Relshan K.A. and Jeena James v. State of Kerala, represented by the Secretary to Government, General Education Department, Government Secretariat, Thiruvananthapuram; Director of Public Instruction, Jagathy, Thiruvananthapuram; District Educational Officer, Ernakulam, Ernakulam District

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 15TH DAY OF MARCH 2018 / 24TH PHALGUNA, 1939** **WP(C).No. 6952 of 2018** **----------------------** ## **PETITIONER** **----------** **1 RELSHAN K.A, H.S.A.(PHYSICAL SCIENCE), ST.GEORGE H.S. THANKEY, ALAPPUZHA DISTRICT - 688 534.** - **2 JEENA JAMES,** **H.S.A(NATURAL SCIENCE), ST.PETER'S H.S.S. KUMBALANGI, ERNAKULAM DISTRICT - 682 007.** **BY ADV.SRI.P.M.PAREETH** ## **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM - 695 014.** **3. DISTRICT EDUCATIONAL OFFICER, ERNAKULAM, ERNAKULAM DISTRICT - 682 011.** **BY SENIOR GOVERNMENT PLEADER SMT NISHA BOSE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.V.** **WP(C).No. 6952 of 2018 (T) -------------------------** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1. A TRUE PHOTOCOPY OF THE APPOINTMENT ORDER DATED 31.05.2008 IN RESPECT OF THE 1ST PETITIONER. EXHIBIT P1(A). A TRUE PHOTO COPY OF THE APPOINTMENT/TRANSFER ORDER DATED 01.06.2011. EXHIBIT P2. A TRUE PHOTOCOPY OF THE APPOINTMENT ORDER DATED 02.06.2008 IN RESPECT OF THE 2ND PETITIONER. EXHIBIT P3. A TRUE PHOTO COPY OF THE STAFF FIXATION ORDER DATED 30.07.2010 FOR 2008-09 IN RESPECT OF ST.MARY'S H.S. CHELLANAM. EXHIBIT P3(A). A TRUE PHOTO COPY OF THE STAFF FIXATION ORDER DATED 30.07.2010 FOR 2009-10 IN RESPECT OF ST.MARY'S H.S. CHELLANAM. EXHIBIT P3(B). A TRUE PHOTO COPY OF THE STAFF FIXATION ORDER DATED 12.08.2010 FOR 2010-11 IN RESPECT OF ST.MARY'S H.S. CHELLANAM. EXHIBIT P4. A TRUE PHOTO COPY OF THE STAFF FIXATION ORDER FOR 200-10 DATED 19.07.2010 IN RESPECT OF ST.PETER'S H.S.S. KUMBALANGI (2ND PETITIONER). EXHIBIT P4(A). A TRUE PHOTO COPY OF THE STAFF FIXATION ORDER FOR 2010-11 DATED 12.08.2010 IN RESPECT OF ST.PETER'S H.S.S. KUMBALANGI (2ND PETITIONER). EXHIBIT-P5: A TRUE PHOTO COPY OF THE REVISION PETITION DATED 01.03.2018 SUBMITTED BY THE 1ST PETITIONER. EXHIBIT-P6: A TRUE PHOTO COPY OF THE REVISION PETITION DATED 01.03.2018 SUBMITTED BY THE 2ND PETITIONER. RESPONDENTS EXHIBITS: NIL -------------------/TRUE COPY/ K.V. P.S.TO JUDGE 21.03.2018** **ANIL K. NARENDRAN, J. ------------------------------------------W.P.(C) No.6952 of 2018 ------------------------------------------Dated this the 15[th] day of March, 2018** ## **JUDGMENT** The petitioners, who are working as H.S.A. (Physics) and H.S.A. (Natural Science) respectively at St.George H.S., Thankey and St.Peter's H.S.S., Kumbalangi respectively, are before this Court with a grievance that their appointment prior to 01.06.2011 has not been approved even though they joined duty as U.P.S.A at St.Mary's H.S. Chellanam and as H.S.A. (Natural Science) at St.Peter's H.S.S., Kumbalangi respectively on 02.06.2008 and continued upto 31.05.2011. From 01.06.2011, the 1[st] petitioner was appointed as U.P.S.A. at St.George H.S., Thankey and was promoted as H.S.A. (Physics) with effect from 01.06.2015 and is continuing as such. The 2[nd] petitioner is continuing as H.S.A. (Natural Science) at St.Peter's H.S.S., Kumbalangi. However, their appointment was approved only from 01.06.2011. The period of appointment from 02.06.2008 to 31.05.2011 is yet W.P.(C) No.6952 of 2018 :-2-: to be approved. 2. The petitioners have approached this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Exts.P1 (a) and P2 to the extent it grant approval for their appointments only from 01.06.2011 and deny approval for the period from 02.06.2008 to 31.05.2011. The petitioners have also sought for a declaration that they are entitled to get their appointment from 02.06.2008 to 31.05.2011 approved on regular pay scale as U.P.S.A. and H.S.A. and there is no reason to deny the said approval and the action of the 3[rd] respondent in having denied the approval is illegal and arbitrary. The petitioners have also sought for other consequential reliefs. 3. Now the petitioners have submitted Exts.P5 and P6 revision petitions dated 05.03.2018 aggrieved by the approval granted in Exts.P1(a) and P2 to the extent of denying the approval from 02.06.2008 to 31.05.2011 and seeking approval of their appointments for the aforesaid period and for disbursement of consequential benefits W.P.(C) No.6952 of 2018 :-3-: including the arrears of pay and other allowances. Exts.P5 and P6 revision petitions are filed under Rule 92 of Chapter XIV A of the Kerala Education Rules (KER). 4. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader appearing for the respondents. 5. In support of the claim made by the petitioners for approval of their appointment on regular basis from 02.06.2008 to 31.05.2011, the petitioners would rely on the judgment of this Court in **Kerala Aided L.P. and U.P. School Mangers Association v. State of Kerala (ILR 2016 (1) Kerala 590)** . Sub-paragraph (iii) of Paragraph 84 of the said judgment reads thus: “84 (iii) The amendments made to the KER as per S.R.O.No.485/2014 [G.O.(P) No.154/2014/G.Edn. dated 11.08.2014] would have only prospective application. The amendment made by Rules 2(1), 2(2)(a), 2(2)(b) and 2(3) of the Amendment Rules of 2014 would stand set aside, as being arbitrary and unreasonable. Amendment Rule 2(4) introduces Chapter XXI to the KER in which Chapter, Rules 1 to 6 would stand set aside, again as being arbitrary and unreasonable. Rule 7 in Chapter XXI alone would be sustained. Amended Rule 2(5)(a) and 2 (5)(b) would be sustained. Amended Rule W.P.(C) No.6952 of 2018 :-4-: 2(5)(c), being the substitution of Rule 12 of KER would also be sustained; but, however, finding the effective strength of pupils reckoned for the academic year 201011, made permanent; as being ultra vires the provisions of the KE Act and the other provisions of the KER, as also running counter to the provisions of the RTE Act. The procedure for staff fixation orders based on UID would stand sustained. Amended Rule 2(5)(2)(d) would be sustained, while clause (e) of the said Rule would stand set aside.” 6. The petitioners would also rely on the judgment of this Court dated 18.2.2015 in W.P.(C)No.4643/2012, wherein it has been held that appointment has to be approved and arrears paid to the petitioners therein treating that the Manager has executed bond and his obligation for appointing protected teachers is in force. The said judgment was followed in the judgment dated 15.6.2015 in W.P.(C)No.32727/2011. W.A.No.931/2016 filed by the State challenging the said judgment in W.P.(C)No.32727/2011 ended in dismissal by judgment dated 24.7.2017 and paragraph 3 of the said judgment reads thus; “3. Heard. We notice that the only ground on which approval to the appointment of the first respondent has been declined is that the Manager had failed to execute W.P.(C) No.6952 of 2018 :-5-: a bond as contemplated by the Government Order dated 12.01.2010. According to the learned Government Pleader, the judgment of the learned Single Judge causes prejudice to the interests of the Government. We do not agree. The learned Single Judge has taken care to safeguard the interests of the State by providing that the State would be entitled to proceed as though a bond had been executed by the Manager as stipulated by the Government Order dated 12.01.2010.” 7. The learned Senior Government Pleader would submit that the 1[st] respondent shall consider Exts.P5 and P6 revision petitions filed by the petitioners and pass appropriate orders thereon, within a time limit to be fixed by this Court. 8. Having considered the submission made by the learned counsel on both sides, this writ petition is disposed of by directing the 1[st] respondent to consider and pass appropriate orders on Exts.P5 and P6 revision petitions filed by the petitioners, strictly in accordance with law, taking note of the law laid down by this Court in the decisions referred to supra _._ Necessary orders in this regard shall be passed, with notice to the petitioners and after affording them an opportunity of being heard, as expeditiously as W.P.(C) No.6952 of 2018 :-6-: possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. 9. Based on the orders so passed by the 1[st] respondent, the 3[rd] respondent District Educational Officer shall disburse the consequential monetary benefits payable to the petitioners, within two months thereafter. All legal and factual contentions raised by the petitioners are left open to be raised before the 1[st] respondent at appropriate stage. Sd/- **ANIL K. NARENDRAN JUDGE** bpr