High Court of KeralaSingle Judge2016-11-22Dismissed

P. Sreeja v. State of Kerala and Others

Case / Petition Number:WP(C).Nos. 37441 of 2008 (G) & 17696 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2016-11-22
Court Decision / Holding: The writ petitions are devoid of merit and are dismissed. The court held that regular vacancies must be filled through notification and a proper selection process; the petitioner had no approved service to claim a regular appointment against the vacancies now filled by respondents 7 and 8, and the impugned DPI order directing approval could not stand in light of the absence of an approved service. The government order setting aside the DPI's directive effectively confirms that relief sought by the petitioner cannot be granted.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

P. Sreeja, W/o. Madhavadas, aged 36 years, Former UPSA, Sree Krishna Higher Secondary School, Guruvayur

Respondents

The State of Kerala, represented by the Secretary to Government, General Education Department, Secretariat, Trivandrum
The Director of Public Instruction, Jagathy, Trivandrum-14
The Deputy Director of Education, Ayyanthole, Thrissur
The District Educational Officer, Chavakkad, Thrissur
The Manager, Guruvayur Devaswom, Sree Krishna Higher Secondary School, Guruvayur, Thrissur District
The Headmistress, Sree Krishna Higher Secondary School, Guruvayur, Thrissur District
K.T. Leena (Additional Respondent 7)
M. Sreela (Additional Respondent 8)

Legal Representation & Advocates

Counsels for Petitioners

• Sri V.A. Muhammed
• Sri K.E. Hamza

Counsels for Respondents

• Sri Bejoy Chandran
• Sri P. Nandakumar, SC
• Sri P.C. Sasidharan
• Sri K. Jaju Babu
• Sri T.R. Sadeesan
• Sri T.S. Shyam Prasanth

Case Synopsis & Summary

The petitioner, P. Sreeja, was employed as a Upper Primary School Assistant (UPSA) in Guruvayur Devaswom-managed Sree Krishna Higher Secondary School, Guruvayur. She seeks approval of her appointment against a regular vacancy with effect from 04.06.2007 in a pay scale, challenging earlier orders and contending that her post should be regularized under Rule 51A. She had earlier served in various capacities (UPSA and HSST) and was appointed on daily wages to fill a vacancy after the manager’s declaration of no senior claimants. The 2007 appointment was later subjected to scrutiny because promotion of the predecessor was not approved. The department’s stance was that her appointment was temporary daily-wage service pending the selection process, and since there was no valid appointment nor approval, she could not claim regular pay or rank. In 2008, two UPSA posts were notified for selection; respondents 7 and 8 (Leena and Sreela) were appointed to promotions, which the petitioner challenged as depriving her of due consideration. The DPI’s 2011 order condoned delay in approvals for a different employee but ultimately directed that the petitioner’s appointment be approved, which the Government later set aside. The court held that regular vacancies require notification, lawful selection, and due process; the petitioner had no approved service and therefore no valid claim to regular appointment against the vacancies now filled by others. The petitions were dismissed.

Provisions of Law Cited

Rule 51A (as invoked by petitioner)G.O.(P) No.104/2008/G.EDN

Legal Doctrines & Maxims

Appointments against regular vacancies must be made after publishing a notification, inviting applications, and conducting a selection in accordance with law.
No claim to regular appointment can arise in the absence of an approved service record.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that, though appointed on daily wages as a stop-gap measure in 2007 for a regular vacancy, her service should be regularized in the applicable scale of pay, following the principles laid down in Geetha v. Geo Thomas and Unni Narayanan v. State of Kerala, and that an order of approval and scale should have followed the regular appointment. She maintains that the management’s earlier declarations and the delay in the approval process cannot bar her from relief, especially since a DPI order condoned delays for a similar case (Subhasree) and the Government later directed approval of her appointment.

Contentions of Respondents

The Government Pleader argues that the 2007 appointment was a daily-wage/ interim engagement without a valid appointment order or approval; regular vacancies must be filled only after proper notification, advertisement, and due process through a selection; without an approved spell of service, the petitioner cannot claim regularization, and the subsequent appointments to the vacancies by respondents 7 and 8 were made post due process. The government contends that the 2011 DPI order was not validly concluded and that regularization cannot be ordered in the absence of due process.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Geetha v. Geo Thomas	2009 (4) KLT 514	Distinguished	The court cited Geetha but distinguished its ratio on the facts, holding that due process and valid appointment orders are essential; mere reliance on prior cases cannot override the requirement of notification and selection for regular vacancies.
Unni Narayanan v. State of Kerala	2009 (2) KLT 604	Distinguished	Similar to Geetha, the court distinguished this ruling as not applicable where there is no approved service or due process for regular appointment, reaffirming the need for proper selection.
W.P.(C).No.20454/2009 (this Court)	—	Mentioned Only	The court referenced the judgment as part of the petitioner's argument but did not adopt its ratio to override the present facts; it remains cited rather than followed.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938** **WP(C).No. 37441 of 2008 (G) ----------------------------** ## **PETITIONER(S):** **-------------** **P. SREEJA, W/O.V. MADHAVADAS, AGED 36 YEARS, (FORMER UPPER PRIMARY SCHOOL, ASSISTANT, SREEKRISHNA HIGHER SECONDARY SCHOOL, GURUVAYUR), 'SREERAGAM', KANIPPAYOOR, (NOW RESIDING AT VAKKAYIL, GURUVAYUR-680 101.** **BY ADVS. SRI.V.A.MUHAMMED SRI. K.E.HAMSA** **RESPONDENT(S):** - **--------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14.** **3. THE DEPUTY DIRECTOR OF EDUCATION, AYYANTHOLE, THRISSUR.** **4. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD, THRISSUR.** **5. THE MANAGER, (ADMINISTRATOR, GURUVAYUR DEAVASWOM), SREEKRISHNA HIGHER SECONDARY SCHOOL, GURUVAYUR, THRISSUR DISTRICT.** **6. THE HEADMISTRESS, SREEKRISHNA HIGHER SECONDARY SCHOOL, GURUVAYUR, THRISSUR DISTRICT.** **Msv/** **-2-** **-2-** ## **WP(C).No. 37411 of 2008 (G) ---------------------------** ## *** ADDITIONAL R7 & R8 IMPLEADED** **7. SMT.K.T.LEENA, UPPER PRIMARY SCHOOL ASSISTANT (NOT APPROVED), SREE KRISHNA HIGHER SECONDARY SCHOOL, GURUVAYUR, THRISSUR DISTRICT. 8. SMT.M.SREELA, UPPER PRIMARY SCHOOL ASSISTANT (NOT APPROVED), SREE KRISHNA HIGHER SECONDARY SCHOOL, GURUVAYUR, THRISSUR DISTRICT. * ADDITIONAL RESPONDENTS 7 & 8 ARE IMPLEADED AS PER ORDER DTD.27.5.2009 IN IA.5955/2009** **R1-R4 BY GOVERNMENT PLEADER SRI.BEJOY CHANDRAN R5 & R6 BY ADV. SRI.P.NANDAKUMAR, SC R7 BY ADV. SRI.P.C.SASIDHARAN R8 BY ADVS. SRI.K.JAJU BABU SRI.T.R.SADEESAN SRI.T.S.SHYAM PRASANTH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-11-2016 ALONG WITH WPC. 17696/2011, THE COURT ON 22-11-2016 DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 37411 of 2008 (G)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** - **P1 TRUE COPY OF THE EXPERIENCE CERTIFICATE (HSST). P2 TRUE COPY OF THE -DO- -DO- (UPSA). P3 TRUE COPY OF THE -DO- -DO- (HSST). P4 TRUE COPY OF THE -DO- -DO- (UPSA).** - **P5 TRUE COPY OF THE -DO- -DO- (GUEST TEACHER)** - **P6 TRUE COPY OF THE APPOINTMENT ORDER** - **P7 TRUE COPY OF THE STATEMENT OF CHANGE OF STAFF.** - **P8 TRUE COPY OF THE DECLARATION OF THE MANAGER.** - **P9 TRUE COPY OF THE ORDER NO.B3/5552/07/K.DIS. OF THE DIST. EDL. OFFICER.** - **P10 TRUE COPY OF THE APPEAL OF THE MANAGER.** - **P11 TRUE COPY OF THE STATEMENT OF CHANGE OF STAFF.** - **P12 TRUE COPY OF THE DECLARATION OF THE MANAGER.** - **P13 TRUE COPY OF THE CERTIFICATE (GUEST TEACHER)** - **P14 TRUE COPY OF THE APPLICATION OF THE PETITIONER.** - **P15 TRUE COPY OF THE INTERVIEW MEMO.** - **P16 TRUE COPY OF THE G.O.(P) NO.104/2008/G.EDN OF THE GOVERNMENT.** - **P17 TRUE COPY OF THE INTERIM ORDER OF THIS HON'BLE COURT IN WPC.NO.29199/2008 A.** - **P18 TRUE COPY OF THE PETITION FILED BY THE MANAGER.** **IA.NO.10320/2009 IN WPC.37441/2008** - **-----------------------------------** - **P18 TRUE COPY OF THE ORDER NO.EM6/43122/07/DPI/K.DIS. OF THE 2ND RESPONDENT.** - **P19 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC.NO.20454/2009 B.** ## **Msv/** **-2-** **-2-** ## **WP(C).No. 37411 of 2008 (G)** ## **----------------------------** ## **IA.15145/2009 IN WPC.37441/2008** ## **--------------------------------** ## **P18 TRUE COPY OF THE REQUEST OF THE MANAGER.** - **P19 TRUE COPY OF THE ORDER NO.EM6/43122/07/DPI/K.DIS. OF THE 2ND RESPONDENT.** - **P20 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC.NO.20454/2009 B.** - **P21 TRUE COPY OF THE PAPER REPORT (VEEKSHANAM)** - **P22 TRUE COPY OF THE -DO -DO-** - **P23 TRUE COPY OF THE PROCEEDINGS OF THE MANAGER.** **P23(a) TRUE COPY OF THE APPOINTMENT ORDER (7TH RESPONDENT)** **P23(b) TRUE COPY OF THE -DO- -DO-** - **P24 TRUE COPY OF THE -DO- (8TH RESPONDENT)** **P24(a) TRUE COPY OF THE -DO- -DO-** - **P25 TRUE COPY OF THE APPEAL PETITION FILED BEFORE THE DIRECTOR.** **RESPONDENT(S)' EXHIBITS** - **-----------------------** **EXT.R5(a): TRUE COPY OF CIRCULAR ISSUED BY DPI DTD.31.8.2005.** - **EXT.R8(a): TRUE COPY OF NOTIFICATION NO.R1-5428/08(3) DTD.3.7.2008 ISSUED BY GURUVAYUR DEVASWOM.** - **EXT.R8(b): TRUE COPY OF ORDER NO.ECI.1673/08 DTD.19.12.2008 ISSUED BY THE GURUVAYUR DEVASWOM.** - **EXT.R8(c): TRUE COPY OF APPOINTMENT ORDER DTD.19.12.2008 ISSUED BY THE SKHSS, GURUVAYUR.** - **EXT.R8(d): TRUE COPY OF APPOINTMENT ORDER DTD.1.6.2009 ISSUED BY THE SKHSS, GURUVAYUR.** - **EXT.R7(a): TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THIS RESPONDENT DTD.19.12.2008.** ## **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **ANU SIVARAMAN, J.** = = = = = = = = = = = = = = = = = = = = = = = = = = ## **W.P.(C).Nos.37441 of 2008 & 17696 of 2011** = = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 22[nd] day of November, 2016 ## JUDGMENT - 1.The petitioner was appointed as a teacher in the 5[th] respondent's school. She seeks approval of her appointment in a regular vacancy of UPSA w.e.f. 04.06.2007 in a scale of pay. In W.P.(C).No.17696 of 2011, she additionally challenges Exhibits P3, P8, P8(a), P9, P9(a), P11 and P13 orders. Since the latter writ petition contains more substantive pleadings, the parties and documents are referred to as in the said writ petition. - 2.The petitioner was initially appointed as UPSA from 01.10.2002 to 31.3.2003, as HSST (Sociology) for the academic years 2003-2004 and 2004-2005 and again as UPSA from 02.06.2005 to 31.03.2006 and for the academic years 2006-2007 and 2007-2008. On 04.06.2007, by Exhibit P2 order, the petitioner was appointed as UPSA on daily wages in the vacancy of Smt.V.Subhasree, who was promoted as HSA on 2 W.P.(C).Nos37441/08 & 17696/11 05.06.2006. It is submitted that the manager had filed a declaration that there were no senior claimants for the said post. On the ground that the promotion of Smt.V.Subhasree, in whose vacancy the petitioner was appointed was not approved, approval of the petitioner's appointment was also refuted. The petitioner's services were dispensed with on 31.03.2008. Subsequently, she was appointed against a leave vacancy on 15.09.2008 which was terminated on 06.11.2008. 3. In 2008 two posts of UPSA were notified for selection by the 5[th] respondent. The petitioner participated in the selection process. Respondents 7 and 8 were selected and appointed against the promotion vacancy to which the petitioner was appointed by Exhibit P2, and to a subsequent vacancy. These appointments were challenged by the petitioner on the ground that her earlier appointments should have been approved and she should have been considered to be a Rule 51A claimant against the posts now filled up by the appointment of respondents 7 and 8. The W.P.(C).Nos37441/08 & 17696/11 3 petitioner's appeal against the rejection of approval in respect of Exhibit P2 order was considered by the Deputy Director, and Exhibit P11 dated 29.01.2011 was rendered, stating that there was delay in submitting the proposal for approval of appointment. While so, by Exhibit P12 order dated 25.09.2007, the delay in submitting the proposal for approval of appointment of Smt.V.Subhasree as HSA was condoned by the DPI. Later by order dated 24.01.2011, the petitioner's appointment was also directed to be approved. The Manager as well as respondents 6 and 7 took the matter in revision before the Government. All parties were heard and the Government passed an order holding that the petitioner's appointment, though against a regular vacancy, was only on daily wages and in the absence of a valid appointment order, the petitioner could have no claim as against respondents 7 & 8, who were regularly appointed after due process of selection. The order of the DPI dated 24.01.2011, which directed the approval of the appointment of the petitioner was, therefore, set aside. 4 W.P.(C).Nos37441/08 & 17696/11 - 4.Heard the learned counsel for the petitioner and the learned Government Pleader appearing on behalf of the State. - 5.The learned counsel for the petitioner relies on the decisions reported in **Geetha v. Geo Thomas** [2009 (4) KLT 514] and **Unni Narayanan v. State of Kerala** [2009 (2) KLT 604], and judgment dated 22.07.2009 in W.P.(C).No.20454 of 2009 of this Court to contend that the appointments made against regular vacancy are liable to be approved on a scale of pay. - 6.Counter affidavits have been filed on behalf of the Government as well as the management and the rival teachers. The learned Government Pleader would contend that the appointment of the petitioner as UPSA from 04.06.2007 was on daily wages and only as an interim arrangement till the procedure for selection in the school managed by the Guruvayur Devaswom was completed. It is further contended that none of the earlier spells of services of the petitioner had W.P.(C).Nos37441/08 & 17696/11 5 been approved and mere production of experience certificate from the manager cannot help the petitioner in the absence of a valid order of appointment and approval. The said contentions are reiterated in the counter affidavit filed on behalf of the other respondents as well. 7. I have considered the contentions advanced on all sides. The school is an aided school under the management of Guruvayoor Devaswom. Appointments can be made against regular vacancy arising at the school only after publishing a notification inviting applications and conducting a selection, in accordance with law. It is contended that the petitioner, who had applied pursuant to such notification and had participated in the said selection process, cannot on her failure to come out successful in the same, turn around and contend that the selection was unwarranted. The petitioner has no approved service as a teacher under the management and therefore has no claim for appointment against the vacancy. It is further W.P.(C).Nos37441/08 & 17696/11 6 contended that though the vacancy to which the petitioner was appointed by Exhibit P2, was a regular vacancy, the appointment was made on daily wages as a stop-gap measure. 8. In the above circumstances, the petitioner could have no claim for the approval of her appointment on a regular basis from the date of Exhibit P2 order. In the above view of the matter, nothing stood in the way of the management in notifying the vacancy and from making the selection. It is not open to the petitioner, in the absence of earlier approved spells of services, to contend that she should have been regularly appointed against any of the two vacancies which were notified by Exhibit P6. The order of the DPI dated 24.01.2011 was evidently issued without considering the nature of the petitioner's appointment. The said order is now set aside by the Government. The impugned orders are therefore well supported in the facts and circumstances of this case. These writ petitions are devoid of merits and the reliefs prayed for cannot be granted. 7 W.P.(C).Nos37441/08 & 17696/11 In the result, these writ petitions fail and are accordingly dismissed. sd/- **Anu Sivaraman, Judge** sj