R. Smitha v. State of Kerala and Ors.

**WP(C) NO. 35024 OF 2018 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 26[TH] DAY OF NOVEMBER 2021 / 5TH AGRAHAYANA, 1943 WP(C) NO. 35024 OF 2018** ## **PETITIONER:** R.SMITHA AGED 46 YEARS WIFE OF G.KRISHNAKUMAR, HIGH SCHOOL ASSISTANT (MATHEMATICS),NSS HIGH SCHOOL,PULLIKANAKKU PO,KAYAMKULAM , ALAPPUZHA DISTRICT-690537. BY ADV V.A.MUHAMMED ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, THIRUVANANTHAPURAM - 695 014. 3 THE DEPUTY DIRECTOR OF EDUCATION ALAPPUZHA - 688 001. 4 THE DISTRICT EDUCATIONAL OFFICER MAVELIKARA, ALAPPUZHA DISTRICT - 690 101. 5 THE MANAGER N.S.S.HIGH SCHOOL, P.O.PULLIKANAKKU, KAYAMKULAM, ALAPPUZHA DISTRICT - 690 537. SMT NISHA BOSE SR GOVERNMENT PLEADER **WP(C) NO. 35024 OF 2018 2** THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 35024 OF 2018 3** ## **JUDGMENT** Being aggrieved by Exhibit P11 order by which the 1st respondent has rejected the prayer of the petitioner to grant approval to her appointment as HSA (Maths) from 4.6.2007 to 1.6.2008, the petitioner has approached this Court. 2. The petitioner contends that she was appointed as HSA (Maths) as per Ext.P1 order on 4.6.2007 in a new division vacancy in the NSS High School, Pullikanakku. It is contended 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. In view of the above, the appointment of the petitioner 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 5th respondent failed to execute the bond as required in the Government order. While so, the petitioner was shifted to a retirement vacancy from 2.6.2008 as per Ext.P5 order dated 29.1.2009. However, the approval of the appointment from 4.6.2007 to 1.6.2008 was not approved in view of the ban order. **WP(C) NO. 35024 OF 2018 4** 3. According to the petitioner, teachers similarly placed as the petitioner 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 learned counsel contends 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. In the said circumstances, the petitioner is stated to have preferred Ext.P9 revision petition before the Government seeking approval of the appointment from 4.6.2007 to 1.6.2008. Pursuant to directions issued by this Court, the revision petition was considered and the prayer sought for by the petitioner was rejected on the ground that the Manager had not executed the bond and that this Court while disposing of the writ petition had not directed to consider that the Manager would be deemed to have executed the bond. It is in the afore circumstances that the petitioner is before this Court seeking to quash Exts.P3 and P11 and for a direction to the respondents to grant approval to the appointment of the petitioner. 4. 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. The learned **WP(C) NO. 35024 OF 2018 5** counsel points out that the law laid down by this Court has not been taken note of while passing Ext.P11 order. 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 it is for the 1st respondent to consider whether the petitioner would be entitled to the benefits of G.O.(P) No.10/10/G.Edn. 6. I have considered the submissions advanced. The petitioner claims that she was appointed during the period when the ban was in force. The question as to whether the above Government Order would apply to the petitioner herein has to be ascertained by the 1st respondent while considering the revision petition. As rightly contended by the learned counsel, 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 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. In **WP(C) NO. 35024 OF 2018 6** that view of the matter, the reasons given in Ext.P11 order for rejecting Ext.P9 revision petition cannot be sustained under law. 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) Ext.P11 will stand set aside. There will be a direction to the 1st respondent to reconsider Ext.P9 revision petition in the light of the law laid down by this Court in Exts.P6, P7 and P8 judgments and the law laid down by this Court in **V.S.Suma Devi** (supra). Fresh orders shall be passed, as per procedure and in - accordance with the law, expeditiously, in any event, within a period of three months from the date of receipt of a copy of this judgment. - b) While considering the petition, 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 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. The **WP(C) NO. 35024 OF 2018 7** fact that the petition challenging G.O.(P) No.10/10/G.Edn. 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 petitioner. 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. 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** IAP **WP(C) NO. 35024 OF 2018 8** ## **APPENDIX OF WP(C) 35024/2018** PETITIONER'S EXHIBITS: |EXHIBIT P1|TRUE COPY OF THE APPOINTMENT ORDER OF THE| |---|---| ||PETITIONER DATED 04/06/2007.| |EXHIBIT P2|TRUE COPY OF THE STAFF FIXATION ORDER| ||NO.B2/5224/D.DIS. DATED 15/10/2007 OF THE 4TH| ||RESPONDENT ALONG WITH MODIFICATION ORDER| ||NO.FW/B2/5068/08/D.DIS. DATED 03/10/2008.| |EXHIBIT P3|TRUE COPY OF THE ORDER NO.K.DIS.B2/4574/07| ||DATED 06/11/2008 OF THE 4TH RESPONDENT.| |EXHIBIT P4|TRUE COPY OF THE G.O.(P) NO.10/10/G.EDN.| ||DATED 12/01/2010 OF THE GOVERNMENT.| |EXHIBIT P5|TRUE COPY OF THE APPOINTMENT ORDER DATED| ||04/06/2008 AND APPROVAL THEREON DATED| ||29/01/2009.| |EXHIBIT P6|TRUE COPY OF THE JUDGMENT IN W.P.(C)| ||NO.6039/2012-D DATED 18/02/2015.| |EXHIBIT P7|TRUE COPY OF THE JUDGMENT IN W.P.(C)| ||NO.3383/2013-W DATED 17/11/2016.| |EXHIBIT P8|TRUE COPY OF THE JUDGMENT IN W.A.NO.2290/2015| ||DATED 25/07/2017.| |EXHIBIT P9|TRUE COPY OF THE REVISION PETITION SUBMITTED| ||BEFORE THE GOVERNMENT DATED 20/02/2018.| |EXHIBIT P10|TRUE COPY OF THE JUDGMENT IN W.P.(C)| ||NO.6819/2018 DATED 28/02/2018.| |EXHIBIT P11|TRUE COPY OF THE G.O.(RT) NO.3913/2018/GEDN| ||DATED 03/10/2018 OF THE GOVERNMENT.| |EXHIBIT P12|TRUE COPY OF THE DECISION REPORTED IN 1997(1)| ||KLT 601 DATED 18/02/1997.| |Exhibit P13|TRUE COPY OF THE JUDGMENT IN W.A.NO.2091/2018| ||DATED 28/06/2019.| **WP(C) NO. 35024 OF 2018 9** RESPONDENTS' EXHIBITS: EXHIBIT R1(A) TRUE COPY OF THE JUDGMENT IN ESI CORPORATION V. PURUSHOTHAMAN (2001(2)KLT 814)