P) No.199/11/G.Edn dated 1.10.2011 (Ext.P11), introducing teachers' package and directing approval of appointment of the teachers, who were continuing without salary, protected hands, etc. with effect from 01.06.2011. Based on those orders all the teachers including the petitioners, who were continuing in additional division vacancies without approval, got their appointments approved from 01.06.2011. Even though the approval was confined to the period from 01.06.2011, the Government did not take a decision on the service rendered by the teachers prior to 01.06.2011. Right from October 2011, they have been consistently adopting the stand that the question regarding that W.P.(C) Nos.12221, 13823, 13824, 13841, 17215 & 17667 of 2015 **==> picture [14 x 9] intentionally omitted <==** would be decided later. In the order passed on 24.12.2016, the Government says there is no general rule framed for approving the service prior to 01.06.2011. The fact that there was justification for sanctioning the posts for their appointments is not disputed. 8. Now the contention of the learned Counsel for the petitioners is that approval is granted to several teachers on the basis of the directions of this Court in several cases, requires to be examined. 9. In the common judgment dated 18.02.2015 in W.P.(C) No.4643 of 2013 and connected cases, a learned Single Judge of this Court directed that if the Manager has not executed the bond, the appointments shall be approved with effect from the date of their appointment, treating that the Manager has executed the bond and his obligation to appoint protected teachers is in force. 10. By judgment dated 28.07.2015, another learned Single Judge, taking note of the earlier judgments in the case of similarly situated teachers, directed approval of an appointment made on 4.06.2007 in an additional division vacancy, leaving it open to the educational authorities to enforce the bond. 11. In the judgment dated 29.03.2017 in W.P(C) No.1552 of 2012, another learned Single Judge directed approval and W.P.(C) Nos.12221, 13823, 13824, 13841, 17215 & 17667 of 2015 **==> picture [14 x 9] intentionally omitted <==** consequential disbursement of salary to teachers similarly situated. 12. The learned Counsel for the petitioners submitted that similar directions are issued in several other cases also and the directions are implemented in most of the cases. Moreover, even Government have not taken any decision that the service rendered by the teachers prior to 01.06.2011 should not be recognised for any purpose. The Government has been stating that a general decision would be taken in the matter. 13. In view of the fact that several of these judgments are already implemented and several similarly situated teachers got approval and payment of salary towards the service prior to 01.06.2011, in additional division vacancies, I am of the considered view that there is no reason why the petitioners in these cases should be subjected to a different treatment, for the very same reasons viz. ban on appointments and non-execution of bonds. Even according to the respondents, the question relating to the service rendered by these teachers for the period prior to 01.06.2011 is to be considered when a general decision is taken by the Government. Respondents do not have a case that these teachers have not worked or that there were no posts for them for their appointments. W.P.(C) Nos.12221, 13823, 13824, 13841, 17215 & 17667 of 2015 **==> picture [14 x 9] intentionally omitted <==** 14. In this case the Manager/the 3[rd] respondent has not stated any reason justifying their action in filing up the vacancy contrary to the ban order. Manager has not challenged the G.O.(P) No.10/10/G.Edn dated 12.1.2010, directing execution of bond. No reason is stated for not executing the bond, when Government lifted the ban. 15. Once it is found that the Manager appointed the petitioners in gross disobedience to the orders issued by the Government, imposing ban on appointments i.e in violation of the provisions contained in Rule 1 of Chapter XIVA of KER, it is open for the official respondents to take action against the Managers, who are parties to these writ petitions, in accordance with the provisions in Chapter III Rule 7 of KER and also to enforce the conditions in the bond, treating that the 3[rd] respondent-Manager has executed the bond or to get the loss caused to the Government on account of that, recouped by them, in accordance with law. 16. In these circumstances, i) the orders passed by the respondents to the extent they denied approval to petitioners' appointment for the period prior to 01.06.2011 will stand set aside. W.P.(C) Nos.12221, 13823, 13824, 13841, 17215 & 17667 of 2015 **==> picture [14 x 9] intentionally omitted <==** ii) there shall be a direction to the respective competent educational officers to issue revised orders approving the appointments of the petitioners in accordance with the orders of their appointments and iii) to re-fix their pay based on such revised approval and to grant them all consequential benefits and disburse the arrears of pay due to them, accordingly, within a period of four months from the date of receipt of a copy of this judgment. The writ petitions are allowed as above. Sd/- **P.V.ASHA JUDGE** rkc