RESHMI.C.K. and Others v. State of Kerala and Others

**WP(C) NO. 25523 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944 WP(C) NO. 25523 OF 2021** ## **PETITIONERS:** 1 RESHMI.C.K., AGED 47 YEARS W/O.HARISH KUMAR, USA, POILKAVE U.P.SCHOOL, EDAKKULAM, KOYILANDY, KOZHIKODE-673 306. 2 SANTHOSH.K., AGED 49 YEARS S/O.RAGHAVAN KIDAV, HINDI TEACHER, POILKAVE U.P.SCHOOL, EDAKKULAM, KOYILANDY, KOZHIKODE-673 306. 3 JITHESH KOYAMBRATH, AGED 39 YEARS S/O.KUNHIKKANNAN UPSA, POILKAVE U.P.SCHOOL, EDAKKULAM, KOYILANDY, KOZHIKODE-673 306. 4 SHILOJ.T.K., AGED 36 YEARS S/O.VIJAYAN, LPSA, POILKAVE U.P.SCHOOL, EDAKKULAM, KOYILANDY, KOZHIKODE-673 306. 5 AKHIL.B.S., AGED 32 YEARS S/O.BALAKRISHNAN.K.K., LPSA, POILKAVE U.P.SCHOOL, EDAKKULAM, KOYILANDY, KOZHIKODE-673 306. 6 PAVINA.P., AGED 36 YEARS W/O.BIJU, UPSA, POILKAVE U.P.SCHOOL, EDAKKULAM, KOYILANDY, KOZHIKODE-673 306. 7 CHITHRESH.P.G., AGED 47 YEARS S/O.GANGADARAN, UPSA, POILKAVE U.P.SCHOOL, EDAKKULAM, KOYILANDY, KOZHIKODE-673 306. **WP(C) NO. 25523 OF 2021** **2** 8 SHOMA SHEENALAYAM, AGED 41 YEARS W/O.ABILASH, UPSA, POILKAVE U.P.SCHOOL, EDAKKULAM, KOYILANDY, KOZHIKODE-673 306. 9 SOUMYA.I.M., AGED 32 YEARS W/O.ARUN LAL, LPSA, POILKAVE U.P.SCHOOL, EDAKKULAM, KOYILANDY, KOZHIKODE-673 306. BY ADV R.K.MURALIDHARAN ## **RESPONDENTS:** 1 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695 001. 2 DIRECTOR OF GENERAL EDUCATION, OFFICE OF THE DIRECTOR OF GENERAL EDUCATION, JAGATHI, THIRUVANANTHAPURAM-695 014. 3 THE DISTRICT EDUCATIONAL OFFICER, VATAKARA, KOZHIKODE-673 004. 4 THE ASSISTANT EDUCATIONAL OFFICER, KOYILANDY, KOZHIKODE-673 306. 5 THE MANAGER, POILKAVE U.P.SCHOOL, EDAKKULAM, KOYILANDY, KOZHIKODE-673 306. SMT NISHA BOSE, SR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 25523 OF 2021** **3** ## **JUDGMENT** The petitioners state that they were appointed in the post of Lower Primary, Upper Primary and LG Hindi Teachers in the additional division vacancies that arose during 2006-2007 to 2010-2011 in the Poilkave UP School, Edakkulam. However, the proposal for approval submitted by the Manager was rejected on the ground that the posts were not sanctioned and due to the order passed by the Government vide G.O.(P) No.317/2005/G.Edn. dated 17.8.2005, imposing a ban on the appointment of teachers and non-teaching staff in additional division vacancies. According to the petitioners, 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. Thereafter, the Government issued G.O.(P)No.199/2011/G.Edn dated 01.06.2011 approving the recommendations for implementation of the comprehensive teacher’s package for appointment of deployed/protected teachers. The petitioners **WP(C) NO. 25523 OF 2021** **4** were also included in the package and their appointment was regularised with effect from 1.6.2011. According to the petitioners, similarly placed teachers had approached this Court and by Ext.P26 judgment, 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 petitioners contend that relying on the law laid down by this Court, the petitioners have preferred Ext.P27 revision petition before the 1st respondent. The revision petition was remitted back to the 2nd respondent without notice to the petitioners and though there were materials to show that the petitioners were working during the period from 2006-2007 to 2010-2011 and that their appointments were approved from 1.6.2011, the request was rejected on the ground that the Manager has not executed the bond and that the appeals preferred by the Managers before the Hon’ble Supreme Court have not been disposed of. According to the petitioners, the 5th respondent Manager had not even preferred an appeal before the Hon’ble Supreme Court and no interim orders have been passed staying the judgment rendered by a Division Bench of this Court. It is in the afore circumstances that the petitioners are before this Court seeking to quash Exts.P2, P4, P8, P10, P13, P15, P17, P18, P20, P21 and P22 to P24 staff fixation orders of the school denying additional division and posts and Ext.P28 order issued by the 2nd respondent and for a further direction to the 4th respondent to approve the appointment of the petitioners from their **WP(C) NO. 25523 OF 2021** **5** initial date of appointment with all consequential benefits. 2. Sri. R.K.Muralidharan, the learned counsel appearing for the petitioners 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. 3. 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 12.01.2010 and those matters are now pending before the Apex Court. 4. I have considered the submissions advanced. The writ petitioners were appointed during the period when the ban, pursuant to G.O.(P) No.10/10/G.Edn. dated 12.01.2010, was in force. The appointment of the petitioners was approved only with effect from 01.06.2011 on the **WP(C) NO. 25523 OF 2021** **6** ground that there was a ban on appointments at the time of their initial appointment and that the Manager had failed to execute the bond in terms of G.O.(P)No.10/10. 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 equal number of appointments when the appointments to additional vacancies made during the ban period are approved. 5. In the case on hand, the only reason stated in Ext.P28 order passed by the 2nd respondent is that the Manager has not executed the bond and also the pendency of the petitions filed by the Managers before the Hon’ble Supreme Court. However, while considering similar issues in Ext.P26 judgment, this Court had held that the appointments have to be approved, treating that the Manager had executed the bond. The 2nd respondent was bound to consider that if there is sufficient student strength to satisfy the additional division, the appointment in such vacancies is to be approved by deeming that the Manager had executed the bond. As the impugned order was passed, without taking note of the above aspect, I am of the view that the issue requires fresh consideration at the hands of the 1st respondent. **WP(C) NO. 25523 OF 2021** **7** Resultantly, Ext.P28 order will stand quashed. There will be a direction to the 1st respondent to reconsider Ext.P27 revision petition and pass fresh orders in the light of the law laid down by this Court in Ext.P26 judgment. Orders shall be passed with notice to the petitioners as well as the Manager expeditiously, in any event, within a period of three months from the date of receipt of a copy of this judgment. This writ petition is disposed of. **Sd/RAJA VIJAYARAGHAVAN V JUDGE** IAP **WP(C) NO. 25523 OF 2021** **8** ## **APPENDIX OF WP(C) 25523/2021** PETITIONERS' EXHIBITS: Exhibit P1 A TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 02.06.2008 IN THE LWA VACANCY OF K.GIRISH CHANDRAN. Exhibit P2 A TRUE COPY OF THE ORDER NO.K.DIS.F 3054/2008 OF THE 4TH RESPONDENT DATED 16.03.2009. Exhibit P3 A TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2009 OF THE 1ST PETITIONER. Exhibit P4 A TRUE COPY OF THE ORDER NO.K.DIS F 2990/09 DATED 04.12.2009 BY THE 4TH RESPONDENT. Exhibit P5 A TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2010 OF THE 1ST PETITIONER. Exhibit P6 A TRUE COPY OF THE PROCEEDINGS NO.10/21-22 OF THE 5TH RESPONDENT MANAGER DATED 22.10.2021. Exhibit P7 A TRUE COPY OF THE APPEAL FILED BY THE 5TH RESPONDENT MANAGER DATED 14.04.2007 TO THE 1ST RESPONDENT. Exhibit P8 A TRUE COPY OF THE COMMUNICATION DATED 12.09.2007 ISSUED BY THE 2ND RESPONDENT. Exhibit P9 A TRUE COPY OF THE APPOINTMENT ORDER AND APPROVAL DATED 01.06.2010 OF THE 2ND PETITIONER. Exhibit P10 A TRUE COPY OF THE ORDER NO.K.DIS F 2993/09 DATED 04.01.2010 OF THE 4TH RESPONDENT TO THE 3RD PETITIONER. Exhibit P11 A TRUE COPY OF THE PAGE 15 OF THE SERVICE BOOK OF THE 3RD PETITIONER. **WP(C) NO. 25523 OF 2021** **9** Exhibit P12 A TRUE COPY OF THE APPOINTMENT ORDER OF THE 4TH PETITIONER DATED 02.06.2009 IN THE ADDITIONAL DIVISION VACANCY. Exhibit P13 A TRUE COPY OF THE ORDER NO.K.DIS B5-2696/10 DATED 15.06.2010 OF THE 3RD RESPONDENT. Exhibit P14 A TRUE COPY OF THE APPOINTMENT ORDER OF THE 5TH PETITIONER DATED 01.06.2010. Exhibit P15 A TRUE COPY OF THE ORDER NO.K.DIS F.2781/2010 DATED 25.02.2011 OF THE 4TH RESPONDENT (IN RESPECT OF 6TH PETITIONER). Exhibit P16 A TRUE COPY OF THE APPOINTMENT ORDER DATED 01.06.2009 OF THE 6TH PETITIONER. Exhibit P17 A TRUE COPY OF THE ORDER NO.K.DIS F.2992/2009 DATED 02.06.2010 OF THE 4TH RESPONDENT. Exhibit P18 A TRUE COPY OF THE ORDER NO.K.DIS F 2991/09 DATED 04.01.2010 OF THE 4TH RESPONDENT (IN RESPECT OF 7TH PETITIONER). Exhibit P19 A TRUE COPY OF THE APPOINTMENT ORDER DATED 06.01.2010 OF THE 8TH PETITIONER. Exhibit P20 A TRUE COPY OF THE ORDER NO.B5/2448/2011/K.DIS DATED 30.06.2011 OF THE 3RD RESPONDENT (IN RESPECT OF 8TH PETITIONER). Exhibit P21 A TRUE COPY OF THE ORDER NO.B5/2446/2011/K.DIS OF THE 3RD RESPONDENT DATED 30.06.2011 (IN RESPECT OF 9TH PETITIONER). Exhibit P22 A TRUE COPY OF THE RELEVANT PAGES OF THE STAFF FIXATION OF THE SCHOOL BY THE 4TH RESPONDENT DATED 25.10.2006 ALONG WITH THE RECTIFIED ORDER. Exhibit P23 A TRUE COPY OF THE RELEVANT PAGES OF STAFF FIXATION ORDER NO.D.DIS F 3530/2008 OF THE SCHOOL FOR THE YEAR 2008-09 DATED 15.11.2008 ISSUED BY THE 4TH RESPONDENT. **WP(C) NO. 25523 OF 2021** **10** Exhibit P24 A TRUE COPY OF THE RELEVANT PAGES OF THE STAFF FIXATION ORDER OF THE SCHOOL FOR THE ACADEMIC YEAR 2009-2010 BY THE 4TH RESPONDENT DATED 07.11.2009. Exhibit P25 A TRUE COPY OF THE GO(P) NO.10/10/G EDN. DATED 12.01.2010. Exhibit P26 A TRUE COPY OF THE JUDGMENT IN WA NO.931/2016 DATED 24.07.2017. Exhibit P27 A TRUE COPY OF THE REVISION PETITION FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT DATED 05.10.2019. Exhibit P28 A TRUE COPY OF THE ORDER NO.G3/45329/2019/D.G.E/K.DIS DATED 11.08.2021 OF THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: NIL