Rafia K. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **MONDAY, THE 20TH DAY OF NOVEMBER 2017/29TH KARTHIKA, 1939** ## **WP(C).No. 186 of 2017 (W)** ## **--------------------------** **PETITIONER:** **------------------RAFIA K., HIGH SCHOOL ASSISTANT(SOCIAL SCIENCE) C.H.M HIGH SCHOOL, ELAYAVOOR.P.O., VARAM, KANNUR DISTRICT-670594** ## **BY ADV. SRI.POOVAMULLE PARAMBIL ABDULKAREEM** ## **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001** **2. THE DIRECTOR OF PUBLIC INSTRUCTION OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM-695001** **3. THE DEPUTY DIRECTOR OF EDUCATION OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION KANNUR-670001** **4. THE DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER KANNUR-670001** **5. THE MANAGER, C.H.M HIGH SCHOOL, ELAVAYOOR,P.O, VARAM, KANNUR DISTRICT-670594** **6. HEAD MASTER CHM HIGH SCHOOL ELAVAYOOR, P.O. VARAM, KANNUR DISTRICT-670594** **R1-R4 BY GOVERNMENT PLEADER SRI. B. UNNIKRISHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** ## **WP(C).No. 186 of 2017 (W)** ## **--------------------------** ## **APPENDIX** ## **--------------------** ## **PETITIONER(S)' EXHIBITS** ## **----------------------------------------** - **P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 2/6/2008 ISSUED BY THE 5TH RESPONDENT** - **P2 TRUE COPY OF THE ORDER NO.B1/6003/08 K.DIS DATED 7/3/2009 ISSUED BY THE 4TH RESPONDENT** - **P3 TRUE COPY OF THE ORDER NO.B4/7196/2008/K.DIS DATED 22/7/2009 ISSUED BY THE 3RD RESPONDENT** - **P4 TRUE COPY OF THE GO(P) NO.10/10/G.EDN. DATED 12/1/2010 ISSUED BY THE 1ST RESPONDENT** - **P5 TRUE COPY OF THE ORDER IN CIVIL APPEAL NO.3490/2016 AND CONNECTED CASES PASSED BY THE HON'BLE APPEX COURT** - **P6 TRUE COPY OF THE REVISION PETITION DATED 29/2/2016 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT** - **P7 TRUE COPY OF THE JUDGMENT DATED 5/4/2016 IN W.P(C) NO.13275/2016** - **P8 TRUE COPY OF THE GO(RT) NO.3307/2016/G.EDN. DATED 6/10/2016 ISSUED BY THE 1ST RESPONDENT** - **P9 TRUE COPY OF THE GOVERNMENT LETTER NO.519/E2/04/G.EDN DATED 17/7/2004** - **P10 TRUE COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT DATED 19/10/2004 APPOINTING SMT.GEETHA.E.K** - **P11 TRUE COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT DATED 19/10/2004 APPOINTING VIJAYALAKSHMI, KOTTAYI** - **P12 TRUE COPY OF THE ORDER NO.B4/13412/2004/K.DIS. DATED 28/1/2005 PASSED BY THE 3RD RESPONDENT GRANTING APPROVAL TO ONE SRI.ATTIKOYA THANGAL, HSA (PHYSICAL SCIENCE)** - **P13 TRUE COPY OF THE GO(RT)NO.2877/2013/G.EDN.DATED 11/7/2013 ISSUED BY THE 1ST RESPONDENT** - **P14 TRUE COPY OF THE DECISION REPORTED IN 2006(2) KLTSN 5** - **P15 TRUE COPY OF THE STAFF FIXATION FOR THE YEAR 2008-2009** - **P16 TRUE COPY OF THE STAFF FIXATION FOR THE YEAR 2009-2010** ## **WP(C).No. 186 of 2017 (W)** ## **--------------------------** - **P17 TRUE COPY OF THE STAFF FIXATION FOR THE YEAR 2010-2011** - **P18 TRUE COPY OF THE APPOINTMENT ORDER DATED 22/8/2007 ISSUED BY THE 5TH RESPONDENT TO ROSHNA K.C** - **P19 TRUE COPY OF THE APPOINTMENT ORDER DATED 21/2/2008 ISSUED BY THE 5TH RESPONDENT TO SMT.JITHA M** - **P20 TRUE COPY OF THE APPOINTMENT ORDER DATED 2/11/2009 ISSUED BY THE 5TH RESPONDENT** - **P21 TRUE COPY OF THE JUDGMENT DATED 26/07/2017 PASSED BY THIS HON'BLE COURT IN W.A. NO. 2592 OF 2015** **RESPONDENT(S)' EXHIBITS NIL -----------------------------------------** **sdr/-** **/TRUE COPY/ PA TO JUDGE** ## **P.V.ASHA J.** ## **-----------------------------------W.P.(C).No.186 of 2017** **-------------------------------------** Dated this the 20[th] day of November, 2017 ## **J U D G M E N T** The petitioner was appointed as HSA (Social Science) in the 5[th] respondent's School as per Ext.P1 order dated 2.6.2008 in the additional post created for the year 20062007. This appointment was approved as per endorsement dated 26.12.2011 in Ext.P1 with effect from 1.6.2011 in tune with Circular No.H2/35920/11/DPI dated 13.12.2011 of the Director of Public Instructions. Aggrieved by the denial of approval with effect from the initial date of appointment, namely 2.6.2008, the petitioner has moved the Government with revision petition. That revision petition was rejected. This writ petition is filed seeking directions to the respondents to approve her appointment with effect from 2.6.2008. 2. The 4[th] respondent denied the approval to the appointment of petitioner as per Ext.P2 order saying that all the vacancies in the School should have been filled up by appointing protected teachers, as per G.O.(P). No.178/02/G.Edn dated 28.06.2002 and also that there was a ban on appointments, ordered by Government on 17.08.20015. W.P.(C).No.186 of 2017 2 Ext.P2 was affirmed in Ext.P3 order of 3[rd] respondent. Thereafter Government issued G.O.(P).No.10/10/G.Edn dated 12.01.2010 lifting the ban on appointments on condition that the Managers have to execute a bond agreeing to fill up equal number of vacancies by appointing protected teachers. But the Manager did not execute any bond. While so, Government introduced Teachers' package as per G.O. (P) No.110/2011/G.Edn dated 01.10.2011 and based on that petitioner's appointment was approved w.e.f. 01.06.2011. Thereafter, petitioner moved Government with a revision petition for approval from 02.06.2008 onwards, pointing out that the Manager had already appointed two protected teachers as per Exts.P10 & P11 orders dated 19.10.2004. Government found that a common decision was required on the question of the service rendered by the teachers prior to 01.06.2011 and her case can be considered as and when such a decision is taken. Therefore, the revision petition was disposed of reserving her right to approach again as and when a decision is taken by Government on the service rendered by teachers like her prior to 01.06.2011. The writ petition is filed pointing out that approval is granted to several teachers from the date of their initial appointment despite the ban. W.P.(C).No.186 of 2017 3 3. The 4[th] respondent filed a counter affidavit stating that approval was denied not only because it was made contrary to the ban on appointment in additional vacancy but also because of the Government Order-G.O.(P). No.178/02/G.Edn dated 28.06.2002, directing that vacancies in newly opened Schools shall be filled up by protected teachers. Approval from 01.06.2011 was granted under teachers' package. 4. On consideration of the contentions, it is seen that petitioner was appointed at a time when there was justification for sanctioning a post of HSA. At the same time, the Manager filled up the vacancy in gross disobedience of the orders issued by Government, imposing ban on filling up of vacancy in additional divisions. As per the provisions contained in Rule 1 of Chapter XIVA KER, the Manager has to fill up the vacancy in an aided school only in accordance with the rules as well as the orders issued by Government from time to time. In June 2008, the ban order issued on 17.08.2005 was in force and Manager ought not have filled up the additional division vacancy. When the Government lifted the ban conditionally, by issuing G.O.(P) No.10/10/G.Edn dated 12.01.2010, the Manager did not execute any bond agreeing to fill up equal W.P.(C).No.186 of 2017 4 number of vacancies by appointing protected teachers. The Managers of various Schools challenged the order issued on 12.01.2010 unsuccessfully. It 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 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 of 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 Instruction, as provided in Sub-rule (1) and (4) of R.1 of Chapter XIVA of K.E.R. This Court found that the G.O. (P).No.10/10/G.Edn dated 12.01.2010 was perfectly within the competence of Government. In the meanwhile Government had issued G.O.(P) No.199/11/G.Edn dated 1.10.2011, introducing teachers' package and directing approval of appointment of the teachers who were continuing without W.P.(C).No.186 of 2017 5 salary, protected hands, etc. with effect from 01.06.2011. Based on those orders all the teachers including the petitioner who was 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, Government did not take a decision on the question of the service rendered by these teachers prior to 01.06.2011. They have been consistently adopting the stand that the question regarding that would be decided later. The fact that there was justification for sanctioning the posts for their appointments is not disputed. 5. Another objection raised against the appointment was based on 2002 order directing to appoint protected teachers. It is seen that the respondents have approved the appointment of an H.S.A w.e.f. 22.08.2007 without any demur. Moreover 2 protected teachers were appointed as per Exts.P10 and P11 orders on 09.10.2004. Therefore that contention does not survive. 6. The learned Counsel for the petitioner is that approval is granted to several teachers on the basis of the directions of this Court in similar cases when the teachers like petitioner who got appointment in additional W.P.(C).No.186 of 2017 6 division vacancies prior to 01.06.2011. 7. 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, 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. 8. 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 conditions in the bond. 9. In the judgment dated 29.03.2017 in W.P(C) No.1552 of 2012, another learned Single Judge directed approval and consequential disbursement of salary to teachers similarly situated. 10. The learned Counsel for the petitioner 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 W.P.(C).No.186 of 2017 7 to 01.06 2011 should not be recognised for any purpose. The Government have been stating that a general decision would be taken in the matter. Later though amendment was brought about by 2014 amendment Rules in KER denying any benefit of service rendered by the teachers upto 01.06.2011 who got approval from 01.06.2011 under teachers package, that amendment was held bad by this Court in the judgment in **Kerala Aided L. P. and U. P. School, Kollam v. State of Kerala and Another** [ILR 2016 (1) KER 590]. The 1[st] respondent, thereafter issued several orders approving the appointment of such teachers w.e.f the date of initial appointment upto 01.06.2011 also. 11. Apart from that several of these judgments of this Court directing approval of the period of appointment prior to 01.06.2011 are already implemented and several similarly situated teachers got approval and payment of salary towards the pre-June 2011 service in additional division vacancies. Therefore, I am of the considered view that there is no reason why the petitioner in this case should be subjected to a different treatment, for the very same reasons viz. ban on appointments and non-execution of bonds. Government do not have a case that these teachers have not worked or that there were no posts for them for W.P.(C).No.186 of 2017 8 their appointments. In this case the 5[th] respondent has not filed any counter affidavit. He did not care to execute the bond as required in G.O.(P).No.10/10/G.Edn dated 12.01.2010. It is not clear whether he challenged the order and got his writ petition dismissed or whether he has approached the Apex Court. 12. Once it is found that the Manager appointed the petitioner in gross disobedience to the orders issued by the Government, imposing ban on appointment 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 Manager, who is party to this writ petition, in accordance with the provisions in Chapter III Rule 7 of KER and also to enforce the conditions in the bond. The official respondent shall also enforce the bond against the Manager as if he executed it in accordance with the G.O.(P).No.10/10/G.Edn dated 12.01.2010. The Division Bench, has, in its judgment dated 27.07.2017 while dismissing the writ appeals W.A.No.2502/2015(produced as Ext P21 along with I.A No. 17842 of 2017) affirmed the judgment directing approval reiterating that the Government would be free to W.P.(C).No.186 of 2017 9 enforce the bonded obligation against the Managers treating them as having executed the bonds in terms of G.O.(P).No.10/10/G.Edn dated 12.01.2010 **.** 13. In these circumstances, the denial of approval to the appointment of the petitioner for the period prior to 01.06.2011 is arbitrary and unsustainable. The writ petition is therefore allowed directing the 4[th] respondent to issue revised orders approving the appointment of the petitioner from 2.6.2008 onwards in accordance with Ext.P1 and to re-fix her pay accordingly. The petitioner would be entitled to all the consequential benefits. The respondents shall grant the same within a period of 'four months', from the date of receipt of copy of a judgment. The official respondents would be free to enforce the conditions in G.O.(P).No.10/10/G.Edn dated 12.1.2010 as if the Manager has executed the bond in terms of that order. Sd/- **P.V.ASHA, JUDGE.** AS